Historical Perspective of Judicial Review
Take Home Questions: include footnote, bibliography and cover sheet
Judicial review provides a method where people affected by government action can raise a claim in court against the action or stipulated law. In history judicial review was the prevention of the encroachment of the rights.
- Mandamus: A command to the respondent to undertake its public duty.
- Prohibition: The respondent is restrained from undertaking a scheduled unlawful act.
- Certiorari: an order is given that quashes the decision in question.
- Declaration: An order from the court to clarify the law regarding the dispute.It does not provide mandatory or any restraints.
- Injunction: A remedy in equity that enforces a statutory protection or obligation to the officials.
List the main features of a “review on the merits” such as a merits review application to the Administrative Appeals Tribunal?
Merit review is about facts and looking at the analysis of the facts and lawfulness of the previous decision. In summary, merit review is about;
- Superior position to gather and analyse facts.
- Improved approach in identifying, clarifying and applying the applicable law;
- Unique approach in searching and reviewing the fundamentals of decision and policies within the administrative decision.
Judicial review focuses on checking the powers and whether the decision maker followed the stipulated legal procedure. Review of merits looks at the errors made when making the decision.
In judicial review, the decision can be set aside, but there is no room for substituting that decision. Under review of merits, the decision can be set aside, and remake it to provide right decision.
A decision on judicial review is binding even to other courts while that or a merit review is deemed to apply only to that case and the parties.
The common law grounds for a judicial review are those in the doctrine of ultra vires. The scope of the doctrine of ultra vires deals with areas where the government bodies or its officials;
- Act with improper purpose;
- Take unreasonable actions;
- Fail to undertake proper consideration when making certain decisions;
- Makes judicial or other legal errors when exercising powers;
- We now have specific legislation/statutes that deal with judicial review. Please provide a few examples?
- The Commonwealth of Australia Constitution act;
- Judiciary Act;
- Administrative Decisions (Judicial Review) Act;
- Constitution Act 1975 (Vic);
- Administrative Law Act.
The common law applies the doctrine locus standi or of standing in the determination whether the applicant is the right person to bring the claim. This doctrine mostly looks at the administrative remedy in which the person is seeking. In ADJRA, the application has to follow the rules set in s 13. The advantage of ADJRA is that it is more flexible on the powers of the Court while deciding on the review. The flexibility allows the court to tailor the remedies and offer a simplified review process
Yes, Administrative Decisions (Judicial Review) Act 1977 – Schedule 1 provides legislatives and decisions that are not subject to judicial review.
The rules of procedural fairness are set to ensure that cases are decided upon a fair decision-making procedure. These rules prevent the government from undertaking arbitrary actions that affect people. The rules ensure administrators and other government officials take consideration of justice and integrity while making decisions that affect people. In the case of Minister for Immigration and Border Protection v WZARH, the court stated that administrative decision-makers have a duty to provide procedural fairness to all persons that would be affected by the decision.
Differences between Judicial Review and Review on the Merits
Locate a case on judicial bias, reference it and give a detailed analysis.
Ane example of a case in Judicial bias was the case of Johnson v Johnson. The parties were a husband and a wife since November 1979, and a dissolution of the marriage happened in 1996. Upon dissolution, a dispute in the financial arrangements were brought before the judge, Anderson J. The court held that a division should be made with the wife taking 40% of the asset pool. The dispute that went to appeal on a matter of bias regarded Anderson J comments that he was going to search for the truth by looking at the independent people and their independent documents. When this matter went to appeal, the court of appeal ruled that there was no bias on the Anderson J comments.
The doctrine of standing or locus standi denotes with a person’s right to bring proceedings to the court of a tribunal. These principles require that every person bringing the proceedings should be the appropriate person who has been affected by the administrative power in which he/she seeks remedy against. The different requirements for standing are;
- There must be a relationship between the standing and the remedies sought.
- If a claim is seeking a remedy through the statute such as ADJRA (Cth), the standing that applies is the one stated in that law.
- If the claim seeks remedy in common law, the standing requirement are those related to the remedy sought.
List the remedies available in a judicial review of administrative decisions?
The remedies in judicial review from an administrative decision are;
The court may suspend or order a stay the related proceedings or an interlocutory order on the decision or action that the government officials had commenced. These powers are granted to the Court under the section 23 of the Federal Court of Australia Act.
The judicial review act under part 3 provides that the court can provide other remedies such as;
- Setting aside the decision in question;
- Ask the person who make the decision to reconsider it;
- Declare rights;
- Direct the concerned party to do or refrain to do the action;
Under s 16 of ADJR Act and in on a matter of Commonwealth decision making, the Federal Court can also issue such orders stated above.
Give a detailed case analysis of Associated Prov. Pic Houses Ltd v Wednesbury [1948] 1 KB 223.
The issue regarded a prohibition by the defendant under a licence granted to the plaintiff that no child under the age of 15 years, either by themselves or accompanied by adults could enter the cinema on Sundays. The plaintiff sought orders from the Court to declare the restriction by the defendant as unreasonable. However, the Court ruled that it could not interfere with the orders or limits since the only grounds for intervening were where the decision makers went over the legal powers conferred to them.
References
Asimow, Michael and Jeffrey S Lubbers, ‘THE MERITS OF “MERITS REVIEW”: A COMPARATIVE… – Google Scholar’ <https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/windyrbaj28§ion=18>
Victoria University, ‘Research the Application of Administrative Law VU21647 Advanced Diploma of Legal Practice 22276VIC Enterprise Programs Unit Study Guide 2017’
Commonwealth of Australia Constitution Act 1901
Johnson v Johnson [2000] HCA 48
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
Administrative Decisions (Judicial Review) Act 1977
Administrative Law Act 1978
Constitution Act 1975
Federal Court of Australia Act 1976
Judicial Review Act 1991
Judiciary Act 1903
Attorney-General’s Department, Overview of the Commonwealth System of Admin Review (2018) <https://www.arc.ag.gov.au/Aboutus/Pages/OverviewoftheCommonwealthSystemofAdminReview.aspx#a5>
Australian Government, The Scope of Judicial Review Discussion Paper, 2003 (2003) <https://www.arc.ag.gov.au/Publications/Reports/Pages/Downloads/TheScopeofJudicialReviewDiscussionPaper2003.aspx>
Commonwealth of Australia, 83 Clarence Street, Judicial Review (2016) <https://www.aat.gov.au/about-the-aat/engagement/speeches-and-papers/the-honourable-justice-garry-downes-am-former-pre/judicial-review>
Legal Commission of South Australia, Judicial Review (2018) <https://www.lawhandbook.sa.gov.au/ch09s01s05.php>
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