In theory, judicial review is different from any administrative appeal or a complaint to the Ombudsman. A person seeking to obtain judicial review of a decision or action will seek an order from a court that a decision be set aside, that a proceeding be restrained or that certain action be taken by a government or statutory agency. However, a court will not normally attempt to direct a government agency as to which course of action it should follow.
In deciding whether to grant judicial review, the court looks at the methods adopted by the government agency or department in coming to a decision and determines whether:
The courts do not review the actual decision on its merits, but decide whether it was properly made. It is possible that the same decision will be made by government the second time around, this time strictly following the instructions of the court about what is lawful.
The courts have seen their role as supervising the decision making powers of the agency or department and ensuring that it stays within proper boundaries. The grounds on which the courts will base a decision have developed over several hundred years and are contained in a large number of English and Australian court cases, many of the more important ones decided in the past two decades. A person who wants to be absolutely certain of her or his legal position should seek specialist legal advice.
Commonwealth or State law?
A person seeking to obtain judicial review of a Commonwealth Government action must sue the government in the High Court of Australia or the Federal Court of Australia. A person wishing to obtain judicial review of a South Australian Government action must make an application to the Supreme Court of South Australia. There is the possibility of further appeal from the Supreme Court to the High Court of Australia.
Generally, the High Court and the Supreme Court have established similar review principles on cases involving similar facts. However, with the establishment of the Federal Court, an alternative method to decide a case is set out in the Administrative Decisions (Judicial Review) Act 1977 (Cth). This provides a better alternative to judicial review in the Federal sphere. Unlike the situation in the High Court and the Supreme Court where the judges look to the long line of case law, the power of judges in the Federal Court is set out in the Act.
Who can take action?
The courts do not permit just anyone who feels the government has behaved wrongly in taking a particular administrative action or administration decision to bring a case. It must first be shown that the person has standing to sue (that is a relevant or sufficient interest in the matter in dispute).
At one time it was necessary to show some interference with a legal right, especially a right of property. In recent years it has been recognised that there are many matters not involving the loss of property that can damage or affect peoples' lives.
A person clearly has standing to sue if she or he has personally been affected by a decision or action by government. Where the action in question is more general and does not operate specifically against a particular person, judicial review may be difficult to obtain. In recent years the test for standing has broadened to include persons or organisations who can demonstrate some special interest in the subject matter.
The representatives of a group may ask the appropriate Attorney-General to initiate proceedings on their behalf. This is called an Application for a Fiat.
Prerogative writs and equitable remedies
This rarely used group of remedies is historically important in understanding administrative law and is also important in relation to decisions for which there is no remedy.
A person who wants to challenge a government action by judicial review must be prepared to do so in a higher court. There are several problems facing anyone who considers such a step, including the relatively complicated legal work involved, the consequently high legal fees and the intimidating atmosphere of the courts, created by both the physical environment and the high level of legal argument.
The remedies available are limited in effectiveness since the courts are concerned, in theory at least, only with the legality of the process rather than whether the decision under challenge was the correct one. Furthermore, all the remedies are discretionary. The court may take into account such factors as delay in seeking the remedy, the futility or usefulness of granting it, and the hardship caused to others by granting it.
Equitable remedies potentially available are:
A declaration (sometimes called a declaratory order or declaration of right) is a formal statement from the court that a decision, act or procedure is unlawful. The government will normally comply with the spirit of the decision; the problem is that a declaration is not legally binding.
When a court makes an injunction, it may order the body which has acted unlawfully to take a particular action (a mandatory injunction) or, as is more usually the case, it may order that a particular unlawful course of action cease (a negative injunction). The courts are not inclined to make mandatory injunctions because they involve the court in continual supervision of the conduct of the person or body. A court will only issue an injunction if it is satisfied that the body which has acted unlawfully may, or will, continue to do so - that is, it is a discretionary remedy. This also applies to a declaration.
Mandamus is an order requiring a public body or official to perform a duty which it has failed to perform. The important point here is that the body or tribunal must be shown to have failed to carry out a duty.
Prohibition is an order to a lower court, tribunal or similar decision making body requiring it to cease proceedings. This order should be sought where a body has failed to exercise its jurisdiction properly or failed to provide natural justice, and these proceedings are continuing. However, it should be noted that as a matter of practice people seeking judicial review of a Commonwealth body's processes in the High Court always seek prohibition regardless of whether an order has been made.
Effectively, certiorari is an order setting aside the decision of an authority. After a decision-making body has finished its proceedings and made an order, and when there has been an alleged error or abuse of process by the decision making body, the appropriate remedy is an order for certiorari to transfer the proceedings to a higher court so the matter can be reheard, and the decision of the lower court quashed (set aside). Certiorari can be sought where there has been absence or excess of jurisdiction, jurisdictional error or error of law on the face of the record, failure to observe the requirements of procedural fairness or fraud.
An order preventing a person from wrongfully exercising, or purporting to exercise, functions of a public character.