Things Every Commercial Lawyer Should Know About Judicial Review
Overview of Judicial Review in the Federal Court
7 May 2014
Senior Executive Lawyer
T 03 9242 1316
Government Action / Decision
Section 39B Judiciary Act 1903
- Was the decision made by an officer of the Commonwealth (s 39B(1)) or
- does it ‘arise under any law made by the Parliament’ (s 39B(1A)(c))?
- Does the applicant's case have substance? Can a jurisdictional error be identified?
Some examples of jurisdictional error:
a. Application of the wrong legal test;
b. Mistaken opinion as to presence/absence of a fact on which decision’s validity is contingent;
c. Disregarding a fact which the Act required be considered;
d. A Misapprehension of the nature of limits of the decision-maker’s powers
- Will a writ of certiorari, mandamus, prohibition or
injunction remedy the applicant's situation?
Administrative Decisions (Judicial Review) Act 1977
- Does the applicant want to:
a. review a decision?
b. stop conduct in a decision process?
c. require a decision be made?
- Does the applicant have reasons for the decision?
If not do they want to obtain reasons under s 13?
- Does the applicant have standing?
Is the relevant decision a "decision under enactment"?
Is the relevant decision final?
- What grounds can the applicant rely on?
Section 5 grounds - for a decision
Section 6 grounds - for conduct
Section 7 grounds - for failure to make a decision
- What s 16 remedy would be useful?
a. quashing the original decision?
b. order remitting decision to original decision maker subject to direction?
Quick reference guide: ADJR Act vs Judiciary Act
When should I recommend applying for review under the ADJR Act?
- When your client requires reasons for the decision (s 13);
- When there may not be an error of law amounting to jurisdictional error in the decision;
- When trying to establish that there is ‘no evidence’ for a finding of fact;
- Where your client needs added flexibility in relation to remedies.
When should I recommend to applying for review under s 39B of the Judiciary Act?
- Where the decision under review falls under Schedule 1 to the ADJR Act;
- Where review is sought of an act, rather than a decision or conduct for the purpose of making a decision;
- Where the decision is legislative in character, not administrative;
- Where there may otherwise be an issue of whether the decision was made “under an enactment
- Where there is a self-executing statutory provision such that there is no administrative ‘decision’ being made.
Or you can hedge your bets and bring an application under both!