The Administrative Decisions (Judicial Review) Act

There are now two courses open to any person wishing to obtain a judicial review of a Commonwealth administrative decision:

• application for review to the Federal Court of Australia under the ADJR Act and/or an application to that court under s.39B of the Judiciary Act 1903 (Cth); and
• application for declaration, injunction or prerogative writ in the High Court (the High Court would generally remit the matter for hearing in the Federal Court).

Taking the matter to the Federal Court is an attractive option because of the clear and simple procedures which the ADJR Act provides. It also provides the applicant with an opportunity to obtain a statement from the decision-maker regarding the reasons for its decision, before commencing proceedings – a right not previously provided.

Not all Commonwealth decisions may be reviewed by the Federal Court. Schedule 1 to the ADJR Act sets out the classes of decisions exempt from jurisdiction under that Act. From the view point of individual rights, the most important exemptions are:

• provisions under the Migration Act 1954 (Cth) prevent resort to ADJR by a privative clause except for some peripheral matters (although matters may still be appealed where there has been a jurisdictional error permitting appeals to be heard by the Federal Court). See further IMMIGRATION and REFUGEES ;

• decisions under the Australian Security Intelligence Organisation Act, Telecommunications (Interception) Act 1979 (Cth), and Telephonic Communications (Interception) Act 1960 (Cth); and

• decisions under certain passport regulations.

Other exemptions relate to the federal industrial relations system, the taxation assessment and appeals system, foreign investment and the National Companies and Securities regulation system. As the list of exemptions is likely to change from time to time, it should be checked before assuming that a commonwealth decision is reviewable under the ADJR Act. If not available, it is possible that the decision may be reviewable under s.39B of the Judiciary Act. The majority of the cases would fall within the ADJR Act and the following paragraphs are concerned only with that Act.

DECISIONS WHICH MAY BE CHALLENGED

Any decision to which the ADJR Act applies may be challenged. This is defined as a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not), under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions that are exempted.

The condition that the decision must be under an enactment is an important limitation. It is necessary to demonstrate that the decision arises directly under specific legislation. Examples of decision that would not be under an enactment would include the following:

• a decision made in the exercise of the general Crown prerogative; and
• decisions made by bodies which have been established under specific legislation and which are too remote to be characterized as being under that particular enactment (an example might be a decision by a University to enter into a contract of employment in particular terms with a member of its academic staff). A report or recommendation can be challenged where it is provided in the legislation that such a report or recommendation is to be made before a final decision.

STANDING TO MAKE APPLICATION

Under the ADJR Act any person who is aggrieved by a decision can make application to the Federal Court. This includes the person against whom the decision was taken and may also include other parties who are able to show that their interests are adversely affected. No reference however is made to the possibility of community groups making application to the court where they have some interest in the decision, such as environmental groups. See further ENVIRONMENT AND PLANNING.

MATTERS FOR REVIEW

A person aggrieved may apply for review of:

• a decision (including a report or recommendation within the meaning of ss.3(3) and (5));
• conduct for the purpose of making a decision (s.6); and
• failure to make a decision (s.7).

The procedure is simply described as an application for an order of review.

GROUNDS OF REVIEW

The grounds of review under the Act are stated in similar terms to the traditional common law grounds referred to earlier. Section 5 sets out the grounds:

• that a breach of the rules of natural justice has occurred in connection with the making
of a decision;
• that the procedures that by law were required to be observed in connection with the making of the decision were not observed;
• that the person who purported to make the decision did not have jurisdiction to make the decision;
• that the decision was not authorised by the Act under which it was made;
• that the decision involved an error of law, whether or not the error appears on the record of the decision;
• that the decision was induced or affected by fraud;
• that there was no evidence or other material to justify the making of the decision; and
• that the decision was otherwise contrary to law.

The error of law ground is wider than the existing common law ground. It no longer matters that the error does not appear on the face of the record.

To establish that a decision should be reviewed because there is no evidence, it is necessary to show that:

• the person who made the decision was required by law to reach that decision only if a particular matter was established and there was no evidence or other material (including the facts of which the decision-maker was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

• the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist (s.5(3)).

The otherwise contrary to law ground is probably included as a fail-safe to allow the court to make a favourable ruling in deserving cases not fitting within the main categories.

IMPROPER EXERCISE OF POWER

This ground for review is the subject of detailed definition in section 5(2) of the ADJR Act as follows:

• taking an irrelevant consideration into account in the exercise of a power;
• failing to take a relevant consideration into account in the exercise of a power;
• an exercise of a power for a purpose other than a purpose for which the power is conferred;
• an exercise of a discretionary power in bad faith;
• an exercise of a discretionary power at the direction of another person;
• an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
• an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
• an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
• any other exercise of a power in a way that constitutes abuse of the power (s.5(2)).

NATURAL JUSTICE

The phrase natural justice is often misunderstood and misused. It is also often referred to as procedural fairness. The principles of natural justice or procedural fairness embody two rules, namely the fair hearing rule (or the right to be heard) and the rule against bias. It is important to realise that this ground of review in the ADJR Act does not of itself require a decision-maker to observe natural justice. But if, according to the common law rules, the decision-maker is already required to observe those rules, any failure to do so will provide a ground of review in the Federal Court under the ADJR Act.

REVIEW OF CONDUCT

The grounds of review of an administrator’s conduct for the purpose of making a decision to which the Act applies are set out in section 6. The grounds for review are identical to those listed under ‘Grounds of review’ and ‘Improper exercise of power’ above.

REVIEW OF FAILURE TO MAKE DECISIONS

An order can be obtained where a decision-maker is under a duty to make a decision and fails to do so. In section 7 two variations of this situation are dealt with:

• where no time limit is imposed by 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; and
• if a period of time for making the decision is specified, the ground is failure to make the decision within that period.

ORDERS THAT CAN BE MADE BY THE FEDERAL COURT

The Federal Court has flexible powers as to the orders it can make. It can make orders:

• 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; however, the Court cannot simply step into the shoes of the decision-maker and remake the decision as the court sees fit, unless there is only one decision which can lawfully be made.

TIME LIMITS

Anyone wishing to obtain a review of a Commonwealth decision under the Act should note that an application must be filed with the court registrar within 28 days of the 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 to the Federal Court for extension of time for filing the application.