TOPIC 2: Jurisdiction to Conduct Judicial Review
Think about why we use judicial review in the first place*
Superior courts have jurisdiction conduct judicial review. Judicial review involves the review of the legality of an executive decision maker, to ensure a) correct legal reasoning and b) correct legal procedures are followed.
The Superior Courts can either utilise the CL or Statute (ADJR)
ADJR ACT
P will seek judicial review by applying for an ‘order of review’ (s11 ADJR Act) in the Federal/Federal Circuit Court (s8) for the decision
Requirements for jurisdiction under the ADJR Act:
1. Application must be a person aggrieved s3(4) (Standing, see Topic 3)
2. A decision to which this Act applies s3(1)
2.1. There must be a decision (s5) conduct related to decisions (s6) or failure to make a decision (s7)
2.2. Decision is of an administrative character
2.3. Under an enactment
2.4. Decision was not a decision of the GG, of any of the classes listed in Sch 1 or in the Regulations to the ADJRA.
2.1. Decision, conduct related to decisions, failure to make a decision
S3(3) ADJR states that the where legislation provides that a report or recommendation is made before the making of the final decision, the report or recommendation is a decision
S3(5) Conduct engaged in for the purposes of making a decision including reference to any doing of an act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation.
2.1.1. Decision s5
CL definition: Australian Broadcasting Tribunal v Bond (1990)
Facts:
Bond controlled a number of broadcasting companies which held broadcasting licenses
To hold such licences, licensee must be a fit and proper person
There were a number of allegations such as bribery and threatening of business competitor that caused the ABT to conduct an inquiry under s17C of the Broadcasting Act 1942(Cth) into the fitness and propriety of the Bond and Companies to hold licences
ABT inquiry found that
a) Bond was guilty of serious misconduct
b) Bond was not a fit and proper person to hold broadcasting licence
c) Bond had effective control over the companies which held broadcasting licences hence the companies were not and fit and proper either
Bond challenged the ABT’s findings pursuant to s5 (Decision) and s6 ( Conduct related to decisions)
Issue:
Were the findings of the ABT a) b) and c) a ‘decision’ pursuant to s5 of ADJRA, or alternatively were they ‘conduct’ pursuant to s6 of the ADJRA.
Principle: Per Mason CJ
A decision for the purposes of s5 is:
a) A final decision
b) An intermediate decision leading to a final decision if the legislation provides that the intermediate decision must be made before making the final decision ‘Decision’ is one for which provision is made by or under statute
Decision will generally be final or operative and determinative, i.e a substantive and not procedural decision
On the facts,
The ABT’s findings that Bond was guilty of serious misconduct and not a fit and proper person was not a decision pursuant to s5, only revocation, non-renewal or imposition of conditions on the licence would be decision.
At this stage, ABT had not revoked, not renewed or imposed any conditions on the licence.
Intermediate decision was NOT specifically required by the legislation to be made
However, finding 3 that companies as actual holders of licences were not fit and proper persons to hold broadcasting licences, although not a final decision, was an intermediate decision required by the legislation to be made before a final decision could be made, therefore Bond did have jurisdiction under s5 of the ADJRA.
2.1.2. Conduct related to decisions s6
i.e taking of evidence/holding an inquiry or investigation s3(5) ADJR
Conduct is essentially procedural and not substantive in character (Bond per Mason CJ)
A challenge to conduct is an attack upon the proceedings engaged in before the making of that decision. Process