LAWS50032 · Administrative Law
Jurisdiction and Judicial Review
The legal question: which court has jurisdiction to judicially review this decision? First ask whether the action is Commonwealth or State, and whether the power is statutory, prerogative or delegated legislation. The grounds of judicial review are the same in every Australian court; only the jurisdiction differs. At Commonwealth level the avenues are s 75(v) of the Constitution (HCA, for mandamus, prohibition or injunction against an officer of the Commonwealth — the entrenched minimum provision of judicial review that cannot be ousted), s 75(iii) (HCA where the Commonwealth is a party), s 39B of the Judiciary Act 1903 (Federal Court, same test as s 75(v) but not entrenched), and the ADJR Act (a 'decision of an administrative character made under an enactment' — Tang). In Victoria, the Supreme Court's supervisory jurisdiction rests on s 85 of the Constitution Act 1975, the Admin Law Act 1978 and Order 56, entrenched at State level by Kirk. The remedies are the prerogative writs — certiorari, prohibition, mandamus — plus declaration and injunction, all subject to a discretion to refuse relief (Aala). This block is double-assessed (the 10% quiz and exam Part A), but in Part A jurisdiction is usually given, so do not argue it — go straight to remedies.
What this chapter covers
- 01Cth or State action? statutory, prerogative or delegated legislation?
- 02Commonwealth avenues: s 75(v), s 75(iii), s 39B, ADJR ('under an enactment' — Tang)
- 03Victorian avenue: s 85 Constitution Act 1975, Admin Law Act 1978, Order 56
- 04The Kirk minimum — entrenched State supervisory jurisdiction
- 05Remedies: certiorari, prohibition, mandamus; declaration and injunction
- 06Discretion to refuse relief (Aala, Ainsworth, Hot Holdings)
Worked example: which court, and what remedy?
- +1Cth or State? The decision is by an officer of the Commonwealth under a federal Act — a Commonwealth matter, so the Commonwealth avenues apply.
- +1Which courts? The HCA under s 75(v) (mandamus/prohibition/injunction vs an officer of the Cth — entrenched), the Federal Court under s 39B (same test), and potentially the ADJR Act if the decision is 'made under an enactment' (Tang).
- +1Remedies: certiorari to quash the refusal and mandamus to compel a lawful re-decision; a declaration may be sought as ancillary relief.
- +1Discretion: note the court's discretion to refuse relief (Aala) even where a ground is made out — e.g. for delay, futility or an adequate alternative remedy.
Key terms
- s 75(v) Constitution
- The HCA's original jurisdiction where mandamus, prohibition or injunction is sought against an officer of the Commonwealth. It is the 'entrenched minimum provision of judicial review' (S157) and cannot be ousted by Parliament; certiorari and declaration are ancillary.
- s 39B Judiciary Act 1903
- The Federal Court's judicial-review jurisdiction, concurrent with the HCA and on the same test as s 75(v) (mandamus/prohibition/injunction vs an officer of the Cth). Unlike s 75(v) it is not entrenched — Parliament can modify it.
- ADJR Act
- The Administrative Decisions (Judicial Review) Act 1977 (Cth): review of a 'decision of an administrative character made under an enactment'. Tang's two-part test requires the decision to be authorised by the Act and to affect legal rights deriving from the statute (not a contract).
- The Kirk minimum
- The principle that State Supreme Courts' supervisory jurisdiction to review for jurisdictional error is entrenched (via s 73 of the Constitution) and cannot be removed by a State privative clause — the State-level analogue of the s 75(v) entrenchment in S157.
- Discretion to refuse relief
- Even where a ground of review is made out, the remedies are discretionary: a court may refuse relief for reasons such as delay, futility, waiver or an adequate alternative remedy (Aala; Ainsworth; Hot Holdings).
Jurisdiction and Judicial Review FAQ
Do the grounds of judicial review change between courts?
No — the grounds are the same in every Australian court. What changes is the jurisdiction: which court can hear the application (HCA under s 75(v), Federal Court under s 39B, the ADJR Act, or a State Supreme Court). Always settle the avenue first, then run the same grounds analysis.
Why is s 75(v) so important?
Because it is entrenched in the Constitution, Parliament cannot remove the HCA's power to issue mandamus, prohibition or injunction against an officer of the Commonwealth (S157). That makes it the 'entrenched minimum provision of judicial review' and the reason privative clauses can never fully oust review for jurisdictional error.
Should I argue jurisdiction in Part A?
Usually not. In the Part-A advice memo jurisdiction is typically given ('the Federal Court has jurisdiction; the application is in time'), so arguing it wastes time — go straight to remedies → standing → grounds. You do need it cold for the 10% quiz and for the privative-clause add-on, where the point is that the clause cannot oust s 75(v) or the Kirk minimum.
Exam move
Know the avenues cold for the quiz, then spend your Part-A words elsewhere. Build a one-page map: Cth — s 75(v) (entrenched), s 75(iii), s 39B, ADJR (Tang's 'under an enactment'); Vic — s 85 Constitution Act 1975, Admin Law Act 1978, Order 56, with Kirk entrenching State review. Pair each writ with what it does (certiorari quashes, prohibition restrains, mandamus compels) and remember relief is discretionary (Aala). In Part A, do not argue jurisdiction when it is gifted; save the entrenchment point for the privative-clause add-on. This is the double-assessed spine — drill it hardest.
