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 the function 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:

Ø      bad faith[14]

Ø      power not exercised for purpose given[15]

Ø      unreasonableness including duty to inquire;[16] and

Ø      taking into account irrelevant considerations in the exercise of a discretion or failing to take account of relevant considerations;

·        failure to exercise discretion, including:

Ø      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 9th 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 26th 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 32nd 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 32nd 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 38th 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 42nd 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]

 



[1] (1990) 170 CLR 1, 35 – 36.

[2] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 578-579, 598-600.

[3] (1986) 162 CLR 24, 40-41 citing Wednesbury Corporation [1948] 1 KB, 228.

[4] See for instance Beasley J, Aerolineas Argentinas & Ors v Federal Airports Corporation (1995) 63 FCR 100.

[5] Described by the High Court in Re Refugee Tribunal; Ex parte Aala (2000- 2001) 204 CLR 82, [20] per Gaudron and Gummow JJ.  The Court has indicated on a number of occasions that certiorari is not available in the exercise of its jurisdiction under section 75(v) ‘except as ancillary to the Court’s jurisdiction and power to grant one or more of the remedies there mentioned’: per Kirby J in Re McBain; Ex parte Australian Catholic Bishops Conference; Re McBain; Ex parte Attorney-General (2002) ALJR 694, [176].

[6] Including as a result of the limitations imposed on review by Schedule 1 of the AD(JR) Act itself.

[7] M Aronson, B Dyer, Judicial Review of Administrative Action, 2000, p 72.

[8] The AD(JR) Act was the result of the recommendations made by the Commonwealth Administrative Review Committee, ‘Report August 1971’, Parliamentary Paper No 144, 1971 (the Kerr Committee report); supported by the Prerogative Writ Procedures,Report of Committee of Review’, Parliamentary Paper No 56, 1973 (the Ellicott Committee report), and was enacted with a view to rationalising the common law grounds of review and providing a simpler procedure.

[9] See sections 5(1)(j) and 6(1)(j) of the AD(JR) Act.

[10] Sections 5(1)(h) and 6(1)(h) of the AD(JR) Act.

[11] A number of these grounds of review are examined in greater detail in Part III(I), of the discussion paper.

[12] A decision may be held to be invalid on this ground on the basis that there is no evidence to support the decision or that no reasonable person could have reached the decision on the available facts i.e. there is insufficient evidence to justify the decision taken.

[13] The doctrine of ultra vires may be narrow or extended.  The first form is that a public authority may not act beyond its statutory power: the second covers abuse of power and defects in its exercise.

[14] An exercise of discretionary power in bad faith is where the power has been exercised for an ulterior purpose, that is, for a purpose other than a purpose for which the power was conferred.

[15] Where the power is not exercised for the purpose for which it has been given.  The purpose of the discretion may be determined from the terms and subject matter of the legislation or the scope of the instrument conferring it.

[16] Where a decision is so unreasonable that no reasonable person could ever have arrived at it.

[17] Where an official exercises a discretionary power on direction or at the behest of some other person or body.  An official may have regard to government policy but must apply their mind to the question and the decision must be their decision.

[18] In arriving at their decision, a decision-maker must not misinterpret the legislation under which they are acting or in any way indicate a misunderstanding of the law.  Like ultra vires therefore, this ground involves persons or bodies acting beyond their lawful authority.  Historically though, the term was applied to non-judicial bodies exercising legislative or administrative powers, whereas jurisdictional error was used in relation to inferior courts or tribunals exercising  judicial or quasi-judicial powers.

[19] Under this ground, a decision-maker must have legal authority to deal with the matter upon which they propose to make a decision.

[20] In most cases, the sort of fraud which occurs is the falsification or suppression of evidence.

[21] A copy of Schedule 1 to the AD(JR) Act is included at Appendix I to the discussion paper.

[22] In Abebe v Commonwealth (1999) 197 CLR 510 the High Court upheld the power of Parliament to do this.

[23] Regulation 17 of the National Security (Coal Mining Industry Employment) Regulations 1941 (Cth).  This regulation was the subject of consideration in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598.

[24] Provided they are reasonable, such limits have been ruled valid by the courts.  See for instance Yong Jun Quin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695 and Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468.  See also the judgment of Callinan J in S157/2002 v Commonwealth of Australia [2003] HCA 2, [164 – 176] in relation to section 486A of the Migration Act 1985 which imposes a time limit of 35 days within which to bring proceedings under s section 75(v) of the Constitution in the High Court.

[25] See S157/2002 v Commonwealth of Australia [2003] HCA 2, [5] per Gleeson CJ.

[26] Id.

[27] R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.  The case related to the validity or otherwise of regulation 17 of the National Security (Coal Mining Industry Employment) Regulations (1941 No. 25-1944 No. 48), which provided that decisions in relation to the settlement of industrial disputes by Local Reference Boards could not be ‘challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction in any court whatever’.

[28] Ibid, 616 per Dixon J.  See also Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited (1995) 183 CLR 168.

[29] Coal Industry Act 1946, section 44; Conciliation and Arbitration Act 1904, section 60; Courts Martials Appeals Act 1955, section 30; Customs Act 1901, section 119; Navigation Act 1935, section 325;
Re-establishment and Employment Act 1945, section 28; Public Service Arbitration Act 1920, section 20; Stevedoring Industry Act 1956, section 22.

[30] Coal Industry Act 1946, section 44; Conciliation and Arbitration Act 1904, section 60; Courts Martials Appeals Act 1955, section 30; Customs Act 1901, section 119.

[31] See for instance Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 559; Hockey v Yelland (1984) 157 CLR 124.

[32] See particularly the decision of the High Court in S157/2002 v Commonwealth [2003] HCA 2.

[33] In Project Blue Sky v Australian Broadcasting Authority (1998) CLR 355, [93] per McHugh, Gummow, Kirby and Hane JJ said that rather than seeking to make a distinction between mandatory and directory provisions, the better approach was 'to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid'.

[34] See Goldie v Commonwealth of Australia (2002) 188 ALR 708 involving consideration of section 189 of the Migration Act 1958.

[35] See generally Administrative Review Council, The Contracting Out of Government Services, Report No 42, 1998.

[36] For instance, under the Aged Care Act 1997 (Pt 4.4), the Secretary of the Department may impose sanctions on an ‘approved provider’ for not complying with the Principles prescribed under the Act.

[37] As a result of categorising certain activities of such bodies as ‘commercial in confidence’ the accountability of such bodies may be further limited.

[38] See for instance Robin Creyke, ‘Sunset for the Administrative Law Industry: Reflections on Developments under a Coalition Government’, in John McMillan (ed) Administrative Law under the Coalition Government, Australian Institute of Administrative Law, 1997, 20.  See also Administrative Review Council, The Contracting Out of Government Services, Report No 42, 1998.

[39] Administrative Review Council, Administrative Decisions (Judicial Review) Amendment Bill 1980, Report No 9, 1980, paragraph 9.

[40] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act 1977 – Stage One, Report No 26, 1986, paragraph 6.

[41] Ibid, paragraph 9.

[42] There was concern about abuse of the AD(JR) Act in eight areas of commonwealth administration: broadcasting, trade practices, migration, taxation, customs, committal proceedings, prosecution decisions and extradition proceedings.

[43] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act 1977 – Stage One Report, Report No 26, 1986, paragraph 48.

[44] Ibid, paragraph 96, on condition that State jurisdiction to review such decisions was revived.

[45] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act 1977 - Stage 1, Report No 26, 3.

[46] Ibid, paragraphs 47, 92.  On the strength of the recommendations made by the Council in its 26th report, the government introduced amending legislation into the Parliament.  The Bill, the Administrative Decisions (Amendment) Bill 1986/8, went further than had been recommended by the Council, by requiring the Federal Court to refuse applications under the AD(JR) Act where the applicant had an alternative right to seek review unless the applicant satisfied the Court that the interests of justice required that it should not refuse to grant the application.

[47] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, Report No 32, 1989, paragraph 447.

[48] Ibid, see Recommendation 15.

[49] Ibid, paragraph 218.

[50] Ibid, see Recommendation 1.  In its 42nd report, The Contracting Out of Government Services, the Council repeated this Recommendation; see Administrative Review Council, The Contracting Out of Government Services, Report No 42, 1998, Recommendation 22.

[51] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, Report No 32, 1989, paragraphs 430-438.

[52] Ibid, paragraph 421.

[53] Ibid, paragraph 424.

[54] Administrative Review Council, The Contracting Out of Government Services, Report No. 42, 1998, p vii.