Last updated 20 May 2022
Where a person has standing to seek judicial review, they can do so on the grounds set out in the pt 3 or pt 5 of Judicial Review Act 1991 (Qld) (Judicial Review Act).
Sections 20, 21 and 23 of the Judicial Review Act specify the grounds on which a pt 3 statutory order of review may be made in respect of decisions and conduct leading to decisions.
The grounds to seek judicial review under pt 3 include where:
- rules of natural justice were breached
- the making of the decision was an improper exercise of power, including because the decision maker took irrelevant consideration into account
- there was a failure to observe procedures required by law
- there was an absence of jurisdiction, because the decision maker did not have jurisdiction to make the decision
- the decision involved an error of law.
Since the commencement of the Human Rights Act 2019 (Qld), where a public entity acts or makes a decision that is contrary to human rights, this may constitute a statutory ground of review including the failure to take relevant considerations into account.
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
The Judicial Review Act (s 20(2)(a), 21(2)(a)) requires decision makers to follow the rules of natural justice when making a decision to which the Acts apply. The common law continues to define whether natural justice applies and what it requires in the circumstances of a case.
Under common law, 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?
Where an Act or Regulation gives a decision maker the right to destroy or prejudice a person’s rights or interests, the rules of natural justice will generally regulate the exercise of the power, unless the enactment excludes the rules of natural justice.
This means that whenever an administrative decision is made under an enactment that 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 a contrary legislative intention.
Under the Judicial Review Act, rules of natural justice apply to decisions made in the exercise of public power, including by government departments, administrative tribunals, parole boards and where non-judicial bodies exercise membership or disciplinary proceedings under an enactment (e.g. licensing and membership of sporting bodies).
What is natural justice?
Natural justice is a flexible concept. It is not a set of rules, but constitutes a range of principles that requires a decision maker to afford a person affected by the administrative decision procedural fairness. This includes the rights to a fair hearing and that the decision is made by impartial decision makers.
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
- a family relationship or professional association with one of the parties
- feelings of animosity towards a party
- expressed an opinion from which a reasonable person might infer that the matter has been prejudged.
Failure to take relevant considerations into account
A decision maker may improperly exercise power (ss 20(2)(e), 21(2)(e) Judicial Review Act) by failing to take a relevant consideration into account in the exercise of a power (s 23(b) Judicial Review Act).
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.
In Queensland, the failure by a decision maker to give proper considerations to an applicant’s human rights under the Human Rights Act may give rise to this ground of judicial review.
Taking irrelevant considerations into account
Similarly, an improper exercise of power (ss 20(2)(e), 21(2)(e) Judicial Review Act) may occur where the decision maker takes irrelevant considerations into account in the exercise of a power (s 23(a) Judicial Review Act).
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
A person may apply for statutory review on the grounds that the procedures required by law to be observed in making the decision were not observed (s 20(2)(b), 21(2)(b) Judicial Review Act).
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 precondition 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.
Failure to observe the obligation in s 58(1)(b) of the Human Rights Act, which requires decision makers not to fail to give proper consideration to a relevant human right in making a decision, may give rise to this ground of judicial review.
Absence of jurisdiction
This ground exists under the Judicial Review Act (ss 20(2)(c), 21(2)(c)) where a decision maker 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 enquiries 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
Improper exercise of power (ss 20(2)(e), 21(2)(e) Judicial Review Act) may also occur where a discretionary power is exercised in bad faith (s 23(d) Judicial Review Act).
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 (ss 20(2)(d), 21(2)(d) Judicial Review Act).
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 (s 23(e) Judicial Review Act) and falls under the improper exercise of power ground (ss 20(2)(e), 21(2)(e) Judicial Review Act). 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 predetermined policy to each matter coming before them, without regard to the merits of each specific situation (s 23(f) Judicial Review Act) and is a further example of an improper exercise of power (ss 20(2)(e), 21(2)(e) Judicial Review Act). 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 (ss 20(2)(e), 21(2)(e) and 23(g) Judicial Review Act). 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 (ss 20(2)(h), s21(2)(h), 24 Judicial Review Act).
Abuse of power
This ground of review is something of a catch-all under the improper exercise of power ground (ss 20(2)(e), 21(2)(e) Judicial Review Act), which allows administrative decisions to be challenged in situations that do not neatly fit into the above categories but constitutes an abuse of power (s 23(i) Judicial Review Act). However, the Federal Court and Federal Circuit and Family Court of Australia (Division 2) have tended to exercise restraint in expanding the grounds of review available under the Administrative Decisions 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.
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 Administrative Decisions (Judicial Review) Act 1977 (Cth).
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.