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Australian Journal of Administrative Law
Volume 13, Number 4, August 2006
Statutory judicial review and the requirement of a statutory effect on rights or obligations: "Decisions under an enactment"
Anthony E Cassimatis
This article examines the jurisdictional requirements for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and under legislation based on the Act such as the Judicial Review Act 1991 (Q1d). In particular, recent jurisprudence on the meaning of the words "under an enactment" will be examined. Implications flowing from the High Court's recent decision in Griffith University v Tang (2005) 221 CLR 99 will be considered. Conceptual and practical difficulties arising from this decision are examined.
High Court on procedural fairness: SAAP and VEAL
The decisions of the High Court in SAAP v Minister for Immigration (2005) 79 ALJR 1009; 215 ALR 162 and VEAL v Minister for Immigration (2005) 80 ALJR 228; 222 ALR 411 restrict the circumstances in which a court may find that a breach of procedural fairness has occurred, but exercise its discretion to refuse relief on the basis that the breach made no difference to the outcome. In the light of these decisions, it appears that relief may no longer be refused on this basis in cases where it is said that the decision-maker is unlikely to have reached a different decision on the merits, or possibly where it is said that the applicant would not have done anything with the opportunity had fairness been provided. Only where the breach could not have affected the outcome for reasons entirely unrelated to the merits of the decision, or where there was an independent ground for the decision unaffected by the breach, is it clear that a court may still decline to grant relief.
Judicial review and bureaucratic impact: Improvement Notices under the Electrical Safety Act 2002 (Qld)
It is acknowledged that in any study of judicial review and bureaucratic impact there is a need to set the context of any assessment of judicial review so as to enable formation of a view upon impact (see Sunkin M, "Conceptual Issues in Researching the Impact of Judicial Review on Government Bureaucracies" in Hertogh M and Halliday S (eds), Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives (Cambridge University Press, 2004) p 65). The primary focus of this article therefore is to examine the review of notice decision of the Industrial Court of Queensland in Bailey v Dail  QIC 20 and make suggestions as to the decision's bureaucratic impact. The decision represents the first judicial interpretation of the provisions of the (2006) Electrical Safety Act 2002 (Qld) and the Electrical Safety Regulation 2002 (Q1d) as they relate to the writing of Improvement Notices. The decision also explains the process the court will adopt when asked to review administrative notices.