Judicial review

 

Review by a court is called judicial review. It tests the legality of the decision and whether the official had power to make it, and made it fairly, without error of law or failure to consider something relevant. It doesn’t re-decide the matter on its merits.

Nature of judicial review

Judicial review enables a person aggrieved by an administrative decision (or refusal to make a decision, or action, or inaction) to seek review by a court of the lawfulness of that decision.

The court will not review a decision in order to determine whether or not it was the right decision to make (this would be a “review on the merits”). The court will only review a decision so as to determine whether it was a lawful decision (i.e. whether it was within the power of the decision-maker). (For an explanation of the difference between judicial review and merits review, seeAdministrative law”.)

If the court finds that the decision was not a lawful decision, it may set aside that decision. Normally, the court will then remit the decision back to the original decision-maker to be made again. (Research shows that the fresh decision is often more favourable to an applicant than the first decision that was set aside.)

Judicial review is a complicated and specialist area of law. You should consider seeking legal advice before commencing any judicial review proceeding. Judicial review must normally be sought in a superior court, such as the Victorian Supreme Court, the Federal Court or even the High Court.

Before you commence a proceeding seeking judicial review you will need to:

determine what remedies you seek;

make sure you comply with any applicable time limits (seeJudicial review: the importance of time limits”);

make sure you have standing to challenge the action (seeJudicial review: establishing standing to sue”); and

select one or more grounds of review (seeGrounds of review: summary”).

Grounds of review: summary

When assessing a decision complained about, it is important to consider what the court can review, that is, the grounds of judicial review, as early as possible. You can look first for the most common grounds, that is:

a breach of natural justice;

an error of law; or

a failure to take into account a relevant consideration.

These are typical areas where decision-makers fall into error. (The specific grounds for judicial review are explained in more depth at the end of this chapter, seeGrounds of judicial review”.)

Section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) lists the grounds of judicial review, which largely reflect the common law grounds at both federal and state levels, as follows:

1 A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

athat a breach of the rules of natural justice occurred in connection with the making of the decision;

bthat procedures that were required by law to be observed in connection with the making of the decision were not observed;

cthat the person who purported to make the decision did not have jurisdiction to make the decision;

dthat the decision was not authorised by the enactment in pursuance of which it was purported to be made;

ethat the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

fthat the decision involved an error of law, whether or not the error appears on the record of the decision;

gthat the decision was induced or affected by fraud;

hthat there was no evidence or other material to justify the making of the decision;

ithat the decision was otherwise contrary to law.

2 The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

ataking an irrelevant consideration into account in the exercise of a power;

bfailing to take a relevant consideration into account in the exercise of a power;

can exercise of a power for a purpose other than a purpose for which the power is conferred;

dan exercise of a discretionary power in bad faith;

ean exercise of a personal discretionary power at the direction or behest of another person;

fan exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; g an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

han exercise of a power in such a way that the result of the exercise of the power is uncertain; and

iany other exercise of a power in a way that constitutes abuse of the power.


NOTE

The above list is for general reference only and is subject to change. Refer directly to the most current version of the ADJR Act, which can be accessed on the Comlaw website at www.comlaw.gov.au.


There may also be other grounds of review available pursuant to statute. For example, in Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) provides for further grounds to add to a judicial review action.

Further explanation of the grounds of review follows.

What can judicial review achieve?

Writs, injunctions and other powers

Traditionally, anyone seeking judicial review had to use the common law procedure of seeking the issue of a “prerogative writ”. A prerogative writ is formally an order from the sovereign (i.e. the King or Queen) to an inferior tribunal or court. The High Court now calls them “constitutional writs” (“writs”). There are many types of writ, but three main types of writ that are important in judicial review: mandamus, prohibition, and certiorari.

1 Mandamus is an order issued by the court against a tribunal, public body or official requiring it to perform a duty that it has failed to perform. For example, an official might be required to consider an application for a licence that it had refused to consider.

2 Prohibition is an order to a tribunal, public body or official requiring it to cease proceedings. An order for prohibition should be sought where a body has failed to exercise its jurisdiction properly or failed to provide natural justice and its proceedings are continuing.

3 Certiorari is an order setting aside a decision (technically, the record of the decision-maker is removed to the court and the court then quashes the decision and expunges it from the record). An order for certiorari would be sought where a decision has been made unlawfully and the decision should be set aside. Generally an order for certiorari is sought in combination with an order for mandamus (i.e. an order for certiorari setting aside the decision and an order for mandamus requiring the decision-maker to make the decision again).

In addition to these three writs, other court powers include the power to grant an injunction (preventing or requiring certain action) and a declaration (declaring the legal position in relation to a particular issue).

In 1977 the federal parliament enacted the ADJR Act. The ADJR Act simplified the remedies and procedures applicable to judicial review (seeReview under the Administrative Decision (Judicial Review) Act”). Most importantly, it simplified the language of judicial review. If you wish to challenge a federal action under a statute, the ADJR Act is an attractive alternative to seeking one or more of the writs because of the clear and simple procedures that the Act provides. It also provides the applicant with an opportunity to obtain a statement of reasons from the decision-maker before commencing proceedings, a right not previously provided.

The common law procedure for seeking a writ remains relevant because the ADJR Act does not apply to all administrative actions (e.g. decisions made “outside” a statute, and many decisions under the Migration Act 1958 (Cth), are not covered by the ADJR Act). Accordingly, if you wish to challenge a federal matter you need to check carefully whether it is covered by the ADJR Act. If a decision is not covered by the ADJR Act, you may need to apply under the Judiciary Act 1903 (Cth) (“Judiciary Act”) (usually s 39B). Sometimes you will need to do both.

Soon after the enactment of the ADJR Act, the Victorian Parliament enacted the Administrative Law Act 1978 (Vic) (“ALA”), which was intended to simplify the procedures applicable to review of Victorian decisions (seeReview under the Administrative Law Act”). In Victoria, a further reform abolished the writs of certiorari, prohibition and mandamus altogether and replaced them with an application for “an order in the nature of” certiorari, mandamus or prohibition under order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (“SC (GCP) Rules”). (Consequently, the language in the Victorian statutory judicial review scheme is essentially the same as under the common law.)

Although the order 56 procedure still retains the old language of certiorari, mandamus or prohibition, it is now actually in many ways more straightforward than the “simplified” procedure laid down by the ALA. Under the ALA you have to prove that the decision-maker had to accord natural justice before the court will have jurisdiction to review their decision (seeScope of the Administrative Law Act”). Also, the time limits for making an application cannot be extended under the ALA (while under order 56 the time limits can be extended).

Today, the usual options, one or more of which may be available to you if you are considering judicial review (apart from any other statutory right of review), are as follows.

In a federal matter:

Seek review under the ADJR Act if you are aggrieved by a decision or conduct that falls within the scope of the Act (to determine whether the ADJR Act applies, seeReview under the Administrative Decision (Judicial Review) Act”).

Seek the issue of a writ in the Federal Court under the Judiciary Act (usually s 39B). For the court to have jurisdiction, your case must qualify under section 39B. For example, you must be seeking a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth (you can also seek other remedies, such as a writ of certiorari or a declaration). Or there may be a Constitutional or other legislative issue. (Check the Judiciary Act for exact criteria.) If the matter you wish to challenge is not covered by the ADJR Act, or you are unsure whether or not it is covered by the ADJR Act you should rely on the Judiciary Act as well.

Seek the issue of a writ in the High Court under section 75 of the Constitution. Again, for the court to have jurisdiction, you must be seeking a writ of mandamus or prohibition or injunction against an officer of the Commonwealth. As any action brought in the High Court’s original jurisdiction would be likely to be remitted to the Federal Court under section 44(2A) of the Judiciary Act, this may not be recommended. But sometimes the only review available is in the High Court (see s 38 of the Judiciary Act regarding exclusive jurisdiction of the High Court).

In a Victorian matter:

Seek review under the ALA if you are aggrieved by a decision that falls within the scope of the Act (to determine whether the ALA applies, see below under “Review under the Administrative Law Act”).

Seek an order “in the nature of” one of the writs under order 56 of the SC (GCP) Rules.

Review under the Administrative Decision (Judicial Review) Act

Applications for review under the ADJR Act can be commenced in the Federal Court or the Federal Circuit Court.

For less complex disputes, the Federal Circuit Court may be preferable. It has the same jurisdiction as the Federal Court under the ADJR Act. It is meant to provide a simpler and more accessible “service” than the Federal Court and may provide a less expensive and quicker resolution of the dispute.

If you are unsure whether or not the ADJR Act applies, you may be able to seek review in the Federal Court and combine an application under the ADJR Act with an application for one or more of the writs under section 39B of the Judiciary Act, just to be on the safe side.

Application of the ADJR Act

To apply for review under the ADJR Act you must be a “person aggrieved” (defined in s 3(4)(a)(i), (ii)) by:

a decision (s 5);

a report or recommendation that was made under an enactment before a final decision (s 3(3));

conduct for the purpose of making a decision (s 6); and/or

failure to make a decision (s 7).

To be a person aggrieved, you must have an interest in the subject matter of the decision that is greater than a member of the public would have. It is not enough that the person feels aggrieved. The test is similar to the common law test of “standing to sue” (seeJudicial review: establishing standing to sue”).

The meaning of “decision” is quite important, as the other categories that are covered by the ADJR Act, such as conduct or a report, all relate back to a decision that is proposed to be made.

The ADJR Act does not define the word “decision”. It does, however, define the expression “the making of a decision”, but this is not an exhaustive list (s 3(2)). In order to fall within the scope of the ADJR Act, a decision must:

be administrative in character;

be made, proposed to be made, or required to be made under an enactment (see s 3(1));

not be made by the Governor-General (see s 3(1)(c)); and

not fall within one of the classes of decisions listed in schedule 1 to the ADJR Act, which are exempt from the Act (see s 3(1)(d)). Always check the list of exemptions in schedule 1 for recent updates.

A decision must be an ultimate, final, or operative determination and not a mere preliminary expression of opinion or statement (see Australian Broadcasting Tribunal v Bond [1990] HCA 33).

Conduct concerns procedural matters such as the refusal of an adjournment, calling witnesses, questioning witnesses and issuing subpoenas or the manner in which a hearing is being conducted, in the lead up to a decision that is itself capable of review (see s 3(5)).

Failure to make a decision falls into the area of remedy traditionally known as mandamus. An order can be obtained where a decision-maker is under a duty to make a decision and fails to do so. Section 7 deals with two variations of this situation:

where no time limit is imposed by the law on the decision-maker, a person can seek judicial review if nothing is done after a reasonable time, on the ground of “unreasonable delay” (s 7(1)); and

if a period of time for making the decision is specified, the ground is “failure to make the decision within that period” (s 7(2)).

Grounds of review

The grounds for review of a decision or conduct are listed in sections 5 and 6 of the ADJR Act (for an extract of section 5, seeGrounds of review: summary”). They are similar (but not identical) to the traditional common law grounds that are outlined below. One key difference is that “error of law” need not be on the face of the record under an ADJR Act review.

Orders the court can make

The court has very flexible powers as to the orders it can make. It can make an order of review quashing or setting aside the decision under review, referring the matter back to the decision-maker with directions, declaring the rights of the parties, or directing any of the parties to do or refrain from doing whatever the court considers necessary to do justice between the parties (s 16(1) ADJR Act). Nonetheless, it cannot simply step into the shoes of the decision-maker and remake their decision as the court sees fit, unless there is only one decision that can lawfully be made.

Review under the Administrative Law Act

If you wish to challenge a Victorian matter you can consider whether or not to bring proceedings under the ALA, or whether you may prefer to use the SC (GCP) Rules order 56 procedure to seek an order in the nature of one of the writs.

Scope of the Administrative Law Act

Section 3 of the ALA states:

Any person affected by a decision of a tribunal may make application (hereinafter called an application for review) to the Supreme Court for an order calling on the tribunal or the members thereof (hereinafter called an order for review) and also any party interested in maintaining the decision to show cause why the same should not be reviewed.

The three terms crucial to understanding the scope of the ALA are defined in section 2:

1 “Decision” means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision.

2 “Person affected” in relation to a decision, means a person, whether or not a party to proceedings, whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision that has been made or is to be made or ought to have been made by the tribunal.

3 Tribunal means a person or body of persons (not being a court of law or a tribunal constituted or presided over by a judge of the Supreme Court) who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice.

These terms are discussed in more detail below.

1  Decision

The above definition of “decision” makes it clear that judicial review under the ALA is not limited to decisions affecting “rights”. It is sufficient if a “privilege” or “licence” is affected. SeeApplication of the ADJR Act” for a discussion on the requirements to satisfy the definition of a “decision” as per Australian Broadcasting Tribunal v Bond [1990] HCA 33.

Inaction can be treated as a “decision” for the purpose of review.

2  Person affected

This definition provides the test to obtain standing to sue under the ALA. While some of the terms in the definition, such as “to a substantial degree” appear rather vague, very few problems have arisen in its practical application.

3  Tribunal

This definition contains the most significant limitation: the requirement that the decision-maker must accord natural justice. First, tribunals presided over by a Supreme Court judge (such as the Parole Board) cannot be challenged by the procedure (although an individual may seek review by other means). Second, the procedure can only be used to seek review of persons or bodies who act judicially “to the extent of observing one or more of the rules of natural justice”.

Not all administrative bodies must observe natural justice, or any of its rules, in their operation (although at common law they may still be amenable to review where they exceed their powers). Section 4(3) of the ALA also places strict limitations on the circumstances in which the procedure can be successfully invoked against a decision of VCAT.

Application for review

A person must apply to the Supreme Court for review not later than 30 days after notice of the decision or the giving of reasons, whichever is later. The application must be supported by evidence on affidavit and show a prima facie case for relief (s 4(1)). Even if a prima facie case is shown, the court may refuse the application “if satisfied that no matter of substantial importance is involved or that in all the circumstances such refusal will impose no substantial injustice upon the applicant” (s 4(2)).

This discretion may operate as, virtually, a second limb of the test for standing (seeJudicial review: establishing standing to sue”). Not only must a person be “affected” but they must also be able to show “substantial injustice”.

Orders the court can make

The court has a discretion to impose terms as to costs or security, or a stay of the implementation of the decision, pending the hearing (s 6). In making its final order, the court may grant any of those remedies that could have been given in proceedings for a writ, quo warranto, declaration or injunction (s 7).

Judicial review: the importance of time limits

If you do want to seek judicial review of a decision, you must be very careful to comply with any time limits. Even where it is possible under the statute to seek an extension of time, it can be difficult to persuade a court to give you an extension, and you will need to show a good reason for your delay in seeking the judicial review.

ADJR Act

Application for review of a Commonwealth decision under the ADJR Act must be placed with the court registrar within 28 days of receipt of the terms of a decision (s 11(3)). This period can be extended either by making a valid request for reasons within 28 days of the decision, or by making an application for an extension to the Federal Court or Federal Circuit Court.

Judiciary Act

There are generally no express time limits on an application under sections 39B or 75 of the Judiciary Act (although specific legislation may impose time limits); however, the court may dismiss your application if you unreasonably delay seeking judicial review.

SC (GCP) Rules

In Victoria, an application for review under order 56 of the SC (GCP) Rules must be commenced within 60 days after the date that grounds for the grant of the relief or remedy claimed arose. This time limit may only be extended in “special circumstances” (r 56.02(3)).

ALA

The time limit under the ALA is shorter; a person must apply to the Supreme Court for review not later than 30 days after notice of the decision or the giving of reasons, whichever is later. The time cannot be extended.

Judicial review: establishing standing to sue

If you wish to seek judicial review under a statutory procedure such as the ADJR Act or the ALA, or under common law, you may be required to establish that you have “standing to sue” (although there is an argument that if you are seeking one of the writs for jurisdictional error the standing requirements do not apply).

Depending on the relevant legislation and the remedies sought, standing may be accorded to “a person aggrieved”, “any interested person” or even “any person”. If you are affected by a decision because you are the subject of it, then you will probably have standing to sue. Standing is more of an issue if you are a “bystander” or a community group with some sort of broad interest in the decision-making process (such as an environmental protection group).

Attorney-General’s fiat

Where standing to sue cannot be established, representatives of the group may request the appropriate Attorney-General to initiate proceedings on their behalf. This request is known as an application for a fiat. For example, the Commonwealth Attorney-General gave a fiat to the Australian Episcopal Conference of the Roman Catholic Church to bring an application for judicial review against a Federal Court decision that state legislation refusing single women access to IVF treatment was inconsistent with the Sex Discrimination Act 1984 (Cth) (see Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16).

The Attorney-General will not necessarily grant this fiat and it is very unusual for cases to involve a fiat.

Conclusion

Someone who has an individual interest that is directly affected by administrative action can usually seek to have that action reviewed, as can someone who has a special interest in the subject matter of the action where the action affects the public at large. However, sometimes judicial review is not possible because no one has the relevant standing and a fiat cannot be obtained or is impracticable.

Grounds of judicial review

Introduction

As judicial review is not review on the merits, the grounds for review are limited to particular recognised grounds. It is useful to rely on the ADJR Act’s grounds for a summary. These grounds essentially describe the way in which a decision-maker has stepped outside the boundary of lawfulness (see alsoJudicial review vs merits review explained”).

If you are seeking judicial review under the ADJR Act, you need to refer to the specific grounds listed in sections 5 and 6 of the ADJR Act (see alsoGrounds of review: summary”).

No jurisdiction

The question of whether an authority has jurisdiction to make a decision or perform an action is of particular importance in judicial review. The power of an authority or a decision-maker is usually confined to a strictly defined area by its governing statute, because it is parliament through the statute that gives them that power.

The question of whether or not a ground of review constitutes a “jurisdictional error” can have particular significance if the Act under which the decision was made contains a “privative clause” that attempts to exclude judicial review. The High Court has held that privative clauses are not always effective to exclude judicial review for jurisdictional errors. Further, most errors of an administrative tribunal will be jurisdictional if they are of any substance. There is caselaw on this (see Administrative Power and the Law (details in “Further reading”) for further discussion on this topic).

Error of law

Error of law is a common judicial review ground. It occurs when the decision-maker has misunderstood or misapplied a statute, for example, by applying the wrong criteria, or asking the wrong question. In practice this often occurs because the decision-maker has failed to read or understand the statute. In addition, where policy exists, decision-makers can fail to realise its limitations, sometimes believing that the policy empowers them, rather than the law.

Improper exercise of power

A court will interfere with an administrative decision or question if it can be shown to amount to an improper exercise of power. There is a large amount of case law on the various grounds for such an attack.

Following is a summary of these grounds. If you think one of these grounds may be available you should investigate the applicable law further.

Relevant and irrelevant considerations

If it can be shown that a government body has failed to take into account relevant factors or has taken into account factors not relevant to the matter, the court can intervene. In order to decide what is relevant, the reasons given for the decision or action must be assessed against the governing Act. In other words, the Act will often determine the relevant and irrelevant factors.

A relevant consideration is one that the court would say must be taken into account. An irrelevant consideration is one that must not be taken into account (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30).

Improper purpose

A decision or action, though on its face proper under the law, may be designed to achieve a purpose that is beyond the responsibilities of the government body. For example, an Act may permit a local council to close off a street for road repairs. On the face of it, the council may decide to do this, but it might be that the real object of the closure was to create a permanent traffic-free area in the city. This ground will only succeed if it is proved that the government body would not have acted as it did but for the improper purpose. However, it is usually difficult to prove that a decision-maker acted out of an improper purpose.

Unreasonableness

Another ground of judicial review is that an action or decision was so unreasonable that no reasonable body would have reached it. This is often called “manifest unreasonableness”, or “Wednesbury unreasonableness” (after an old English case: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). This is a difficult ground; it is not enough to convince the judge that they would have made the decision differently, it must be shown that the decision was an absurd or irrational one. A decision-maker may have acted unreasonably because highly significant factors were not given proper weight or because their opinion could not have been reasonably formed on the information available (Re Minister for Immigration and Multicultural Affairs; Ex parte Eshetu [1999] HCA 21). This ground of review has given rise to a number of recent cases, but the general principle remains that usually this ground is a last resort. If it is clear that the decision-maker erred, it would usually be evident as another ground of review, for example, as an error of law or failure to take account of a relevant consideration.

Bad faith

Another ground of attack on administrative actions that appear on their face to be proper is that of “bad faith”. Here, it is necessary to show the decision was affected by corruption, bribery, dishonesty or similar malpractice. The great difficulty, of course, is to obtain evidence to prove what is considered by the courts to be a very grave allegation against the conduct of government.

Uncertainty

A ground that is rarely available for attacking an administrative action is that it was too uncertain to be meaningful (see King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184). This is really a question of how vaguely the administration expressed its decision: is the decision so vague that it gives no guidance for people to act on it?

Improper delegation

The usual cases where improper delegation has been made out are those where a body responsible for a decision decided to let its judgment be formed by a body over which it had no control. For example, it may be improper delegation if the secretary of a department left a matter for which they were responsible to an independent agency to decide. If guidelines had been laid down, however, and the secretary had only treated the independent agency’s views as recommendatory, there may be no ground for judicial review.

Divesting or dictation

A process may be declared legally improper because the decision-maker has divested responsibility or acted under dictation. “Divesting” happens where a decision-maker simply gives away authority in a matter. For instance, for a Comptroller-General of Customs to declare that in future all determinations about prohibited imports would be made by a drug foundation, would be an improper divesting of responsibilities.

The reverse of this situation is “dictation”. Here, the body responsible for making a decision allows itself to be dictated to by some other entity in the community, normally a person superior in status to that body. A famous case where dictation was successfully shown involved the actions of the Director-General of Civil Aviation in 1965. He refused import permits sought by a company wishing to enter the aviation business, on the basis of a ministerial directive.

Inflexible policy

Finally, if an administrative body applies predetermined guidelines or policy criteria without regard to the merits of the specific situation, a ground for review may exist. This error is common in practice. However, it is not always easy to identify, and it is often easier to articulate the error as an error of law or some other error. This is because reliance on the policy will usually lead to misinterpreting the law. Reliance on policy can also result in a failure on the part of the decision-maker to exercise their discretion. A decision-making body that is required to consider each case on its individual merits must not simply apply rigid policy guidelines in place of its discretion.

One way to convince a court that a case has not been given any (however fleeting) special attention is to demonstrate that no case of the kind in issue has been successful over a long period of time. In one English case, it was necessary to show that no case of the kind in issue had been decided in favour of an applicant for a period of three years, though in theory a favourable decision could have been made at any time in that period. Finding evidence along these lines might not be easy.

Methods or procedures adopted

In challenging an administrator’s decision or action, a citizen can say that the administrative body or official did not follow proper procedures in reaching its conclusion. Another way to describe this is to say that an “essential precondition” was not fulfilled.

Anyone who wishes to attack an administrative decision should look at the Act permitting that decision to see what procedures were required. Ask the following questions.

1 What official or body was required to take the action? Did they? For example, were they required to sign any letter or order?

2 Were they required to give people a hearing before reaching its conclusion? Did they?

3 Were they required to place advertisements in local newspapers or give some other type of notice to, for example, the local community before taking action? Did they?

4 Were any time periods built into the process as to, for example, the period of public notice; period of receipt of objections; period for appeal against the decision before any action under the decision could be taken? Were these complied with?

5 Were they required to consult with any outside bodies or individuals before reaching their decision? Did they?

These are examples of possible questions. If there has been any irregularity in following the terms of the Act, you may have a basis for obtaining judicial review of that decision. (Note that some of the above questions may also indicate that a breach of natural justice had occurred.)

Natural justice

There are two key components to “natural justice”:

1 being given a reasonable opportunity to be heard (the “fair hearing rule”); and

2 having a decision made by a decision-maker who is free from actual bias or the appearance of bias (the “bias rule”).

The principles of natural justice (otherwise described as “procedural fairness”), apply at first glance to all administrative decision-making situations. However, they only bind administrative bodies where a judgment is being made that may have the effect of interfering with an interest of the individual. They do not apply when general policy, for example, is being determined.

The courts sometimes interpret the notion of interest so as to include “legitimate expectations”. An individual may have a legitimate expectation where they satisfy express statutory criteria, or where an assurance has been given or where a regular course of conduct has been followed. The High Court decided that the ratification by Australia of the United Nations’ Convention on the Rights of the Child could serve as the basis of a legitimate expectation that decision-makers would act in conformity with the Convention (Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20). However, the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 doubted the reach of the Teoh case (above) and focused on concepts such as real unfairness. Generally, while legitimate expectation grounds can be embedded in natural justice grounds, (in the sense that a person may have an entitlement to natural justice) legitimate expectation grounds should be treated with care.

1  Fair hearing rule

If a situation is one in which natural justice should be given, the next question is what procedures should have been followed so as to accord natural justice. Legislative procedures may overlap with common law obligations of natural justice. To start with, read the Act governing the body or official responsible for the decision. Public authorities making statutory decisions are often governed by a strict procedure laid down by an Act. These Acts usually address questions such as:

1 How much notice must be given of a hearing before the authority holds the hearing?

2 Can a person appearing before the authority have legal representation?

3 How many persons must sit on the authority?

4 Are the proceedings governed by strict rules about the presentation of evidence?

5 Is a party entitled to cross-examine?

The common law rules of natural justice will usually supplement statutory procedures for a fair process. Where nothing is said in the Act, the presumption is that a person with an interest in the decision will be given an opportunity to be heard before an adverse decision is made, regardless of what statutory hearing procedures might also exist.

The natural justice arguments that most often lead to a finding in favour of the citizen involve failure to give:

adequate notice of a hearing;

a person a sufficient opportunity to present a case; or

a person notice of something that is unknown or “not obvious” to them.

(See Administrative Power and the Law (details in “Further reading”) for further discussion on this topic.)

2  No bias rule

The other rule of natural justice is that the proceedings should be free from bias or the appearance of bias.

Under the common law, the general standard used by the courts is to ask whether a reasonable person would have held that the decision made by the body was not free from bias. A lot depends on the status of the tribunal, the significance of the decision-making body and the extent of the evidence of bias.

It is easiest to show bias where a decision-maker has a direct pecuniary interest in the outcome of a matter, for example, where the decision-maker is a major shareholder of a company that will be affected by the decision. However, simply holding shares in a company affected by the decision may not be sufficient if, for example, the shares are in a large publicly listed company and the decision is unlikely to affect the share price (see Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd [1999] VSCA 35).

There are other situations where a person may be biased. The person may be a relative of one of the parties, or have had a past professional association with one of the parties, or in the past expressed hostility to views being put by one of the parties. There are no easy answers as to whether these situations will be sufficient to amount to bias. It is often a question of degree.

Further reading

Aronsen, M and Groves, M 2013, Judicial Review of Administrative Action, 5th edn, Lawbook Co., Sydney.

McKenzie, F 2007, Administrative Power and the Law: Australian Law in Practice (available at www.adminlaw.com.au or fionamckenzie@vicbar.com.au).

Both titles are available from the Law Institute Bookshop at www.liv.asn.au.