Two wrongs do not always make a writ: scope of remedies on judicial review

Key Points:

A recent decision of the High Court highlights the potential risks and consequences for decision-makers who are required to remake decisions on remittal, and serves as a reminder of the scope of remedies on judicial review.

The usual relief granted by a court to a successful applicant for judicial review is to set aside the decision under review and to remit the matter back to the decision-maker for reconsideration according to law. What if the subsequent decision on remittal is also challenged? What remedies are available?

A recent High Court decision shows that, in exceptional circumstances, the writ of "peremptory mandamus" can be issued to require that a decision-maker exercise their powers in a particular way, and is a timely reminder of the scope of remedies that courts may grant in the context of judicial review proceedings (Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3).

What relief is available on judicial review?

Relevantly, both the High Court of Australia and the Federal Court of Australia have original jurisdictional in all matters in which an injunction, a writ of prohibition or a writ of mandamus is sought against an officer of the Commonwealth, subject to limited exceptions. In this context:

an injunction is an order that restrains an officer of the Commonwealth from performing an act or, in more exceptional cases, compels the performance of a specific act; a writ of prohibition forbids an officer of the Commonwealth from commencing an unlawful act or continuing to perform an unlawful act; and a writ of mandamus compels an officer of the Commonwealth to perform their duty in accordance with the law. In practice, the final relief most commonly sought by applicants in judicial review proceedings are a writ of certiorari...