Australian Administrative Law - Judicial Review

Judicial Review

The grounds for challenging administrative action were developed at common law and have been codified in the Administrative Decisions (Judicial Review) Act 1977.

One of the most important features of common law systems is that judicial review is conducted by the "ordinary courts of the land" and there are no special administrative or constitutional courts. This principle, prized by A. V. Dicey, is that there must be "equality before the law". Superior courts of general jurisdiction are traditionally regarded as having inherent jurisdiction to review administrative actions.

Section 75 of the Constitution of Australia provides that the High Court shall have original jurisdiction in matters "in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party", and "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth." Section 75 prevents the federal government from removing the jurisdiction of the High Court without amending the Constitution via a referendum. It also substantially prevents the High Court's original jurisdiction being ousted by a privative clause that purports to prevent any judicial review of an administrative action. Over recent years, a number of High Court decisions have taken a more expansive view of section 75.