1.7 Judicial review and merits review
Decisions made by a Government Minister, Government Department, or a statutory authority are called administrative decisions. Some administrative decisions can be challenged in a court or tribunal. For example, decisions to grant or refuse to grant an approval for an action that may affect the environment may be open to a legal challenge. Other decisions, such as decisions to fund projects or works that may affect the environment, are political decisions and cannot be reviewed.
The type of legal challenge that can be brought is often called an “appeal”. An appeal commonly means a legal process in which a court or a tribunal independently reviews a decision. There are two processes in which decisions can be reviewed. These are:
If you believe that a decision has been made wrongly, it is important that you seek legal advice quickly because you could lose your right to appeal if you do not start legal proceedings within the limitation date. For information about what a limitation period is read our Fact Sheet on Overview of legal proceedings. If you are concerned about an environmental decision, contact the Environmental Defenders Office, which provides legal advice on public interest environmental law issues.
What is merits review?
Merits review is a type of review that considers all the evidence about the merits of a decision and decides whether or not a correct and preferable decision should be made. It is sometimes called a “de novo” appeal. This means that the Tribunal puts itself in the shoes of the original decision-maker and considers all the evidence from a fresh perspective. In the Northern Territory, the tribunal which can hear environmental disputes is the Lands, Planning and Mining Tribunal. It only has the power to review a decision if there is an Act that gives it that power.
An example of a law which gives a person the right to apply for a merits review in the Lands, Planning and Mining Tribunal is the Heritage Act 2011. This Act gives a person who has nominated a heritage place for protection the right to appeal to the Lands, Planning and Mining Tribunal if the Heritage Council decides that a place does not have heritage significance.[i]
What is judicial review?
When administrative decisions are made, the decision-maker must follow the correct legal process. If the legal process is not followed, the decision may be open to legal challenge. The law requires that before making a decision, the decision-maker ‘must have taken into account all relevant information, excluded irrelevant matters, and reached a conclusion that, on the weight of the evidence, is reasonable in the circumstances’.[ii]
Judicial review is a type of proceeding where the Court looks at the lawfulness of the decision-making process. If the Court finds that a decision is unlawful, that decision will be quashed and the decision-maker can be forced to re-make the decision according to the law. Some of the common types of faults in decision-making which could lead to the court invalidating a decision are:
an error of law – for example if the decision-maker has wrongly applied the law or misunderstood the law
the decision-maker wrongly taking into account irrelevant considerations. An irrelevant consideration is one which must not be taken into account
the decision-maker failing to take into account relevant considerations. A relevant consideration is one which must be taken into account
the decision-maker acting with an improper purpose that is beyond the responsibilities of the decision-maker
unreasonableness – the decision-maker behaved so unreasonably no reasonable decision-maker could have reached the decision
bad faith – the decision was affected by dishonesty, corruption or bribery
failure to accord natural justice – a failure to give someone a reasonable opportunity to be heard if the law requires it
that the decision was not free of bias or the appearance of bias.
There are many other grounds for judicial review.
What can the Court order?
If a court is satisfied that the decision has been wrongly made, it has several powers to rectify the matter with remedies. These are called remedies. Common remedies which are sought in environmental matters are:
certiorari – an order of the court to set aside or quash the decision
mandamus – an order for the court to force a tribunal, public body or official to perform the action that it has failed to perform. In the case of a decision, it means that the decision-maker has to go back and remake the decision applying the correct law
declaration – an order in which the court declares the legal position in relation to a particular issue. For example, that the decision was legally incorrect
injunction – an order which prevents someone from doing something or requires certain action.
In the Northern Territory, judicial review proceedings are brought under the common law and heard by the Supreme Court of the Northern Territory.
[ii] Bates, G., Environmental Law in Australia (7th ed, 2010) para 18.11.