Things every commercial lawyer
should know about judicial review
Overview of Judicial Review in the Federal Court
Emily Nance Senior Executive Lawyer
T 03 9242 1316
emily.nance@ags.gov.au
7 May 2014
Government Action / Decision
Section 39B Judiciary Act 1903
Administrative Decisions
(Judicial Review) Act 1977
Was the decision made by an officer of the
Commonwealth (s 39B(1)) or
does it ‘arise under any law made by the
Parliament’ (s 39B(1A)(c))?
Does the applicant want to:
a. review a decision?
b. stop conduct in a decision process?
c. require a decision be made?
Does the applicant's case have substance? Can a
jurisdictional error be identified?
Does the applicant have reasons for the decision?
If not do they want to obtain reasons under s 13?
Some examples of jurisdictional error:
a. Application of the wrong legal test;
b. Mistaken opinion as to presence/absence of
a fact on which decision’s validity is contingent;
c. Disregarding a fact which the Act required be
considered;
d. A Misapprehension of the nature of limits of the
decision-maker’s powers
Will a writ of certiorari, mandamus, prohibition or
injunction remedy the applicant's situation?
Does the applicant have standing?
Is the relevant decision a "decision
under enactment"?
Is the relevant decision final?
What grounds can the applicant rely on?
Section 5 grounds - for a decision
Section 6 grounds - for conduct
Section 7 grounds - for failure to make a decision
What s 16 remedy would be useful?
a. quashing the original decision?
b. order remitting decision to original decision maker
subject to direction?
c. declaration?
d. injunctions?
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Quick reference guide:
ADJR Act vs Judiciary Act
When should I recommend applying for review under the ADJR Act?
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When your client requires reasons for the decision (s 13);
When there may not be an error of law amounting to jurisdictional error in the decision;
When trying to establish that there is ‘no evidence’ for a finding of fact;
Where your client needs added flexibility in relation to remedies.
When should I recommend to applying for review under s 39B of the
Judiciary Act?
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Where the decision under review falls under Schedule 1 to the ADJR Act;
Where review is sought of an act, rather than a decision or conduct for the purpose of
making a decision;
Where the decision is legislative in character, not administrative;
Where there may otherwise be an issue of whether the decision was made “under an
enactment
Where there is a self-executing statutory provision such that there is no administrative
‘decision’ being made.
Or you can hedge your bets and bring an application under both!
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