Jurisdiction to engage in judicial review

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This article is a topic within the subject Administrative Law.

Contents

Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [2.1.1]-[2.2.15]; [2.2.20]-[2.2.26]; [2.2.28]-[2.2.38]; [2.2.46]-[2.2.50]; [5.2.17]; [7.2.1]-[7.2.8].

Judicial review at common law

[1] Common law grants judicial review on the basis of the power to grant prerogative writs. The common purpose of each writ was to enable a court to examine whether a public sector body was complying with the limits imposed by law. Each writ controls unlawful action in a different way:

  • Certiorari: to quash an invalid decision.
  • Prohibition: to prohibit further unlawful activity.
  • Mandamus: to compel a lawful exercise of power.
  • Habeas corpus: to require the release of a person from unlawful detention.

In modern times, jurisdiction has extended to include equitable remedies:

  • Declaration: to make a declaration of the legal activities of an agency.
  • Prohibitory injunction: to enjoin (forbid) unlawful activity.
  • Mandatory injunction: to compel a restoration of the lawful status quo.

Judicial review under statutory schemes

In 1977, the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) established an all-inclusive statutory framework for judicial review by the Federal Court:

  • It replaced the technical and antiquated prerogative remedies with a simpler ‘application for an order of review’, which the Federal Court could grant by making such an order as it thought appropriate: ss 11, 16.
  • It listed and codified the common law grounds for review: ss 5, 6.
  • It granted a statutory right to the reasons for a decision: s 13.
  • It overrode existing privative clauses: s 4.

Indirect judicial review

[2] The legality of government action is often raised in the course of criminal and civil law proceedings. For example, whether evidence has been unlawfully obtained by a law enforcement officer.

From an administrative law perspective, this is often referred to as collateral review of the validity of administrative action.  

Federal Court

[3] The most important venue for judicial review of Commonwealth decisions is the Federal Court. It is a creature of statute and therefore its jurisdiction is limited to those areas conferred upon the court by parliament: Federal Court of Australia Act 1976 (Cth) s 19.

  • The court does not have an inherent common law jurisdiction paralleling that of the Supreme Courts. This is partially substituted for by the original jurisdiction granted under the Judiciary Act 1903 (Cth) s 39B and the court’s accrued and associated jurisdiction.
  • The defined and limited nature of the court’s jurisdiction has meant that jurisdictional disputes and quandaries frequently arise in proceedings instituted in the court against Commonwealth Government agencies.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

[4] The ADJR Act is the principal template for federal judicial review under which most actions (other than immigration litigation) are commenced in the Federal Court and Federal Magistrates Court. The Act defines:

  • The procedure by which a person may apply to the courts for an order of review: s 11.
  • The grounds of review: ss 5, 6
  • The relief the courts can give: s 16.
  • The courts’ power to stay the operation of a decision being challenged: ss 15, 15A.
  • The procedure by which a person can obtain a written statement of the reasons for a decision before commencing an action: 13, 13A

Some categories of administrative action are expressly excluded from review under the Act (Sch 1) and there are some qualities which an action must have to be reviewable:

  • There must be a ‘decision of an administrative character made... under an enactment’ (s 3) or ‘conduct for the purpose of making a decision’ (s 6).

The courts’ jurisdiction under the Act also includes decisions made by Commonwealth officers under Commonwealth/state cooperative schemes, such as the Competition Code (Sch 3).

Judiciary Act 1903 (Cth)

[5] The administrative law jurisdiction is expanded by section 39B of the Judiciary Act.

  • Subsection (1A) confers a broad jurisdiction on the court that extends beyond administrative law matters to include constitutional issues and all matters arising under Commonwealth legislation.
  • Subsection (1A) (c) enables the court to review subordinate legislation, which is not possible under the ADJR Act because it is not administrative in character.
  • Subsection (1A) (b) allows the court to deal with a ‘matter’ arising under the Constitution.

There are, however, limitations:

  • An action resting on s 39B (1) must be against an officer of the Commonwealth and must relate to a matter (discussed here).
  • The jurisdiction conferred by s 39B does not reach as far as the original jurisdiction conferred on the High Court by the Constitution s 75 (iii), which embraces any claim against the Commonwealth.

Associated and accrued jurisdiction and the Federal Court of Australia Act 1976 (Cth)

[6] These sources of jurisdiction allow the Federal Court to resolve the entirety of a dispute, even though an aspect of the claim or dispute would otherwise be beyond the court’s jurisdiction. Therefore the court may be able to address a non-administrative law claim, arising under Commonwealth or state law, that is intertwined with a claim concerning the validity of federal executive action. There is substantial overlap between the associated and accrued jurisdiction, but each rests on different tests and can operate differently.

Associated jurisdiction provides that ‘jurisdiction is conferred on the Court in respect of matters in which the jurisdiction of the Court is invoked’ (s 32 Federal Court Act).

  • This jurisdiction extends to (but is also confined by) the areas of federal jurisdiction mentioned in ss 75 and 76 of the Constitution; it ‘is the conferral of jurisdiction in another, different, federal matter in respect of which jurisdiction could be, but has not been, conferred’
  • Associated jurisdiction is now less important since the enactment in 1997 of s 39B (1A)(c) of the Judiciary Act, which confers a parallel jurisdiction on the court that extends to matters arising under the Constitution and Commonwealth laws.

Accrued jurisdiction refers to the inherent power of a superior court to settle the controversy before it by dealing with all the issues that ‘arise out of common transactions and facts’ or ‘a common substratum of facts’.[7]

  • The underlying principle is that jurisdiction conferred upon a court (for example, by the ADJR Act) extends to the determination of the entire ‘matter’ or controversy before the court.
  • It can therefore include a non-federal claim under statute or common law and relief in this non-federal matter can be granted even if the federal claim fails.
  • An exception to this principle arises where jurisdiction over a matter is conferred exclusively on another federal court, such as the Federal Magistrates Court.

Migration Act 1958 (Cth)

The high migration caseload (which was close to half of the Federal Court’s overall caseload in 2003-4), together with individual court decisions (for example, Teoh) that were viewed by government as detrimental to the effectiveness of immigration decision-making, gave rise to frequent legislative changes to regulate and constrain migration litigation.

The enactment of Pt 8 of the Migration Act 1958 (Cth) in 1992 created a special restricted scheme for review of decisions on migrant entry and refugee claims:

  • Merits review by the Migration Review Tribunal or Refugee Review Tribunal was a prerequisite to judicial review before the Federal Court.
  • Any application to the Federal Court for judicial review was to be commenced within 28 days of the tribunal decision, with no power of extension given to the court.
  • Breach of natural justice and relevant and irrelevant consideration were excluded as independent grounds of review.

As a consequence, the High Court’s original jurisdiction under the Constitution s 75 (v) was broader than that of the Federal Court and resulted in a steady increase in the number of migration cases commenced in the original jurisdiction of the High Court. In the wake of the Tampa controversy in late 2001, the Commonwealth Parliament enacted a new Pt 8 to establish a different scheme:

  • Proceedings could be established in the Federal Court (under the Judiciary Act s 39B) or in the High Court (under the Constitution s 75(v)) but were subject to a privative clause which provides that judicial review of immigration decisions cannot be undertaken in any court on any grounds (s 474).
  • The High Court has held that this does not prevent review for jurisdictional error.[8]

Two other legislative changes affecting migration litigation were part of the legislative response to the Tampa controversy:

  1. The Federal Magistrates Court was given concurrent jurisdiction with the Federal Court to undertake judicial review of migration decisions. In 2005, this jurisdiction was given exclusively to the Federal Magistrates Court (with some exceptions), to expedite the hearing and finalisation of migration cases.
  2. An ‘offshore entry person’ (such as those arriving at Christmas Island) must be taken into detention and can be removed to a declared country (in 2001-8 many people were moved to Nauru and Papua New Guinea). It was thought that offshore entry persons could not commence judicial review proceedings to challenge adverse assessments but this assumption has been undermined by the High Court, which held that an adverse assessment could be set aside by the High Court (any impliedly the Federal Magistrates Court) on the ground of legal error and breach of natural justice. The Court also set aside a declaration by the minister to declare Malaysia as a country to which offshore entry persons could be removed.

Other limitations on the Federal Court’s jurisdiction

There are direct prohibitions on the jurisdiction of the Federal Court, such as ADJR Act s 9 and Judiciary Act s 39B (1B)-(1F), which together provide that the Federal Court cannot undertake judicial review of decisions made during the criminal justice process, particularly committal proceedings. (This is in order to avoid criminal prosecution proceedings being fragmented and delayed as the legality of all steps can later be raised in the trial and appeal process).

Other subtle restrictions abound, such as the use of the terms:

  • Decision
  • Conduct
  • Made under an enactment
  • Officer of the Commonwealth

Problems associated with the choice of jurisdiction were eased by the introduction of a rule permitting an action to be commenced jointly under the ADJR Act and the Judiciary Act.

Problems remain in finding a jurisdictional basis to challenge some administrative decisions:

  • Decisions made by Commonwealth statutory corporations
  • Decisions sourced in contract rather than legislation
  • Decisions that are ‘self-executing’ (see textbook 2.4.22)
  • Decisions made by private sector agents acting on behalf of the Commonwealth

State and territory jurisdiction in federal matters

[9] The Judiciary Act ss 39 (2) and 68 implemented the Constitution s 77 (iii) by a general conferral on state courts of federal jurisdiction in criminal and civil matters. Federal administrative law jurisdiction was treated differently and never fully conferred upon state courts.

  • See associated and accrued jurisdiction (above), as well as s 39B for state jurisdiction in federal matters.
  • As previously discussed, federal issues can also arise in a collateral way.

The High Court’s original jurisdiction

[10] In addition to its appellate jurisdiction embracing Commonwealth state and territory public law, the High Court also has an original jurisdiction confined to Commonwealth Government action. The Constitution s 75 provides:

75 Original jurisdiction of High Court
In all matters...
(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; ...
(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.

Section 75 (v) is the more important from an administrative law perspective. It has constitutional' and practical importance:

  • “It was written into the instrument to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power.” (Dixon J) [11]
  • It provides a back-up jurisdiction when the opportunity for judicial review is denied or is unavailable in other courts (for example, in the area of migration law).
  • As Federal Court judges are “officers of the Commonwealth”, review of a Federal Court decision can be commenced in the High Court’s original jurisdiction even when there is no right to appeal from that court.
  • The fact that s 75 (v) defines the Court’s jurisdiction by reference to three remedies has meant that those remedies have played a key role in the development of Australian administrative law and that their contemporary importance is perhaps greater than it would otherwise have been.
  • S 75(iii) defines jurisdiction solely by reference to one of the parties to any litigation being the Commonwealth. This supports common law damages against the Commonwealth.

The High Court’s original jurisdiction under the Judiciary Act.

  • S 44(2A) allows to High Court to remit for hearing in the Federal Court, a case commenced in the original of the High Court.
  • [S 30 enlarges the original jurisdiction to include ‘matters arising under the Constitution or involving its interpretation’.
  • [S 33 confers a power upon the court to grant the writ of habeas corpus and make orders in the nature of prohibition, mandamus and quo warranto.
  • S 32 allows the court to grant all such remedies not specifically mentioned in s 75 (v), notably certiorari and declaration.

State and Territory judicial review schemes

[12] The Supreme Court of each state and territory has a general civil and criminal jurisdiction. Therefore, in undertaking judicial review of state and territory executive action they are not troubled to the same extent as the Federal and High Courts by questions of the precise source of jurisdiction.

The general jurisdiction of the Supreme Courts derives from their status as superior courts of record, with an inherent and plenary jurisdiction to administer law and equity within the state or territory.

New South Wales

[13] The inherent jurisdiction of the NSW Supreme Court has been reformed and simplified along two lines:

  1. By replacing the complex prerogative writ procedure with the simpler procedure of a summons and court order or judgement (Supreme Court Act 1970 (NSW)).
  2. By empowering the court to make the most appropriate order in the circumstances (Uniform Civil Procedure Rules (NSW)).

Matters are heard in a specialist Administrative Law Division of the Supreme Court. The court’s judicial review jurisdiction has been expressly reserved in respect of the Administrative Decisions Tribunal and sits alongside the jurisdiction of the court to hear appeals from the Appeal Panel of the Tribunal.

Integration of Australian judicial review schemes

[14] There are three ways in which the nine separate judicial systems of the Commonwealth states and territories are integrated:

  1. State courts are invested with federal jurisdiction.
  2. The High Court has an appellate jurisdiction arising under the Constitution s 73 to hear appeals from any federal court or the Supreme Court of a state, subject to the High Court granting special leave to appeal.
  3. Parallel legislation enacted by each Australia legislature and called the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) invests the Federal Court and the state and territory Supreme Courts with the jurisdiction of each other court (s 4).
    • To preserve the proper jurisdiction of each court, the Cross-Vesting Acts provide that a court is to transfer a proceeding to another court if “it is more appropriate” that it be determined by the other court.
    • The scheme was declared constitutionally invalid to the extent that it purported to cross-vest state jurisdiction to the Federal Court. Consequently, the Federal Court has to rely on the accrued jurisdiction to undertake judicial review of state government action.
      • This has been partially overcome by the referral of state legislative power to the Commonwealth under s 51(xxxvii) of the Constitution by the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth).

Merits/Legality

[15] The courts examine whether a decision is legal not whether it is good (correct or preferable). The role of the courts is narrowly conceived to take account of the separation of powers and other limitations on judicial method and perspective.

Associated Provincial Picture Houses Ltd v Wednesbury Corporation[16]

Facts: The Sunday Entertainment Act 1932 (UK) provided that a licensed cinema could open on a Sunday only with the permission of the local authority ‘subject to such conditions as the authority think fit to impose’. Provincial Picture Houses was given permission by the Wednesbury Corporation but on the condition that ‘no children under the age of fifteen years shall be admitted to any entertainment whether accompanied by an adult or not.’ Provincial sought a declaration that the condition was invalid as unreasonable.
Issue: Did the court have jurisdiction to review the decision? Limits on judicial review and the distinction between judicial review and merits.
Held: The action was dismissed. The court can only intervene in a decision of the executive if it is shown that the authority has contravened the law.
  • To the extent that a discretion must be exercised reasonably, a person must direct themselves properly in the law, call their attention to the matters which they are bound to consider and exclude from consideration those matters which are irrelevant.
  • “Wednesbury unreasonableness” is required to attract judicial review. This must be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. For example, a red-headed teacher being dismissed because she has red hair.
  • “Wednesbury unreasonableness” is so bad that it amounts to the person not even considering the decision. It will only apply in extreme cases. Latham CJ came up with a similar line of reasoning in the Hepburn v Collieries.

Chief Constable of the NSW Police v Evans[17]

Facts: The court held that a decision by the Chief Constable to pressure Mr Evans into resigning his position with the police was invalid for serious and arbitrary breach of natural justice (it satisfied the Wednesbury sense of unreasonableness). The decision was based on the fact that Mr Evans kept more dogs than was permitted in his council house; he had married an older woman who had formerly lived as a de facto with his uncle; and he had for a time lived with her in a hippy commune.
Issue: The narrow limits of judicial review.
Held: In the course of their judgements, two judges criticised a comment by Lord Denning in the Court of Appeal in the same case that the function of courts undertaking judicial review is to ensure that an administrative decision is ‘fair and reasonable’.
  • “The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by to decide for itself a conclusion which is correct in the eyes of the court.” This would be straying into merits review.
  • The court is concerned with the decision making process, not with the decision itself.
  • “The function of the courts is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law.”

Green v Daniels[18]

Facts: Ms Green lodged an application for a Centrelink unemployment allowance and although she satisfied the statutory requirements for the payments, she was prevented from obtaining the benefit because of a policy which prevented school leavers from obtaining it until after school recommenced the next year.
Issue: Judicial review of executive policy.
Held: Miss Green satisfied all of the requirements in the act, therefore the policy was beyond the power conferred by the Act (ultra vires). It was an attempt to substitute departmental criteria for the criteria that parliament had enacted. It was arbitrary because it was based upon a purely temporal concept and not upon the merits of the case.

Attorney-General (NSW) v Quin[19]

Facts: Mr Quin, a former magistrate seeking reappointment, claimed that any decision to reappoint him should be made in accordance with an earlier policy and not in accordance with a later policy introduced by the AG. The High Court rejected the claim. Mason J discussed the issue of whether a principle of administrative estoppel would prevent the NSW Government from applying a later policy.
Issue: Estoppel of a government policy.
Held: “The executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance...”
  • It should not be readily supposed that the legislature intended that a proper exercise of discretion in the public interest was to be frustrated.
  • Even if there is administrative injustice the court will not intervene because that would overstep the limitations of judicial power.
  • This does not deny the availability of estoppel against the executive when it does not significantly hinder the exercise of relevant discretion in the public interest.

End

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References

Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. Textbook, pp 41-2.
  2. Textbook, pp 42.
  3. Textbook, pp 42.
  4. Textbook, pp 43.
  5. Textbook, pp 43-4.
  6. Textbook, pp 45.
  7. Philip Morris Inc v Adam P brown Male Fashion Pty Ltd (1981) 148 CLR 457 at 512.
  8. Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
  9. Textbook, pp 50-1.
  10. Textbook, pp 51-3.
  11. Bank of NSW v Commonwealth (1948) 76 CLR 1 at 363.
  12. Textbook, pp 53-4.
  13. Textbook, pp 54.
  14. Textbook, pp 55-6.
  15. Textbook, pp 260 & 328-38.
  16. (1948) 1 KB 223.
  17. (1982) 3 ER 141.
  18. (1977) 13 ALR 1.
  19. (1990) 170 CLR 1.
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