Introduction to Judicial Review I

The legal basis for Judicial Review

The common law basis

• Judicial review dates back to the time of writs – the purpose of which were to examine whether public sector bodies complied with limits imposed by law

  • Recently remedies have extended from the old writs (prohibition of further activity etc.) to equitable remedies like declarations and injunctions; these are generally procedural in nature and do not embrace a broader sense of review (correct or preferable, or systemic issues)

Judicial review under statutory schemes

• In 1977 the Commonwealth led the way in the common law world with the statutory framework contained in the Administrative Decisions (Judicial Review) Act 1977 which replaced prerogative remedies with a simple ‘application for order of review’

  • The procedure was simplified (s5,6 – common law grounds for review; s13 right to reasons etc.)

• Many states have followed suit but not NSW

Indirect Judicial Review

• Also called collateral review – refers to the questioning of government action in civil/criminal proceedings (e.g. unlawfully obtaining evidence)

Commonwealth – Federal Court

• The principal feature for review of Commonwealth decisions is the Federal Court, a creature of statute established under the Federal Court of Australia Act 1976 (Cth)

  • The court doesn’t have an inherent common law jurisdiction but its original jurisdiction under the Judicature Act 1903 (Cth) and its “accrued/associated” jurisdiction partially substitute for this

  • But regardless its jurisdiction is restricted/define and hence jurisdictional disputes frequently arise

• The court also exercises jurisdiction outside the administrative law (bankruptcy, trade practices, IP, corporations etc.)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

• The Act is the principal template for judicial review:

• Not all decisions are reviewable:

  • Must be a decision ‘of an administrative character made...under an enactment’ (s3) OR;

  • There must be ‘conduct for the purpose of making a decision (s6)

Judiciary Act 1903 (Cth)

A number of sections expanded the power of the Federal Court:

s39B(1): The original jurisdiction...includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the commonwealth

s39(1A): Adds any matter :

a) in which the Cth seeks an injunction/declaration
b) arising under the Constituion
c) arising under any laws made by the parliament

s44(2A) Where a matter in which the Cth is or a person suing/being sued on the Cth’s behalf is a party pending in the HC, the HC can upon application or own motion remit the matter or part of it to the FCA

• The limitations placed on the FCA by the ADJR Act somewhat redirected their caseload to the HC; this led to s39B(1) which widened the jurisdiction to match s75(v) under the Constitution

  • s44(2A) was enacted shortly after to enable transferring matters to the FC which were commenced in the HC and could more appropriately be heard by the FC

  • s39B(1A) conferred a broader jurisdiction to constitutional issue

    • It was partly designed for the non-public law purpose of conferring federal jurisdiction in civil matters concurrent to state/territory courts by:

      • Allowing the review of subordinate legislation (these aren’t of an ‘administrative character’)

      • It allows any ‘matter...arising under the constitution’

      • It exercises a parens patriae jurisdiction state/territory SCs to supervise the minister’s function as guardian of non-citizen children

• The public law jurisdiction is still confined – must be against ‘an officer of the Cth’ and must relate to a matter’

Associated and accrued jurisdiction and the Federal Court of Australia Act 1976 (Cth)

• These sources allow the court to resolve entire claims where part of them would be beyond jurisdiction

• The associated jurisdiction is conferred under s32 of the FCA Act and provides:

‘Jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked’

• This has constitutional backing through s77(i) which provides parliaments ability to define jurisdictions of Federal Courts to any ‘matter’ under s75 o s76 (a limitation)

  • E.g. In hearing an action under the ADJR Act it can also determine an ‘associated’ claim for breach of the TPA

• This jurisdiction is less important due to s39B(1A)(c) which gives a parallel jurisdiction to deal with matters under the Constitution and Cth laws

• The accrued jurisdiction refers to the inherent power of superior courts to settle controversies before it by dealing with all issues that share a ‘common substratum of facts’ (Phillip Morris v Adam P Brown Male Fashions)

  • Hence a non-federal claim under state can be melded into a federal claim – and absence of relief for the Federal claim does not preclude relief for the non-federal claim (Johnson Tiles Pty Ltd v Esso Australia Pty Ltd)

Migration Act 1958 (Cth)

• There has since the 90s been a large portion of the FC’s caseload devoted to migration cases (almost a third)

  • This led to the restriction scheme on migrant entry and claims (Migration Act Pt 8) (e.g. review by a Migration Tribunal was a prerequisite to review by the FC and a 28 day limit placed in between)

  • Pt 8 also restricted the grounds for review – effectively broadening the HCA’s jurisdiction as compared to the FC’s and thus increasing their workload

    • A different scheme was established after the Tampa controversy – proceedings could be commenced in the FC through the Judiciary Act or in the HCA under s75(v) subject to privative clauses providing that judicial review of immigrant decisions couldn’t...

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