Last updated 20 May 2022
Review of Commonwealth Government Actions
Review of State Government Actions
What Government Actions may be Challenged
Who can Make a Complaint about Government Actions
Time Limits for Complaints against Government Actions
Obtaining Reasons for a Government Action
Human Rights and Judicial Review in Queensland
Grounds for Review of Government Actions
Privative Clauses to Protect Government Actions from Review
Remedies for Judicial Review of Government Actions
The grounds on which courts will review administrative actions have been developed under the common law over hundreds of years. The introduction of statutory forms of review at both Commonwealth (Administrative Decisions (Judicial Review) Act 1977 (Cth) (Administrative Decisions Act)) and state (Judicial Review Act 1991 (Qld) (Judicial Review Act) levels has simplified the otherwise technical common law requirements. Many decisions made under these Acts have expanded the principles and applied them to new situations.
Judicial review is part of the administrative law system for holding governments accountable. It involves the oversight of government decision making by the courts. This is a supervisory role—a person affected by a government decision can test the legality of the decision.
Judicial review differs from merits review (see the Complaints against Government—Administrative Appeal chapter), which is concerned with whether the decision made was the correct or preferable decision. Judicial review examines the power or jurisdiction to make a decision or to take an action, and whether it was lawfully made, but it is not concerned with the merits of the decision.
This chapter only gives a general outline of the law relating to judicial review, with a focus on the Queensland Judicial Review Act. The advice of a lawyer experienced in this area should be sought if legal proceedings against government are contemplated, given the potential complexity of legal arguments and the costs risk arising from proceedings in a court.
The Administrative Decisions Act and Judicial Review Act contain the statutory grounds for judicial review. To be successful, a statutory review application must be:
- brought about government action that can be challenged through judicial review
- by a person with standing
- on grounds set out in the Administrative Decisions Act or Judicial Review Act
- within the relevant time limits, and
- seeking an available remedy.
Remedies include setting aside the decision, referring it back to the decision maker and, under the Queensland Judicial Review Act, making declarations that a decision is unlawful. However, unlike merits review, a court exercising judicial review cannot substitute the decision with the correct or preferable decision.
Both the Administrative Decisions Act and Judicial Review Act require the decision maker to give a statement of reasons for a decision that is reviewable through judicial review, with some exceptions.
The Human Rights Act 2019 (Qld) (Human Rights Act) has changed the judicial review framework in Queensland by expanding existing grounds of statutory review, allowing applicants to piggyback human-rights arguments onto their judicial review applications and requiring the Supreme Court to interpret laws, including those relevant to the decision, in a way that is compatible with human rights.