Honour and Almost a Singular One - A Review of the Justices' Preventive Jurisdiction

• NCJ Number: 84191
• Journal: Monash University Law Review Volume: 8 Issue: 2 Dated: (December 1981) Pages: 69-133
• Author(s): P Power
• Date Published: 1981
• Length: 68 pages
• Sale Source: National Institute of Justice/
• Language: English
• Country: Australia
• Note: This article is a condensed version of a thesis submitted as one of the requirements for the degree of Bachelor of Laws with Honours at Monash University.

Annotation

This article argues that the Australian practice of preventive jurisdiction should be eliminated because punishment should not be inflicted upon those who have not been found guilty of a crime in court.

Abstract

Preventive, or 'binding-over,' jurisdiction is the term describing an order of a justice of the peace that a person enter into a recognizance, or personal obligation to the Crown on record, and/or find sureties to guarantee compliance with a specified condition, such as good behavior. The sureties transfer responsibility for the same financial contribution required of the person bound over to another party. The rationale for retention of the preventive jurisdiction practice, particularly the surety process aspect, is that making a man his brother's keeper is a more potent method of crime prevention and control than making him his own keeper. The scope of the power this practice entails is broad, ill-defined, and extends well beyond the traditional boundaries of the criminal law. Much of the law is based on the legal fiction that the practice is not punitive. If retained in any form, the binding-over practice should be restricted to those cases where the commission of a substantive criminal offense has been proved and no other penalty has been imposed. The article provides 438 footnotes.