accountability of the executive: through judicial review

why judicial review is important (3 points)

• Aus has a strict constitutional separation of powers, and the courts are required to be highly effective in holding the government to account

• Courts are vested with judicial power to review the legality of legislation and exercises of executive power

• It enforces rule of law, as reviews of govt decisions ensure that everyone is subject to the law

2 main types of judicial review

• of the public service decision

• of cabinet policy

judicial review of the public service

• Any party affected by an administrative decision will have standing to challenge in court, of which the legality and lawfulness will be assesed, as opposed to the merits and fairness which would occur in a tribunal

• Judicial review is quite rare, as greater expense is involved and the court can only assess lawfulness of a decision which may lead to a less equitable outcome

judicial remedies for administrative wrongs

2 types:

• writ of mandamus: court order requiring a government official to carru out a specific act, eg release someone from detention, give someone a visa, pay money back

• Injunction: court order which prevents government departments or officials from carrying out certain acts or decisions, eg to prevent removal from Australia

 

example of an injunction

s99 case 2016

• s99 was S99 was an african refugee who was raped on Nauru (immigration detention) whilst having a seizure causing them to become pregnant

• She wanted to have an abortion but, under Nauruan law, abortions are prohibited, so the Australia government transferred her to papa new guinea

• However, she felt that the level of care provided in PNG was not adequate in her special circumstances and then sought (upon legal advice) an abortion in Australia

• She took it to court

• The aus government argued that she was Nauru's responsibility and that is could not intervene, so the applicant sought an injuction from the High court, preventing the abortion in PNG and transferred her back to Nauru, until the federal court could reach a final decision on the matter itslef

• The injuction was granted, and the federal court later decided that the minister had exposed the applicant to serious harm and that a safe abortion should be faciliated

judicial review of cabinet policy

• Ministers, under certain legislation are granted 'ministerial discretion' This gives them the ability to make decisions within the meaning of the given statute

• Judicial review of cabinet policy makes sure the minister interpreted statues correctly and did not act ultra vires (beyond their power)

example of judicial review of cabinet policy

amato v commonwealth 2019

• deanna amato was a victim of robodebt, false debt of over 2000$

• centrelink sent letters to her old adress so she didnt know

• Only found out about this 'debt' when centrelink  took her tax refund

• Vic legal aid helped amato to file her case, centrelink decided the debt amount was wrong

• Vic legal aid argued in federal court that robodebt was inconsistent with the social security act.

• Specifically, using yearly income information to create average fortnightly earnings is not lawful,

• and tha reversing the onus of proof on to individuals to show that they do not owe a debt is unlawful

• Government conceded to federal court that robodebt was unlawful

• 470000 debts generated by the system were waived

• 721 million $ of legal debts were repaid

how many debts generated by robodebt were waived

470,000

how much legal debts were repaid after robodebt was unlawful

721 million