Last updated 20 May 2022
Under pt 3 of the Judicial Review Act 1991 (Qld) (Judicial Review Act), the aggrieved person may apply to the court for an order of review in respect of:
- a decision to which the Judicial Review Act applies
- conduct for the purpose of making a decision to which the Judicial Review Act applies
- failure to make a decision to which the Act applies (ss 20, 21, 22 Judicial Review Act).
The Judicial Review Act distinguishes between decisions and conduct engaged in for the purpose of making a decision. Both are defined in very broad terms.
A ‘decision to which the act applies’ is defined as a decision of an administrative character made (or proposed to be made) under an enactment (s 4(a) Judicial Review Act).
‘Made under an enactment’ means that there is an Act (legislation/statute) that provides for the decision being made. In addition to a decision made under an enactment, a decision made using executive power in relation to a scheme or program which is not created by statute, but which is provided for by public funds is also a decision to which the Judicial Review Act applies (s 4(b)).
The Administrative Decisions (Judicial Review) Act 1977 (Cth) has no equivalent to the non-statutory scheme or program provision in Queensland (s 4(b) Judicial Review Act), so decisions in the Commonwealth jurisdiction can only be reviewed under that Act if they are made under an enactment.
Common forms of decision include:
- making an order
- giving a certificate
- issuing a licence, permit or authority to do a regulated activity
- suspending, revoking or refusing any of those things.
Conduct engaged in for the purpose of making a decision includes procedural matters such as taking evidence or holding an inquiry or investigation and the manner in which these processes are conducted.
Both Queensland and Commonwealth Acts exclude some decisions from their scope. The changing nature of government has meant that the Judicial Review Act now excludes from review decisions made by a range of government-owned corporations. It is also possible for parliament to protect specific decisions using a privative clause (see Privative clauses to protect government actions from review).