What Is Judicial Review?

Judicial review – when can you challenge a government decision

You may have heard the term ‘judicial review’ in the media, particularly in relation to high-profile government decisions. One well-known Australian example began with a 2012 radio broadcast. Two Sydney presenters recorded and aired a telephone call with staff at the London hospital where the Duchess of Cambridge was a patient, without their consent. One of the nurses involved, Jacintha Saldanha, died days later.

What followed in the courts, though, had nothing to do with the broadcast itself. It concerned whether the media regulator had the legal authority to make the finding it made. That question went all the way to the High Court in ACMA v Today FM (Sydney) Pty Ltd [2015] HCA 7, and it is a useful illustration of what judicial review does and does not do.

So what is judicial review, and why does it matter?

What is judicial review

If you’re not entirely sure what judicial review means, you’re not alone. It’s a technical legal term about a technical legal process. But it’s also an important part of how we keep the Australian legal system fair.

So, what is judicial review? Judicial review happens after a government department, regulator, tribunal or other public authority has already made a decision on a matter before it. It’s the process where a court examines how the decision was made to ensure that public powers are exercised lawfully and fairly. It doesn’t assess the merits of the decision at all, but will consider things like procedural fairness, whether the decision-maker acted within jurisdiction and whether relevant legal limits were observed.

The Today FM case provides a useful example of judicial review in practice. The decision being challenged wasn’t the prank call itself, but a decision made by the Australian Communications and Media Authority (ACMA), the regulator responsible for overseeing radio and television broadcasters.

After investigating the broadcast, ACMA concluded that Today FM had committed an offence by secretly recording and airing the conversation without the necessary consent. It then found the station had breached its broadcasting licence and began enforcement action.

Today FM applied for judicial review, arguing that ACMA didn’t have the legal authority to determine whether a criminal offence had been committed. Instead, it argued that only a court could make that finding. The High Court wasn’t asked to decide whether the station had done the wrong thing. Rather, it was asked to determine whether ACMA had acted within the powers given to it by law. Ultimately, the High Court held that ACMA did have the power to make this decision.

As we can see, judicial review considers whether the decision-maker acted within their legal authority. 

Government accountability

Government departments and public authorities make thousands of decisions every day that affect Australians. These decisions can relate to visas, taxation, social security, environmental approvals, licences and many other aspects of everyday life. Judicial review helps ensure that these powers are exercised according to the law.

This is an important safeguard in Australia’s legal system. It promotes transparency, accountability and public confidence by ensuring that government decision-makers remain subject to legal oversight.

At the Commonwealth level, judicial review has both a constitutional and statutory foundation. Section 75 of the Commonwealth of Australia Constitution Act gives the High Court original jurisdiction in certain matters involving officers of the Commonwealth. The Administrative Decisions (Judicial Review) Act 1977 (Cth) provides a statutory process for reviewing many Commonwealth administrative decisions.

Judicial review also exists under state and territory laws, which provide similar legal safeguards for decisions made by state and local government decision-makers.

Grounds for judicial review

Not every government decision can be challenged under judicial review, and it’s certainly not as easy as disagreeing with the outcome. In order to succeed in getting a judicial review, the applicant must show that there was a legal problem with the way the decision was made. 

The Administrative Decisions (Judicial Review) Act 1977 (Cth) sets out a number of situations where a person can ask the Federal Court or the Federal Circuit and Family Court of Australia for a review of a decision. Under section 5(1), these include grounds such as where:

• A breach of natural justice occurred
• Decision-making procedures weren’t observed
• The decision-maker didn’t have the jurisdiction to make the decision
• The decision wasn’t authorised by the Act
• The decision was an improper exercise of the Act
• The decision involved an error of law
• The decision was induced or affected by fraud
• There was no evidence or other material to justify the decision
• The decision was otherwise contrary to law

While these grounds may appear technical, they all serve the same purpose: ensuring that public officials and government bodies stay within the powers Parliament has given them. If a decision has been made unlawfully, the court may set it aside and require it to be reconsidered according to the law.

What do these grounds mean in practice?

Many of these grounds overlap in practice, but they generally arise where a decision-maker hasn’t followed the legal requirements for making a decision.

For example, a government department may fail to give someone an opportunity to respond before making a decision that affects them, resulting in a breach of natural justice. A decision-maker may misunderstand the legislation they are applying and make an error of law. They may also base a decision on irrelevant information, ignore matters they were legally required to consider or make a decision they had no legal authority to make.

In each of these situations, the issue isn’t whether the outcome was fair or even correct. It’s whether the decision was made according to the law. If it wasn’t, a court may set the decision aside and require the matter to be decided again through the proper legal process.

How to apply for judicial review

If you believe a government decision was made unlawfully, you may be able to apply to the Federal Court for judicial review. However, before you can bring an application, you’ll need to show that you have ‘standing’.

1. Demonstrate standing

Standing means you have a sufficient interest in the decision to ask the Court to review it. In most cases, this means the decision has directly affected your rights, interests or circumstances. In some situations, standing can also be extended to people or organisations who can demonstrate a special interest in the subject matter even where they aren’t personally affected.

2. Lodge an approved application

If you have standing, you’ll then generally need to lodge the Court’s approved application form (Form 66), together with supporting documents, a copy of the decision being challenged and any statement of reasons that has been provided.

3. If applicable, request a written statement

Under section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), a person may request a written statement of reasons from the original decision-maker. This statement must generally be provided within 28 days and can be an important document when assessing whether there are grounds for judicial review.

What happens if a judicial review is successful?

If the court finds that a decision was made unlawfully, it doesn’t automatically replace the original decision with a new one. Instead, the court has the discretion to decide what remedy is appropriate in the circumstances. 

Under Section 16 of the Act, the Federal Court or the Federal Circuit and Family Court of Australia may

• set aside all or part of the decision
• send the matter back to the original decision-maker to be reconsidered subject to the court’s directions
• make a declaration about the legal rights of the parties
• order a person to take, or refrain from taking, a particular action

The court can also order a decision-maker to make a decision if they have a legal duty to do so but have failed to act within the required timeframe.

In many cases, a successful judicial review doesn’t determine the final outcome of the matter. Instead, it ensures the decision is made again through a lawful and fair process.

Judicial review vs merits review

Judicial review isn’t the only way to challenge a government decision. In some situations, you may instead be entitled to seek a merits review. 

In contrast to a judicial review, a merits review does actually examine the decision itself. At the Commonwealth level, these reviews are generally conducted by the Administrative Review Tribunal (ART). It reviews decisions made by government agencies, departments and ministers.

In merit reviews, ART effectively ‘steps into the shoes’ of the original decision maker, considers all of the available evidence and then makes a fresh decision that it believes is the correct or preferable outcome. 

The right option depends on what you’re trying to achieve. Are you arguing that the decision-maker got the law or process wrong? Or do you believe they simply reached the wrong decision? The answer to that question will often determine whether judicial review or merits review is the appropriate path. 

[H2]Reach out for legal support

If you’ve been affected by a Commonwealth decision that you believe was incorrect or wasn’t made lawfully, get in touch. 

Armstrong Legal can provide expert guidance should you wish to undertake a judicial or merits review. We can arm you with knowledge of your rights and responsibilities, as well as the realities of the process.

Contact Armstrong Legal today to discuss your case. We’re always here to help.