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Grounds of review

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 also “Judicial review vs merits review explained”, in Chapter 21.1: Administrative Law).

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 (also see “Grounds of review – summary”, above).

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”, below) 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 “Wednesburyunreasonableness” (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 speaking, while in a sense 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”, below) 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 (Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd [1999] 2 VR 573).

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.

Grounds of review :: Last updated: Sun Jun 30th 2013