ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 No. 59, 1977
ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 No. 59 of 1977 - SECT. 1. Short title.
ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 No. 59 of 1977 An Act relating to the Review on Questions of Law of certain Administrative Decisions. BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:- 1. This Act may be cited as the Administrative Decisions (Judicial Review) Act 1977.*1* ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 No. 59 of 1977 - SECT. 2. Commencement.
2. This Act shall come into operation on a date to be fixed by Proclamation. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 No. 59 of 1977 - SECT. 3. Interpretation.
3. (1) In this Act, unless the contrary intention appears- ''Court'' means the Federal Court of Australia; ''decision to which this Act applies'' means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General; ''duty'' includes a duty imposed on a person in his capacity as a servant of the Crown; ''enactment'' means- (a) an Act other than the Commonwealth Places (Application of Laws) Act 1970; (b) an Ordinance of a Territory; or (c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance, and includes a part of an enactment; ''failure'', in relation to the making of a decision, includes a refusal to make the decision; ''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 Federal Court of Australia Act 1976; ''the Court or a Judge'' has the same meaning as in the Federal Court of Australia Act 1976. (2) In this Act, a reference to the 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 licence, 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, and a reference to a failure to make a decision shall be construed accordingly. (3) Where 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 enactment, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the
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making of a decision. (4) In this Act- (a) a reference to a person aggrieved by a decision includes a reference- (i) to a person whose interests are adversely affected by the decision; or (ii) in the case of a decision by way of the making of a report or recommendation-to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation; and (b) a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure. (5) A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation. (6) A document or a statement that is required by this Act to be furnished to a person or a notice that is required by this Act to be given to a person may be posted to the person by a pre-paid letter- (a) where the person has furnished an address at which documents may be served-to that address; or (b) where no such address has been furnished- (i) in the case of a person not being a company-to the address of his place of residence or business last known to the person posting the document, statement or notice; or (ii) in the case of a company-to the address of the registered office of the company, and, if a document, statement or notice is so posted, then, for the purposes of this Act, the document or statement shall be deemed to be furnished, or the notice shall be deemed to be given, as the case may be, at the time when the document, statement or notice is so posted. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 No. 59 of 1977 - SECT. 4. Act to operate notwithstanding anything in existing laws.
4. This Act has effect notwithstanding anything contained in any enactment in force at the commencement of this Act. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 No. 59 of 1977 - SECT. 5. Applications for review of decisions.
5. (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:- (a) that a breach of the rules of natural justice occurred in connexion with the making of the decision; (b) that procedures that were required by law to be observed in connexion with the making of the decision were not observed; (c) that the person who purported to make the decision did not have jurisdiction to make the decision; (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made; (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; (f) that the decision involved an error of law, whether or not the error appears on the record of the decision; (g) that the decision was induced or affected by fraud; (h) that there was no evidence or other material to justify the making of the decision; (j) that the decision was otherwise contrary to law. (2) The reference in paragraph (1) (e) to an improper exercise of a power shall be construed as including a reference to-
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(a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power; (c) an exercise of a power for a purpose other than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad faith; (e) an exercise of a personal discretionary power at the direction or behest of another person; (f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; (h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and (j) any other exercise of a power in a way that constitutes abuse of the power. (3) The ground specified in paragraph (1) (h) shall not be taken to be made out unless- (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he was entitled to take notice) from which he could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 No. 59 of 1977 - SECT. 6. Applications for review of conduct related to making of decisions.
6. (1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on any one or more of the following grounds:- (a) that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connexion with the conduct; (b) that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed; (c) that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision; (d) that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision; (e) that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made; (f) that an error of law has been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision; (g) that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct; (h) that there is no evidence or other material to justify the making of the proposed decision; (j) that the making of the proposed decision would be otherwise contrary to law. (2) The reference in paragraph (1) (e) to an improper exercise of a power shall be construed as including a reference to- (a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power;
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(c) an exercise of a power for a purpose other than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad faith; (e) an exercise of a personal discretionary power at the direction or behest of another person; (f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; (h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and (j) any other exercise of a power in a way that constitutes abuse of the power. (3) The ground specified in paragraph (1) (h) shall not be taken to be made out unless- (a) the person who proposes to make the decision is required by law to reach that decision only if a particular matter is established, and there is no evidence or other material (including facts of which he is entitled to take notice) from which he can reasonably be satisfied that the matter is established; or (b) the person proposes to make the decision on the basis of the existence of a particular fact, and that fact does not exist. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 No. 59 of 1977 - SECT. 7. Applications in respect of failures to make decisions.
7. (1) Where- (a) a person has a duty to make a decision to which this Act applies; (b) there is no enactment that prescribes a period within which the person is required to make that decision; and (c) the person has failed to make that decision, a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision. (2) Where- (a) a person has a duty to make a decision to which this Act applies; (b) an enactment prescribes a period within which the person is required to make that decision; and (c) the person failed to make that decision before the expiration of that period, a person who is aggrieved by the failure of the first-mentioned person to make the decision within that period may apply to the Court for an order of review in respect of the failure to make the decision within that period on the ground that the first-mentioned person has a duty to make the decision notwithstanding the expiration of that period. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 No. 59 of 1977 - SECT. 8. Jurisdiction of Federal Court of Australia.
8. The Court has jurisdiction to hear and determine applications made to the Court under this Act. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 No. 59 of 1977 - SECT. 9. Limitation of jurisdiction of State courts.
9. (1) Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review- (a) a decision to which this Act applies; (b) conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this Act applies; (c) a failure to make a decision to which this Act applies; or (d) any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth, including a decision, order or conduct given, made or engaged in, as the case may be, in the exercise of judicial power. (2) In this section-
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''officer of the Commonwealth'' has the same meaning as in paragraph 75 (v) of the Constitution; ''review'' means review by way of- (a) the grant of an injunction; (b) the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or (c) the making of a declaratory order. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 No. 59 of 1977 - SECT. 10. Rights conferred by this Act to be additional to other rights.
10. (1) The rights conferred by sections 5, 6 and 7 on a person to make an application to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision- (a) are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and (b) shall be disregarded for the purposes of the application of sub-section 6 (3) of the Ombudsman Act 1976. (2) Notwithstanding sub-section (1)- (a) the Court, or any other court, may, in a proceeding instituted otherwise than under this Act, in its discretion, refuse to grant an application for a review of a decision, conduct engaged in for the purpose of making a decision, or a failure to make a decision, for the reason that an application has been made to the Court under section 5, 6 or 7 in respect of that decision, conduct or failure; and (b) the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason- (i) that the applicant has sought a review by the Court, or by another court, of that decision, conduct or failure otherwise than under this Act; or (ii) that adequate provision is made by an enactment other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure. (3) In this section, ''review'' includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 No. 59 of 1977 - SECT. 11. Manner of making applications.
11. (1) An application to the Court for an order of review- (a) shall be made in such manner as is prescribed by Rules of Court; (b) shall set out the grounds of the application; and (c) shall be lodged with a Registry of the Court and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the Court (whether before or after the expiration of the prescribed period) allows. (2) Any other application to the Court under this Act shall be made as prescribed by Rules of Court. (3) The prescribed period for the purposes of paragraph (1) (c) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after- (a) if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision-the day on which a document setting out the terms of the decision is furnished to the applicant; or
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(b) in a case to which paragraph (a) does not apply- (i) if a statement in writing setting out those findings, referring to that evidence or other material and giving those reasons is furnished to the applicant otherwise than in pursuance of a request under sub-section 13 (1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is furnished to the applicant-the day on which the statement is so furnished;