Judicial review is the review of decisions of governmental decision-makers by the courts. Australian law assumes that when a statute gives a person the power to make a decision, that power is to be exercised reasonably and for the purpose for which it was given. If the decision-maker acts improperly or the decision itself does not meet the formal requirements of the law under which it is made, the decision may be challenged.

In Environmental Law in Australia (6th ed., 2006) Bates summarizes the requirements imposed on decision-makers by the common law:

Broadly speaking, the courts have determined that the standard expected of an administrative decision is that, before the decision is made, the persons empowered to make that decision must have taken into account all relevant information, including that demanded by the legislation. They must have excluded all irrelevant matters, and reached a conclusion that, on the weight of the evidence, is reasonable in the circumstances.

It is important to note that judicial review is only concerned with the process by which the decision was made, and not its factual correctness. If a decision-maker has followed the correct process, a court will not overrule a decision simply because another decision could have been made. In Minister for Aboriginal Affairs v Peko-Wallsend, Justice Mason said:

It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

Three important limits exist on the use of judicial review:

1. The decision challenged must be made by a public body;
2. The decision challenged must be administrative; and
3. The decision challenged must be made under a statute.

Judicial review is not available for decisions made by private entities. For example, if a company decides to build on land, then it must comply with all relevant legislation. The decision to build, however, cannot be challenged through judicial review.

Courts engaging in judicial review have drawn a distinction between administrative and political decisions. Where a decision is essentially political, judicial review will not be available. For example, if the Australian government decided to enter into a treaty, that decision would be political and so could not be reviewed.

Judicial review in Australia is generally only available for decisions made under a piece of legislation. Legislation is not the only basis for government power in Australia. For example, in the Tampa case, Ruddock v Vardalis, the Commonwealth claimed to be able to seize the MV Tampa on the basis of a prerogative power. The exercise of these powers is not subject to judicial review.

The Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”) provides for the judicial review of Commonwealth decisions. This can include decisions made by the Minister or departmental officers under the Environment Protection and Biodiversity Conservation Act 1999.

Section 5 of the ADJR Act sets out available grounds for review.

[http://www.austlii.edu.au/au/legis/cth/consol_act/adra1977396/s13.html\Section 13 gives any person who has a right to seek judicial review of a decision the right to request reasons for the decision.

A request for reasons is made by a “notice in writing” (eg a letter). The decision maker is required to “furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision” within 28 days.

Section 11 sets out the manner in which an application for judicial review is made and the applicable time limits.

An application for judicial review under the ADJR Act must be made within 28 days of the date of the decision or, if reasons have been requested, within 28 days of those reasons being provided.

An application for judicial review under the ADJR Act is made to the Federal Court.