Introduction

SECTION I

Two perspectives

The executive perspective
The judicial perspective

SECTION II

What is an adequate alternative remedy

Nature of the review right

Adequate alternative remedies – two case studies

SECTION III

The grounds of review

Error of law
Procedural fairness
Unreasonableness, irrelevant considerations etc
Concluding comments

SECTION IV

Merits review

The judicial perspective
The executive perspective
Previous Council consideration

Introduction

6.1
In approaching the issue of alternative remedies, it is important to
bear in mind that judicial review is but one element in our administrative
justice system. As well as judicial review, there is also internal review
by a superior officer, merits review by a tribunal and official scrutiny mechanisms
such as the Ombudsman, the parliamentary member whose constituent is affected
by a decision, and the Minister who may be the subject of representations
on the matter. Additionally, there is access to the courts in many cases,
either by way of limited or full appeal.

6.2
Unofficial mechanisms which may also have a significant impact on the
political process include non-government organisations and the media. Access
to official documents by way of freedom of information and statutory
requirements for the provision of statements of reasons are also important,
while systemic issues may be addressed by Commonwealth and State
Auditors-General.

6.3
It has been noted that widening the scope of judicial review brings ‘a
greater risk that the efficient administration of government will be impaired’
and possibly ‘a fragmentation of the process of administrative decision-making
and [setting] at risk the efficiency of the administrative process’.[1]

SECTION I

Two perspectives

The executive perspective

6.4
In its 1973 Report on Prerogative Writ Procedures, the Ellicott
Committee took the view that where specific appeal regimes are in place, the
courts should be able to decline judicial review jurisdiction.[2]
The Committee noted that:

In relation to some statutory discretions, provision is
already made for judicial review before the courts, for example, under the
taxation law. We think it is desirable that where this is the case the court
exercising the jurisdiction for general judicial review should have power to
decline to exercise its jurisdiction.[3]

6.5
This argument was used by some agencies in seeking exemption in 1978
from the application of the AD(JR) Act: it is reflected in paragraph
10(2)(b)(ii) of the Act, which provides that the Court may decline to review an
application if it considers that adequate provision is made under another
enactment for review of a decision by the Federal Court, another court,
tribunal or person. The form of review that will supplement judicial review is
very broadly defined in sub-section 10(3) of the Act to include
reconsideration, rehearing, appeal, injunction and declaration. From this, it
follows that, subject to the discretionary limitations established by
sub-section 10(2), the AD(JR) Act remedies are intended to be generally
available.

6.6
In the Explanatory Memorandum to the Administrative Decisions
(Judicial Review ) Amendment Act 1980, which inserted the current Schedule
1 into the AD(JR) Act, several references are made to the Government not
wanting applicants ‘short circuiting’ the statutory appeal procedures and going
straight to the Federal Court. Similar arguments were also relied on for
example in relation to exclusion of decisions under the Income Tax
Assessment Act 1936 and, more recently, under the Jurisdiction of Courts
Legislation Amendment Act 2000 and the Workplace Relations Act 1996,
from review under the AD(JR) Act.

The AD(JR) Amendment Bill 1986

6.7
This Bill, which was ultimately blocked in the Senate, represents the
most significant legislative attempt to restrict judicial review on the basis
of the existence of alternative remedies. It would have provided for the near
automatic refusal of relief under the Act where there were either alternate
means of review or where the proceeding challenged was not complete, unless the
interests of justice required otherwise. Proposed section 10(2)(d)(iii) of the
Bill would have required the court to consider whether it was:

…desirable to refuse to grant the application in order to
avoid interference with the due and orderly conduct of the proceedings…or for
the reason that…the balance of convenience (including the interest of the
applicant, another party or any other person, the public interest and the
consequences of delay in those proceedings) so requires.

6.8
The aim, according to then Attorney-General, the Hon Lionel Bowen, was
to reduce delay and increase administrative efficiency, as proceedings were
increasingly being fragmented by interlocutory AD(JR) applications. In supporting
the Bill, the Attorney-General’s Department noted that:

Where there is an effective administrative review of
administrative action by an independent body, persons affected by that action
should be encouraged to use that remedy, rather than to seek resort to the
Federal Court under the AD(JR) Act in the first instance.[4]

6.9
The Bill took into account recommendations made by the Council
in its 26^th Report in 1986, Review of Administrative Decisions
(Judicial Review) Act 1977 – Stage 1, but went further than had been recommended
by the Council by requiring the Federal Court to refuse applications made
under the Act where the applicant had an alternative right to seek review
unless the applicant satisfied it that the interests of justice required that
it should not refuse to grant the application.

6.10       In
considering the Bill, the Senate Legal and Constitutional Legislation Committee
recognised the need to strike a balance between merits and judicial review, and
that applicants should be encouraged to use merits review before resorting to
judicial review. The Committee also recognised that there was a problem of
applicants ‘leap-frogging’ merits review and proceeding straight to judicial
review for tactical reasons. However, the Committee was loathe to recommend
restricting judicial review for all applicants because of a few unmeritorious
vexatious ones.

The judicial perspective

6.11       The
existence of an adequate alternative remedy represents an important factor for
the courts in determining whether or not judicial review should lie.[5]

6.12       Under
the AD(JR) Act, however, the Federal Court has tended to start from the
presumption that if the court has jurisdiction to entertain an application for
judicial review, the application should not be refused merely because there is
some other remedy available, unless there are strong reasons to the contrary.
It has been held that the onus persuading the court to examine the discretion
adversely to the applicant rests with the respondent party requesting the
exercise of the discretion.[6]

6.13       Under
the Constitution, the court also retains a discretion to grant relief, amongst
other things, having regard to whether there is a more convenient remedy. In
one case for instance, in relation to the writ of mandamus, it was said by the
High Court that mandamus is not a ‘writ of right’ and that there are ‘well
recognised grounds upon which the court may, in the exercise of its discretion,
withhold the remedy’, including that:

…the writ may not be granted if a more convenient and
satisfactory remedy exists, if no useful result could ensue, if the party had
been guilty of unwarrantable delay or if there has been bad faith on the part
of the applicant, either in the transaction out of which the duty to be
enforced arises or towards the court to which the application is made.[7]

6.14
In another decision of the
High Court it was said that although a right of appeal does not bar the power
of a superior court to grant prohibition, and that any such provision would be
invalid, the court nonetheless has a discretion to grant or refuse the remedy.
Factors enlivening the discretion might include that a decision in favour of
one party might render academic whether or not prohibition should issue, or
because it would assist the court in discharging its ultimate responsibility.
In Aala, the Court confirmed prohibition as a discretionary remedy.
Relevant factors that might cause the discretion to be exercised adversely to
the applicant include “the delay, waiver, acquiescence or other conduct of
the prosecutor”.[8]

 

6.15
Other considerations include
“the high purposes of vindicating the public law of the Commonwealth, of
upholding lawful conduct on the part of officers of the Commonwealth, of
defending the rights of third parties under that law, and of maintaining the provisions
of the Constitution”.[9]

SECTION II

What is an adequate
alternative remedy

6.16       In
addressing whether or not an alternative to an application under
sub-section 10(2) of the AD(JR) Act is ‘adequate’ it has been said that:

In this context, the adequate provision is to be read as
adequate in the sense of suitability or sufficient provision for review.[10]

6.17       In
determining what constitutes ‘adequacy’ of the alternate remedy, it would seem
that it is proper to compare it with the power of the court under the AD(JR) Act.
In the case of Webb v Jackson[11] for instance, a case
commenced in the Supreme Court was considered relevant as it allowed a
rehearing of the matter, including the admission of fresh evidence. In that
case, it was also considered relevant that five other actions had been brought
in the Supreme Court involving the same subject matter. In contrast, a right
of review under the Public Service Act 1922 was considered inadequate as
it did not provide the range of remedies available under the AD(JR) Act.[12]

6.18       Some
of the factors considered relevant to determining the adequacy or otherwise are
set out below.

Nature of the review
right

6.19       Factors
here include:

Nature and scope of review powers

6.20       The
nature of review provisions and the scope of the powers entrusted to the review
body may be relevant factors in determining their adequacy as alternative
review mechanisms.[13] It has been held by the
High Court that where there is a full appeal right, there will be no right of
judicial review from the initial decision.[14] However, the appeal
needs to be ‘full and comprehensive’.[15] In contrast to a right
of appeal, recourse to a review tribunal with no rights to reverse or even
modify the original decision – will not expunge judicial review for procedural
fairness.[16] Similarly, an appeal on
a question of law alone is not sufficient.[17]

6.21       While
an appellate body may have jurisdiction to undertake a de novo hearing
and review a decision it may not have the power to substitute its own decision
for that appealed against, but merely to confirm the decision or else recommend
that it be set aside or varied. As such, it would not be an adequate
alternative. The remedy on appeal must be a true alternative; that is, if the
appeal should succeed, the appellate body must have the power to rectify the
error complained of.[18]

6.22       Account
must also be taken of whether review by appeal is automatic, on request, or
whether leave to appeal must be sought and obtained. If establishment of an
appeals tribunal and determination of an appeal is discretionary, this would
not be a true alternative.[19] The standing or lack of
standing of the applicant to the appeal will also be a relevant factor.

6.23       Time
limits may also be a factor. A right dependent on the success of an
application for extension of the relevant time limit may not be an adequate
alternative.

6.24       Whether
the onus of proof is on an applicant in an appeal from a decision, when they
would not have otherwise have had such an onus, is also a relevant factor.[20]

Discussion point 22

Are the courts sufficiently pro-active in refusing to allow judicial review in the face of other remedies? Please elaborate.

 

Timing

6.25       Timing
is also important.

 

Has
there already been a hearing?

6.26       In
one case, the Federal Court[21] refused to entertain an
application for judicial review on the basis that there had already been a
hearing in the AAT. In reaching this conclusion, the Court was influenced by
the fact that the AAT could offer:

·
full merits review, encompassing law and fact, with the
possibility of an appeal to the Federal Court on a question of law; and

·
having regard to the Aged Care Act, reconsideration of all the
steps taken to reach the ultimate decision and therefore, that proper conduct
of a review by the AAT would cure all the defects in the process that led to
the ultimate decisions complained of, if there were such defects.

6.27       The
Court also noted that its decision as to the adequacy of merits review was not
theoretical in view of the fact that the applications had been heard by the
Tribunal.

 

Is the
matter in the process of being heard/heard?

6.28       In Saitta
Pty Ltd v Commonwealth, it was held by Weinberg J at first instance that:

The fact that it has available to it adequate alternative
remedies in the AAT in proceedings which it has already commenced provides
considerable support for the proposition that the proceedings in this Court
should at least be stayed. Where full merits review is available to, and has
already been invoked by an applicant, Courts will often exercise their
discretion to stay or dismiss applications for judicial review.[22]

6.29       In
another case, the Court declined to allow an application for judicial review
whilst an appeal under section 44 of the Administrative Appeals Tribunal Act
1975 was under way.[23]

Preliminary
or procedural decision

6.30       It
has been held that if undertaken at too early a point, judicial review may
result in a fragmentation of the decision-making process and that this may be
detrimental to the efficiency of the system as a whole.[24]

6.31       The
position has also been complicated by the restricted interpretation of
‘decision’ in Australian Broadcasting Tribunal v Bond. In that case,
Mason CJ held that a decision is generally but not always, a decision which is
final or operative and determinative, at least in a practical sense, of the
issue of fact falling for determination.

6.32       There
are doubts too as to whether an isolated error at a preliminary stage should
invalidate a subsequent or final decision. According to Toohey and Gaudron JJ
in Bond:

If the decision is to stand because it is not attended by a
reviewable error, review of the conclusions and findings leading to that
decision to see if they were attended by some error which, ex hypothesi,
was not carried into the decision so as to render it reviewable is a futile
exercise.[25]

Is an
appeal pending?

6.33       It
has been held that whether or not the fact that the applicant has chosen to
appeal and that his appeal is still pending is a good reason to refuse an
applicant a judicial remedy must depend on the status of the appellate body,
the nature of the appeal and the grounds on which remedy is sought, for
example, appeal to the Minister when not afforded a full hearing – no assurance
of oral hearing or legal representation.[26]

Are
there concurrent AAT proceedings?

6.34       In
one case,[27] it has been observed
that where full merits review is available and has been invoked by an
applicant, Courts will often exercise their discretion to stay and dismiss
judicial review. In that case, it was considered relevant that the AAT could
consider questions of law arising in proceedings before it.[28]
It could therefore consider as part of its consideration of decisions in issue,
the validity of the Aged Care Principles. Although unable to exercise judicial
power or to grant the declaratory relief sought, it could arrive at a
conclusion as to whether or not the steps preceding the making of the sanction
decisions were lawful and whether various provisions of the Act were
contravened.

6.35       If
the presence or absence of jurisdiction depends on questions of fact, and
the court against which prohibition has been sought has not yet determined
those questions of fact, let alone whether it has jurisdiction, the court
may decide the application for review to be premature.[29]

Was
there a delay in instituting proceedings for judicial review?

6.36       In
one case,[30] delay in bringing
proceedings to halt an Inquiry already started under the Public Service Act
1922 was considered an important factor in denying relief. Assessment of
the adequacy of the suggested alternative may not be possible until the
strength of the applicant’s claim is ascertained.

Public interest element

6.37       In
the same case, public interest in the efficient administration of the Public
Service Act 1922 was held to be a factor in refusing relief.[31]

Benefit of court proceeding to applicant

6.38       It
has been held in one case that the applicant would not ‘suffer any great
hardship if [the respondent’s] application succeeds’ was a relevant
consideration.[32] It was noted in this
regard, in a case not involving pure issues of law but ‘at best, mixed
questions of fact and law’, that although the Anti-Dumping Authority was ‘not
necessarily constituted by legally qualified members…its practice is to obtain
advice from the Australian Government Solicitor on any legal issues raised’.[33]

Complexity of the issues

6.39       It
was held in one case that:

…given the apparent complexities of this litigation, it is
difficult to state in advance of the final hearing what ultimate substantive
relief, if any were to be granted, would be the appropriate relief. Until the
likely form of that relief is known, it is premature to speculate about the
possible existence of discretionary reasons why the Court might,
notwithstanding a prima facie entitlement to relief, nonetheless, decline to
order judicial review. This is particularly so when the true nature and scope
of the administrative review now relied upon is not yet fully known.[34]

Relative cost/speed

6.40       It
is relevant, generally speaking, to have regard to any unnecessary delay and
any increased cost if the alternative suggested remedy is pursued.[35]
The desirability of a speedy, authoritative decision may also be an important
factor. As noted by Fox ACJ in Graham v Commissioner of Superannuation:

The main consideration…is what is best to be done in the
interests of the parties and the public interest and with a view to saving cost
and time and reaching as soon as possible a finality of decision.[36]

6.41       It
was noted in the case that:

If the matter were not dealt with by the court the
applicant could seek reconsideration by the Commissioner and then go the AAT
and if the question of law was still decided adversely to her, she might have
to come back to the court. The inability an administrative court to make a
definitive ruling was held to be a factor in the decision.[37]

6.42       Expediency
was a factor in Kelly v Coats, a case involving an error of law, where
it was held by Toohey J that the application before the Federal Court ‘…is
likely to be a more expeditious way of disposing of the matter than the
procedures to be found in the Repatriation Act’.[38]

Other judicial consideration in the case

6.43       In
one case where judicial consideration had already been undertaken at first
instance, the Full Federal Court indicated that it would not be appropriate for
the court to exercise the discretion under paragraph 10(2)(b)(ii) of the AD(JR)
Act.[39]

Urgency

6.44       In
the case of Twist v Randwick Municipal Council, Mason J
noted that:

This case related to an appeal to the district court from a
demolition order made by the Council. The provision indicated a legislative
intention to exclude any hearing prior to the making of the demolition order.
The appeal thereby provided the exclusive remedy. The appeal was a hearing de
novo – a full and comprehensive one on facts and law.[40]

6.45       In Du
Pont,[41] it was noted that the
regime prescribed under the Customs Act 1901 contained
legislative directions as to the times in which various steps were to be taken
and that:

Because of the commercial context in which the questions of
alleged dumping arise may change rapidly there is an obvious need, explicitly
recognised by Parliament, to have the disputed issues resolved promptly.[42]

Consequences of the decision

6.46       In Minister
for Immigration and Multicultural Affairs v Miah,[43]
in allowing judicial review, McHugh J indicated that the nature of the interest
and consequences for the individual, as well as the subject matter of the
application were important. In that case, consequences included possible risk
to life and were, on that basis, undeniably important.

6.47       Conversely,
it has been held by the Federal Court in another case that proceedings under
the Public Service Act should proceed under that Act.[44]

Discussion
point 23

Are there factors other than those identified in the discussion paper relevant to the circumstances in which remedies will present adequate alternatives to judicial review? Please elaborate.

Adequate alternative remedy – two case studies

6.48       In
view of their success, an overview of the income tax and workplace relations
schemes where, in excluding or limiting judicial review, heavy reliance is
placed on the availability of remedies alternative to judicial review. Both
schemes appear to enjoy both judicial and government support. Details of the
two schemes are set out in Appendix 4 to the discussion paper.

Discussion point 24

Are there particular features of the tax and workplace relations review regimes that set them apart? Are there other decision-making regimes which might be included here? Please elaborate.

SECTION III

The grounds of review

6.49       An
important factor influencing the court’s determination whether to exercise the
discretion to allow a judicial review application to proceed to hearing or not
can also be the ground of challenge and the consequences flowing from judicial
intervention.

Error of law

6.50       There
is authority to suggest that where prohibition/certiorari are sought for patent
jurisdictional error, a court has no discretion to refuse the writ once the
court has determined the nature of the error.[45] Indeed, when an
application is on the ground of no jurisdiction/error of law, the courts have
seldom declined to give a remedy merely because the decision is subject to
appeal.[46]

6.51       A
similar approach prevails under the AD(JR) Act. It has been held for instance
that ‘assuming that the applicant’s complaint is truly one of error of law, the
present application [for judicial review] is likely to be a more expeditious
way of disposing of the matter than the procedures to be found in the
Repatriation Act’.[47]

Procedural fairness

6.52       The
factors relevant to refusing relief in the face of an alternative remedy have
been identified by McHugh J in Miah’s case, a case in which it was
contended that the right to a full de novo review by the Tribunal
indicated Parliament’s intention to limit the requirements of natural justice
at the stage where a delegate is examining the applications. While noting
that:

It is true that the existence of appeal or review rights
may affect the extent to which the requirements of natural justice apply at an
earlier level of decision-making,

6.53       His
Honour considered that:

…there is no general rule that a right of appeal or review
necessarily denies or limits the application of the rules of natural justice.
There is no inflexible rule that the presence of a right of appeal or review
excludes natural justice.[48]

6.54       His
Honour suggested that the following factors can be relevant in determining
whether such a right excludes or limits the rules of natural justice:

·
the nature of the original decision: preliminary or final

·
whether the original decision is made in public or private

·
the formalities required for original decision

·
the urgency of the original decision

·
the nature of the appellate body – judicial, internal,
“domestic”

·
the breadth of appeal – de novo or limited; and

·
the nature of the interest and subject matter.

6.55       In
the case at hand, His Honour’s view was that the right of appeal to the
tribunal was insufficient to conclude that the Parliament intended that the
delegate was not required to accord natural justice. Although the de novo
right of review was important it was not sufficient to outweigh the inference
of the subject matter that procedural fairness should lie.

Unreasonableness/irrelevant
considerations etc

6.56       It
would seem that in cases involving applications on the basis of grounds
involving greater focus on fact than law, the courts are more prepared to
regard alternative review processes including merits review by a tribunal as
‘adequate’.

6.57       This
was the case for instance in the Federal Court case of Meng Kok Te v
Minister for Immigration and Ethnic Affairs and Another[49]
where Branson J held that the alternative process, review by the AAT, involving
full merits review, would be an adequate alternative to judicial review and
that questions of fact and law could be argued. Moreover, the decision of the
AAT following such review would be open to be appealed to the Federal Court on
the ground of error of law.

Discussion point 25

Do you agree with this assessment? How do other grounds influence the court’s determination of the existence of adequate alternative remedies? Please elaborate.

SECTION IV

Merits review

The
judicial perspective

6.58       As
reflected in the above discussion, the courts are prepared in some cases to
regard full de novo merits review by a tribunal as an adequate
alternative remedy. As also noted above, a range of other factors such as the
timing of the application, the nature of the decision appealed from and the
ground upon which review is sought, are also pertinent.

6.59       In Brag
v Secretary, Department of Employment, Education and Training,[50]
Davies J expressed the general principle that:

This court is too busy and its processes too costly for it
generally to be appropriate for an applicant to come to the court when there is
an informal and expeditious administrative tribunal established to resolve the
dispute.

and:

We…express the view that in many, (perhaps most)
circumstances, the Court’s proper response to an application of this particular
sort [where the statute establishes a specific appeal mechanism] should not be
to embark upon a full hearing, but rather to exercise the discretion under
s10(2)(b)(ii) adversely to the applicant.[51]

The executive perspective

6.60       In
its report on the Administrative Decisions (Judicial Review) Amendment Bill
1987, the Senate Standing Committee on Legal and Constitutional Affiars indicated
its sympathy with the considerations underlying the Bill, namely, that where
administrative tribunals have been established with jurisdiction to deal with
matters in their entirety, such tribunals should resolve those matters, rather
than the Court, which may address only questions of law.[52]

6.61       Establishment
of a comprehensive merits review system was considered by the Government to be
a significant argument for the limitations on judicial review provided for in
the Migration Reform Act 1992:

The review procedures established in [the Act] provide for
comprehensive merits review of all visa related decisions and in recognition of
this, this ground of review will no longer be available.[53]

6.62       Similarly,
it has been remarked in relation to migration visa decisions that:

There is an obligation to provide review, but there is no
obligation to provide review both of an administrative character and in
relation to providing additional access to the courts. The obligation is to
provide one but not both.[54]

6.63       Conversely,
in its 32^nd report in 1989, when considering the issue of
exclusion from review of taxation decisions the Council was of the view that:

…the availability of a comprehensive appeals system does
not provide a basis for an exclusion from the AD(JR) Act. The Act specifically
contemplates in section 10 that, in certain cases which come before the court
on a judicial review application, adequate provision for appeal or review will
be made elsewhere. The section provides for exercise of the court’s discretion
in those circumstances to refuse to grant the judicial review application.

If the main reason for the exclusion is the existence of a
right of review on the merits, the consistent line which ought to be taken in
the Commonwealth is that, whenever legislation gives a right of review of a
particular class of decision by the AAT, steps ought to be taken to exclude
review under the AD(JR) Act. Quite properly, this course is not in fact
taken. Section 10 of the AD(JR) Act is in place to deal with alternative
remedies.[55]

6.64       As
stated by the Law Council of Australia in its submission in 1998 to the Senate
Legal and Constitutional Legislation Committee on the Migration Legislation
Amendment (Judicial Review) Bill 1998.

…there is abundant evidence that the merits review process
at the moment is not so efficient and effective that one should be prepared
simply to say, by comparison with all the other areas of merits review and
primary decision-making at the federal level that this one should be subject to
only the lightest touches of judicial review.…what sets apart the proposed
privative clause in the Judicial Review Bill is that it would operate to
protect the rulings of bodies that do not have the status of courts but which
nevertheless make findings that typically involve issues of both fact and law…[56]

6.65       Further,
in oral evidence before the Committee, the Australian Law Reform Commission
said that:

It seems to be a misguided belief that judicial review is
some alternative to merits review, particularly when the form of merits review
is as fined down and sparse as the RRT process is, covering what are in many
cases some of the most difficult fact finding, judgmental and legal conundrums
that any decision-maker at the federal level is faced with.[57]

6.66       In
the context of the same report, the Commonwealth Ombudsman noted that:

It is…questionable that merits review could ever be a
substitute for judicial review in relation to dealings with technical legal
arguments and the provision of precedent and guidance to tribunal members.[58]

Previous Council consideration

6.67       In
seeking exclusion in 1978 from the ambit of the AD(JR) Act, some agencies
argued that the existence of adequate alternative avenues of review is relevant
to determining whether classes of decisions should be excluded from the Act.

6.68       In
its first report in 1977 on the Administrative Decisions (Judicial Review)
Act 1977, the Council said that:

 

Review under the Act relates only to unlawfulness, whereas
alternative remedies suggested as adequate (such as appeals to the Administrative
Appeals Tribunal) generally relate to the merits of the decision in question.
While individuals may regard review on the merits as more desirable than
judicial review in most situations, there will be cases in which judicial
review is preferable.

…

Judicial review by the Federal Court is part of a
comprehensive administrative review structure which includes the Administrative
Appeals Tribunal and the Ombudsman. There can be an overlapping of
jurisdiction of the three main review bodies in some areas. But this is an
integral part of the structure…and the three avenues of review can operate
consistently. Accordingly, the existence or non-existence of review by the
Tribunal or Ombudsman is neutral in any argument based on alternative remedies,
and does not justify any exclusion from the Act.[59]

 

6.69       The
Council rejected the argument from agencies that the existence of alternate
remedies justified total exclusion from the AD(JR) Act, noting that section 10
of the Act explicitly provides that the AD(JR) Act rights are additional to
other existing remedies.

6.70       In
its report, the Council also noted that:

Judicial review is a basic remedy in administrative review,
for it is the primary means of ensuring that administrative action is subject
to the rule of law. Hence the existence of an alternative remedy is not in
itself a substitute for judicial review. Generally speaking an alternative
remedy becomes relevant only where there are other principles which support
exclusion from the Act and where the alternative remedy could properly be
regarded as compensating for the consequences of exclusion.[60]

6.71       Subsequently
in its 26^th Report in 1986, Review of Administrative Decisions
(Judicial Review) Act 1977 – Stage 1, the Council looked, at the issue of
overlapping remedies, recommending that the Court’s discretion to stay or
refuse to grant an application for review of a decision should be capable of
exercise at any stage of the proceedings and should be exercised at the outset
of proceedings wherever appropriate although only in a preliminary way.[61]

6.72       As
noted above, while taking into account the recommendations made in the Report,
the Administrative Decisions (Judicial Review) Amendment Bill 1987 went
further than this.

6.73       In
its 32nd report in 1989, Review of the Administrative Decisions (Judicial
Review) Act: the Ambit of the Act, the Council suggested that:

The aim [of government] should be to ensure that judicial
review is not the only avenue of challenge of decisions but performs its
intended role of providing a remedy of last resort.[62]

 

6.74       In
the Report, the Council recommended that the AD(JR) Act should be amended by
provisions along the lines of the Administrative Decisions (Judicial Review)
Amendment Bill 1987 and that the Bill should be amended by substituting words
along the following lines for the concluding words of proposed paragraph
10(2)(c):

…the
Court shall refuse to grant the application if it is satisfied, having regard
to the interests of justice, that the alternative review right is, in all the
circumstances, adequate.[63]

 

The Council also recommended that the concluding words of
proposed paragraph 10(2)(d) of the Bill should be amended to read:

…the
Court shall refuse to grant the application if it is satisfied, having regard
to the interests of justice, that it should do so.[64]

 

6.75       In
relation to overlapping judicial remedies, 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.[65]

 

6.76       In
its deliberations, the Council noted that a right of appeal is wider than a
review right as, unless restricted to issues of law, it will allow review on
matters of law and the merits.

6.77       In What
Decisions Should be Subject to Merits Review? the Council
considered that the preliminary nature of some decisions was a factor justifying
excluding merits review, in the following terms:

This is because review of preliminary or procedural
decisions may lead to the proper operation of the administrative
decision-making process being unnecessarily frustrated or delayed. In the case
of preliminary or procedural decisions, the beneficial effect of merits review
is limited by the fact that such decisions do not generally have substantive
consequences. The benefits are outweighed by the cost of potentially
frustrating the making of substantive decisions.[66]

 

6.78       More
recently, the Council has said that:

 

While the Council supports the use of independent merits
review tribunals, it is not of the view that the existence of merits review in
any way justifies the removal of judicial review or the removal of appeal
rights under section 44 of the Administrative Appeals Tribunal Act 1975.

…

In the Council’s view, the preferable approach would be to
legislate to give courts clear power and authority to strike out proceedings
for judicial review at a preliminary hearing, unless the court was satisfied,
at that stage, that there was a bona fide issue as to the legality of the
tribunal’s proceedings or decision. Under this proposal, courts could be
required, in each application for judicial review of a decision, to consider
whether or not to exercise this power.[67]

Discussion point 26

In what circumstances should the availability of full merits review be sufficient to displace an application for judicial review? Please elaborate.

Concluding comments

6.79       Having
regard to the preceding discussion, it is apparent that there are circumstances
where judicial review might appropriately be supplanted in the face of an
adequate alternative remedy. Moreover, there are circumstances where full
merits review by a tribunal, as well as a right of appeal to a court, will be regarded
as ‘adequate’ for this purpose.

6.80       As
reflected in the preceding paragraphs, the circumstances in which an
alternative remedy may be regarded as ‘adequate’ are multifarious. As
illustrated in the tax and workplace relations areas, some of these circumstances
can be actively anticipated and provided for through the provision of
comprehensive complaint handling and alternate review processes. In the tax
area, for instance, merits review is supplemented but not supplanted by a
comprehensive objection and review stage, the rulings process and a full appeal
right.

6.81       In
situations where grounds such as procedural fairness and unreasonableness form
the basis of an application for judicial review, the better response may be
that a full merits review can provide an adequate alternative to judicial
review. In the case of a claim of bias for instance, it will be the task of
the tribunal to undertake a full and unbiased hearing of the application.

6.82       In
the case of a ground such as unreasonableness, where, as discussed earlier,
there is a strong likelihood that the ‘mischief’ complained of, the
unreasonableness, will be cured by the review process the arguments for merits
as opposed to judicial review are pertinent.

6.83       Arguably,
the issue becomes more pointed in circumstances where a tribunal is an expert
tribunal and the subject matter of the decision is of a technical and
complicated matter. The workplace relations area is a case in point.

6.84       Other
relevant factors include the quality of the decision-making body and the powers
of the decision-making body.

6.85       In
situations where other grounds of review are likely to be relied on, where
there is not full merits review or where issues of error of law are involved,
the right to judicial review may be the preferred option. In such
circumstances, though not all review options have been employed, it may still
be preferable to permit judicial review. It has been said for instance, that:

 

There is no reason for driving the subject to that
expensive process (ie appeal) to abide by the chance of repetition of error,
which, if committed, can, at least, be one rectified by prohibition, and may be
so committed as to be placed beyond the reach of even that remedy; or for
compelling him to submit even to that direct inconvenience arising from that
decision alone, if none lay beyond him.[68]

Discussion point 27

Do you agree/not agree with these views? Are there any other relevant considerations? Please elaborate.