Judicial Review and Administrative Discretion: A Comparative Analysis

Introduction
In the given case of Minister for Immigration and Border Protection v
Stretton (2016) 237 FCR 11, the court held the requirements of judicial review
of the verdict of Minister resulting in the abrogation of respondent’s visa rights
on grounds of character as defined under the section 501(2) of the Migration
Act 1958(Cth)2. The respondent, who was an Australian resident for a major
portion of life with adequate family and acquaintances connections, was held
liable for a child sex offense. The court performed judicial reviewthe
discretionary powers of the Minister on the basis of legal unreasonableness.
Judiciary also examines whether the discretionary power is an unlawful or lawful
exercise of power and if, lacks arbitrariness, capriciousness or irrational.
There is presence of ubiquitous debate and discussions over the exercise of
judicial review and the discretion of administrative decision-makers under
various legislative mechanisms. However, there exists a doctrine of separation of
power which mentions that all the major pillars of democracy such as
legislative, executive and judiciary acts as a separate entity and performs their
functions separately. As legislators are entitled to issue enactments. The
executive is responsible for the implementation of law and judiciary holds the
duty for adjudication. All these legislative, executive and judiciary are also
responsible for the creation of checks and balances over each other therefore
judiciary exercises judicial review over the functions of executive and legislators.
Although we are intended to find out the difference between the judges engaged
in judicial review and administrative decision-makers, some others aspects of
judicial review and administrative discretionare also required to be discussed as
follows;
What is judicial review
Judicial review is the system of examining the constitutional validity of
administrative legislation, originated in the judiciary of the United States, that
has ability to review various laws and actions of the legislators and executives to
examine constitutionality of that respective law or adequate action. It is
designated as the part of checks and balances that the three branches of
government used to limit each other to ensure the balance of power3.
Purpose of Judicial review
Purpose for the exercise of this power lies in the adequate action of legislative
Motive behind the practice of judicial review is to examine the actions of
legislative, executive arms to determine the compliance of constitutional
provisions. Along with this, it is also a practice used toprevent the misuse of
power of administrative discretion and to ensure just and fair treatment to the
common man under the spirit of the law.It binds the administrative authorities
within the limits of the powerdelegated by the statutes
Why we need judicial review-
The need for judicial review lies in the ambit of legislative discretion and
executive sovereignty. Greater the scope of administrative discretion, greater
1 "Barnet Jade - Find Recent Australian Legal Decisions, Judgments, Case
Summaries For Legal Professionals (Judgments And Decisions Enhanced)",
Jade.Io
(Webpage, 2019) <https://jade.io/summary/mnc/2016/FCAFC/11>.
2 "MIGRATION ACT 1958 - SECT 501Refusal Or Cancellation Of Visa On Character
Grounds",
Www5.Austlii.Edu.Au (Webpage, 2019)
<http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html>.
3 "Judicial Review | Law",
Encyclopedia Britannica (Webpage, 2019)
<https://www.britannica.com/topic/judicial-review>.

will be a chance for abuse of power, therefore, consequently, greater will be
needed for judicial review. The wider the discretion, the greater is the need for
restrictions in its exercise. Global experiences have proved that concentration of
discretion into the hands of a person or group of people, will certainly lead to its
abuse. Therefore, to avoid the abuse of discretionary powers, the need for
judicial review is legitimate.
Administrative Decision making
The foundation guiding principles for the democratic government is
transparency and accountability. However, the conduct of administrative
decision making is expressed under the provisions of administrative discretion.
Administrative discretion encompasses various concepts such as the test for
unreasonableness, proportionality principles, discretionary abuse, due process,
inadequate purpose, irrelevant considerations and doctrine of legitimate
expectations.
There are multiple dimensions of difference between the code of conduct of
Judges involved in judicial review and administrative decision makers. All these
dimensions that determine the differences can be mentioned as follows;
Basic principles of Judicial review
Under the case of Marbury v. Madison(1803), the three principles of judicial
review have been described as following:
 The supreme law of the country is declared as the constitution.
 The ultimate authority for ruling under the constitutional matters is vested
to the Supreme Court.
 The judiciary shall rule against every provision that contradicts any of the
constitutional provisions4.
Basic principles of administrative decision making
 Administrative decisions making should be performed by the adequate
authority under the compliance of relevant legal provisions.
 Decision maker is also required to consider entire relevance of statute.
 Legislators must refrain from arbitrary exercise of power with malicious
intentions.
 Evidence and fact finding must be taken under due diligence while
practicing decision making.
 There must be adequate consideration of the reasonableness of decisions.
 In context of those affected by decision making process, there must be
provisions of reasonable fairness and natural justice.
 Government polices and relevant legal provisions must be consider for
regulatory compliance.
4 "Three Principles Of Judicial Review Flashcards | Quizlet",
Quizlet (Webpage, 2019)
<https://quizlet.com/74693675/three-principles-of-judicial-review-flash-cards/>.