4. Judicial Review

Question 1

Role of judicial review

Answer 1

JR came about as part of a reform process in the 1960-70s due to the technicalities of common law review.

Question 2

Merits review v judicial review

Answer 2

Origins -
Merits review has origins in the legislation, while the judicial review originates from the Kings Bench Courts in London.

3 central prerogative writs -
Certiorari: to be fully informed and to call up the record of a lower court for review
Prohibition: preventing decision maker embarking decision
Mandamus: to commend/compel

Granting of equity -
Declaration
Injunction

Therefore, judicial review is founded on common law, and sit parallel to common law reviews. The writs and the availability of equity to grant remedies are characteristics of the common law review.

Question 3

Statutory review

Answer 3

Cth - Federal Court or Fed Circuit Court (ADJRA s8)
Qld - Supreme Court (JRA s19)

Question 4

Can you use ADJRA to interpret JRA?

Answer 4

Yes - JRA is based on ADJRA. s16 JRA and Sch 3 imply that Cth legislation and case law can be used in interpreting similar sections of JRA

Question 5

Time limits for statutory judicial review

Answer 5

Cth: ADJRA says 28 days after reasons given - s11(3)
Qld: JRA says 28 days after reasons given - s26(2)

Question 6

Leave of court in statutory review

Answer 6

Both allow leave of court to bring application outside of 28 days.

Whether it is granted depends on:
- Subject matter
- Statutory context
- Effect of delay in bringing application
- Whether applicant has provided an ‘acceptable explanation of the delay’ & is ‘fair and equitable in the circumstances’ to extend time

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1983) 58 ALR 385

Question 7

When a ‘decision’ of an ‘administrative character’ is made ‘under an enactment’ for the purposes of the ADJRA and JRA

Answer 7

To access judicial review via statutory review, 4 elements must be satisfied.

1. Express exclusion
2. Decision
3. Administrative character
4. Under an enactment

ADJRA: ss3(1), 5
JRA: ss4, 20

Question 8

Express exclusions in Commonwealth decisions

Answer 8

Decisions made under certain Acts/purposes cannot be reviewed via ADJRA. These include decisions of:

• Governor-General [s3(1)(c)] - - Industrial relations laws [Sch1(a)]
• ASIO Act [Sch1(d)]
• Privative clause under Migration Act [s474(2)]
• Step along the way decisions for taxation [Sch1(e)]
• Defence Force Discipline Act [Sch1(o)]
  Commonwealth Electoral Act [s25(1)]

Above are all from s3(1)(d) and Sch 1 ADJRA.

Question 9

Express exclusions in Qld decisions

Answer 9

Decisions made under certain Acts/purposes cannot be reviewed via JRA. These include decisions of:

• Casino control
• District Court of Qld
• Witness protection
• Police Service Adminstration

Above are all from s18 and Sch1 JRA. Unlike Cth, decisions of Governor are reviewable under JRA.

Question 10

Scope of the High Court’s jurisdiction under s75(v) of the Constitution

Question 11

Scope of the Federal Court’s jurisdiction under the ADJRA and s39B of the Judiciary Act 1903 (Cth)

Question 12

Scope of the Queensland Supreme Court’s jurisdiction under the JRA and how JRA has affected the Court’s common law judicial review jurisdiction

Question 13

What is a privative clause within legislation? What factors are used by the courts to determine whether or to what extent it ousts judicial review at the Cth level? State level?

Answer 13

Privative clause is an exclusion provision that seeks to protect particular admin actions from judicial review. Privative clauses are read very strictly by the courts as ensuring the legality of admin action is an important common law principle.

Question 14

Requirement of the element of decision in statutory judicial review

What SJR can do, meaning of decision, issues

Answer 14

Statutory judicial review can:
- Review of decisions: ADJRA s5; JRA s20
- Review of conduct for the purpose of making a decision: ADJRA s6; JRA s21
- Review of failure to make a decision: ADJRA s7; JRA s22

“Making a decision”/failure to make a decision meanings are sourced from ADJRA s3(2); JRA s5.

Key issues:
1. When is there a decision capable of being reviewed? (is it provided for by the Act directly)
2. What is the status of preliminary decisions that are “steps along the way”?

For 1: The decision of Bond not being fit and proper (a preliminary decision/steps along the way decision) was not reviewable: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ.

Question 15

In ABT v Bond, why was the fit and proper decision not reviewable? What is the case an authority for?

Answer 15

Reviewable decision is one for which provision is made by or under a statute, usually entaling a decision which is final or operative and not determinative.
As the fit and proper decision was a conclusion which was reached as a “step along the way”… unless the statute provided for the making of a finding or ruling on that point so that the decision, through an intermediate decision, might accurately be described as a decision under an enactment.

Preliminary decisions not directly provided for in the Act are not reviewable

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,337, Mason CJ.

Question 16

ABT v Bond authority for “conduct leading to the making of an action”

Answer 16

That conduct is essentially procedural and not substantive in character. So, preliminary decisions are not generally considered to constitute conduct.

Such as taking of evidence and holding an inquiry, decision to refuse legal rep

342, Mason CJ

Question 17

Requirement of the element of ‘administrative character’ in statutory judicial review

Answer 17

This element is for the purpose of upholding the separation of powers.