3. Judicial review

Judicial review involves the review of a decision by a court. In this process, the court addresses the lawfulness of the decision. The court does not review the case based on its merits. Rather, the court seeks to answer the question: ‘Was the decision lawful?’

In general, a judicial review does not allow new evidence to be admitted and does not attempt to determine the ‘correct and preferable’ decision.

Where regulatory authorities and tribunals may substitute decisions during the merits review process, courts will generally:

• set aside a decision
• direct decision-makers to address the matter again, following any recommendations made by the court
• make a declaration, or
• make an order preventing, or specifically directing, any action.

Generally, an application for external judicial review is sought on the following grounds:

• the decision-making process involved an error of law
• a breach of the rules of natural justice occurred in the decision-making process
• irrelevant matters were taken into consideration (or relevant matters were not taken into consideration)
• the exercise of the decision-making power was unreasonable, or
• a decision-making power was exercised improperly; either by a person unauthorised to make the decision, or for an unauthorised purpose.

See Good Regulatory Practice for more information about natural justice.