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Judicial Review Notes

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9. Judicial Review General Introduction to judicial review

Difference between judicial review exercised by federal courts and by State courts At the federal level, the High Court's 'original' judicial review jurisdiction derives from

* The Constitution

* By statute, the Federal Court shares this 'constitutional' jurisdiction.

* Also has further sources of jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and (separately) under the Judiciary Act 1903 (Cth). State courts have what is called 'inherent' or 'supervisory' judicial review jurisdiction.

* Common law

* Kirk's case: aspects of the jurisdiction are derived from and protected by the federal Constitution.

* No general legislation, some specific legislation Approach to judicial review - five steps

1. 2.

3. 4.

5. Jurisdiction / scope of power to review, and source of power to do so; Justiciability: the application raises 'justiciable' issues; Standing: the applicant must be an appropriate person to bring the application; Grounds for review: there must be a breach of an administrative law norm; Remedies: Courts must also have power to grant an appropriate remedy.

Jurisdiction / Scope of power to review Appeal vs Review

Appeal Courts

Review Courts

* Judicial review's standard remedies are connected with conclusion about the legality (validity), and not the correctness, of decisions.

* Even if a review Court decides that there is only one legally available outcome, the court will, in most circumstances, remit the decision to the original decision-maker to be made in accordance with the law: Guo (1997)

* Judicial review was originally a creation of the common law.


* Appeal courts can consider all aspect of a decision (law, fact and policy) -- typically carries with it a remedial power to substitute a new decision.

* Appeal courts can typically substitute their own decision for that of the original decisionmaker.

* Appeals are creatures of statute.


Appeals may be limited to points or questions of law and, if this is the case, the function of the court hearing an appeal is in essence the same as that performed by a judicial review.

Judicial Review vs Merits Review

* First two types of criteria --> 'legal;

* Last three --> 'managerial'.
The two sets of criteria are potentially in tension with one another.
It is generally assumed that because external review is conducted at a greater distance from the original decision-maker than internal review, it is more likely than internal review to satisfy the legal criteria.
Similarly, it is usually assumed that reviewers higher up the ladder are more likely to satisfy the legal criteria than the managerial, and that reviewers at lower levels are more likely to satisfy the managerial than the legal.

Judicial review

* Courts determining whether a decision is valid, i.e., within power.

* Results of judicial review of administrative action is to determine whether the action was valid or invalid.
It is about determining the boundaries of the power of the decision-maker, and whether they exercised their power in accordance with the limits of that power. Merits review

* Whether the decision was the right / preferable one.

* Merits review should be 'fair, just, economical, informal and quick'. 1

9. Judicial Review

Result of merits review can be a substitution of the reviewing body's decision for that of the original decision.
Merits review is a kind of executive power. Reasons for distinction

* Rule of law
*> Judicial review should not, in the name of the 'rule of law', enable judges to unduly colonise public administration by reference to their own perceptions of what 'good administration' requires.

* Separation of power
*> According to separation of power, legal checks on the executive should not allow judges to arrogate to themselves functions which have been given to more appropriate (and, perhaps, more legitimate) decision-makers.
*> Therefore, the legality / merits distinction is simply marked by whether or not a particular ground of judicial review is available in a given case; if it is not, then judges cannot interfere with the 'merits' of the decision.

* Parliamentary sovereignty
*> Attempts by the legislature to oust or diminish the courts' power of judicial review.
- Although there is an entrenched minimum provision of judicial review at the Commonwealth and State level, legislature can remove the availability of some of judicial review's remedies and, subject to unclear limits, it appears there are legislative techniques which may operate to diminish the practical efficacy of judicial review. Constitutional Sources of Judicial Review Jurisdiction In all matters: (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction.

In all matters: (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; the High Court shall have original jurisdiction.

s 75(v) of the Constitution Purpose: to ensure that the High Court has jurisdiction to determine the legality of Commonwealth government decisions. Limitation
Officer of the Commonwealth
*> An officer of the commonwealth is 'a person appointed by the Commonwealth to an identifiable office who is paid by the Commonwealth for the performance of their functions under the office and who is responsible to and removable by the Commonwealth concerning the office: Broadbent v Medical Board of Queensland [2011]
- A formal appointment to an 'office' is required, and
- the 'office' must be distinct from the entity who fills it.
The limitation that a decision-maker be an 'officer of the Commonwealth' must mean that many decisions made by non-government bodies cannot be reviewed under s 75(v).
The 'matter' concept (see justiciability) The grounds of judicial review available under s 75(v) are tightly linked to the available remedies.

* Even though certiorari has been granted in applications under s 75(v), it will not be granted for a non-jurisdictional error. s 75(iii) of the Constitution High Court can hear claims and grant remedies under s 75(iii) in situations where s 75(v) review is not available.

* The phrase 'the Commonwealth' as capable of encompassing bodies corporate, thus statutory corporations are 'the Commonwealth' and government-owned corporations may also qualify as 'the Commonwealth'.

* This provision does not define jurisdiction in terms of remedies but through the requirement that one of the parties to a suit be 'the Commonwealth'.

* In exercising the jurisdiction under s 75(iii)the court has bee prepared to grant a remedy even where no jurisdictional error was shown: Project Blue Sky Inc v Australian Broadcasting Authority (1998); Plaintiff M61 Difference between s 75(v) & s 75(iii) s 75(v) has been interpreted as linking the available writs (mandamus and prohibition) to the notion of 'jurisdictional error'.

* This has disabled the parliament from using 'privative clauses' to exclude the court's jurisdiction to grant these remedies for such jurisdictional errors. s 75(iii) does not constitutionally entrench the availability of particular remedies or the substantive law which is to be applied in cases involving the Commonwealth as a party.

* Thus, although s 75(iii) may give the High Court jurisdiction to award certiorari (and declarations) for non-jurisdictional errors of law, it is open to the parliament to legislate to prevent such relief being granted. 2

The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences: (ii) of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council; and the judgment of the High Court in all such cases shall be final and conclusive.

1. The Australian Broadcasting Tribunal convened an inquiry into whether or not companies holding television licences in Queensland (and 'dominated' by the flamboyant businessman, Alan Bond) continued to be 'fit and proper persons to hold the licences'.

2. s 88 of the ABT Act provided that the tribunal may "suspend or revoke a commercial TV license". But certain preconditions to taking that step were set out in the legislation. The one in question, part B provided that "the tribunal is satisfied that the licensee is no longer a fit and proper person". Therefore, it was two step process, i.e., whether ..a fit and proper person and second, suspend or revoke.

3. In the course of very lengthy hearings the tribunal made a number of determinations, including a factual finding that Mr Bond was not a fit and proper person to hold a broadcasting licence.

4. The tribunal had not yet determined whether or not the licences should be revoked or varied.

5. Mr Bond and his companies commenced action under the ADJR Act in respect of 18 decisions, findings or rulings of which 11 were described as 'decisions' and 7 as conduct. Issue: what is a decision for the purposes of the act? Does it include investigatory proceedings?
- S.5 of the ADJR Act only allows you to review the "final decision" in a decision-making process.

- The HC also added that an interim or preliminary decision may still be reviewable under s.5 of the ADJR Act PROVIDED that the statute in question expressly creates this interim decision as a step.

s 73(ii) of the Constitution A constitutional source for the state Supreme Courts' supervisory jurisdiction.

9. Judicial Review

Statutory Sources of Judicial Review Jurisdiction

Administrative Decision (Judicial Review) Act 1977 (Cth) Application under the ADJR Act may be made to either the Federal Court or the Federal Magistrate Court. 'Decision to which this Act applies' (s 3)

* Elements
- a decision;

* Australian Broadcasting Tribunal v Bond:
*> Final or operative and determinative
- Where a statute specifically provides for the making of a decision which is a mere step along the way in the course of reaching an ultimate decision, this 'intermediate' decision can accurately be described as 'a decision made under an enactment', and is itself reviewable.
*> Substantive determinations
- of an administrative character;

* i.e., Not legislative or judicial
- made under an enactment.

* Include Acts and delegated legislation

* Conferring or affecting legal rights or obligations

* Who is making decisions, is effect of decision derived from the enactment.

* Excluding
- decisions of the Governor General
- decision listed in Sch 1. Who can bring proceedings under the Act?

* A decision to which this Act applies: s 5

* Proposed and actual conduct engaged in for the purpose of making a 'decision to which this Act applies': s 6

* A failure to make a 'decision to which this Act applies': s 7. Decision Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 A reviewable decision is one which statute requires or authorises. That will generally, but not always, entail a decision which is final or operative and determinative of the fact falling for consideration. A conclusion reached as 'a step along the way' leading to an ultimate decision will not ordinarily amount to a reviewable decision unless statute requires the making or a report or recommendation as an essential preliminary to the making of the ultimate decision. Another essential quality of a reviewable decision is that it is a determination 'effectively resolving an actual substantive issue' and not a procedural determination. It has the 'character of finality'. It doesn't include investigatory proceedings (just a step along the way) BUT: if the statute requires the making of a report or recommendation before a decision made, it would fall under the definition of a decision Therefore in this case, the Tribunal's finding that the licensee's were no longer fit and proper persons to hold their broadcasting licenses under the Act was a reviewable decision. Although it was an intermediate determination made on the way to deciding whether to revoke or suspend the licenses or to impose conditions on them, it was a decision on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision.

3 9. Judicial Review

On the other hand, the Tribunal's conclusion that Bond was not a fit and proper person was not a determination that the Act provided for and was no more than a step in the Tribunal's reasoning on the way to finding that the licensees were not fit and proper. Administrative Decisions

Decisions which are neither 'legislative' nor judicial' will be classified as administrative: Burns v Australian National University (1982)

* Examples
- A local council given power by a statute that creates it, to make by-laws. If the local council exercises that power to make by-laws, its decision will be a legislative character because it is making laws.
- The ADJR Act cannot be used to judicially review decisions made by Magistrates when they are exercising federal jurisdiction.
However, when a magistrate decides to commit somebody for trial, it's not an exercise of judicial power, it is an administrative - after conducting an inquiry there is sufficient evidence that somebody stands trial.
So the decision by a magistrate that somebody should be committed for trial is reviewable under the ADJR Act because it is of an administrative nature. Subordinate legislation is not directly reviewable under the ADJR Act, however, it is often reviewable under s 39B(1) of the Judiciary Act (if made by an 'officer of the Commonwealth'), or under 39B(1A). Administrative feature vs legislative feature, considering:

* How legislative decisions change the content of the law: Queensland Medical Laboratory v Blewett (1988)

* Features of the decision: Federal Airports Corporation v Aerolineas Argentinas (1997)

* Whether it has a general or rule-like quality, has binding legal effect, or raises broad questions of quality-->YES, legislative feature

* Issues concerning supervision of the decision: Federal Airports Corporation v Aerolineas Argentinas (1997)

* The decision is subject to parliamentary oversight --> likely a legislative decision

* Issues concerning the production of the decision: Federal Airports Corporation v Aerolineas Argentinas (1997)

* Requirement to consult and give public notification --> legislative character. Decisions 'made.. under an enactment' Involves two criteria: Griffith University v Tang (2005)

* first, the decision must be expressly or impliedly required or authorised by the enactment; and

* second, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive its legal force from the enactment. When made under enactment:

* The decision is made in pursuance of, or under the authority of the Act in question: Chittick v Ackland

* The statute is the force and effect behind the decision:Telstra Corp v Kendall

* MIEA v Mayer: Majority recognised there was no other source of an obligation to consider refugee status, allowing review
-->implied obligation

* Agreement which was subsequently turned into legislating: Department of Aviation v Ansett Transport Insudtries. When not made under an enactment:

* Statute, but no power:
- Statute is 'self-executing', so there is no decision as such: Guss v Deputy Com of Taxation (2006)
- Where statute very wide, will be hard to point to power: Griffith University v Tang (2005)

* Prerogative Power:
- An exercise of prerogative power is not under an enactment: Hawker v Freeland {power to enter into contract by exec is not made under statute.}.

* Not Public Power:
- Neat Domestic Trading v AWB: power arose from constitution where it was incorporated under corporations legislation.

* Contractual Power:
- Decision is made pursuant to mutually negotiated agreement between 2 private parties: ANU v Burns; 4

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