Application of Administrative Law: Judicial Review and Merit Review

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.