Last updated 30 August 2016
Sections 20, 21 and 23 of the Judicial Review Act 1991 (Qld) (Judicial Review Act) specify the grounds on which a statutory order of review may be made in respect of decisions and conduct leading to decisions. In pt 5 of this Act, the grounds are not codified so common law prevails. However, common law grounds and the statutory grounds of review are essentially the same and will be treated as such below. Where significant differences exist, these will be noted.
Breach of the rules of natural justice
Many administrative decisions must be made in a way that affords people that are affected by the decisions the right to natural justice. When a natural justice issue arises, two questions have to be asked: do the rules of natural justice apply? And if so, what comprises natural justice in this situation?
Do the rules of natural justice apply?
Whenever an administrative decision affects the rights, interests or legitimate expectations of an individual, the decision maker is bound to observe the rules of natural justice, unless there is clear legislation to the contrary. Legal rights and interests may include such things as holding a licence, membership in a social or political club, trade union membership or professional reputation. A legal expectation might arise as a result of the regular conduct of an administrative body. For example, a right to natural justice would apply in the case of a person who had been warned off a racecourse, because that person has a legitimate expectation (along with other members of the public) that when they presented at the entrance to the racecourse, they would be admitted upon payment of the appropriate fee.
What is natural justice?
The procedures necessary to ensure that natural justice is afforded will vary from case to case. In some cases, the legislation will specify what procedures must be followed to afford natural justice. Where an Act is silent or does not exhaustively define the necessary components of natural justice that will apply, the court will determine what procedures should be followed to ensure natural justice. Generally, as the effect of a decision becomes more serious or the interests at stake become more important, the procedures necessary to secure a fair hearing will be more rigorous. A fair hearing may sometimes require that the proceedings be conducted like a trial, which means that:
- notice of the hearing should be given
- the person should know the case against them in advance
- they should be allowed legal representation
- they should have the right to cross-examine witnesses
- the rules of evidence should be followed.
In other circumstances, a fair hearing may comprise no more than a brief outline of what is proposed to be done with an invitation to make written submissions on the matter.
A second aspect of the rules of natural justice, the bias rule, requires that decisions to be made by impartial decision makers. The important principle here is that justice must not only be done but must be seen to be done. In most cases it is not necessary to show actual bias—it will be sufficient to show apprehended bias, which arises when a reasonable person observing proceedings would have thought that the decision maker was not able to bring an impartial mind to the making of the decision.
The circumstances in which a reasonable suspicion of bias might exist are numerous and include where the decision maker:
- has a financial interest in the decision
- has a family relationship or professional association with one of the parties
- has feelings of animosity towards a party
- has expressed an opinion from which a reasonable person might infer that the matter has been prejudged.
Failure to take relevant considerations into account
This ground can be made out only if the administrative body was required to consider the factor alleged to be relevant and failed to do so. Relevant factors that must form part of the decision will often appear in the statute. Where the statute is silent or where it does not exhaustively list the factors that are required to be considered, the court will look to the subject matter, scope and purpose of the particular Act conferring the power in order to decide whether a factor is relevant and must be taken into account.
Taking irrelevant considerations into account
This is a very common ground of challenge and one of the most important in practice. If it can be shown that an administrative body took irrelevant factors into account in reaching a decision, the court can review the decision.
What constitutes an irrelevant consideration will be determined on the basis of statutory interpretation (much as for relevant considerations), giving effect to the scope and purpose of the particular Act pursuant to which the decision is made.
Failure to observe procedures required by law
Statutes often lay down procedures that should be followed in making a decision. However, not every failure to follow those procedures will invalidate the subsequent decision. Courts now generally regard the matter as one of statutory interpretation and attempt to work out, from the scope and objects of the statute, what parliament intended should be the consequence of non-compliance. For example, a statutory requirement for the preparation of an environmental impact statement is likely to be regarded as a necessary pre-condition to any valid decision to allow a development, whereas a failure to comply with some lesser technical requirements, although expressed to be required, may not cause a subsequent decision to be invalid simply because those technical requirements were not followed.
Absence of jurisdiction
This ground exists where a person has made a decision that they have no power to make, or where a decision has been improperly delegated to someone other than the person upon whom the power was conferred in a statute.
For purely practical reasons, many government functions are delegated, and the courts recognise this fact of administrative life. However, the courts insist that the delegate (the person who actually exercises the power in practice) must be an appropriate person.
A delegate is generally regarded as appropriate if they are subject to the control of, and answerable to, the person upon whom the power was conferred originally. For example, a power vested in the Director-General of one government department may often be properly delegated to an officer within that department but usually not to an officer in another department or to someone outside the public service.
Furthermore, some central decision-making powers which are fundamental to the whole scheme of the empowering Act may not be able to be delegated at all, although the making of inquiries upon which the decision will be based, or even the making of recommendations, can be delegated. Such decisions must, however, be made ultimately by the individual who is given the statutory power to make the decision.
Improper purpose or bad faith
This ground often overlaps with the ground of irrelevant considerations, as an irrelevant consideration may have been taken into account in order to achieve some improper purpose. In determining whether there has been an improper purpose, it is again necessary to look at the particular Act conferring the power to determine the purpose for which the power was granted. Even where some improper purpose has been involved in the making of a decision, it will not necessarily invalidate the decision unless the improper purpose was the dominant or substantial purpose underlying the making of a decision.
In extreme cases, decisions may be made for improper purposes that are not only unauthorised but also motivated by dishonesty, or made corruptly or out of spite. In such a case, judicial review can be obtained on the grounds of bad faith. Such cases are relatively rare, because the burden of establishing bad faith on the part of a decision maker is high, and it will usually be very difficult to get evidence of the corrupt or dishonest motives that actually motivated the decision.
An administrative body will be subject to review when the empowering statute does not provide the power to take the particular action or make the decision challenged.
Exercise of power at the behest of another
This ground relates to instances where a person has exercised a discretionary power at the instruction of another person. Generally, a decision maker should not defer to the direction of another person, even a higher official, and should not merely follow directives of their superiors.
However, the courts have recognised the realities of administrative organisation and held that it is quite proper for matters such as government policy to be taken into account in many cases and even to be given conclusive weight. However, the extent to which government policy should control decision making may still depend upon the type of administrative body involved and the level of independence from the political or policy aspects of government, which can often be seen in the terms of the legislation creating the body.
Exercise of a power in accordance with the law
A ground of review exists when the decision maker applies a pre-determined policy to each matter coming before them, without regard to the merits of each specific situation. Although it is desirable that like cases should be decided alike and that some set rules or standards should govern decision making, this ideal can be carried too far. When the rules or guidelines are rigidly applied, injustice may result. Every situation deserves to be treated on its own individual merits within a general framework of rules and policies. Decision makers may, however, only apply policies that are, in themselves, lawful, and should not turn a deaf ear to claims that a particular decision involves matters that distinguish it from the run of the mill situations for which the policy was designed.
Unreasonable exercise of power
Although judicial review is not generally concerned with the merits of a decision, the court will review an administrative action or decision that is so unreasonable that no reasonable body would have reached that conclusion. It is generally necessary to show that the decision has no rational or plausible explanation, or that it is perverse, illogical or disproportionate in its effect. This is a difficult ground to establish.
Absence of evidence
At common law, absence of evidence (the ‘no evidence’ rule) requires that there be no evidence at all to support the decision made. Under statutory review, this ground is less onerous and will apply to either of the following two situations:
- where a decision maker is required by law to reach a decision only if a particular matter is established, and there is no evidence on which the decision maker could reasonably be satisfied that the matter is established
- when the decision is based on a particular fact, and that fact does not exist.
Abuse of power
This ground of review is something of a catch-all, which allows administrative decisions to be challenged in situations that do not neatly fit into the above categories. However, the Federal Court of Australia has tended to exercise restraint in expanding the grounds of review available under the Commonwealth Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) based on this vague terminology, and the Queensland courts might be expected to adopt a similar view in relation to the Judicial Review Act equivalent.
Review of failure to make decisions
Section 22 of the Judicial Review Act covers the situation when an administrative body fails to make a decision where it has a positive duty (as opposed to merely a discretion) to make a decision to which the Judicial Review Act applies. There is an equivalent provision in s 7 of the ADJR Act.
If there is a time limit specified for the making of the decision, the ground for the application is that the person has failed to make the decision within that period. If there is no prescribed time limit, the applicant for an order of review must show that there has been unreasonable delay in making the decision. What is an unreasonable delay will be a matter of argument depending on the circumstances.
Under both Acts, where a decision maker fails to make a decision within the relevant time frame, the court may issue an order requiring the decision maker to make a decision within a specified period.