(1) JURISDICTION OF COURTS - must have jurisdiction to JR the Act/Decision Flashcards
Scaffold for establishing jurisdiction
(1) Is it a Cth or NSW matter?
(2) Id action of concern and say what they want
(3) Is action amenable to JR?
(4) Does the JR involve federal or state jurisdiction?
If the decision involves an exercise of Cth administrative power [aggrieved person] must seek judicial review in
the federal jurisdiction.
Appropriate court:
- Federal Court (Judiciary Act 1903; ADJR Act) or
- the original jurisdiction of the High Court (s 75 Constiution)
Cth - can you get judicial review from an AAT decision?
Yes per s 44 AATA - can appeal to FCA on QUESTION OF LAW from any AAT decision
Cth - what provision says that the FC or FCFCA can hear a decision to which the ADJR Act applies?
s 5(1) ADJR -
• Federal Court and FCFCA can hear administrative decisions under Cth enactments as per the ADJR Act
—>
“that a ‘person aggrieved’ by a ‘decision to which this Act applies’ may apply to the Federal Court or FCC for an ‘order of review’”
Cth - s 5(1) ADJR Act requirements that must be satisfied for FC / FCFCA to review decision under Cth enactment
s 3(1) ADJR Act:
- person must be aggrieved
- Decision must have been made (decision - s 5, conduct - s 6, failure to make decision - s 7)
- decision of ‘administrative character’
- decision made ‘under an enactment’
Cth - What exclusions apply per s 3(1) AJDR Act preventing FC / FCFCA to review decision under Cth enactment?
- made by GG
- those in Schedule 1 ADJR Act (ie security intelligence bodies, taxation assessments, industrial arbitrations)
- if expressly excluded by other legislation (ie Migration Act)
Cth - s 3(1) - what case defines meaning of ‘decision capable of review’ under ADJR Act?
Mason CJ in ABT v Bond: = ‘decision’ that’s both ‘final or operative and determinative’ and a ‘substantive, rather than procedural’ determination.
- can’t just be decision that’s a step along the way
also includes finding of fact expressly required by statute
Cth - s 3(1) - what case defines meaning of decision of ‘an administrative character’ under ADJR Act?
Tang: where it is a decision that is not legislative or judicial in nature
Factors per Roche Products, Branson J, as relevant in RG Capital Radio
Cth - s 3(1) - what case defines meaning of decision made ‘under an enactment’ under ADJR Act?
Tang: decision must be:
(1) expressly or impliedly required or authorised by the statute’ and
(2) ‘must itself confer, alter or otherwise affect legal rights or obligations’
Cth - s 3(1) In what case was it held that there was no conduct/decision which was amenable to review by the ADJR Act? (in reference to ‘under an enactment’)
General Newspapers v Telstra (1993)
- The validity of the contracts and of the acts done was governed entirely by the law of contract, not by the statutes
Cth - s 3(1) (in reference to ‘under an enactment’) ADJR Act:
Decisions made under legislation by private companies may not be regarded as ‘made under an enactment’ when:
the objective of the company is private e.g. profit maximising. (NEAT).
o i.e. if the source of power is corporations law it is not made under an enactment
c.f. with a non-incorporated organisation that is not motivated by profit-making, whose purpose could align with public interests.
Cth - If wanting review of decision but ADJR Act test per s 3(1) not satisfied what are ur options?
(1) FCA original CL jurisdiction under s 39B Judiciary Act
(2) HCA’s original jurisdiction
Cth - review of decision (if failed ADJR test): (1) FCA original CL jurisdiction under s 39B Judiciary Act jurisdiction over what type of matters?
matters in which: (1) mandamus, (2) prohibition or (3) injunction sought against ‘an officer fo the Cth) +
(4) matters arising under Cth legislation (s 39(1A)(c) Judiciary Act
Cth - review of decision (if failed ADJR test): (2) HCA’s original jurisdiction
s 75(v) Constitution:
HC has original jurisdiction in all matters:
- (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
- (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
Cth - what’s the public/private divide? (JR is commonly understood as review of ‘public decisions’) Decisions of private bodies may be subject to judicial review jurisdiction if:
the decision is ‘public in nature.’
Cth - what’s the UK public/private distinction case (that hasn’t been followed in Aus!!)
Datafin - held that the private M&A panel –> was in many ways a regulatory body – not an institution of govt, powers could not be traced to statute, promulgated a code of practice to be followed – public in nature = DECISION BY PANEL WAS REVIEWABLE
Cth - public/private distinction btw decisions - What Aus case rejected Datafin by implication?
NEAT - HCA rejected having jurisdiction over the AWB even though the board was in most senses relatively public (besides $ motive)
Cth - public/private distinction btw decisions -The obiter in what case suggests that in the future the HCA may take a more functional approach to the distinction?
Plaintiff M61 - suggested it would include DM as officrs of the Cth
What 3 categories of jurisdiction does the HCA have to review/hear decisions?
(1) s 75(v) - A writ of Mandamus or prohibition or an injunction is sought against an officer of the Cth
(2) s 75(iii) - Cth/person being sued on behalf of Cth is a party
(3) s 73 (ii) appellate jurisdiction
Under s 75(v) Constitution - what remedy is available as an ‘ancillary remedy where it’s necessary for the effective exercise of one of the 3 constitutional writs (mandamus, prohibition, injunction)?
Certiorari (quashes decision)
State - what enables NSWSC court to have jurisidiction to review decisions?
NSWSC has inherent ‘supervisory jurisdiction’ per s 23 SCA (CL remedial mdoel)
State - NSWSC has inherent ‘supervisory jurisdiction’ per s 23 SCA has 2 bases:
(1) NSWSC’s inherent jurisdiction to issue certiorari, mandamus, or prohibition for JURISDICTIONAL ERROR (entrenched)
(2) NSWSC’s inherent jurisdiction to issue certiorari for error of law on the face fo the record (not entrenched)
State - NSWSC inherent ‘supervisory jurisdiction’ extends to:
public powers, especially statutory powers to directly affect legal rights or impose liabilities (Chase Oyster)
State - Statutory functions which do not attract the 3 JR remedies, may nonetheless have a ‘public’ character that attracts judicial review’s principles. –> SC has inherent jurisdiction to grant:
equitable remedies (declaration and injunction) to enforce applicable judicial review principles where the judicial review remedies are unavailable (Ainsworth)
