As judicial review is not review on the merits, the grounds for review are limited to particular recognised grounds. It is useful to rely on the ADJR Act’s grounds for a summary. These grounds essentially describe the way in which a decision-maker has stepped outside the boundary of lawfulness (see also “Judicial review vs merits review explained”, in Chapter 21.1: Administrative Law). If you are seeking judicial review under the ADJR Act, you need to refer to the specific grounds listed in sections 5 and 6 of the ADJR Act (also see “Grounds of review – summary”, above). No jurisdiction The question of whether an authority has jurisdiction to make a decision or perform an action is of particular importance in judicial review. The power of an authority or a decision-maker is usually confined to a strictly defined area by its governing statute, because it is parliament through the statute that gives them that power. The question of whether or not a ground of review constitutes a “jurisdictional error” can have particular significance if the Act under which the decision was made contains a “privative clause” that attempts to exclude judicial review. The High Court has held that privative clauses are not always effective to exclude judicial review for jurisdictional errors. Further, most errors of an administrative tribunal will be jurisdictional if they are of any substance. There is caselaw on this (see Administrative Power and the Law (details in “Further reading”, below) for further discussion on this topic). Error of law Error of law is a common judicial review ground. It occurs when the decision-maker has misunderstood or misapplied a statute, for example, by applying the wrong criteria, or asking the wrong question. In practice this often occurs because the decision-maker has failed to read or understand the statute. In addition, where policy exists, decision-makers can fail to realise its limitations, sometimes believing that the policy empowers them, rather than the law. Improper exercise of power A court will interfere with an administrative decision or question if it can be shown to amount to an improper exercise of power. There is a large amount of case law on the various grounds for such an attack. Following is a summary of these grounds. If you think one of these grounds may be available you should investigate the applicable law further. Relevant and irrelevant considerations If it can be shown that a government body has failed to take into account relevant factors or has taken into account factors not relevant to the matter, the court can intervene. In order to decide what is relevant, the reasons given for the decision or action must be assessed against the governing Act. In other words, the Act will often determine the relevant and irrelevant factors. A relevant consideration is one that the court would say must be taken into account. An irrelevant consideration is one that must not be taken into account (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30). lawhandbook.org.au/handbook/ch21s02s06.php
Posted on: Thu, 16 Oct 2014 15:40:51 +0000
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