Judicial Review: The Government Decision Record

What Judicial Review Examines

Judicial review concerns the legal limits on government decision-making. The Federal Court’s administrative law guide explains that judges generally supervise legality and fair process without remaking the administrative decision.

Start a review file by identifying the government involved, the actual decision and its maker. Record the operative statutory provision, any delegation and the notice communicating the outcome. A department’s letterhead does not establish who exercised the power.

For Commonwealth matters, possible Federal Court pathways include the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) and section 39B of the Judiciary Act 1903. Section 39B includes jurisdiction for specified relief against Commonwealth officers, subject to its limits. Establish the applicable pathway before borrowing another matter’s grounds or forms.

Merits review concerns reconsidering the correct or preferable outcome where legislation permits it. Judicial review requires a legal complaint about the exercise of power. State and territory matters require their own jurisdictional analysis.

Identify the Reviewable Error and Available Relief

Identify the legal requirement allegedly breached before selecting the supporting transactions. Under section 5 of the ADJR Act, grounds include legal error, unauthorised action and failure to observe required procedures. Availability depends on the Act’s application and the governing law.

For example, a decision-maker might apply a financial threshold that the legislation does not prescribe. The legal allegation concerns the statutory test. A complaint about procedural fairness instead requires identification of the hearing or impartiality obligation allegedly breached.

Keep the ground, supporting evidence and requested order separate. “The total is wrong” identifies a factual dispute. Explain how the alleged mistake breaches the governing legal requirement and why that breach supports the relief sought.

In Hossain v Minister for Immigration and Border Protection, the High Court explains that statutory authority ordinarily incorporates a materiality threshold. Its content depends on statutory construction. The judgment illustrates why identifying an error of law does not automatically establish jurisdictional error.

A useful file note identifies the impugned finding, the source passage contradicting it and the legal significance alleged. If another independent finding supports the outcome, address its effect on the argument.

Assemble the Decision and Reasons Record

Assemble the materials that explain what decision was made and what was before the decision-maker. Preserve original files and create separately identified working copies.

1. Collect the operative legislation, delegation and application or initiating document.
2. Preserve the supplied financial documents, submissions and any requests for further information.
3. Collect the decision notice, reasons and correspondence about their delivery.
4. Record relevant procedural steps and identify missing documents without assuming their contents.
5. Build a chronology with a source filename and page or paragraph for each event.

For each document, record when it was created, received and placed before the decision-maker. Separate later explanations and newly obtained evidence. Preserving material does not establish its admissibility for every ground. Identify the purpose for which each proposed affidavit exhibit is relevant.

Consider a fictional public-payment decision. An agency rejects an application because its worksheet treats every account credit as earnings. The applicant’s original submission identifies a $4,000 credit as a transfer between their own accounts.

The chronology records submission of both statements, receipt of the explanation and the later refusal. The lawyer then compares the statutory earnings definition with the reasons and worksheet. If the same credit appears in the materials, identify where the decision-maker addresses it or leaves the issue unresolved.

A later bank-analysis report can organise the entries and their source references. Keep it labelled as later analysis. It cannot supply reasons that the decision-maker never gave or retrospectively become material that was before them.

Assess Standing, Time and the Court Pathway

Confirm that the chosen court can hear the applicant’s particular challenge before settling the application. For an ADJR application, consider the person-aggrieved requirement, statutory exclusions and alternative review arrangements. Section 11 governs filing time, including its applicable triggers and extension provisions.

Record the decision notice and any reasons request alongside a calculated deadline and its legal basis. Do not assume requesting reasons extends every possible review period. For a different statutory pathway, calculate the period under that pathway.

Check the correct originating process, parties, service requirements and supporting material. The Federal Court guide directs administrative-law applicants to Part 31 of the Federal Court Rules. Resolve any mismatch between the proposed ground and the selected procedure before filing.

Preserve documents immediately if implementation could alter the financial position or destroy relevant records. Identify any urgent interim-relief question separately. Under section 15 of the ADJR Act, commencing Federal Court review does not itself suspend the decision. Detailed stay of proceedings questions require their own application analysis.

Prepare the Public Client’s Response

Prepare a response file that distinguishes agreed facts from contested allegations and the legal position the public client can support. Record the authorised instructor and the person responsible for each missing record.

Keep factual admissions, the alleged error and proposed relief in separate entries. A concession that a worksheet contains an arithmetic mistake need not concede every pleaded consequence. Equally, defending the proceeding does not justify replacing an inconvenient original record with a revised version.

For covered Commonwealth entities, the Legal Services Directions require fair handling of litigation, prompt assessment and avoidance of unnecessary delay. They permit proper defence of claims. Apply the relevant model litigant framework to the particular public client.

Distinguish defending the existing decision from proposing lawful reconsideration. Before offering reconsideration, identify the power to undertake it and the effect on existing proceedings. A court-ordered next step must follow the order’s terms. Record the client’s instructions on each option without treating a proposed concession as an order already made.

Apply the Judgment to the Next Decision

Apply the court’s actual orders to the administrative file. Under section 16 of the ADJR Act, available relief includes setting aside, remittal and declarations. The order’s wording determines its effect.

A quashed decision has been set aside to the extent ordered. Remittal sends the matter back for further consideration, subject to any directions. A declaration states the parties’ legal position within its terms. Check any additional mandatory or restraining order separately.

Record when the orders take effect and what remains for the decision-maker to decide. Setting aside a refusal does not automatically grant a payment. A lawful new decision can still be adverse.

For the fictional payment file, retain the judgment beside the original reasons and identify the legal test required on reconsideration. Assign responsibility for obtaining any further material permitted by the lawful process. Close the litigation task only when the recorded next action matches the orders, including any continuing restraint or reporting requirement.