Things Every Commercial Lawyer Should Know About Judicial Review

Overview of Judicial Review in the Federal Court

7 May 2014

Emily Nance
Senior Executive Lawyer
T 03 9242 1316


Government Action / Decision

Section 39B Judiciary Act 1903

  • Was the decision made by an officer of the Commonwealth (s 39B(1)) or
    - does it ‘arise under any law made by the Parliament’ (s 39B(1A)(c))?

  • Does the applicant's case have substance? Can a jurisdictional error be identified?
    Some examples of jurisdictional error:
    a. Application of the wrong legal test;
    b. Mistaken opinion as to presence/absence of a fact on which decision’s validity is contingent;
    c. Disregarding a fact which the Act required be considered;
    d. A Misapprehension of the nature of limits of the decision-maker’s powers

  • Will a writ of certiorari, mandamus, prohibition or
    injunction remedy the applicant's situation?

Administrative Decisions (Judicial Review) Act 1977

  • Does the applicant want to:
    a. review a decision?
    b. stop conduct in a decision process?
    c. require a decision be made?

  • Does the applicant have reasons for the decision?
    If not do they want to obtain reasons under s 13?

  • Does the applicant have standing?
    Is the relevant decision a "decision under enactment"?
    Is the relevant decision final?

  • What grounds can the applicant rely on?
    Section 5 grounds - for a decision
    Section 6 grounds - for conduct
    Section 7 grounds - for failure to make a decision

  • What s 16 remedy would be useful?
    a. quashing the original decision?
    b. order remitting decision to original decision maker subject to direction?
    c. declaration?
    d. injunctions?

Quick reference guide: ADJR Act vs Judiciary Act

When should I recommend applying for review under the ADJR Act?

  • When your client requires reasons for the decision (s 13);
  • When there may not be an error of law amounting to jurisdictional error in the decision;
  • When trying to establish that there is ‘no evidence’ for a finding of fact;
  • Where your client needs added flexibility in relation to remedies.

When should I recommend to applying for review under s 39B of the Judiciary Act?

  • Where the decision under review falls under Schedule 1 to the ADJR Act;
  • Where review is sought of an act, rather than a decision or conduct for the purpose of making a decision;
  • Where the decision is legislative in character, not administrative;
  • Where there may otherwise be an issue of whether the decision was made “under an enactment
  • Where there is a self-executing statutory provision such that there is no administrative ‘decision’ being made.

 Or you can hedge your bets and bring an application under both!