THE SCOPE OF JUDICIAL REVIEW

ADMINISTRATIVE REVIEW COUNCIL

THE SCOPE OF JUDICIAL REVIEW

DISCUSSION PAPER

2003

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COVER PAGES
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SCOPE OF JUDICIAL REVIEW DISCUSSION PAPER EXECUTIVE SUMMARY
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Structure of discussion paper

PART I – INTRODUCTION
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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 review – privatisation/outsourcing

SECTION IV
Previous Council involvement in consideration of the scope of judicial review

PART II – THE SIGNIFICANCE AND CONSTITUTIONAL SCOPE OF JUDICIAL REVIEW
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SECTION I
The significance of judicial review
An element of the rule of law
An aid to accountability
Consistency and precedent
An individual right
Previous Council consideration

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

PART III – OTHER FACTORS RELEVANT TO THE SCOPE OF JUDICIAL REVIEW
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INTRODUCTION
Reasons for limiting judicial review

SECTION I
The judicial perspective
Justiciability
Legislative decisions
Polycentric decisions
Deference

SECTION II
The executive perspective
Considerations raised in the context of the Council’s first report
Other considerations in seeking to limit judicial review

SECTION III
The public perspective

PART IV – THE GROUNDS OF REVIEW AND THE SCOPE OF JUDICIAL REVIEW
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Introduction

SECTION I
The grounds of review
Review of facts
Review of process

SECTION II
A closer look at certain grounds of review
Unreasonableness
Relevant/irrelevant considerations
Error of law
Jurisdictional error
Procedural fairness (including probative evidence)

PART V – PROPOSED CONSIDERATIONS IN DEVELOPING A GUIDE TO THE SCOPE OF JUDICIAL REVIEW
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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
The nature of the decision
Policy and policy decisions
Decisions 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 upon final decision
No injustice

PART VI – THE EXISTENCE OF ADEQUATE ALTERNATIVE REMEDIES
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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 remedy – two case studies

SECTION III
The grounds of review
Error of law
Procedural fairness
Unreasonableness/irrelevant considerations etc

SECTION IV
Merits review
The judicial perspective
The executive perspective
Previous Council consideration
Concluding comments

PART VII – HOW MIGHT JUDICIAL REVIEW APPROPRIATELY BE LIMITED
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Introduction

SECTION I
The underlying constitutional framework
The uncertain effect of privative clauses
General principles relating to legislative removal of rights
Removal of rights and judicial review

SECTION II
The need for clarity and specificity
The need for clarity
The need for specificity

APPENDIX 1
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ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977

APPENDIX 2
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LEGISLATIVE LIMITATIONS ON REVIEW
Other ways in which judicial review may be limited

APPENDIX 3
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ALTERNATIVE REMEDIES
Two case studies
Taxation
The review scheme
Significance of the review scheme from the executive perspective
Significance of the review scheme from the perspective of the taxpayer
Workplace Relations Appeal scheme
The scheme
Support for the scheme

How to make comments and submissions

You are invited to make comments and submissions in response to this discussion paper. These should be sent to:

The Executive Director
Administrative Review Council
Robert Garran Offices
National Circuit
BARTON ACT 2600

Phone: (02) 6250 5800
Facsimile: (02) 6250 5980
E-mail: arc.can@ag.gov.au

Internet: law.gov.au/arc

Closing date: 4 July 2003

It would be helpful if comments addressed specific discussion points or paragraphs in the discussion paper.

Confidentiality

If you want your submission, or any part of it, to be treated as confidential, please indicate this clearly. A request for access to a submission marked ‘confidential’ will be determined in accordance with the Freedom of Information Act 1982 (Cth).

The Council may include in its final guideline report on this project, a list of submissions received in response to this discussion paper. It may also refer to those submissions in the text of the report and other Council publications. If you do not wish your submission or any part of it to be used in any of these ways, please indicate this clearly.

This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part may be reproduced by any process without written permission.

ISBN: 0 642 211779

Cover designed by the Attorney-General’s Department.

Administrative Review Council

The members of the Administrative Review Council are:

Wayne Martin QC (President)

Justice Garry Downes AM

Ron McLeod AM1

Professor David Weisbrot

Bill Blick PSM

Christine Charles

Robert Cornall

Professor Robin Creyke

Stephen Gageler SC

Patricia Ridley

The Council acknowledges the contribution to this project of the Scope of Judicial Review sub-committee: Stephen Gageler SC (Chair), Professor Robin Creyke and Wayne Martin QC. Justice Garry Downes AM was an observer on the sub-committee.

The Council also acknowledges the particular contribution of Margaret Harrison-Smith, Acting Executive Director, Administrative Review Council Secretariat to the development of the discussion paper.

1 Ron McLeod AM was an ex officio member of the Council until 18 February 2003.

CONTENTS