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Introduction To Judicial Review I Notes

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This is an extract of our Introduction To Judicial Review I document, which we sell as part of our Administrative Law Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Administrative Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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 o

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' o


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: s11 - The procedure for application

s5,6 - The grounds for review

s16 - the relief the court can give

s15,15A - power to stay a decision being challenged

s13, 13A - procedure to obtain reasons


Not all decisions are reviewable: o

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 o

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' o

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)o


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) o

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) o

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 workloadA 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

Other Limitations on the Federal Court's jurisdiction

* 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 o

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

Representative actions in the Federal Court

* 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) o

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

Commonwealth - Federal Magistrates Court

* 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

State and Territory Jurisdiction in Federal Matters

* 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 o

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

The High Court's Original jurisdiction

* 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 I.

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) a. The emphasis on this jurisdiction is captured by reference to it as a 'constitutional writ'

II. The practical consequence on administrative law practice: a. Before the ADJR Act, the HC was the principal forum for judicial review of Cth administrative action - this continued to wane until the immigration jurisdiction was revived b. Also since Federal Court judges come within the words 'officer of the Cth' the HC can take appeals from FC decisions (but special leave is unlikely and there is no right to appeal) c.



Since the Act defines the remedies - the common law is left to specify the grounds

Under s75(iii) the jurisdiction is defined differently; it only refers to the parties to the proceedings (particularly the Cth); the common law and legislation identifies the cause of action and the jurisdiction o

It doesn't involve constitutional protection


It does support common law damages against hte Commonwealth; for the purpose of which public corporations are 'the Commonwealth (ASIC v Edensor Nominees
[2001] HCA)

The Judiciary Act supplements the original jurisdiction o

s44(2A) provides that the HC can remit cases in its original jurisdiction to the FC


s30 enlarges the jurisdiction to include 'matters arising under the Constitution or involving its interpretation'


s33 - specific power to grant habeas corpus, make orders of prohibition, mandamus and quo waarnto


s32 - Can grant any remedy in respect of any legal/equitable claim so that controversies underlying the cause of action are completely and finally determinedThis answers any jurisdictional questions about accrual from s75(v) of the power to grant other remedies; wihc only only be when necessary to

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