In addition to reviews of Commonwealth decisions under the common law outlined above, the Federal Court may review certain decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth). This Act has made some changes to the common law. For example, as it became increasingly apparent that a good deal of harm could be done to a person simply by an adverse report or recommendation, even if not eventually acted upon (as this was not a decision), the Act provides that reports, actions or recommendations can now be challenged.
It should be emphasised that this form of statutory review fits into this category of judicial review because it operates under the same principles, that is, it is not a review of the merits of the decision as such, but a review of the processes undertaken to reach that decision so as to ensure that they were fair.
It should also be noted that this legislative review structure does not apply to all decisions. The Act has a schedule of decisions to which it does not apply and these should be considered before instituting any proceedings. This list is quite small. For this limited number of jurisdictions, prerogative remedies are required.
One of the most significant aspects of this area of review is the general right to obtain a statement of reasons for decisions [Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13]. This right should be exercised within a reasonable time period. Just as there is a Schedule of decisions to which this Act does not apply, there is also a Schedule of decisions under which there is no obligation to provide reasons. Schedule II to the Act should be checked before any proceedings are undertaken.
Under the Act [Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Applications for review of decisions] any person who is aggrieved by a decision can make an application to the court. To be aggrievedthe person must be significantly affected by an administrative decision. This is similar to the requirement that a person have standing.
The statutory grounds on which a decision may be reviewed are:
- that there has been a breach of the rules of natural justice in the making of the decision
- that procedures that should have been observed in making the decision were not observed
- that the person who made the decision did not have jurisdiction to make the decision
- that the decision was not authorised by the Act under which it was made
- that the decision involved an error of law, whether or not the error appears on the record of the decision
- that the decision was induced or affected by fraud
- that there is no evidence or other material to justify the making of the decision
- that the decision was otherwise contrary to law
The error of law ground is wider than the existing common law ground in that it no longer matters that the error does not appear on the face of the record.
The no evidence ground is a new development in administrative law. To establish that a decision should be reviewed because there is no evidence, it is necessary to show either:
- that the person who made the decision was required by law to reach that decision only if a particular matter was established and that there is no evidence or other material (including the facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established
- that the person who made the decision was influenced by the existence of a particular fact, and that the fact did not exist.
The improper exercise of power ground is defined in the Act and includes the traditional ground of ultra vires (beyond power), see Challenging a decision. To this can be added the ground of abuse of power, which is directed at the unusual situation where a body, especially a tribunal, deliberately exceeds its authority in order to harm a person.
Under the Administrative Decisions (Judicial Review) Act 1977 (Cth), conduct related to making a decision may be reviewed. This covers grievances with procedures before they commence or while they are proceeding. The grounds for intervention are identical to those for review of a decision.
An order can be obtained where a decision maker is under a duty to make a decision and fails to do so. Where no time limit is imposed by the law on the decision maker, the person can seek judicial review on the ground of unreasonable delay if nothing is done after a reasonable time. If the time for making the decision is specified, the ground is failure to make the decision within that period.
The Federal Court can send a matter back to the decision maker directing her or him to act in a certain way, it can quash or set aside a decision or it can declare the rights of the parties. However, in certain areas, its powers are greater than those under the old system giving another reason why this is a preferable alternative in Federal matters.
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