Australian Administrative Law (Research Paper Sample)

TOPIC: Australian Administrative Law. Judicial review should be limited to the consideration of errors of law strictlydefined. Issues of fact should be the sole preserve of the decision-maker ormerits review. Consequently, courts should not indulge in de facto review offactual issues under the guise of ultra vires or jurisdictional error in areassuch as jurisdictional fact, unreasonableness and lack of evidence.Do you agree?Discuss this statement with reference to relevant cases and legislation. Summary: Number of pages:10Academic level:Specialized Referencing style: Australian legal citation (footnotes)Client country:Australia (UK English) Student Name: Instructor name: Unit Name: Date: “Judicial review should be limited to the consideration of errors of law strictly defined. Issues of fact should be the sole preserve of the decision-maker or merits review. Consequently, courts should not indulge in de facto review of factual issues under the guise of ultra vires or jurisdictional error in areas such as jurisdictional fact, unreasonableness and lack of evidence.” Do you agree? Discuss this statement with reference to relevant cases and legislation. INTRODUCTION By definition, judicial review refers to the type of court proceeding whereby a judge re- evaluates the legality of an action or decision made by a public body thereby challenging the manner in which a decision was made as opposed to the rights and wrongs of the judgement handed down. Judicial review was necessitated by the need to challenge erroneous and/ or unlawful administrative rulings and is found within the Administrative Decisions (Judicial Review) Act 1977. The Administrative Appeals Tribunal is a hybrid between the administrative agency and court and was formed by the Administrative Appeals Tribunal Act 1975 (Cth). The legality of judicial review is found within the doctrine of a separation of powers whereby courts have the power to review the legality of actions and decisions as opposed to their merits. Judicial review is an area of administrative law that is often misunderstood and hence needs clarification as to its definition, nature and overall scope. This clarification is provided in the judgment of Brennan J in Attorney-General (NSW) v Quin: “The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government…The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.” In that regard, judicial review essentially is not the mere re-hearing of the merits of a certain case. Instead, it is the reviewing of a decision to ensure that the decision-maker followed the accurate legal measures or used the right legal interpretation. That said, there is the dire need to attain the suitable balance between preventing legal action from wearisome government policies and the provision of the means of testing the legality of administrative action. Should judicial review be restricted to merely those cases where there has been a misapplication of the law or can its mandate be extended to other cases where they may be some other problem such as the occurrence of unreasonableness? This is a question that has baffled the minds of many legal experts in the field of administrative law. The following discussion will thus shed some light on this oft misinterpreted aspect of law by showing that whereas the role of the judicial review is primarily with regards to errors of law, it has a much wider scope than most realize. JUDICIAL REVIEW AND ERRORS OF LAW Primarily, an error of law is the classic basis for the consideration of the judicial review of an administrative action. This is due to the fact that all administrative decisions must be made according to the law. Since the decision- making power is granted by legislation in the first place, the decision–maker or merits review should must properly understand and apply their decision–making power. The courts have the constitutional duty to correctly interpret the when passing out judgments and this role lies within the decision makers’ institutional capability and expertise. Therefore, administrative decision-makers no longer have the sole discretion as pertains to the interpretation of the law neither do they have the jurisdiction to incorrectly interpret the law. When an administrative decision-maker makes a mistake in law, their decision is summarily deemed to be against the law and thus can be set aside. This is because courts no longer make a distinction between jurisdictional and non-jurisdictional errors of law and treat them equally. Decision-makers must correctly understand why they have been conferred with the power that they have been and then use this power for that purpose alone. When a decision-maker asks itself the wrong question or misdirects itself in law, it is deemed to have failed to execute the task entrusted to it by Parliament and its decision is thus against the law. In other words, if the decision- maker did not get the law right, there is a premise for judicial review. Evidently, errors of law are thus the primary basis for judicial review. It should be noted, however, that even when a decision is based on an error of law, the court’s powers are sometimes restricted to putting the decision aside and presenting the case to the primary decision-maker for re-evaluation.  There are certain situations whereby, even when a decision is lawfully incorrect, it will not be liable to judicial review.  On the other hand, there are circumstances where a decision is the correct one but is set aside due to the fact that there is a likelihood of legal error. Thus, even when an error of law has occurred, the powers of a judicial review are not all encompassing and at times, are very limited regardless of whether or not an error of law has been committed. Judicial review thus is somewhat restricted as pointed out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd by Mason J. This limited role of the judicial review process based on an error of law should thus be continually kept in mind so as to be constantly aware of the boundaries that should not and cannot be overstepped. THE GREATER SCOPE OF JUDICIAL REVIEW The case has already been made concerning the need and applicability of judicial review in instances when an error of law has occurred. However, various court decisions have shown that even in factual issues, judicial review can and must be applied for the law to be fully upheld. For instance, in cases where a decision makers has misdirected itself in law; when it has misunderstood the purpose of their conferred power; when it has asked itself the wrong question/ or when it has not had regard to the right legal considerations, it would be foolhardy to simply limit judicial review to cases of errors of law. JUDICIAL REVIEW AND JURISDICTIONAL FACT Some legal experts have argued that cases dealing with jurisdictional facts should not be subject to judicial review due to the simple fact that if they are facts, the facts are sufficient basis to make a lawful decision. In certain instances, a decision maker may view the existence of some fact as a prerequisite for an official exercising jurisdiction and this is called a jurisdictional fact.  A jurisdictional fact is a fact that must exist objectively so as to enliven jurisdiction therefore a court executing judicial review can analyze evidence that was previously not available to the primary decision maker when deciding on the existence of a jurisdictional fact. It is akin to merits review the difference being that the review is not based on merits but on whether or not the primary decision maker had the power to employ discretion from the beginning. The significance of this is that, with regards to jurisdictional facts, the court can re- determine the fact for itself and a judicial review may then ensue. In addition, jurisdictional facts are subject to judicial review due to the fact that an error as to jurisdictional fact is an error of law.The instances when judicial review is executed with regards to cases dealing in jurisdictional facts are what Groves (2005) refers to as the “Brennan Approach.” When the question for the court is whether the condition governing the exercise of a statutory power is satisfied, the court must place itself in the position of the repository of the power to establish whether the process adopted was fair, legal and reasonable. A different tactic is necessary when the question is if the jurisdictional fact in question existed at the relevant time. This provides procedural fairness which supersedes statutory power and allows for reviews to be done in such cases.  In addition, the term ‘jurisdictional fact is an ambiguous one and is thus susceptible to abuse by those in power. Spigelman CJ recognized this in Timbarra which was case involving a decision to grant permission for mines’ extension. If this extension was “likely to significantly affect” a threatened species, there first had to be a Species Impact Statement to grant this permission. The court determined that the phrase “likely to significantly affect” constituted a jurisdictional fact thus “likely to significantly affect” was ruled as not factual unless backed by a Species Impact Statement. In this case, a court with a judicial r...