Judicial review involves a court testing the legality of a decision and whether the official had power to make it, and made it fairly, without error of law or failure to consider something relevant. The courts do not review matters on its merits. 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. 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).

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. Judicial review is a complicated and specialist area of law.

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

  • •determine what remedies you seek;

  • •make sure you comply with any applicable time limits;

  • •make sure you have standing to challenge the action; and

  • •select one or more grounds of review.

Grounds of Judicial Review

The Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act”) (s 5) 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:

    (a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

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

    (c) that the person who purported to make the decision did not have jurisdiction to make the decision;

    (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

    (e) 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;

    (f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

    (g) that the decision was induced or affected by fraud;

    (h) that there was no evidence or other material to justify the making of the decision;

    (i) 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:

(a) taking an irrelevant consideration into account in the exercise of a power;

(b) failing to take a relevant consideration into account in the exercise of a power;

(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d) an exercise of a discretionary power in bad faith;

(e) an exercise of a personal discretionary power at the direction or behest of another person;

(f) an 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;

(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain;

(i) any other exercise of a power in a way that constitutes abuse of the power.

What is the time limit?

Generally, you have 35 days. If you are out of time, this period can be extended by making a valid request within 28 days of the decision, or by making an application for an extension to the Federal Court or Federal Circuit Court.

who can sue

If you wish to seek judicial review under a statutory procedure (e.g. the ADJR Act or ALA), or under common law, you may need 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.

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.