Judicial review at common law [1] Common law grants judicial review on the basis of the power to grant prerogative writs. The common purpose of each writ was to enable a court to examine whether a public sector body was complying with the limits imposed by law. Each writ controls unlawful action in a different way: Certiorari: to quash an invalid decision. Prohibition: to prohibit further unlawful activity. Mandamus: to compel a lawful exercise of power.

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Judicial review at common law [1] Common law grants judicial review on the basis of the power to grant prerogative writs. The common purpose of each writ was to enable a court to examine whether a public sector body was complying with the limits imposed by law. Each writ controls unlawful action in a different way: Certiorari: to quash an invalid decision. Prohibition: to prohibit further unlawful activity. Mandamus: to compel a lawful exercise of power.

Habeas corpus: to require the release of a person from unlawful detention. In modern times, jurisdiction has extended to include equitable remedies: Declaration: to make a declaration of the legal activities of an agency.

Prohibitory injunction: to enjoin forbid unlawful activity. Mandatory injunction: to compel a restoration of the lawful status quo. It listed and codified the common law grounds for review: ss 5 , 6. It granted a statutory right to the reasons for a decision: s It overrode existing privative clauses: s 4. Indirect judicial review [2] The legality of government action is often raised in the course of criminal and civil law proceedings.

For example, whether evidence has been unlawfully obtained by a law enforcement officer. From an administrative law perspective, this is often referred to as collateral review of the validity of administrative action. Federal Court [3] The most important venue for judicial review of Commonwealth decisions is the Federal Court. It is a creature of statute and therefore its jurisdiction is limited to those areas conferred upon the court by parliament: Federal Court of Australia Act Cth s The court does not have an inherent common law jurisdiction paralleling that of the Supreme Courts.

The Act defines: The procedure by which a person may apply to the courts for an order of review: s The grounds of review: ss 5 , 6 The relief the courts can give: s Subsection 1A confers a broad jurisdiction on the court that extends beyond administrative law matters to include constitutional issues and all matters arising under Commonwealth legislation.

Subsection 1A c enables the court to review subordinate legislation, which is not possible under the ADJR Act because it is not administrative in character. There are, however, limitations: An action resting on s 39B 1 must be against an officer of the Commonwealth and must relate to a matter discussed here.

The jurisdiction conferred by s 39B does not reach as far as the original jurisdiction conferred on the High Court by the Constitution s 75 iii , which embraces any claim against the Commonwealth. Therefore the court may be able to address a non-administrative law claim, arising under Commonwealth or state law, that is intertwined with a claim concerning the validity of federal executive action. There is substantial overlap between the associated and accrued jurisdiction, but each rests on different tests and can operate differently.

It can therefore include a non-federal claim under statute or common law and relief in this non-federal matter can be granted even if the federal claim fails. An exception to this principle arises where jurisdiction over a matter is conferred exclusively on another federal court, such as the Federal Magistrates Court.

The enactment of Pt 8 of the Migration Act Cth in created a special restricted scheme for review of decisions on migrant entry and refugee claims: Merits review by the Migration Review Tribunal or Refugee Review Tribunal was a prerequisite to judicial review before the Federal Court.

Any application to the Federal Court for judicial review was to be commenced within 28 days of the tribunal decision, with no power of extension given to the court. Breach of natural justice and relevant and irrelevant consideration were excluded as independent grounds of review. In the wake of the Tampa controversy in late , the Commonwealth Parliament enacted a new Pt 8 to establish a different scheme: Proceedings could be established in the Federal Court under the Judiciary Act s 39B or in the High Court under the Constitution s 75 v but were subject to a privative clause which provides that judicial review of immigration decisions cannot be undertaken in any court on any grounds s The High Court has held that this does not prevent review for jurisdictional error.

In , this jurisdiction was given exclusively to the Federal Magistrates Court with some exceptions , to expedite the hearing and finalisation of migration cases.

It was thought that offshore entry persons could not commence judicial review proceedings to challenge adverse assessments but this assumption has been undermined by the High Court, which held that an adverse assessment could be set aside by the High Court any impliedly the Federal Magistrates Court on the ground of legal error and breach of natural justice.

The Court also set aside a declaration by the minister to declare Malaysia as a country to which offshore entry persons could be removed. This is in order to avoid criminal prosecution proceedings being fragmented and delayed as the legality of all steps can later be raised in the trial and appeal process.

Other subtle restrictions abound, such as the use of the terms: Decision Made under an enactment Officer of the Commonwealth Problems associated with the choice of jurisdiction were eased by the introduction of a rule permitting an action to be commenced jointly under the ADJR Act and the Judiciary Act.

Federal administrative law jurisdiction was treated differently and never fully conferred upon state courts. See associated and accrued jurisdiction above , as well as s 39B for state jurisdiction in federal matters.

As previously discussed, federal issues can also arise in a collateral way. Section 75 v is the more important from an administrative law perspective. S 75 iii defines jurisdiction solely by reference to one of the parties to any litigation being the Commonwealth. This supports common law damages against the Commonwealth.

S 32 allows the court to grant all such remedies not specifically mentioned in s 75 v , notably certiorari and declaration. State and Territory judicial review schemes [12] The Supreme Court of each state and territory has a general civil and criminal jurisdiction.

Therefore, in undertaking judicial review of state and territory executive action they are not troubled to the same extent as the Federal and High Courts by questions of the precise source of jurisdiction.

The general jurisdiction of the Supreme Courts derives from their status as superior courts of record, with an inherent and plenary jurisdiction to administer law and equity within the state or territory.

New South Wales [13] The inherent jurisdiction of the NSW Supreme Court has been reformed and simplified along two lines: By replacing the complex prerogative writ procedure with the simpler procedure of a summons and court order or judgement Supreme Court Act NSW.

Integration of Australian judicial review schemes [14] There are three ways in which the nine separate judicial systems of the Commonwealth states and territories are integrated: State courts are invested with federal jurisdiction. The High Court has an appellate jurisdiction arising under the Constitution s 73 to hear appeals from any federal court or the Supreme Court of a state, subject to the High Court granting special leave to appeal.

Parallel legislation enacted by each Australia legislature and called the Jurisdiction of Courts Cross-Vesting Act Cth invests the Federal Court and the state and territory Supreme Courts with the jurisdiction of each other court s 4. The scheme was declared constitutionally invalid to the extent that it purported to cross-vest state jurisdiction to the Federal Court. Consequently, the Federal Court has to rely on the accrued jurisdiction to undertake judicial review of state government action.

This has been partially overcome by the referral of state legislative power to the Commonwealth under s 51 xxxvii of the Constitution by the Jurisdiction of Courts Legislation Amendment Act Cth. The role of the courts is narrowly conceived to take account of the separation of powers and other limitations on judicial method and perspective.

Issue: Did the court have jurisdiction to review the decision? Limits on judicial review and the distinction between judicial review and merits.

Held: The action was dismissed. The court can only intervene in a decision of the executive if it is shown that the authority has contravened the law. To the extent that a discretion must be exercised reasonably, a person must direct themselves properly in the law, call their attention to the matters which they are bound to consider and exclude from consideration those matters which are irrelevant.

This must be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. For example, a red-headed teacher being dismissed because she has red hair. It will only apply in extreme cases.

Latham CJ came up with a similar line of reasoning in the Hepburn v Collieries. Chief Constable of the NSW Police v Evans [17] Facts: The court held that a decision by the Chief Constable to pressure Mr Evans into resigning his position with the police was invalid for serious and arbitrary breach of natural justice it satisfied the Wednesbury sense of unreasonableness. The decision was based on the fact that Mr Evans kept more dogs than was permitted in his council house; he had married an older woman who had formerly lived as a de facto with his uncle; and he had for a time lived with her in a hippy commune.

Issue: The narrow limits of judicial review. The court is concerned with the decision making process, not with the decision itself. Issue: Judicial review of executive policy. Held: Miss Green satisfied all of the requirements in the act, therefore the policy was beyond the power conferred by the Act ultra vires.

It was an attempt to substitute departmental criteria for the criteria that parliament had enacted. It was arbitrary because it was based upon a purely temporal concept and not upon the merits of the case. Attorney-General NSW v Quin [19] Facts: Mr Quin, a former magistrate seeking reappointment, claimed that any decision to reappoint him should be made in accordance with an earlier policy and not in accordance with a later policy introduced by the AG.

The High Court rejected the claim. Mason J discussed the issue of whether a principle of administrative estoppel would prevent the NSW Government from applying a later policy.

Issue: Estoppel of a government policy. Even if there is administrative injustice the court will not intervene because that would overstep the limitations of judicial power. This does not deny the availability of estoppel against the executive when it does not significantly hinder the exercise of relevant discretion in the public interest. End This is the end of this topic. Click here to go back to the main subject page for Administrative Law.


Federal Register of Legislation - Australian Government

Zumi Qantas Sale Act If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. The notes at the end of this compilation the endnotes include information about amending laws and the amendment history of provisions of the compiled law. Other significant aspects of change include the emergence of jurisdictional error as the centre-piece of s 75 v jurisprudence. Reaching the finish line — a sellers guide to pre-completion obligations Insight. If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.



Introduction [1] The ADJR Act is a source of defining the scope of action to be included or excluded in judicial review and the jurisdiction of any court vested with the function of reviewing that executive action. The legislation is interpreted against a backdrop of other public policy law considerations concerning the legitimate scope of judicial review. These terms are elaborated upon in s 3 : 3. Issue: Restrictive interpretation. Held: The High Court held that the actions were not reviewable as decisions or conduct.


Administrative Decisions (Judicial Review) Act 1977

What is judicially reviewable under the ADJR? Is the relevant Act Cth Legislation? Remedy s Order of review Discretionary — all of the writs are available. Can set aside decision, direct decision maker to reconsider, direct the parties to do or stop doing an act. Does the applicant have standing? Defined in s 3 4 a i as: A person whose interests are adversely affected by the decision. Sch 1: Security intelligence, taxation, industrial arbitration, defence force discipline, ministerial councils.

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