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5 Administrative Decisions (Judicial Review) Act 1977
The Administrative Decisions (Judicial Review) Act 1977 [AD(JR)] came into operation on 1 October 1980 and affects every officer of DSH with decision-making responsibilities.
The primary purpose of the AD(JR) Act is to establish a single, simple form of procedures in the Federal Court for judicial review of Commonwealth administrative actions. It is an alternative to the cumbersome, highly technical and expensive procedures for judicial review by way of prerogative writs or equitable actions for declaration or injunction.
Judicial review under the AD(JR) Act is not concerned with the merits of the decision or action under review; this is the jurisdiction of the Administrative Appeals Tribunal. The only question for determination by the Federal Court is whether the decision, action or omission (failure to act) was lawful, ie. that it was within the power conferred on the administrator, that prescribed procedures have been followed, and that the general rules of law, such as conformity to the principles of natural justice, have been observed.
The Court cannot substitute its own decision but it can quash a decision it finds unlawful and direct that action be taken in accordance with the law. It is able, also, to compel action by a person or body which has not acted but is under a duty to do so. A practical effect, of course, is that the Court's decision in a particular case could be such as to clearly point the way an administrative decision should go.
Subject to certain exceptions, all decisions of an administrative nature made by Ministers, bodies or officials under powers conferred on them by Commonwealth legislation are open to challenge by aggrieved persons. Certain classes of decisions are exempt and these are set out in Schedule 1 to the AD(JR) Act or prescribed in the regulations made under the Act. DSH has not applied for any special exemptions. The Act also covers conduct leading up to the making of a decision.
The term "aggrieved person" includes any person whose interests are adversely affected by the decision, a failure to decide, or the action in question. The right of an aggrieved person to make application to the Court in respect of an administrative decision is in addition to, and not in derogation of, any other right he might have to seek a review. However, he must exhaust these other rights before taking advantage of the means of redress provided under the AD(JR) Act.
While the provisions relating to access to the Court for review can be seen as paralleling existing common law rights, the Act also introduces a completely new principle, ie. the right of a person adversely affected by an administrative decision, to obtain from the decision maker written reasons for the decision.
The decision maker, when supplying the reasons, must specify particulars of his/her findings on material questions of fact and make reference to the evidence or other material on which those findings were based. The request from the aggrieved party must be made in writing within 28 days of the receipt of the decision and the decision maker has 28 days in which to respond.
The major implications of the Act for DSH operations are those arising from the right of aggrieved persons to demand from the decision maker written reasons for decisions. As access to reasons for decisions is fundamental to the whole scheme of administrative review, the Court views the obligation to state reasons as a serious one. It is emphasised that every decision, no matter how trivial, which affects a person, could be questioned by an aggrieved person.
In the context of the AD(JR) Act, the question is whether the reasons for decision communicated to the client will reach the standards required by the Court. In particular, the decision maker is required to include all findings on material questions of fact in the statement of reasons. The aim of a decision maker should always be to provide as full and as comprehensive a statement as he/she can in all the circumstances. (See Statement of Reasons - Chapter 9)