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WEEK 4 Foundational Concepts of Judicial Review Judicial Review: A…

- - - - Green v Daniels (1977) 13 ALR 1; 51 ALJR 463, High Court of Australia;
        It also clarified that even if a decision was invalid, it was not open to the court to substitute the decision of the decision-maker with its own
- - - - Section 5
        Discuss grounds for judicial review of which the intent is to reproduce to common law grounds
        
        (a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
        
        (b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
        
        (c) that the person who purported to make the decision did not have jurisdiction to make the decision;
        
        (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
        
        (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
        
        (f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
        
        (g) that the decision was induced or affected by fraud;
        
        (h) that there was no evidence or other material to justify the making of the decision;
        
        (j) that the decision was otherwise contrary to law.
    - - Church of Scientology v Woodward (1982) 154 CLR 25
        
        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.
      - Four (4) leading cases
        limited scopes for review
        
        Chief Constable of the North Wales Police v Evans (1982) 3 All ER 141, House of Lords;
        
        Lord Hailsham LC in the House of Lords pronounced that the role of the courts is not to examine “the reasoning of the subordinate authority with a view to substituting its own opinion
        
        Lord Brightman; “(j)udicial review is concerned, not with the decision, but with the decision-making process.” He explained, “Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”
        
        Green v Daniels (1977) 13 ALR 1; 51 ALJR 463, High Court of Australia;
        
        Stephen J had an occasion to rule on what constituted as “unlawful” decision-making. It also clarified that even if a decision was invalid, it was not open to the court to substitute the decision of the decision-maker with its own
        
        Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223, Court of Appeal (UK);
        
        • The permissible grounds of judicial review include bad faith, dishonesty, and unreasonableness – commonly referred to as “Wednesbury unreasonableness”
        
        • Courts undertaking judicial review do not take the role of a court of appeal; and
        
        • Courts do not substitute their own decisions even when a decision of the Executive contravenes the law;
        
        • Courts do not act as an “arbiter of the correctness” of decisions, which typically involve discretion and public policy and are best addressed by the Executive – signalling the “merit” test associated with administrative review by administrative tribunals;
        
        • The courts will interfere with an act of the Executive only if it is shown that the act contravenes the law – highlighting the “legality” test of judicial review;
        
        Attorney-General (NSW) v Quin (1990) 170 CLR 1; 93 ALR 1
        
        legality/merit distinction and the scope and limits of judicial review were also discussed by the High Court
        
        Brennan J; indicated an “extremely confined” instance when the merits of a decision or action may be open to judicial review. That is when the decision or action shows “Wednesbury unreasonableness.”
        Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power
      - Grounds
        
        • Bad faith: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223;
        
        • Dishonesty: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223;
        
        • Unreasonableness (usually referred to as Wednesbury unreasonableness): Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223;
        
        • Attention given to extraneous circumstances: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223;
        
        • Disregard of public policy when required to consider it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223;
        
        • Failure to provide fair treatment: Chief Constable of the North Wales Police v Evans (1982) 3 All ER 141;
        
        • Inconsistency with statutory criteria: Green v Daniels (1977) 13 ALR 1; 51 ALJR 463;
        
        • Excessive or unlawful exercise of administrative power: Attorney-General (NSW) v Quin (1990) 170 CLR 1;
        
        • Beyond constitutional power or for being unconstitutional: Attorney-General (NSW) v Quin (1990) 170 CLR 1;
        
        • Beyond the power conferred by statute or by the prerogative of the Executive: Attorney-General (NSW) v Quin (1990) 170 CLR 1;
        
        • Inconsistency with the law: Attorney-General (NSW) v Quin (1990) 170 CLR 1;
        
        • Failure to abide by the rules of natural justice: Kioa v West (1985) 159 CLR 550; 62 ALR 321;
        
        • Jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 324; and
        
        • Error of law: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1, High Court of Australia.