Burke v Attorney-General (South Australia) A12-02,A229-03) SLA

The applicants, Burke and others, sought judicial review of decisions made by the Attorney-General (South Australia) concerning the administration of the *Criminal Law (Sentencing) Act 1988* (SA). The core of the dispute involved the Attorney-General's refusal to grant leave to appeal against sentences imposed on certain offenders, and the subsequent decisions to withdraw those applications for leave to appeal. The matter came before the High Court of Australia.

The High Court was required to determine whether the Attorney-General's decisions to refuse leave to appeal and to withdraw applications for leave to appeal were amenable to judicial review. Specifically, the court considered whether these decisions involved the exercise of a public function that could be subject to the supervisory jurisdiction of the court, and whether the applicants had standing to challenge these decisions. The central legal question was the extent to which the Attorney-General's discretion in criminal appeals could be scrutinised by the courts.

Gummow and Hayne JJ held that the Attorney-General's decisions in this context were not amenable to judicial review. Their Honours reasoned that the power to grant or refuse leave to appeal, and to withdraw an application for leave to appeal, were part of the Attorney-General's statutory role in the administration of criminal justice, and were not exercises of a public function in a manner that attracted judicial review. The court distinguished between the Attorney-General's role as a prosecutor and their role in exercising discretion regarding appeals, finding that the latter did not create a justiciable controversy. The principles applied centred on the nature of the discretion conferred by the *Criminal Law (Sentencing) Act 1988* (SA) and the traditional separation of powers in the administration of criminal justice.

The applications for judicial review were dismissed.