The purpose of the discussion paper is to explore the desirable balance between the right of an individual to test the legality of administrative action by way of judicial review and the need to ensure that as a result of the exercise of this right, the work of government is not unreasonably frustrated.
Structure of discussion paper
The discussion paper consists of seven Parts and three Appendices. At key points throughout the paper, discussion points are positioned (see further below). At these points, views on matters under consideration are sought.
PART I of the discussion paper is introductory, dealing with the objectives and timing of the project. It defines judicial review in the Australian context, with particular reference to the common law and the Administrative Decisions (Judicial Review) Act 1977. Legislative limitations on judicial review and the Council’s previous involvement in considering the scope of judicial review are also canvassed.
PART II focuses on the constitutional significance of judicial review (to the rule of law, accountability and the protection of individual rights). It also addresses constitutional considerations relevant to the scope of judicial review (including the separation of powers doctrine, the distinction between merits and judicial review and the extent to which parliament may limit the scope of judicial review of administrative decisions).
PART III addresses judicial review from three different perspectives including:
- the judicial perspective – justiciability (including legislative and polycentric decisions) and deference
- the executive perspective – considerations raised in the context of the Council’s first report, Administrative Decisions (Judicial Review) Act 1977, Exclusions Under Section 19, – 1978 and other more recently expressed considerations; and
- the public perspective – including speed, cost and accessibility.
PART IV explores the grounds of review including an analysis of judicial review of facts and process. It then investigates specific grounds of judicial review including:
- relevant and irrelevant considerations
- error of law, jurisdictional error; and
- procedural fairness.
Consideration is also given to both the executive and the judicial perspectives on procedural fairness.
PART V identifies a number of suggested considerations which should be taken into account in developing the Council’s proposed guide to the scope of judicial review. Comment is sought on the adequacy and completeness of these considerations.
PART VI focuses on the impact upon the scope of judicial review of adequate alternative remedies.
The Part canvasses the executive and judicial perspectives on this topic (with reference to case-law); the issue of what constitutes an adequate alternative remedy; the impact upon ‘adequacy’ of applications for review on particular grounds of review; and the adequacy of merits review having regard to all these factors.
PART VII addresses the means of limiting or excluding judicial review. In doing this, the paper refers to:
- the underlying constitutional framework
- the uncertain effect of privative clauses
- general principles relating to the legislative removal of rights
- removal of rights and judicial review; and
- the need for clarity and specificity.
APPENDIX I sets out Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977.
APPENDIX 2 sets out examples of legislative clauses to be found in Commonwealth legislation imposing limitations on judicial review.
APPENDIX 3 provides details of the review schemes for administrative decisions developed in relation to income tax assessment and workplace relations.
Discussion point 1
Are there ways in which judicial review has been limited by way of legislative provision other than to those referred to in the discussion paper? (page 16)
Discussion point 2
Are there factors additional to justiciability, the legislative/administrative nature of a decision, polycentricity and deference which are relevant when seeking to define the desirable scope of judicial review? (page 40)
Discussion point 3
Are there factors (for instance, resource considerations, decisions involving policy, existence of adequate alternative remedies) other than those referred to in the discussion paper that are relevant to the government perspective in seeking to define the desirable scope of judicial review? (page 45)
Discussion point 4
Are there factors relevant to the public perspective in seeking to define the desirable scope of judicial review other than those referred to in the discussion paper? (page 48)
Discussion point 5
Is the nature of any ground of review in itself sufficient to justify the limitation or exclusion of judicial review? (page 66)
Discussion point 6
Are there matters associated with the grounds of judicial review which are relevant to the determination of the appropriate scope of judicial review other than those set out in the discussion paper? (page 66)
Discussion point 7
Are there considerations that need to be taken into account in seeking to define the appropriate scope of judicial review other than to those referred to in the discussion paper? (page 70)
Discussion point 8
Is the need for consistency/predicability in decision-making outcomes a sufficient reason for seeking to limit or exclude judicial review? (page 73)
Discussion point 9
Is ‘abuse’ of the review process a reason for limiting access to judicial review? Does such abuse exist? Can it be better identified by the courts or administrators? How best is it addressed – judicially or legislatively? (page 77)
Discussion point 10
What is the significance of the volume/cost of cases in seeking to limit or exclude judicial review? Are there other factors, such as poor primary-decision-making, a reluctance on the part of the courts to refuse review where there are other adequate alternative review mechanisms, or the ready availability of legal aid, which contribute to the high volume of cases and which should be first addressed? (page 82)
Discussion point 11
Are there circumstances in which judicial review should be limited/excluded on the basis of the policy nature of a decision? Is justiciablity a factor in making this determination? Is the executive, or are the courts, better placed to determine when review should be limited on this basis? Are particular grounds of review more susceptible to exclusion on the basis of the policy content of a decision than others? (page 92)
Discussion point 12
Where alternative remedies exist in the criminal justice system, are there circumstances in which judicial review should nonetheless be permitted? (page 99)
Discussion point 13
Is the existence of an ongoing relationship (an employment relationship for instance) a reason for limiting judicial review on some grounds? If yes, which grounds? (page 100)
Discussion point 14
In seeking to impose limitations on decisions of a legislative nature, where those decisions are of wide import, is this better done by the courts or by way of legislation? (page 106)
Discussion point 15
Should there be limitations on judicial review in urgent or emergency situations? Are such limitations better imposed by the courts or Parliament? (page 107)
Discussion point 16
What impact, if any, should the status of a decision-maker have on the desirable scope of judicial review? (page 110)
Discussion point 17
What impact, if any, should the expertise of a decision-maker have on the desirable scope of judicial review? Are there any grounds of review more susceptible to limitation/exclusion on this basis than others? (page 112)
Discussion point 18
How should decision-making by outside contractors be regulated? (page 114)
Discussion point 19
How should decision-making by government business enterprises be regulated? (page 120)
Discussion point 20
How should decision-making by other government bodies be regulated? (page 122)
Discussion point 21
Is it appropriate for the legislature to seek to limit judicial review in circumstances where there is no impact on the final decision and no injustice? (page 124)
Discussion point 22
Are the courts sufficiently pro-active in refusing to allow judicial review in the face of alternative remedies? (page 130)
Discussion point 23
Are there factors relevant to the circumstances in which remedies will present adequate alternatives to judicial review other than those referred to in the discussion paper ? (page 135)
Discussion point 24
Are there particular features of the tax and workplace relations review regimes that reduce the importance of access to judicial review?
Are there other regimes in which, in excluding or limiting judicial review, reliance is placed on alternative remedies to judicial review? (page 136)
Discussion point 25
Do you agree with the assessment in the discussion paper of the impact of particular grounds of judicial review in determining the existence or otherwise of adequate alternative remedies? (page 138)
Discussion point 26
In what circumstances, if any, should the availability of full merits review be sufficient to displace an application for judicial review? (page 143)
Discussion point 27
Do you agree with the concluding comments in the discussion paper in relation to alternative remedies? Are there any other relevant considerations? (page 145)
Discussion point 28
Do you agree that legislative clarity and specificity are important elements in seeking to limit judicial review? Are there other relevant factors? (page 153)