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decision-maker had to accord natural justice before the court will have jurisdiction to review their decision (see: "Scope of the ALA", below). Also, the time limits for making an application cannot be extended under the ALA (while under Order 56 the time limits can be extended). Today, the usual options, one or more of which may be available to you if you are considering judicial review (apart from any other statutory right of review), are as follows. In a federal matter: Seek review under the ADJR Act if you are aggrieved by a decision or conduct which falls within the scope of the Act (to determine whether the ADJR Act applies, see below under "Review under the ADJR Act (Cth)"). Seek the issue of a writ in the Federal Court under section 39B of the Judiciary Act. For the court to have jurisdiction, you must be seeking a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth (you can also seek other remedies, such as a writ of certiorari or a declaration). If the matter you wish to challenge is not covered by the ADJR Act, or you are unsure whether or not it is covered by the ADJR Act you should rely on section 39B as well. Seek the issue of a writ in the High Court under section 75 of the Constitution. Again, for the court to have jurisdiction, you must be seeking a writ of mandamus or prohibition or injunction against an officer of the Commonwealth. As any action brought in the High Court's original jurisdiction would be likely to be remitted to the Federal Court under section 44(2A) of the Judiciary Act, this is not generally recommended. In a Victorian Matter: Seek review under the ALA if you are aggrieved by a decision which falls within the scope of the Act (to determine whether the ALA applies, see below under "Review under the ALA"). Seek an order "in the nature of" one of the writs under Order 56 of the SC (GCP) Rules.
Review under the Administrative Decision (Judicial Review) Act 1977 (Cth)
Applications for review under the ADJR Act can be commenced in the Federal Court or the Federal Magistrates Court. For less complex disputes, the Federal Magistrates Court may be preferable. It has the same jurisdiction as the Federal Court under the ADJR Act. It is meant to provide a simpler and more accessible "service" than the Federal Court and may provide a less expensive and quicker resolution of the dispute. If you are unsure whether or not the ADJR Act applies, you may be able to seek review in the Federal Court and combine an application under the ADJR Act with an application for one or more of the writs under section 39B of the Judiciary Act, just to be on the safe side (see: "Remedies in judicial review", above).
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be administrative in character; be made, proposed to be made, or required to be made under an enactment (see: s.3(1)); not be made by the Governor General (see: s.3(1)(c)); and not fall within one of the classes of decisions listed in Schedule 1 to the ADJR Act, which are exempt from the Act (see: s.3(1)(d)). Always check the list of exemptions in Schedule 1 for recent updates. A decision must be an ultimate, final, or operative determination and not a mere preliminary expression of opinion or statement: Australian Broadcasting Tribunal v Bond [1990] HCA 33. Conduct concerns procedural matters such as the refusal of an adjournment, calling witnesses, questioning witnesses and issuing subpoenas or the manner in which a hearing is being conducted, in the lead up to a decision that is itself capable of review (see: s.3(5)). Failure to make a decision falls into the area traditionally known as mandamus. An order can now be obtained where a decision-maker is under a duty to make a decision and fails to do so. Section 7 deals with two variations of this situation: where no time limit is imposed by the law on the decision-maker, a person can seek judicial review if nothing is done after a reasonable time, on the ground of "unreasonable delay" (s.7(1)); and if a period of time for making the decision is specified, the ground is "failure to make the decision within that period" (s.7(2)).
GROUNDS OF REVIEW
The grounds for review of a decision or conduct are listed in sections 5 and 6 of the ADJR Act. (See: "Grounds of review summary", above, for an extract of section 5.) They are similar (but not identical) to the traditional common law grounds which are outlined below. One key difference is that "error of law" need not be on the face of the record under an ADJR Act review.
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2. Person affected in relation to a decision, means a person, whether or not a party to proceedings, whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision which has been made or is to be made or ought to have been made by the tribunal. 3. Tribunal means a person or body of persons (not being a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court) who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice. These terms are discussed in more detail below. 1. Decision The above definition of "decision" makes it clear that judicial review under the ALA is not limited to decisions affecting "rights". It is sufficient if a "privilege" or "licence" is affected. See: "Decision" under "Application of the ADJR Act", above, for a discussion on the requirements to satisfy the definition of a "decision" as per Australian Broadcasting Tribunal v Bond [1990] HCA 33. Inaction can be treated as a "decision" for the purpose of review. 2. Person affected This definition provides the test to obtain standing to sue under the ALA. While some of the terms in the definition, such as "to a substantial degree" appear rather vague, very few problems have arisen in its practical application. 3. Tribunal This definition contains the most significant limitation: the requirement that the decision-maker must accord natural justice. First, tribunals presided over by a Supreme Court Judge (such as the Parole Board) cannot be challenged by the procedure (although an individual may seek review by other means). Second, the procedure can only be used to seek review of persons or bodies who act judicially "to the extent of observing one or more of the rules of natural justice". Not all administrative bodies must observe natural justice, or any of its rules, in their operation (although at common law they are still amenable to review where they exceed their powers). Section 4(3) of the ALA also places strict limitations on the circumstances in which the procedure can be successfully invoked against a decision of VCAT.
www.lawhandbook.org.au/handbook/ch21s02s03.php
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