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Part-1

1.   Short title [see Note 1]

This Act may be cited as the Administrative Decisions (Judicial Review) Act 1977.

2.   Commencement [see Note 1]

This Act shall come into operation on a date to be fixed by Proclamation.

3.   Interpretation

(1)    In this Act, unless the contrary intention appears:

ACT enactment means an enactment as defined by section 3 of the Australian Capital Territory (Self‑Government) Act 1988.

Commonwealth authority means an authority or other body (whether incorporated or not) that is established or continued in existence by or under an Act.

decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):

(a)    under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or

(b)    by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;

other than:

(c)     a decision by the Governor‑General; or

(d)    a decision included in any of the classes of decisions set out in Schedule 1.

Note:    Regulations for the purposes of section 19 can declare that decisions that are covered by this definition are not subject to judicial review under this Act.

duty includes a duty imposed on a person in his or her capacity as a servant of the Crown.

enactment means:

(a)    an Act, other than:

(i)      the Commonwealth Places (Application of Laws) Act 1970; or

(ii)     the Northern Territory (Self‑Government) Act 1978; or

(iii)    an Act or part of an Act that is not an enactment because of section 3A (certain legislation relating to the ACT); or

(b)   an Ordinance of a Territory other than the Australian Capital Territory or the Northern Territory; or

(c)   an instrument (including rules, regulations or by‑laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section 3A; or

(ca)  an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3; or

(cb)  an instrument (including rules, regulations or by‑laws) made under an Act or part of an Act covered by paragraph (ca); or

(d)   any other law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act;

and, for the purposes of paragraph (a), (b), (c), (ca) or (cb), includes a part of an enactment.

Note:  Regulations for the purposes of section 19B can amend Schedule 3 (see section 19B).

failure, in relation to the making of a decision, includes a refusal to make the decision.

Family Court Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).

Federal Court Rules means the Rules of Court made under the Federal Court of Australia Act 1976.

Federal Magistrates Rules means the Rules of Court made under the Federal Magistrates Act 1999.

officer of the Commonwealth has the same meaning as in paragraph 75(v) of the Constitution.

order of review, in relation to a decision, in relation to conduct engaged in for the purpose of making a decision or in relation to a failure to make a decision, means an order on an application made under section 5, 6 or 7 in respect of the decision, conduct or failure.

the Family Court means the Family Court of Australia.

the Federal Court means the Federal Court of Australia.

 (2)  In this Act, a reference to the making of a decision includes a reference to:

(a)    making, suspending, revoking or refusing to make an order, award or determination;

(b)    giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)     issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)    imposing a condition or restriction;

(e)    making a declaration, demand or requirement;

(f)      retaining, or refusing to deliver up, an article; or

(g)    doing or refusing to do any other act or thing;

and a reference to a failure to make a decision shall be construed accordingly.

(3)    Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.

(4)    In this Act:

(a)    a reference to a person aggrieved by a decision includes a reference:

(i)      to a person whose interests are adversely affected by the decision; or

(ii)     in the case of a decision by way of the making of a report or recommendation—to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation; and

(b)    a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.

(5)    A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation.

(6)    A document or a statement that is required by this Act to be furnished to a person or a notice that is required by this Act to be given to a person may be posted to the person by a pre‑paid letter:

(a)    where the person has furnished an address at which documents may be served—to that address; or

(b)    where no such address has been furnished:

(i)      in the case of a person not being a company—to the address of his or her place of residence or business last known to the person posting the document, statement or notice; or

(ii)     in the case of a company—to the address of the registered office of the company;

and, if a document, statement or notice is so posted, then, for the purposes of this Act, the document or statement shall be deemed to be furnished, or the notice shall be deemed to be given, as the case may be, at the time when the document, statement or notice is so posted.

(7)    A reference in a Schedule to this Act to another Act (including an Act of a State, the Australian Capital Territory or the Northern Territory) or a provision of another Act shall be read as including a reference to regulations or by‑laws in force under that other Act or for the purposes of that provision, as the case may be.

(7A)  If an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3 applies all or part of another enactment or instrument as a law of the State or Territory, that other enactment or instrument, as so applying, is taken for the purposes of this Act to be included in the Act, or the part of the Act, of the State or Territory.

(8)    For the purposes of a Schedule to this Act:

(a)    a decision made, proposed to be made, or required to be made, as the case may be, by a person acting as the delegate of another person, or by a person otherwise lawfully authorized to act on behalf of another person, shall be deemed to be a decision by that other person; and

(b)    a decision made, proposed to be made, or required to be made, as the case may be, by a person for the time being acting in, or performing any of the duties of, an office or appointment shall be deemed to be a decision by the holder of that office or appointment.

(8A)  For the purposes of a Schedule to this Act, the question whether a body corporate is a subsidiary of another body corporate is to be determined in the same manner as that question is determined under the Corporations Act 2001.

(9)    In a Schedule to this Act:

Service includes the Australian Federal Police.

(10)  To avoid doubt, a reference in this Act (other than subsections 11(1), (2) and (3)) to an application made to the Federal Court includes, and is taken always to have included, a reference to an application that has come, or that came, before the Federal Court by way of a transfer from the Federal Magistrates Court under Part 5 of the Federal Magistrates Act 1999.

(11)  To avoid doubt, a reference in this Act (other than subsections 11(1), (2) and (3)) to an application made to the Federal Magistrates Court includes, and is taken always to have included, a reference to an application that:

(a)    has come, or that came, before the Federal Magistrates Court by way of a transfer from the Federal Court under section 32AB of the Federal Court of Australia Act 1976; and

(b)    could have been made directly to the Federal Magistrates Court.

(12) For the purposes of paragraph (11)(b), disregard section 19 of the Federal Magistrates Act 1999.

3A.Certain legislation relating to Australian Capital Territory not to be enactment

(1)    ACT enactments are not enactments except to the extent that they are covered by paragraph (ca) or (cb) of the definition of enactment in subsection 3(1).

(2)    The Australian Capital Territory (Self‑Government) Act 1988 and the Canberra Water Supply (Googong Dam) Act 1974 are not enactments.

(3)    Part IV, sections 29 and 30, subsection 63(2), section 66 and Division 5 of Part X of the Australian Capital Territory Planning and Land Management Act 1988 are not enactments.

(4)    Where the whole of an Act or Ordinance is not an enactment, an instrument made under it is not an enactment.

(5)    Where part of an Act or Ordinance is not an enactment, an instrument made under the Act or Ordinance, as the case may be, is not an enactment unless made for the purposes of the other part of the Act or Ordinance, as the case may be.

4.   Act to operate notwithstanding anything in existing laws

This Act has effect notwithstanding anything contained in any law in force at the commencement of this Act.

5.   Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:

(a)    that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)    that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)     that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)    that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)      that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)    that the decision was induced or affected by fraud;

(h)     that there was no evidence or other material to justify the making of the decision;

(j)      that the decision was otherwise contrary to law.

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)    taking an irrelevant consideration into account in the exercise of a power;

(b)    failing to take a relevant consideration into account in the exercise of a power;

(c)     an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)    an exercise of a discretionary power in bad faith;

(e)    an exercise of a personal discretionary power at the direction or behest of another person;

(f)      an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)  an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j)  any other exercise of a power in a way that constitutes abuse of the power.

(3)    The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a)    the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b)    the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

6.   Applications for review of conduct related to making of decisions

(1)    Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the conduct on any one or more of the following grounds:

(a)    that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct;

(b)    that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;

(c)     that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision;

(d)    that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision;

(e)    that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;

(f)      that an error of law had been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision;

(g)    that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct;

(h)     that there is no evidence or other material to justify the making of the proposed decision;

(j)      that the making of the proposed decision would be otherwise contrary to law.

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)    taking an irrelevant consideration into account in the exercise of a power;

(b)    failing to take a relevant consideration into account in the exercise of a power;

(c)     an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)    an exercise of a discretionary power in bad faith;

(e)    an exercise of a personal discretionary power at the direction or behest of another person;

(f)      an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)     an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j)      any other exercise of a power in a way that constitutes abuse of the power.

(3)    The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a)    the person who proposes to make the decision is required by law to reach that decision only if a particular matter is established, and there is no evidence or other material (including facts of which he or she is entitled to take notice) from which he or she can reasonably be satisfied that the matter is established; or

(b)    the person proposes to make the decision on the basis of the existence of a particular fact, and that fact does not exist.

7.   Applications in respect of failures to make decisions

(1)    Where:

(a)    a person has a duty to make a decision to which this Act applies;

(b)    there is no law that prescribes a period within which the person is required to make that decision; and

(c)     the person has failed to make that decision;

a person who is aggrieved by the failure of the first‑mentioned person to make the decision may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.

(2)    Where:

(a)    a person has a duty to make a decision to which this Act applies;

(b)    a law prescribes a period within which the person is required to make that decision; and

(c)     the person failed to make that decision before the expiration of that period;

a person who is aggrieved by the failure of the first‑mentioned person to make the decision within that period may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the failure to make the decision within that period on the ground that the first‑mentioned person has a duty to make the decision notwithstanding the expiration of that period.

8.   Jurisdiction of Federal Court of Australia and Federal Magistrates Court

(1)    The Federal Court has jurisdiction to hear and determine applications made to the Federal Court under this Act.

(2)    The Federal Magistrates Court has jurisdiction to hear and determine applications made to the Federal Magistrates Court under this Act.

Note:  See also subsections 3(10), (11) and (12).

9.   Limitation of jurisdiction of State courts

(1)    Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review:

(a)    a decision to which this section applies that is made after the commencement of this Act;

(b)    conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies;

(c)     a failure to make a decision to which this section applies; or

(d)    any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth, including a decision, order or conduct given, made or engaged in, as the case may be, in the exercise of judicial power.

Note:   This subsection has effect subject to the Jurisdiction of Courts (Cross‑vesting) Act 1987 and to subsection 1337B(3) of the Corporations Act 2001.

(2)    In this section:

decision to which this section applies means:

(a)    a decision that is a decision to which this Act applies; or

(b)    a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1.

review means review by way of:

(a)    the grant of an injunction;

(b)    the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or

(c)     the making of a declaratory order.

(4)    This section does not affect:

(b)    the jurisdiction conferred on the Supreme Court of a State by section 32A of the Federal Court of Australia Act 1976; or

(c)     the jurisdiction of a court of a State in respect of any matter that is pending before it at the commencement of this Act.

9A.Limitation of jurisdiction to review related criminal justice process decisions

(1)    Subject to subsection (2), at any time when:

(a)    a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before any court; or

(b)    an appeal arising out of such a prosecution is before any court;

no court has jurisdiction to hear, continue to hear or determine an application under this Act, by the person who is or was the defendant in the prosecution, in relation to a related criminal justice process decision.

(2)    Subsection (1) does not apply if an applicant has commenced an application under this Act before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory.

(3)    Where subsection (2) applies, the prosecutor may apply to the court for a permanent stay of proceedings in the hearing and determination of the application and the court may grant such a stay if the court determines that:

(a)    the matters that are the subject of the application are more appropriately dealt with in the criminal justice process; and

(b)    a stay of proceedings will not substantially prejudice the applicant.

(4)    In this section:

appeal includes an application for a new trial and a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge.

related criminal justice process decision, in relation to an offence, means:

(a)    a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:

(i)      a decision in connection with the investigation, committal for trial or prosecution of the defendant; and

(ii)     a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and

(iii)    a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and

(iv)    a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and

(v)     a decision in connection with an appeal arising out of the prosecution; or

(b)    a decision of the Attorney‑General to give a certificate under section 26 or 28 of the National Security Information (Criminal and Civil Proceedings) Act 2004 before or during a federal criminal proceeding (within the meaning of that Act) in relation to the offence.

Note:  A decision to prosecute a person for an offence is not reviewable under this Act: see paragraph (xa) of Schedule 1.

9B.Limitation of jurisdiction to review related civil proceeding decisions

(1)    At any time when a civil proceeding, or an appeal arising out of a civil proceeding, is taking place, no court has jurisdiction to hear, continue to hear or determine an application under this Act, by a person who is or was a party to the proceeding, in relation to a related civil proceeding decision.

(2)    In this section:

appeal includes a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge.

civil proceeding has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004.

related civil proceeding decision, in relation to a civil proceeding, means:

(a)    a decision of the Attorney‑General to give:

(i)      notice under section 6A of the National Security Information (Criminal and Civil Proceedings) Act 2004 in relation to the proceeding; or

(ii)     a certificate under section 38F or 38H of that Act in relation to the proceeding; or

(b)    a decision of the Minister appointed by the Attorney‑General under section 6A of that Act to give:

(i)      notice under section 6A of that Act in relation to the proceeding; or

(ii)     a certificate under section 38F or 38H of that Act in relation to the proceeding.

10. Rights conferred by this Act to be additional to other rights

(1)    The rights conferred by sections 5, 6 and 7 on a person to make an application to the Federal Court or the Federal Magistrates Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision:

(a)    are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and

(b)    shall be disregarded for the purposes of the application of subsection 6(3) of the Ombudsman Act 1976 and section 40TF of the Australian Federal Police Act 1979.

(2)    Notwithstanding subsection (1):

(a)    the Federal Court or the Federal Magistrates Court, or any other court, may, in a proceeding instituted otherwise than under this Act, in its discretion, refuse to grant an application for a review of a decision, conduct engaged in for the purpose of making a decision, or a failure to make a decision, for the reason that an application has been made to the Federal Court or the Federal Magistrates Court under section 5, 6 or 7 in respect of that decision, conduct or failure; and

(b)    the Federal Court or the Federal Magistrates Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:

(i)      that the applicant has sought a review by the court, or by another court, of that decision, conduct or failure otherwise than under this Act; or

(ii)     that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.

(3)    In this section, review includes a review by way of reconsideration, re‑hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order.

11. Manner of making applications

(1)    An application to the Federal Court or the Federal Magistrates Court for an order of review:

(a)    shall be made in such manner as is prescribed by:

(i)      in the case of an application to the Federal Court—Federal Court Rules; or

(ii)     in the case of an application to the Federal Magistrates Court—Federal Magistrates Rules; and

(b)    shall set out the grounds of the application; and

(c)     shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.

(2)    Any other application to the Federal Court or the Federal Magistrates Court under this Act shall be made as prescribed by:

(i)      in the case of an application to the Federal Court—Federal Court Rules; or

(ii)     in the case of an application to the Federal Magistrates Court—Federal Magistrates Rules.

(3)    The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:

(a)