Judicial Review Jurisdiction, Justiciability, and Standing, Lecture notes of Law

Download Judicial Review Jurisdiction, Justiciability, and Standing and more Lecture notes Law in PDF only on Docsity! Judicial Review Jurisdiction The issue is whether the decision was made under Commonwealth or State law and which court has jurisdiction. Federal decisions must go to the Federal courts and State (and local government) decisions to the State Supreme Courts.  It must be noted that the Federal Magistrates Court has jurisdiction to hear a range of applications under ss5-8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and certain appeals from the AAT (Administrative Appeals Act 1975 (Cth) s44AA).  Pursuant to s75 of the Constitution, which provides that the High Court shall have original jurisdiction in all matters in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth is a party; and in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Justiciability In Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274, the issue was whether the decision of the Federal Cabinet to nominate Kakadu National Park Stage 2 for inclusion on the World Heritage List was justiciable? How did the fact that the decision was made by Cabinet, using the royal prerogative power regarding international treaty obligations when Peko’s interests were not immediately affected, affect the justifiability of the dispute?  Wilcox J noted that the nature or subject matter of the dispute is an important consideration in determining justiciability as well as the effect the decision has on the applicant and Sheppard J also considered the identity of the decision maker.  Wilcox J considered how the dispute affected Peko as well as the subject matter or nature of the dispute (at 304): ‘...it is not possible to exclude judicial review of a decision merely because it was one made by Cabinet, merely because it was a decision taken in the exercise of prerogative powers of the Crown or merely because the decision combined both these characteristics’  In terms of how Peko was affected, Wilcox J stated that the affect on Peko was not immediate enough as stated at 306: ‘it was not enough that the instant decision to nominate the Park for inclusion might lead to some future decision if the Park is listed then the possible decision of the Governor-General to make a proclamation or action which would have the specified effect.’  In terms of the subject matter of the dispute Wilcox J observed, at 307, that ‘the decision primarily involved Australia’s international relations’. He concluded that this is not an area that the courts are equipped to review and resolve and hence this was another reason why the dispute was non justiciable.  Sheppard J made some additional comments at 281 in relation to the effect that the identity of the decision maker will have on the justiciability of the dispute, in particular whether decisions of Cabinet can ever be justiciable: ‘The way in which Cabinet operates...would pose difficulties for a court in endeavouring to determine whether a decision was arrived at in accordance with law. The decision-making process does not readily lend itself to this type of review or investigation.’ Meaning of ‘matter’ - requires that there be some dispute between the parties to the action which will be quelled by the application of judicial power. Section 75 of the Constitution and s39B of the Judiciary Act 1903 (Cth) confers jurisdiction upon the High Court and Federal Court respectively to undertake judicial review, require the existence of a ‘matter’. The sections state that the court has jurisdiction ‘in all matters...’ or in ‘any matter...’. The courts have stated that the term ‘matter’ does have a defined meaning and that it is a requirement which relates to justiciability. In Re Mc Bain; Ex Parte Australian Catholic Bishops Conference (2002) 209 CLR 372, the applicants were simply dissatisfied with the decision of Sundberg J. In addition to this the applicant’s rights, duties or obligations must be immediately affected by the application of the judicial power. It is not simply enough that the applicant does not like the decision maker’s decision.  Regardless of what approach is taken to determining justiciability the goal is still the same, that is, to determine whether the dispute is amenable to judicial review. Standing Standing is a question of who can bring an action to challenge the administrative decision. According to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) the applicant must be ‘aggrieved’ by a reviewable decision or conduct (ss 5, 6), meaning that their ‘interests are adversely affected’ by the decision or conduct (s 3(4)). The ADJR Act test for standing is largely indistinguishable from the general common law ‘special interest’ test.