Application of Administrative Law: Judicial Review and Merit Review

This text discusses the historical perspective and need for judicial review, the main features of a review on the merits, the differences between judicial review and review on the merits, common law grounds for judicial review, specific legislation for judicial review, and the concept of procedural fairness in a judicial review case. It also includes a case analysis of Associated Prov. Pic Houses Ltd v Wednesbury [1948] 1 KB 223. The text is part of the Advanced Diploma of Legal Practice course (22276VIC) and includes a bibliography.

22276VIC Advanced Diploma of Legal Practice
Unit VU21647
Research the application of administrative law
Take Home Questions: include footnote, bibliography and cover sheet
Question 3
3.1 From a historical perspective, why was a need for judicial review? What would be the outcome if
an applicant was successful in a judicial review?
Judicial review provides a method where people affected by government action can raise a claim in
court against the action or stipulated law. In history judicial review was the prevention of the
encroachment of the rights.1
(i) Mandamus: A command to the respondent to undertake its public duty.2
(ii) Prohibition: The respondent is restrained from undertaking a scheduled unlawful act.3
(iii) Certiorari: an order is given that quashes the decision in question.4
(iv) Declaration: An order from the court to clarify the law regarding the dispute.5 It does
not provide mandatory or any restraints.
(v) Injunction: A remedy in equity that enforces a statutory protection or obligation to the
officials.6
3.2 List the main features of a “review on the merits” such as a merits review application to the
Administrative Appeals Tribunal?
Merit review is about facts and looking at the analysis of the facts and lawfulness of the previous
decision.7 In summary, merit review is about;
(a) Superior position to gather and analyse facts.8
(b) Improved approach in identifying, clarifying and applying the applicable law;9
1 83 Clarence Street Commonwealth of Australia, Judicial Review (2016) <http://www.aat.gov.au/about-the-
aat/engagement/speeches-and-papers/the-honourable-justice-garry-downes-am-former-pre/judicial-review>.
2 Legal Commission of South Australia, Judicial Review (2018)
<https://www.lawhandbook.sa.gov.au/ch09s01s05.php>.
3 Ibid.
4 Ibid.
5 Ibid.
6 Ibid.
7 Michael Asimow and Jeffrey S Lubbers, ‘THE MERITS OF “MERITS REVIEW”: A COMPARATIVE... - Google
Scholar’ <https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/windyrbaj28&section=18>.
8 Attorney-General’s Department, Overview of the Commonwealth System of Admin Review (2018)
<https://www.arc.ag.gov.au/Aboutus/Pages/OverviewoftheCommonwealthSystemofAdminReview.aspx#a5>.
9 Ibid.

(c) Unique approach in searching and reviewing the fundamentals of decision and policies
within the administrative decision.10
3.3 What is the key differences between a “judicial review” and a “review on the merits”?
Judicial review focuses on checking the powers and whether the decision maker followed the
stipulated legal procedure. Review of merits looks at the errors made when making the decision.11
In judicial review, the decision can be set aside, but there is no room for substituting that decision.
Under review of merits, the decision can be set aside, and remake it to provide right decision.12
A decision on judicial review is binding even to other courts while that or a merit review is deemed
to apply only to that case and the parties.13
3.4 Set out the common law grounds for a judicial review?
The common law grounds for a judicial review are those in the doctrine of ultra vires.14 The
scope of the doctrine of ultra vires deals with areas where the government bodies or its officials;
(i) Act with improper purpose;15
(ii) Take unreasonable actions;16
(iii) Fail to undertake proper consideration when making certain decisions;17
(iv) Makes judicial or other legal errors when exercising powers;18
3.5 We now have specific legislation/statutes that deal with judicial review. Please provide a few
examples?
(i) The Commonwealth of Australia Constitution act;19
(ii) Judiciary Act;20
(iii) Administrative Decisions (Judicial Review) Act;21
(iv) Constitution Act 1975 (Vic);22
(v) Administrative Law Act.23
3.6 What differences are there between applying for a judicial review based on common law
principles and applying for a judicial review based on the Administrative Decisions (Judicial
Review) Act?
10 Ibid.
11 Victoria University, ‘Research the Application of Administrative Law VU21647 Advanced Diploma of Legal
Practice 22276VIC Enterprise Programs Unit Study Guide 2017’ 48.
12 Victoria University, above n 11.
13 Ibid 49.
14 Australian Government, The Scope of Judicial Review Discussion Paper, 2003 (2003)
<https://www.arc.ag.gov.au/Publications/Reports/Pages/Downloads/TheScopeofJudicialReviewDiscussionPap
er2003.aspx>.
15 Ibid.
16 Ibid.
17 Ibid.
18 Ibid.
19 Commonwealth of Australia Constitution Act 1901.
20 Judiciary Act 1903.
21 Administrative Decisions (Judicial Review) Act 1977 (‘ADJR Act’).
22 Constitution Act 1975.
23 Administrative Law Act 1978.

The common law applies the doctrine locus standi or of standing in the determination whether
the applicant is the right person to bring the claim.24 This doctrine mostly looks at the
administrative remedy in which the person is seeking. In ADJRA, the application has to follow
the rules set in s 13.25 The advantage of ADJRA is that it is more flexible on the powers of the
Court while deciding on the review. The flexibility allows the court to tailor the remedies and
offer a simplified review process
3.7 Are there any Acts/statutes/legislation that specifically exclude or prohibit a judicial review
being filed?
Yes, Administrative Decisions (Judicial Review) Act 1977 - Schedule 1 provides legislatives and
decisions that are not subject to judicial review.26
3.8 Explain in detail the concept of “procedural fairness” as it used in a judicial review case?
The rules of procedural fairness are set to ensure that cases are decided upon a fair decision-
making procedure.27 These rules prevent the government from undertaking arbitrary actions
that affect people. The rules ensure administrators and other government officials take
consideration of justice and integrity while making decisions that affect people. In the case of
Minister for Immigration and Border Protection v WZARH, the court stated that administrative
decision-makers have a duty to provide procedural fairness to all persons that would be affected
by the decision. 28
3.9 Locate a case on judicial bias, reference it and give a detailed analysis.
Ane example of a case in Judicial bias was the case of Johnson v Johnson.29 The parties were a
husband and a wife since November 1979, and a dissolution of the marriage happened in 1996.
Upon dissolution, a dispute in the financial arrangements were brought before the judge, Anderson
J. The court held that a division should be made with the wife taking 40% of the asset pool. The
dispute that went to appeal on a matter of bias regarded Anderson J comments that he was going to
search for the truth by looking at the independent people and their independent documents. When
this matter went to appeal, the court of appeal ruled that there was no bias on the Anderson J
comments.30
Question 4
4.1 Explain the meaning of “standing” (the Latin phrase is ‘locus standi’) in a judicial review? What
are the requirements to establish standing? What will happen if an applicant does not have
standing?
24 Victoria University, above n 11, 83.
25 ADJR Act 1977.
26 Ibid.
27 Victoria University, above n 11, 67.
28 Minister for Immigration and Border Protection v WZARH [2015] HCA 40.
29 Johnson v Johnson [2000] HCA 48.
30 Ibid.

The doctrine of standing or locus standi denotes with a person’s right to bring proceedings to the
court of a tribunal.31 These principles require that every person bringing the proceedings should be
the appropriate person who has been affected by the administrative power in which he/she seeks
remedy against.32 The different requirements for standing are;
(i) There must be a relationship between the standing and the remedies sought.
(ii) If a claim is seeking a remedy through the statute such as ADJRA (Cth), the standing that
applies is the one stated in that law.33
(iii) If the claim seeks remedy in common law, the standing requirement are those related to the
remedy sought.34
4.2 List the remedies available in a judicial review of administrative decisions?
The remedies in judicial review from an administrative decision are;
The court may suspend or order a stay the related proceedings or an interlocutory order on the
decision or action that the government officials had commenced. These powers are granted to the
Court under the section 23 of the Federal Court of Australia Act.35
The judicial review act under part 3 provides that the court can provide other remedies such as;36
(i) Setting aside the decision in question;
(ii) Ask the person who make the decision to reconsider it;
(iii) Declare rights;
(iv) Direct the concerned party to do or refrain to do the action;
Under s 16 of ADJR Act and in on a matter of Commonwealth decision making, the Federal Court
can also issue such orders stated above.37
4.3 Give a detailed case analysis of Associated Prov. Pic Houses Ltd v Wednesbury [1948] 1 KB 223.
The issue regarded a prohibition by the defendant under a licence granted to the plaintiff that no
child under the age of 15 years, either by themselves or accompanied by adults could enter the
cinema on Sundays. The plaintiff sought orders from the Court to declare the restriction by the
defendant as unreasonable. However, the Court ruled that it could not interfere with the orders or
limits since the only grounds for intervening were where the decision makers went over the legal
powers conferred to them.
Bibliography
Asimow, Michael and Jeffrey S Lubbers, ‘THE MERITS OF “MERITS REVIEW”: A COMPARATIVE... -
Google Scholar’ <https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/
windyrbaj28&section=18>
31 Victoria University, above n 11, 83.
32 Ibid.
33 Ibid 84.
34 Ibid.
35 Federal Court of Australia Act 1976.
36 Judicial Review Act 1991.
37 ADJR Act 1977.

Victoria University, ‘Research the Application of Administrative Law VU21647 Advanced Diploma of
Legal Practice 22276VIC Enterprise Programs Unit Study Guide 2017’
Commonwealth of Australia Constitution Act 1901
Johnson v Johnson [2000] HCA 48
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
Administrative Decisions (Judicial Review) Act 1977
Administrative Law Act 1978
Constitution Act 1975
Federal Court of Australia Act 1976
Judicial Review Act 1991
Judiciary Act 1903
Attorney-General’s Department, Overview of the Commonwealth System of Admin Review (2018)
<https://www.arc.ag.gov.au/Aboutus/Pages/OverviewoftheCommonwealthSystemofAdminReview.a
spx#a5>
Australian Government, The Scope of Judicial Review Discussion Paper, 2003 (2003)
<https://www.arc.ag.gov.au/Publications/Reports/Pages/Downloads/TheScopeofJudicialReviewDisc
ussionPaper2003.aspx>
Commonwealth of Australia, 83 Clarence Street, Judicial Review (2016)
<http://www.aat.gov.au/about-the-aat/engagement/speeches-and-papers/the-honourable-justice-
garry-downes-am-former-pre/judicial-review>
Legal Commission of South Australia, Judicial Review (2018)
<https://www.lawhandbook.sa.gov.au/ch09s01s05.php>