THE FEDERAL SYSTEM OF JUDICIAL REVIEW
• If you want to challenge a decision made by a Cth statutory body, e.g. the Australian Electoral Commission of the Australian Taxation Office, you must turn to the federal system of judicial review. • The HC was given original jurisdiction by s.75 of the Cth Constitution to judicially review (to issue writs) decisions made by officers of the Cth. However, it is not easy to get to the HC – it reserves itself for important decisions. • The Federal Ct was created in 1976 to relieve the workload of the HC and today nearly all judicial review applications go firstly to the Fed Ct.
THERE ARE TWO WAYS OF GOING TO THE FEDERAL CRT:
1. Common law jurisdiction (given to it by s.39B of the Judiciary Act). 2. The Administrative Decisions (Judicial Review) Act (referred to as statutory judicial review).
• The ADJR Act was one of the components of a package of administrative law reform which took place at a Cth level in the 1970s. • The ADJR was created to make it easier for an applicant to seek action before the Ct.
The ADJR Act did three things in reforming judicial review before the Fed Ct. 1. It provides a “codified” system of JR of decisions made under federal law. 2. It sought to eliminate the problems that plague CL JR - the problem of having to choose the correct writ (remedy) to challenge the action. The ADJR provides for one remedy only (an order of review). 3. It established the Fed Ct as the principal Ct for JR of administrative decision-making in the Fed system.
← If you CANNOT succeed in an action under the ADJR Act by order of review (Statute), then look to s.39B of the Judiciary Act (CL).
ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 (CTH)
In order to use the ADJR Act what do you need to be able to show the Ct? (jurisdictional prerequisites) • S.5 ADJR allows you to review “a decision to which this Act applies”. • S.6 allows you to challenge “conduct engaged in for the purpose of making a decision to which this Act applies” (reaching back to activity leading to a decision to which this Act applies)
The phrase “to which this Act applies” is defined in s.3:
1. You need to show there is a “DECISION”,
2. that the decision is of an “administrative character’’, 3. and that the decision was made “under an enactment”, “other than a decision made by the GG” and “other than a decision made in schedule 2”
WHAT IS MEANT BY “A DECISION”??
• You need something substantive – ie refusing to grant a license. • To see what constitutes a decision such that it can be reviewed using s.5 of the ADJR Act, look at the extended definition in s.3(2) and (3) – an inclusive decision • Beyond that you need to go to the case law.
• In the early decisions, the Fed Ct said that the word “decision” in s.5 of the ADJR Act was limited to decisions which finally or conclusively determined an issue such that interim rulings or decisions were not judicially reviewable under s.5.
• Example: If the statute in question said that a prisoner may be released if firstly the parole board makes a recommendation for release and secondly the parole board, after examining all of the submissions, makes a final determination for release. That first step would not be reviewable under the ADJR Act because it does not finally and conclusively determine the issue, it is only a primary step. (If the legislation provided for a 2-stage decision-making process, on this interpretation the first step would not be reviewable under Act)
• However, in Lamb v. Moss they changed their mind, and said that the ADJR Act could be used to attack interim or preliminary determinations. (This has now been overruled by the HC in ABT v. Bond but there are aspects of this case that are still valid points of law).
Lamb v. Moss
- This was known as the Greek conspiracy case of the 1980s where a no. of doctors were charged with defrauding...