A discussion of the duty and jurisdiction of the courts to review administrative decisions

Blackwell, James (2003) A discussion of the duty and jurisdiction of the courts to review administrative decisions. QUT Law and Justice Journal, 3(1), pp. 182-188.

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The courts have always recognised that judicial review should not amount to the court exercising an administrative discretion legally reposed in a decision-maker. The orthodox view is that the court's role, in performing judicial review of administrative decisions, is to assess whether a decision is legal rather than whether it constitutes the right or preferable outcome. The above statement made by Brennan J in Attorney General v Quin[2]appears to highlight this limitation on the function of the courts in judicial review. However, establishing the appropriate ambit of judicial review of discretionary administrative decision-making has proven to be one of the most contentious and problematic areas of administrative law. Courts and academic writers alike have sought relentlessly, yet with little success, to resolve the seemingly intractable dilemma of the limits of judicial review and the appropriate institutional relationship between the courts and the administrative branch of government.

This article will firstly examine the accuracy of Brennan J's statement by comparing it with the views of other experts. Importantly, the reasoning preventing courts from making judgements based on the validity of the facts will be analysed. The degree to which merits review and legal review overlap, or whether such a distinction exists at all, is also a valid issue for discussion. This is often where the confusion lies in the courts given the fine line, and difficulty in defining between, which facts form the merits of the case and which facts go to the legality of the issue. Finally, the essay will discuss what advantages lie in leaving merits review for administrative tribunals and whether in rectifying decisions based on the merits of the case, courts are breaching the separation of powers doctrine. Conversely, what advantages lie in allowing the courts the flexibility to apply merits review will be considered in determining what the courts' role should be in this review process.

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ID Code: 18840
Item Type: Journal Article
Refereed: Yes
ISSN: 1445-6230
Deposited On: 17 Mar 2009 06:04
Last Modified: 10 Aug 2011 13:17

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