It has been perceived that the rule of law is one manifestations of a civilized state. Rule of law is what governs the executive, legislative and judicial rulers; they are ought to exercise the duty they are entitled to do in accordance to public expectations. It is not astonishing to see therefore that the existence of judicial review in Australia is based from the assumption that error of law may exist in the decision given by decision makers. Due to the adopted system of government in Australia, judicial review in the federal level is made possible by the Constitution while judicial review involving statutory appeals is under the Administrative Decision (Judicial Review) Act of 1977 also known as the ADJR Act. However, despite the existence of two judicial review bodies in the country, there are still certain flaws arise especially in upholding the principle of protecting the citizens against the abusive power of the executive. This paper aims at discussing how judicial review in Australia merely concentrates on ascertaining the limits of the decision-maker instead of the real issues of the case. What are the limitations of the decision-maker and how does it affect the process of judicial review? To what extent can we say that judicial review under the administrative law in Australia has successfully upholds its supposedly principle?
The Principles of Judicial Review
In a definition given by a former Chief Justice, 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.”Based from this definition, it is clear from this claim that the primary purpose of the existence of judicial review is to protect the citizens against the power of the executive. Judicial review is one of the attributes of checks and balances in the government. It preserves the lawfulness of any administrative decision.
Constitutional Judicial Review and ADJR Act
Under the Constitution, the court can issue the following remedies: mandamus, prohibition and certiorari. The primary ground for judicial review under the constitution is jurisdictional error. Jurisdictional error “arises if the decision-maker makes a decision outside the limits of the function of the function and powers conferred on him or her, or does something which he or she lacks power to do.”Jurisdictional error is a condition when a decision-maker made an error with regards to the scope of its power. This shows that the framework in judicial review process under constitution is the behavior of the decision-maker; whether or not he made a decision under his jurisdiction.
Under ADJR, any person can apply for administrative decision judicial review if he believed that he is aggrieved to the following grounds: breach of the rules under natural justice; procedure made outside the requirement of the law; lack of jurisdiction; lack of authorization by the enactment; error of law; fraud; lack of evidence to justify the decision made; decision made contrary to what the law says and; improper exercise of power.This gives us insight that the ground of judicial review under the Act is the legal process of the decision made.
There are differences that exist between constitutional judicial review and ADJR; the former is “based on the identity of the decision maker” while the latter focuses on the “nature of the decision made.”Even if both judicial reviews differ in bases, it still shows that the bases for judicial review in Australia is not whether or not the rights of the citizens have been infringed but on the limits of the decision-makers. This may be accounted to the attributes of federal form of government in the country. Considering the federal form of government in Australia, each lower court has judicature.Therefore, the limit of their jurisdiction is paramount to consider.
It is also noteworthy to include the specific limits of the decision-makers in order to see the scope and ambit of their power. Jurisdiction does not exist in the following instances: “1.) entertaining a matter which lies outside the limits of the court’s power; 2.) acting in the absence of a jurisdictional fact; 3.) failing to consider a matter that the relevant statute requires to be taken into account as a condition of jurisdiction, or considering an irrelevant matter, and; 4.) misconstruing the relevant statute in a way that leads to the decision maker misconceiving the extents of its powers.”  These instances will be discussed further so as to see the focus of judicial review in Australia and the limitations of decision-makers.
One relevant case that we will look upon is the Migration law in Australia. There were several cases under Migration Act over the past decade which supports our claim that judicial review focuses only in ascertaining the limits of the decision-maker. The most prominent of these cases were Kioa v West (1985)159 CLR 550 and Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648. These cases identify the problem with Ministers who exercised their discretion to deport people in the country. Migration Act gave the right to administrative officials the discretion towards people seeking entry to the country. Judicial review regarding the laws on migration was made possible under ADJR Act. The application of review should successfully prove that there is a breach of rules that existed in the decision. The problem however is, the Migration Act (1958) in the country pre-existed the ADJR Act (1977). Haoucher and Kioa cases show the limitation of jurisdiction of the court to review decision regarding migration.
Cassimatis (2010) also cited one issue, appeared in General Newspapers Pty Ltd v Telstra Corporation (‘Telstra’)112. The decision was made by government-owned corporations by which it allows the applicant “to enter into contracts with competitors.” Under ADJR, the scope of the review was made difficult by the requirement of “under and enactment.”This requirement gives jurisdictional power over decisions involving “Ministers, public servants, administrative tribunals…but not decisions of the Governor-General”Analyzing the case above, it shows that the corporation is outside the “under an enactment” requirement of the ADJR Act. However, the person who made application made use of the s 161 of Corporations Law stating that corporations have “legal capacities of natural persons”.In the end, the Court convicted that under ADJR Act, s 161 of Corporations Law does not satisfy the “under an enactment” requirement.
The same story goes with the Taxation Law. In an instance, judicial review involving taxation is covered by ADJR Act. A taxpayer can seek judicial review against the decision of a Commissioner by virtue of the provision in Part IVC in the Taxation Administration Act of 1953. Ideally, upon the success of filing a review, the court can ask the Commissioner to take the necessary action toward the decision. But the power of the decision-maker can be challenged under the Income Tax Assessment Act of 1936, section 175. This provision states that “the validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with.”This provision limits the right of the ADJR Act to make tax assessment decisions. This manifests the limit of the decision-maker to hear the case. These two cases show that the court focuses on ascertaining the limits of the decision-makers thus ending up disregarding the real matter of the judicial review case. There is no clear provisions on uniting the overlaps of statutory laws and the “under the act” requirement, thus, ending to preserve the jurisdiction of the decision-maker to hear case.
Still in line with ADJR Act, the Act addresses statutory issues but excludes statutory review that involves the action of Governor-General. This implies that this judicial review does not cover all issues which the rights of the citizen might be on stake. Governor General represents the power of the Queen since Australia is also a constitutional monarch. Assumingly, if the Governor-General executed a decision that strictly shows that the rights of the man have been infringed, where does the court stand? Of course, using the provision from ADJR Act, the limit of the decision-maker to review the decision made by the Governor-General will be strictly implemented. These cases fall to the first condition of the limitation of the decision-maker; entertaining a matter which lies outside the limits of the court’s power. In addition, the power of review of ADJR Act is also limited to decisions made under an enactment; excluding non-statutory issues. This is the issue raised by Cassimatis regarding procurement decision in Australia following non-statutory procedures.Procurement with statutory procedures is subjected to judicial review but those which have non-statutory procedures cannot be subjected to review with respect to ADJR Act.
The process of getting judicial review under the Act also shows a mere reflection of a tug-of-war of proving who establishes the truth between the person who made the decision and the person who applies for judicial review. Section 13 of the act discusses the process of getting judicial review. The person who is applying for judicial review should successfully establish the reason before granting him the review. Under the Act, the decision maker who allegedly made a decision should also make a statement justifying his decision. Looking intently, the court only requires the successful establishment of the breach of the rules from the person who applies for a review while for the person who made the decision, a successful establishment of the ground of reasoning for the decision made. This section reflects the limited power of the Court to directly involve in the process of ascertaining whether there has been breach of rule.
This is connected to what one organization has asserted; the framework adopted by judicial review does not have a clear say regarding human rights. According to an independent group, the National Human Rights Consultation Committee, the judicial review in Australia should have a clear distinction with regards to the framework being used by decision-makers in judicial review and human rights review. This organization asserts that the judicial review merely focuses on the review of procedure during decision-making process and not on the basis whether the decision made infringed human rights.In an instance, when a person successfully applies for judicial review concerning his taxation rights, the court does not look at the real issue of the case rather dwells on what ground does the decision-maker made his or her decision.
The primary duty of judicial review in Australia is to review whether or not the decision-maker has followed the correct legal procedure. Unlike merits review, judicial review is “not a re-hearing of the merits of a particular case”.This does not guarantee that a new decision can be made after the review. This suggests that judicial review does not guarantee a new decision from the court. Judicial review process in Australia is concentrated on the process of decision-making.
The judicial review in Australia reflects a process of jurisdictional error policing. The problem however is, under the federal government, the court is limited by jurisdiction to hear an application of defendant. It amounts to “nothing more or less than keeping administrative decision-makers within the express of or implied limits of the jurisdiction conferred on them by statute.” To put it simply, decision-makers are confined to a scheme where they can only exercise their power within their jurisdiction and outside their jurisdiction is nothing but invalidity and error. Judicial review is supposed to look at the concerns being raised by the person who applied for it. In Australian context, it is the process of ascertaining the lawfulness of the decision-maker. There are many instances presented above how judicial review turns out to be a process of ascertaining the limits of the decision-maker rather than looking at the real case. The judicial review is designed to be the institutional integrity of Australian Court. Going back to our research question, to what extent does the administrative law upholds its principle; the answer is it fails to guard the citizens against the abusive powers of the executive. Possibly, reforms may be made in order to address this issue.
Administrative Decisions (Judicial Review) Act 1977.
Administrative Review Council (2011). Judicial Review in Australia. Commonwealth of Australia.
Cassimatis, A. (2010). Judicial Attitudes to Judicial Review: A Comparative Examination of Justifications Offered for Restricting the Scope of Judicial Review in Australia, Canada and England. Melbourne University Law Review, vol. 34. pp. 1-33.
Downes, G. (2011). Judicial Review. Administrative Appeals Tribunal.
Foley, K. (2007). Australian Judicial Review. Washington University Global Studies Law Review. pp. 281-338.
Gageler, S. (2010). Impact of Migration Law on the Development of Australian Administrative Law. Thomson Reuters, AJ Admin L (92), pp. 92-105.
Groves, M. and Lee, H. (2007). Australian Administrative Law. Cambridge University Press.
Mason, K. (2006). The Rule of Law, Judicial Review and the Public-Private Divide. New Zealand.
 Mason, K. (2006). The Rule of Law, Judicial Review and the Public-Private Divide. New Zealand. n.p.
 Groves, M. and Lee, H. (2007). Australian Administrative Law. Cambridge University Press. p. v.
 Downes, G. (2011). Judicial Review. Administrative Appeals Tribunal. n.p.
 Administrative Decisions (Judicial Review) Act 1977.
 Administrative Review Council 2011, p. 58.
 Foley, K. (2007). Australian Judicial Review. Washington University Global Studies Law Review. p. 289.
 Craig v South Australia (1995) 184 CLR 163, 177–78 as cited from Administrative Review Council (2011). p. 40.
 Gageler, S. (2010). Impact of Migration Law on the Development of Australian Administrative Law. Thomson Reuters, AJ Admin L (92), p. 95.
 Cassimatis, A. (2010). Judicial Attitudes to Judicial Review: A Comparative Examination of Justifications Offered for Restricting the Scope of Judicial Review in Australia, Canada and England. Melbourne University Law Review, vol. 34. p. 19.
 Ibid. p.19.
 Ibid., p. 19.
 Ibid., p. 19.
 Ibid., p. 19.
 Cassimatis, A. (2010). Judicial Attitudes to Judicial Review: A Comparative Examination of Justifications Offered for Restricting the Scope of Judicial Review in Australia, Canada and England. Melbourne University Law Review, vol. 34. p. 25.
 Administrative Review Council 2011, p. 17.
 Administrative Review Council 2011, p. 30.
 Gageler, S. (2010). Impact of Migration Law on the Development of Australian Administrative Law. Thomson Reuters, AJ Admin L (92), p. 104.
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