PART I – INTRODUCTION

SECTION I

The Council
The project
Timing of the project

SECTION II

What is judicial review?
Further aspects of judicial review

Judicial review at common law and under the Administrative
Decisions (Judicial Review) Act 1977
Grounds of review

SECTION III

Limits on the scope of judicial review

• Judicial limits
• Legislative limits – the AD(JR) Act
• Other ways in which judicial review has been legislatively limited
• Legislative schemes with comprehensive alternative review schemes
• Non-legislative means of limiting judicial review – privatisation/outsourcing

SECTION IV

Previous Council involvement in consideration of the scope
of judicial review

SECTION I

The Council

1.1
The Administrative Review Council was established under the Administrative Appeals Tribunal Act 1975 as an integral part of the Commonwealth system of administrative law. The Council advises the Attorney-General on a broad range of administrative law issues related to Commonwealth administration.

The
project

1.2
In November 2000 the Administrative Review Council approved a project to the explore of the proper scope of judicial review having regard to the need to achieve an appropriate balance between providing individuals with a means of testing the legality of administrative action and preventing litigation from frustrating government policies.

1.3
The intention of this discussion paper is to encourage debate and invite comments and submissions on relevant issues, with a view to allowing the Council to develop a set of principles to assist determination of the circumstances in which judicial review, or various grounds of review, should (or should not) apply. It is anticipated that the ultimate outcome of the project will be the publication of a set of guidelines for agencies, legislators and commentators, exploring policy issues relevant to the scope of judicial review, including the desirable minimum scope of judicial review having regard to constitutional considerations.

1.4
In July 1999 the Administrative Review Council published a booklet entitled What Decisions Should Be Subject to Merits Review? That publication contained non-binding guidelines designed to assist in the development of legislative proposals involving administrative decision-making powers. The Council hopes that its final publication on the scope of judicial review will be a useful complement to its merits review booklet.

Timing
of the project

1.5
In view of the Council’s close involvement, historically, with the scope of judicial review for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act), and having regard to other subsequent significant developments in the history of Australian judicial review, the Council considers it both timely and helpful to revisit the scope of judicial review.

1.6
As a consequence of the increasing use of review mechanisms, other than
the AD(JR) Act, the scope of any such consideration must necessarily extend
beyond the scope of judicial review for the purposes of that Act.

1.7
The Council hopes that this discussion paper will make a significant contribution to the debate in this area. It also hopes that the ultimate production of guidelines will assist stakeholders to identify the circumstances in which, and the area of our Constitutional system by which, the exclusion of judicial review is appropriate.

SECTION II

What is judicial review?

1.8
A classic statement of the scope and nature of judicial review is to be found in the judgment of Brennan J in Attorney-General (NSW) v Quin:

The essential warrant for judicial intervention is the declaration
and enforcing of the law affecting the extent and exercise of power: that
is the characteristic duty of the judicature as the third branch of government…The duty and jurisdiction of the court to review administrative action do not
go beyond the declaration and enforcing of the law which determines the limits
and governs the exercise of the repository’s power. If, in so doing, the
court avoids administrative injustice or error, so be it; but the court has
no jurisdiction simply to cure administrative injustice or error.[1]

 

1.9
Judicial review is not the re-hearing of the merits of a particular case. Rather, it is where a court reviews a decision to make sure that the decision-maker used the correct legal reasoning or followed the correct legal procedures.

1.10       On
review, if a court finds that a decision has been made unlawfully, the powers of the court will generally be confined to setting the decision aside and remitting the matter to the decision-maker for reconsideration according to law.[2]
It follows from this that there will be circumstances in which although a decision is not the correct or preferable decision on the facts, it will not be open to judicial review. Conversely, there may be situations where a decision is the correct or preferable one, but may be set aside because it is subject to legal error.

1.11       Judicial
review is a more limited right than a right of appeal. As noted by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not thefunction of the court to substitute its own decision for that of the administrator by exercising a discretion, which the legislator has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.[3]

1.12       Whereas merits review is available in relation to decisions specified under the Administrative Appeals Tribunal Act 1975, judicial review is available for all decisions of an administrative character.

Further
aspects of judicial review

Judicial review at common
law and under the Administrative Decisions (Judicial Review) Act 1977

1.13       Judicial review remedies existed in Australia prior to the introduction of the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act) and have coexisted with that Act since its introduction. The traditional common law means of challenging the validity of administrative action is by way of the prerogative
writs of prohibition, certiorari and mandamus or the equitable remedies of
injunction or declaration.

1.14       Additionally, there are actions for damages for misfeasance in public office, for recovery of moneys exacted colore officii or paid by mistake[4]
and for trespass, detinue and conversion where the plaintiff challenges the validity of the authority relied upon by the defendant as an answer to the allegedly tortious acts. Remedies in contract and negligence may also be available.

1.15       Jurisdiction under the AD(JR) Act is conferred on the Federal Court, and review under that Act may be considered to be that court’s principal judicial review jurisdiction. However, applications for review are not as significant as appeals under the Administrative Appeals Tribunal Act 1975 or other legislation permitting appeals as to the merits of the decision.

1.16       Further jurisdictional bases for judicial review in Australia include:

·
section 75(iii) of the Constitution which confers upon the High Court original jurisdiction ‘in all matters…in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party’

·
the High Court’s power under section 75(v) of the Constitution to issue the remedies of mandamus, prohibition, or injunction against an officer of the Commonwealth[5]

·
section 39B(1) of the Judiciary Act 1903 which confers the High Court’s Constitutional writ jurisdiction, as described above, on the Federal Court, and section 39B(1A)(c) which has given the court jurisdiction in relation to any matter ‘arising under the laws of the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter’; and

·
section 44 of the Judiciary Act which permits the High Court to remit matters to the Federal Court. Matters which may be remitted include those in which mandamus or prohibition is sought against a Commonwealth officer or in which a person is being sued or suing on behalf of the Commonwealth is a party.

1.17       At the time of the passage of the AD(JR) Act the expectation was that review of administrative decisions under that Act would become the predominant form of review in Australia. As a result of limitations on review by the Federal Court under the AD(JR) Act[6] however, review by way of section 75(v) of the Constitution and section 39B of the Judiciary Act continues to represent significant alternatives to AD(JR) Act review.

1.18       While some decisions are excluded from review under the AD(JR) Act, the Federal Court can nonetheless deal with such matters by virtue of the jurisdiction bestowed on it by the Judiciary Act. The High Court also has original jurisdiction in relation to such matters. Although noting these jurisdictional interfaces, it is not the Council’s intention, in developing the discussion paper, to focus upon them.

Grounds of review

1.19       While it has been said that the grounds of judicial review ‘defy precise definition’,[7] most if not all are concerned either with the processes by which a decision was made or the scope of the power of the decision-maker. As noted, results or outcomes of the decision-making process are not primary concerns of judicial review.

1.20       Although the common law grounds are reflected in large part in the grounds of review set out in sections of the AD(JR) Act,[8] there are some differences. For example, under the AD(JR) Act, the common law distinction between errors of law on and off the record has been abolished. There is also the ‘catch all’ ground of ‘otherwise contrary to law’[9] and the ‘no evidence’ ground, which is different from considering whether a decision-maker has wrongfully included or excluded evidence or included irrelevant evidence.[10]

1.21       Common law judicial review covers some areas of administration not covered by the AD(JR) Act, such as decisions not made under an enactment.

1.22       For the purposes of this discussion paper, the Council will take account of the following grounds of judicial review.[11] While the grounds are not mutually exclusive, they provide a framework for discussion:

• Failure to observe natural justice including:
  • the right to be heard
  • the rule against actual and apprehended bias; and
  • the probative evidence rule;[12]

 

• Decisions which are not authorised, including:[13]
  • no substantive power/failure to comply with procedure;
  • abuse of power including:
    • bad faith[14]
    • power not exercised for purpose given[15]
    •  unreasonableness including duty to inquire;[16] and
    • taking into account irrelevant considerations in the exercise of a discretion or failing to take account of relevant considerations;
  • failure to exercise discretion, including:
    • acting under dictation;[17]

 

• Excess of jurisdiction, including:
  • error of law[18]/jurisdictional error;[19] and
  • fraud.[20]

SECTION III

Limits on the scope of
judicial review

1.23       The nature of our constitutional system is such that the scope of judicial review of executive decision-making is a topic guaranteed to occupy the minds of courts and government.

1.24       It appears always to have been recognised (by both the courts and the executive) that some areas of administrative decision-making are more or less amenable to judicial review than others. There are many important areas of government decision-making where attempts have been made to limit the scope of judicial review.

Judicial limits

1.25       Areas where the courts have shown themselves unwilling to intervene include acts of a high governmental or political nature, such as the signing of a treaty, the existence of war, belligerence and neutrality and the recognition of foreign governments. Traditionally also, decisions within the industrial relations area, and more recently, many decisions on personnel matters within public
administration, and with respect to income tax assessment have been considered by the courts to be less amenable to judicial review.

Legislative limits –
the AD(JR) Act

1.26       The exceptions to judicial review set out in Schedule 1 the AD(JR) Act[21] represent the largest single legislative consolidation of exemptions from judicial review. They were the subject of consideration in a number of Council
publications, notably, the Council’s first report, Administrative Decisions (Judicial Review) Act 1997, Exclusions under Section 19 – 1978.

1.27       Another example of a legislative limitation on judicial review is provided by the Migration Reform Act 1992, which replaced the Federal Court’s jurisdiction in relation to migration matters under the AD(JR) Act and section 39B of the Judiciary Act.

1.28       From the date of that legislation, the Migration Act contained its own statement of the permissible grounds of review by the Federal Court. These grounds were more limited than those provided for under the AD(JR) Act or at common law.[22]

1.29       While the Federal Court’s power under section 44 of the Judiciary Act to hear cases on remittal from the High Court remained, in reviewing such cases, the Federal Court was limited to the powers it would have had if the case had been commenced in the Federal Court.

Other ways in which judicial review has been legislatively limited

1.30       Government
has not been content to limit judicial review under the AD(JR) Act alone.
Other broader means of limiting review, notably, by way of privative clause,
directed at common law review, have also been used.

Privative clauses

1.31       Typically,
a privative clause provides that a decision should not be challenged, appealed
against, quashed or called into question, or be subject to prohibition,
mandamus or injunction in any court or on any account whatever.[23]
A clause prescribing time limits beyond which there can be no judicial review
may also be regarded as a privative clause.[24]

1.32       On
its face, such a clause would appear to be unconstitutional in so far as it
seeks to deprive the High Court of its jurisdiction to require officers of the
Commonwealth to act within the law. Parliament may enact laws within the
limits of its legislative capacity which must be conformed with, and ‘create,
and define, the duty, or the power, or the jurisdiction, and determine the
content of the law to be obeyed’,[25] though it ‘ cannot
deprive the High Court ‘of its constitutional jurisdiction to enforce the law
so enacted’.[26]

1.33       Traditionally,
such clauses (also known as Hickman clauses)[27]
have been construed by the courts so as to allow review on three apparently
narrow grounds – that the decision was not made bona fide, that it did not
relate to the subject matter of the relevant statute and that it was not
reasonably referrable to the power of the decision-maker.

1.34       This
rule of construction is a means of reconciling provisions in an Act which
impose requirements on a decision-maker to follow set statutory criteria when
making a decision with provisions which purport to oust the jurisdiction of the
courts to review whether those criteria were complied with.

1.35       As
stated by Dixon J in Hickman’s case:

… where the legislature confers authority subject to
limitations, and at the same time enacts such a clause…it becomes a question of
interpretation of the whole legislative instrument whether transgression of the
limits, so long as done bona fide and bearing on its face every appearance of
an attempt to pursue the power, necessarily spells invalidity’.[28]

 

1.36       At
the time of the passage of the AD(JR) Act, eight privative clauses existed
under federal legislation.[29] While all were repealed
by section 4 of that Act, four of the categories of decision covered by the
clauses[30] were subsequently
included in Schedule 1 to the Act. The Act did not seek to preclude future use
of privative clauses.

1.37       Privative
clauses have achieved public prominence recently as a result of the inclusion
of such a clause in the Migration Act by the Migration (Judicial Review) Act
2001. By means of this clause, appearing in section 474 of the Migration
Act, it has been sought to limit the types of review applications that can be
made, not only to the Federal Court as formerly, but also to the High Court.

1.38       Although
the validity if not the effectiveness,[31] of such clauses has been
largely upheld in cases subsequent to Hickman,[32]
the Council believes that rather than using privative clauses and relying on
the courts to maintain their jurisdiction by reading them down, consistent with
accepted interpretive principles, it would be more appropriate to set out with
precision the boundaries of decision-making power so that a person’s rights and
obligations are apparent on the face of the legislation.

1.39       Such
an approach would also be more in keeping with underlying concepts of
government accountability and transparency. This issue will be returned to in
more detail in the Part VII to the discussion paper.

Other limits

1.40       Other
ways in which judicial review may in practical terms be limited by way of
legislative provision include:

1.
by giving a
decision-making body very wide jurisdiction

2.
by providing
that a provision is not intended to affect the validity of a determination[33]

3.
by providing
that anything that the body shall have effect as if enacted by parliament

4.
by including
evidentiary clauses deeming all things done and, that a certain result has been
achieved on production of a certificate, or other formal proof of proper form

5.
by way of
self-executing decision, that is, a decision where the ‘decision’ follows
automatically from the existence of objective facts[34]

6.
by providing
in legislation that only certain decisions are reviewable, thereby excluding
others, which may then only be challenged at common law on limited grounds

7.
by amending
the range and scope of the grounds of review themselves; and

8.
by making
certain aspects of the decision-making process legislative rather than
administrative in character.

1.41       Examples
of clauses falling within these categories are set out in Appendix 2 to
the discussion paper.

Discussion point 1

Are there other ways in which judicial review has been limited legislatively? Please elaborate.

Legislative schemes with comprehensive alternative
review schemes

1.42       As
well as exclusion by way of legislative provision, some legislative review
schemes, as a whole, have the effect of limiting or discouraging merits and
judicial review. The schemes of review developed under the Workplace
Relations Act 1996, the Migration Act 1958 and the Income Tax
Assessment Act 1936 are significant examples of this. The comprehensive
review process established under the Public Service Act 1999, with its
layered review process and its emphasis upon alternative conciliatory methods
of dispute settlement is also relevant.

Non-legislative means of limiting
review – privatisation/outsourcing

1.43       A
significant development from the judicial review perspective has been the
government policy of privatisation and outsourcing, reflected in the increase
in recent years of contracting out of government services and in the corporatisation
of government business enterprises.

1.44       While
utilised in areas such as electricity and gas supply, garbage collection and
street maintenance, contracting out and corporatisation also extend into areas
that have traditionally been seen as the responsibility of government such as
social and health services, aged care, housing, public transport and employment
assistance.[35]

1.45       Although
standards are often imposed on contractors under such schemes, responsibility
for enforcing standards lies with the contracting agencies as opposed to
service users,[36] who do not have direct
rights of recourse against providers.

1.46       Such
developments have the potential effectively to remove a wide range of
government decisions and public functions from the scope of administrative
review,[37] and in some cases, from
the scrutiny of parliament.[38]

SECTION IV

Previous Council
involvement in consideration of the scope of judicial review

1.47       Prior
to the commencement of the AD(JR) Act, the Council was requested by the Government
of the day to advise on the question of exclusions from the application of that
Act.

Report No 1, 1978

1.48       In
its first report, Administrative Decisions (Judicial Review) Act 1977 –
Exclusions Under Section 19 – 1978, the Council canvassed a range of arguments
for and against the exclusion of various sorts of decisions from review under
the AD(JR) Act. These included:

·
the number of decisions likely to be brought for review

·
decisions including high level policy

·
decisions where adequate alternative avenues of review exist

·
decisions by public authorities in competition with private
enterprise

·
employment decisions other than those relating to conciliation
and arbitration; and

·
decisions relating to conciliation and arbitration.

Report No 9, 1980

1.49       Subsequently,
in its 9^th report, Administrative Decisions (Judicial Review)
Amendment Bill 1980, the Council commented on the Administrative
Decisions (Judicial Review) Amendment Bill 1980 which inserted Schedules 1
and 2 into the AD(JR) Act. In its report, the Council noted that a
number of decisions included in the Schedules appeared to be inconsistent with
the bases of the Council’s previous recommendations based on the previous form
of the Act.[39]

Report No 26, 1986

1.50       In
its 26^th report, Review of the Administrative Decisions (Judicial
Review) Act 1977 – Stage One, the Council produced a preliminary report, in
which it considered whether experience of the operation of the AD(JR) Act had:

…demonstrated, that in the course of achieving its primary
aims, the Act ha[d] left public authorities open to unwarranted litigation.[40]

1.51       The
Council observed 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.[41]

1.52       Following
an analysis of the areas in which it had been alleged that there had been
abuses of the Act,[42] although finding that
there had been no such abuses, the Council identified two areas of difficulty:

·
possible use of the Act for delaying purposes; and

·
problems of overlapping remedies both in general terms and in
terms of legislation which provides specific avenues for review or appeal
against administrative action.

1.53       The
Council considered four options for reform:

·
inserting a leave requirement in the AD(JR) Act

·
extending and clarifying the Federal Court’s power to refuse an
application for review

·
restricting review of interlocutory decisions; and

·
excluding particular classes of decisions from AD(JR) Act review.[43]

1.54       Apart
from decisions taken in the course of committal proceedings involving
Commonwealth officers,[44] the Council did not
support exclusion from review of particular classes of decisions in relation to
which concerns about abuse of the Act had been expressed.

1.55       Relevantly
however, the Council recommended that the Federal Court should have a
discretion to stay or refuse to grant an application for review, amongst other
things:

…where the Federal Court is satisfied that adequate
provision is made by any law (other than the AD(JR) Act) under which the application
is entitled to seek review by the Federal Court, by another court or by another
tribunal, authority or person, of that decision, conduct or failure, and that,
in all the circumstances of the case, it would be reasonable, or would have
been reasonable to seek that review.[45]

1.56       The
Council recommended that the discretion should be capable of exercise at any
stage of the proceedings and should be exercised at the outset of proceedings
wherever appropriate.[46]

Report No 32, 1989

1.57       In
its 32^nd report, Review of the Administrative Decisions (Judicial
Review) Act: The Ambit of the Act, having regard to the inclusion in the
Judiciary Act of section 39B, the Council recommended widening the scope of
judicial review under the AD(JR) Act commensurate with that available under
section 75 of the Constitution by way of the Constitutional writs.

1.58       In
the report, the Council recommended the repeal of many of the paragraphs of
Schedule 1 and the extension of the powers of the Federal Court to refuse to
grant applications for review, especially where the applicant had an
alternative remedy available and where the decision sought to be challenged was
not justiciable. The Council noted that:

To the extent that, in some areas of the Commonwealth
administration, there exists side by side with rights under the AD(JR) Act a
right of appeal, or to make other application to the courts…the operation of
the AD(JR) Act as one fork of a bifurcated review path needs to be considered.[47]

1.59       In
considering this issue, the Council recommended strengthening the Court’s
discretion to refuse relief in circumstances where alternative relief was
available.[48] This recommendation was
said to be underpinned by the objective of:

…eliminat[ing], as far as possible, the need for litigants
to consider dual avenues of review in the Federal Court which, again, detract
from the simplicity, equity and efficiency of the law and the legal process.[49]

1.60       In
its 32^nd report, the Council also considered the question of
judicial review under the AD(JR) Act of decisions of officers of the
Commonwealth under non-statutory schemes, recommending that the Act should be
extended 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 were authorised by a government appropriation.[50]

1.61       The
Council also briefly examined the issue of the application of the AD(JR) Act to
commercial decisions of government business enterprises (GBEs) that were not
statutory authorities, concluding that review of decisions of GBEs should
continue to be available under the Act, but that commercial decisions of GBEs
not created by statute but incorporated under companies legislation were
subject to sufficient control under corporations law.[51]

Report No 38, 1995

1.62       In
its 38^th report, Government Business Enterprises and Commonwealth
Administrative Law, the Council concluded that, as a general principle,
‘the commercial activities of a GBE, undertaken in a market where there is real
competition, should be exempt from the administrative law package’.[52]
The Council also noted however, that activities of a GBE that were not
commercial activities conducted in a commercial market, should continue to be
subject to administrative law.[53] The Council again
recommended extension of the scope of the AD(JR) Act to make it commensurate to
that of section 75 of the Constitution.

1.63       In
its 42^nd report, The Contracting Out of Government Services,
the Council considered the application of administrative law in the context of
services contracted out to extra-governmental bodies. It concluded that the
contracting out of government services should not result in a diminution of
government accountability or the ability of members of the public to seek
redress where affected by the actions of a contractor delivering a government
service.[54]