What are the reasons a decision can be unlawful?

Judicial review is not about whether the decision was unfair or incorrect. It is about whether the decision was unlawful.

There are certain reasons why a decision could be unlawful. To have a judicial review, you need to show that one of these reasons (also known as “grounds”) applies.

To help explain the reasons, we will use the example of a disciplinary hearing (also called a Governor’s hearing) for a drug possession offence. The ‘hearing officer’ is the person who runs the hearing – usually the General Manager.

Reasons or “grounds” for judicial review

1. The decision-maker did not follow the procedure they were meant to use
   • For example, you were not allowed to tell your side of the story or call witnesses at your disciplinary hearing.
2. The decision-maker did not have legal authority or power to make the decision
   • For example, the hearing officer at your disciplinary hearing was not a General Manager, but they did something only General Managers are allowed to do.
3. The decision-maker used their power improperly either by:
   • Making a decision based on things that were not relevant to your case; or
   • Making a decision without considering things that were relevant to your case.
   • For example, the hearing officer unfairly refused to hear evidence from a witness who says you didn’t have any drugs in your possession.
4. The decision was made without any evidence to justify it
   • For example, if you were found guilty of a drug offence, but there was no actual evidence that you ever had drugs in your possession.
5. The decision involved an error of law (this means the decision-maker did not interpret or use the law correctly)
   • For example, if the hearing officer found you guilty of the drug possession offence but didn’t think the prison had to actually prove you had drugs in your possession.
6. You were not provided natural justice (a fair hearing)
   • For example, you were not told about what evidence would be used against you in your hearing, or you were not given a chance to respond to evidence or explain it.
7. The decision was affected by fraud
   • For example, the prison officer who reported you lied in their evidence.
8. The decision was otherwise unlawful
   • This ground covers any other reason why a decision might be unlawful, for example if the decision was irrational or illogical.