1. What decision/action/subordinate legislation do you wish to challenge?

2. Statutory interpretation a. Guiding principle/literal approach: ordinary/natural meaning b. Purposive: “interpretation that would best achieve the purpose or object of the Act” (s 15AA AIA) i. Extrinsic materials

3. More information? c. Seek reasons ii. ADJR s 13, 13A; AATA s 28; Migration Act s 430; AIA s 25D; L&B Linings d. FOI Application

4. Is internal review by an agency available/suitable?

5. Do you require tribunal review? e. Need: iii. Independent statutory right to obtain review (no common law right to MR) – AAT Act ss 25, 29 iv. Standing 1. Interests affected by the decision (AAT Act s 27(1)) or if applicant organisation/association, decision ‘relates to a matter included in the objects or purposes of the organisation or association’ (AAT Act s 27(2), (3)) v. Basis to argue for a different outcome on the facts f. Can only be challenged on error of law (JR) g. Broad, flexible powers vi. Not bound by rules of evidence – s 33(1) vii. Reviews decision in accordance with facts and circumstances at date of review 2. Reviews decision afresh as if original DM (de novo) viii. No side bears onus of proof (McDonald) ix. Balance of probabilities standard of proof applies (Epeabaka) x. Can seek out material/arguments for itself (s 38; Re Greenham) h. Orders (s 43(1)) xi. Affirm decision xii. Vary decision xiii. Set aside and either substitute or remit for reconsideration along with recommendations

6. If other avenues unavailable/unsuccessful/seeking review of legality of primary decision: judicial review i. ADJRA j. Constitutionally protected right to JR k. Specific statutory schemes, e.g. Migration Act l. Jurisdiction: xiv. Cth decision maker: FCC (ADJRA), FC (ADJRA or Judiciary Act), HCA (Constitution s 75(iii), (v))

Consider justiciability: 3. Rights sufficiently affected; (CCSU; Peko-Wallsend) 4. Nature/subject matter in dispute; (CCSU; Peko-Wallsend) 5. Identity of DM; (CCSU; Peko-Wallsend) 6. Existence of privative clause; 7. CL jurisdiction of HCA/FC: Does a ‘matter’ exist? (Re McBain; s 76(i))
Consider justiciability: 8. Rights sufficiently affected; (CCSU; Peko-Wallsend) 9. Nature/subject matter in dispute; (CCSU; Peko-Wallsend) 10. Identity of DM; (CCSU; Peko-Wallsend) 11. Existence of privative clause; 12. CL jurisdiction of HCA/FC: Does a ‘matter’ exist? (Re McBain; s 76(i))

7. Consider context of remedy sought. Eligibility requirements to see review m. ADJR JR: xv. Jurisdiction of court 13. FCA and FCC both have jurisdiction to hear ADJR Matters (s 8) 14. Applicant can only seek review of a. A decision (final or operative – Bond) ‘of administrative character (not legislative or judicial – Aerolineas Argentineas) made ... under an enactment (decision must be made in the purported exercise of statutory power, distinct from prerogative/executive – Tang)’ (ss 3, 5) b. Conduct (acts preparatory to a decision – Bond) for the purpose of making such a decision (s 6) c. Failure to make a decision to which the act applies 15. Is there a ‘matter’ within the meaning of the Constitution (Re McBain) xvi. Justiciability 16. Cth: Is there a ‘matter’? Controversy over an immediate right/duty/liability; Constitution s 76(i); McBain 17. Is the dispute polycentric? 18. Is there a privative clause? xvii. Standing 19. Applicant must be ‘aggrieved’ by reviewable decision or conduct (ss 5, 6); ‘interests are adversely affected’ by decision/conduct (s 3(4)) xviii. A ground for review (ss 5, 6 – largely codify CL) xix. Requirement for a grant of a remedy 20. Court cannot exercise discretion granted to an administrative DM (Conyngham) 21. ADJR remedies and CL remedies achieve similar outcomes (Button) 22. Remedies outlined in s 16

n. Constitutionally protected JR xx. Applicant can seek JR of Cth agencies under Constitution, Judiciary Act, CL xxi. Is there a ‘matter’? 23. Controversy over an immediate right/duty/liability; Constitution s 76(i); McBain xxii. Original jurisdiction of HCA: where Cth is a party (s 76(iii) or a writ of mandamus/prohibition is sought against Cth officer (s 75(v) – once enlivened, extends to certiorari and declarations – Aala) xxiii. Only error of law can be resolved (error of fact – MR, except where error of fact is JF [Timbarra]) xxiv. Distinguish between JE and non-JE (Aala), does not apply under ADJR (Jadwan) 24. JE: Where administrative DM/inferior court commits JE, decision is nullity and JR always available (Craig) xxv. Jurisdiction 25. HCA, Constitution s 75(iii), (v) 26. FCA, Judiciary Act ss 39B, 44 xxvi. Justiciability: standing; matter is not statute-barred (Bodruddaza); determination of legal rights and interests (McBain); not purely hypothetical or academic (McBain); not solely political or polycentric (Peko-Wallsend); resolution will not adversely affect intl relations (Fraser) xxvii. Standing (ACF: private right, not merely attempting to ‘prevent a public wrong’, goes beyond ‘mere intellectual or emotional concern’, financial not only basis, spiritual ok – Alcoa) 27. Declaration/injunction – ‘special interest’ (ACF) 28. Mandamus – sufficient interest or specific legal right in enforcing a public duty owed to applicant (Blackburn) 29. Certiorari, prohibition – ‘stranger’ ok, court has discretion if applicant has no special interest (McBain) 30. Habeus corpus – anyone in community (R v Waters)

8. What is the ground of review? o. Excess of power (substantive/procedural ultra vires) or abuse of power (procedural/reasoning/decision grounds) p. Error of fact (ordinarily not reviewable, except) xxviii. JF xxix. No evidence q. Error of law xxx. Non JE – not reviewable unless on the face of the record ((a) doc initiating proceedings, (b) pleadings, (c) adjudication (Shaw), not reasons unless incorporated into decision by DM (Craig)) xxxi. JE – JR always available, ADJR s (5)(1)(c) r. Specific grounds xxxii. Breach of natural justice/procedural fairness – ADJR ss5(1)(a), 6(1)(a). If hearing rule or bias rule breached: If either breached = error of law/JE (Plaintiff S157) 31. Hearing rule. Applicant must show: d. HR applies to DM process e. Hearing required in circumstances. ‘credible, relevant and significant’ allegation against applicant’s interests (Kioa v West) f. Fair hearing: prior notice, disclosure of outline/summary of info on which decision is based, opportunity to comment/respond (Aala) 32. Bias rule. Applicant must show: g. BR applies to DM process h. ‘Actual’ (Subjective – DM’s mind so closed to persuasion that argument against that view is ineffectual: Jia) or ‘apprehended’ bias (Objective – fair-minded observer might reasonably apprehend the DM might not bring an impartial mind to matter: Ebner) xxxiii. Breach of statutory requirement - ADJR ss 5(1)(d), ‘was it a purpose of the legislation that an act done in breach of the provision should be invalid?’ (Project Blue Sky) xxxiv. Fettering discretion through government policy – ADJR ss 5(2)(f), 6(2)(f) 33. A government policy must not restrict a statutory discretion so as to prevent DM from applying criteria under legislation (Green v Daniels); government policy should not be applied inflexibly without regard to merits xxxv. Dictation/discretion – ADJR ss 5(2)(e), 6(2)(e) 34. A DM entrusted with a discretion must exercise that discretion independently, rather than submit to instructions/views/policy of another person/body (Rendell) xxxvi. Unauthorised/improper purpose – ADJR ss 5(2)(c), 6(2)(d) 35. A DM can only exercise power for the purpose for which it was conferred (R v Toohey) 36. (i) Discern purpose for which a power may be exercised, (ii) discern DM’s actual purpose in exercising relevant power xxxvii. Irrelevant considerations - ADJR ss 5(2)(a), 6(2)(a) 37. Decision may be invalid if it took into account an irrelevant consideration (Trabilco) 38. ‘Irrelevant consideration’: DM not permitted to consider under their power xxxviii. Failure to take into account relevant considerations – ADJR ss 5(2)(b), 6(2)(b) 39. Decision may be invalid if DM failed to consider relevant matter in reaching decision (Peko-Wallsend) 40. ‘Relevant consideration’: DM required to consider under power expressly required by statute or implied by court xxxix. ‘Wednesbury’ unreasonableness – ADJR ss 5(2)(g), 6(2)(g) 41. Decision will be invalid if it was so unreasonable no reasonable DM would have come to the conclusion (Wednesbury) 42. Objective test, court cannot substitute own subjective view on whether DM acted reasonably (Applicant S20) xl. No evidence – ADJR ss 5(1)(h), 5(4), 6(1)(h), 6(3) 43. CL: severe lack/absence of evidence to satisfy essential statutory element of DM process = error of law. Not error of law if evidence is merely inadequate (Melbourne Stevedoring). Where statutory criteria is ‘state of satisfaction’, may be reviewable for illogicality/irrationality (SZDMS) 44. ADJR: satisfied if DM was required by law to reach that decision only if a particular matter was established; DM based decision on fact which did not exist

9. Limits on Judicial Review s. Privative clause xli. Statutory provision that purports to limit or preclude JR in respect of a particular category of administrative DM xlii. Controversial, typically narrowly interpreted by courts to preserve, as much as possible, right to obtain JR protected by s 75 Constitution and CL xliii. Hickman principle – privative clause cannot prevent JR if decision: 45. on its face exceeds authority conferred by legislation on DM 46. involves bad faith of DM 47. does not relate to subject matter of legislation DM relies on for their power xliv. Legislation as a whole must be intended to inhibit JR (Plaintiff S157) t. Time limitation clauses xlv. Statutory provision purporting to limit period JR can be sought xlvi. Do not necessarily infringe s 75 if they regulate access, but if so restrictive it effectively prohibits JR = unconstitutional (Bodruddaza)

10. Remedies u. ADJR: s 16 v. Constitutional/prerogative (s 75(v))

Constitutional/prerogative: s 75(v) | Remedy | Jurisdiction | Standing | Effect | Common grounds | Reach | Certiorari | Prerogative; constitutional | ‘person aggrieved’ | Quash a decision | JE; breach of NJ; error on the face of the record – includes (a) doc initiating proceedings, (b) pleadings, (c) adjudication (Shaw), not reasons unless incorporated into decision by DM (Craig) | Authority has power to determine questions affecting rights, interests, legitimate expectations; duty to act judicially | Prohibition | | | Restrain a body from exceeding its powers or usurping jurisdiction it does not have | Only available for JE (Aala)Want or excess of jurisdiction; breach of NJ; fraud | | Mandamus | | ‘person affected’ | Command fulfillment of an unperformed public duty (Bott) | Often sought in conjunction with certiorariOnly available for JE (Aala) | Applies to a person/body required to perform a public duty; exercising discretion conferred by statute | Injunction | Equity | Private right infringed; special damages; standing to receive equitable relief; legal controversy required | Order/decree requiring party to do a particular thing (mandatory injunction) or refrain (prohibitory injunction)Coercive | Utra vires; JE; denial of PFCan be granted for error of law but applicant must show (1) serious question to be tried/prima facie case, (2) applicant will suffer irreparable injury if refused, (3) balance of convenience favours injunction | Not usually against an administrator Court has discretion not to grant if suitable ulterior remedy Interlocutory (ex parte) or perpetual | Declaration | | | Conclusive statement by court on point of law, pre-existing rights of parties; not coercive Equitable, can be ancillary | When legal right is to be vindicated but justice not obtainable | Available against crown and domestic bodiesCourt has broad discretion not to grant (Dyson) | Habeas corpus | | ‘anybody in the community’ (R v Waters) | Requires government to reveal legal basis for detention | Detainee must show respondent is responsible for detention, detention is unlawful, detainee has legal right to release (Vadarlis) | |