Last updated 30 August 2016
Statutory orders of review
The powers of the Supreme Court of Queensland in respect of applications for statutory orders of review under pt 3 of the Judicial Review Act 1991 (Qld) (Judicial Review Act) are set out in s 30 of the Act. The court can make any or all of the following orders in respect of decisions:
- quashing or setting aside the decision
- referring the matter to the person who made the decision for further consideration subject to directions such as time limits for the further consideration and preparatory steps
- declaring the rights of the parties
- directing any of the parties to do or not do anything that the court considers necessary to do justice to the parties.
When review of conduct is sought, the court may only make the final two orders listed. The failure to make a decision may be remedied by an order directing the making of a decision and/or the final two orders listed. All orders are discretionary.
The Federal Court of Australia has equivalent powers under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in respect of Commonwealth decision making.
Orders of review
If an application for judicial review under common law principles is successful, the court may, in its discretion, grant a remedy to solve the problem. The following five remedies are available:
- declaration—a formal statement by the court that an action or decision is unlawful. It is not contempt of court to ignore or defy a declaration, but the government will ordinarily comply with the terms of a declaration
- injunction—an order that something be done or some action taken (a mandatory injunction), or that an administrative body cease or refrain from doing an act (a prohibitive or negative injunction). Most injunctions in administrative law are prohibitive in form. Unlike a declaration, an injunction has a coercive effect, and it is contempt of court to disobey an injunction
- mandamus—an order by the court requiring an administrative body to perform an act (e.g. make a decision)
- certiorari—an order that quashes a decision that has been made unlawfully
- prohibition—an order requiring a body to cease proceedings because it lacks jurisdiction or has exercised its jurisdiction improperly. It is the appropriate remedy when the proceedings are only partly completed, and it prohibits the body from proceeding to make a decision.
In their common law form, the last three are known as prerogative writs and have been the traditional remedies used against unlawful administrative action. They are still issued by the Federal Court in reviewing action outside the ADJR Act. Under the Judicial Review Act, the Supreme Court of Queensland can no longer issue the prerogative writs but can make prerogative orders, which are essentially identical in effect.
Under pt 5 of the Judicial Review Act, when a person has made an application for review, the Supreme Court may grant an injunction or declaration and/or a prerogative order in the nature of a certiorari or prohibition order pursuant to s 47 of the Judicial Review Act. It may also remit the decision to the decision maker for further consideration subject to directions. While some technicalities remain in applying for these remedies under pt 5 Judicial Review Act, it seems that s 47 allows the court considerable flexibility in determining what remedy is most appropriate in the circumstances of the case, even if the relief that it decides to provide had not been included in the original application.