A discretionary remedy used in judicial review of administrative action available in the original jurisdiction of the High Court under section 75(v) of the Constitution, in the Federal Court under section 39B(1) of the Judiciary Act 1903 (Cth) and to a limited extent in some state courts.
A writ of prohibition restrains a body exercising public power from exceeding its powers or usurping jurisdiction which it does not have. That is, it prohibits the decision maker and those relying on the decision from doing something which they are about to do, or from continuing a course of action already commenced, such as taking any further step in proceedings.
The basis upon which the writ is commonly issued is:
Want, or excess, of jurisdiction.
Breach of natural justice.
Fraud.
See for example, Qantas Airways Ltd v Lustig (2015) 228 FCR 148; [2015] FCA 253 where the court found that the tribunal lacked jurisdiction to entertain the applications instituted by the applicants and issued a writ of prohibition.
A writ of prohibition may be issued for actual or threatened excess of jurisdiction, but not non-jurisdictional error of law on the face of the record.
A writ of prohibition is distinct from:
A writ of certiorari which is an ancillary remedy issued for an act already done such as to quash a decision.
A writ of mandamus which compels the performance of a public duty.
In some cases the court may choose to grant an equitable remedy such as an injunction or declaration instead of a writ of prohibition.
The purpose of a writ of prohibition is to prevent judicial officers exceeding judicial power, and not to provide an alternate means of remedying judgments from which there are adequate rights of appeal (Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41 at [22]).
Writs of certiorari, mandamus and prohibition are now known as constitutional writs, although for centuries they were known as prerogative writs (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57).
For further information about judicial review of administrative decisions see Practice note, Appeals from non-judicial bodies: overview.
