LLB230 Lecture Notes - Lecture 7: Supreme Court Act, Natural Justice, Standard For The Uniform Scheduling Of Medicines And Poisons
Week Seven: The Framework for Judicial Review
JUDICIAL REVIEW
What is Judicial Review?
Courts ensure that decisions and actions of government are lawfully taken.
Judicial Review v Merits Review
Merits view considers whether decisions are substantively correct, judicial
review considers the legality of the decision.
JR considers whether decision-makers have exceeded their powers and
functions, not whether a decision is the 'correct or preferable' one
o'The consequence is that the scope of judicial review must be defined
not in terms of the protection of individual interests but in terms of the
extent of power and legality of its exercise' (Brennan J, Attorney-
General (NSW) v Quin (1990) 170 CLR 1, 35-6)
Fact and Law Distinguished
A court in judicial review may review errors of law but not errors of fact.
'The critical nature of the line drawn ... between factual and legal matters
varies with the purposes it serves.' (McHugh & Gummow JJ in Applicant
s20/2002)
Person seeking JR must make out a 'ground of review'.
COMMON LAW V STATUTORY JUDICIAL REVIEW
Common Law
Originates in the inherent jurisdiction of superior courts of record to grant
prerogative writs in order to enable a court to determine whether a public
sector body (i.e. a public sector agency or an inferior court) was complying
with the limits imposed by law.
Statutory Schemes
Commonwealth now has an all-inclusive statutory framework for judicial
review (Administrative Decisions (Judicial Review) Act 1977)
Some states have also instituted similar schemes (ACT, Tasmania, QLD)
COURTS' JURISDICTION TO ENGAGE IN JUDICIAL REVIEW
The Federal Court of Australia
Statutory Scheme
oADJR Act 1977, s 5
Statutory Conferral of Common Law Jurisdiction
oJudiciary Act 1903 (Cth), ss 39B(1), 39B(1A)
o(1A) The original jurisdiction of the Federal Court of Australia also
includes jurisdiction in any matter:
in which the Commonwealth is seeking an injunction or a
declaration; or
arising under the Constitution, or involving its interpretation; or
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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.
Judiciary Act 1903 (Cth), s44(2A)
o(2A) Where a matter in which the Commonwealth, or a person suing
or being sued on behalf of the Commonwealth, is a party is at any
time pending in the High Court, the High Court may, upon the
application of a party or of the High Court's own motion, remit the
matter, or any part of the matter, to the Federal Court of Australia.
Associated and Accrued Jurisdiction
oAssociated Jurisdiction
Conferred by s32 of the Federal Court Act
Extent allowed by the Constitution, jurisdiction is conferred on
the Court in respect of matters not otherwise within jurisdiction
that are associated with matters (the core matters) in which
jurisdiction is invoked.
'The conferral of jurisdiction in another, different, federal matter
in respect of which jurisdiction could be, but has not been,
conferred.'
Declined in importance since s39B(1A)(c) of Judiciary Act.
oAccrued Jurisdiction
An 'inherent' (i.e. common law) power of a superior court to
settle a controversy by dealing with all the issues that arise out
of 'common transactions and facts'.
Can include non-federal matters.
Example: An ADJR matter and a tort matter (e.g. wrongful
imprisonment) heard together.
Other Statutory Scheme
oUnder s 474, Migration Act 1958 (Cth) decisions under the Act are
final, so only limited jurisdiction (476A).
Does not preclude original jurisdiction of HC
oAppeal from the AAT (s 44)
Appeals to Federal Court of Australia from decisions of the
Tribunal
Appeal on question of law
A party to a proceeding before the Tribunal may appeal to the
Federal Court of Australia, on a question of law, from any
decision of the Tribunal in that proceeding.
The Federal Circuit Court
Statutory Scheme
oADJR Act 1977, s 5
A person who is aggrieved by a decision to which this Act
applies that is made after the commencement of this Act may
apply to the Federal Court or the Federal Circuit Court for an
order of review in respect of the decision on any one or more of
the following grounds:
os476, Migration Act 1958 (Cth)
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Document Summary
Courts ensure that decisions and actions of government are lawfully taken. Merits view considers whether decisions are substantively correct, judicial review considers the legality of the decision. General (nsw) v quin (1990) 170 clr 1, 35-6) A court in judicial review may review errors of law but not errors of fact. "the critical nature of the line drawn between factual and legal matters varies with the purposes it serves. " (mchugh & gummow jj in applicant s20/2002) Person seeking jr must make out a "ground of review". Commonwealth now has an all-inclusive statutory framework for judicial review (administrative decisions (judicial review) act 1977) Some states have also instituted similar schemes (act, tasmania, qld) Arising under the constitution, or involving its interpretation; or. 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. Associated and accrued jurisdiction: associated jurisdiction.
