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Chapter name. JUDICIAL REVIEW

Judicial Review is a way in which an administrative decision can be reviewed in a court.

On judicial review a court does not decide whether the decision was “right”, but only whether it was “lawful”.  If it was not lawful the court may set aside the decision and remit the matter back to a decision maker. 

Before conducting judicial review consider what remedies you seek, whether you comply with time limits, that you have “standing to sue”, and that one or more “grounds of review” can be argued in relation to the decision

Grounds of Judicial Review

The most common grounds are:

  • a breach of natural justice;
  • an error of law; or
  • failure to take into account a relevant consideration.

See section 5 Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for a list of most of the common law grounds of judicial review

Remedies in Judicial Review

Prerogative or Constitutional Writ (Federal matter)

A prerogative writ or constitutional writ is the order the court on judicial review under the Judiciary Act or the Constitution may make to the inferior tribunal or court. Three main types of writ are relevant to judicial review:

  1. Mandamus is an order that the court can issue against a tribunal, public body or official to make them perform a duty that they have failed to perform.
  2. Prohibition is an order to a tribunal, public body or official making them cease proceedings.
  3. Certiorari is an order setting aside a decision.

Under the ADJR Act the remedies are plain English versions of these writs

Federal Matter

In a Federal matter you may seek review under the ADJR Act or the Judiciary Act in the Federal Court or the Federal Magistrates Court; or in the High Court under section 75 of the Constitution.

To apply for review under the ADJR Act you must be a person aggrieved by a decision, report or recommendation, or conduct, or failure to make a decision, of an administrative character under an enactment

State Matter

In a State matter you may seek review under the Administrative Law Act 1978 (Vic) (ALA) or Order 56 Supreme Court Rules (Supreme Court (General Civil Procedure) Rules).  Available remedies are versions of the prerogative writs.  There are three key terms in understanding the scope of the ALA which are defined in s2: decision, person affected, and tribunal (i.e. the decision maker).

The time limit for applying under the ALA cannot be extended, while the time limit in the SC (GCP) rules can be extended

Grounds of review

Grounds of review emanate from the common law and are summarised in the ADJR Act.

Key grounds are:

  • The person or entity making the decision did not have the power or authority jurisdiction to make it.
  • There was an error of law in that the decision-maker misunderstood or misapplied a statute.
  • Relevant factors were not taken into account.
  • Irrelevant factors were taken into account.
  • The decision was made for an improper purpose, or in bad faith.
  • The decision was so unreasonable that no reasonable decision maker could have made it.
  • The decision-maker acted under dictation.
  • The decision-maker applied a policy inflexibly.
  • Essential preconditions were not followed.
  • The decision was made in breach of natural justice i.e. there was not a fair hearing by a decision-maker who was free from bias.

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 provides for further grounds to add to a judicial review action.

Natural Justice

Natural justice is sometimes called “procedural fairness”.  It can incorporate the concept of “legitimate expectations”.  It consists of the hearing rule and the bias rule.  In terms of the hearing rule, a decision-maker may not have given a fair hearing to a person affected by a decision if they have not given adequate notice of the hearing, or a sufficient opportunity to present a case, or notice of something that is unknown or “not obvious” to the person affected.

For more information on this subject refer to The Law Handbook chapter 21.2 Judicial Review

Last updated: Tue Apr 1st 2014