Martens v Commonwealth of Australia [2009] FCA 207

Martens v Commonwealth of Australia [2009] FCA 207

The Minister for Home Affairs was empowered to make the decision to refuse referral under s 672A of the Criminal Code 1899 (Qld) as applied by s 68 of the Judiciary Act 1903 (Cth), but failed to take relevant considerations into account by not properly addressing fresh or new evidence presented with the application, and applied an overly rigorous test, thereby misconceiving the discretion and the proper role consigned to the Court of Appeal. The decision was affected by an improper exercise of power and must be set aside.

Parties
Applicant: Frederick Arthur Martens; First Respondent: Commonwealth of Australia; Second Respondent: Bob Debus
Jurisdiction
Australia
Judgment Date
06 March 2009
Procedural Posture
Judicial Review Application / Judgment After Hearing
Outcome
Application allowed. Minister's decision set aside.
Legal Topics
Judicial Review of Ministerial Decisions, Reference to Appellate Court Under S 672 a Criminal Code 1899 (qld), Application of State Law to Federal Offenders Via S 68 Judiciary Act 1903 (cth), Royal Prerogative of Mercy, Relevant Considerations in Administrative Discretion
Administrative Law Criminal Law Constitutional Law Statutory Interpretation Judicial Review of Ministerial Decisions Reference to Appellate Court Under S 672 a Criminal Code 1899 (qld) Application of State Law to Federal Offenders Via S 68 Judiciary Act 1903 (cth) Royal Prerogative of Mercy +1 more

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Parties

Frederick Arthur Martens

Applicant

Commonwealth of Australia

First Respondent

Bob Debus

Second Respondent

Procedural Posture

Judicial Review Application / Judgment After Hearing

Legal Issues

  1. 1 Whether the Minister for Home Affairs was empowered to make the decision to refuse referral under s 672A of the Criminal Code 1899 (Qld) as applied by s 68 Judiciary Act 1903 (Cth)
  2. 2 Whether the Minister failed to take into account relevant considerations in exercising the discretion under s 672A
  3. 3 Nature of the relevant test to apply in referring a matter to an appellate court; whether the correct test was applied

Ratio Decidendi

The Minister for Home Affairs was empowered to make the decision to refuse referral under s 672A of the Criminal Code 1899 (Qld) as applied by s 68 of the Judiciary Act 1903 (Cth), but failed to take relevant considerations into account by not properly addressing fresh or new evidence presented with the application, and applied an overly rigorous test, thereby misconceiving the discretion and the proper role consigned to the Court of Appeal. The decision was affected by an improper exercise of power and must be set aside.

Court Disposition

Application allowed. Minister's decision set aside.

Orders

  • The Second Respondent's decision of 4 September 2008 to refuse to refer a case to the Court of Appeal pursuant to s 672A(a) of the Criminal Code 1899 (Qld) as applied by s 68 of the Judiciary Act 1903 (Cth) be set aside.
  • The matter be remitted to the Second Respondent for further consideration according to law.