PART V – PROPOSED CONSIDERATIONS IN DEVELOPING A GUIDE TO THE SCOPE OF JUDICIAL REVIEW
SECTION I
Proposed considerations
SECTION II
Consistency/predictability
A case study
The migration experience
Abuse of review process
Previous Council consideration
Resource-related issues
The executive perspective
The judicial perspective
Previous Council consideration
Contributing factors and responses
SECTION III
Nature of the decision
Policy and policy decisionsDecisions
related to the administration of justice
Decisions where there are ongoing relationships
Legislative decisions
Decisions made in urgent or emergency contexts
SECTION IV
Nature of the decision-maker
Status of the decision-maker
Expert decision-makers
Outside contractors
Government business
enterprises
Decisions by certain other
government bodies
SECTION V
Other
No impact on final decision
No injustice
SECTION I
Proposed considerations
5.1
Having regard to issues discussed in the preceding Parts of the
discussion paper, the following considerations have been identified as relevant
to the scope of judicial review:
·
Consistency/predictability
·
Resource-related issues:
Ø cost/volume;
Ø abuse
of process;
·
Nature of the decision:
Ø policy
and polycentric issues
Ø where
there are ongoing relationships
Ø legislative
matters
Ø matters
relating to the administration of justice; and
Ø the
urgency or emergency of the circumstances.
·
Nature of the decision-maker:
Ø status
Ø expertise
Ø being
an outside contractor
Ø government
business enterprises
Ø inter-governmental
bodies; and
Ø consultative
and advisory authorities dealing directly with the public.
·
Other:
Ø no
impact on final decision/no injustice.
·
Alternative remedies available.
Discussion point 7
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SECTION II
Consistency/predicability
5.2
It has been accepted that an underlying value of administrative justice
is consistency in administrative decision-making[1] and that there is a
potential for inconsistencies to develop if limits are placed on review.
5.3
Inconsistency and unpredictability in decision-making outcomes may
suggest unfairness, sometimes graphically, where there are fiscal implications
associated with decisions.
5.4
It has been said in that respect that the courts had a role in the
development of:
…coherent
and explicable legal principles which provide administrators, the public, and
their legal advisers, with clear guidelines whilst at the same time retaining
sufficient flexibility to allow an appropriate balance between the public and
private aspects of the public interest in the infinite variety of circumstances
that come before the courts.[2]
A case study
5.5
Parts XIA (The Repatriation Medical Authority) and XIB (Specialist
Medical Review Council)[3] were included in the Veterans’
Entitlements Act 1986 (the VEA) in response to concerns that the
interpretation given to section 120 of the Act (reasonable hypothesis linking a
veteran’s injury, disease or death with service) resulted in unmeritorious
pension claims and lack of consistency in decision-making.
5.6
Impetus was afforded for the amendments to the VEA by the decision of
the High Court in Bushell v Repatriation Commission where in considering
what medical-scientific evidence would support a reasonable hypothesis
connecting a veteran’s medical condition with service, Mason CJ, Deane and
McHugh JJ said inter alia:
…the case must be rare where it can be said that a
hypothesis, based on the raised facts, is unreasonable when it is put forward
by a medical practitioner who is eminent in the relevant field of knowledge.
Conflict with other medical opinions is not sufficient to reject a hypothesis
as unreasonable…But it is vital that the Commission keep in mind that that
hypothesis may still be reasonable although it is unproved and opposed to the
weight of informed opinion.[4]
5.7
In an Audit Report handed down in 1992 by the Australian National Audit
Office, it was observed that the approach adopted in Bushell would lead
to ‘the great majority of claims being accepted.’[5]
The Audit Report recommended a review of the compensation scheme for veterans
and their dependents. This review was subsequently undertaken by the Veteran’s
Compensation Review Committee chaired by Peter Baume.
5.8
In its 1994 report, A Fair Go, Report on Compensation for Veterans
and War Widows, the Committee recommended, amongst other things, that:
An independent, Expert Medical Committee be established to resolve
general medical issues and to formulate Statements of Principle for application
to all decision-making.[6]
5.9
The Repatriation Medical Authority (the RMA) had its origins in this
recommendation. It was proposed in the report that the Statements of Principle
would have legislative authority, would guide the process of determining
whether an injury was ‘predominantly war caused’ and would ensure consistent
standards in decision-making.[7]
5.10 Following
this report, in 1994, substantial amendments to the Veterans’ Entitlements Act
were presented to Parliament, including the inclusion of Parts XIA and XIB.[8]
In the explanatory memorandum to the legislation[9] it was stated that in
providing for the establishment of the RMA, the intention of the new Part XIA
was to ‘ensure a more equitable and consistent system of determining claims for
disability pensions for veterans and their dependents’.
5.11 The
role of the RMA is to determine Statements of Principles (SoPs) with respect to
injury, disease or death if it is of the view that sound medical-scientific
evidence exists indicating a link eligible Australian Defence Force service.
The SoP system is founded on the basis that a connection between service and
medical condition should be supported by established epidemiological evidence
accepted by the RMA, rather than by the expert medical evidence produced in an individual
application for pension.[10]
5.12 Pursuant
to an undertaking given by the Government of the day at the time of the passage
of the 1994 legislation, and reiterated by the successor to that Government, a
review was subsequently undertaken of the RMA and the SMRC. In the Report of
the Review Committee[11] it was said of the SOP
system that:
It provides a degree of certainty that is otherwise
absent. It provides a clear direction to claimants or their representatives as
to the evidence that must be gathered for the purpose of making a claim.
It overcomes the need to search for supporting medical
opinion.
It reduces the range of matters that are open to be
appealed which is overall beneficial not only in the public interest but in the
interest of individuals.[12]
5.13 Indeed,
the success of the Statement of Principles Scheme has been such that it is used
as a reference framework in other compensation jurisdictions including in some
overseas veterans administrations.
The migration experience
5.14 Consistency
and predicability have also been important factors in the migration area. In
relation to that legislation, there has been a particular focus on
uncertainties arising from the open-ended nature of the grounds of review. In
his second reading speech to the Migration Reform Act 1992, the then
Immigration Minister, the Hon Gerry Hand, stated that ‘the Government wishes to
make the application of the legal concepts of migration decision-making
predictable’.
5.15 More
recently, in his second reading speech to the Migration Legislation
Amendment (Procedural Fairness) Bill 2002, the Minister for Immigration and
Multicultural and Indigenous Affairs, the Hon Philip Ruddock MP, noted that one
of the reasons for the inclusion in the Migration Act by the Migration
Reform Act 1992 of the code of procedural fairness was to:
…replace the uncertain common law requirements of the
natural justice ‘hearing rule’, in particular, which had previously applied to
decision-makers.[13]
5.16 The
Minister noted that the Bill, made it expressly clear that codes in the
Migration Act ‘do exhaustively state the requirements of the natural justice or
procedural fairness hearing rule’.[14] This represented a
response to the decision of the High Court in Miah,[15]
where it was found that the code of procedure relating to visa applications had
not clearly and explicitly excluded common law natural justice requirements.
5.17 As a
result of the decision in Miah[16], even where the code was
followed in every respect there could still be ‘uncertainty about the legal
procedures which decision-makers are required to follow to make a lawful
decision’.
5.18 Such
developments are consistent with moves generally encouraged by the Productivity
Commission for the development of performance indicators which are specific,
clear and easily applied. This is seen as an aid to better decision-making
across public administration.[17]
Discussion point 8
5.19 The
foregoing discussion notwithstanding, the view may be taken that arguments for
legislative limitation of judicial review on the basis of considerations of
consistency and predicability in decision-making will not always be
convincing.
5.20 As
noted by Brennan J in Re Drake and Minister for Immigration and Ethnic
Affairs, ‘consistency is not preferable to justice’.[18]
It might also be said that consistency is not necessarily synonymous with
justice. In some instances, the desire for consistency and predicability can
override consideration of the implications of a decision in a particular case,
and lead to decisions that are unjust.
5.21 Where
practical technical expertise resides in a primary decision-making body, claims
for legislative limitations on judicial review may have some basis. Indeed, in
some situations, ‘review inhibitors’ such as those utilised in the veterans’
affairs area, may be thought to present an acceptable ‘limiting and limited’
solution both in the context of merits and judicial review especially in high
volume cases.
5.22 As
noted, establishment of the Veterans’ Affairs SoP system has been concluded to
be in the public interest.[19] In so far as the SoPs
relate to technical medical issues and their epidemiological connection with
events of service, often many years previously, however, they do not represent
the usual evidentiary issues associated with administrative decision-making.
5.23 Nevertheless,
the fact that consistency and predicability are values underlying judicial
review should not be overlooked. Courts have an important part to play in
maintaining consistency in the interpretation of legislative provisions,
particularly new provisions, and in the development of precedent.
5.24 In
the face of inconsistency and unpredictability, the cost of judicial review
both to government and the individual may also be a factor for consideration.
This is explored in more detail below.
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Abuse of review process
5.25 In
recent times, government has tended to place particular focus on ‘abuse’ as a
reason for limiting judicial review. However, what constitutes ‘abuse’ may be
difficult to identify.
5.26 In
his second reading speech to the Jurisdiction of Courts Legislation
Amendment Act 2000, the Attorney-General said:
The object is to avoid the use of unmeritorious delaying
tactics in the criminal justice process by removing the collateral access of
defendants to federal administrative law procedures and remedies.[20]
5.27 There
were also references in the debate of this legislation to the effect that:
Collateral attacks [lack] merits and are invariably only used
by defendants with deep pockets.[21]
5.28 In
the migration area, it has been remarked by the Minister for Immigration and
Multicultural Affairs, the Hon Philip Ruddock MP, that:
…litigation can be an end in itself. Given the importance
attached to permanent residence in Australia, there is a high incentive for
refused applicants to delay removal from Australia as long as possible. This
may be done to give time for them to establish ties within the community which
they may hope will yield entitlement to a visa through another pathway. The
incentive to delay removal from Australia is increased if the refused
applicants are enjoying privileges such as work rights and access to Medicare.[22]
5.29 Further:
One of the difficulties that we experience in this area – I
think the only other area that has been likened to it is the area in relation
to tax decisions – is that generally speaking when people access judicial
review or administrative review they do not achieve their immediate outcome.
…what if your principal intention is to enter Australia and
work here temporarily – in other words, if people are seeking access to Australia
merely as a guest worker? I have to say the people who lodge asylum claims or
who use the appeal system are very often people whose principal intention is to
be a guest worker, who has permission to work. …if they can delay
determination of decisions in relation to their status they can achieve what is
in fact their principal objective – the objective of being here and being able
to work for a period of time.[23]
5.30 Again
in the migration area, one of the arguments used to support passage of the Migration
Legislation Amendment Act (No 2) 2001, limiting class actions in the
migration jurisdiction, was said to be ‘to combat the recent increase in the use
of class actions…for people with no lawful authority to remain in Australia to
prolong their stay and frustrate removal action’.[24]
5.31 As
suggested elsewhere in this paper, similar concerns could well have been at the
root of the limitations on judicial review existing in relation to the review
of income tax assessments.
Previous Council
consideration
5.32 In
1986, in its 26th report, Review of the Administrative
Decisions (Judicial Review) Act 1977 – Stage One, the Council
concluded that:
…it is generally only correct to describe as abuses of the
Act those proceedings which are designed to delay or frustrate Commonwealth
administration (in a broad sense) merely in order to gain a tactical advantage
rather than to establish a genuine legal right or interest.[25]
5.33 In saying
this, the Council did not consider the existence of alternative remedies in the
face of high volumes of applications for judicial review to be indicative, in themselves,
of abuse of the administrative system.
5.34 The
Council noted further that abuse is not evidenced ‘by the mere fact that an
application for an order of review has been refused’. The Council noted in
this regard that ‘even unsuccessful proceedings under the Act ‘may involve real
questions, whether of fact or law or both, which justifiably require
adjudication and determination by a court in relation to which it is reasonable
to make an application under the Act.’[26]
5.35 The
Council also considered that the fact that proceedings under the AD(JR) Act may
have the consequence of delaying other proceedings already in train does not,
in itself, indicate an abuse of process.
5.36 In Review
of the Administrative Decisions (Judicial Review) Act 1977 – Stage One,
while noting that:
It would be highly undesirable if the Act were being used
unduly to frustrate or impede legitimate administrative action in an attempt to
obtain mere tactical advantage…[27]
the Council concluded that ‘many of the allegations about
‘abuses’ had been exaggerated’.[28]
5.37 Although
it found little evidence of such abuse, the Council considered that the
possibility of using the AD(JR) Act for the purpose of delay existed in
relation to the ongoing proceedings of tribunals such as the Australian
Broadcasting Tribunal and in an area such as taxation. However, in the end
result, the Council recommended amendment to the Act to extend and clarify the
Federal Court’s power to stay, or to refuse to grant an application under the AD(JR)
Act as the mechanism to control abuse of power.[29]
5.38 The
Council’s findings were subsequently endorsed by the Senate Legal and
Constitutional Affairs Committee in its consideration of the 1986
Administrative Decisions (Judicial Review) Amendment Bill 1986.[30]
5.39 The
Committee also acknowledged the view of the NSW Law Society that there was:
…great difficulty in appreciating the justification for
penalising individuals who are genuinely aggrieved by Commonwealth
administrative action by making it more difficult and expensive for them to
bring review proceedings because of perceived abuse of the AD(JR) Act … in
circumstances which are unlikely to recur. The injustice is compound[ed] by
the fact that individuals or corporations with vast resources [will still be
able to use other methods of judicial review]. [31]
Discussion point 9
5.40 Having
regard to the preceding discussion it would seem that identification of ‘abuse’
remains difficult and subjective. For instance, in relation to the Jurisdiction
of Courts Legislation Amendment Act 2000, the Government used no statistics
or examples to back up its claims that judicial review was being used in
collateral attacks on the criminal justice process.[32]
5.41 Obviously,
identification of what constitutes an abuse of process is not necessarily
reflected in the number of applications for review or in the numbers of
successful (or unsuccessful) applications.
5.42 Similarly,
high withdrawal rates for applications might be indicative of a desire to
ensure that time limits for applications are met rather than a desire to abuse
the system.
5.43 In
some areas, tax and migration for instance, it may be that there are
time-advantages in lodging an application for judicial review. Moreover, as
stated elsewhere in this paper, the constitutional separation of powers
principle makes judicial review imperative in relation to certain issues.
5.44 Undoubtedly,
although there are circumstances where some people may be attempting to delay
or frustrate administrative processes, there are others where they are not. In
such circumstances, applicants may be resorting to judicial review because they
genuinely believe that they have a grievance – that they were not afforded
procedural fairness or that there was a substantive error of law made in their
case, which is best dealt with by the courts.
5.45 Accordingly,
the view may be taken that ‘abuse’ should not readily be relied on by
government as a reason for limiting review in a particular area. By virtue of
the methods they employ and their necessary focus on the case at hand,
arguably, courts are better placed to identify ‘abuses’ in particular cases.
5.46 If
such ‘abuse’ is presented in the form of high volumes of cases and related
strains on financial and human resources, it may be something which government
should respond to.
5.47 In
view, however, of the fact that many applications may well be ‘genuine’, it is
suggested that if it decides to limit judicial review on this basis, it is
incumbent that there be an adequate alternative to judicial review.
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Resource-related issues
The
executive perspective
5.48 Resource-related
issues cover both financial cost and cost in terms of the use of personnel,
time and other resources. Concerns as to resources are often inextricably
linked to claims of abuse of process and may also frequently underlie concerns
as to consistency and predicability.
5.49 Concern
in this area has tended to focus on the cost to government and, through
government, to the public in general rather than to the individual. Overall
however, a balance must be achieved between:
…on the one hand, the need to provide individuals with a
means by which they may effectively obtain judicial review of the legality of
administrative action and, on the other hand, the need to rationalise and
ensure the proper use of existing review mechanisms, to keep costs to a minimum
and to protect public authorities from unwarranted legal action.[33]
5.50 At a
1987 administrative law seminar, the then Minister for Finance,
Senator Walsh, commented that the Australian system of administrative law is
based upon the belief that ‘perfect legislation backed up by a legal system can
deliver a perfect world’ and that this:
…implicitly assumes a world of unlimited resources in which
the cost of sustaining the ‘perfect’ legal system need not be, or even should
not be, taken into account.[34]
5.51 The
Minister also observed that ‘equity is provided for those who feel aggrieved by
decisions’ but at considerable cost to taxpayers who must pay for much more
complex and cumbersome administrative procedures than would otherwise be the
case’.[35]
5.52 Resource-related
issues were a factor alluded to by the current Attorney-General in the context
of the Jurisdiction of Courts Legislation Amendment Bill 2000:
…without reducing fairness or access to justice, the
expectation is that the transfer of jurisdiction [from the Federal Court] will
contribute to increased efficiency, and reduction of costly delays which may
otherwise result from access to court systems. [36]
5.53 Such
considerations also featured in the shaping of the review regime provided for
in the Public Service Act 1999. In a paper preceding the development of
the scheme, it was noted that:
At present there are too many avenues of appeal, resulting
in complicated and convoluted processes. The responsibility to afford public
servants a right of review of employment decisions needs to be balanced against
the need to reduce the costs associated with an appeals culture.[37]
5.54 In
relation to migration decisions, resource concerns have attracted bipartisan
support. In a submission to the Senate Legal and Constitutional Legislation
Committee in its consideration of the Migration Legislation Amendment
(Judicial Review) Bill 1998, former Immigration Minister, Mr Gerry Hand,
said that:
Throughout my time as Minister…I was concerned with the amount
of public resources consumed in judicial review processes which ultimately did
not alter the situation that the person was not entitled to remain in Australia.
These resources not only included the costs to the Department. They also
included the use of [scarce] legal aid funds on persons with no link to Australia
when Australian citizens and permanent residents were being denied legal aid
for legitimate grievances.[38]
5.55 In
the Explanatory Memorandum to the Migration Amendment (Judicial Review) Bill
2001, it is observed that, if they were to operate as predicted, the
amendments effected by the Bill to the Migration Act would, ‘by reducing the
issues to be addressed and allowing cases to be resolved more quickly, deliver
substantial savings.’ [emphasis added]
5.56 In
providing evidence in support of the earlier version of this legislation, the Migration
Legislation (Judicial Review) Bill 1998, the Department provided evidence
that the reforms were expected to deliver significant savings of up to 50% in
the Department’s legal costs, once the backlog and initial challenges to the
privative clause were dealt with.
The judicial perspective
5.57 Although
the evaluation of resource issues is a matter of particular concern to the
executive, the courts have not been oblivious to the pressures on primary
decision-makers to deal with large numbers of cases with the attendant costs
that that involves. Judicial consideration of such issues arises, inevitably,
however, in the context of individual hearings, particularly in the context of
the ground of procedural fairness.
5.58 As
discussed earlier, the nature and extent of cost considerations is not
generally amenable to assessment on a case by case basis. In one case,
however, the High Court was prepared, having regard to the size of the
administration and the volume of decision-making, to relax the requirement that
decisions should be made by statutory office holders.[39]
In another case, in concluding that there was no universal mandate for an oral
hearing by the delegate, the Federal Court had regard to the practical
implications of the prescription of particular procedures:
The court has no direct knowledge of the resource
implications of particular procedures, nor of the resources available to the
Department to implement them. Oral hearings by the ultimate decision-makers
could be provided for all applicants using the simple artifice of increasing
the number of person with appropriate delegations. However, it may be…such a
solution would also put the final decision-making responsibility in the hands
of more junior and less experienced officers than those who currently hold
delegations. In my opinion, courts should be reluctant to impose in the name of
procedural fairness detailed rules of practice, particularly in the area of high
volume decision-making involving significant use of public resources.[40]
5.59 There
are limits however to the extent to which such considerations can supplant
considerations going to the substance and quality of the decision-making
process.
5.60 While
Kirby P in Johns v Release on Licence Board[41]
looked at the financial costs involved in increasing the content of the hearing
rule for the Release on Licence Board, he noted that practical issues, such as
the staff shortages and accommodation, should not be factors limiting the
requirements of procedural fairness.
5.61 Although
noting the intention of the Code under the Migration Act to assist delegates in
the efficient and speedy resolution of the thousands of visa applications with
which they must deal each year, Kirby J in Minister for Immigration and
Multicultural Affairs: Ex parte Miah,[42] for example, was not
prepared to construe the Act so as to exclude the rules of procedural
fairness. In such circumstances, courts are bound to have regard to the rights
of the individual rather than broad-based issues of financial policy.
Previous Council
consideration
5.62 In
commenting on the volume of applications, in its first report in 1977, Administrative
Decisions (Judicial Review) Act 1977, Exclusions under Section 19-1978, the
Council responded to claims by some agencies that the AD(JR) Act would lead to
an opening of the ‘flood-gates’ for review by noting that if there was a
dramatic increase in the number of review applications an exclusion of that
area could be made quickly.
5.63 The
Council also noted that a high volume of litigation might be seen as evidence
that the Act was having a ‘salutary effect in checking the lawfulness which may
not otherwise be exposed.’
5.64 In
some areas, the Council noted that new legislation could raise difficult
questions for decision, resulting in an upsurge in the number of AD(JR) Act
challenges. The Council noted that this was followed frequently by a
slackening off once the Federal Court’s approach to the legislation begins to
emerge.[43]
Discussion point 10
5.65 Undoubtedly,
resource considerations are a legitimate concern of government and as such, may
have an important impact on the desirable scope of judicial review.
5.66 It
seems apparent, moreover, that the executive is best placed to assess the level
of resources it can allocate to a particular area of government
decision-making. In contrast, judges are not in a position to determine where
resources should be provided or how they should be apportioned. Such decisions
involve a range of issues and of knowledge.
5.67 In
this sense, such issues are polycentric,[44] involving consideration
of matters of which a court is unlikely to have knowledge or to be equipped to
act upon if it did. As the role of a court is to examine cases on an
individual basis, it would seem generally inappropriate for it to involve
itself in such broad-based considerations.
Contributing factors and responses
5.68 What
has emerged from this discussion and discussion of the related issue of abuse
of process is that there is a range of factors which may contribute to high
review costs in particular areas.
5.69 In
the Council’s view, there are a number of ways that such concerns could be
responded to other than through a reduction of judicial review rights.
New legislation
5.70 As
noted by the Council in its first report,[45] the passage of new
legislation or amendments to existing legislation may encourage an initial
‘rash’ of cases ‘testing out the waters’. This will undoubtedly lessen as the
parameters of the new or amending legislation are established and training and
procedures are put in place.
5.71 In
such circumstances, it may be considered that the courts have an important
interpretative role to play and a role in achieving the consistency of approach
referred to in the preceding section: only a court can offer a final and
authoritative interpretation of a piece of legislation. Attempts to reduce
litigation by legislative means may be regarded as both unnecessary and
inappropriate.
Referral of cases by the court
5.72 Failure
of the Federal Court in many instances to make adequate use of its
discretionary power under paragraph 10(2)(b)(ii) of the AD(JR) Act to refuse an
application where other ‘adequate’ avenues of review exist can, for instance,
place pressures on the system.[46]
Standards of primary decision-making
5.73 Poor
quality decision-making may also, of course, encourage applicants to circumvent
internal or tribunal review procedures in favour of judicial review. Again,
the answer is clearly not to limit the scope of judicial review, but to address
decision-making problems at agency and tribunal levels.
5.74 In
some cases, strategies might be needed to improve the standard of primary
decision-making. In other areas, extended and improved alternative review
mechanisms might need to be developed.
Adequate alternatives
5.75 Where
adequate alternative remedies are not in place, they might need to be
established. Where such remedies are in place, the courts might need to be
encouraged to refer cases to them. In some cases, a combination of all or some
of these options might apply.
5.76 Where
an ‘adequate’ alternative review structure is provided, it is arguable that
legislative limits on judicial review are justified. However, where the
provision of adequate alternative remedies is accompanied by active referral by
the courts of appropriate cases to the alternative system, then it is equally
arguable that legislative limitation of judicial review is unnecessary.
5.77 In
the context of adequate alternative remedies however, one of the features of
the constitutional separation of powers doctrine is that tribunals can not make
final binding and authoritative decisions. While this system prevails, use of
the courts for judicial review is inevitable (and of discernible value).
Access to legal aid/ avoidance of undesirable
consequences
5.78 Other
factors contributing to large volumes of judicial review cases might include
easy access to legal aid as in the veterans’ entitlements area, or the desire
to exploit the legal process to avoid an undesirable consequence, such as deportation,
in the migration or criminal areas.
5.79 The
first of these examples, high levels of legal aid, is an issue which the
government is best placed to address, though not, it is submitted, through
limitations on the scope of judicial review.
5.80 Response
to the second example might include seeking to reduce the open-textured nature
of some legislative decision-making provisions and (with greater difficulty),
international conventions.
5.81 Relevantly,
in the taxation area where there might also be advantage in delay, measures
have been taken legislatively to replace the judicial review regime with a
comprehensive tiered review scheme capped ultimately, in most cases, with a
right of appeal.
5.82 If
the conclusion is reached that there is no other way to bring costs into line
than by imposing restrictions on judicial review, in addressing the issue, the
preferable approach may be for parliament to use a fine-tuned legislative
instrument, for example, by specifically identifying which decisions are
reviewable.
5.83 If
it is possible to retain some elements of review having regard to the potential
of some grounds of review to attract greater cost responses than others,[47]
then, arguably, this distinction should be made. In any event, to maintain
government accountability and to ensure the protection of individual rights,
judicial review should only be replaced if there is an adequate alternative
review mechanism: the rights of the individual applicant should not be
manifestly reduced. Consideration later in the discussion paper with regard to
adequate alternative remedies is relevant in this regard.
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SECTION III
The nature of the
decision
Policy
and policy decisions
5.84 Policy
has been described as ‘the process by which governments translate their
political vision into programs and actions to deliver “outcomes” – the desired
outcomes in the real world.’[48] Such policy, often
referred to as ‘government policy’, may be expressed, though not always, by way
of government or ministerial statement, and has an expansive rather than a
limited application.[49]
5.85 At
another level, policy may be employed as a rule or guide for deciding when and
what action may or may not be taken in the exercise of a statutory discretion.[50]
This sort of policy may take a variety of forms – from official departmental
publications providing statements of objectives to detailed guidelines or
instructions to unofficial expressions of opinion by public servants. In the
absence of any such statement or policy, a course of action may also be
developed and followed over a period of time. Many such “policies” do not have
ministerial or government endorsement, may not be readily categorised in terms
of broad-based government policy and may amount to little more than statements
of objective, or opinions offered by individual agency officials as to what
legislation means.[51]
The importance of policy in
government decision-making
5.86 Development
of government policy is commonly regarded as a function of government ‘for
which it is publicly and politically accountable, and an elected government can
rightfully expect that its policies will be carried into effect by the
executive arm of government’.[52]
5.87 The
importance attached by the government to the awareness and responsiveness of
administrators to government policy is reflected in the Australian Public
Service Values set out in the Public Service Act 1999, which require
that:
the APS [be] responsive to the Government in providing
frank, honest, comprehensive, accurate and timely advice and in implementing
the Government’s policies and programs.[53]
5.88 The
prominence afforded to policy is also reflected in the imposition on directors
of statutory authorities and government companies by the Commonwealth
Authorities and Companies Act 1997 of an obligation to ensure that any
‘general policies of the Commonwealth Government’ notified in writing by a
Minister to the directors ‘are carried out’ in relation to’ the authority or
company.[54]
5.89 A number
of other Commonwealth statutes also encourage administrative regard to
government policy, some providing for Ministerial direction where in the
performance of its functions and the exercise of its powers, a body is ‘in
conflict with major government policies’.[55] Other legislation
requires compliance with policies of the Commonwealth Government of which
written notice is given.[56]
5.90 Under
section 78AB of the Income Tax Assessment Act 1936, in considering
whether to give a direction for the registration of a certified body on the
Register of Environmental Organisations, the Environment Minister and the
Treasurer are ‘required to take into account ‘the policies and budgetary
priorities of the Commonwealth Government’. Similarly, in making a decision
under Division 396 (Land Transport Facilities Borrowing), the Minister for
Transport and Regional Development is to take account of, amongst other things,
‘the extent to which the project conforms to Commonwealth and State government
policies and planning requirements’.[57]
5.91 The
way in which they handle policy in their decision-making processes represents a
fundamental distinction between primary decision-makers, tribunals and courts.
Policy is often an integral part of administrative decision-making. It may
mean that a decision is correct notwithstanding a mistake of fact or an
apprehension of the possibility of a fact existing. Even though not included
in a statute or regulation, it may dictate what is material in a particular
case. It may also reverse the onus of proof for example.[58]
Policy decisions
5.92 Most
administrative decisions will have at their root some policy pronouncement of
government. Such elements usually overlap with other matters such as the view
taken by the decision-maker of the law or upon factual matters or the conduct
of the decision-maker vis à vis the applicant.
In practice it would be extremely difficult for the courts
to isolate and to ignore policy elements whilst otherwise examining decisions
for substantive unfairness and unreasonableness.[59]
5.93 There
are some decisions, however, where policy is a critical element, either because
there is no pre-existing policy, or where the subject matter of the decision
is, in itself, reflective of high government policy. Some decisions, such as
those relating to international relations and national security may, by virtue
of their nature, be considered to relate to higher policy issues than others.[60]
Exceptions to judicial review of
certain sorts of policy decisions
5.94 In
the reports of both the Kerr[61] and Ellicott[62]
Committees, exceptions to the jurisdiction of the proposed Administrative Court
were contemplated. Both committees recommended that policy decisions of
government ministers be excluded from judicial review,[63]
the Ellicott Committee observing that:
There may…be some discretions exercised by Ministers which
ought not be subjected to a general system of judicial review because their
policy content or other special reasons make this undesirable in the public
interest. In some cases it will be found that procedures for review and
perhaps judicial review, are already available. Discretions which, in our view,
might be excluded would include some relating to defence, national security,
relations with other countries, criminal investigation, the administration of
justice and the public service.[64]
5.95 The
limitations referred to by the Committee appear to reflect those formerly
associated with the exercise of prerogative power and more recently, with court
consideration of whether or not a matter before it is justiciable, that is to
say, whether or not it is a matter upon which the court can, or considers it
appropriate that it should adjudicate.
5.96 The
words of Brennan J of the United States Supreme Court in the decision of Baker
v Carr are pertinent in this regard:
…the courts are not fit instruments of decisions where what
is essentially at stake is the composition of those large contests of policy
traditionally fought out in non-judicial forums, by which governments and the
actions of governments are made and unmade.[65]
5.97 In
summary, such decisions commonly include:
·
decisions
relating to foreign affairs[66] (such as a decision to
implement[67] or to enter into a
treaty)[68]
·
decisions
relating to national security
·
decisions to
prosecute or not to prosecute
·
decisions
relating to granting pardons to convicted persons;[69]
and
·
decisions to
appoint judicial officers.[70]
5.98 In
its 1999 publication What Decisions Should be Subject to Merits Review? the
Council also added to this grouping decisions affecting
the Australian economy. Included in this category were decisions of such
fundamental significance as determining interest rates; floating the dollar;
allocation of money to one program over another; and, setting foreign exchange
rates. However, it was considered that a decision of a Minister to
approve a body corporate as a stock exchange may not be of sufficiently high
political content to warrant exclusion from judicial review.[71]
5.99 Similarly
with decisions in relation to matters of defence. In 1989 in its 32nd
report, Review of the Administrative Decisions (Judicial Review) Act: The
Ambit of the Act, the Council took the view that though they might well be
susceptible to review under the AD(JR) Act, decisions deriving from the command
power in section 7 of the Defence Act 1908 might well not be
justiciable.
5.100 It has been said that the
underlying rationale for the exemption from review of decisions in these areas
rests with essentially practical considerations, such as the importance of
speaking with a single voice in relation to matters of international relations, [72]
and in achieving finality and immediate obedience in relation to the
declaration or cessation of war or the deployment of forces.[73]
5.101 Under Schedule I to the AD(JR)
Act there are also exclusions from review of a range of legislation coming
broadly within these subject groupings.
5.102 Policy may also be political
in the sense of being controversial: however, as observed by Kirby J:
…the mere involvement of a political or controversial
question does not mean that a court lacks jurisdiction, that a controversy is
not a ‘matter’ for the purpose of the Constitution, that a cause of action
lacks viability or that the issue tendered is non-justiciable.[74]
5.103 A distinction may also be
drawn between a decision that is ‘essentially political’ and one that is
‘policy driven’.[75]
5.104 As also noted by Dixon J at
a somewhat earlier date, noting that exemptions for policy can be overstated:
The Constitution is a political instrument. It deals with
government and governmental powers. The statement is, therefore, easy to make
though it has special plausibility. But it is really meaningless. It is not a
question whether the considerations are political, for nearly every
consideration arising from the Constitution can be so described.[76]
5.105 The decision in R v
Secretary of State for the Home Department, ex parte Bentley,[77]
is authority for the proposition that the courts cannot simply be ousted by the
high policy nature of a decision:
The question is simply whether the nature and subject
matter of the decision is amenable to the judicial process. Are the courts
qualified to deal with the matter or does the decision involve such questions
of policy that they should not intrude because they are ill equipped to do
so?…If, for example, it was clear that the Home Secretary had refused to pardon
someone solely on the grounds of their sex, race or religion, the courts would
be expected to interfere and, in our judgment, would be entitled to do so.[78]
5.106 It has also been recognised
that:
The question in a particular case may not seriously
implicate considerations of finality – e.g. a public program of importance
(rent control) yet not central to the emergency effort. Further, clearly
definable criteria for decision [sic] may be available. In such case the
political question barrier falls away: ‘[A] Court is not at liberty to shut its
eyes to an obvious mistake, when the validity of the law depends upon the truth
of what is declared…[It can] inquire into whether the exigency still existed
upon which the continued operation of the law depended.’[79]
5.107 This approach appears
equally applicable in Australia. In Re Ditfort[80]
for example, Gummow J reached the conclusion that it is incorrect to assume
that every case touching on foreign affairs lies beyond judicial
consideration.
5.108 Moreover, where government
is administrating schemes within statutory limits set by parliament, the courts
will enquire whether government is doing properly what it has authority to do.[81]
Circumstances of the individual
5.109 In some situations, policy
decisions may have a particular import for certain individuals. In those
situations:
Despite the courts’ general reluctance to review policy,
particularly at an abstract level, there are cases where the critical question
is whether the established policy should be applied to an individual in
particular circumstances or what weight should be given to policy, along with
other relevant factors. Judicial review may be available in some of these
cases. In some instances where the critical question relates to the
application of policy, it is possible not to apply the policy without
prejudicing the objects which the policy is designed to achieve.[82]
5.110 Pronouncements of the Court
in relation to the treatment of cabinet decisions are also relevant and take
the concept of exception a degree further. For instance, in O’Shea’s
case, while basing his decision on procedural fairness, Mason CJ recognised
that cabinet may be involved in two different types of decisions – political
policy decisions not open to judicial review and decisions more closely related
to justice to the individual than with political, social and economic concerns.[83]
5.111 According to Sir Anthony
Mason in his reasoning in this case:
I thought that although Cabinet is primarily a political
institution concerned with political, economic and social concerns, it might be
called upon to decide questions more closely concerned with justice to the
individual when a duty to act fairly could arise.[84]
5.112 The courts have also sought
to identify cases in which there is a legitimate expectation of some form of
redress. In FAI v Winneke[85] for example, it was held
that the decision of the government, including the Governor acting on the
advice of Ministers concerning a particular company, was reviewable where it
dealt with matters that might be subject to a legitimate expectation. Such an
expectation would arise from the nature of the decision: it might also arise
from the existence of a regular practice which the affected person might
reasonably expect to continue.[86]
5.113 However:
The considerations by reference to which the reasonableness
of a policy may be determined are rarely judicially manageable. For this
reason, the court is slow to intervene when injustice has been done to
individual rights by what may appear to be an unjust policy.[87]
5.114 In conclusion, it has been
said that:
On the authorities, the true test may well be: is the
particular function appropriate for a court in the sense that the issues can be
resolved by the application of legal principles and judicially manageable
criteria and standards? If so, some functions involving policy may be
inappropriate, others not so. If policy is to be dealt with according to
judicial method, informing the formulation of principles to be applied to the
case in hand, that is one thing, but if the court is required to deal with
policy at large, then the function is non-judicial.[88]
Previous Council consideration
5.115 In response to arguments
that decisions should be excluded from review on the basis of their policy
nature, the Council noted in its first report, Administrative Decisions
(Judicial Review) Act 1977, Exclusions Under Section 19, – 1978
that:
The Court is not concerned with Government policy except to
the extent to which it produces an unlawful administrative decision. In this
respect the powers of the Federal Court under the Act are no different from
those of the High Court. Accordingly, the presence of large elements of policy
in the making of a class of decision is not a ground for exclusion from the Act.[89]
5.116 In its more recent
publication What Decisions Should be Subject to Merits Review? the
Council restated this view:
The fact that a decision-making power may be exercised by
reference to a policy does not, in itself, exclude from review a decision made
under the power.[90]
5.117 An exemption from merits
review is recognised however for what are categorised as decisions with a high
political content:
This exception relates to decisions that involve the
consideration of issues of the highest consequence to the Government. Only
rarely will decision-making powers fall within this exception, and it is
unlikely that a decision-making power not personally vested in a Minister would
suffice.[91]
5.118 The Council noted though,
that even where the high political content exception applies, in some areas, it
will only apply to a few of the total number of decisions made under a
decision-making power.[92] The Council therefore
considered it preferable for a decision made under such a power to be subject
to merits review with an exclusion mechanism in place to cover those decisions
falling within the exception.[93]
Discussion point 11
General treatment
5.119 It is suggested that in the
majority of cases where ‘low level’ policy is involved, there is no difficulty
in a court reviewing a decision made in the application of pre-existing
policy. Where the decision-maker has misconstrued the policy, the decision may
be set aside for failure to take account of relevant circumstances, that is,
the policy.
5.120 The court may also consider
whether in the application of policy, the decision-maker has had regard to the
facts of the particular case, or has reached an unreasonable conclusion or has
altered the policy to dictate the outcome rather than considering the special
or particular circumstances of the case.
5.121 In a case where an executive
decision-maker has specified criteria in a policy statement which is consistent
with the statute and is not unreasonable, a decision ignoring the criteria will
be prima facie bad. Similarly, a decision which fails in a particular case to
recognise that policy criteria are satisfied may be considered unreasonable.
5.122 Where there is no existing
policy, it is largely for the decision-maker to determine which matters he or
she considers material.[94] Where the
decision is a one off decision, greater restraint should be exercised, but
there seems no basis, beyond that, to seek to limit judicial review.
High policy
5.123 In areas of high policy,
different considerations apply. While high policy may be a factor justifying
exclusion of merits review in some cases[95] different
considerations would apply in relation to judicial review. It may not be
appropriate, in view of their subjectivity and quite often, their
polycentricity, for a court to undertake judicial review of such decisions on the
basis of grounds such as unreasonableness or irrelevant considerations. Where
an application is made to the court on the basis of an error of law, however,
or an abuse of power, there would seem no reason to restrict judicial review.
Notwithstanding the ‘high policy’ element, it is still appropriate that the
repository of that power (i.e. the decision-maker) exercise that power
according to the law.
5.124 In those few cases where
judicial review may not be appropriate, it may be argued that adoption of judicial
concepts of justiciability and deference are more appropriate ways to achieve
the correct balance between policy development and judicial review than the
exclusion of certain policy decisions from the scope of judicial review by way
of legislation.
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Decisions related to the administration of justice
What are
decisions related to the administration of justice?
5.125 Decisions falling within
this category include those relating to investigation, arrest, prosecution,
bail, summary trial, committal, the filing of a nolle prosequi,
indictment, appeal and parole.
5.126 Opinion appears to be
divided on the interaction of judicial review with the decision-making processes
of the criminal justice system. Some point to the beneficial influence on the
latter system of concepts of reasonableness and accountability. Others have
raised concern at the encroachment of judicial review on the area of criminal
administration and expertise. [96]
5.127 Exemptions currently exist
in Schedule 1 to the AD(JR) Act for:
(r) decisions under the Extradition
Act 1988;
(w) decisions under the Witness
Protection Act 1994;
(x) decisions
under subsection 60A(2B) of the Australian Federal Police Act 1979;
(xa) decisions
to prosecute persons for any offence against a law of the Commonwealth, a State
or a Territory.
5.128 Arguments advanced in 1978
for exclusion of such decisions from review at the time of the writing of the
Council’s first report, Administrative Decisions (Judicial Review) Act 1977,
Exclusions under Section 19, included:
·
the Act may be used to hamper and frustrate the proper
investigation and prosecution of offences
·
the obligation to give reasons may necessitate the premature
disclosure of information to the prejudice of an investigation
·
there are adequate existing safeguards established to strike the
right balance between the law enforcement agencies and the citizen
·
it is inappropriate to subject law enforcement officers who are
engaged in criminal investigation and prosecution to the obligations of the
Act, particularly the obligation to give reasons; and
·
most of the decisions lead to the matter being brought before a
court and there are extensive appellate processes.[97]
5.129 With respect to exemptions
from judicial review provided for in the Financial Transactions Reports Act
1993 and the Witness Protection Act 1994, the Government was
motivated, respectively, by concerns that criminal investigations could be
compromised, and for maintenance of the integrity of the program. In the
context of the Witness Protection Act 1994, in responding to inquiries
from the Scrutiny of Bills Committee, the then Minister for Justice said:
…the decision to exclude the operation of the AD(JR) Act
was not taken lightly. It was done only after ensuring that there were
internal review mechanisms…[the exemptions] are all designed to protect the
integrity of the [program]. The importance of ensuring the safety of
witnesses, their relatives and the AFP officers means that information must be
subject to strict safeguards.[98]
5.130 The Committee accepted this
argument.
5.131 More recently, arguments for
and against exclusions in this area have arisen in the context of the Jurisdiction
of Courts Legislation Amendment Act 2000. Schedule 2 to this Act:
·
removes the right of the defendant to challenge the decision to
prosecute under both the AD(JR) Act, the Judiciary Act 1903 and the Corporations
Act 1989
·
suppresses rights to review of other pre-trial decisions once the
prosecution is brought to court, and until the trial and any subsequent appeals
are completed;[99] and
·
channels much of the remaining jurisdiction from the Federal to
State and Territory courts.[100]
5.132 The reason for the
amendments, according to the Attorney-General in his second reading speech, was
‘to avoid the use of unmeritorious delaying tactics in the criminal justice
process by removing the collateral access of defendants to federal
administrative law procedures and remedies’.[101] In his response to the
Senate Scrutiny of Bills Committee, the Attorney-General suggested that
judicial review was ‘frequently’ a stalling tactic.[102]
He also noted in debate of the Bill that ‘collateral attacks’ generally lack
merit and are ‘invariably used only by defendants with deep pockets’.[103]
5.133 Other arguments for the
exclusion from review of such decisions included:
·
to avoid fragmentation of proceedings between courts at different
tiers of the federation
·
to reduce cost and delay, and the consequential damage caused by
delay to the prosecution case
·
that defendants still have recourse to relief by way of section
75(v) of the Constitution and to review either side of the prosecution
proceedings
·
that the criminal courts themselves provide safeguards through
the discretion to deny admissibility to prejudicial evidence, the grant of
permanent stays to prevent an abuse of process and the appeal system; and
·
that the amendments place defendants in Commonwealth prosecutions
in essentially the same situation as their State counterparts.
5.134 The position of the courts
is that they will only ordinarily interfere with the processes of criminal
justice by way of judicial review in exceptional circumstances.[104]
This applies equally to committal proceedings, issuing a warrant, deciding to
prosecute or arresting a suspect. In Barton v The Queen[105]
for instance, the High Court decided that an exercise by the Attorney-General
of the power to present an ex officio indictment is non justiciable.
The court also noted that there was well established English authority that the
prerogative powers to enter a nolle prosequi and to grant or refuse a fiat in
connection with a relator action, are not justiciable. Clearly, policy
considerations support this view. It would be undesirable for the courts to
become closely involved in the question whether a prosecution should be
commenced, when ultimately, it would be the task of the courts to determine the
accused’s guilt or innocence.
5.135 However, in Barton’s case,
Gibbs ACJ and Mason J held that where there was a suggestion of abuse of
process, the court would stay a prosecution brought without reasonable ground,
at least until a preliminary examination took place – where antecedent
committal proceedings were dispensed with, a trial in their absence ‘unless
justified on strong and powerful grounds, must necessarily be considered
unfair’.[106] The courts should not
abdicate to the Attorney-General or the Crown prosecutor their function of
deciding ‘where on balance the interests of justice lie’.[107]
5.136 Relevant factors for the
courts have been said to include:
·
that the courts should not be seen to stand too close to the
executive decision to prosecute
·
that there is strong public interest in the expeditious
completion of criminal matters; and
·
fragmentation of proceedings between State and Federal courts
should be avoided wherever possible.[108]
5.137 In the Federal Court case of
Crane v Gething,[109] French J reaffirmed the
general principles of judicial restraint subject to exceptions in appropriate
cases. In his view, success would be most likely in cases involving a pure
question of law with no factual elements, where, though investigation has
commenced, no proceedings are pending.
5.138 This generally cautious
approach on the part of Australian courts may be contrasted with that in the UK
where an application may always be pursued for the judicial review of a
decision made by a magistrate or magistrates court. In one case for example,
an order for certiorari by way of judicial review was granted to quash a
conviction by a magistrate’s court on the ground that there had been a denial
of procedural fairness arising from the prosecutor’s failure to disclose to the
court and the defence the existence of witnesses who could have given evidence
favourable to the defence.[110] In another case, it
was held that the sentence was so far outside the normal discretionary limits
as to enable the reviewing court to say that its imposition must involve an
error of law of some description even though it might not be evident at once
what was the precise nature of that error.[111]
Previous Council consideration
5.139 In its first Report, Administrative
Decisions (Judicial Review) Act 1977, Exclusions Under Section 19 – 1978,
the Council’s majority recommendation was that all decisions relating to the
administration of criminal justice (including the investigation, arrest,
prosecution, bail, summary trial, committal, decision to file a nolle
prosequi, indictment, appeal and parole of persons for any offence against
a law of the Commonwealth) other than:
·
appointments of investigators and inspectors under statutory
powers
·
the issue of search warrants and analogous warrants under the Customs
Act 1901 and other legislation; and
·
decisions to require the production of documents, the giving of
information and the summoning of persons as witnesses, be excluded from review
under the AD(JR) Act.
5.140 The Council has said
subsequently, in relation to a proposal to exclude committal proceedings from
the AD(JR) Act, that certain questions are more appropriately resolved in a judicial
review context by a court with specialist expertise in that area and that
defendants should not have to wait for trial to get an answer, for instance,
with respect to the jurisdiction of a magistrate to conduct a committal
hearing.[112]
5.141 In 1993, in a letter to the
Standing Committee on Legal and Constitutional Affairs about exemptions from
the Financial Transaction Reports Act 1988 (the FTRA), the Council took
the view that decisions under that Act should not be exempted from judicial
review.[113] In response to
concerns from the Attorney-General’s Department that criminal investigations
could be compromised if statements of reasons for decisions were required, the
Council referred to recommendations made in its 33rd report in 1991,
Review of the Administrative Decisions (Judicial Review) Act: Statement of
Reasons for Decisions, that section 13A(1) of the Act should be amended to
provide that information should not be revealed if it would ‘disclose or enable
a person to ascertain, the existence or identity of a confidential source of
information in relation to the enforcement or administration of the law’. The
Council recommended that this amendment should be expanded to cover decisions
under the FTRA.
5.142 In 1999, in What
Decisions Should be Subject to Merits Review?, the Council broadly endorsed
the approach taken in its first report in 1978 report, noting that:
Decisions of a law enforcement nature, including decisions
relating to investigations, should not be made subject to merits review. If
review of such decisions was available, both the investigation of possible
breaches and the subsequent enforcement of the law could be jeopardised.[114]
5.143 The Council gives as
examples decisions to place people on the Witness Protection Program, and
decisions that involve prosecutorial discretions, including whether the person
concerned would be a valuable or useful witness. The Council notes, however,
that a decision to remove someone from the Program would not be of the same
quality as it would deprive the person concerned of an expectation of security
and should be subject to merits review.[115]
5.144 Having regard to the
preceding discussion, it may be that where adequate alternative remedies exist
in the criminal justice system, judicial review can be dispensed with.
5.145 However, where personal
security is not an issue, where adequate alternative remedies do not exist in
the criminal justice system, and where the judicial review system can offer
protection to individual rights, then it might be that review should be
available. Arguably, the matter is one which would be better determined at the
judicial than the governmental level, on a case by case basis, rather than
through the imposition, legislatively, of a total ban on access to judicial
review or for specified periods.
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Decisions where there are
ongoing relationships
5.146 As reflected in extrinsic
material surrounding the passage through Parliament of the Public Service
Act 1999, one of the major objectives of the review structure provided for
in that legislation was to reduce the complexities and the legalism of
previously existing review structures.
5.147 Consistent with this, the
Public Service Act reflects an emphasis upon harmonisation and alternative
means of resolving workplace disputes. Though decided well before the passage
of the current legislation, the approach is reflected in the decision in Ansell
v Wells.[116] In that case, in
determining the parameters of natural justice, it was said by the court that:
The procedures of the Promotions Appeals Committees, by
applying statutory standards of relative efficiency and seniority in respect of
officers of the Public Service, should be designed to ensure fairness to all
concerned, but with the aim of fostering harmonious relations between fellow
officers who must work or continue to work together and not of promoting
discord between them.[117]
5.148 Arguably, the values saved
by resort to legal action can rarely outweigh the damage to efficient
administration, particularly where there are only marginal differences in merit
between the candidates for promotion.
5.149 There may be some
justification for limiting the right to be heard in employment-related cases,
particularly where the attributes of various members of staff are being
compared in a critical fashion.
5.150 Similarly, in the case of
grounds such as unreasonableness and irrelevant considerations, the subjective
nature of the process necessary to arrive at a conclusion may outweigh the
benefits of judicial review. However, it is more difficult to argue that
judicial review should be limited in cases where errors of law are in issue.
As against all grounds of review, however, the existence of adequate
alternative remedies and dispute resolution strategies would seem to be a
significant factor in limiting judicial review rights.
5.151 The emphasis upon informal
dispute resolution mechanisms and access to the specialist Merit Protection and
Review Commission (at least for a full merits review hearing) under the Public
Service Act 1999 is noted in this regard.
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Legislative decisions
Introduction
5.152 Although there may be some
overlap of judicial, executive and administrative powers,[118]
‘the primary characteristic of the activities of administrators in relation to
legislation is to maintain and execute those laws’.[119]
5.153 However, legislative power
may be delegated by the parliament to the executive subject to some measure of
parliamentary control. This is most often achieved by way of placing
regulation-making power in the Governor-General in Council.
5.154 Subject to parliamentary
control by way of disallowance, legislative power may also be given to other
designated persons, for instance Ministers of State. It is in relation to this
sort of power that issues arise as to the appropriateness, extent and nature of
judicial review.
What are legislative decisions?
5.155 In the United Kingdom, it
has been said that where a provision or rule is of general application, it is
likely to be legislative in character, whereas, where it prescribes the
application of a general rule to a particular situation, it is likely to be
administrative.[120]
5.156 In Australia, it has been
held that a legislative decision is one involving making new rules of general
application, that is, applying to the public at large or a defined section of
the public, for example, all nursing homes.[121] The classic statement
of the distinction is that of Latham CJ in Commonwealth v Grunseit:
The general distinction between legislation and the
execution of legislation is that legislation determines the content of a law as
a rule of conduct or a declaration as to power, right or duty, whereas
executive authority applies the law in particular cases.[122]
5.157 Exceptions to this rule are
rare.[123]
5.158 Consistent with this, in its
35th report in 1992, Rule Making by Commonwealth Agencies,
the Council considered legislative decisions to:
·
have the effect of changing or determining the content of the
law, rather than applying it
·
be binding on the executive, rather than merely guidelines; and
·
be of general application and not directed at a particular case.[124]
5.159 This notwithstanding, as
recognised by Gibbs CJ in the Bread Manufacturers of NSW v
Evans,[125] the distinction between
legislative and administrative decisions, while easy to state, is difficult to
apply. In that case, which involved a challenge to the validity of an order
made by the Prices Commission under the Price Regulation Act 1948
concerning the sale-price of bread or bread products in NSW, His Honour said
that:
The distinction between powers of an executive and those of
an legislative nature is a fine one and opinions may easily differ on the
question.[126]
5.160 The difficulty of
delineating the three major spheres of government was first noted by the UK
Donoughmore Commission in 1932.[127] It would also seem
that the requirement to publish the order or decision and provision that it be
subject to judicial scrutiny by the parliament may be indicative of the
legislative status of a determination. However, publication in the
Commonwealth Gazette or the right of veto by the relevant Minister is
not sufficient.[128]
5.161 In the case of Queensland
Medical Laboratories v Blewett, Gummow J also indicated that there were
difficulties with the principle, noting that it was not an essential attribute
of a ‘law’ that it formulate a rule of general application.[129]
On that basis, he suggested that:
…it is difficult to see how a sufficient distinction
between legislative and administrative acts is that between the creation or
formulation of new rules of law having general application and the application
of those general rules to particular cases.[130]
5.162 In a Federal Court case, Aerolineas
Argentinas & Ors v Federal Airports Corporation,[131]
the Court undertook an analysis of the character of a determination under
section 56 of the Federal Airports Corporation Act 1986 imposing
security charges for large aircraft landing at major city airports in Australia
from the date of their imposition until December 1993. In that case, it was
held that the determination was administrative rather than legislative in
character because:
·
it was not subject to disallowance by Parliament (a right of
disapproval in the Minister not constituting such)
·
it was not subject to pre-notification in the Gazette, a
pre-condition for any by-law coming into effect; and
·
it was subject to two forms of executive control – under the Prices
Surveillance Act 1983 (Cth) and by the Minister.
The AD(JR) Act and legislative decisions
5.163 Under the AD(JR) Act a range
of matters has been identified by the Federal Court as legislative and
therefore non-reviewable:
·
determinations under the National Health Act 1953 relating
to the brand of drugs that might be supplied
[132]
·
customs tariff instruments [133]
·
fisheries management plans[134]
·
fisheries temporary management orders [135]
·
determinations relating to pathology services made under the Health
Insurance Act 1973 (Cth) [136]
·
statements of principles made by Repatriation Medical Authority
under the Veterans Entitlement Act 1986 (Cth));[137]
and
·
licence area plans made under the Broadcasting Services Act
1992 (Cth). [138]
5.164 The distinction between
legislative and administrative decisions has been eroded by the inclusion in
the Judiciary Act of section 39B(1A)(c). This section confers
jurisdiction on the Federal Court in matters ‘ arising under any laws made by
the Parliament’.[139]
The common law and legislative decisions
5.165 Rather than categorising
decisions as legislative, the High Court has preferred to focus on the need for
persons to be affected ‘as individuals’[140] in a direct manner.
5.166 In the case of Kioa v
West, while adverting to the distinction between decisions of a legislative
and an administrative character, the critical point was regarded by Brennan J
to be the impact on the individual:
The legislature is not likely to intend that a statutory
power of a strictly legislative nature be conditioned on the observance of the
principles of natural justice for the interests of all members of the public
are affected in the same way by the exercise of such a power … But the
legislature is more likely to intend the exercise of a statutory power of an
executive, administrative or quasi-judicial nature to be so conditioned if an
exercise of the power singles out individuals by affecting their interests in a
manner substantially different from the manner in which the interests of the
public at large are affected. The approach is stated by Estey J. delivering the
judgment of the Supreme Court in Attorney-General of Canada v. Inuit
Tapirisat of Canada [citation omitted]:
” The answer is not to be
found in continuing the search for words that will clearly and invariably
differentiate between judicial and administrative on the one hand, or
administrative and legislative on the other. It may be said that the use of the
fairness principle … will obviate the need for the distinction in instances
where the tribunal or agency is discharging a function with reference to something
akin to a lis or where the agency may be described as an ‘investigating body’
… Where, however, the executive branch has been assigned a function
performable in the past by the Legislature itself and where the res or
subject-matter is not an individual concern or a right unique to the petitioner
or appellant, different considerations may be thought to arise.”[141]
5.167 As also noted by Mason J (as
he then was) in Kioa’s case:
The law has now developed to a point where it may be
accepted that there is a common law duty to act fairly, in the sense of
according procedural fairness, in the making of administrative decisions which
affect rights, interests and legitimate expectations, subject only to the clear
manifestation of a contrary statutory intention.
…But the duty does not attach to every decision of an
administrative character. Many such decisions do not affect the rights,
interests and expectations of the individual citizen in a direct and immediate
way. Thus a decision to impose a rate or a decision to impose a general charge
for services rendered to ratepayers, each of which indirectly affects the
rights, interests or expectations of citizens generally does not attract this
duty to act fairly. This is because the act or decision which attracts the duty
is an act or decision –
” … which directly
affects the person (or corporation) individually and not simply as a member of
the public or a class of the public. An executive or administrative decision
of the latter kind is truly a ‘policy’ or ‘political’ decision and is not
subject to judicial review”.[142]
Who should determine when persons
are affected as individuals
5.168 Although there are a number
of approaches that may be taken in determining when persons are affected as
individuals, it has been suggested by one commentator that decision-makers
should be allowed a choice ‘in circumstances where consideration of individual
interests is permissible, but not mandatory’.[143]
In this situation, it is suggested, ‘a hearing is required where the
decision-maker elects to have regard to individual interests, but not where the
decision is based on general considerations without regard to its effect on any
particular individual’.[144] Under this approach,
‘the critical approach is not how many people are affected, but whether the
decision-maker has taken account of the effect on actual (as opposed to
hypothetical) individuals.[145]
5.169 This approach was taken in Dunlop
v Woollahra Municipal Council.[146] In that case, Wootten
J concluded that although no hearing was required where the Council made a
common rule (in relation to the exercise of statutory powers to fix building
lines), the plaintiff in that case was entitled to a hearing since the action
was based ‘not on general considerations, but on particular matters arising in
relation to the plaintiff’s land.’[147]
Government attempts to establish legislative rather than
administrative decision-making regimes
5.170 It is noted that in at least
one instance, the government has sought to limit the potential for litigation
by making decision-making legislative rather than administrative in character.
In the veterans’ entitlements area for instance,[148]
with the potential for litigation that might retard the making of SoPs, the RMA
and the SMRC were set up as statutory corporations and their functions were
clearly made legislative in character rather than administrative. The intended
effect was to exclude them from the AD(JR) Act and from section 39B (as it was
then) of the Judiciary Act.[149]
5.171 Having regard to the
foregoing, particularly the impact of section 39B(1A)(c) of the Judiciary
Act, it is suggested that distinction between legislative and
administrative decisions has been eroded.
5.172 Having regard to the
approach adopted in the cases referred to above, it is suggested that decisions
that:
·
determine the content of a rule of general application; and
·
do not conclusively determine the application of such a rule in a
particular case
should not be subject to the full range of judicial review.
It is further suggested that this is a matter better determined by the courts
than by the parliament.
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Decisions made in urgent or emergency contexts
5.173 It has long been recognised
that the need for urgent action may result in the exclusion of natural justice.[150]
5.174 The effect of the need for
urgent action was discussed by Wilcox J in Marine Hull & Liability
Insurance Co Ltd v Hurford,[151]a case
concerning a statutory power to direct an insurance company under investigation
not to issue or renew policies. In that case, a distinction was drawn by the
court between cases where the powers themselves by their very nature are
inconsistent with the obligation to accord an opportunity to be heard and powers
which may on occasion, but not always need to be exercised urgently.[152]
In the second instance, issues arise as to whether the hearing requirement is
always excluded, excluded only where urgency is established, or limited by
urgency but never excluded.[153]
Previous Council consideration
5.175 In seeking exemption from
the application of the AD(JR) Act in 1978, some agencies argued that where a
decision is made in an emergency context
(eg where food is alleged to be a health hazard) there should be no judicial
review because delay in making the decision or taking action to implement the
decision could destroy the value and purpose of the decision itself.[154]
5.176 The Council considered that
the “urgent or emergency context in which some classes of decision are made is
not a ground for exclusion since the significant changes made by the Act do not
alter the law or practice to be taken with respect to these decisions.” This
was because the Act does not:
·
alter the rules relating to interlocutory injunctions; and
·
a request for a statement of reasons or an application for an
Order of Review does not operate to prevent the decision from being made and
implemented.[155]
5.177 In cases where there is a
need to make decisions in urgent or emergency contexts, it may not be necessary
to provide a right to be heard, although other grounds of review, such as
actual or apprehended bias, unreasonableness and error of law would still
apply. In many cases, the extent or nature of the urgency may not be able to
be predicted: in such cases, it should not be sought to anticipate it by way of
legislative limitation.
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SECTION IV
Nature of the decision-maker
Status of the decision-maker
5.178 Case-law supports the view
that the status of the decision-maker does not in itself limit the scope of
judicial review.[156]
5.179 In R v Toohey; ex parte Northern
Land Council, the High Court held that the exercise of
statutory power by the Queen’s representative is justiciable on the ground of
improper purpose or bad faith.[157] As noted earlier in
Part (IV) of the paper in the discussion relating to justiciability, the fact
that a decision-maker is a Minister or the Queen’s representative[158]
does not, in itself, preclude judicial review, though it may amend it in some
case, in the context of particular grounds, notably that of procedural
fairness.[159]
5.180 However, the judgment of the
High Court in FAI Insurance Ltd v Winneke[160]
supports the view that the fact that a statutory position has been conferred on
a decision-maker at the highest level (the Governor in that case), may suggest
that the content of the rule relating to procedural fairness should be
reduced. In that case, the court held that a decision of the Governor in
Council refusing an application for renewal of a licence was reviewable for
procedural fairness, the insurer not having had the opportunity to meet adverse
comments of the Minister regarding their investments and financial position.
5.181 Susceptibility of the
decision-maker to accountability via other accountability mechanisms is also a
significant factor. Hence the role of parliament in calling Ministers to
account was relevant as evident in comments by Gleeson CJ and Gummow J in Minister
for Immigration and Multicultural Affairs v Jia, a case involving claims of
actual and apprehended bias. In reviewing the approach taken in the Federal
Court, their Honours noted as follows:
…both French J and Cooper J evaluated the statements and
conduct of the Minister in the light of his political functions and
responsibilities. This is a matter of importance. In considering whether
conduct of a decision-maker indicates prejudgment, or in some other respect
constitutes a departure from the requirements of natural justice, the nature of
the decision-making process, and the character of the person upon whom
Parliament has conferred the decision-making capacity, may be of critical
importance. French J was right to consider the Minister’s conduct in relation
to the radio interview, and the letter to the President of the Tribunal, in the
light of the fact that he was “an elected official, accountable to the
public and the Parliament and entitled to be forthright and open about the
administration of his portfolio which … is a matter of continuing public
interest and debate.”[161]
5.182 As noted by Kirby J in the
same case, however:
Ministerial decisions are not the subject of the same
requirements of actual and manifest independence and impartiality as are
required by law of the decisions of courts and tribunals. Nevertheless, the
misuse of high public office by a Minister for ends alien to the legislation
conferring powers on the holder of that office would, self-evidently, involve a
serious wrong-doing.[162]
5.183 In many cases, there is
authority (often stated legislatively) for the delegation of decision-making
powers or the hearing function to others. In some cases, all that may be
required is the adoption of the findings or recommendations of the person who performed
the decision-making function. In such circumstances, it may be that the
standard of procedural fairness required may differ from that where the power
cannot be divulged to others.[163]
5.184 However, according to Kirby
J, also in Jia’s case, the fact that a decision-making power was
conferred by the Migration Act personally upon the Minister, that it could not
be delegated to an administrative officer of the Department and that it had to
be reported to parliament:
…does not mean that a Minister is at liberty to give vent
to personal biases, idiosyncratic opinions, prejudice against a particular
applicant or blanket rules, applied without regard to any specific features of
the case at hand. Nor is a Minister at liberty to apply blindly his own, a
departmental, a Party or even a Government policy which is inconsistent with
the assumptions of individual justice and administrative decision-making that
are inherent in the grant of power by the Parliament.[164]
5.185 His Honour also went on to
say that:
Clearly the pressures, processes and nature of Ministerial
decision-making differ from the judicial task. Consequently, the obligation
imposed by the courts on officers of the Commonwealth, including Ministers,
should not ‘over-judicialise’ the performance of their functions, including in
the making of decisions required of them by statute. I accept that the
Minister’s remark on an early morning interview radio should not be dissected
in the way sometimes appropriate to analyses of the considered reasons of a
court or tribunal.
5.186 Comments in this case by
Hayne J are also relevant:
It is trite to say that the content of the rules of
procedural fairness must be ‘appropriate and adapted to the circumstances of
the particular case’. What is appropriate when decision of a disputed question
is committed to a tribunal whose statutorily defined processes have some or all
the features of a court will differ from what is appropriate when the decision
is committed to an investigating body. Ministerial decision-making is
different again.[165]
Previous Council consideration
5.187 In What Decisions Should be
Subject to Merits Review? the Council said that:
Factors that will not exclude merits review that lie in the
nature of the decision-maker include:
·
The decision-maker is an expert, or requires specialised
expertise; and
·
The decision-maker is of high status.
5.188 In relation to the latter,
the Council noted that:
The status of the primary decision-maker is not a factor
that, alone, will make decisions of that person inappropriate for merits review.
For example, the fact that the decision-maker is a Minister
or the Governor-General, is not, of itself, relevant to the question of
review. Rather, it is the character of the decision-making power, in
particular its capacity to affect the interests of individuals, that is
relevant.[166]
5.189 Although the nature of the
decision-making body or the status of the decision-maker should not in itself
render judicial review necessary or unnecessary, it is suggested that it may
nonetheless have an impact on the appropriate scope of judicial review. Where
the status of the decision-maker is linked to the making of particular sorts of
high level policy decisions, other considerations become relevant. The
preferred view may be that the determination of such issues is best left to the
courts.
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Expert decision-makers
5.190 The courts have tended to
take a cautious approach where the decision-maker is using special knowledge to
make an assessment of a factual situation.[167]
5.191 As noted by Gleeson CJ,
Gummow, Kirby and Hayne JJ in Corporation of the City of Enfield
v Development Assessment Commission:
The weight to be given to the opinion of the tribunal [or
the decision-maker] in a particular case will depend upon the circumstances.
These will include such matters as the field in which the tribunal operates,
the criteria for appointment of its members, the materials upon which it acts
in exercising its functions and the extent to which its decisions are supported
by disclosed processes of reasoning.[168]
5.192 However, as noted in earlier
discussion:
Where the question is whether the tribunal acted within
jurisdiction, it must be for the court to determine independently for itself
whether that is the case.[169]
5.193 As stated by Gummow J in Minister
for Immigration and Multicultural Affairs v Eshetu:
…whilst it is for this court to determine independently for
itself whether in a particular case a specialist tribunal has or lacks
jurisdiction, weight is to be given, on questions of fact and usage, to the
tribunal’s decision, the weight to vary with the circumstances. The
circumstances will include such matters as the field in which the tribunal operates,
the criteria for appointment of its members, the materials upon which it acts
in the exercise of its functions and the extent to which its decisions are
supported by disclosed processes of reasoning.[170]
5.194 The more difficult cases
would seem to be where the specialist body is required to make determinations
that involve both the assessment of facts and the interpretation of the law,
for example, determinations as to the existence of facts to meet criteria
established by law.
5.195 It is suggested that the
courts already show considerable deference to the expertise of expert
decision-makers. If limitations are imposed by way of legislation, they should
only relate to areas within the particular purview of the decision-maker and to
grounds of review (identified earlier) which, by their nature, come close to
the boundaries of merits review.
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Outside contractors
5.196 As remarked in the Australian
National Audit Office Audit Activity Report: January to June 2001:
As a result of the greater use of outsourced services as
significant elements of program delivery, project and contract management has
become a major element of public administration.[171]
5.197 Although there has been a
concern at the possible reduction in executive accountability as a result of
the greater use of outsourced services, the concern has been predominantly with
broad-based agency accountability rather than with accountability to the
service user.
5.198 For instance, in its 1996
report, Competitive Tendering and Contracting by Public Sector Agencies,
the Industry Commission drew attention to the need to preserve accountability
when services of government are contracted out:
The Commission agrees with numerous inquiry participants
that, while responsibility to do certain things can be transferred,
accountability for the results cannot.
Whatever the method of service delivery, a government
agency must remain accountable for the efficient performance of the functions
delegated to it by government…[172]
5.199 More recently, in the Commonwealth
Procurement Guidelines and Best Practice Guidance, the Government
has said that:
When outsourcing an activity, agencies cannot outsource
their responsibility to ensure the efficient and effective use of Commonwealth
resources, or their accountability for performance. Outsourcing contributes to
the quality of outcomes for an activity without affecting the existing
accountability frameworks. When an agency outsources a function, it is still
responsible for ensuring the services provider is meeting the agency’s
stakeholder need.[173]
5.200 It has been said further
that:
The principle that agencies remain accountable for an
activity even though the activity is subject to commercial tendering and
contract does not mean that there is a common set of accountability
arrangements which applies to all providers. A number of factors will need to
be balanced to ensure that providers are subject to the mix of accountability
arrangements that maximise the benefits of competitive tendering and
contracting but protect the interests of relevant stakeholders. Agencies will
need to consider, on a case by case basis, the level of access the agency and
the Australian National Audit office require to a provider’s records,
information and assets (including premises) to adequately monitor a provider’s
performance. This can be stated in the contract.[174]
5.201 This approach does not
provide individuals with a direct right of recourse against the decision-maker.
5.202 The implications of recent
amendments to the Privacy Act 1988 to extend its application to personal
information held by contractors in relation to services provided to the
Commonwealth or to other persons is relevant in this regard.[175]
The Council understands that the Government is currently considering whether to
extend the Freedom of Information Act 1982 to requests by individuals
about themselves held by the contractors for access to and correction of
personal information held by them on behalf of the government.
The Council perspective
5.203 As noted by the Council in
1998 in its 42nd report, The Contracting Out of Government
Services, judicial review under the Constitution and section 39B of the
Judiciary Act is not limited to review of a decision taken under an enactment.
Decisions taken by a contractor under a non-statutory scheme may therefore, in
appropriate cases, be the subject of an application to the High Court or the
Federal Court for a writ of mandamus or prohibition or an application for an
injunction.[176] In contrast, the AD(JR)
Act currently only extends to review of a decision under an enactment.[177]
5.204 Recently, the Government
paid recognition to the importance of transparency and accountability when
managing government contracts. It indicated that the Ombudsman should have the
jurisdiction to investigate actions of private sector organisations contracted
by Commonwealth agencies to provide goods or services to the public and that it
will consider amending the Ombudsman Act 1976 to achieve this.[178]
5.205 The Government has also
indicated that it does not support the view that commercial information is
inherently confidential and that any decision to withhold information on
commercial-in-confidence grounds needs to be fully substantiated, stating the
reasons why such information should not be disclosed.[179]
It has also agreed in principle to the access by auditors to the premises of
government contractors.[180]
5.206 In its 42nd
report, the Council recommended that ‘the AD(JR) Act should extend to include a
decision of an administrative character made or proposed to be made, by an
officer under a non-statutory scheme or program, the funds for which are
authorised by an appropriation made by Parliament.’ (Rec 22) The emphasis here
is upon the nature of the decision rather than the nature of the
decision-maker.
5.207 It is suggested that this
and other recommendations made in the report No 42 relating to the
accountability of outside contractors remain an appropriate response in this area.
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Government business enterprises
5.208 It has been remarked that:
Judicial review can occasionally remedy individual
grievances but rarely provides systemic relief. The decision to litigate and
to maintain the litigation can be happenstantial…Review in the wake of
privatisation and outsourcing carries the additional problem that the
complainant is typically conceived as a consumer with a consumer complaint,
which is not the business of judicial review.[181]
5.209 In the Council’s first
report, Administrative Decisions (Judicial Review) Act 1977, Exclusions Under
Section 19, – 1978, the Council devoted a number of paragraphs[182]
to consideration of submissions that a number of statutory authorities[183]
should be excluded from the application of the Act on the basis of their
commercially competitive natures.[184] In its 32nd
report in 1989, consistent with an increasing sophistication in the manner of
government involvement in business activities, a shift in terminology was
apparent, with growing reference to ‘government business enterprise’.
5.210 In its 38th
report in 1995, Government Business Enterprises and Commonwealth
Administrative Law, this evolutionary trend was almost complete, with only
fleeting reference to ‘statutory authorities’.
5.211 In this report, the Council
defined government business enterprises (GBEs) as bodies owned (or partly
owned) by government, that are principally engaged in commercial activity, and
that are separate legal entities from government. GBEs have characteristics in
common with private enterprise (for example, selling goods or services
commercially for financial return) while also belonging to the public sector as
a result of government ownership and the requirement to operate in accordance
with government policy.[185] Some may become
incorporated and some may be privatised.
5.212 Government business
enterprises are subject to the Commonwealth Authorities and Companies Act
1997, the Corporations Law 1997, Governance Arrangements and their
own enabling legislation (the Australian Postal Corporation Act 1989 for
instance). They provide services collectively consumed by members of the
public, including education, health care, transport, public housing, land use
regulation and urban planning.
5.213 Examples of government
business enterprises include Telstra Corporation, Australia Post, the Snowy
Mountains Hydro Electric Authority, the Defence Housing Authority and the
Australian Government Solicitor.
5.214 Decisions of a GBE that are
commercial decisions, or decisions made other than pursuant to specific
statutory powers are unlikely to be reviewable under the AD(JR) Act although
review may be available in limited circumstances under the Constitution or in
the State Supreme Courts.
5.215 To come within the ambit of
the AD(JR) Act, as with outside contractors, a decision must be ‘of an
administrative character made…under an enactment’ within the meaning of section
3 of the AD(JR)Act. Most day to day decisions made by a GBE, particularly
commercial decisions (such as decisions concerning or made under contracts) are
unlikely to fall within this definition as they are made under general powers
rather than under a statute.[186]
5.216 Under section 75(iii) of the
Constitution, whether a particular GBE may be a person ‘suing or being sued on
behalf of the Commonwealth’ is a question to be determined in each case by
reference to the particular legal structure and circumstances of the GBE.
5.217 Under section 75(v), GBEs
are not themselves ‘officers of the Commonwealth’. Whether an officer of a GBE
is an ‘officer of the Commonwealth’ will depend in each case on factors such as
whether the person is appointed, paid, controlled and removable by the
Commonwealth, or is appointed by the Commonwealth to exercise a function of the
Commonwealth.[187]
5.218 Corporatisation of GBE’s
tends to be accompanied by a requirement for ‘competitive neutrality’, a
concept described in the Hilmer Report.[188]
In such an environment, administrative law becomes an ‘unnecessary impediment’
to neutral and hence effective competition with private sector business.[189]
5.219 The Humphrey Report[190]
concluded that as GBEs generally trade in goods and services in the market,
their activities are not administrative. The Report recommended that GBEs be
exempt from statutory administrative law. This approach was subsequently
confirmed by the Government in June 1997 upon the introduction of new Governance
Arrangements for Commonwealth Government Business Enterprises.
5.220 However, in its report on Corporate
Governance and Accountability Arrangements for Commonwealth Business
Enterprises,[191] the Joint Committee of
Public Accounts and Audit was of the view that, depending on their
responsibilities, some aspects of administrative law should apply to GBEs. The
Committee was of the view that each GBE should be examined on a case by case
basis to determine what aspects of administrative law should apply.
5.221 It has been noted by Justice
Finn that:
…a statutory corporation as an agency of government can
have no private or self-interest of its own separate from the public interest
it is constitutionally bound to serve. It is this that sharply differentiates
such a corporation from one that is privately owned.
and
…despite the growing tendency to approximate the duties of
directors of statutory corporations to those of Corporations Law directors – as
witnessed by section 21ff of the Act 1997 – the gulf between the two
remains large and unbridgeable (at least without constitutional upheaval).[192]
5.222 Similarly, in Hughes case,
His Honour said:
There is, I consider, much to be said for the view that,
having no legitimate private interest in the performance of its functions, a
public body (including a state owned company) should be required as of course
to act fairly towards those with whom it deals at least in so far as this is
consistent with its obligation to serve the public interest (or interests) for
which it has been created.[193]
Previous Council Consideration
Report No 1, 1977/8
5.223 In its first report Administrative
Decisions (Judicial Review) Act 1977, Exclusions under Section 19, 1978,
the Council did not accept the argument for exemption from the AD(JR) Act of
statutory authorities engaged in commercial activities. Instead it felt that:
·
because the authorities are Commonwealth instrumentalities they
should be subject to judicial review in the same way as other Commonwealth
bodies
·
confidential information would not need to be disclosed
·
there is not always the choice on the part of the consumer to
deal with another service provider; and
·
the extent to which the authorities are seen by outsiders to be
related to the government will not be affected by their inclusion or exclusion
from the Act.
5.224 The Council was divided as
to the application of the Act to commercially competitive statutory
authorities. By a narrow majority the Council recommended against exemption.
The arguments in favour of exemption were:
·
applying the Act to them puts them at a commercial disadvantage
·
competitors may get access to vital information through reasons
statements or discovery
·
competitors may use the Act to delay or hamper activities of the
body
·
a person is not as affected by the decision, because they can
obtain the services from another body; and
·
parliament’s desire to place these bodies on an equal footing
with private businesses.
5.225 The arguments against
exemption were:
·
as government bodies, statutory authorities must be subject to
the rule of law like all other bodies
·
although they may be engaged in some commercial activities,
statutory authorities are not truly equal to their competitors
·
in many instances, there is no real freedom of choice for
consumers, who must continue to deal with the authority; and
·
the AD(JR) Act protects against the release of commercially
sensitive or confidential information.
Report No 32, 1989
5.226 In its 32nd
report, Review of the Administrative Decisions (Judicial Review) Act: Ambit of
the Act, the Council was of the view that:
…the Australian community has the right to expect that
decisions of government business enterprises are made according to law to the
same extent as decisions of other government agencies.[194]
5.227 While noting that it would
be of concern if significant use was made of the AD(JR) Act to challenge
commercial decisions, and that such a situation could place such enterprises at
a disadvantage in the market, the Council was not of the view that significant
use of the Act was being made for such purposes. In the case of those GBEs not
created under statute but incorporated under companies legislation, the Council
considered that ‘the controls imposed by the requirements of company law
provide[d]…a sufficient substitute for control through the judicial review
jurisdiction of the courts’.
Report No 38, 1995
5.228 In its 38th report,
Government Business Enterprises and Administrative Law, the Council said that:
…GBEs should [not] be under any special obligation to
operate as ‘model’ businesses in respect of their commercial activities
undertaken in a competitive market. Instead the Council considers that the
standards of fairness governing these activities should be the same as those
that apply throughout the market place.[195]
5.229 In the report, the Council
concluded that:
·
Commonwealth administrative law statutes should prima facie apply
to bodies that are government-controlled, including GBEs; and
·
GBEs should be exempt from the operation of Commonwealth
administrative law statutes in relation to their commercial activities
undertaken in a market where there is real competition.[196]
5.230 Consistent with this, the
Council was of the view that the Ombudsman Act and the Archives Act should not
apply to the commercially competitive activities of a GBE undertaken in a truly
competitive market, although the Ombudsman should make the initial decisions as
to whether the relevant commercial activities of a GBE are in fact performed in
a truly competitive market.[197]
5.231 As in its 1989 report, Review
of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act,
the Council recommended that the scope of the AD(JR) Act should be expanded to
embrace decisions of an officer of the Commonwealth under a non-statutory
scheme that is funded out of monies appropriated by parliament specifically for
the purposes of that scheme.[198]
5.232 In response to this approach
it has been said that:
With respect, this [approach] does not indicate why the
presence of the ‘competition factor’ makes removal of administrative law review
appropriate. Administrative law review is simply a casualty of the overwhelming
political pressure to place corporatised GBEs in a position of ‘competitive
neutrality’…There is no inquiry as to how competition in the market will
promote the values of openness, rationality, fairness and participation which
are protected by administrative law review…public power will continue to be
exercised by corporatised GBEs and indeed by privatised GBEs. A fruitful
avenue for promoting values of rationality, fairness, openness and
participation in their decision-making would be recognition of their public
powers and the creation of statutory private rights, perhaps appropriately
called ‘community service rights’, by which it may be controlled.[199]
5.233 It is suggested that the
views with respect to judicial review expressed by the Council in its 38th
Report, Government Business Enterprises and Commonwealth Administrative Law,
remain an appropriate response in this area.
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Decisions by certain other government bodies
Intergovernmental bodies
5.234 In response to inquiries by
the Council in the preparation of its first report, Administrative Decisions
(Judicial Review) Act 1977, Exclusions Under Section 19, -1978, it was
submitted that authorities established jointly by Commonwealth and State
Governments or Commonwealth and foreign governments should not be subject to
the AD(JR) Act.
5.235 In response to this claim,
the Council noted that decisions of such authorities made under a Commonwealth
enactment were currently subject to review and that exclusion from the Act
would not exempt them from judicial review but only restrict the forum for
review to the High Court or, in limited cases, the Supreme Courts of the
Territories.[200]
Consultative and advisory authorities not dealing
directly with the public
5.236 In seeking exemption from
the application of the AD(JR) Act, it was suggested that departments not
dealing directly with the public, or which act in a consultative or advisory
capacity, should not come within the ambit of the Act.
5.237 In response, in its first
report, Administrative Decisions (Judicial Review) Act 1977, Exclusions
under Section 19 – 1978, the Council said:
Where authorities do not make decisions affecting a
person’s interests, then no person would have standing to make an application
under the Act. Where a consultative or advisory authority does not make
decisions of an administrative character its decisions will not fall within the
terms of the Act.[201]
5.238 The Council concluded that
in so far as these authorities fall within the terms of the Act and their
decisions affect the interests of members of the public, then judicial review
should be available.[202]
5.239 On the basis of the
foregoing, it is suggested that the approach adopted by the Council in its
first report and outlined above remains an appropriate response in this area.
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SECTION V
Other
No
impact upon final decision
5.240 In circumstances where the
alleged irregularity would not have resulted in a different result being
reached, there is some authority for the view that there may be a discretion to
deny a remedy. As noted in Re Refugee Tribunal; ex parte Aala,[203]
such a situation may occur where, irrespective of any question of procedural
fairness or merit, the decision was one which the decision-maker was bound by
the governing statute to refuse. Alternatively, there may not have been an
opportunity to make submissions on a point of law which must clearly be
answered unfavourably to the prosecutor. As also noted in Aala, the
concern of judicial review:
…is with observance of fair decision-making procedures
rather than with the character of the decision which emerges from the observance
of those procedures. Unless the limitation ordinarily implied on the statutory
power is to be rewritten as denying jurisdictional error for ‘trivial’ breaches
of the requirements of procedural fairness, the bearing of the breach upon the
ultimate decision should not itself determine whether prohibition under s75(v)
should go.[204]
5.241 However:
Not every breach of natural justice affects the making of a
decision. The decision-maker may have entirely upheld the case for the party
adversely affected by the breach; or the decision may have turned on an issue
different from that which gave rise to the breach of natural justice. Breach
of the rules of natural justice, therefore, does not automatically invalidate a
decision adverse to the party affected by the breach…[205]
5.242 The High Court has also said
that:
Nevertheless, once a breach of natural justice is proved, a
court should refuse relief only when it is confident [emphasis added] that the
breach could not have affected the outcome…[206]
No injustice
5.243 In one British decision
involving applications for certiorari and declarations, it has been said that:
[An applicant] may be debarred relief if he has acquiesced
in the invalidity or waived it. If he does not come with due diligence and ask
for it to be set aside, he may be sent away with nothing. If his conduct has
been disgraceful and he has in fact suffered no injustice, he may be refused
relief.[207]
5.244 In relation to procedural
fairness, however:
… the conditioning of a statutory power so as to require
the provision of procedural fairness has, as its basis, a rationale which
differs from that which generally underpins the doctrine of excess of power or
jurisdiction. The concern is with observance of fair decision-making
procedures rather than with the character of the decision which emerges from
the observance of those procedures. Unless the limitation ordinarily implied
on the statutory power is to be rewritten as denying jurisdictional error for
‘trivial’ breaches of the requirement of procedural fairness’, the bearing of
the breach upon the ultimate decision should not itself determine whether
prohibition under s 75(v) should go. The issue always is whether or not there
has been a breach of the obligation to accord procedural fairness, and if so,
there will have been jurisdictional error for the purposes of s 75(v).
Cases said to turn upon ‘trivial’ breaches are often better
understood on other grounds. In particular…where the obligation to afford
procedural fairness exists, its precise or practical content is controlled by
any relevant statutory provisions and, within the relevant legislative
framework, this will vary according to the circumstances of the particular
case.[208]
5.245 From the foregoing it would
seem that there is a range of factors relevant to whether or not judicial
review should lie. Arguably, such matters are ones upon which the courts
should rule as it depends very much on the circumstances of the particular
case. As such, they are not matters appropriate for legislative intervention.
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[1]
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2
ALD 634, 645.
[2]
Justice von Doussa, ‘Natural Justice in Federal Administrative Law’, paper
presented at a seminar by the Australian Institute of Administrative Law,
Darwin, 7 July 2000, 3.
[3]
Inserted by the Veterans Affairs (1994-95 Budget Measures) Legislation
Amendment Act 1995.
[4]
(1992) 175 CLR, 414-415.
[5]
Australian National Audit Office, Audit Report 1992, 1992,
paragraph 1.1.10.
[6]
The Honourable Emeritus Professor Peter Baume AO, A Fair Go, Report on
Compensation for Veterans and War Widows, 1994, paragraph 3.9.
[7]
Ibid, paragraphs 3.7 and 5.6.20.
[8]
For a comprehensive record and analysis of these amendments, see Robin Creyke
and
Peter Sutherland, Veterans’ Entitlements Law, 2000, pp 521 – 524.
[9]
The Veterans’ Affairs (1994-5 Budget Measures) Legislation Amendment Act
1994.
[10]
Part XIB was inserted during debate on the Bill in the Senate to provide a
means of appeal from determinations of the RMA to a body titled the Specialist
Medical Review Council. For further information in relation to this body see
Robin Creyke and Peter Sutherland, Veterans’ Entitlements Law, 2000, pp
531 – 536.
[11]
Emeritus Professor Dennis Pearce was appointed to conduct the review. He was
assisted by Professor D’Arcy Holman who provided a technical report relating to
the work of the RMA: D Pearce, D Holman, Report of the Review Committee,
Part Two, 1997.
[12]
Ibid, p 524.
[13]
Second Reading Speech, Hansard, 13 March 2002, 1106.
[14]
Id.
[15]
Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001)
206 CLR 57.
[16]
Id.
[17]
See further Professor M Neave, ‘In the Eye of the Beholder – Measuring Administrative
Justice’, in R Creyke and J McMillan, Administrative Justice – the Core and
the Fringe, 1999, p 124 and L McDonald, ‘Measuring Administrative Justice –
Lessons from the Report on Government Services’, in R Creyke and J McMillan, Administrative
Justice – the Core and the Fringe, 1999, p 138.
[18]
(No 2) (1979) 2 ALD 634, 645.
[19]
D Pearce, D Holman, Report of the Review Committee, Part Two, 1997.
[20]
The Daryl Williams, Attorney-General, Second Reading Speech,
Jurisdiction of Courts Legislation Amendment Bill 2000,Hansard, 8 March 2000.
[21]
Australia, House of Representatives, Debates, 14109.
[22]
The Hon Philip Ruddock, Minister for Immigration and Multicultural Affairs, Second
Reading Speech, Migration Legislation Amendment Bill (No 4) 1997, Hansard,
25 June 1997.
[23]
Id.
[24]
The Hon Phillip Ruddock, Minister for Immigration and Multicultural Affairs,
Second Reading Speech, Migration Legislation Amendment Bill (No 2) 1999
[2000], Hansard, 14 March 2000.
[25]
Administrative Review Council, Review of the Administrative Decisions
(Judicial Review) Act 1977 – Stage One, Report No 26, 1986, paragraph 38.
[26]
Ibid, paragraph 8.
[27]
Ibid, paragraph 3.
[28]
Ibid, paragraph 9.
[29]
Ibid, paragraphs 38-48.
[30]
Senate Standing Committee on Legal and Constitutional Affairs, Administrative
Decisions (Judicial Review) Bill 1987, Parliamentary Paper No 212,
1987.
[31]
Ibid, paragraph 3.41.
[32]
See comments in the Bills Digest to the Jurisdiction of Courts
Legislation Amendment Act 2000, Bills Digest No 149, 1999-2000, p 15
which can be found on the Department of the Parliamentary Library at http://www.aph.gov.au/library/pubs/bd/1999-2000-2000BD149.htm;
and Sean Brennan, ‘Judicial Review and the Pre-trial Process’ (2000) AIAL
Forum No 26 33, 41.
[33]
Submission of the Attorney-General’s Department to the Senate Standing
Committee on Legal and Constitutional Affairs Inquiry into the Administrative
Decisions (Judicial Review) Amendment Bill 1987,
Parliamentary Paper No 212, 1987, 26.
[34]
Minister for Finance, Senator Walsh, Address to Seminar on Administrative
Law – Retrospect and Prospect at the Australian National University,
Canberra, 15 March 1987, 3.
[35]
Ibid, at 5.
[36]
The Hon Daryl Williams MP, Attorney-General, Second Reading Speech, Jurisdiction
of Courts Legislation Amendment Bill 2000, Hansard, 8 March 2000.
[37]The
Public Service Merit Protection and the Department of Employment, Workplace
Relations and Small Business, ‘Accountability in a Devolved Management
Framework’, May 1997.
[38]
Submission of Mr Gerry Hand to the Senate Standing Committee on Legal and
Constitutional Affairs Inquiry into the Administrative Decisions (Judicial
Review) Amendment Bill 1987, Parliamentary Paper No 212, 1987, 4.
[39]
O’Reilly v Commissioner of State Bank of Victoria (1983)
153 CLR 1.
[40]
Zhang De Yong v Minister for Immigration, Local Government and Ethnic
Affairs (1997) 151 ALR 515, 551
per Wilcox J.
[41]
(1987) 9 NSWLR 103.
[42]
(2001) 206 CLR 57, [178].
[43]
Administrative Review Council, Administrative Decisions (Judicial Review)
Act 1977, Exclusions under Section 19, Report No. 1, 1978, paragraph 8.
[44]
See discussion of this concept in Section II of this paper.
[45]
Administrative Decisions (Judicial Review) Act 1977, Exclusions under
Section 19, Report No. 1, 1978.
[46]
Statistics are not available from the Federal Court in relation to numbers of
cases referred by the Court under section 10(2)(b)(ii) of the AD(JR) Act.
[47]
Full compliance with the rules relating to the right to be heard is a case in
point. As noted earlier in the discussion paper.
[48]
United Kingdom Prime Minister and Minister for Cabinet Office, ‘White Paper’,
Modernising Government, presented to the English Parliament in March
1999.
[49]
Leppington Pastoral v Department of Administrative Services (1990) 94
ALR 67, 76. In this case, the Full Court contrasted the statement that X’s
property was required for use as an airport pursuant to a government policy of
acquiring X’s property for an airport, with a statement referring to a policy
that there should be a second airport in the Sydney region. Although the
latter could be regarded as a policy statement, the former, according to the
court, could not.
[50]
Dennis O’Brien, ‘Tribunals and Public Policy. What Decisions are Suitable for
Review?’ (April 1989) 58 Canberra Bulletin of Public Administration
86.
[51]
John McMillan, ‘Review of Government Policy by Administrative Tribunals’
Law and Policy Paper
No 9, Centre for International and Public Law 1998, 33, 34.
[52]
Ibid, 33.
[53]
Set out in section 10 of the Public Service Act 1999, paragraph 10(1)(f)
of that Act
[54]
Sections 28, 43 of the Commonwealth and Companies Act 1997.
[55]
See for example, Australian Tourist Commission Act 1987 section 29(1), Dairy
Produce Act 1986 section 8(1), Fisheries Administration Act 1991
section 91(1).
[56]
See for instance section 11 of the Australian Research Council Act 2001.
[57]
Sections 396 – 75, Income Tax Assessment Act 1936.
[58]
See Justice Brennan, ‘The Purpose and Scope of Judicial Review’ (1986) 2 Australian
Bar Review 93, 95.
[59]
Murray Wilcox, ‘Judicial Review and Public Policy’ (April 1989) 58 Canberra
Bulletin of Public Administration 70, 71.
[60]
Although, as noted in the discussion of justiciability, the nature of the
particular decision rather than of the broad subject area is a more accurate
gauge of reviewability.
[61]
The Kerr Committee report, 1971.
[62]
The Ellicott Committee report, 1973.
[63]
The Kerr Committee report, paragraph 265; The Ellicott Committee report, 1973,
paragraph 2.7.
[64]
Ibid, the Ellicott Committee report, at paragraph 26. A similar approach was
adopted by the Committee in relation to public servants, authorities and
tribunals at paragraph 30.
[65]
Baker v Carr 369 US 186 (1962), quoted by McTiernan J
(dissenting) in Victoria v Commonwealth (1975) 134 CLR 81, 135.
[66]
In Thorpe v Commonwealth of Australia (No 3) (1997) 144
ALR 677, 690 Kirby J stated:
…the issues presented by the declarations
lacked “judicially discoverable and manageable standards for
resolving” a justiciable issue. Traditionally in this country, as under
like constitutional provisions in the United States, the courts have been extremely
reluctant to pass upon the conduct of international relations.
[67]
Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987)
75 ALR 218.
[68]
Koowarta v Bjelke Petersen (1982) 153 CLR 168, 229.
[69]
It might be noted however that in the British decision, R v Secretary of
State for the Home Department;
ex parte Bentley [1993] 4 All ER 442, it was held that the Secretary’s
decision not to recommend the granting of a posthumous pardon was susceptible
to judicial review.
[70]
For example, in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 18, a
case concerning the exercise of a statutory power to appoint magistrates, Mason
J pointed out that the court is reluctant to intervene in the judiciary’s
traditional role of appointing judicial officers.
[71]
Administrative Review Council, What Decisions Should be Subject to Merits
Review? 1999, paragraphs 4.2, 4.23 and 4.24.
[72]
See comments per Brennan J of the US Supreme Court in delivering the judgment
of the court in
Baker v Carr (1961) 369 USR 186, 213.
[73]
Ibid, quoting Martin v Mott, 12 Wheat, 19, 30.
[74]
Thorpe v Commonwealth of Australia (No 3) (1997) 144 ALR
677, 692 per Kirby J.
[75]
Sir Anthony Mason AC KBE, ‘Lecture 2 Scope of Judicial Review’ (November 2001) AIAL
Forum
No 31 21, 24 – 25.
[76]
Melbourne Corporation v The Commonwealth (1947) 74 CLR 31, 82.
[77]
[1993] 4 All ER 442, QBD per Watkins, Neill LJJ and Tuckey J.
[78]
Ibid, 453-3.
[79]
Baker v Carr (1961) 369 USR 186, 213-214 quoting Chastleton Corp
v Sinclair 264 US 543, 547-8.
[80]
(1988) 19 FCR 347, 373.
[81]
Minister for Arts, Heritage and Environment v Peko Wallsend (1987) 75
ALR 218, 280 per Sheppard J and 302 per Wilcox J.
[82]
The Hon Justice Sir Anthony Mason, ‘The Importance of Judicial Review of
Administrative Action as a Safeguard of Individual Rights’ (December 1994) 1(1)
Australian Journal of Human Rights 10.
[83]
South Australia v O’Shea (1987) 163 CLR 378, 387. In his
Blackburn lecture, Sir Anthony subsequently reiterated that ‘in exceptional cases,
judicial review may conceivably extend to a cabinet decision’ – see Sir Anthony
Mason Blackburn Lecture, ‘Administrative Review – the Experience of the First
Twelve Years’ (1989) 18 Federal Law Review 122. In O’Shea Deane J
at 417 also suggested that:
…common law rules of procedural fairness extend in the
absence of a clear contrary legislative intention, to control any
administrative decision which is made pursuant to a statutory process and which
‘directly affects the rights, interest, status or legitimate expectations’ of
another in his individual capacity’.
[84]
Sir Anthony Mason, ‘Developments in Australian Administrative Law’ (1998) 28 Hong
Kong Law Journal 379.
[85]
(1981) 151 CLR 342.
[86]
Council of Civil Service Unions v Minister of Civil Service [1985] AC
374; Kioa v West (1985) 159 CLR 550.
[87]
The Hon Sir Gerard Brennan, ‘The Purpose and Scope of Judicial Review’, in M
Taggart (ed) Judicial Review of Administrative Action in the 1980s,
1986, p 33.
[88]
Sir Anthony Mason, ‘Judicial Review: A View from Constitutional and Other
Perspectives’ (2000) 28(2) Federal Law Review 330, 337.
[89]
Administrative Review Council, Administrative Decisions (Judicial Review)
Act 1977: Exclusions under Section 19, Report No. 1, 1977, paragraphs
50-51.
[90]
Ibid, paragraph 5.12, 27.
[91]
Administrative Review Council, What Decisions Should be Subject to Merits
Review?, 1999, paragraphs 4.2, 23 and 24.
[92]
Ibid, paragraph 4.27.
[93]
Ibid, paragraph 4.28.
[94]
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 375.
[95]
Note the Council’s view was that the exception would be limited and
countervailing accountability requirements should apply – see Administrative
Review Council, What Decisions Should be Subject to Merits Review?, 1999,
paragraphs 4.27 – 4.29.
[96]
See for instance, D J Galligan, ‘Regulating Pre-trial Decisions’, in N Lang
(ed), Criminal Justice, 1994, p 151.
[97]
See Administrative Review Council, Administrative Decisions (Judicial
Review) Act 1977: Exclusions under Section 19, Report No. 1, 1977,
paragraph 77.
[98]
Senate Standing Committee for the Scrutiny of Bills, First to Eighteenth
Reports of 1994, Parliamentary Paper No 472, 1994, p 201.
[99]
In both instances, judicial review rights to the High Court under section 75(v)
of the Constitution are not affected.
[100]
For further discussion of these amendments, see Sean Brennan, ‘Judicial Review
and the Pre-trial Process’ (2000) AIAL Forum No 26 33.
[101]
House of Representatives, Debates, Hansard, 8 March 2000, 14111.
[102]
Senate Standing Committee for the Scrutiny of Bills, Sixth Report of 2000,
10 May 2000, 172.
[103]
House of Representatives, Debates, Hansard, 5 April 2000, 15328.
[104]
Lamb v Moss (1983) 49 ALR 533 affirmed in Young v Quin (1984) 56
ALR 165 and Clyne v Scott (1983) 52 ALR 405.
[105]
Barton v The Queen (1980) 147 CLR 75, 92-3.
[106]
Ibid, 100.
[107]
Ibid, 101.
[108]
Sean Brennan, ‘Judicial Review and the Pre-trial Process’ (2000) AIAL Forum
No 26 33, 37.
[109]
Crane v Gething (2000) 97 FCR 9.
[110]
R v Leyland JJ, ex parte Hawthorne [1979] Crim LR 627.
[111]
R v St Albans Crown Court, Ex Parte Cinnamond [1981] Crim LR 2453.
[112]
Administrative Review Council, Review of the Administrative Decisions
(Judicial Review) Act; Redefining the Act’s Ambit, Draft Report 1988,
Appendix B, 5.
[113]
Administrative Review Council letter to the Senate Standing Committee on Legal
and Constitutional Affairs dated 26 April 1993, set out in the Council’s Seventeenth
Annual Report, 1992 – 93, p 129.
[114]
Administrative Review Council, What Decisions Should be Subject to Merits
Review?, 1999, paragraph 4.31.
[115]
Ibid, paragraphs 4.32 and 4.33.
[116]
(1982) 43 ALR 41. See also Finch v Goldstein (1981) 36 ALR 287.
[117]
Ansell v Wells ibid, 60.
[118]
For instance, judges may make rules of court, parliament may punish for
contempt of parliament and administrators may make conclusive findings of fact.
[119]
See Gummow J in Queensland Medical Laboratories v Blewett (1988)
84 ALR 615.
[120]
See the Donoughmore Committee, Report of the Committee on Ministers’ Powers,
1932, Cmd 4060, 1.
[121]
Nashua v Channon (1981) 36 ALR 215.
[122]
(1943) 67 CLR 58, 82. See also R v City of Munro Paragraph; ex parte
John Weeks Pty Ltd (1987) 46 SASR 400, 406; Collins v Municipality of Wynyard
(Tas Sup Ct), Green CJ, unreported, 24 December 1987; Botany Bay City
Council v Minister of State for Transport and Regional Development (unreported,
Federal Court, Lehane J, 28 May 1996). See also Yates Co Pty Ltd v The
Vegetable Seeds Committee and Ors (1946) 72 CLR 37, 54.
[123]
For example, the Builders Labourer’s Federation (Special Provisions) Act
(NSW) enacted to abolish the Builders Labourer’s Federation. See Queensland
Medical Laboratories v Blewett (1988) 84 ALR 615.
[124]
Administrative Review Council, Rule Making by Commonwealth Agencies, Report
No 35, 1992, paragraph 3.4.
[125]
(1981) 180 CLR 404.
[126]
Ibid, 416.
[127]
Donoughmore Committee, Report of the Committee on Ministers’ Powers,
1932, Cmd 4060, 1. See also Gibbs CJ in Bread Manufacturers of NSW v Evans,
Id.
[128]
See Beasley J, Aerolineas Argentinas & Ors v
Federal Airports Corporation (1995) 63 FCR 100, [36]. Compare with Nashua
Australia Pty Ltd v Channon (1981) 36 ALR 215 where it was held that the
rules of natural justice apply to both judicial and administrative authorities
and even purely administrative and executive powers. Even where a discretion
is in one sense unlimited, that does not mean that it is not reviewable and
could not be wrongly exercised or that the court could not intervene.
[129]
Queensland Medical Laboratories v Blewett (1988) 84 ALR 615,
634 – 5 per Gummow J.
[130]
Ibid, 635 per Gummow J.
[131]
Aerolineas Argentinas & Ors v Federal Airports Corporation (1995) 63
FCR 100 per Beasley J. See also Federal Airports Corporation v Aerolineas (1997)
50 ALD 54.
[132]
ICI Australia Operations Pty Ltd v Blewett (1989) 19 ALD 162.
[133]
Sanyo Australia Pty Ltd v Comptroller‑General of Customs (Fed C of
A, Davies J, No 645/91,
12 March 1992, unreported), but noted by the Administrative Review Council in Admin
Review (1992) No 32 68.
[134]
Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151.
[135]
Donohue v Australian Fisheries Management Authority [2000] FCA 901;
Bulletin [5642]; BC200003816.
[136]
Melbourne Pathology Pty Ltd v Minister for Human Services and Health
(1996) 40 ALD 565.
[137]
In Vietnam Veterans’ Association of Australia (NSW)
Branch v Alex Cohen [1996] 981 FCA 1 the Federal Court found that decisions
of both bodies were not amenable to judicial review under either the
AD(JR) Act or section 75(v) of the Constitution.
[138]
SAT FM Pty Ltd v Australian Broadcasting Authority (1997) 46 ALD 305.
[139]
See Australian Law Reform Commission Report 92, October 2001, The Judicial
Power of the Commonwealth, A Review of the Judiciary Act 1903 and Related
Legislation, 136.
[140]
Kioa v West (1985) 159 CLR 550, 584 per Mason J, 619-621 per Brennan J
and 632 per Deane J. See also R v Davies, Ex parte Menzies Hotel Pty Ltd (1983)
64 LGRA 53 which also reflects a move away from the distinction between
legislative and other sorts of decisions.
[141]
(1985) 159 CLR 550, [24] per Brennan J. However, in the judgment of Gummow J
in Queensland Medical Laboratories v Blewett (1988) 84 ALR 615, even
although the decision of the Minister with regard to a new pathology services
table was legislative in character, the fact that the committee which advised
him was required to function in accordance with principles of procedural
fairness brought the decision of the Minister within the scope of judicial
review.
[142]
(1985) 159 CLR 550 at 584 quoting Salemi v MacKellar (No. 2) (1977) 137
CLR 396, 452, per Jacobs J
[143]
M Aronson, B Dyer, Judicial Review of Administrative Action, 2000,
p 341.
[144]
Id.
[145]
Id.
[146]
Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446, 478-479.
[147]
Id.
[148]
For background, see earlier discussion in relation to consistency and
predictability.
[149]
It has been concluded that this approach is no longer available following the
introduction of s 39B(1A)(c) of the Judiciary Act 1903.
[150]
See for instance White v Redfern (1879) 5 QBD 15 relating to seizure and
destruction of contaminated meat; R v Davey (1899) 2QB 301 relating to
the isolation of sufferers of an infectious disease; Minosea Pty Ltd v ACCC (1994)
35 ALD 493 relating to the production of books for an inquiry.
[151]
(1985) 62 ALR 253.
[152]
Ibid, 259-260.
[153]
See also comments in Ridge v Baldwin [1964] AC 40.
[154]
See Administrative Review Council, Administrative Decisions (Judicial
Review) Act 1977: Exclusions under Section 19, Report No. 1, 1977,
paragraph 56.
[155]
Administrative Review Council, Administrative Decisions (Judicial Review)
Act 1977: Exclusions under Section 19, Report No. 1, 1977, paragraphs
57-58.
[156]
Minister for the Arts, Heritage and the Environment v Peko Wallsend (1987)
75 ALR 218, South Australia
v O’Shea (1987) 163 CLR 378.
[157]
(1981) 151 CLR 170.
[158]
Similarly with decisions of cabinet. See Minister for the Arts, Heritage
and the Environment v Peko Wallsend (1987) 75 ALR 218, South Australia
v O’Shea (1987) 163 CLR 378.
[159]
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR
507.
[160]
(1982) 151 CLR 342, 370 per Mason J.
[161]
(2001) 205 CLR 507, [78].
[162]
Ibid, [122].
[163]
In Hot Holdings Pty Ltd v Creasey (2002) 193 ALR 90, a Minister’s
decision to approve a recommendation contained in a departmental minute was
held to be valid, despite the fact that two officers involved in the
preparation of the minute stood to benefit from the recommendation being
carried out. The majority of the High Court found that there was no reasonable
apprehension of bias, as the involvement of the two officers in the actual
decision-making process was ‘peripheral’.
[164]
Minister for Immigration and Multicultural Affairs v Jia (2001)
205 CLR 507, [137].
[165]Ibid,
[181].
[166]
Administrative Review Council, What Decisions Should be Subject to Merits
Review?, 1999, paragraphs 5.20, 5.21 and 5.29.
[167]
For example, the work of a specialist medical tribunal, Hockey v Yelland
(1984) 157 CLR 124.
[168]
(2000) 199 CLR 135, 154-155.
[169]
Ibid, 155.
[170]
(1999) 197 CLR 611, 655. His Honour notes that a similar approach has been
adopted in Canada, at least with respect to findings of non-jurisdictional
fact.
[171]
Industry Commission, Competitive Tendering and Contracting by Public Sector
Agencies, Report No. 48, 1996, paragraph 1.46.
[172]
Ibid, paragraphs 4-5.
[173]
Department of Finance and Administration, Commonwealth Procurement
Guidelines Best Practice, September 2001, 15.
[174]
Commonwealth of Australia 1998, Competitive Tendering and Contracting,
AGPS, Canberra, 16-18.
[175]
Privacy Amendment (Private Sector) Act 2000 (Cth).
[176]
Administrative Review Council, The Contracting Out of Government Services,
Report No 42, 1998, paragraph 6.41.
[177]
However, the impact of section 39(1A)(c) of the Judiciary Act should be
noted.
[178]
379th Report, Joint Committee of Public Accounts and Audit
Contract Management in the Australian Public Service, Whole of
Government Response, tabled out of session, Monday, 22 April 2002.
[179]
Id.
[180]
Id
[181]
Mark Aronson, ‘A Public Lawyer’s Response to Privatisation and Outsourcing’ in
M Taggart (ed), The Province of Administrative Law, 1997, 40.
[182]
Administrative Review Council, Administrative Decisions (Judicial Review)
Act 1977: Exclusions under Section 19, Report No. 1, 1977, paragraphs 68 –
73.
[183]
In the absence of other considerations, where a statutory authority is
exercising executive government functions, it is subject to constitutional
review and to review under the AD(JR) Act. As noted by McHugh J in Australian
Securities Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR
559, [147]: ‘When a Commonwealth authority exercises executive functions of the
Commonwealth in a manner akin to that in which ASIC is required to do under the
ASIC Act, that authority is ‘the Commonwealth’ for the purposes of section
75(v) of the Constitution and sections 39, 39B, 56, 57 and 64 of the Judiciary
Act.’
[184]
Such bodes included the Australian Industry Development Corporation, the
Australian National Airlines Commission, the Australian National Railways
Commission, the Australian Shipping Commission, the Canberra Commercial
Development Authority, the Commonwealth Banking Corporation, the Commonwealth
Serum Laboratories, the Health Insurance Commission, the Housing Loans
Insurance Corporation and the Reserve Bank of Australia.
[185]
Administrative Review Council, Government Business Enterprises and
Administrative Law, Report No 38, 1995, paragraph 2.1.
[186]
See for example, General Newspapers Pty Ltd v Telstra Corporation (1993)
117 ALR 629.
[187]
See The Commonwealth of Australia v Bogle (1953) 89 CLR
229 and Deputy Commissioner for Taxation
v State Bank of NSW (1992) 174 CLR 219.
[188]
See the Hilmer Report, Report of the Independent Committee of Inquiry on
National Competition Policy, 1993, Chapter 13.
[189]
Ibid, at 296.
[190]
R Humphrey, Review of GBE Governance Arrangements, March 1997.
[191]
Joint Committee of Public Accounts and Audit, Corporate Governance and
Accountability Arrangements for Commonwealth Business Enterprises, Report
No 372, December 1999, p xix.
[192]
Justice Paul Finn, ‘The State Corporation’ June 1999 3(1) The Flinders
Journal of Law Reform 1, 4 referring to his judgment in Hughes Aircraft
Systems International Air services Australia (1997) 146 ALR
1, 40.
[193]
Ibid, p 6.
[194]
Administrative Review Council, Review of the Administrative Decisions
(Judicial Review) Act: The Ambit of the Act, Report No 32, 1989, paragraph
436.
[195]
Administrative Review Council, Government Business Enterprises and
Commonwealth Administrative Law: Report to the Minister for Justice, Report
No 38, 1995, paragraph 4.27.
[196]
Ibid, paragraph 4.29.
[197]
Ibid, paragraphs 4.35 and 4.42.
[198]
Ibid, paragraph 4.51.
[199]
Margaret Allars, ‘Private Law But Public Power: Removing Administrative Law
Review From GBEs’ (March 1995) 6(1) Public Law Review 44, 76.
[200]
See Administrative Review Council, Administrative Decisions (Judicial
Review) Act 1977: Exclusions under Section 19, Report No. 1, 1977,
paragraph 59.
[201]
Ibid, paragraph 61.
[202]
Id.
[203]
(2000- 2001) 204 CLR 82.
[204]
Ibid, [59] per Gaudron and Gummow JJ.
[205]
Ibid, [104] per McHugh J.
[206]
Id.
[207]
F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry,
[1975] AC 295, 320 (CA),
per Denning MR; affirmed [1975] AC 329.
[208]
Re Refugee Tribunal; Ex parte Aala (2000-2001) 204 CLR 82, [60], [109]
per Gaudron and Gummow JJ.
