PART II – THE SIGNIFICANCE AND
CONSTITUTIONAL SCOPE OF JUDICIAL REVIEW

SECTION I

The significance of judicial review

• An element of the rule of law
• An aid to accountability
• Consistency and precedent
• An individual right
• Previous Council consideration

SECTION II

The Constitution and the scope of judicial review

• Separation of powers
• The distinction between merits and judicial review
• Other constitutional limits on the scope of judicial review?

 

• SECTION I

The significance of
judicial review

2.1
In Australia, judicial review represents an important element in a
comprehensive administrative justice system.[1] Other elements of this
system include:

• internal administrative review by superior officers
• external administrative review by tribunals
• external scrutiny and recommendations by Ombudsmen and
  Parliamentary Commissioners[2]
• access to information under freedom of information legislation or
  statutory requirements for the provision of documents
• protection of information under privacy legislation
• statutory rights to reasons; and
• protection against breaches of human rights or discriminatory
  conduct by human rights and anti-discrimination legislation

2.2
Associated accountability mechanisms include:

• parliamentary processes and committee systems; and
• the role of Commonwealth and State auditor-generals in addressing
  systemic issues.

2.3
Within this scheme, judicial review has a number of important functions.

An element of the rule of
law

2.4
As well as defining the constitutional limits of judicial review, the Constitution underscores the significance of judicial review as an element of the rule of law:

Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by the law and the interests of the individual are protected accordingly.[3]

2.5
As also noted:

Those exercising executive and administrative powers are as
much subject to the law as those who are or may be affected by the exercise of
those powers. It follows that, within the limits of their jurisdiction and
consistent with their obligation to act judicially, the courts should provide
whatever remedies are available and appropriate to ensure that those possessed
of executive and administrative powers exercise them only in accordance with
the laws which govern their exercise. The rule of law requires no less.[4]

2.6
Further:

To the extent that the courts are impeded from exercising
judicial review of administrative decisions, the rule of law is negated.[5]

An aid to accountability

2.7
It has been said that leaving aside considerations flowing from the role
of the courts in determining the content and application of the rule of law,
‘the most obvious benefit brought by judicial review is that it forces care in
administrators and reviewers in their adjudicative process’.[6]
Further:

…one by-product of judicial review as an accountability
measure is that it can encourage independence and integrity. A decision-maker
whose ruling is subject to curial oversight is less likely to toe a particular
policy line or succumb to political pressure to decide cases in a particular
way. The courts offer security to those who make a bona fide attempt to make
findings on the facts and the law as presented and sanctions for those who
choose to act on arbitrary or capricious considerations.[7]

Consistency and precedent

2.8
One of the important aspects of the jurisdiction of tribunals in our
administrative system is that they do not establish precedent: each case is to
be examined on its merits. In contrast, although the decision to litigate can
be quite ad hoc, the rulings of the courts are of precedential value and
can provide direction on important elements of administrative law, especially
obligations imposed upon decision-makers by particular statutes.

2.9
As noted by the Law Council of Australia in the context of its
submission on the Migration (Judicial Review) Bill 1998:

The Refugee Review Tribunal…deals with complex legal
issues…The courts provide interpretation of legislative provisions and on the
relationship between old and new laws. Both the Refugee Review Tribunal and
the Immigration Review Tribunal, like most tribunals, often see differences of
opinion arise between the way particular members interpret the relevant
legislation…court decisions are normative and binding on tribunal members. The
fostering of consistency between members and the knowledge of the correct
interpretation of a certain provision are benefits for all those involved in
the immigration process, from applicants, departmental decision-makers through
to review officers.[8]

An individual right

2.10       Government is the source of many benefits, and an individual’s right to review of decisions in relation to the administration of those benefits is as important as the entitlement to bring an action in the courts to enforce a right against a fellow citizen.[9]

2.11       Such a right is not adequately protected by the doctrine of ministerial
responsibility.[10] That is reflected in the comprehensive Australian system of administrative law.

2.12       In summary:

…judicial review plays an important part, in a highly
public way, of declaring, reasserting and supporting important standards
necessary to the rule of law expressed in the delivery of administrative
justice as well as addressing departures from those standards in individual
cases.[11]

Previous Council consideration

2.13       Consistent with these views, in its Report No 32, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, the Council noted that:

Judicial review of administrative decisions is an aspect of
the rule of law which requires that executive action is not unfettered or
absolute but is subject to legal constraints. The availability of judicial
scrutiny of the legality of administrative action serves the twofold purpose of
protecting individual rights and interests from unauthorised action and
ensuring that public powers are exercised within their legal limits.[12]

2.14       More recently, in its submission to the Senate Legal and Constitutional Legislation Committee on the Migration (Judicial Review) Bill 1998, the Council
observed that:

In the Commonwealth context, it is…of fundamental constitutional importance that a decision made or action taken in the exercise of authority, whatever its source, is susceptible to review by the courts, if the decision-maker or action taker is an officer of the Commonwealth or a person acting for or on behalf of the Commonwealth or Commonwealth authority and if the decision or action affects a right, privilege, duty, obligation or legitimate expectation of a person.[13]

2.15       Additionally, the Council sees a role for judicial review in:

…enhanc[ing] community confidence about the standards that
will generally be applied by the Commonwealth administration in making
decisions which affect the interests of individuals in the community. An
essential part of judicial review of administrative action has been the
progressive development by an independent judiciary of procedural standards of
fairness and lawfulness against which the powers of government officials may be
measured.[14]

2.16       The Council maintains these views, and considers that, without good reason, the scope of judicial review should not be limited:

Ousting of judicial review is not a matter to be undertaken lightly by the Parliament…It is the cause for the utmost caution when one arm
of government (in this case the Executive) seeks the approval of the second arm
of government (the Parliament) to exclude the third arm of government (the
Judiciary) from its legitimate role whatever the alleged efficiency, expediency
or integrity of the programs is put forward in justification.[15]

SECTION II

The Constitution and the
scope of judicial review

Separation of powers

2.17       As recognised some thirty years ago by the Commonwealth Administrative Review Committee (the Kerr Committee), the shape of our federal system of administrative law is very much the consequence of the regime established by
Parts I, II and III of the Constitution, particularly the concept of the separation of powers.[16] Constitutional considerations define not only the significance of judicial review, but also its limits.

2.18       A very important consequence of the separation of powers for the federal
administrative review system is that whereas in the review of administrative
decisions, the courts can exercise the judicial power of the Commonwealth,
administrative tribunals cannot.

The distinction between
merits and judicial review

2.19       The judicial review powers vested in the courts are complementary to but distinct from the administrative review powers vested in Commonwealth merits review tribunals. Even though in making decisions, a merits review tribunal may be required to form opinions on questions of law, some of which may be complex and untested by the courts, ultimately, the determination of such questions is an
exercise of federal judicial power and must be made by the courts. In reaching
their determinations, the courts are not required to have regard to the
interpretation placed on the law by tribunals.

2.20       The difference between merits and judicial review is commonly stated in terms of merits review enabling the review of all aspects of a decision including
findings as to facts and the exercise of any discretions that may have been
conferred on the decision-maker, whereas judicial review is concerned only with
whether or not the decision was lawfully made.

2.21       A merits review body will ‘stand in the shoes’ of the primary decision-maker and will make a fresh decision based on all the information available to it.[17] Whereas the object of merits review is to ensure that ‘the correct or
preferable’ decision is made on the material before the decision-maker,[18]
judicial review is directed towards ensuring that the decision made by the
primary decision-maker was properly made within the legal limits of the
relevant power.

2.22       In response to the constitutional divide between judicial and executive power, the courts have shown themselves concerned, on many occasions, to acknowledge and to maintain the margins between judicial and merits review.

2.23       As noted by Brennan J in Quin’s case:

If the courts were to assume a jurisdiction to review
administrative acts or decisions which are unfair in the opinion of the court –
not the product of procedural unfairness, but unfair on the merits – the courts
would be assuming a jurisdiction to do the very thing which is to be done by
the repository of an administrative power, namely, choosing among the courses
of action upon which reasonable minds might differ…If judicial review were to
trespass on the exercise of administrative power, it would put its own
legitimacy at risk.[19]

2.24       Similar views were subsequently expressed by four High Court judges in Minister for Immigration and Ethnic Affairs v Wu Shan Liang where it was also noted that:

…the reasons of an administrative decision-maker are meant
to inform and not to be scrutinised upon [by] over-zealous judicial review by
seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[20]

2.25       In a separate judgment in Wu Shan Liang’s case, Kirby J said that a decision-maker’s reasons ‘must be considered fairly’ and that:

It is erroneous to adopt a narrow approach, combing through
the words of the decision-maker with a fine appellate tooth comb, against the
prospect that a verbal slip will be found warranting the inference of an error
of law.[21]

2.26       Furthermore, it has been said that:

The process of administrative decision-making is often
quite different from the syllogistic process of judicial decision-making. In
the first place, judicial decision-making usually has only two basic elements:
law and fact …If the discretion or evaluation plays a part, the part is well
confined. No broad policy elements intrude. But policy is often an integral
part of administrative decision-making, denying the application of the
syllogistic method. A decision-maker who has mistaken a fact or made an error
in law may nevertheless make the correct or preferable decision if he
legitimately applies a policy wide enough to require the same decision whether
or not there be a mistake or an error of law. Some administrative action is
not based upon the existence of a fact but on the apprehension of the
possibility that the fact exists.[22]

Other constitutional
limits on the scope of judicial review?

2.27       From a constitutional perspective, beyond the issue of the dichotomy between judicial and legislative power, the Commonwealth Parliament has considerable power to limit persons obtaining remedies prohibiting or enforcing
administrative action.

2.28       Consistent with this view, it has been said that:

The proper balance between merits and judicial review is
ultimately a matter of legislative policy, subject of course to any
constitutional restrictions on the complete removal of judicial review. It is
for the government to determine whether to have any merits review of
administrative decisions, and if so, the appropriate number of levels or tiers
of merits review (whether internal or external). Within constitutional limits,
it is also open for the government to find ways to limit the availability and
scope of judicial review avenues, so as to place more emphasis on a merits
review process.[23]

2.29       Such limitations are of course subject to the ‘well recognised principle that the subject’s right of recourse to the court is not to be taken away except by
clear words’.[24]

2.30       As said by Gleeson CJ in S157/2002 v Commonwealth of Australia:

Section 75(v) of the Constitution confers upon this
Court, as part of its original jurisdiction, jurisdiction in all matters in
which a writ of mandamus, or prohibition, or an injunction, is sought against
an officer of the Commonwealth. It secures a basic element of the rule of law.
The jurisdiction of the Court to require officers of the Commonwealth to act
within the law cannot be taken away by Parliament. Within the limits of its
legislative capacity, which are themselves set by the Constitution, Parliament
may enact the law to which officers of the Commonwealth must conform. If the
law imposes a duty, mandamus may issue to compel performance of that duty. If
the law confers power or jurisdiction, prohibition may issue to prevent excess
of power or jurisdiction. An injunction may issue to restrain unlawful
behaviour. Parliament may create, and define, the duty, or the power, or the
jurisdiction, and determine the content of the law to be obeyed. But it cannot
deprive this Court of its constitutional jurisdiction to enforce the law so
enacted.[25]