15.7 Access to the courts for the purpose of judicial review is an important common law right. Sir William Wade stated that ‘to exempt a public authority from the jurisdiction of the courts of law is, to that extent, to grant dictatorial power’.
15.8 In Church of Scientology v Woodward, Brennan J said:
Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.
15.9 In his Introduction to Australian Public Law, Professor David Clark gives a brief history of judicial review of administrative action:
Judicial review in the administrative law sense originated in the 17th century when various prerogative writs, so called because they issued in the name of the Crown, began to be issued against administrative bodies. These writs, such as certiorari, prohibition and mandamus originated in the 13th century, but were originally confined to review of the decisions of inferior courts … By the late 17th century the writs began to be used against administrative agencies such as the Commissioners of Sewers, and the Commissioners for Bridges and Highways. With the dramatic expansion of State functions in the 19th century and the emergence of innumerable statutory bodies, committees, commissions, and other administrative agencies, the way was open for the expansion of judicial review in this sense.
The power to judicially review what were once called inferior jurisdictions (lower courts and administrative agencies) arrived in Australia with the opening of the first Supreme Courts in Van Diemen’s Land and New South Wales in 1824 … The power to review by certiorari, prohibition and mandamus was, in origin, a common law power and was, therefore, a power of jurisdiction created by the courts through their judicial decisions.
15.10 It is widely recognised that the right to judicial review is not absolute. Judicial review is available to test the legality of a decision, and not its merits—the courts are not authorised to ask whether a decision was a ‘good’ decision. It asks only whether the decision has been properly made, in accordance with the law.
15.11 At common law, the availability and scope of judicial review is a consequence of the judicial remedy sought. These remedies are the prerogative writs of habeas corpus, quo warranto, mandamus, certiorari, and prohibition, as well as the equitable remedies of injunction and declaration. The standing rules relating to the availability of common law remedies and time limits which apply in relation to each of these differ. While some of these requirements have relaxed over time, access to judicial review at common law remains technical and complex. The Kerr Committee recognised that the rules that apply to judicial review at common law were ‘both unwieldy and unnecessary’. It noted that ‘a case can be lost or won on the basis of choice of remedy’.
15.12 At common law, the following are subject to judicial review: a rule-maker’s power to make delegated legislation; decisions of the Governor-General; recommendations and findings contained in coronial reports; Royal Commission reports; and the reports of other formal advisory bodies. Judicial review is also available in relation to decisions made in exercise of a prerogative or executive power, intermediate decisions, and some contractual decisions.
Judicial review in Australia
15.13 In addition to the common law, s 75(v) of the Constitution provides for an ‘entrenched minimum provision’ of judicial review. Section 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act) extends the original jurisdiction of the High Court of Australia (High Court) to the Federal Court of Australia (Federal Court). Section 39B(1A)(c) vests the Federal Court with jurisdiction over ‘any matter arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter’.
15.14 In 1977, the ADJR Act was introduced as part of wide-ranging reforms to federal administrative law in Australia. The Act seeks to simplify, codify and, in some cases, expand common law judicial review. It established: a single, simple procedure for review, which applies regardless of the grounds argued, or the remedy sought; codified the grounds for review; and established a right to reasons for a decision where a person has standing to seek review, with certain exceptions. However, limitations imposed on the ADJR Act have affected its capacity to operate as a simpler, more streamlined avenue for judicial review.
15.15 This chapter discusses how access to the courts is protected from statutory encroachment; laws which restrict access to the courts; and when laws that restrict access to the courts may be justified. It is about judicial review, rather than merits review. However, judicial review has been characterised as ‘inevitably sporadic and peripheral’. The availability of merits review has been described as ‘in a way more important than judicial review because it can offer a complete answer, not available through the courts, to a person affected by a decision’.
Sir William Wade, above n 3.
Church of Scientology v Woodward (1982) 154 CLR 25, 70 (Brennan J).
David Clark, Introduction to Australian Public Law (Lexis Nexis Butterworths, 4th ed, 2013) 247.
The writ of habeas corpus demands that a person incarcerated be brought before the court to determine whether there is lawful authority to detain the person.
The writ of quo warranto requires the decision maker to show by what authority they exercise a power.
Mandamus is an order compelling or directing a lower court or administrative decision maker to perform mandatory duties correctly. A writ of procedendo sends a case to a lower court with an order to proceed to judgment.
A writ of certiorari sets aside a decision made contrary to the law.
A writ of prohibition forbids a decision maker from commencing or continuing to perform an unlawful act.
Matthew Groves and Janina Boughey, ‘Administrative Law in the Australian Environment’ in Matthew Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014) 3, 6.
The tests for standing to sue at common law are converging: Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters Australia, 2013) 723.
In 1968, the Commonwealth Administrative Review Committee, chaired by Sir John Kerr was established to consider reform of administrative law in Australia. This committee is referred to in this chapter as the ‘Kerr Committee’.
Commonwealth, Report of the Administrative Review Committee, Parliamentary Paper No 133 (1971) . This report is referred to in this chapter as the Kerr Committee Report.
It is rare that an application for judicial review of delegated legislation will be successful. The courts tend to adopt a presumption of validity, and ‘a reluctance to substitute judicial opinion for that of the legislation-maker’:Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 3rd ed, 2005) [14.1]. However, the principles of ultra vires that apply to administrative decision making also apply to delegated legislation: Stephen Argument, ‘Delegated Legislation’ in Matthew Groves and HP Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 141. For an example of a successful challenge to delegated legislation, see: Paradise Projects Pty Ltd v Gold Coast City Council  1 Qd R 314, 321. For a more in-depth discussion of inappropriate delegations of legislative power, see Chapter 17.
For an example of review at common law of a decision to enter a contract, see Cubic Transportation Systems Inc v New South Wales  NSWSC 656 (26 July 2002). Further, the High Court has held that injunctive and declaratory relief were available for legal errors made by contractors in written advice to the Minister, even where the Minister had no obligation to consider the advice: Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, –, –.
This is discussed further below. The ‘entrenched minimum provision’ of judicial review extends to State Supreme Courts, and thus, the decisions of state administrative bodies: Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531. Section 75(iii) of the Constitution also protects access to the courts. It states that the High Court shall have original jurisdiction in any matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party.
This jurisdiction is modified to exclude the justiciability of certain criminal justice process decisions before the High Court.
In addition to introducing the Administrative Decisions (Judicial Review) Act 1977, the government established the Administrative Appeals Tribunal as a general merits review body, introduced freedom of information legislation, and established the Commonwealth Ombudsman: John McMillan, ‘Parliament and Administrative Law’ (Research Paper 13 2000-01, 7 November 2000).
Decisions of the Governor-General, and findings and recommendations in official reports are excluded from review under the ADJR Act. Reviews under the ADJR Act are only available for decisions made under an enactment, thus, excluding challenges to delegated legislation, decisions made in exercise of executive or pregorative power and contractual decisions. The courts have interpreted the term “decision” in the ADJR Act to generally mean a ‘final, or operative and determinative’ decision. An intermediate step does not ordinarily constitute a decision. Intermediate decisions were considered to be a decision in their own right if a statute made separate provision for it, and it was substantive: Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531.
Merits review is concerned with a person or body—other than the primary decision maker—considering the facts, law and policy underlying the original decision, and substituting a fresh decision where the new decision is correct or preferable. By contrast, judicial review is concerned with the lawfulness of a decision, whether by reference to whether the decision maker had the power to make the decision, a legal error has occurred in making the decision or, where necessary, whether the rules of procedural fairness were complied with. However, where the tribunal conducting merits review makes a legal or procedural error, that decision may be subject to judicial review.
Re McBain; Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372, –; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, –.
Justice Robert French, ‘Administrative Law in Australia: Themes and Values’ in Matthew Groves and HP Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 22. See also Justice Janine Pritchard, ‘The Rise and Rise of Merits Review: Implications for Judicial Review and for Administrative Law’ (2015) 79 Australian Institute of Administrative Law Forum 14; Commonwealth, Report of the Administrative Review Committee, Parliamentary Paper No 133 (1971) .