 Pl has standing only if there is a relationship between (a)
SOURCES OF REVIEW JURISDICTION
Invoke which source of review jurisdiction? Possible avenues of
review:
 State decisions can be reviewed by:
 State Supreme Court (r98 Supreme Ct Rules).
 Cth decisions can be reviewed by:
 High Court (s 75 Constitution);
 Federal Court (ADJR Act) only for “a decision of an
administrative character made under an enactment,
OTHER THAN a decision by the GG or a decision
[listed] in Schedule 1” (s 3).
 ABT v Bond: A reviewable “decision” is:
 a final & operative decision, or
 an essential preliminary step required by statute
to reach an ultimate decision.
 Federal Court (s 39B Judiciary Act);
 AAT if the relevant statute confers AAT review
jurisdiction (s 25 AAT Act).
MERITS REVIEW
 Standing (s 27(1)): Applications may be made by any person
whose interests are affected by the decision.
 Preconditions to AAT review satisfied?
 Any jurisdictional facts, procedural preconditions?
 Do the merits review: A fresh decision. Simply reargue law
& facts: interpret statute and apply it to the facts.
 Has the facts changed since the decision?
 Did the original decision maker take a wrong view of the
facts?
 Drake v Min Immigration: The AAT’s function is to
independently determine the correct & preferable decision on
the material before it. (subject to statute)
 Although govt policy is a relevant consideration, the AAT
cannot blindly follow it. AAT should question the policy’s
propriety, and consider other factors.
 Remedies: S 43 AAT Act: AAT can affirm, vary, substitute or
remit the decision.
 This amounts to full merits review power (Drake’s case).
Note: The AAT’s powers may be limited by the statute conferring
jurisdiction.
JUSTICIABILITY (NOT OF ADJR)
 There is no automatic immunity from review merely because
the decision was made by Ministers (Padfield; Murphy Ores),
Crown’s Representative (Re Toohey; FAI v Winneke) or
Cabinet (SA v O’Shea; Peko-Wallsend); or made under a
prerogative power (CCSU case; Peko-Wallsend).
 Key factors of justiciability:
 Subject matter? (eg. of non-justiciable SM: National
security (CCSU v Min Civil State); Treaty implementation
(Peko-Wallsend); appointment of QCs (Waters v AG))
 High-level policy decision? (complex weighing up of
many competing policies; highly political; courts lack
expertise: Peko-Wallsend). Or a Determinative decision?
 Position of decision-maker & nature of power?
STANDING
 Does the Pl have a “special interest”; or Is the Pl a “person
aggrieved”? (ie. the decision must affect the Pl’s interests
more than the public at large) – an individualised effect.
 Right to Life Assn v Dept: The special interest must be within
the purposes of the relevant Act.
the subject matter of the decision (from the Act’s objects),
and (b) the matters that the Pl alleges.
 (Decision was about quality/safety of goods; but Pl’s
arguments had nothing to do with quality/safety. They
were based on clinical trials being contrary to law  no
standing)
Personal/Private Standing
Personal standing may arise from:
 Directly interference with common law rights to life, liberty &
property;
 Actual financial loss (eg. lowering of property values) (Howes
v Vic Railways);
 Indirect effect on a right (eg. effect on residential amenity)
(Exp Helena Valley v State PC);
 Competitors:
 Exp Cooke: Courts are unwilling to allow judicial review
to be used as a tool to hinder competitors.
 Bateman’s Bay: Allowed standing to a competitor, who
showed a significant effect on its commercial/financial
interests.
 Ministerial directions indirectly affecting rights/interests
(Riddell, Smoker, ADC v Hand).
Public Standing
 ACF v Cth: A mere intellectual/emotional concern, or a strong
belief that the law should be observed, is not enough to give
standing.
Vocational special interest
 Ogle v Strickland: If a necessary incident of the Pl’s vocation
is to challenge the decision, the Pl has standing.
 (Priests had standing to challenge decision to allow
imports of blasphemous film)
 Onus v Alcoa (Aboriginal custodians of relics had standing to
challenge a decision to allow aluminium smelter which would
interfere with Aboriginal relics on the land)
 Sutton v Warringah (Councillor had standing to challenge
Council’s decision to delegate powers)
Participation in Statutory Process (objector status)
 US Tobacco v Min: A Pl has standing if the Pl participated in a
statutory process that leads up to the making of the decision
being challenged. But merely making submissions is not
enough.
Representative standing
 A body which is best placed to represent the interest of a
section of the community that is specifically affected by the
decision, has standing to challenge it.
 Shop Distributive v Min Industrial Affairs: An Union has the
same interest as its members.
 North Coast Env Council v Min Resources: The more
organised & recognised the body is, the more likely it can get
representative standing.
 (peak organisation in region, govt funding, keen interest
for many yrs, no body more representative  standing)
 ACF v Minister for Resources
 (main body for protecting environment, govt funding,
great public perception of protecting environment 
standing)
 Exec Council of Aust Jewry v Scully: The representative body
need not have its operations confined to the geographical
region affected by the decision.
PRECONDITIONS TO EXERCISE OF POWER
Jurisdictional fact error (s 5(1)(c))
 Is a fact a jurisdictional fact (precondition) or a non-
reviewable question of fact (not precondition)?
 Factors:
 Statutory language makes the fact an essential
preliminary to power  jurisdictional (Enfield v DAC).
 Fact is phrased in objective language  jurisdictional
(Enfield v DAC). Subjective language (“considers”) 
non-jurisdictional (AHC v MIM).
 Fact is pivotal /central to the design of the statutory
scheme  jurisdictional (Enfield v DAC).
 Fact determined by detailed public consultation &
consideration procedures  non-jurisdictional (AHC v
MIM).
 Fact incorporates strong value judgement  non-
jurisdictional (AHC v MIM) But if determinable by expert
evidence  jurisdictional (Enfield v DAC).
 Inconvenience of making admin decisions conditional
upon a court’s view of the facts  non-jurisdictional
(Project Blue Sky v ABA).
 Whether the facts exist has a strong impact on common
law rights & liberties  jurisdictional.
Procedural UV (s 5(1)(b))
 Is the requirement a procedural precondition? (something
decision-maker had to do before making the decision)
 Project Blue Sky: Whether invalidity flows from non-
compliance with statutory requirements, is a question of
legislative intent.
 Factors indicating intent of invalidity:
 Subject matter is determinate & rule-like?
 Consequences of invalidity?
Subjective preconditions are relevant considerations (Peko-
Wallsend) & may be reviewable for unreasonableness/no evidence.
SUBSTANTIVE GROUNDS OF REVIEW
SIMPLE UV (S 5(1)(D))
 Did the administrator go beyond the express words of the
power?
 Swan Hill Corp v Bradbury: Powers authorising intrusion into
common law rights & freedoms  construed more narrowly.
ERROR OF LAW (S 5(1)(F))
 1) What does the overall statute, or technical legal words,
mean? (this is a question of law which the court can
determine: Hope v CC Bathurst)
 2) Did the decision-maker:
 Misunderstand the nature/limits of its
functions/powers?
 Apply the wrong statutory test?
BREACH OF PROCEDURAL FAIRNESS (S 5(1)
(A))
 Procedural fairness applies to the decision?
 Kioa v West: Decision has a direct & immediate effect on
rights, interests or legitimate interests of an individual [in
an individualised way]?
Any contrary statutory intent?
 Cases show it’s hard to find contrary statutory intent:
 Ainsworth v CJC (could not use expressio unius maxim to
impliedly exclude PF)
 Exp Miah (specification of certain procedures (“Code”) &
right of appeal to Tribunal, did not exclude PF)
 Kioa v West (requirement to give reasons  PF applied)
 But PF may be excluded where its application would
be inconsistent with the statute’s operation/purposes.
 Statutory provisions affect content of, rather than exclude, PF.
 Ainsworth v CJC: Where a decision-making process involves
different steps, procedural fairness is satisfied if the entire
process entails procedural fairness.
Fair hearing
 Kioa v West: Procedural fairness requires the administrator to
notify the affected person about any adverse information in
the administrator’s mind, that will influence the decision.
 This includes adverse information that is not
crucial/decisive of the decision (Kioa).
 This includes information in the public domain (Exp
Miah), as long as Pl could not reasonably have expected
the info to be used against him.
 Russell v Duke of Norfolk: Procedural fairness requires the
affected person to be given a reasonable opportunity to
present his case (ie. an adequate hearing).
 1) What is Pl’s defence argument?
 2) What procedures are necessary in order to make Pl’s
case? Any reason why not adopting it would still be fair?
 3) Were those procedures actually adopted?
Examples of procedures required by procedural fairness
 Ex parte Polemis (PF required adjournment, b/c need time to
prepare evidence + poor English)
 Chen Zhen Zi v Min Immigration (PF only required oral
hearing where credibility is in issue, or the applicant is
disadvantaged by being limited to written submissions)
 White v Ryde Municipal Council (PF did not require legal
representation, b/c only simple factual matters, no legal
arguments, no charge, and no witnesses)
 O’Rourke v Miller (PF did not require cross-examination or
confrontation, b/c no reason why the witnesses lied)
 NCSC v News Corp (PF did not require adversarial
procedures, b/c: statute requires expedition; only an
“investigation”; can cross-examine & call witnesses in
subsequent proceedings; and decision-maker is likely to call
right witnesses  inquisitorial procedures were sufficient)
Deemed Bias
 Dimes v GJC: Decision-maker has a direct financial interest in
the outcome of the decision?
 Ebner v OTB: If the decision has no effect on the financial
interest of the decision-maker, then there is no deemed bias.
Apprehended Bias
 Would a fair-minded observer reasonably apprehend that there
might be bias (ie. a closed mind to the arguments), because:
 Decision-maker prejudged the case (Livesey v NSWBA;
Vakauta) by expressing preliminary views on the case;
 Decision-maker conducted the matter in an unjudicial
way (Damjanovic v Sharpe); or
 Decision-maker has a close relationship with a party.
 Waiver of right to object: Vakauta v Kelly; Damjanovic v
Sharpe: Where Pl fails to object to bias before the decision,
and is aware of the right to object, then Pl waived that right to
object.
 Rule of Necessity: Laws v ABT: The bias rule cannot stop a
body from performing its statutory functions; or frustrate the
intended operation of a statute. (b/c statute > common law)

ABUSE OF DISCRETION
 Padfield v Min of Ag: Even formally unconfined & absolute
discretions may be reviewed for abuse of discretion.
Improper purpose (s 5(2)(c))
 1) What were the actual purposes for which the power was
exercised? Proof? (can infer)
 2) What is the authorised purpose for which the power is
intended to be exercised? (statutory interpretation)
 3) Are the actual purposes consistent with the purposes of
the power/Act?
 4) But for the unauthorised purpose, would the same
decision still have been made?
 Are the proper purposes enough to justify the decision?
 Woollahra Council v Min for Env: Good motives are
irrelevant.
Irrelevant & Relevant Considerations (s 5(2)(a)-(b))
 1) What is a relevant/irrelevant consideration in making
the decision?
 If Act expressly states them:
 Define them in accordance with purposes of the Act.
 They are not exhaustive (R v Hunt).
 Can imply them from the “subject matter, scope and
purpose of the Act” (Peko-Wallsend).
 Test: Does such a consideration have anything to do
with the purposes of the power/Act?
Examples of implied relevant considerations:
 Peko-Wallsend (preliminary inquiry; update on a
relevant consideration is a relevant consideration)
 Edelston v Wilcox (massive financial effect)
 Phosphate v EPA (Environment Act, no mention of
economic/public interests  economic consequences
are not relevant considerations)
 Roberts v Hopwood (City Mgmt Act, power to set
wages  social philanthropy & feminist ambition
irrelevant; union rates & cost of living relevant)
 Green v Daniels (prevention of abuse  relevant)
 2) Was it actually considered? Proof? (look @ the reasons)
 ACF v Forestry Comm: Failure to mention a
consideration does not necessarily mean failure to take it
into account.
 (expressly considered in other cases + decision must
be made quickly  inferred consideration)
 Peko-Wallsend: The weight which a decision-maker gives
to the relevant factors, is a matter for them.
 Norvill v Chapman (no physical access + no time  not
considered)
Unreasonableness (s 5(2)(g))
 Test: Is the decision so unreasonable, that no reasonable
person could have so exercised the power? (Wednesbury)
 Discrimination without justification:
 Parramatta CC v Pestel (levied rates on some sites only
within an area, to fund amenities to the whole area 
unreasonable)
 Sunshine Coast Broadcasting v Duncan (refused
application for reasons that applied equally to other
applications which were accepted  unreasonable)
 Disproportionate admin response to a perceived problem:
 Ex parte Hook (decision took away Ap’s livelihood b/c of
the trivial offence of urinating  unreasonable) Edelston.
 Fares Rural Meat v AML (decision costed Ap millions of
export trade loss, but potential serious consequences for
export trade if no action taken + Act’s express purpose
was “long term best interests of trade”  reasonable)
 Limited duty of inquiry:
 Prasad v Min Immigration: Where material which is
central to a decision to be made is easily available, failure
to obtain that material before reaching the decision would
be unreasonable.
 (rejected VISA application on basis of suspicious
marriage, without investigating these suspicions 
unreasonable)
 Unreasonable application of [ordinary English] statutory
words to facts. (Hope v CC Bathurst; Chan Yee Kim v Min)
 No evidence to justify making of the decision (s 5(1)(h)).
FAILURE TO EXERCISE DISCRETION
Failure to make a decision (s 7)
 Only where there is a duty to make the decision.
 No express time limit  unreasonable delay?
 Thornton v Repatriation Commission (not unreasonable
to wait for High Court decision on similar matter)
Delegation
 1) Who is supposed to make the decision (or perform the
duty)? (look @ statute)
 2) Did he in fact do it personally? (look @ facts)
 3) Did he have an implied power to delegate the
decision/duty?
 Carltona: Powers to delegate may be implied where
administrative necessity requires it.
 Eg. O’Reilly v Comm of State Bank (power exercised lots
of times + express delegation power is limited  implied
power to delegate)
 Factors against implied power to delegate (Secretary DSS v
Alvaro):
 *Power does NOT largely involve fact-gathering from
objective evidence that can be tested;
 *Discretionary power (result doesn’t necessarily follow);
 Power expressly vested in decision-maker;
 The repository’s discretion is central to the decision-
making process, evidenced by preliminary inquiry
procedures (Peko Wallsend);
 Exercise of discretion significantly affect rights &
liabilities;
 Power likely to be exercised to implement broad policy
objectives under the Act.
Direction/Policy = valid/invalid? (simple ultra vires)
No statutory power (policy)
 Are the policy guidelines consistent with the Act
conferring the discretion? (Rendell v Release on Licence
Board)
 Re Findlay (policy not to release prisoners in all but the
most exceptional cases  consistent with Act because
decisions turn on public interest, not individual
circumstances  policy valid)
 Green v Daniels: If policy rigidly introduces an extra
criterion for eligibility, it is inconsistent with statutory
criteria & ultra vires.

Statutory power (to issue directions/guidelines)
 1) Does the direction/guideline take away discretion?
 2) Is the power to issue intended to authorise this?
Impermissible constraint of discretion?
 ADC v Hand: A power to issue “general directions”
means that the direction must not be directed to a
particular case arising for decision, but must be generally
applicable. Ie. direction must be as to procedure, not
outcome.
 (Direction to co-operate & give info was “general”)
 ALS v Min for Aboriginal Affairs (Direction allowing
Special Auditor to override ATSIC’s discretion to grant in
particular cases  not “general”  invalid)
 Riddell v Sec DSS: There is power to give general
guidance only, not to dictate the result of all cases,
because:
 Direction power & compliance rule refers to “the
Secretary’s power”  recognises that the Secretary
still has discretion.
 Compliance rule says “must act in accordance with”
directions  suggests directions are not to be
mandatory rules.
 Direction power says the Minister “may” issue the
directions  the directions are not essential to the
statutory scheme.
 Direction power did not exist before  if Parliament
intended the directions to circumscribe the
Secretary’s power, it would have addressed the ambit
of the power itself.
 Smoker v PRA: There is power to make “guidelines”
which dictate results of particular cases, because:
 Direction power & compliance rule did not refer to
the Authority’s power, but to functions  recognises
that the Authority does not have discretion.
 Compliance rule says “must comply with” the
guidelines  suggests guidelines are to be
mandatory rules.
 Direction power says the Minister “must” issue the
guidelines  the guidelines are essential to the
statutory scheme.
 A prior agreement contemplated that the Minister
could circumscribe the Authority’s discretion.
Acting under dictation (s 5(2)(e))
 1) Did DM exercise its discretionary power at the direction
of another, without examining the merits?
 2) Is this consistent with the statute?
 Does statute require DM to exercise discretion for itself?
 Roncarelli v Duplessis
 Rendell v Release on Licence Board (Board applied policy not
to release prisoner until served minimum 10 yr gaol w/o
looking @ merits; but statute required Board to consider
individual circumstances  invalid decision)
Inflexible application of policy in exercising a
discretionary power (s 5(2)(f))
 1) Did DM apply its own policy inflexibly, without
examining the merits?
 2) Does the statute require DM to exercise more
discretion?
 British Oxygen: As a minimum, the DM must be willing
to listen to someone who has something new to say;
 [Inflexible application of policy] is more likely to be
inconsistent with statute if:
 once the statutory criteria are satisfied, there is a
legal entitlement (not merely a hope of receiving
benefit) (Green v Daniels); or
 the decision turns primarily on the individual
circumstances of the applicant (Tang v Min of
Immigration, Cumbairux v Min Immigration) rather
than the public interest (Re Findlay).
Fettering statutory discretion by representations
 Kurtovic: Estoppel is not available against a government
decision-maker in its exercise of public powers.
JURISDICTIONAL ERROR
(only relevant if decision-maker is an inferior court)
 Craig v SA: An inferior court falls into jurisdictional error if it:
 Mistakenly asserts/denies jurisdiction [precondition not
satisfied]; or
 Misunderstands the nature of its functions/powers (where
it correctly recognises that jurisdiction exist).
Errors of law made by inferior courts that are NOT ordinarily
jurisdictional errors:
 Mistake in identifying relevant issues, formulating
relevant questions and determining what is/isn’t relevant
evidence;
 Failure to take into account relevant considerations, or
taking into account of irrelevant considerations, in
determining a question within jurisdiction.
 If non-jurisdictional error  can’t get remedy.
PRIVATIVE CLAUSE
 Hickman principle: A privative clause can make a decision in
excess of power valid, if the decision:
 (1) is a bona fide attempt to exercise the power;
 (2) relates to the subject matter; and
 (3) is reasonably capable of reference to the power.
REMEDIES
 Prerogative writs: Certiorari (quash decision), Prohibition,
Mandamus (remit matter back to decide according to law).
 Equitable remedies: Declaration, Injunction.
 ADJR flexible remedies (s 16(1)):
 (a) quash; (b) referring matter to original decision-maker
with appropriate directions; (c) declare parties’ rights; (d)
direct parties to do (or refrain from doing) anything.
OBTAINING REASONS
 S 13 ADJR Act: Can obtain reasons for a decision, if:
 The Act applies to the decision (ie. decision of admin
character made under an Act); and
 The person is a person aggrieved.
CROWN IMMUNITY FROM STATUTES
 The Crown is presumed not to be bound by statutes of general
application.
 Bropho v WA: Can infer Parliament’s intention that the
Crown be bound, from the content & nature of the
legislation.
 S 20 Acts Interpretation Act (SA): An Act passed after June
1990 will, unless the contrary intention appears
(expressly/impliedly), bind the Crown, but not as to impose
any criminal liability on it.
 BHP v Bradken: If the Crown is not bound by a statute, any
person having a contractual relationship with the Crown is
also immune (if otherwise the Crown’s interests would be
prejudiced).
 Remedies: Hard to get prerogative writ against the Crown 
seek equitable remedies instead.