Fitzroy Legal Service Logo

GROUNDS OF REVIEW - SUMMARY

Fiona L. McKenzie, Barrister

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 will be looking 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 the 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, see: "Grounds of review", below).

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 Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:
    1. that a breach of the rules of natural justice occurred in connection with the making of the decision;
    2. that procedures that were required by law to be observed in connection with the making of the decision were not observed;
    3. that the person who purported to make the decision did not have jurisdiction to make the decision;
    4. that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
    5. that 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;
    6. that the decision involved an error of law, whether or not the error appears on the record of the decision;
    7. that the decision was induced or affected by fraud;
    8. that there was no evidence or other material to justify the making of the decision;
    9. that 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:
    1. taking an irrelevant consideration into account in the exercise of a power;
    2. failing to take a relevant consideration into account in the exercise of a power;
    3. an exercise of a power for a purpose other than a purpose for which the power is conferred;
    4. an exercise of a discretionary power in bad faith;
    5. an exercise of a personal discretionary power at the direction or behest of another person;
    6. an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
    7. an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
    8. an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
    9. any 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 provides for further grounds to add to a judicial review action.

Further explanation of the grounds of review follows.

PrevPrev 
 NextNext
NATURE OF JUDICIAL REVIEW 
 REMEDIES IN JUDICIAL REVIEW


Table of Contents Table of Contents
Legislation and Cases Legislation and Cases
Search The Law Handbook Search The Law Handbook
Produce a printable version of this pagePrintable Version
Glossary of Legal Terms Glossary of Legal Terms

GROUNDS OF REVIEW - SUMMARY :: Last updated: Thu Jul 1st 2010