In what circumstances can you apply to review a government decision

Contributed by JudyMcLean and current to 27 July 2018

Grounds for judicial review

ADJR Act and State equivalents

Judicial review principles set standards for the lawfulness of government decisions. The grounds of review often include standards of ‘fairness' and ‘rationality' for administrative action. For example, the rules of natural justice or procedural fairness set out certain procedures which must be followed in order to afford a person a fair hearing in particular cases. Other grounds of judicial review require a decision maker to follow rational reasoning processes, for example, the requirement to consider relevant considerations and not take into account relevant considerations when making a decision. In this way, the grounds of review are to some degree an expression of the underlying principles of the administrative law system.

Common law or codification

The grounds of review under the ADJR Act and the common law are extremely similar. The question is whether it is preferable to have a list of grounds in statute or to leave the development of grounds to the common law. An alternative is to codify the general principles underlying the grounds, either in conjunction with a list of grounds of review or the principles alone.

In Australia, the Administrative Decisions (Judicial Review) Act 1977, with its codified grounds of review, remains available as a means of review of most decisions at Commonwealth level (with similar schemes in several states.The ADJR Act was the product of the Commonwealth Administrative Review Committee Report of 1971,“the Kerr Report”. The grounds of review found in the ADJR Act reflect an attempt to simplify and reform the common law grounds of review as they were at that time. The grounds listed there remain broadly similar to the common law grounds of review and represent the simplest short-cut to the categories of judicial review for you to consider.

See further:

• Judicial Review Act 1991 (Qld), Judicial Review Act 2000 (Tas), Administrative Decisions (Judicial Review) Act 1989 (ACT).
• Commonwealth Administrative Review Committee Report, Parl Paper No 144 (1971)

Standing

refers to the right to commence legal proceedings. The purpose of standing requirements is to prevent those without an interest from applying for judicial review. Standing is fundamental to access to justice because it allows parties with an interest in proceedings to access the court while preventing court resources being occupied by parties with no real interest in the outcome of a dispute.

General judicial review standing rules may be altered by specific statutes. There are examples of statutes both expanding and restricting general standing rules.

The Environment Protection and Biodiversity Conservation Act 1999 extends standing in ADJR applications to include:

• an individual, organisation or association who has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment, and
• an organisation, where the objects or purposes of the organisation or association included protection or conservation of, or research into, the environment.
  

The Migration Act limits applications under par 8 to a person who is the applicant/sponsor the subject of the relevant decision. Standing is further limited through a statutory bar on class actions for judicial review of migration decisions brought in both the Federal and the High Court. Section 486C further limits standing in the Federal Court to when there has been a decision in the particular case that calls into question the issue(s) being litigated.

See further:

• Environmental Protection and Biodiversity Conservation Act 1999 (Cth) s 487.
• Migration Act 1958 (Cth) s 479.
• Class actions are not considered appropriate in the migration context and are effectively prohibited by Migration Act 1958 (Cth) s 486B.

Statements of reasons under Commonwealth law

Possibly the greatest virtue of the ADJR Act lies in its provisions enabling individuals to compel administrative bodies to provide the reasons for their decisions without having to commence otherwise potentially time- consuming and complex legal action to obtain them. These provisions are found in section 13 of the Act.

Under the Act any person who is entitled to make an application for an order of review may require any Commonwealth decision-maker who is subject to the Act to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. This places a substantial burden on the government to justify its actions. It means that any person who satisfies the ‘standing' requirement of the Act will be able to ask for reasons from the government for its actions. The government is obliged to provide a statement within 28 days of the request. There are certain limitations on the obligation to furnish reasons under the Act. They relate mainly to information of private concern to third parties, trade secrets and matters properly subject to Crown privilege.

Improper exercise of power

The grounds listed in section 5 of the ADJR Act remain broadly similar to the common law grounds of review and represent the simplest short-cut to the categories of judicial review for you to consider.

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.

The 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 an abuse of the power (s.5(2)).

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.

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 characterised 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.

The common law grounds on which courts will force government administration to stop a process or reverse a decision and look again at a matter have developed in the law over several hundred years. Here, those grounds cannot be entirely described because they are legally very complex and because their practical significance is quite limited, particularly in the area of Commonwealth government decisions. If judicial review using the common law grounds needs to be considered, then expert legal advice will be needed.

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 a failure to make the decision within that period.

Freedom of information - Commonwealth

Under the Freedom of Information Act 1982 (Cth) (FOI) any individual has a legally enforceable right, regardless of whether she or he is a party to a dispute or is affected by a Commonwealth government decision, to obtain access to any document (this includes any written, printed, audio-visual material or computer material) held by any Commonwealth government department or agency, unless the document falls into one of the exemptions contained in the legislation. It is not necessary to have standing, as it is under the ADJR Act.

Exemptions from access

A wide range of documents is exempted including:

• documents affecting national security, defence, international relations and relations with the States;
• cabinet documents;
• internal working documents;
• documents affecting the enforcement of the law and public safety;
• documents to which secrecy provisions of enactments apply;
• documents affecting the financial or property interests of the Commonwealth;
• documents affecting personal privacy;
• documents affecting legal proceedings or subject to legal professional privilege;
• documents relating to business affairs;
• documents affecting the national economy;
• documents containing material obtained in confidence;
• documents disclosure of which would be contempt of Parliament or contempt of court;
• privileged documents; and
• certain documents arising out of companies and securities legislation.

Note that an agency is not obliged to refuse disclosure of a document which falls within an exempt category: the exemptions are permissive.

Review of denials of access

An individual denied access may apply for a review of the denial to the principal officer of the agency and subsequently to the Administrative Appeals Tribunal, which may overrule the decision of the Minister or agency concerned.

Access to personal documents

Personal records about an individual are usually accessible to that individual only. The right of access to personal documents is likely to be used by members of the community who have been adversely treatmed in areas such as social security, repatriation and taxation. People who find statements in their personal records which are incomplete, false, misleading or out of date have a right to have them corrected. See further in Privacy Rights.

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.

The grounds of review under the ADJR Act and the common law are extremely similar. The question is whether it is preferable to have a list of grounds in statute or to leave the development of grounds to the common law. An alternative is to codify the general principles underlying the grounds, either in conjunction with a list of grounds of review or the principles alone.

In Australia, the Administrative Decisions (Judicial Review) Act 1977, with its codified grounds of review, remains available as a means of review of most decisions at Commonwealth level (with similar schemes in several states.[1] The ADJR Act was the product of the Commonwealth Administrative Review Committee Report of 1971,[2] “the Kerr Report”. The grounds of review found in the ADJR Act reflect an attempt to simplify and reform the common law grounds of review as they were at that time. The grounds listed there remain broadly similar to the common law grounds of review and represent the simplest short-cut to the categories of judicial review for you to consider.