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

Clayton Utz Insights
Last Updated: 25 February 2015
Article by Caroline Bush and Mathew Bock

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 (to, in effect, "quash" the decision) together with a writ of mandamus (to compel the decision-maker to remake their decision in accordance with the law). Injunction frequently arises as a form of interim order to preserve the rights and interests of parties to litigation until their dispute can be finally heard and determined.


The Plaintiff in this case had successfully argued in earlier proceedings before the High Court that a failure by the Minister to grant a protection visa was unlawful in the circumstances of his case. In particular, the High Court found that an instrument made by the Minister that set a cap on the maximum number of protection visas that may be granted in a particular financial year, which purported to prevent the Plaintiff from being granted a visa, was invalid by reason of its inconsistency with the Migration Act 1958 (Cth) (see Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 88 ALJR 722).

When the High Court made that earlier decision in June 2014, it ordered that a writ of mandamus issue to the Minister to the effect that the Plaintiff's application for a protection visa be reconsidered and determined in accordance with law.

On 17 July 2014, the Minister decided on remittal to refuse the Plaintiff's application on the basis that the Minister was not satisfied that the grant of the visa was in "the national interest" and that the Plaintiff therefore did not satisfy clause 866.226 of the Migration Regulations 1994 (Cth).

The matter was bought back before the High Court which had to decide two issues:

  • whether the Minister had lawfully applied the "national interest" criterion in clause 866.226 when making the new decision; and
  • if not, what relief should be granted to the Plaintiff.

The national interest criterion

The Court found that clause 886.226 could not be construed as permitting the Minister to treat the Plaintiff's status as an unauthorised maritime arrival, in and of itself, as sufficient to justify the conclusion that it was not in the national interest to grant the visa.

Traditionally, courts have been disinclined to interfere with a Minister's conclusion as to what may be in the "national" or "public" interest. Indeed, the Court referred to earlier authorities which suggested that in considering whether a matter was in the national interest, the decision-maker may:

"properly have regard to a wide range of consideration of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member, and thus, affect the Minister's continuance in office" (see Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438).

However, accepting the breadth of considerations that may fall within an assessment of the national interest in any given case, the Court held that views as to the content of the national interest "cannot proceed from, or be based in, an error of law".

In this case, the Court found that Minister had made an assessment of the "national interest" which proceeded from an error of law. In particular, the Court identified that it was an error of law to construe clause 866.226 as allowing the Minister to refuse to grant a valid application for a visa only because the Plaintiff was an unauthorised maritime arrival in circumstances where the Migration Act exhaustively prescribed the visa consequences which follow from a visa applicant's status as an unauthorised maritime arrival, and that the general words of clause 866.226 of the Migration Regulations could not add to the consequences which the Parliament had identified.

The Court concluded that the way in which the Minister had incorrectly applied the national interest criterion in clause 866.226 meant that he had not done what was commanded of him by the original writ of mandamus, because he had not made the decision according to law. Having reached that conclusion, the question then arose for the Court as to what relief should be ordered in the circumstances.

The relief to be granted

The High Court's decision in Plaintiff S297/2013 is particularly significant in the context of the law relating to judicial review remedies, as the High Court unanimously decided to issue a rarely utilised writ of "peremptory mandamus".

Peremptory mandamus, like mandamus, commands the performance of a duty. However, peremptory mandamus may only be issued by a court where a person who was subject to an earlier writ has failed to sufficiently perform their duty. It is, in essence, an order which serves to enforce compliance with a prior order of the Court.

The Court highlighted that such a writ was warranted only in exceptional circumstances and specified limits on the grant of such a remedy. Importantly, the Court decided that a writ of peremptory mandamus of this kind may only issue where:

  • a writ has already been issued and the response to that writ was "legally insufficient"; and
  • no alternate basis for the decision that would warrant further consideration on remittal is available; and
  • the terms of the peremptory writ do not alter the effect of the original writ, as the peremptory writ must direct obedience to the command of the original writ.

Nothing in the High Court's decision could be said to support the view that a court may, in first instance judicial review proceedings, grant of a writ of peremptory mandamus that directs a decision-maker to decide a matter in particular way. Rather, such a writ may only be considered in circumstances where a writ has already been issued and the response to that writ is found to be "legally insufficient". In the circumstances of this case, the High Court appears to have placed particular emphasis on the apparent absence of any alternative basis upon which the Minister might have refused to grant the visa to the Plaintiff.

This case serves to highlight that special care should be taken with decisions made on remittal and reminds decision-makers to be conscious of the scope of judicial review remedies that are available.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.