What Are The Grounds For Judicial Review?
Judicial review occurs when a party seeks review by a court of a decision made by a government decision-maker. The court will consider whether the decision was made according to law or whether there was an error made by the decision-maker. The grounds on which judicial review can be sought are listed in the Administrative Decisions (Judicial Review) Act 1977.
On what grounds can a person seek judicial review?
Under Section 5(1) a person can apply for a review of a decision on the grounds that:
- a breach of natural justice occurred;
- decision-making procedures were not observed;
- the decision-maker did not have the jurisdiction to make the decision;
- the decision was not authorised by the Act;
- the decision was an improper exercise of the Act;
- there was an error of law;
- the decision was induced or affected by fraud;
- there was no evidence to justify the decision;
- the decision was otherwise contrary to law.
Section 5(2) defines an improper exercise of power as:
- taking into account irrelevant considerations;
- disregarding relevant considerations;
- exercising a power for an unauthorised purpose;
- exercising a discretionary power in in bad faith;
- exercising a discretionary power at the direction or on behalf of another person;
- exercising a power by applying a rule or policy without considering the merits of the case;
- exercising a power in a way that is so unreasonable that no reasonable person could have exercised it that way;
- exercising a power that produces an uncertain result;
- any other exercising of a power that constitutes abuse of the power.
Commonly challenged grounds
When examining grounds for judicial review, there are several typical areas where errors are found in decision-making.
The key components of natural justice are the right to a fair hearing and the rule against bias. The right to a fair hearing involves a person being given adequate notice of a hearing, a sufficient opportunity to present a case, and notice of something unknown or not obvious to them. Mason J stated the relevant principles in Kioa v West:
“when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it … The reference to ‘right or interest’ in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.”
The rule against bias requires that decisions be made impartially, following the principle that justice must not only be done but be seen to be done. Actual bias is difficult to prove because it requires showing the decision-maker has closed their mind. Apparent bias is more commonly alleged and easier to prove because it involves demonstrating the appearance of bias. The test is whether a “fair-minded and informed observer” would conclude there was a “real possibility” the decision was biased.
Linked to natural justice is the notice of legitimate expectation, where a party expects a body to act in a certain way, whether because of express statements in law or because of past conduct.
Relevant and irrelevant considerations
Among the grounds for judicial review, these two are the most commonly challenged. The court can intervene if it can be shown a decision-maker failed to take into account relevant considerations or took into account irrelevant considerations. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Justice Mason stated the first ground can be made out only if the decision-maker fails to consider a factor they were bound to consider. He also stated that what the decision-maker is bound to consider is determined by the Act, and if the factors are not expressly stated, then they must be determined from the subject matter, scope and purpose of the Act.
This involves a two-step test: determining the purpose of the power authorised under the Act, and the purpose for which the power was actually exercised. A challenge on this ground will succeed only if it is proved that the decision-maker would not have acted as they did but for the improper purpose.
This occurs when a body acts beyond its power or authority by making a decision it has no power to make. This also occurs when a decision-maker allows a decision to be made by someone over whom they have no control, via improper delegation. This is a narrow ground because government administration requires much decision-making to be passed to subordinate officers.
Error of law
This occurs when there has been an error in construction or interpretation of the law, such as when decision-maker applies the wrong criteria. A decision does not involve an error of law unless the decision would have been different without it.
Inflexible application of policy
This occurs when a decision-maker applies policy or guidelines without regard for the merits of the situation, and so, fails to exercise discretion.
For advice on grounds for judicial review, or for advice or representation in any legal matter, please contact Armstrong Legal.
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