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Initial Steps of Judicial Review

Is it a state or federal matter?
For State Supreme Court of NSW etc.
For Federal Federal Court of Australia (Cth) (unless there is an ouster clause). ADJR Act 1977 (Cth)
must be a decision of an administrative character, made under an enactment. Section 3(1)
A decision is one which a statute requires or authorises, rather than a step taken in the course of
reasoning on the way to the making of the ultimate decision. Australian Broadcasting Tribunal v Bond
Courts are careful not to exercise their powers for judicial review if they suspect private powers are at
play. i.e. a contractual arrangement not enactment. General Newspapers v Telstra
OR; HCA has original jurisdiction to issue Constitutional Writs under s75 of the Constitution in cases where:
(i). the cth or a person suing or being sued on behalf of the cth is a party
in which a writ or mandamus or prohibition or an injunction is sought against an officer of the cth.
Ouster Clause: ineffective e.g in migration act an ouster clause cannot be interpreted as intending to exclude the
jurisdiction of the HC. It would be unconstitutional to do so, so the ouster clause was ineffective
Is the matter appropriate for judicial consideration? -Mason J, A non-justiciable decision is one where a court
considers that the decision-making function lies within the province of the executive [or parliament] and that it is
inappropriate that the courts should trespass into that preserve.
Courts will be reluctant to intervene in sensitive political or national security decisions Re Dilfort; Ex parte Deputy
Commissioner of Taxation (1988)
Court has dismissed cases that question the power of ASIO stating they are able to act beyond the limits of the ASIO
Act Church of Scientology v Woodword (1982
National Security is limited, however courts are able to go above this when offences against a person involves
failure to preserve human rights Hicks v Ruddock (2007). Public interest must outweigh Procedural fairness in the
particular circumstances of this case (Leghaei)
Foreign Policy: NOT JUSTICIABLE >matter was one of a political matter in the interests of foreign policy and thus the
courts could not review such a decision Aye v Minister for Immigration [2010].
Does the applicant have sufficient standing to bring the matter?
Federal Court; person who is a aggrieved by a reviewable decision or conduct (s. 5 for Decision and s. 6 for
conduct. Person aggrieved = person whos interests are adversely affected s 3(4) (Here if ouster clause, HC will
have jurisdiction under 75 Consti. ADJR test wont apply but CL test will as HC cannot be ousted from a hearing
issue. If legislation doesnt allow standing = ouster clause). SO ADJR remedies!
State Courts: Common Law; special interest. More than a mere emotional or intellectual concern. He is likely to
gain some advantage if successful or suffer a disadvantage if not
- A corporation does not acquire standing bc some of its members possess it. Community organisation must have

a close relationship with subject matter (peak environmental group). North Coast Environmental Council v
Minister for Resources (1994)
- Having an economic interest in the matter will give rise to standing Batemens Bay (1998)
- HCA mere stranger may apply for constitutional writs (McBain; Ex Parte Australian Catholic Bishops Conference
- 44 of the Judiciary Act 1903 (Cth) permits the HC to remit matters that are initially brought under its original
jurisdiction Federal Court.
Delegated Legislation
Delegated legislation is legislative decision making by non-parliamentary officials to whom power is delegated by the empowering statute. >
essentially a transfer of law making power. Instruments of legislative character made in exercise of a power exercised by Parliament requires
(Legislation Act 2003 (Cth) 15K (31 legislative Instruments Act = repealed)
- public consultation
- publication in legislative instruments register; lack of publication will render a regulation inoperative rather than invalid (Watson v Lee)
- tabling within six sitting days and published in both houses of parliament (so it can be scrutinised by committees) s38(3).
- 10-year sunset clause

preference to promoting the purpose of the act 15AA Acts Interpretation Act 1901.
possible to refer to extrinsic materials in determining purpose & meaning including explanatory memorandum, second reading speech, law
reports tabled in Parliament, and international treaties. 15AB

Presumption that statutes are not intended to invade common law rights such as free speech, property and contract rights
presumption 2: minimise discrepancy between domestic and international law

Questions to ask:
1. Is the delegated legislation within the power of the parent act?
2. Is the decision authorised by the delegated legislation?
THUS important to interpret the statute

{Not important but incase)

The government may protect judicial review from being sought in relation to delegated legislation through an As if enacted ouster clause
which would confer power to that delegated legislation as if it were a piece of statutory legislation. This was held in Foster v Aloni [1951] VLR
481 where the court held it was required to give the language of the power full effect (head . 252)
But this is only the case when (1) an essential statutory procedural requirement had not been complied with, (2) the delegated legislation was
inconsistent with the parent act and (3) the delegated legislation was patently or absurdly irrelevant to the parent act.

Has the decision maker exceeded power?

(1) Ascertain the meaning of the empowering act
(2) Examine the scope of the regulation or decision made under it
(3) Decide whether the latter is authorised by the former

(has the decision
maker gone beyond
what was authorised
by the parent act.
Generally no power
unless granted to
them by statute)

S 5(1)(d)

(A statutory
obligation, that must
be done, has not

Administrative power restricted to the field of operation of empowering statute. General provisions cannot be
construed to go beyond the power of the act. Shanahan v Scott (1957)
A statute that stipulates council can only run tramways, does not authorise the council to run bus services London
City Council v AG [1902]
Secondary activities may be valid if they are necessary incidental to a power
Provisions that are too vague and allow for discretion will be uncertain ability to set prices using a discretionary
formula did not comply with requirement to specify prices . King Gee Clothing v Cth (1954)
Unclear on the meaning of misbehaviour - not specific enough, too vague Vanstone v Clarke [2005] contract to
Foley: Too wide/generous
Strict approach; unless the statute specifically refers to the power it will be beyond it; ability to make regulations
for or with respect to regulating, controlling and prohibiting the emission or air impurities from fuel burning
equipment or any air impurity source did not permit a regulation prohibiting open fires without approval. Paul v
Munday (1976)
The power to regulate does not include the power to prohibit Melb Corp v Barry (1992)
Ability of council to make by-laws regulating, controlling or prohibiting any activity in the Mall that would likely
effect the use or enjoyment of the mall included the right to make a by-law that prohibited the distribution of
anything in the mall w/o council permission. Foley v Padley (1984) = too wide and generous
E.g. The Administrative Appeals Act 1975 (Cth) provides that, subject to specific exceptions, a decision-maker must
notify those affected by a reviewable decision of the decision and their rights to appeal.
Must distinguish between mandatory procedures and directory. Project Blue Sky Inc v Australian Broadcasting
Authority (1998), HC adopted the approach that procedural requirements must be interpreted by inferring
parliaments intention as to the consequences of a failure to abide by procedural prescriptions. > no distinction to

been complied with)

Section 5(1)(b) ADJR


Purpose and Bad
s5(2)(c) - (d)

what requirements are directory and what requirements are mandatory

HCA considered a procedural requirement as directory when a third party would be affected ABC v Redmore (1989)
Not fulfilling notice & consultation requirements would have serious consequences, given the policy of public
involvement, and were therefore a mandatory step. Norvill v Chapman (1995) Minister failed to sufficiently meet
notifi and consultation requirements in Heritage Protection Act
- Guiseppe v Registrar of Aboriginal Corporations [2007] FCAFC 91 (MUTITJULU CASE): Guiseppe was in charge of
local aboriginal council which the act had jurisdiction over -the act said that before a person could be removed, they
had to be given a reasonable period of notice, the minister only gave Guiseppe 24 hours notice. Held: Fed Court
found that by stat interpretation 24 hours was not a reasonable period (were interpreting the word reasonable).
The court said in the circs that 24 hours WOULD NOT violate procedural fairness, so this is an example of an act
going beyond what procedural fairness would have required. this case is not a general rule for interpreting
reasonableness, but merely how the word reasonable was interpreted in the context of this act -But PF not
breached: therefore no adverse allegations
- Formosa v Secretary, Department of Social Security: Formosa was advised by the department of social services that
she didnt need to apply for the pension that it would be done automatically. thats not the case, misleading advice,
didnt get the pension for months. Formosa appealed saying that she shouldve been entitled to the pension
because she had been given the wrong advice. HC rules that the act is explicit in saying that pension must be
written, so it is irrelevant that she got the wrong advice from the counter person at the department social services.
Courts can also declare legislative instruments to be ultra vires for being uncertain, unreasonable, enacted in bad faith
or for improper purpose: Re Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993).

Relevant and
s5(2)(a) - (b):

That the power was exercised for a purpose not authorised by the Act ? What it was intended by the Act?
Would the decision have been made but for the improper purpose.
Partial Improper purpose = IM! Council purported acquire land for purpose of improvement and embellishment of
the area as was permitted under the Act, but went further by intending to sell some of the resumed land for profit.
HELD not necessary that an ulterior purpose should be sole purpose Thompson v Randwick Council (1950)
Issue: Whether purpose of authorities was blocking the aboriginal land claim? HELD: Gov decision so it was bound
by the same rules of purpose. Must look beyond the regulations purported to ascertain the true purpose. Redrawing the boundaries, the purpose of excluding potential land rights claims. R v Toohey (1981)
Dual test requires both positive obligation to consider relevant material and negative obligation not to consider
irrelevant material
Distinction between matters the decision-maker is entitled to consider and matters he is bound to consider (Dean J
in Sean Investments v Mackellar (1981)
Failure to consider the detriment caused on third parties amounts to abuse of power
A minister is bound to consider a companys submissions to a plan when they have a commercial interest in the

Failing to take into

account in the
exercise of power

ss and

(dont use)

No Evidence

matter. Case involved an aboriginal land claim in location where Peko-Wallsend had applied for uranium mining
leases. Minister not being aware of the submissions was not a defence (delegation was not possible in the circs)
Minister for Aboriginal Affairs v Peko-Wallsend (1986).
- Due allowance may be made for broad policy considerations in relation to Ministers
- Considerations that are unconnected with proper govt. administration are irrelevant considerations, including
embarrassment to the government. Padfield v Minister of Agriculture, Fisheries and Food [1968]
- Failure to take into consideration relevant matters will only exist if the decision maker failed to consider something
that he was in the circs bound to take into account (R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980))
- A breach committed in either two ways: Gwandalan v Minister for Planning [2009]
1. By a failure to consider a relevant matter of which the decision maker had active or constructive knowledge. A
person challenging decision will have to establish two matters: an express or implied statutory obligation on decision
maker to consider a particular matter; and a failure by the decision maker to discharge that obligation.
2. By a failure of the decision maker to conduct an inquiry to obtain potentially relevant information.

A decision is so unreasonable if no reasonable decision-maker could have made it Wednesbury Corp [1984]
Furthermore, an unreasonable decision is one for which no logical basis can be discerned. It is therefore a very high
threshold and challenging to establish. MIEA v Eshteu (1999)
- However, Decision maker ought to make inquiries that would reveal facts that would put a different perspective on
the matter Prasad v MIEA (1985)
- Discrimination (Parramatta City Council v Pestell (1972) 128 CLR 305). Make different rates for different types of land,
there it is unreasonable due to being discriminate. Reasonable inquiries (Prasad v Minister for Immigration and Ethnic
Affairs (1985) 6 FCR 155)A decision maker has to take into account, all reasonable information that is available to him/her.
Disproportionality (South Australia v Tanner (1989) 166 CLR 161) If you use a power which is disproportionate/connect to
what the case is about than it will be seen as unreasonable.
King Gee Clothing v Commonwealth (1945) 71 CLR 184 Held: Dixon J ruled out uncertainty as a ground of invalidity
>simple ultra vires instead. However, it was held that a prices order set a complex formula for prices was too
discretionary and lacking in terms of setting objective standards.
-Racecourse Cooperative Sugar Association v Attorney General (1979) 142 CLR 460 Held: Vague measures did not
determine and declare price, as required by the Act > But ADJR Act lists uncertainty in s5(2)(h) (a aggrieved person
may apply to the federal court if an improper exercise of power is construed as including (h) an exercise of a power in
such a way that the result of the exercise of the power is uncertain)
ADJR Act s6(2)(h) (same provision but for Applications for review of conduct related to making of decisions)

If there is a lack of evidence underpinning a decision, that decision may be reviewable. Evidence that Stevedoring
failed to detect minor misdemeanours not sufficient to justify a decision that the company was unfit to continue to
operate. R v Australian Stevedoring Industry board (1953).

Application of

A tribunal is bound to require rationally probative evidence and not base their conclusion on mere suspicion or
speculation Aus Broadcasting Tribunal v Bond. Italian immigrant ordered to be deported on the basis of police
evidence that was deemed suspicion, opinion and hearsay. MIEA v Pochi (1980)

Basically a decision maker cannot shut his ears/turn blind eye to an application. A statutory decision maker may
lawfully adopt a policy as a guide to making particular decision, provided that the policy is not applied inflexibly and
a particular applicant is not denied the opportunity to argue that the policy should not apply to their case.
Blanket application of policy without considerations of particular facts reviewable Green v Daniels (1977) Green was
denied unemployment benefits. She was told that she was not entitled, but she was. The office failed to exercise the
power that they had. Stephen J held that the policy applied was inconsistent with the eligibility requirement for
unemployment benefits set down by the parliament
Proper, genuine and realistic consideration to the merits of a case must given, and a decision-maker must be ready
to depart from policy. Hindi v Minister of Immigration (1988).

Acting under

A decision-maker must not be bound by the direction of anyone else in making a decision that he has discretion to
make under a statute.
When performing a function that is virtue of an office that is accountable to the minister, the decision-maker is not
accorded a personal discretion but must consider policy. Windeyer J in R v Anderson; Ex parte Ipec Air (1965).
Where statute invests a discretionary power in an individual office holder or body, it must actually exercise that
discretion according to the circumstances of the case and not be bound by the discretion of anyone else, including a
superior body or minister.
However, it has also been argued that a decision-maker ought to have regard to relevant government policy but
not abdicate the responsibility of making a decision by acting merely on a direction given by the minister. Mason J
obiter in Ansett Transport Industries v Cth (1977).
ADJR Act s5(2)(e) and s6(1)e provide for a review of exercises of decision making power: where a statute invests
discretionary power in an individual office holder or body, they must actually exercise that discretion according to
the circumstances of the case, and not be bound by the direction of anyone else, including a superior body or
minister (Head p. 180).
S5 Applications for review of decision: (2) The reference in paragraph (1)(e) to an improper exercise of a
power shall be construed as including a reference to: (e) an exercise of a personal discretionary power at the
direction or behest of another person;
S6 Applications for review of conduct related to making of decisions: (1) Where a person has engaged, is
engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a
person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit Court for an order of
review in respect of the conduct on any one or more of the following grounds: (e) that the making of the proposed


decision would be an improper exercise of the power conferred by the enactment in pursuance of which the
decision is proposed to be made

No delegation unless Act provides. If you have been named to deal with a matter, then you must deal with that
matter, it cannot be handed off to another employee/person. What does the Act say?
But: alter ego or Carltona principle (Carltona v Commissioners of Works [1943] 2 All ER 560) > Administerial power,
where they share a power between two or more people. Ministers are acting in so many matters, that it may not be
feasible for them to enact in all. Therefore other may assist. It would be unreasonable to expect a Minister to sign
off on everything that passes his office - he would never achieve anything else. Carltona v Commissioners of Works
Can apply alter ego to a power given to a senior public servant by the deputy commissioner. Permissible for
Commissioner of Taxation to delegate the power to issue notices requiring persons to give information, to the Chief
Investigative Officer. HCA held it would be too cumbersome on the Commissioner and result in chaos if each notice
had to be issued by him. OReilly v State Bank of VIC Commissioner (1983).
Similar to the ability of a University Senate to delegate to faculties the ability to exclude students who failed a
course more than once. Ex Parte Foster; Re Uni of SYD [1963].
However, some circumstances may require personal involvement by the decision-maker; ie. Ministers duty to
consider a report cannot be entrusted to a staff member. Chapman v Tickner (1995) secret womens business.
In principle, discretionary power is given specifically to a minister or departmental head must be exercised by that
person and cannot be delegated to subordinates, unless the act or regulations expressly say so. However, the
courts have allowed for wide delegations or at least sharing of may powers, so as to not stand in the way of what
are seen as the practicalities of government.


where the duty


Procedural Fairness (Natural Justice) - section 5(1)(a) ADJR Act

A flexible doctrine that is not clear cut in its application. Examination of circumstances must reveal a right, interest
or legitimate expectation that applicant entitled to PF? Kioa v West (1985). Test = whether the underlying and
assumed RIGHT to procedural fairness has been met.
- Any legislative intention to exclude the principles of natural justice must be stated clearly Commissioner of Police v
Tanos (1958
- The opportunity to deal with adverse information should be given; it is unfair to deny a person whose interests are
likely to be affected an
opportunity to deal with information VEAL v Minister
- Legitimate Expectation has been rejected in case of WZARH 2015!!!!
Dismissal from office; a person cannot be subject to disciplinary action or removed from employment or expelled
from a club or office without a right to a hearing Annetts v McCann (1990)
- Where a persons reputation might be adversely affected by a report, i.e. report recommended poker machines not
be permitted to participate in
States gaming industry, held should be given fair hearing before report released Ainsworth v Criminal Justice
Commission (1992)

Policy and rule making; i.e. release of a child sex criminal denied by parole board SA v Oshea (1978). Generally
belong to political sphere and not
subject to hearing process
Secrecy, Urgency and Necessity Commissioner of Police v Tanos (1958): some powers that require urgent action for
example to destroy dangerous
animals, quarantine persons with infectious disease or forcibly enter premises at a time of fire or natural disaster by
their nature exclude natural
- If there is enough evidence to suggest a hearing would be prejudicial to national security there is no obligation to
conduct one Council of Civil Service Unions v Minister for the Service (1985)
Hearing Rule
(Type of Hearing required determined by looking at the common law rules of natural justice in combination with the legislation)
- A person should have matters adverse to them put to them for commenting on evidence before an adverse decision
is made Kioa v West.
- Decision maker should bring to the persons attention the critical issues on which the decision is likely to turn on so
that the person may have an
opportunity to deal with it Ex Parte Lam (2005)

- Decision maker should not mislead a party on the importance of a factor Ex Parte Miah (2001
- Decision maker should have regard to promises made (expressly or implied) or regular practices adopted by the
decision maker in the making of a
decision where a failure to do so may result in some unfairness in the procedure now adopted Ex Parte Law (2003
- Public decision maker ought to put any changes in regular practice to the person affected Ex Parte Lam (2005)
Right to know the matters considered; decision to vacate Ongs position was based on information that he was not
informed of Macquarie Uni;Exparte Ong: And should be given chance to respond WZARH Case.
- A delay so extreme that there was a real and substantial risk that the Tribunals capacity to assess the applicant was
impaired. A five year delay in
the RRT could mean vastly different circumstances. NAIS v Minister (2005)
- No absolute right to legal representation. Will vary based on circumstances eg. complexity, disability (deafness),
English proficiency Cains v Jenkins
- Right to written submissions may be suffice, unless exceptional circumstances Barratt v Howard (1999)
Exceptional circumstances may include where credibility or reputation is challenged Chen v Minister for Immigration
- Hamilton v Minister for Immigration (1993) Rights arising from administrative norms: Applicant denied PF when not
provided with explanatory notes normally given to people filling out application forms. Beazley J held that PF
requires consistency of treatment and equal access to the usual procedures
Kioa v West (1985) 6
- Right to receive notice of hearing
- Right to receive notice of matter that will be dealt with in the hearing
Main Concepts
representative failed
(subject to legislation)
to disclose
- Right to an interpreter
information that was
- Right to make submissions, to call evidence and/or cross examine witnesses
credible, relevant
- Right to receive a transcript and see the evidence.
and significant that
resulted in an adverse
finding for Mr Kioa.
Bias Rule
(No one should be a judge in his own cause & Justice must not only be done but must be seen to be done)
- Challenging to establish; with a high burden of proof
- Requires that the mind of decision-maker was partial and not amendable to persuasion by
any evidence


TEST: In all circumstances the parties or the public might entertain a reasonable apprehension that the decision
maker might not bring an impartial and non-prejudicial mind to the resolution of the questions involved MIMA v Jia
Legeng (2001)
- To be that of a reasonable and fair- minded observer, with some knowledge of the actual circumstances of the case
and also of the normal considerations applying to legal actions. Laws v Australian Broadcasting Tribunal (1990) The
rule/test of perceived bias is that justice must have seen to be done in the eyes of the reasonable person -Bird v
Volker 1994 (unreported)
- Courts: to allege bias against a judge it must be shown that their mind was prejudiced in favour of a conclusion
and that the applicant will not receive a proper hearing. R v Bow Street Metropolitan Stripediary Magistrate; Ex
Parte Pinochet Ugarte (no 2) no forum shopping for a favourable judge (Rajiski v Wood (1989))
Quasi-Judicial Bodies: Lesser standard may be applied to commissioner or other official inquiries but are still
required to refrain from obvious sign of prejudgment
Domestic bodies: Lesser again for sporting, trade union associations. Hypothetical observer is someone familiar with
the rules of association (i.e. club member) Dale v NSW Trotting Club (1978)
- Ministers & political decision makers: Not expected to abide by the same standard of impartiality as judicial
decision makers; however the standard depends on the nature of task given to the minister. Ought not to be
perceived as bias. Hot Holdings v Creasy (2002) Gwandalan Summerland v Minister for Planning [2009]
Institutional: Difficult to prove in a general term. PM saying that refugees will not be allowed to que jump did not
constitute a reasonable apprehension of bias Minister for Immigration, Local Govt and Ethnic Affairs v Mok Gek Bouv
- However, constant interruption and challenges to evidence of an applicant with great vigor may constitute bias Re
Refugees Review Tribunal;Ex Parte H (2001)
- Investigators acting as adjudicators: The mere presence of the accuser in the boards deliberations was
sufficient to give rise to a reasonable apprehension even if it did not alter the outcome: STROLLERY PRINCIPLE
Strollery v Greyhound Racing Control Board (1972). Mac Uni v Ong, letter was enough to show biased even though
she was present at meeting. Therefore enough to taint outcome un SP
- Decision Makers with known beliefs: Judges entitled to express prior views & greater leeway for bodies that are
expected to make policy assessment R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss

apprehension of
The Varying



Ouster Clauses
Denial of procedural fairness constitutes a JE Plaintiff s157/2002 v Cth (2003).
Ultra vires are also JE and will invalidate any order or decision of the tribunal Craig v SA (1995)
A JE will (1) make a decision completely void; (2) entitle a claimant to a writ or an ordering the nature of a writ; (3)
defeat an ouster clause
Non-Jurisdictional errors are voidable
Govt. often seeks to restrict judicial review of admin decisions through ouster clauses
s44 of the Judiciary


Lamb v Moss

However, courts will only allow them to block the hearing of a case if the words of the
Act 1903 (Cth)
legislation are clear, explicit and comprehensive. Hockey v Yelland [1984]
permits the HC to
- Abebe v Cth (1999) held that since the Cth Parliament established the Federal Court by
remit matters that
legislation, it could limit the courts jurisdiction without infringing on the judicial power of the
are initially brought
constitution. Therefore, the ouster clause is valid in relation to ousting the jurisdiction of the
under its original
Federal Court
jurisdiction to the Fed
- If legislation purports to oust the jurisdiction of the HC it is read down not to do so (thus not
making it entirely invalid) Plaintiff S157/2002 v Cth (2003) cant oust HC as unconstitutional
as s75 Consti confers power to HC.
- Therefore JE can never be restricted from being heard, and will be heard at HC.
(1) Any opposition with a provision and the Constitution, it should be resolved with an
interpretation consistent with the Constitution R v Hickman (1945)
(2) It is presumed that parliament doesnt intend to cut down jurisdiction of courts to the extent
that the legislation in question expressly so states or necessarily implies.
- Remedies will be discussed in the alternative Foster v Jododex
- A court cannot put themselves in the shoes of the original decision maker. It can merely declare a decision invalid and then
refer it back. (Courts cannot re-make a decision) MIEA v Guo
- It is possible to waive the rights to a remedy (i.e. acquiescence, knowledge of potential remedy available but continuing on
anyway) CL Coles & Co v retail Tribunal.
- Applies to decisions of the Federal Court (will not apply if there is an ouster clause) ADJR Act s16
- Must be (1) a decision (2) of administrative character (rather than legislative); (3) made under an enactment
- Quash or set aside the decision, or a part of the decision
- Refer matter back to original decision maker (1) (a)
- Declaration of the rights of the parties (b)
- An order directing parties to do, or refrain from doing, any act or thing the doing of which the court considers necessary to
do justice between the parties (c) (d)
- The court has discretion not to order a remedy if: It would inconvenience a third party; The applicant has caused a delay
in proceedings and circumstances have changed R v Muir;Exparte Joyce [1980]; Any remedy is futile; the issue has already
been resolved by some means Hodgens v Gunn [1990]
- A court may still order a declaration even if it has no direct effect as it may have some application in the future (i.e. wrongly
fired, let the record show they were fired incorrectly) Parkes v Glasson (1985) and FAI Insurances v Winneke (1983)
- Applicants will have problem suing for damages unless they can prove malice, intention to cause harm or negligence on the
part of the administrator. That is because a separate tort must be proved. Negligence in particular maybe difficult to
establish because it requires foreseeable loss and mitigation of loss. The common law tort of misfeasance in a public office
offers limited prospects for obtaining damages.
Court can make 5 remedial orders under s16 of the ADJR Act:



1- S16(1)(a) it can quash a decision with effect from a date of its choosing (Styles v Secretary, Department of Foreign Affairs
and Trade (1988) similar remedy to certiorari >available where there has been decisions made
2- s16(1)(b) it can refer the matter back to the decision maker with such directions as it sees fit > available where there has
been decisions made
3- s16(1)(c) it can make an order declaring the rights of the parties >available in connection to conduct and failure to make a
decision, available where there has been decisions made
4- s16(1)(d) it can order a party to do or refrain from doing specified things where the court considers such an order is
necessary to do justice between the parties (Park Oh o v Minister for Immigration and Ethnic Affairs (1988) HC held detention
was unlawful and party was entitled to a declaratory order and an order quashing the deportation order)> available in
connection to conduct and failure to make a decision, available where there has been decisions made
5- s16(3)(a) it can direct the making of a decision like mandamus > available when there has been failure to make a decision
- Resolves a disputed question of law but does nothing to enforce it (Park oh Ho v Minister for Immigration (1989)).
- Equitable remedy and may be refused on discretionary grounds (clean hands etc)
- The question must be real and not hypothetical
- Is not restricted to jurisdictional error (Project Blue Sky Inc v ABA (1998)).
- The high court has been willing to exercise its judicial discretion to grant a declaration where a writ was not available
(Plaintiff M61/2010E v Commonwealth (2010).
Certiorari Writ
- requires the existence of a Jurisdictional Error and that the decision has already been made
- The decision must have had a discernible effect upon rights Hot Holdings v Creasy (1996)
- Doesnt apply to recommendations made but only decision that have legal effect Ainsworth v Criminal Justice Commission
- Using writ/declaration to quash something that has already been decided.
- Injunctions may be used to retrain people from acting in a matter inconsistent with their legal duties or may require people
to act in a certain way. They are available against decision makers regardless if they are bound to procedural fairness or not
(Batemans Bay Local Aboriginal Land Council V Aboriginal Community Benefit Fund Pty Ltd (1998
- The issue at hand must be real and not theoretical question and the applicant must have a special interest in the subject
matter (Australian Conservative Foundation v Minister for Resources (1989)).
- Equitable remedy and may be refused on discretionary grounds (clean hands etc)
- Would prevent minister from adjusting the status quo
Prohibition Writ
- Must be a JE and before decision is made. orders a decision maker to desist from undertaking an unlawful act (before a
decision can be made)
Prohibition applies where a person is entitled to procedural fairness (Annetts v McCann (1990)
- To prohibit/prevent something that hasnt been done yet


Mandatory order forcing the person to perform a public duty

Must be a public duty (There was no public duty to declaring an open season for hunting, it was merely an adopted practice
with Ministers).
Will commonly be used with another remedy as it may be necessary to have another order quashed in order to require the
decision maker to make a new decision or perform duty WA Field and Game Association v Minister for Conservation (1992)

Denial of procedural fairness where procedural fairness was required is a jurisdictional error and in these circs, makes all these writs
potentially applicable (Re Refugee Review Tribunal; Ex Parte Aala (2000))3 main limits of the writs:
1. Only for final & operative decisions affecting rights & duties.
2. 2 Certiorari only for jurisdictional errors & errors of law on face of record
3. Only available against official government decision makers not private bodies >churches, trade unions, universities etc. will not be
subject to the writs because theyre not govt. bodies
Despite admin law being public law, standing commonly requires a special interest, usually one of a mercantile one.
-the person aggrieved test (s3 ADJR) applies when a commonwealth piece of legislation is in question which would thus have federal
jurisdiction. If however an ouster clause is present which ousts the federal jurisdiction, the High Court has jurisdiction to hear the matter
under s75 of The Constitution and thus, the ADJR test DOES NOT apply, and the common law special interest test DOES apply.
*note, if a piece of legislation denotes a standing provision that will take precedent.
*if a piece of legislation does not allow standing and this is written in an ouster clause, the common law standing rule will apply if heard in
the High Court as the high court cannot be ousted from hearing the issue.
The rules of standing are more liberal in the cases of prerogative writs and certiorari in particular as opposed to an injunction or
Non-Statutory Remedies: (The Prerogative Writs and Equitable Remedies)

Declaration and Injunction (equity): Applicant must have a special interest in the subject matter of the proceedings.
Mandamus (writ): This writ commands the performance of a public duty.

There is a RESTRICTIVE test for standing => Applicant has to demonstrate a specific interest or specific legal right /
enforceable duty owed by the body in question. (= More restrictive than test for other prerogative writs.)
Habeas corpus (writ): To discharge a person from wrongful imprisonment.

A very unrestrictive standing test -Ruddock v Vardarlis [2001] FCA 1329.(Tampa Case)

anybody in the community who knows that a person is wrongfully imprisoned has a right to have the writ to
discharge that person out of imprisonment (R v Waters [1912] VLR 372 at 375)

BUT even though the threshold for the test is low, it is possible that standing could be denied on a discretionary basis.
In Vardlis, Beaumont J noted that it is wrong that a person should rely on his or her own unlawful act... to secure an advantage

which could not have been obtained had the person acted lawfully.. (Minister for Immigration and Multicultural Affairs v
Vardarlis (2001) 110 FCR 491)

Prohibition (to prohibit/prevent something that hasnt been done yet) and Certiorari (using a writ/declaration to
quash something that has already been decided) (writs):
The purpose of these writs is to ensure that a public body acts according to the law in discharging its functions.
A stranger CAN initiate proceedings (McBain; Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372) = open standing. >
justified because there is public benefit in ensuring that adjudicative bodies act within their jurisdiction. But A court nevertheless has
a discretion to refuse a writ and may be less inclined to exercise its discretion in favour of a stranger as opposed to a person aggrieved
(McBain) In this case The beliefs held by the order and their influence on the beliefs of others does not give the Conference a special
interest in the outcome of proceedings, so they were strangers. .
ADJR remedies
- Will only apply if the matter is of federal jurisdiction and the federal court has not been ousted. Remedies are determined in each
instance based on each case.
- In each instance the content of the expression is to be seen in the light of the scope and purpose of the statute in issue and, given the
diversity of statutory provisions, no general proposition is to be established... Gummow J in Marine Engineers Australian Institute of
Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124.
- s13 ADJR provides that a person aggrieved is to be provided with a written statement of the reasons for a decision. Therefore the
burden placed on government agencies could be extensive if person aggrieved is given a broad meaning