#7233 - Introduction To Judicial Review I - Administrative Law

• 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)

• 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

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

• 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.)

• 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)

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’

• 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)

• 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 be undertaken in any court on any ground

• Cannot undertake judicial review of decisions made during the criminal process – to avoid prosecution proceedings becoming fragmented and delayed

• Privative clauses in areas other than Migration (Income Tax Assessment Act etc.)

• The FCA can undertake review in most but not all Cth administrative action – and this jurisdiction is spread over many statutes

  • This leads to many jurisdictional disputes (especially wrt Cth statutory corporations)

    • This is contrasted with the purpose of the ADJR Act to remove technical/jurisdictional obstacles for judicial review; as such proposals for an integrated scheme were made by the ARC but not implemented

• Pt IVA gives jurisdiction to the FC to hear class actions but very few are successful as they must have substantial common issues of law or fact arising in a similar way (s33C)

  • They can no longer be used for decisions under the Migration Act

• Is also a creature of statute established by the Federal Magistrates Act 1999 (Cth) – it is a Chapter III court and the first low tier Federal Court

• It’s jurisdiction is conferred by statute (mainly admin law, bankruptcy, consumer protection) and is similar to that of the FC but does not include the broader jurisdiction of 39B

• It can review decisions of the President of the HR and EO Commission to terminate complaints etc.

• Appeal lies from the FMC to the FC but the FC CJ can direct this to a single judge

• The FMC deals with matters quickly, less formally and inexpensively and relies on ADR – as a result more than 50% of migration matters are dealt with here

• s77(iii) of the Constitution provides that the Parliament can vest state courts with federal jurisdiction (the ‘autochthonous expedient’) which has allowed state courts to exercise civil/criminal jurisdiction to determine damage claims against the commonwealth and hear prosecutions brought under commonwealth laws

• Federal Administrative law is generally restricted – The High Court has exclusive jurisdiction with mandamus/prohibition and therefore the state courts are restricted to injunctions

  • Even this is diminished by s9 of the ADJR Act; it cannot ‘review a decision’ but does have jurisdiction over interpreting instruments ‘of an administrative character’ (Vietnam Veterans’ Affairs Assoc of AU v Cohen) and issues ‘arising under ... laws made by the Parliament’ (Vietnam Vet...NSW Branch Inc v Specialist Medical Review Council)

• s32A provides that each state SC can deal with applications in chambers in respect of matters in the FCA

• State courts, in hearing prosecutions under Cth law can determine related judicial review applications

• Territory SC cannot undertake judicial review without power being conferred by Cth statute

• s75 of the Constitution provides, inter alia, that:

In all matters...

(iii) In which the Cth, or a person suing or being sued on behalf of the Cth, is a party;...

(v) In which a writ of Mandamus/prohibition/injunction is sought against an officer of the Cth

The HC has original jurisdiction

• s75(v) is important for two reasons

1. Constitutional importance – it ‘was written into the instrument to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power’ (Back of NSW v Cth (1948) – Dixon J)

   1. The emphasis on this...