Djoker’s Review: What exactly is judicial review and what are the consequences?

Djoker’s Review: What exactly is judicial review and what are the consequences?
Posted on 14 Jan 2022

So much has been said in the media this week about the outcome of Novak Djokovic’s application to the Federal Circuit Court for a judicial review of the decision to cancel his visa to enter Australia.  

The decision in question was made by a delegate of the Minister for Home Affairs, to cancel Djokovic’s “Temporary Activity (subclass 408)” visa on 6 January 2022 (the Decision).  

Djokovic challenged the Decision by filing a judicial review application in the Federal Circuit Court. 

On 10 January 2022, the Court ordered that the Decision be quashed, Djokovic be released from detention and reunited with his belongings. 

Unfortunately, most of what has been said in the media uses words such as “correct”, “incorrect”, “right” or “wrong” when describing the Court’s view of the Decision.   

This is unfortunate because, while the Court does have the power to invalidate the Decision (or “quash”, as it did), the Court does not have the power to say whether or not the Decision was made was either “right” or “wrong”.

 

What is Judicial Review

Judicial review of administrative action is concerned with the lawfulness of a Government decision, rather than the merits of it. 

Judicial review is a check and balance on the powers being exercised by the Government.  The Government can only exercise a power that has been granted to it by a law (via legislation or the Constitution), and it must only exercise a power in accordance with the law that confers it.  The Courts have the ability to scrutinise that exercise of power as a function of the Constitutional separation of powers in Australia.  

As a result of that Constitutional separation of powers in Australia between the Legislative (Parliament), Executive (Government), and the Judicial (the Courts) branches of governance, each branch must perform a different and independent function.  The Legislative enacts law, the Executive implements law, and the Judiciary interprets and applies law, and each branch is restricted from exercising the functions of another.  

The Courts are not allowed to exercise a Governmental power, and therefore cannot step in to “cure” an error of the Government by deciding (in this case) whether the visa should be cancelled or reinstated.  To the same end, if a Court was to comment on whether the decision was the “right” or “wrong” decision, it would be delving into the realm of exercising an executive power by effectively telling the Government what decision it ought to make.  In interpreting and applying the law, the Courts are limited to determining whether the Government has exercised its power strictly in accordance with the law that confers it.  It is not the role of the Courts to consider whether the decision maker acted fairly; so long as the decision maker acted lawfully, the outcome must stand. 

The purpose of judicial review is therefore to control unlawful government action and ensure that government is not acting outside of its powers, rather than considering whether the Government’s ultimate decision was the right one.  

How is Government action reviewed?

The grounds for judicial review are limited.  An applicant seeking judicial review of administrative action must demonstrate that the decision maker has made a jurisdictional error by exercising their power either:

  1. illegally, in that the decision maker has acted outside of the power granted to them by law (or ultra vires);
  2. irrationally, in that the decision arrived at was not reasonably open to the decision maker to be made on the evidence or material that was before them; or 
  3. procedurally improperly, in that the decision maker has not given the person affected by the decision the required procedural fairness throughout the decision-making process.  

 

There are numerous grounds of review under each of the above categories of error.  Some helpful examples include, but are not limited to:

  1. for illegality; where the decision maker has been influenced by considerations that they are prohibited from taking into account (irrelevant considerations) or has failed to take into account considerations that they are lawfully obliged to take into account (relevant considerations);
  2. for irrationality; that the decision that was ultimately arrived at was objectively unreasonable. This has previously been described by the High Court as a decision which is “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".  More recently, the Hight Court has clarified that this ground of review will succeed where it would “not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”; or
  3. for procedural impropriety; where there has been some actual or apparent bias of the decision-maker or the person affected by the decision has not been given a sufficient opportunity to be heard. 

For the Court in Djokovic’s application, the Minister for Home Affairs in fact conceded that the delegates decision suffered from a combination of unreasonableness and procedural unfairness.  The Court noted, as part of its orders on 10 January, that:

The respondent concedes that the delegate’s decision to proceed with the interview and make a decision to cancel the applicant’s visa pursuant to s 116 of the Migration Act 1958 (Cth) was unreasonable in circumstances where:

(1) at 5:20am on 6 January 2022 the applicant was told that he could have until 8.30am to provide comments in response to a notice of intention to consider cancellation under s 116 of the Migration Act 1958 (Cth);

(2) instead, the applicant’s comments were then sought at about 6:14am.

(3) the delegate’s decision to cancel the applicant’s visa was made at 7.42am;

(4) the applicant was thus denied until 8.30am to make comments;

(5) had the applicant been allowed until 8:30am, he could have consulted others and made further submissions to the delegate about why his visa should not be cancelled.

 

Outcomes for Judicial Review

If the Court finds that jurisdictional error has occurred, the usual result is that the decision be set aside and the Government re-exercise its executive power. 

Again, because the Court is not empowered to perform a function granted to the Government, if a Government function was exercised in error the Court can only make, in its Judicial function:

  1. quashing orders, to set aside the decision on the basis that it is unlawful and therefore invalid;
  2. prohibitory orders, restraining or preventing the decision maker from doing something – for example preventing them from taking into account an irrelevant consideration; and/or
  3. mandatory orders, requiring the decision maker to do something – for example, requiring them to take into account a relevant consideration.  Usually, a mandatory order of the Court will generally require the decision maker to “make its decision according to law’.  This broad requirement effectively remits the decision back to the original decision maker, so that they can make the decision in compliance with the law granting them the power to do so.  This does not mean that a different decision has to be made – the decision maker may well make the same decision again albeit while following the law.

Given the limited function of the Court to “fix” the decision, by making the decision that is the “correct” one, some may argue that there is little utility in seeking judicial review of a decision.  

In Djokovic’s case, the decision was unlawful and the outcome was to remit the matter back to the Honourable Alex Hawke MP, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to make the decision according to law. 

At the time of writing, Mr Hawke continues deliberating.  He may well make the exact same decision that was originally made, but now in a different manner so as to ensure that the decision made this time is a lawful one. 

However, the benefits and the utility of seeking judicial review of Government action (at any level) can be extensive, and the rights of persons affected by a Government decision vary considerably depending upon the setting in which the decision was made. 

If you have been affected by a Government decision (Cth, State or Local) and would like advice about your rights to judicial review and the utility of pursuing it, please contact us. 

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