Justiciability of Decisions in the Criminal Process: Review of Committal Proceedings in the Federal Court
![handle is hein.journals/fedlr19 and id is 366 raw text is: Federal Law Review
JUSTICIABILITY OF DECISIONS IN THE CRIMINAL
PROCESS: REVIEW OF COMMITTAL PROCEEDINGS IN THE
FEDERAL COURT
BRONWYN NAYLOR*
1 INTRODUCTION
Justiciability is a central concept in administrative law. It is used to define the
limits of judicial review, limits drawn in terms of judicial conceptions of the
proper relationship between the courts and the executive.' This paper examines
the limits on judicial review of one part of the criminal process.
Decisions made at a criminal trial can be challenged by statutory avenues of
appeal or, less usually, by judicial review. Decisions earlier in the criminal
process, however, are generally unreviewable at common law. For a variety of
reasons, they have enjoyed a special immunity from judicial review.2 The
discretions to prosecute, or to discontinue a prosecution, have been regarded as
non-reviewable exercises of prerogative powers.3 Where equivalent powers have
been conferred by statute, the unlimited terms in which they are granted has
similarly meant they are unreviewable.4 Even with moves to greater review of
prerogative powers in Australia and overseas5 prosecution decisions continue to
be regarded as unreviewable. As they involve a wide and unstructured discretion,
with a large policy component, they are said to be more appropriately
accountable to Parliament than to the courts.6
Committal proceedings have different features. They are statutory in origin,
and the discretion being exercised is statutorily defined. There have however also
been doubts about their amenability to review, at least by the prerogative writs.
One reason, as will be seen, has been the traditional classification of the
magistrate's function as executive rather than judicial.
The New Administrative Law, and in particular the establishment of review
under the Commonwealth Administrative Decisions (Judicial Review) Act 1977
(AD(JR) Act), has seen a widening of review of the criminal process. Many
decisions have been held to fall within the Federal Court's jurisdiction as
BA (Hons) LLM (Mon). M Phil (Camb), Lecturer-in-Law, Monash University. An
earlier version of this paper was delivered at the Conference on the Future of
Committals. Australian Institute of Criminology, Canberra, May 1990. The author
acknowledges the detailed comments of Peter Hanks and Susan Kneebone, and the
comment also provided by Jeffrey Barnes and Richard Fox, on preliminary drafts of
this paper.
1 M Allars, Introduction to Australian Administrative Law (1990) 43.
2 Ibid 45.
3 See R v Prosser (1848) 11 Beav 306; Gouriet v Union of Post Office Workers [1978]
AC 435; Barton v R (1980) 147 CLR 75, 90-95.
4 Barton v R (1980) 147 CLR 75, 94; and see Clyne v Attorney-General (Cth) (1984)
55 ALR 624.
5 See R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170; Council of
Civil Service Unions v Minister for the Civil Service [1985] AC 374.
6 See R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170, 219 per
Mason J; Barton v R (1980) 147 CLR 75. 91, 94-5.
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Justiciability of Decisions in the Criminal Process: Review of Committal Proceedings in the Federal Court
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