What is judicially reviewable under the ADJR? Is the relevant Act Cth Legislation? Remedy s Order of review Discretionary — all of the writs are available. Can set aside decision, direct decision maker to reconsider, direct the parties to do or stop doing an act.
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Introduction  The ADJR Act is a source of defining the scope of action to be included or excluded in judicial review and the jurisdiction of any court vested with the function of reviewing that executive action. The legislation is interpreted against a backdrop of other public policy law considerations concerning the legitimate scope of judicial review.
These terms are elaborated upon in s 3 : 3. Issue: Restrictive interpretation. Held: The High Court held that the actions were not reviewable as decisions or conduct. The secretary wrote back that he would not use his statutory power to stop the trial. Issue: What constitutes a decision? The approach has been to define the term in the context of the legislative, executive and judicial dichotomy.
If the action is not legislative or judicial it can be classed as administrative by deduction. The categories frequently overlap and characterisation of any action takes colour from the context in which it is exercised.
Federal Airports Corporation v Aerolineas Argentinas  Facts: The FAC made a determination under a statute to impose a landing charge for large aircraft landing at major city airports.
Issue: Administrative versus legislative distinction. Particular versus general. Roche challenged a decision to classify the drug it manufactured as one requiring a prescription. The court held that the decision was legislative in character and not reviewable. Issue: Legislative versus administrative. Held: Matters which can be regarded as relevant to the distinction include: - Whether the decisions determined rules of general application or whether there was an application of rules to particular cases - Whether there was Parliamentary control of the decision - Whether there was public notification of the making of the regulation - Whether there has been public consultation and the extent of any such consultation - Whether there were broad policy considerations imposed - Whether the regulation could be varied - Whether the power was of executive variation or control - Whether provision exists for merits review The decision was also one which determined the future lawfulness of conduct.
ADJR Act cases holding that a determination was legislative rather than administrative in character have commonly emphasised the general nature of the determination. Other cases have warned that the generality or particularity of a decision is by itself an unsafe guide as to whether it is legislative or administrative.
It includes subordinate legislation. To qualify as an instrument, the document must be of such a kind that it has the capacity to affect legal rights and obligations. It requires a link between the decision to be reviewed and a power conferred by an enactment to make that decision. Griffith University v Tang  Facts: A postgraduate student challenged the decision of a committee at her university, to exclude her from PhD candidacy on grounds of academic misconduct.
The High Court held that the action should be dismissed on the basis that the decision was not under an enactment the Griffith University Act. Issue: Under an enactment. Held: The University Council is empowered to make university statutes under the Act but there were no such statutes relevant to the appeal. It had established an Academic Committee which had made policies and these had been applied by a sub-committee.
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Federal Register of Legislation - Australian Government
Administrative Decisions (Judicial Review) Act 1977
ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977
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