LAWS2201 Lecture Notes - Lecture 5: Jurisdictional Error, Justiciability, Determinative
Judicial Review (JR)
Legal/Merit Distinction
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Facts:
• Concerns the fitness for office
• Mr Quin and other four other magistrates were not appointed to a new magistrates court system
• In NSW Court, Macrae successfully argued they had been denied procedural fairness in the processes leading up
to their non-appointment under the new scheme
• The AG announced a new policy after that decision to appoint on a merits selection, before it was existing
magistrates be reappointed unless considered unfit
• Mr Quin was not reappointed under the new policy and successful sought a declaration from the NSW Court of
Appeal that his appointment before determined with earlier policy
• The AG appealed and won , the declaration was set aside.
Decision: Brennan J
• Judicial review provides no remedies for protecting individual interests
• JR can set aside decisions when its exercise is excessive/unlawful
• Victoria v The Commonwealth and Hayden (1975) 134 CLR 338, Gibbs J: the duty of the courts extends to
pronouncing the validity of the executive action when challenged on the ground that it exceeds constitutional
power
Marbury v Madison: it is the duty of the judicial department to say what the law is
• The duty and jurisdiction do not go beyond declaring and enforcing the law which determines the limits and
governs the exercise of repository's power
• No jurisdiction to cure administrative injustice
General
Capacity to obtain judicial review
1. Does the court have jurisdiction?
2. Is there a ‘matter’?
3. Is the matter justiciable?
4. Does the applicant have standing?
5. Is there an appropriate ground of review which results in jurisdictional error?
6. Is there an available remedy?
7. Has obtaining a remedy been validly excluded by statue?
Legality/Merits
• it is the duty of the court to declare and enforce the law, the court has no jurisdiction to cure injustice of error
• the merits of administrative action are for the repository of the relevant power
ADJR
In order to obtain judicial review under the ADJR, need to establish
1. there is a decision
2. of an administrative character
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3. made under an enactment
Scope
Decisio
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Facts:
• The ABT convened an inquiry into whether or not companies holding television licences in QLD continued to
be 'fit and proper persons to hold the licenses'.
• The tribunal found Mr Bond was not a fit and proper person, but had not yet determined if the licenses should be
revoked/varied.
• Mr Bond was fair obstructively, tried to bring up small issues,
• Mason CJ held in the HCA that ‘decision’ should be final or operative and determinative
• Finality element includes steps along the way which are specifically mandated by statue
• Decisions have to be substantive determinations
Adi character
If the decision is neither legislative nor judicial, it is administrative- Burns v ANU
• Character is deduced from a number of factors, including whether the decision:
i. creates new rules of general application, rather than applying existing rules to particular cases; - legislative
Federal Airports Corporation v Aerolineas Argentinas: the FC held the determination by FAC to change the
legally required generally applicable landing charges was administrative in nature. The commercial nature of the
decision-maker, indicated the decision was in execution or administration of the Federal Airports Corporation
Act.
ii. cannot be made until there has first been wide public consultation;- legislative
iii. incorporates or has regard to wide policy considerations;
iv. can be varied or amended unilaterally by its maker, the analogy being to primary legislation;
v. cannot be varied or amended by the Executive;
vi. is not subject to merits review in a tribunal such as the AAT;
vii. can be reviewed in Parliament (for example, it is a disallowable instrument);- legislative
viii. triggers the operation of other legislative provisions; and
ix. has binding effect.
uder a eactet
• excludes non-statutory decisions, specifically decisions made under delegated legislation or soft law
• statutory recognition of a contractual arrangement is insufficient: Chapman ASX
• the ‘corporate status’ of AWBI was decisive that it had not made a decision under an enactment in NEAT
NEAT Domestic Trading pty ltd v AWB Ltd (2003) 216 CLR 277
Facts:
• AWB(Australian Wheat Board) was owned by Australian wheat growers who sold their wheat into a common pool
for export under the 'single desk' policy
• Anti-competitive trading
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