Judicial Review

The grounds on which courts will force government administration to stop a process, or reverse a decision and look again at a matter, have developed over several hundred years. The orders a court will make have ancient names. Basically, this area of the law is contained in a large number of old English court cases which have been supplemented by Australian cases over the last hundred years. All that can be achieved in the short space of this volume is to give an outline of the law in this area.

The law has been simplified and modernised at the Commonwealth level under the Administrative Decisions (Judicial Review) Act 1977. At a state level, the Judicial Review Act 2000 (Tas) came into effect on 1st December 2001.

Judicial review is different from an administrative appeal or complaint to the Ombudsman. Judicial review is carried out in the courts because courts have the power to make decisions based on the law, and judicial review is about challenging the lawfulness of an administrative decision. A person seeking to obtain judicial review of a decision or action will seek an order from a court that a decision be set aside, that a proceeding be brought to a halt, or that certain action be taken by the administrative official who made the decision being appealed.

In deciding whether to grant judicial review, the court looks at the methods adopted by a government decision-maker in coming to a decision, and determines whether:

• those methods were consistent with natural justice or administrative fairness;
• the factors taken into account by the decision-maker were the correct ones under the legislation; or
• the decision-maker acted within the powers given in the legislation in making the decision.

The courts do not review the actual decision on its merits. All they do under judicial review is to decide whether or not it was properly made – that it was a lawful decision. This does not necessarily mean that if a matter is referred back to the decision maker that the decision will reflect the judicial review decision of the decision being improperly made. Discretion in assessing the relevant factors is a key component of a decision maker’s process, this includes an inherent subjectivity.

If a government decision-maker decides to deny a benefit, a licence etc, it may be possible to have the court set the decision aside, but the original decision-maker will have to make a new decision which may still be negative. If the legislation under which the original decision was made provides for an appeal on the merits this may be the preferable option as the body appealed to will usually have the power to replace the original decision with its own.

Judicial review is expensive – court application fees, and lawyers’ fees are costly. If you decide to proceed to a judicial review, and you have standing to sue, you will need a legal advice and a lawyer.

Applications are heard by the Supreme Courts of the various States and Territories, the Federal Court of Australia or, more rarely, by the High Court of Australia. Administrative appeals on the other hand are usually much cheaper and more quickly heard.

A quick and inexpensive approach available to people who have decisions made against them, or are concerned about the conduct of a public servant, is to complain to the Ombudsman. Whilst this is the least expensive and troublesome way to deal with decisions made by government decision-makers, it may not lead to the decision complained of being changed because the Ombudsman can only make a recommendation.

Example: The Karen Green Case

A striking example of this point is the Karen Green case (Green v Daniels (1977) 13 ALR 1). In this case a 16 year-old Hobart girl who had left school at the end of the school year and who had been unable to obtain employment applied for unemployment benefits from the (then) Department of Social Security. The Department refused to allow her the benefit as there was a government policy that no school leavers were to be paid benefits during the summer vacation. Benefits for school leavers, the government decided, were only to be paid after February of the next year. Karen Green claimed that the Department was not entitled to take this matter into account because it was not a criterion found in the Act which laid down the grounds for granting (or refusing) unemployment benefit. Her point simply was that she could not be refused the benefit on a ground which Parliament had not included in the Act governing the Department’s actions in this matter.

The High Court decided Ms Green’s point was correct and declared that the Department of Social Security was wrong in refusing her benefit on the policy ground and sent the matter back to the Department to be re-decided. But the point of this example is that Ms Green did not receive the benefit because the Department did look at the matter again and decided on the basis of one of the other factors which it was entitled to consider under the Act (whether or not the applicant was willing to undertake work) that Ms Green was still not entitled to the benefit. (Despite Ms Green producing in the High Court a signed and dated list of more than 40 employers to whom she had unsuccessfully applied for employment, the Department ruled that this did not satisfy it that she was necessarily demonstrating sufficient effort to secure employment.)