Justiciability: Who has got jurisdiction and what kinds of issues will the courts entertain. E.g. courts will not review matters of national security  it is not justiciable – not a matter for judges to be involve with

-   Only the superior courts, who are supervising decisions of administration by ordinary decision-makers, tribunals and lower courts, have jurisdiction to hear matters of judicial review.
-   Look at the jurisdiction the piece of legislation relates to: Cth legislation will be dealt with by the Cth courts and NSW legislation by NSW courts

Processes
-   In NSW: Decision-maker  NSWSC  Court of Appeal  HCA (no ADJR Act in NSW, all review based on common law)

-   Decision-maker (Cth) - Fed Ct (single judge) (ADJR ACT or Judiciary Act s39B) - Full Fed Ct (3 judges)  HCA
OR
-    Decision-maker (Cth) - HCA (Constitution)
-    you miss out a lot of steps, saving time and money
-    Problem is the HCA has a slower role. HCA exercising its appellate jurisdiction and ordinary jurisdiction. It is a longer, more costly process
-    Someone would go straight to the HCA if there is a privitive clause in place  restricting the courts ability to review.
-    A priv clause is more likely to reduce the powers of the Fed Ct which is a creature of statute. Parliament has sovereignty over Fed Ct. Parliament can amend legislation and limit the powers of the Fed Ct and its jurisdiction
-    The HCA has constitutional powers. Parl cant amend the constitution and cant affect the powers of the HCA under s75(v).
-    Kirby says it is ridiculous that many cases coming to the HCA in its orig jurisdiction because of privative clauses

Two remedial provisions of the ADJR Act that make it advantageous for applicants:
1.    Broad standing provisions
2.    Right to statement of reasons

-   If you can’t bring claim under ADJR Act can bring it under Judiciary Act. Federal court has jurisdiction under both Acts. You can bring application under both Acts in the alternative. If ADJR avenue is knocked back you can bring claim under s39B Judiciary Act.

1.    Judicial Review: Jurisdiction of the Courts
1.1    HIGH COURT: “CONSTITUTIONAL WRITS”

•    Commonwealth Constitution 1900 s75(iii) & (v) – original jurisdiction of HC
•    Judiciary Act 1903 (Cth) s44

Re Refugee Tribunal; Ex parte Aala
•    Original jurisdiction of HC was invoked because a privative clause in Migration Act (s476) effectively ousted the jurisdiction of the Federal Court
•    See Abebe, where the constitutionality of limiting the Federal Court’s jurisdiction was upheld – Federal Court has statutory jurisdiction
•    HC had to decide what kind of remedies it could grant. There is a group of common law remedies called prerogative remedies that the HC could give if there was unlawfulness.
•    HC said that in its original jurisdiction it will only grant constitutional remedies not common law remedies.
•    HC said we will no longer refer to remedies given to affected individuals as prerogative remedies, because these belong to the common law. Our remedies will be called “constitutional writs”.
•    Read Kirby J  We are doing something different from the common law. We are giving constitutional remedies.
•    Note: HC uses same terminology as common law remedies but they are in fact constitutional remedies.

1.2    FEDERAL COURT – Justiciability under the ADJR Act

The Federal Ct of Australia has two sources of judicial review jurisdiction
(a)    ADJR Act 1977 (Cth)
(b)    Judiciary Act 1903 (Cth) ss39B, 44

1.2.1    ADJR Act: Decisions Subject to Review

s 3(1) ADJR Act:
•    “Decision of an administrative character made under an enactment, other than a decision made by the GG or decisions in Schedule 1”:
•    Decision: ABT v Bond deals with what a decision is
•    Under an enactment: to use ADJR Act must have been a statutory power.
(1) In this Act, unless the contrary intention appears "decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not) under an enactment, other than a decision specified in Schedule 1.
Definitions:
 "Duty" includes a duty imposed on a person in his or her capacity as a public employee; "enactment" means-
(a)    an Act, or a subordinate law (including part of an Act or of such a law);
(b)    sections 50, 51, 53 and 56 of the Australian Capital Territory (Self-Government) Act 1988 of the Commonwealth;
(c)     Division 5 of Part X of the Australian Capital Territory (Planning and Land Management) Act 1988 of the Commonwealth; or
(d)    the Canberra Water Supply (Googong Dam) Act 1974 of the Commonwealth;
"failure", in relation to the making of a decision, includes a refusal to make the decision; "Judge" means a Judge of the Supreme Court; "order of review", in relation to a decision, in relation to conduct engaged in for the purpose of making a decision or in relation to a failure to make a decision, means an order on an application made under section 5, 6 or 7 in respect of the decision, conduct or failure; "Rules of Court" means Rules of Court made under the Supreme Court Act 1933.

SCHEDULE 1 Section 3 DECISIONS TO WHICH THIS ACT DOES NOT APPLY

This Act does not apply to-
(a)    decisions making, or forming part of the process of making, or leading up to the making of, assessments;
(b)     decisions disallowing wholly or partly objections to assessments; or
decisions
refusing to amend, wholly or partly, assessments; made under any of the following enactments: Taxation (Administration) Act 1987;Tobacco Licensing Act 1984; Financial Institutions Duty Act 1987; Payroll Tax Act 1987; Stamp Duties and Taxes Act 1987. This Act does not apply to decisions made under the following enactments: Inquiries Act 1991;Royal Commissions Act 1991. This Act does not apply to decisions made under Part IV of the Electoral Act 1992. This Act does not apply to (a) a decision of the Executive under subsection 5 (1) or 16 (3) or section 18 of the Judicial Commissions Act 1994. (b) A decision of a member of the Legislative Assembly to propose a motion in accordance with paragraph 14 (3) (a) of that Act or to give notice of the motion to the Attorney-General in accordance with paragraph 14 (3) (b) of that Act. (c) A decision of the Attorney-General under subsection 16 (1), 17 (1) or 23 (3) of that Act. (d) A resolution for the examination of a complaint in respect of a judicial officer by a Judicial Commission passed by the Legislative Assembly under that Act. Or (e) a decision of a Judicial Commission under that Act.

•    Express Exclusion: Decision made by the Gov General
•    GG exercises prerogative powers  powers which the head of state exercises generally as a matter of constitutional convention
•    Until Toohey case, generally accepted that all powers exerc by head of state were prerogative powers; also the head of state could not be brought before the courts.
•    Now courts don’t accept this
•    If you can’t satisfy all three elements you cannot rely on the ADJR Act. You can’t rely on the person aggrieved standing test and you can’t get statement of reasons. You would have to rely on the common law test which is narrower.

Migration Act 1958 (Cth) Part 8

1.2.2    What is a decision?

ADJR Act s 3(2)
In this Act, a reference to a making of a decision includes a reference to-
(a)    making, suspending, revoking or refusing to make an order, award or determination
(b)    giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission
(c)    issuing, suspending, revoking or refusing to issue a license, authority or other instrument
(d)    imposing a condition or restriction
(e)    making a declaration, demand or requirement
(f)    retaining or refusing to deliver up, an article; or
(g)    doing or refusing to do any other act or thing
- broad definition of a decision
- no absolute right to be reviewed
ADJR Act s3(3) where a provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this act, to be the making of a decision.

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321  

Facts: The ABT commenced an inquiry under the Broadcasting Act 1942 (Cth) into the participation of Mr Bond in certain transactions involving companies he controlled, which had commercial broadcasting licenses. Mr Bond and his companies commenced action under the ADJR Act in respect of 18 decisions, findings or rulings of which 11 were described as ‘decisions’ and 7 as conduct.

Issue: what is a decision for the purposes of the act? Does it include investigatory proceedings?

Held (per Mason CJ):

1.    A reviewable decision is one which statute requires or authorises. That will generally, but not always, entail a decision which is final or operative and determinative of the fact falling for consideration. A conclusion reached as ‘a step along the way’ leading to an ultimate decision will not ordinarily amount to a reviewable decision unless statute requires the making or a report or recommendation as an essential preliminary to the making of the ultimate decision.

2.    Another essential quality of a reviewable decision is that it is a determination ‘effectively resolving an actual substantive issue’ and not a procedural determination. It has the ‘character of finality’. It doesn’t include investigatory proceedings (just a step along the way)
-   BUT: if the statute requires the making of a report or recommendation before a decision made, it would fall under the definition of a decision
-   E.g. O’Shea where parole board under stat requirement to make a formal recommendation- reviewable
-   Note: Person can also bring proceedings bc of conduct in decision making process. E.g. lack of PF. If ABT was a step along the way- can we see it as conduct? What ABT was doing wasn’t procedural, was substantive- going through facts and evidence. This isn’t a procedural matter. Not acts done prior to making decision = conduct
-   ‘decision’- substantive/conduct- procedural

Therefore in this case, the Tribunal’s finding that the licensee’s were no longer fit and proper persons to hold their broadcasting licenses under the Act was a reviewable decision. Although it was an intermediate determination made on the way to deciding whether to revoke or suspend the licenses or to impose conditions on them, it was a decision on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision.

On the other hand, the Tribunal’s conclusion that Bond was not a fit and proper person was not a determination that the Act provided for and was no more than a step in the Tribunal’s reasoning on the way to finding that the licensees were not fit and proper.

Findings of Fact: Are findings of fact a reviewable decision?
•    They are generally seen as a step along the way to the ultimate determination
•    Merits/legality/policy
•    BUT findings of fact are reviewable for error of law/no evidence
•    S5(1)(f)  [error of law] not to be interpreted to mean ‘no probative evidence’
•    S5(1)(h) meaning ‘no probative evidence’ distinguishable
o    Particular matter established before exercising power v absence of evidence to support decision
o    Lesser burden and limited qualification to no evidence rule

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