Judicial review for the convicted felon in Australia : a consideration of statutory context and the doctrine of attainder

The decision of Patsalis v State of New South Wales [2012] NSWCA 307 represents a fundamental development in the common law of Australia. The extent to which the Felons (Civil Proceedings) Act 1981 (NSW) applied to applications for judicial review brought by prisoners convicted of a serious indictable offence or a felony remained unclear before the decision of Patsalis in New South Wales. This article examines some of the important implications which flow from the decision of Patsalis, such as the fact that “civil proceedings” in the statutory context of the Felons (Civil Proceedings) Act 1981 (NSW) (the FCPA) was held not to apply to applications for judicial review of administrative decisions brought by a prisoner convicted of a serious indictable offence or a felony who sought to challenge his or her incarceration. The article also examines the common law principle of attainder in light of the statutory enactment of the FCPA.