Getting Decisions by Public Bodies Overturned: Legal Writs

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Hundreds of people every year end up on the receiving end of unfair or unlawful decisions by public bodies and government agencies.

These decisions can have a devastating impact on the day-to-day lives of ordinary people, and can be incredibly difficult, time-consuming and frustrating to rectify.

Administrative law and constitutional law can be treacherous to navigate and often require the expertise of highly specialised lawyers.

However, in response to a social media request by one of our readers, our team of lawyers has put together a general overview of how these types of decisions can be reviewed, as well as the various writs and remedies available under the law.

The Separation of Powers

In order to digest the discussion below, it’s important understand the meaning of “separation of powers”.

Our’s is a three-pronged system which recognises that Parliament, the Executive and the Judiciary are separate and independent bodies.

The Parliament, also known as the Legislature, is responsible for making the law.

It is comprised of the Senate and House of Representatives, as well as the Governor-General who represents the Queen.

The Executive consists of the Governor-General (representing the Queen), the Prime Minister, cabinet and ministers. It is responsible for actioning laws.

The Judiciary refers to the courts, which interpret and apply the law.

In theory, separating each of these bodies means that they are each held independently accountable to each other.

It also means that the burden of making and managing law is evenly shared between each body, so that no single body has all of the power.

What are Constitutional Writs?

The separation of powers says that the judiciary, ie the courts, are responsible for reviewing executive and legislative decisions.

In other words, the courts are responsible for reviewing the decisions of public bodies.

Constitutional writs are mechanisms by which these decisions can be reviewed.

They are essentially court orders that compel public bodies to act, or refrain from acting, in a particular away.

Types of writs

The law recognises three types of constitutional writs:

1. Certiorari

2. Mandamus, and

3. Prohibition.

Each of these has different functions and applications.

The applicable writ will depend on the facts and circumstances of the particular case.

For example, a writ of certiorari is usually the most useful if a decision has already been made and recorded by an administrative body.

If a court issues a writ of certiorari, any record of the unlawful decision will be erased. The court will also make an order quashing the unlawful decision.

A person wishing to obtain a writ of certiorari must prove that the body which made the decision did not have the power to make it, or that it made the decision incorrectly – which is known as an ‘error of law.’

Alternatively, a person wishing to obtain certiorari may be able to do so by showing that the decision constituted a breach of natural justice, or was made fraudulently.

Where a public body or official has not yet made a decision, but appears to be acting outside of its power, a writ of prohibition may be more appropriate.

Prohibition essentially stops the public body or official from continuing proceedings where it looks as though they are exercising their powers unlawfully, or where they are going to do something unlawful.

Finally, a writ of mandamus may be issued where it appears that a public body or official has failed to perform a duty that it is required of them.

Mandamus compels the body or official to perform that duty in accordance with the law; for example, a writ of mandamus may be used in certain circumstances to secure the release of a person unlawfully held in custody.

Equitable Remedies

If none of the outlined writs are helpful, you might wish to consider an equitable remedy such as a declaration or an injunction.

A declaration is simply a statement from a court as to the rights of the law or the rights of the parties.

While it doesn’t compel a party to do anything, public bodies who are the subject of such declarations are expected to abide by them.

An injunction is a court order which compels the body or official to do something or refrain from doing something which is against the law.

The Judicial Review Act

The Administrative Decisions (Judicial Review) Act 1977, commonly known as the ADJR, is yet another means by which a person can seek relief if you they have been wronged by a public body or official.

It essentially enshrines the constitutional writs discussed above and allows for the review of certain administrative decisions.

If a person wishes to pursue this avenue, the action will generally commence in the Federal Court.

People seeking review of a decision under the ADJR must prove that they have been ‘aggrieved’ (wronged) by a decision, report or recommendation, conduct for the purposes of making a decision, or a failure to make a decision.

This generally requires the person to show that they have a personal interest in the decision.

There are various grounds for an action being brought under the ADJR, which include:

  • Where there has been a breach of procedure,
  • Where the body or official acted outside of their jurisdiction or power, and
  • Where the decision involved an error of law.

These grounds are similar to those which apply to the constitutional writs discussed above.

If the court finds in a person’s favour, it has broad powers to make orders.

For example, it may order the wrongful decision to be quashed or set aside.

Alternatively, it may refer the matter back to the original decision-maker and ask for the decision to be re-made.

However, these remedies are not exhaustive and the remedy imposed will depend on the facts and circumstances of the particular case.

So there’s a basic outline of the laws and avenues for having an incorrect decision by a public body reviewed; but we do stress that for case-specific advice about how the law applies in your case, and the best way forward, it is best to seek expert advice from a specialist administrative lawyer.

The Law Society of NSW are able to provide you with a list of administrative lawyers to choose from.

Just give them a call on (02) 9926 0333 and ask for ‘community referrals’.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

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