Can the High Court control the wrongful exercise of power?
Yes . . . but with some important restrictions.
A Judicial Review is a legal review by a Judge of the High Court (not the District Court) of a decision or a decision making process in order to make a finding whether that decision or the action taken under that decision is authorised in law or invalid for some other ground.
We wish to make it clear from the outset that the High Court cannot be used simply to argue that the decision of a statutory body or a bureaucrat is wrong.
Politicians are entitled to make wrong decisions. What they are not entitled to do is carry out a process of reasoning or a hearing which is wrong or invalid.
For centuries, the Courts have had the power or the jurisdiction to review decisions of public bodies and organisations under what was known as the Prerogative Writs.
The procedure or rules in relation to these Writs were extremely difficult and complex. The Judicature Amendment Act 1972 was specifically passed to simplify the procedure to be followed.
At its core, judicial review is a central safeguard of the rule of law, protecting citizens from unlawful interference by those who exercise – or purport to exercise – Government powers. It is also increasingly deployed in commercial contexts: public sector tenders, allocation of licences and quotas, and regulation of commercial activity. It is perhaps no surprise that a field of law which is based on some very fundamental – but also very general – principles, and which operates across a vast canvas of public decision-making, should have uncertain boundaries.
The exercise of non-statutory powers still remain reviewable under the old Prerogative Writs.
However, any exercise of a statutory power is now the subject of a simplified Judicial Review Application under the 1972 Amendment Act. More importantly, you should look at Rule 628 of the High Court Rules.
Direct Link to High Court Rules. Please NOTE that the link below will take you to the Judicature Act 1908 and you will then need to scroll down to the end of the Act and click on to the 2nd Schedule to get ALL of the Rules.
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