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ADMINISTRATIVE LAW EXAM TEMPLATE JUDICIAL REVIEW

INTRODUCTION

Judicial review is available for people aggrieved by an administrative decision to seek review of the lawfulness of that decision rather than the merits of the case. Judicial review may succeed if the court has jurisdiction to judicially review the decision and accepts that the decision is 'justiciable', if the applicant has standing, if the applicant can show that there are grounds for review, if the court has the power to grant an appropriate remedy, and if there are no privative clauses preventing judicial review. COMMONWEALTH OR NSW LEGISLATION?

The relevant legislation in this particular question is the [name of Act], a piece of [Cth or NSW]. COMMONWEALTH As it is Commonwealth legislation, the ADJR Act will be used for judicial review. Under the ADJR Act 1997 (Cth), the Federal Court of Australia has jurisdiction to hear and determine applications for judicial review of the lawfulness of a decision (not its merits - s 16). Using this statutory instrument, _____________ (person affected) can argue that either the decision or conduct of the ______________ (Board / Tribunal / Body) was invalid or unlawful.

NSW As it is NSW legislation, Common law will be used for judicial review, as there is no statute governing judicial review in NSW.

JUSTICIABILITY

COMMONWEALTH For the decision to be eligible for judicial review under the ADJR Act, it must be 'a decision of an administrative character made under an enactment' (section 3). This may also include a failure to make a decision (section 6) or conduct while making a decision (section 7).

NSW Judicial review is only available for cases that are deemed to be justiciable. If a case is justiciable it means it is appropriate for determination by the particular court. A case may be non-justiciable if there are no manageable legal standards in the case, if judicial intervention is not constitutionally appropriate or legitimate, if the decision maker has open discretion and unfettered power (no boundaries on what they can do), academic grading decisions, religious or inherently political questions (Minister for

A 'decision' must be required or authorised by statute. A decision may include the decisions of Ministers (Minister for Aboriginal Affairs v Peko Wallsend (1986) 1

162 CLR 24) , making orders or determinations, granting licenses, awards, (Section 3(2)) and reports and recommendations required by statute (Section 3(3)). The decision in case fits this definition because [reasons why it fits].

Arts Heritage and Environment v PekoWallsend (1987) 15 FCR 274), ASIO, national security, diplomacy, national relations (Thorpe v Commonwealth (No 3) (1997) 144 ALR 677). The judiciary must not encroach on the legislative or executive as this would be a breach of the separation of powers. In this case, the matter is [describe matter], which is in the jurisdiction of the
[executive, legislature or judiciary], therefore it is/is not justiciable.

The decision must also be of 'administrative character,' which means not of judicial or legislative character (Burns v ANU (1982). Administrative decisions may be distinguished from legislative and judicial decisions as they are the application of general rules to a specific case, while legislative decisions involve the creation and formulation of new rules that have a general effect (Minister for Industry & Commerce v Tooheys Ltd (1982) 60 FLR 325), and judicial decisions determine questions of law with reference to established rules and principles (Hamblin v Duffy (1981) 50 FLR 308). The decision in this case clearly fits the definition of a decision of an administrative character, as [reasons why it fits]. The decision must also have been made under an enactment. An 'enactment' refers to Acts, rules, regulations and by-laws made under statute and Ordinances (except for territories) (Section 3). Exceptions include decisions by the Governor-General and decisions regarding national security, conciliation and arbitration, defence, tax, criminal process and specific decisions under the Migration Act (Schedule 1 ADJR). The enactment must have been the source of power to make the decision (Hutchins v. Commissioner of Taxation (1996) 65 FCR 269; General Newspapers Pty Ltd v Telstra Corporation (1993) ATPR 41-274). The test for whether a decision has been made under an enactment is that (i) it must be expressly or impliedly required or authorised by enactment that there is the power to make that decision, and (ii) the decision must confer, alter or otherwise affect legal rights or obligations - the capacity to do 2

this must derive from the enactment (Griffiths v Tang (2005) 221 CLR 89, 129). The decision in this case was expressly authorised under the relevant Act, and it clearly affects the applicant's legal rights
[reasons]. STANDING

Assuming that the matter is justiciable, it must now be established that the applicant has sufficient standing to apply for this decision to be judicially reviewed. COMMONWEALTH Under the ADJR Act 'a person who is aggrieved by a decision' may have standing to seek judicial review. A 'person aggrieved' means someone 'whose interests are adversely affected by the decision' (s 3(4)(a) (i)). This test is intended to have a broad meaning (Ogle v Strickland (1987) 13 FCR 306, 320-324), and is not restricted to tangible interests such as legal, financial or proprietary interests. However, it must be more than simply an intellectual, philosophical or emotional concern, and must affect the applicant more than the rest of the public generally (Right to Life Association (NSW) Inc. v Secretary, Department of Human Service and Health (1995) 128 ALR 238 ; United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520; Ogle v Strickland (1987) 13 FCR 306). The context and specific factors in the case are to be considered to determine whether the applicant has a 'special interest' peculiar to themselves (North Coast Environmental Council Inc v Minister for Resources (1994) 55 FCR 492.)

NSW To have standing for judicial review under common law, the applicant generally needs to have substantial economic interest - private pecuniary interests, apprehended or actual damage to proprietary rights (ACF v Cth (1980). Mere intellectual, emotional or philosophical interests will not constitute standing (ACF v Cth (1980), Right to Life Association (1994). Applicants must suffer damage peculiar to themselves, more so than the rest of society (Onus v Alcoa v Australia (1981), Batemans Bay Local Aboriginal Land Council (1998)). The rules of standing vary according to the remedy sought. In the case of equitable remedies, individuals generally do not have standing (this is for the A-G), unless it also affects their private rights (as well as public) and causes them to suffer special damage peculiar to themselves (Boyce v Paddington Borough Council). The applicant may have standing in this case due to [reasons].

The applicant may have standing in this case due to [reasons]. STATUTORY LIMITATIONS

A privative clause is a provision in a statute that aims to prevent or restrict judicial review of administrative or other actions, even if that action is flawed or illegal. The privative clause contained in section ___of the (name of Act) purports to prevent/limit judicial review on the basis that (insert details of the clause). In order for (person affected) to enforce any rights of review over the (Board / Tribunal / Body) decision, (person affected) must demonstrate to the reviewing court that this clause has no real effect in ousting judicial review. 3

A privative clause will only be effective in ousting judicial review if the following conditions are met: the decision was a bona fide attempt to exercise the powers conferred (no fraud, dishonesty or malice); the decision related to the subject matter of the legislation, and the decision is reasonably capable of reference to the power conferred (it is within its legislative authority) (Hickman principle in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53). A fourth element was introduced in R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208: that 'imperative duties or inviolable limitations or restraints' are not infringed. It is necessary to look at the legislation as a whole - the privative clause will not protect a decision made in contravention of a provision of the legislature intended to be mandatory (R v Murray; Ex parte Proctor (1949)). Any attempt by the legislature to restrict the operation of section 75(v) of the Constitution contradicts the rule of law (Bodruddaza v MIMA). There are similar limitations for privative clauses on State Supreme Courts (for different reasons). A State Supreme Court cannot be deprived of its jurisdiction to hear writs based on jurisdictional error of inferior courts and tribunals (Kirk v Industrial Relations Commission [2010]). COMMONWEALTH A privative clause in an otherwise valid federal enactment may preclude judicial review only for non-jurisdictional errors of law committed by administrative tribunals, subject to compliance with the Hickman principle and section 75(v) of the Constitution.

NSW A privative clause in an otherwise valid state enactment may preclude judicial review for errors of any kind, as long as it satisfies the Hickman principle.

A privative clause in an otherwise valid federal enactment may preclude judicial review for both jurisdictional and nonjurisdictional errors of law committed by inferior courts, subject to compliance with the Hickman principle and section 75(v) of the Constitution. Any privative clauses in Commonwealth legislation created prior to 1977 (When ADJR Act was enacted) have no effect due to section 4 of ADJR.

GROUNDS FOR REVIEW

The applicant may be able to apply for judicial review on the following grounds: [select relevant grounds] for the following reasons: [reasons]. COMMONWEALTH ADJR grounds of review must be determined to prove that the decision-maker has exceeded their powers in this case (section 5(1) ADJR).

NSW Common law grounds of review must be determined to prove that the decision-maker has exceeded their powers in this case.

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