Administrative decision Is merits review available?

Seek merits review (e.g. at a tribunal).

Seek judicial review which JR regime applies: the ADJR Act; the constitutional/Judiciary Act/common law; or a specific legislative JR scheme?

Which court has jurisdiction? What does the legislation provide for?

Does the applicant have standing to seek JR? Does he or she satisfy the standing test? Is a JR remedy available?

Are the other justiciability requirements met? Under the ADJR Act, is there a decision/ conduct of an administrative character made under an enactment? Is there a matter? Does the dispute raise polycentric issues?

If all of these requirements are satisfied, consider: JR grounds; and the applicability of remedies.

Initial administrative decision by government agency

1
Internal review by same government agency

3
Ombudsman (Investigation and mediation) Jurisdiction? How to commence?

2
Tribunal (Merits review) Jurisdiction? Standing? Grounds of merits review?

4
Other forms of review e.g. the Australian Human Rights Commission

Outcome: Recommendation to government agency

Outcome: New administrative decision

Outcome: Depends upon the nature of review

5
Courtjudicial review Which court? Justiciability? What remedies? Grounds of judicial review?

If applicant is successful in judicial review, usual relief is to remit decision back to tribunal.

Outcome: Either affirm original decision, or grant relief.

(1)

Internal review: An officer within the agency with the same or greater powers than the original decision-maker must conduct the review. A common sense approach should be adopted in considering this: o The decision of a Minister cannot be the subject of internal review (as he or she is the most senior decision-maker in the department). o Internal review is more likely to apply to low-level decisions. o Internal review cannot be undertaken if the decision was made under a specifically conferred power (i.e. if the empowering statute vests a power exclusively in one individual officer).

(2)

Merits review: Concerned with whether the correct decision has been made (i.e. the substantive decision) on the basis of the facts, whereas judicial review is concerned with the legal processes at play Question to be asked is: what are the legal criteria that apply to this particular decision? (For example, in the context of a refugee decision: does this person meet the particular legal criteria for being a refugee?) AAT: o When determining jurisdiction, look to two statutes: (a) (b) the AAT Act s 43; and the Act under which the decision was made, which must positively enable merits review at the AAT. s 27(1) interests affected by the decision (similar to the common law test) s 27(2) goals or objectives of an association (not an individual) affected by the decision (very different from the common law test and specific to the AAT there is no equivalent test for judicial review)

o when determining standing, look to: (a) (b)

Grounds for review simply concern the appropriateness of the applicants case in respect to the firstly the relevant legislation, and secondly the relevant policy or policies. Review is de novo.

(3)

Ombudsman: requires a complaint (or self-initiated) focus on achieving a compromise that satisfied both the aggrieved party and the original decision-maker cannot review certain decisions (e.g. ministerial decisions)

(4)

Other forms of review (e.g. AHRC):

 (5)

informal and substantively similar to the process undertaken by the Ombudsman

Judicial review: If a decision has been reviewed by a tribunal, any issues with the original decision are irrelevant, as that decision has been effectively overridden. What judicial review regime applies? o ADJR Act? (Preferable, most flexible: was the decision of an administrative character, made under an enactment.) o Common law/constitutional? (Prerogative decisions can only be challenged under this route, as they are not made under an enactment.) o Specific statute? Does the applicant have standing? o ADJR Act? (Preferable, most flexible: was the decision of an administrative character, made under an enactment. Other restraints apply.) o Remedies will have an impact on whether the applicant has standing. o Is the issue polycentric? What ground(s) of judicial review might be available in respect of this category of administrative decision-making?