What Is Judicial Review?

Judicial review is the review by a court of a decision made by a public authority, to ensure the decision is legal, reasonable and fair. Judicial review seeks to determine whether an administrative decision was properly made by focusing on the law, not on the merits of the decision. A court will need to consider whether the decision-making process was consistent with natural justice, whether factors considered by the decision-maker were correct under the legislation, and whether the decision-maker acted within their powers.

Judicial review can be carried out at a state level but this article will focus on judicial review of Commonwealth decisions. Section 75 of the Australian Constitution guarantees some form of judicial review of administrative decisions. The Administrative Decisions Judicial Review Act 1977 specifies an appeal for a judicial review can be made to the Federal Court.

Grounds for judicial review

Under Section 5(1) of the Act, 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.

The grounds can be grouped into procedural and substantive errors.

Procedural errors relate to the procedure used to reach the decision. The review will examine whether there has been a denial of natural justice via a failure to hear “the other side”, the existence of bias, or legitimate expectations not being met.

Substantive errors relate to the substance of the decision. These include failing to take into account relevant considerations, taking into account irrelevant considerations, having no evidence for a decision, applying a policy inflexibly, and exercising a power improperly.

Substantive errors are used to assess whether a decision is unreasonable. For a decision to be deemed unreasonable, it needs to be “so unreasonable that no reasonable authority could ever come to it”.

How to apply for a judicial review

To apply for a judicial review, a Form 66 must be lodged with the Federal Court, with an affidavit or statement of claim, a copy of the original decision, and any statement of reasons for the decision that was given. Under Section 13 of the Act, a person can apply to a decision-maker for a statement of reasons for a decision, and the statement must be provided within 28 days.

An applicant in a judicial review must show they have standing. Standing is sufficient interest in a matter that is in dispute to entitle them to bring proceedings before a court. A person has standing if they can show they are personally affected by a decision, but standing can also be extended to people or organisations who can demonstrate a special interest in the subject matter even where they are not personally affected.

Remedies

If the court is satisfied the ground of review has been established, it has discretion whether or not to grant a remedy. The error must be material to the decision-making process.

Under Section 16 of the Act, the Federal Court can make an order that:

• a decision be set aside or quashed;
• a matter be referred back to the decision-maker for further consideration;
• declares the rights of the parties;
• directs any of the parties to refrain from an action.

The court can also make an order for a decision to be made where a person has a duty to make a decision within a certain time period and the person has failed to do so.

Merits review

A merits review can also be available for administrative decisions. A merits review body will “stand in the shoes” of the original decision-maker, and make a fresh decision using all the evidence available to it. The aim is to ensure the “correct and preferable” decision is made. Merits reviews are carried out by the Administrative Appeals Tribunal. In contrast to a merits review, a judicial review is concerned only with ensuring the decision was properly made within the legal limits of the decision maker’s power.