Week 12 Judicial Review Remedies
JUDICIAL REVIEW REMEDIES
Texts:
Creyke & McMillan Ch 16
Aronson, Dyer & Groves Ch 12-16
Introduction to the Topic
Judicial review remedies are of three types:
prerogative writs or orders – principally certiorari, prohibition, mandamus and
habeas corpus
• The
• The
equitable remedies of declaration and injunction
• Statutory
remedies, such as those available under the ADJR Act
In addition, the “constitutional writs” are available in the original jurisdiction of the
High Court under s 75(v) of the Constitution: see Re Refugee Review Tribunal; Ex
parte Aala. Section 75(v) gives the High Court original jurisdiction to grant
prohibition, mandamus or an injunction against Commonwealth officers.
There is a limited nature to these remedies in the sense that the courts must stop short
of re-exercising the administrator’s discretion. The remedies are also limited in the
sense that compensation is not available on judicial review. To obtain compensation
or damages for unlawful administrative action, the complaint must be framed within
tort or contract. Further, all the remedies are discretionary – they may be refused even
though unlawfulness has been established.
Types of Judicial Remedies
1. THE CONSTITUTIONAL WRITS
* Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
2. CERTIORARI
R v Northumberland Compensation Appeal Tribunal; Ex p Shaw [1952] 1 KB 338
R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864
Craig v State of South Australia (1995) 184 CLR 163
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
* Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
3. PROHIBITION
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
4. MANDAMUS
Randall v Northcote Corporation (1910) 11 CLR 100
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres
(Aust) Ltd (1949) 78 CLR 389
Commissioner of State Revenue (Vic) v Royal Insurance Aust Ltd (1994) 182 CLR 51
5. HABEAS CORPUS
Minister for Immigration and Multicultural Affairs v Vadarlis (2001) 110 FCR 491
6. INJUNCTION
Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582
* Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community
Benefit Fund Pty Ltd (1998) 194 CLR 247
7. DECLARATION
Dyson v Attorney-General [1911] 1 KB 410
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
* Corporation of the City of Enfield v Development Assessment Commission (2000)
199 CLR 135
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
8 ADJR ACT
ADJR Act ss 15, 16
Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528
Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637
9. DISCRETION OF COURT TO REFUSE RELIEF
Bragg v Secretary, Department of Employment, Education and Training (1995) 59
FCR 31
NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (2001)
53 NSWLR 559
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116
(14 July 2006)
ADJR Act
Probably the most important aspect of the Administrative Decisions (Judicial Review)
Act 1977 (Cth) (apart from creating a statutory right to reasons for decision) is the fact
that it creates a single, all-embracing and extremely flexible remedy, the "order of
review", for a breach in respect of any of the decisions or conduct covered by the Act.
See ADJR Act section 16.
General Law
1. Certiorari and Prohibition
Certiorari and prohibition probably remain the two most important remedies in
judicial review, although the simplicity and flexibility of the declaration certainly
makes that remedy a very attractive one. Of course, for most federal decisions the
choice will be ADJR review where there is a single flexible remedy: the "order of
review". However, at State level (at least in States other than Victoria and New South
Wales ADJR-like statutes are available) and for review in the High Court's original
judicial review jurisdiction under section 75 (v) of the Constitution, the common law
prerogative writs (or orders in the nature thereof) remain critically important.
2. The nature of certiorari and prohibition
Certiorari is in essence a two part remedy. The first part is an order removing the
official record of the impugned decision-maker into the superior court issuing the
certiorari order. The second part is an order quashing the impugned decision, and the
record thereof. That is, certiorari is used to wipe the slate clean.
Prohibition, on the other hand has a largely negative aspect. It prohibits the impugned
decision-maker and those relying on the decision from doing something illegal which
they are about to do, or from continuing on an illegal course of action already
commenced. Accordingly, the main difference between certiorari and prohibition is in
the timing of the application to the court.
Certiorari lies for any jurisdictional error, and also for non-jurisdictional errors of
law appearing on the face of the record. Prohibition, on the other hand, lies only for
actual or threatened excess of power, but is not available in respect of nonjurisdictional error of law on the face of the record. The reason why the writs are so
confined was explained by Hayne J in Re Refugee Review Tribunal; Ex parte Aala
(2000) 75 ALJR 52 (at para 159).
3. The decision-maker must exercise public power
It is clear that public law remedies, including certiorari and prohibition, will only lie
against bodies or persons exercising public power (as opposed to private power). Thus,
Ministers or departments exercising powers of functions in relation to contractual
matters were generally not be subject to correction by prerogative writ. Similarly, the
distinction between public and private power has been critical in some dismissal or
disciplinary decisions against public sector staff. A public or statutory body might
have mixed functions, some private and some public.
4. Discretionary criteria for refusing certiorari and prohibition
The court usually has a discretion to refuse certiorari and prohibition, even though a
substantive review ground has been established. However there has long been a
debate as to whether the discretion always exists. There are many judgments saying
that there is no discretion where the vitiating error is "manifest" (or apparent on the
face of the record), and the applicant for the remedy is a person directly aggrieved. At
least in the High Court's original jurisdiction, that question appears to have been
resolved by Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 , where
the court approved the following statement by Gibbs CJ in R v Ross-Jones; Ex parte
Green (1984) 156 CLR 185:
"If, therefore, a clear case of want or excess of jurisdiction has been made out,
and the prosecutor is a party aggrieved, the writ will issue almost as of right
[my emphasis - KAP], although the court retains its discretion to refuse relief
if in all the circumstances that seems the proper course."
5. Mandamus -- orders to perform duties
The prerogative writ of mandamus is a judicial command addressed to and compelling
the respondent to perform a public duty. The remedy is ancient and retains significant
technicalities, so that other remedies especially declaration are usually more attractive.
However, mandamus is still frequently granted in the High Court's original
jurisdiction, pursuant to section 75 (v) of the Constitution (it is a remedy expressly
granted to the High Court). Mandamus may be expected to become even more
popular having regard to the High Court's decision in Re Refugee Review Tribunal; Ex
parte Aala (2000) 75 ALJR 52 (16 November 2000), which significantly liberalised
the criteria for grant of what are now to be referred to as "constitutional writs" (rather
than "prerogative writs" where one is seeking relief under section 75 (v)).
6. Bodies or people to whom mandamus lies
Although one generally refers to the mandamus respondent as an "official, even a
private person can be a respondent to the extent that they bear a public duty -- see e.g.
Re O'Rourke (1986) 7 NSWR 64.
Unlike certiorari and prohibition, mandamus has never generally been regarded as
limited to cases where the respondent's powers can be classified as "judicial" or
"quasi-judicial". Thus, it seems that mandamus is available in respect of a magistrate's
decision on whether to commit a defendant to stand trial, even though that decision
might be immune from certiorari or prohibition.
7. The nature of the duties enforced by mandamus
Mandamus lies to compel performance of a public duty which is justiciable and
unperformed. A power (discretion) is not a duty, and a statute which says "may"
usually grants only a power. Mandamus is nevertheless frequently issued in context
where the statute has said "may". Whilst "may" indicates a discretion, the repository
of the discretionary power is usually under a duty at least to consider its exercise,
where an appropriate request is made and may sometimes even be under a duty to
exercise it in a particular way if there is no permissible reason indicating why should
not do so. In the latter situation the discretion has effectively run out: the repository of
a discretionary power cannot exercise or declined to exercise it on arbitrary or
otherwise impermissible grounds.
8. The effect of mandamus
Generally speaking, mandamus consists of an order to do a positive act, rather than to
desist from doing something (for which prohibition or injunction would be
appropriate). Generally also, the relevant duty should not be of a continuing nature.
Mandamus has no quashing effect -- if you need to quash a decision you should seek
certiorari or exercise a statutory appeal right (if available).
9. ADJR's equivalent of mandamus
Section 7 of the ADJR act provides:
"7. (1) Where -(a) a person has a duty to make a decision to which this Act applies;
(b) there is no law that prescribes a period within which the person is required to
make that decision; and
(c) the person has failed to make that decision,
a person who is aggrieved by the failure of the first-mentioned person to make the
decision may apply to the Court for an order of review in respect of the failure to
make a decision on the ground that there has been unreasonable delay in making the
decision."
Section 3 (1) defines "failure" to include "a refusal to make a decision". Query
therefore whether the ADJR Act imports the common law mandamus requirement for
a refusal to make a decision (as opposed to a mere "failure").
10. Declarations
A declaratory order or judgment is simply a court's declaration or statement resolving
a dispute as to the meaning or application of the law applicable to a situation in which
the applicant has a sufficient interest. In a strictly technical sense, the order or
judgment has almost no mandatory or restraining effect at all. The orthodox view is
that whilst declarations are often accompanied by consequential relief ordering or
restraining certain conduct, a mere declaration cannot be executed or enforced.
Theoretically, a declaration neither commands nor restrains action.
It is the only remedy applicable to virtually all challenges to the legality of
government decisions and conduct. Kirby J. said that the declaration's development
"is one of the most important and beneficial adventures in the administration of justice
during this century" -- see Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 at
paragraph 89.
11. The discretion to refuse declaratory relief
Lockhart J. summarised the factors governing the discretion to refuse declaratory
relief in Aussie Airlines Pty Ltd v Australian Airlines Limited (1996) 139 ALR 663 at
670-671:
"For a party to have sufficient standing to seek and obtain the grant of
declaratory relief it must satisfy a number of tests which have been formulated
by the courts, some in the alternative and some cumulative. I shall formulate
them in summary form as follows:
(a) The proceeding must involve the determination of a question that is not
abstract or hypothetical. There must be a real question involved, and the
declaratory relief must be directed to the determination of legal controversies.
The answer to the question must produce some real consequences for the
parties.
(b) The applicant for declaratory relief will not have sufficient status if relief
is 'claimed in relation to circumstances that [have] not occurred and might
never happen'; or if the Court's declaration will produce no foreseeable
consequences for the parties.
(c) The party seeking declaratory relief must have a real interest to raise it.
(d) Generally there must be a proper contradictor.
These other rules should in general be satisfied before the Court's discretion is
exercised in favour of granting declaratory relief."
12. Injunctions
The courts will generally only grant an injunction in public law where a statute can be
characterised as evincing an intention to grant private statutory rights. Courts are
reluctant to grant an injunction to a private person to enforce purely public rights.
Moreover, some recent High Court dicta suggest that at least some Justices see a
considerably broader and more flexible role for the injunction in public law. See, for
example, Gaudron J. in Abebe v Commonwealth (1999) 197 CLR 510 at paras 104105:
"As appears from Bateman's Bay Local Aboriginal Land Council v Aboriginal
Community Benefit Fund Pty Ltd, equitable remedies have a continuing role in
public and administrative law. And in those areas, 'equity has proceeded on
the footing of the inadequacy (in particular the technicalities hedging the
prerogative remedies) of the legal remedies otherwise available to vindicate
the public interest in the maintenance of due administration.'
Given the potential for administrative decisions to impact on existing rights
and interests, and, also, on important and valuable statutory rights to which
the individual might otherwise be entitled, it may well be that an injunction
will lie to prevent an officer of the Commonwealth from giving effect to an
administrative decision based on error, even if that error is not jurisdictional
error. ..."
Statements by various Justices in Re Refugee Review Tribunal; Ex parte Aala (2000)
75 ALJR 52 also suggest an emerging broader and more flexible view as to the
availability of injunction in public law.
Assuming that it is available, the remedy of injunction offers numerous advantages
over other remedies. First, being an equitable remedy it can, like declaration, be
fashioned very flexibly to fit the justice of the situation: it is not hidebound by any of
the technical restrictions of the prerogative writs. Secondly, it can be granted on an
interim or interlocutory basis to restrain conduct pending the determination of the
substantive issues in the proceedings.
Selected Readings
Beatson, J 'The discretionary nature of public law remedies', [1991] New Zealand
Recent Law Review 81 839.
Caldwell, J L 'Discretionary remedies in administrative law', (1986) 6 Otago Law
Review 245 840.
Howell, R H 'An historical account of the rise and fall of mandamus', (1985) 15
Victoria University of Wellington Law Review 127
Jenks, E ‘The Prerogative Writs in English Law’ (1923) 32 Yale Law Journal 523
McMillan, J 'Developments under the ADJR Act-the Grounds of Review', Federal
Law Review, vol. 20 no. 1, 1991
Selected Caselaw
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit
Fund Pty Ltd (1998) 194 CLR 247
Bragg v Secretary, Department of Employment, Education and Training (1995) 59
FCR 31
Commissioner of State Revenue (Vic) v Royal Insurance Aust Ltd (1994) 182 CLR 51
Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582
Corporation of the City of Enfield v Development Assessment Commission (2000) 199
CLR 135
Craig v State of South Australia (1995) 184 CLR 163
Dyson v Attorney-General [1911] 1 KB 410
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116
(14 July 2006)
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Minister for Immigration & Ethnic Affairs v Conyngham (The Platters Case) (1986)
68 ALR 441
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Vadarlis (2001) 110 FCR 491
NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (2001)
53 NSWLR 559
Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637
Randall v Northcote Corporation (1910) 11 CLR 100
* Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres
(Aust) Ltd (1949) 78 CLR 389
R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864
R v Northumberland Compensation Appeal Tribunal; Ex p Shaw [1952] 1 KB 338
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228