Administrative Law: Review, Grounds and Remedies
Framework
Administrative law controls the exercise of public power. Judicial review tests legality, not merits. Know the sources: the common law, the Administrative Decisions (Judicial Review) Act (Cth) and state equivalents, and constitutional writs. Standing requires a special interest; the Australian Conservation Foundation test is the starting point.
Grounds of review
Grounds include breach of natural justice (procedural fairness), failure to consider relevant considerations, taking into account irrelevant considerations, improper purpose, inflexible application of policy, error of law, and jurisdictional error. Procedural fairness requires a fair hearing and an unbiased decision-maker. The hearing rule and the bias rule are distinct.
Remedies
Remedies include certiorari, prohibition, mandamus, and injunction, plus declarations. Privative clauses may limit review but cannot exclude jurisdictional error in the High Court's original jurisdiction. Merits review through tribunals is separate from judicial review.
Traps
- Confusing merits review with judicial review.
- Treating a breach of policy as automatically unlawful; policy must not fetter discretion.
- Missing that procedural fairness can be excluded by statute in limited circumstances.
- Overlooking that standing is assessed at the time of review.
Worked example
A minister refuses a licence without giving the applicant an opportunity to respond to adverse material. The decision may be set aside for breach of the hearing rule. The court does not substitute its own decision; it remits the matter for reconsideration according to law.