Standing, Jurisdiction and the Remedial Gap
A Commonwealth agency operates a scheme under which applicants for a benefit must consent to the agency sharing their data with private contractors. A welfare recipient, M, is refused a benefit after declining consent. M wants to challenge the scheme. Three routes are floated: (a) seek review in the Federal Circuit Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth); (b) seek a declaration in the High Court that the scheme exceeds the constitutional power relied on; (c) complain to the Commonwealth Ombudsman. M has no money for a lengthy trial, wants the refusal reversed quickly, and wants the scheme declared invalid so others are not affected. A lawyer notes that the ADJR Act allows review of decisions 'of an administrative character made under an enactment', and that the Ombudsman can investigate but cannot set aside a decision.
1. Match each route to what it can actually deliver for M, and identify which route best serves M's stated goals.
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Route (a) can deliver what M most immediately wants: judicial review on grounds such as improper exercise of power or failure to consider relevant matters, with a remedy that can quash the refusal and remit the matter. It is comparatively fast and cheap, but it reviews legality, not merits - the court will not substitute its own view of whether M should get the benefit, only whether the decision was lawfully made. Route (b) can deliver the systemic outcome M wants - a declaration of invalidity - but only if M has standing, and the High Court's original jurisdiction is narrow and expensive; a constitutional challenge is slow and high-risk. Route (c) can produce an investigation and a report, which may pressure the agency and generate publicity, but cannot reverse the refusal or invalidate the scheme. Best fit: (a) as the primary route for M's own benefit, with (c) run in parallel because it is free and may produce systemic change, and (b) only if a well-resourced public interest applicant or the Australian Human Rights Commission is prepared to carry it.
2. Explain how standing and the separation of judicial power shape the realistic options.
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Standing requires a special interest beyond that of an ordinary member of the public. M plainly has standing on route (a) because M is directly affected by the decision. On route (b), standing is arguable but riskier: M's interest is real, yet a constitutional challenge to the scheme's source of power may be characterised as raising a general grievance unless M can show the invalid scheme caused the refusal. The separation of judicial power matters in two ways. First, only a court exercising Chapter III judicial power can conclusively determine the constitutional validity of legislation; the Ombudsman, an executive officer, cannot. Second, the separation prevents the Ombudsman from exercising judicial power - it cannot set aside the decision or award a remedy, only investigate and report. That is why route (c) is a complement, not a substitute. A well-advised M therefore uses the ADJR route to get an enforceable remedy and a court, not an executive officer, to decide any constitutional question.