Week 2 - The process of Judicial Review and Standing

Question 1

Benefits of statutory system of Judicial Review

Answer 1

• Streamlines and simplifies procedure for instituting judicial review of decisions
• Codifies grounds of judicial review recognised under common law
• plain english drafting
• statement of reasons

Question 2

What are the two levels of judicial review?

Answer 2

ADJR Act 1977 (Commonwealth)
JR Act 1991 (Qld)

Question 3

Right to SOR under statutory judicial review (benefits)?

Answer 3

• find legal error case
• improves administrative decision making
• decision maker must record what law was relied on, facts relied on and the reasoning

Question 4

What is a reviewable “decision?

Answer 4

The decision must be final or determinative or a step along the way/intermediate decision, necessary to make the final decision (usually required by the statute)
(generally final and operative)

Question 5

When can a Report or recommendation constitute a “decision’?

Answer 5

• Where a statute provides for a ‘report or ‘recommendation’ to be made,

AND

• That statute (or another law) provides for the making of the final decision,

AND

• The statute creating the ‘report/recommendation making power’ must specify that the making of the report is a condition precedent to the valid exercise of the power to make the final decision:
  condition precedent

Question 6

“Conduct engaged in” for the purpose of making a decision is reviewable:

Answer 6

• It must be conduct leading to a “decision to which this Act applies”
• No need for the person engaged in the “conduct” to be the same person who makes the “decision”
• Difference between a “decision” and “conduct engaged in”: “conduct’ concerns the procedural aspects of reaching a decision (not interim steps): ABT v Bond per Mason CJ

Question 7

Decisions “of an administrative character”

Answer 7

• Exercise of an executive power under a statute is a decision of an ‘administrative character’; executive administering the powers under a statute
• Only other powers not administrative are legislative or judicial powers (follows the scheme of the Constitution, tripartite powers of govt)
• Legislative – no simple rule for determining whether a decision is of an administrative or a legislative character: CQLC v A/G Cth [2002] FCA 58 (per Wilson J)

Question 8

Contrast with exercise of a judicial power

Answer 8

Contrast with exercise of a judicial power

Question 9

Contrast with exercise of a legislativepower

Answer 9

• Legislative – no simple rule for determining whether a decision is of an administrative or a legislative character

-The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of content … whereas executive authority applies the law in particular cases

Question 10

decisions of a legislative character – COVID decision

Answer 10

CHO’s decisions to give directions were not of an administrative character but were legislative. Once that determination was made, the remedial nature of the JRA …does not justify treating a decision as being of an administrative character are displaced by its legislative characteristics

Question 11

decision must be “made under an enactment”

Answer 11

• s 3 ADJR Act – includes an “Act and an instrument (including rules regulations or by-laws) made under such an Act or Ordinance”, or
• s 3 JR Act (Qld), ss 6 and 7 Acts Interpretation Act 1954 (Qld)

Question 12

What is “Made under….”?

Answer 12

Key principle (the Tang test):

• The decision must be expressly or impliedly required or authorised by the enactment;and
• The decision must itself, confer, alter or otherwise affect legal rights and obligations and in that sense the decision must derive from the enactment.

Question 13

Examples of decisions not “made under” an enactment

Answer 13

• An exercise of a prerogative power
• Not an exercise of ‘public power’
• An exercise of power conferred by a private agreement (employment contract)

Question 14

Standing in Judicial Review

Answer 14

The concept of ‘standing’ (locus standii) – allows a person or group who isn’t necessarily directly affected by a decision to initiate judicial review

Question 15

Does a member of the public have standing?

Answer 15

• 1st limb: where the alleged interference with a public right also constitutes an interference with a private right of the applicant; or
• 2nd limb: where no private right is involved but applicant suffers “special damage” as a result of an interference with a public right