No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 January 2025
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 cowts 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 ort less usuallyt 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.” The discretions to prosecute, or to discontinue a prosecution, have been regarded as non-reviewable exercises of prerogative powers. Where equivalent powers have been conferred by statute, the unlimited terms in which they are granted has similarly meant they are unreviewable. Even with moves to greater review of prerogative powers in Australia and overseas 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.
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) 43CrossRefGoogle Scholar.
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.
7 Administrative Decisions (Judicial Review) Act 1977 s 3(1). Note that prosecution decisions are not included in Schedule 1, which exempts specified decisions from review; they are however protected from the s 13 duty to provide reasons under Schedule 2. The non-inclusion of such decisions in Schedule 1 was considered significant by the Federal Court in Newby v Moodie (1988) 83 ALR 523, 527. On the issue of the abrogation of prerogative powers by statute see M Allan, supra n 1, 47, 96.
8 8 See Newby v Moodie (1988) 83 ALR 523; Murchison v Keating (No 2) (1984) 54 ALR 386; Buffier v Bowen (1987) 72 ALR 256; Murchison v Keating (No 1) (1984) 54 ALR 380.
9 Lamb v Moss (1983) 49 ALR 533.
10 The state courts are invested with federal jurisdiction to hear committals for federal offences by s 68(1) and (2) Judiciary Act 1903 (Cth) and s 85E(l) and (5) Crimes Act 1914 (Cth)). On procedures followed at committals see generally D Brereton and J Willis, The Committal in Australia (1990).
11 Magistrates' Coon Act 1989 (Vic) s 56 and Schedule 5 cl 11. The tests vary from jurisdiction to jurisdiction; see eg Justices Act 1902 (NSW) ss 41(2) and 41(6) (whether a jury would “not be likely to convict the defendant"}. See summary in D Brereton and J Willis, supra n 10, 27-28.
12 D Brereton, J Willis, , supra n 10, 65Google Scholar.
13 See P Byrne, , “Committal proceedings: New South Wales proposals” (1990) 64 ALJ 430Google Scholar.
14 See, D Brereton, J Willis, , “Evaluating the Committal” paper presented at the Conference on the Future of Committals, Australian Institute of Criminology, Canberra, May 1990Google Scholar. See also J Bishop, , Prosecution Without Trial (1990) 90-99Google Scholar.
15 See discussion in D Brereton, J Willis, , supra n 10, 49-54Google Scholar. The increased discharge rate in Victoria may also be connected with the change, in 1987, to the test to be applied by the magistrate in deciding whether to commit.
16 (1980) 147 CLR 75, 99 per Gibbs ACJ and Mason J.
17 Ibid,105. See also the strong obiter comments of King CJ in R v Harry; ex parte Eastway (1986) 39 SASR 203, 209-214.
18 Eg Magistrates' Court Act 1989 (Vic) s 56 and Schedule 5 cl l, cl 6. See generally D Brereton and J Willis, supra n 10, 23-27.
19 Eg Ex parte Coffey; Re Evans [1971] 1 NSWLR 434; Moss v Brown [1979] l NSWLR 114; Summers v Cosgriff [1979] VR 564.
20 R v Epping and Harlow Justices; ex parte Massaro [1973] QB 433; Moss v Brow [1979] 1 NSWLR 114.
21 One of a series of New South Wales cases arising out of prosecutions for alleged Social Security fraud; later cases included Lamb v Moss (1983) 49 ALR 533 and Tahmindjis v Brown (1985) 60 ALR 120. (Author's footnote)
22 Briot v Riedel (Federal Court of Australia, 10 March 1989, unreported decision of Einfeld J).
23 R v Epping and Harlow Justices; ex parte Massaro [1973] QB 433; R v Arthur: ex parte Kapidistrias (Supreme Court of Victoria, 8 November 1982, unreported); Re Harlock; ex parte Robinson [1980] WAR 260; R v Harry; ex parte Eastway (1986) 39 SASR 203, 205.
24 See R v Harry; ex parte Eastway (1986) 39 SASR 203. The majority in that case was however highly critical of the prosecution tactics in calling the minimum witnesses; King CJ stated that the prosecutor's attitude showed “an inadequate grasp of his responsibilities”: 214.
25 Eg Miller v Ryan [1980) 1 NSWLR 93; Sloan (1988) 32 A Crim R 366; Houston v Crannage [1990] WAR 11.
26 Grassby v R (1989) 87 ALR 618; see also Jago v District Court of New South Wales (1989) 87 ALR 577.
27 R v Harry; ex parte Eastway (1986) 39 SASR 203, 212.
28 Eg Crimes Act 1958 (Vic) s 353; Criminal Procedure Act 1986 (NSW) s 4(2); Judiciary Act 1903 (Cth) s 71A; Director of Public Prosecutions Act 1983 (Cth) s 6(2A).
29 See R Fox, , Victorian Criminal Procedure (6th ed 1988) 81, 87Google Scholar; J Bishop, , supra n 14, 149-150Google Scholar.
30 (1980) 147 CLR 75
31 Barton v R (1980) 147 CLR 75, 98, 101-102, 105-106. See also Barron v Attorney General for New South Wales (1987) 10 NSWLR 215, 234.
32 (1970) 17 FLR 65.
33 See Summers Cosgriff (1979) VR 564, 568.
34 See Justices Act 1902 (WA) s 197.
35 R v Electricity Commissioners; ex parte London Electricity Joint Committee Co (1920) Ltd [1924) 1 KB 171, 205.
36 See Ammanm v Wegener (1971) 129 CLR 415, 435-436.
37 See R v Commissioner of Police of the Metropolis; ex parte Blackburn [1968) 2 QB 118; and seeWright v McQualter (1970) 17 FLR 305. Originally committal proceedings were part of the investigation process; the justices actively sought evidence and conducted examinations in private, and ultimately presented a bill of indictment to the grand jury. However the establishment of a regular police force in the 1830s led to the development of a more judicial role for the justices, with the Indictable Offences Act 1848 (“Jervis's Act”): see J F Stephen, A History of the Criminal Law of England (1883) Vol 1, Ch VII. This act also formed the basis of magistrates' functions in conducting committals in Australia: see Alex Castles, An Australian Legal History (1982) 214-215.
38 (1985) 158 CLR 596, 616.
39 (1947) 47 SR (NSW) 145.
40 Ibid 146. See text supra n 37. de Smith comments that courts dealing with applications for judicial review during the war years were often concerned not to jeopardise “the public interest” by too much emphasis on individual rights; see J M Evans de Smith's Judicial Review of Administrative Action (4th ed 1980) 32.
41 [1965) Qd R 276; and seeR v Bjelke-Peterson; ex parte Plunkett (1978) Qd R 305. Review was held to be available in Re Narlock; ex parte Robinson (1980) WAR 260; authority of Ex parte Cousens not decided, in R v Kelly; ex parte Hoang van Duong (1981) 28 SASR 271.
42 At least in relation to review for jurisdictional error; eg Ex parte Coffey; re Evans [1971] 1 NSWLR 434; Connor v Sankey [1976] 2 NSWLR 570; Spautz v Williams [1983] 2 NSWLR 506. See also discussion in M Aronson and N Franklin, Review of Administrative Action (1987) 491, 586.
43 Phelan v Allen [1970] VR 219; R v Murphy; ex parte Hamilton (Supreme Court of Victoria, 21 July 1980, unreported). But see Moularas v Nankervis [1985] VR 369.
44 Sankey v Whitlam (1978) 142 CLR 1, 83-84. See also R v Murphy (1985) 158 DLR 596, 616; R v Botting (1966) 56 DLR 25.
45 Jurisdiction to grant declarations was given its imprimatur in Sankey v Whitlam (1978) 142 CLR 1, and the remedy has been held to be available (although rarely granted) in numerous cases since, such as Bacon v Rose [1972] 2 NSWLR 793; see M Aronson and N Franklin, supra n 42, 479. Mandamus has been granted e.g, in Ex parte. Donald; re McMurray (1969) 89 WN (Pt l)(NSW) 462; Sankey v Whitlam (1977) 21 ALR 457; Wentworth v Rogers [1984] 2 NSWLR 422.
46 See R v Carden (1879) 5 QB l; Ex parte Dowsett; re Macauly (1943) 60 WN(NSW) 40; R v Bjelke-Peterson; ex parte Plunkett [1978] Qd R 305; Bacon v Rose [1972] 2 NSWLR 793; R v Judge Mullaly; ex parte Attorney-General or the Cth [1984] VR 745.
47 Eg,R v Wells Street Stipendiary Magistrate; ex parte Seillon [1978] 1 WLR 1002: it is a matter of convenience, and also easier to decide whether any real injustice has been done at the end. See also Moularas v Nankervis [1985] VR 369.
48 (1978) 142 CLR I, 26. The Federal Court has followed this guideline, and has developed a presumption of denial of relief in the absence of extraordinary circumstances.
49 Sections 5 and 6.
50 Sub-section 5(1)(f).
51 Section 5 and s 3(1). An expansive, and non-exhaustive definition of “decision” is given in s 3(2) and s 3(3).
52 Section 6 and s 3(5).
53 (1983) 49 ALR 533.
54 Ibid 556; overruling earlier cases requiring a “decision” to have the chancter of finality, eg Riordan v Parole Board of tM Australian Capital Territory (1981) 3 ALD 144.
55 Lamb v Moss (1983) 49 ALR 533, 557.
56 Ibid 558; cf the common law position in Sankey v Whitlam (1978) 142 Cl.R l, 25.
57 By s 9 AD(JR) Act.
58 See Trimbole v Dugan (1984) 57 ALR 75, 79; R v Murray and Cormie; ex parte the Commonwealth (1916) 22 CLR 437. On the powers of the Federal Court to grant relevant remedies, see generally D C Pearce, Australian Administrative Law Service paras 408-409, 417-420.
59 See M Aronson and N Franklin, supra n 42, 244-246.
60 Shepherd v Griffiths (1985) 60 ALR 176, 182.
61 See M Aronson and N Franklin, supra n 42, 243.
62 Section 16.
63 See Lamb v Moss (1983) 49 ALR 533 and Doyle v Chief of General Staff (1982) 42 ALR 283; see also the comments of the Full Court of the Federal Court in Seymour v Attorney-General (1984) 57 ALR 68, 71.
64 Lamb v Moss (1983) 49 ALR 533, 564.
65 Ibid 546.
66 (1990) 94 ALR 11, 25.
67 (1987) 76 ALR 97, 105-106. In Lamb v Moss it was accepted that the provisions of the Judiciary Act 1903 (Cth) empowering state magistrates to hear Commonwealth committals were sufficient to constitute their decisions “under an enactment” for the purposes of the AD(JR) Act. An alternative view, which has not to date been argued strongly, is that the source of power is essentially the relevant state act See Glasson v Parkes Rural Distributions Pty Ltd (1984) 55 ALR 179; D Sweeney and N Williams, Commonwealth Criminal Law (1990) 156-157.
68 Vereker v O'Donovan (High Count of Australia, 18 March 1988, unreported).
69 Federal Count of Australia, 10 March 1989, unreported.
70 (1989) 86 ALR 311, 320.
71 (1990) 94 ALR 11.
72 Broadcasting Act 1942 (Cth) s 88(2)(b)(i).
73 These included findings that Bond paid $400 000 in settlement of a defamation action brought by the then Premier of Queensland, believing this was necessary to protect his interests in Queensland; that he threatened to use his television staff to gather information on a business competitor and to expose that competitor on television; and that he gave misleading evidence to the ABT at a previous inquiry.
74 (1990) 94 ALR 11, 23.
75 Ibid 24. Cf (1990) 94 ALR 11, 53 per Toohey and Gaudron JJ.
76 Ibid 27.
77 Id. Note that the effect of defining a matter as “conduct” rather than as a “decision” is that it then falls outside the right to a statement of reasons under s 13.
78 Ibid 24.
79 Cf the approach of the dissenting judges, Toohey and Gaudron JJ.
80 D Sweeney, N Williams, commented presciently in 1989, “it is only a matter of time before Lamb v Moss is ovenumed”: supra n 67, 156Google Scholar.
81 (1990) 94 ALR 11, 26.
82 Cheng Kui v Quinn (1984) 67 ALR 231; Fermia v Hand (1984) 53 ALR 731; Seymour v Attorney-General (Cth) (1984) 57 ALR 68.
83 Olsson Jin Potter and Potter v Liddy (1984) 14 A Crim R 204, 209, in response to a premature application for relief.
84 See eg Spautz v Williams [1983) 2 NSWLR 506; R v Judge Mullaly; e part 11 Attorney-General for the Cth [1984) VR 745; Clayton v Ralphs and Manos (1987) 26 A Crim R 43; but see Sankey v Whitlam (1978) 142 CLR 1.
85 Eg Clyne v Scott (1983) 52 ALR 405.
86 Shepherd v Griffiths (1985) 60 ALR 176; declaration made that as a matter of interpretation evidence of a taped telephone conversation was admissible under the relevant Act in this type of hearing. Cf McDermott v Nicholl (Federal Court of Australia, 17 Februaiy 1989, unreported decision of Neaves J).
87 (1985) 59 ALR 225, on appeal from rejection of the application in (1984) 56 ALR
88 (1984) 56 ALR 168, 172.
89 (1985) 59 ALR 225, 232. A declaration was made that the magistrate was bound to disallow the cross-examination of the police witness regarding an affidavit dealing with police investigations, including matters of danger to informants and officers.
90 Clyne v Scoll (1983) 52 ALR 405; Seymour (1984) 12 A Crim R 157; Besey v Mackenzie (1987) 31 A Crim R 347.
91 See generally M Aronson and N Franklin, supra n 42, 61-65.
92 See eg Clyne v Scoll (1983) 52 ALR 405; Wong v Evans (1985) 59 ALR 392.
93 Eg Magistrates' Court Act 1989 (Vic) s 126; sched 5 cl 15. Cf the decision in Moularas v Nankervis (1985] VR 369.
94 Parsons v Marlin (1984) 58 ALR 395. Order to review granted as to decision that the magistrate had no power to issue letters of request, and that parties could not rely on evidence obtained by the letters of request.
95 Eg Fermia v Hand (1984) 53 ALR 731.
96 Respectively, Bacon v Rose (1972] 2 NSWLR 793; Sankey v Whitlam (1978) 142 CLR l;Bourke v Hamilton (1977] 1 NSWLR 470.
97 Clyne v Scott (1983) 52 ALR 405; Wong v Evans (1985) 59 ALR 392.
98 See French Jin Kunacool v Boys (1988) 26 A Crim R 1, 11.
99 See AD(JR) Act s 5(l)(d) and (e); and see Parsons v Martin (1984) 58 ALR 395.
100 Under s 5(l)(d), (e) or (f). Eg Shepherd v Griffiths (1985) 60 ALR 176; kunacool v Boys (1988) 77 ALR 435; Vereker v Rodda (1987) 72 ALR 49, on appeal O'Donovan v Vereker (1987) 76 ALR 97. In the light of the decision in Bond's case, reviewability may depend on whether the question of construction arose in the context of a decision which is required by the statute, or is final and determinative of a fact in issue.
101 (1987) 26 A Crim R 1, 11.
102 Under s 5(1)(a) or s 6(1)(a). Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11, 27 suggested that reviewable “conduct” would include “the continuation of proceedings in such a way as to constitute a denial of natural justice”.
103 (1985) 60 ALR 120.
104 Ibid 133.
105 Ibid 134.
106 Besey v Mackenzie (1987) 31 A Crim R 347.
107 See eg Wentworth v Rogers [1984] 2 NSWLR 472.
108 As already noted, jurisdiction to review such final committal decisions has been confirmed by the High Court in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11.
109 Eg under s 5(l)(d) (unauthorised decision); 5(l)(f) (error of law); or 5(l)(e) with (2)(a), (b) (relevant or irrelevant considerations). See Murphy v Director of Public Prosecutions (1985) 60 ALR 299.
110 R v Nat Bell Liquors (1922) 2 AC 128; approved by the High Court in R v Cook; ex parte Twigg (1980) 147 CLR 15, 27; R v Northumberland Compensation Appeal Tribunal; ex parte Shaw [1952) 1 KB 338.
111 See Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666; Deane J said that procedural fairness required that a decision be based on logically probative evidence. He reiterated this view in Bond's case (1990) 94 ALR 11, 46-47. Regarding committals, see Bourke v Hamilton [1977) 1 NSWLR 470; Gorman v Fitzpatrick (1985) 4 NSWLR 286. In Canada a lack of legally admissible or probative evidence has been accepted as a ground of review of committal decisions for jurisdictional error: Peter Connelly, “Certiorari and Committals for Trial” (1980-81) 23 Crim L Q 369.
112 (1980) 31 ALR 666.
113 (1990) 94 ALR 11, 38.
114 See M Allars, supra n l, 194.
115 (1984)54 ALR 683, 690. See also Foord v Whiddett (1985) 60 ALR 269.
116 Murphy v Director of Public Prosecutions (1985) 60 ALR 299.
117 Briot v Reidel (Federal Court of Australia, 10 March 1989, unreported decision of Einfeld J.).
118 Castles v Briot & Ors (Federal Court of Australia, 23 October 1989, unreported decision of Morling, Pincus, O'Loughlin JI) 10.
119 See Wong v Evans (1985) 59 ALR 392, 399.
120 (1983) 49 ALR 533, 556.
121 Ibid 551.
122 See Administrative Review Council, Ninth Annual Report 1984-85, 26. At least two dozen applications for review (including their subsequent appeals) have been reported; doubtless other applications have been made, including additional applications by the parties in the reported cases. D Sweeney and N Williams found that between 1983 and August 1989 there had been at least 45 applications for review of decisions in the criminal process under the AD(JR) Act, about half of which related to decisions of magistrates in committal proceedings: supra n 67, 151.
123 Moss v Brown (1979) 1 NSWLR 114 (leave to appeal to the High Court refused).
124 (1983) 47 ALR 217.
125 (1985) 60 ALR 120.
126 Eg Verelcer v Rodda (1987) 72 ALR 49; O'Donovan v Verelcer (1987) 76 ALR 97; Verelcer v O'Donovan (High Court of Australia, 18 March 1988, unreported); Forsyth v Rodda (1988) 37 A Crim R 50; Forsyth v Rodda (1989) 87 ALR 699.
127 Annual Report of the Special Prosecutor 1983-84, 164.
128 The Right Hon Sir Harry Gibbs, “The State of the Australian Judicature” (1985) 59 AU 522, 525.
129 High Court of Australia, 18 March 1988, unreported.
130 Id. See also comments of Einfeld Jin Yates v Wilson (1989) 86 ALR 311, 320, and Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11, referred to earlier.
131 Administrative Review Council, Report No 32: Review of the Administrative Decisions (Judicial Review) Act: the Ambit of the Act (1989) 5.
132 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; R v Panel on Take-overs and Mergers; ex parte Datain [1987) 2 WLR 699. Mason J commented in Toohey, “The purpose of preventing unnecessary judicial intervention is better achieved ... by denying review in those cases in which the particular exercise of power is not susceptible of the review sought”. (1981) 151 CLR 170, 222 (my emphasis).
133 M Allars, supra n 1, 45.
134 See P Bayne, , “Justiciability: the Repon of the Administrative Review Council (ARC)” (1989) 63 AU 767, 770Google Scholar.
135 See M Aronson, N Franklin, , supra n 42, 26-31Google Scholar.
136 P Bayne, , supra n 134, 769Google Scholar.
137 (1978) 142 CLR 1, 83-84.
138 Administrative Review Council, “Some Aspects of the Operation of the Administrative Decisions (Judicial Review) Act 1977” Discussion Paper (1985) 11.
139 PP Craig, , Administrative Law (1983) 315Google Scholar. See generally Craig's discussion in Ch 9.
140 Although see D Oliver, , “Is the Ultra Vires Rule the Basis of Judicial Review?” (1987) Public Law 543 on the current relevance of these conceptsGoogle Scholar.
141 P P Craig, , supra n 139, 299Google Scholar.
142 Eg, Anisminic v Foreign Compensation Commission (1969) 2 AC 147; Re Racal Communications Ltd (1981) AC 374.
143 The attitude of the High Coun to the English developments has not been entirely clear, but a broadening of the scope for review can be seeneg in Re Gray;ex parte Marsh (1985) 157 CLR 357; BHP Petroleum Pty Ltd v Balfour (1987) 71 ALR 711. For clearer acceptance of Anisminic see eg Thelander v Woodward (1981] 1 NSWLR 644.
144 (1969) 2 AC 147. And see Australian cases referred to supra n 143.
145 See Report of the Commonwealth Administrative Review Committee (the Kerr Committee), Parliamentary Paper 144 (1971) 77.
146 This is an approach used in the United States and Canada: see PP Craig, supra n 139, 338-343.
147 R v Hickman; ex parte Fox (1945) 70 CLR 598, 615. Another “deferential” analysis is that of Kirby J in Australian Broadcasting Commission Staff Association v Bonner (1984) 54 ALR 653, 668-9. See generally M Aronson and N Franklin, supra n 42, 35-41.
148 They also, however, seem to require a rejection of the idea that an exercise of power is either lawful or it is not - the basis of review of “legality”. Further, it is not clear that they offer a prospective applicant any clearer idea beforehand of the likelihood of success than does the jurisdictional error doctrine. See discussion of these points in PP Craig, , supra n 139, 344-347Google Scholar.
149 When deciding questions such as an application for particulars, or for an adjournment.
150 This might include failure to require attendance of all relevant witnesses, or placing unreasonable limits on cross-examination.
151 These may be construed as mandatory in the light of the expressed purpose of the legislation; see M Aronson and N Franklin, supra n 42, 61-65.
152 In the light of Bond's case this is an area which requires clarification; should there be a “no sufficient evidence” test? See also P Connolly, supra n 111.
153 See AD(JR) Act s 15.
154 But see the history of proposals to, inter alia, tighten up the power of the Federal Court to refuse to hear an application, under s 10; ARC Report No 32, supra n 131, 1-2.
155 The ARC advice appears in summary form in its Ninth Annual Report, supra n 122, 25-27.
156 ARC Repon No 32, supra n 131, 76.
157 Ibid 19. This has a rational basis, since such decisions are made under Commonwealth legislation, by Commonwealth officers. Presumably however it would encourage defendants to make use of AD(JR) procedures to challenge pre-committal decisions. The ARC did not consider this a significant problem, as the same policy of restraint would apply.
158 This was also the view of the Attorney General, and of a number of respondents to the ARC review; see ARC Repon No 26: Review of the Administrative Decisions (Judicial Review) Act 1977 - stage one (1986) 12 and Repon No 32, supra n 131, 77. See also D Brereton and J Willis, supra n 10, 102.
159 See Electoral and Administrative Review Commission, Issues Paper No 4:Review of Judicial Review of Administrative Decisions and Actions,Brisbane (May 1990); and Public Submissions (July 1990).
160 (1984) 57 ALR 68, 71.
161 See ARC Repon No 26, supra n 158, 17ff; EARC Issues Paper No 4, supra n 159, 13, 41.
162 See ARC Repon No 26, supra n 158, 19-21. The view has been expressed to the author by a prosecutor that the Federal Coun does not usually refuse to hear an application under the AD(IR) Act, despite the requirement of “exceptional c;ircumstances”, and that a leave requirement would therefore be similarly ineffective. Statistics provided in the EARC Issues Paper No 4, supra n 159, 82, show that very few applicants for the prerogative writs in the Queensland Supreme Coun fail to obtain leave to proceed.
162 See Order 20 rule 2 Federal Coun Rules. (1984) 56 ALR 168.
163 (1978) 142 CLR 1.
164 See ARC Repon No 26, supra n 158, 29; ARC Repon No 32, supra n 131, 81-83.
167 And AD(JR) Act review has its own limitations.