Assessment Task Essay 2

Question:

“Administrative law doctrine is an accumulation - a wilderness almost - of single instances, most cases turning ultimately on fine and often unique points of statutory interpretation or factual analysis.” McMillan – ‘The Role of Judicial Review in Australian Administrative Law’ AIAL Forum No.30, 47.

The above quote suggests that judicial review in Australia is not based on any general principles which are capable of guiding judicial decision making or of being used to impose a coherent vision of the role of judicial review on the cases. Do you agree? Analyse the law relating to standing and access to the courts plus one of the following areas of law in order to demonstrate the extent to which the above quote …show more content…
Tang legal advisors commenced judicial review under the Supreme Court of Queensland and then the Queensland Court of Appeal where both courts agreed that judicial review should be given to Tang in regards to the decision made by the university . The matter was then brought to the High Court of Australia where the decision of 4 to 1 majority denied Tang judicial review . I strongly agree with Justice Kirby that the decision in the High Court of Australia made by the majority “constitutes an erosion of one of the most important Australian legal reforms of the last century” . Justice Kirby also states that “greatest defect in the majority is that it destroys the capacity of the Review Act to render the exercise of public power accountable to the law where a breach can be shown” . The purpose of the ADJR Act is to review decisions and standing should be given if the person is aggrieved however in these circumstances it is not given to Tang as such it is inconsistent. It was held that the review act did not allow Tang to seek for judicial review because the decision which was made did not fall under the University Act . The majority in the High Court of Australia came up with their own two criteria which could prove whether a decision made is under an enactment . Firstly it has to be “expressly or impliedly required or authorised by the …show more content…
Mandamus can only “command that the public duty or exercise of discretion be performed according to law” . In order to have standing it is accessible for a person to seek mandamus if the person can participate in the hearing by exercising legal right . Secondly standing is also accessible if the duty is achieved through benefit or an interest . In the case of Plaintiff M61/2010E v Commonwealth it was held that if a decision maker has no duty to act upon the power and performed it in an erroneously manner mandamus will not be