2.2. The ADJR Act
43 The Administrative Decisions (Judicial Review) Act 1977 (hereafter, the "ADJR Act") confers upon this court jurisdiction to review certain administrative decisions.
44 Section 5 of the ADJR Act relevantly provides as follows:
5 Applications for review of decisions
(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(j) that the decision was otherwise contrary to law.
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j) any other exercise of a power in a way that constitutes abuse of the power.
45 Section 6 is in similar terms, save that it relates to (amongst other things) conduct in which a person has engaged for the purposes of making a decision to which the ADJR Act applies.
46 Section 7 of the ADJR Act relates to failures to make decisions to which the ADJR Act applies. It provides as follows:
7 Applications in respect of failures to make decisions
(1) Where:
(a) a person has a duty to make a decision to which this Act applies;
(b) there is no law that prescribes a period within which the person is required to make that decision; and
(c) the person has failed to make that decision;
a person who is aggrieved by the failure of the first mentioned person to make the decision may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.
(2) Where:
(a) a person has a duty to make a decision to which this Act applies;
(b) a law prescribes a period within which the person is required to make that decision; and
(c) the person failed to make that decision before the expiration of that period;
a person who is aggrieved by the failure of the first mentioned person to make the decision within that period may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the failure to make the decision within that period on the ground that the first mentioned person has a duty to make the decision notwithstanding the expiration of that period.
47 Section 3 of the ADJR Act defines what qualifies as a "decision to which this Act applies". It is not in dispute that the decisions made (or not made) by or on behalf of the Department in connection with each of the 25 November APP 12 Request and the 2 March APP 13 Request were decisions to which the ADJR Act applied. For reasons that will become apparent, I do not consider that the Department's response (or failure to respond) to the 3 March Demand Email was conduct that related to, or was otherwise a failure to make, a decision to which the ADJR Act applied.
48 The rights of review conferred by ss 5, 6 and 7 of the ADJR Act are in addition to any other rights that a person has to seek review of a relevant decision, relevant conduct engaged in for the purposes of making a decision, or a relevant failure to make a decision: ADJR Act, s 10(1). This court may, in its discretion, refuse to grant an application under any of those sections in circumstances where another law makes adequate provision for a process or processes by which a person may apply to a tribunal to have the decision, conduct or failure in question reviewed: ADJR Act, s 10(2).
49 Section 16 of the ADJR Act confers upon this court various powers that, in its discretion, it may exercise by way of review of an impugned decision, impugned conduct or an impugned failure to make a decision. It provides as follows:
16 Powers of the Federal Court and the Federal Circuit Court in respect of applications for order of review
(1) On an application for an order of review in respect of a decision, the Federal Court or the Federal Circuit Court may, in its discretion, make all or any of the following orders:
(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;
(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;
(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
(2) On an application for an order of review in respect of conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Federal Court or the Federal Circuit Court may, in its discretion, make either or both of the following orders:
(a) an order declaring the rights of the parties in respect of any matter to which the conduct relates;
(b) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
(3) On an application for an order of review in respect of a failure to make a decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Federal Court or the Federal Circuit Court may, in its discretion, make all or any of the following orders:
(a) an order directing the making of the decision;
(b) an order declaring the rights of the parties in relation to the making of the decision;
(c) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
(4) The Federal Court or the Federal Circuit Court may at any time, of its own motion or on the application of any party, revoke, vary, or suspend the operation of, any order made by it under this section.