Things every commercial lawyer should know about judicial review Overview of Judicial Review in the Federal Court Emily Nance Senior Executive Lawyer T May 2014

2 Section 39B Judiciary Act 1903 Was the decision made by an officer of the Commonwealth (s 39B(1)) or does it ‘arise under any law made by the Parliament’ (s 39B(1A )(c))? Does the applicant's case have substance? Can a jurisdictional error be identified? Some examples of jurisdictional error: a. Application of the wrong legal test; b. Mistaken opinion as to presence/absence of a fact on which decision’s validity is contingent; c. Disregarding a fact which the Act required be considered; d. A Misapprehension of the nature of limits of the decision-maker’s powers Will a writ of certiorari, mandamus, prohibition or injunction remedy the applicant's situation? Administrative Decisions (Judicial Review) Act 1977 Does the applicant want to: a. review a decision? b. stop conduct in a decision process? c. require a decision be made? Does the applicant have reasons for the decision? If not do they want to obtain reasons under s 13? Does the applicant have standing? Is the relevant decision a "decision under enactment"? Is the relevant decision final? What grounds can the applicant rely on? Section 5 grounds - for a decision Section 6 grounds - for conduct Section 7 grounds - for failure to make a decision What s 16 remedy would be useful? a. quashing the original decision? b. order remitting decision to original decision maker subject to direction? c. declaration? d. injunctions? Government Action / Decision

Quick reference guide: ADJR Act vs Judiciary Act 3 When should I recommend applying for review under the ADJR Act?  When your client requires reasons for the decision (s 13);  When there may not be an error of law amounting to jurisdictional error in the decision;  When trying to establish that there is ‘no evidence’ for a finding of fact;  Where your client needs added flexibility in relation to remedies. When should I recommend to applying for review under s 39B of the Judiciary Act?  Where the decision under review falls under Schedule 1 to the ADJR Act;  Where review is sought of an act, rather than a decision or conduct for the purpose of making a decision;  Where the decision is legislative in character, not administrative;  Where there may otherwise be an issue of whether the decision was made “under an enactment  Where there is a self-executing statutory provision such that there is no administrative ‘decision’ being made. Or you can hedge your bets and bring an application under both!