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


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?


The significance of judicial review

2.1            In Australia, judicial review represents an important element in a comprehensive administrative justice system.[1]  Other elements of this system include:


·        internal administrative review by superior officers

·        external administrative review by tribunals

·        external scrutiny and recommendations by Ombudsmen and Parliamentary Commissioners[2]

·        access to information under freedom of information legislation or statutory requirements for the provision of documents

·        protection of information under privacy legislation

·        statutory rights to reasons; and

·        protection against breaches of human rights or discriminatory conduct by human rights and anti-discrimination legislation


2.2            Associated accountability mechanisms include:


·        parliamentary processes and committee systems; and

·        the role of Commonwealth and State auditor-generals in addressing systemic issues.


2.3            Within this scheme, judicial review has a number of important functions.

An element of the rule of law

2.4            As well as defining the constitutional limits of judicial review, the Constitution underscores the significance of judicial review as an element of the rule of law:


Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by the law and the interests of the individual are protected accordingly.[3]


2.5            As also noted:


Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers.  It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise.  The rule of law requires no less.[4]


2.6            Further:


To the extent that the courts are impeded from exercising judicial review of administrative decisions, the rule of law is negated.[5]

An aid to accountability

2.7            It has been said that leaving aside considerations flowing from the role of the courts in determining the content and application of the rule of law, ‘the most obvious benefit brought by judicial review is that it forces care in administrators and reviewers in their adjudicative process’.[6]  Further:


…one by-product of judicial review as an accountability measure is that it can encourage independence and integrity.  A decision-maker whose ruling is subject to curial oversight is less likely to toe a particular policy line or succumb to political pressure to decide cases in a particular way.  The courts offer security to those who make a bona fide attempt to make findings on the facts and the law as presented and sanctions for those who choose to act on arbitrary or capricious considerations.[7]

Consistency and precedent

2.8            One of the important aspects of the jurisdiction of tribunals in our administrative system is that they do not establish precedent: each case is to be examined on its merits.  In contrast, although the decision to litigate can be quite ad hoc, the rulings of the courts are of precedential value and can provide direction on important elements of administrative law, especially obligations imposed upon decision-makers by particular statutes.


2.9            As noted by the Law Council of Australia in the context of its submission on the Migration (Judicial Review) Bill 1998:


The Refugee Review Tribunal…deals with complex legal issues…The courts provide interpretation of legislative provisions and on the relationship between old and new laws.  Both the Refugee Review Tribunal and the Immigration Review Tribunal, like most tribunals, often see differences of opinion arise between the way particular members interpret the relevant legislation…court decisions are normative and binding on tribunal members.  The fostering of consistency between members and the knowledge of the correct interpretation of a certain provision are benefits for all those involved in the immigration process, from applicants, departmental decision-makers through to review officers.[8]

An individual right

2.10        Government is the source of many benefits, and an individual’s right to review of decisions in relation to the administration of those benefits is as important as the entitlement to bring an action in the courts to enforce a right against a fellow citizen.[9]


2.11        Such a right is not adequately protected by the doctrine of ministerial responsibility.[10]  That is reflected in the comprehensive Australian system of administrative law.


2.12        In summary:


…judicial review plays an important part, in a highly public way, of declaring, reasserting and supporting important standards necessary to the rule of law expressed in the delivery of administrative justice as well as addressing departures from those standards in individual cases.[11]

Previous Council consideration

2.13        Consistent with these views, in its Report No 32, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, the Council noted that:


Judicial review of administrative decisions is an aspect of the rule of law which requires that executive action is not unfettered or absolute but is subject to legal constraints.  The availability of judicial scrutiny of the legality of administrative action serves the twofold purpose of protecting individual rights and interests from unauthorised action and ensuring that public powers are exercised within their legal limits.[12]


2.14        More recently, in its submission to the Senate Legal and Constitutional Legislation Committee on the Migration (Judicial Review) Bill 1998, the Council observed that:


In the Commonwealth context, it is…of fundamental constitutional importance that a decision made or action taken in the exercise of authority, whatever its source, is susceptible to review by the courts, if the decision-maker or action taker is an officer of the Commonwealth or a person acting for or on behalf of the Commonwealth or Commonwealth authority and if the decision or action affects a right, privilege, duty, obligation or legitimate expectation of a person.[13]


2.15        Additionally, the Council sees a role for judicial review in:


…enhanc[ing] community confidence about the standards that will generally be applied by the Commonwealth administration in making decisions which affect the interests of individuals in the community. An essential part of judicial review of administrative action has been the progressive development by an independent judiciary of procedural standards of fairness and lawfulness against which the powers of government officials may be measured.[14]


2.16        The Council maintains these views, and considers that, without good reason, the scope of judicial review should not be limited:


Ousting of judicial review is not a matter to be undertaken lightly by the Parliament…It is the cause for the utmost caution when one arm of government (in this case the Executive) seeks the approval of the second arm of government (the Parliament) to exclude the third arm of government (the Judiciary) from its legitimate role whatever the alleged efficiency, expediency or integrity of the programs is put forward in justification.[15]



The Constitution and the scope of judicial review

Separation of powers

2.17        As recognised some thirty years ago by the Commonwealth Administrative Review Committee (the Kerr Committee), the shape of our federal system of administrative law is very much the consequence of the regime established by Parts I, II and III of the Constitution, particularly the concept of the separation of powers.[16]  Constitutional considerations define not only the significance of judicial review, but also its limits.


2.18        A very important consequence of the separation of powers for the federal administrative review system is that whereas in the review of administrative decisions, the courts can exercise the judicial power of the Commonwealth, administrative tribunals cannot.

The distinction between merits and judicial review

2.19        The judicial review powers vested in the courts are complementary to but distinct from the administrative review powers vested in Commonwealth merits review tribunals.  Even though in making decisions, a merits review tribunal may be required to form opinions on questions of law, some of which may be complex and untested by the courts, ultimately, the determination of such questions is an exercise of federal judicial power and must be made by the courts.  In reaching their determinations, the courts are not required to have regard to the interpretation placed on the law by tribunals.

2.20        The difference between merits and judicial review is commonly stated in terms of merits review enabling the review of all aspects of a decision including findings as to facts and the exercise of any discretions that may have been conferred on the decision-maker, whereas judicial review is concerned only with whether or not the decision was lawfully made.


2.21        A merits review body will ‘stand in the shoes’ of the primary decision-maker and will make a fresh decision based on all the information available to it.[17] Whereas the object of merits review is to ensure that ‘the correct or preferable’ decision is made on the material before the decision-maker,[18] judicial review is directed towards ensuring that the decision made by the primary decision-maker was properly made within the legal limits of the relevant power.


2.22        In response to the constitutional divide between judicial and executive power, the courts have shown themselves concerned, on many occasions, to acknowledge and to maintain the margins between judicial and merits review.


2.23        As noted by Brennan J in Quin’s case:


If the courts were to assume a jurisdiction to review administrative acts or decisions which are unfair in the opinion of the court – not the product of procedural unfairness, but unfair on the merits – the courts would be assuming a jurisdiction to do the very thing which is to be done by the repository of an administrative power, namely, choosing among the courses of action upon which reasonable minds might differ…If judicial review were to trespass on the exercise of administrative power, it would put its own legitimacy at risk.[19]


2.24        Similar views were subsequently expressed by four High Court judges in Minister for Immigration and Ethnic Affairs v Wu Shan Liang where it was also noted that:


…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon [by] over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[20]


2.25        In a separate judgment in Wu Shan Liang’s case, Kirby J said that a decision-maker’s reasons ‘must be considered fairly’ and that:


It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.[21]


2.26        Furthermore, it has been said that:


The process of administrative decision-making is often quite different from the syllogistic process of judicial decision-making.  In the first place, judicial decision-making usually has only two basic elements: law and fact …If the discretion or evaluation plays a part, the part is well confined.  No broad policy elements intrude.  But policy is often an integral part of administrative decision-making, denying the application of the syllogistic method.  A decision-maker who has mistaken a fact or made an error in law may nevertheless make the correct or preferable decision if he legitimately applies a policy wide enough to require the same decision whether or not there be a mistake or an error of law.  Some administrative action is not based upon the existence of a fact but on the apprehension of the possibility that the fact exists.[22]

Other constitutional limits on the scope of judicial review?

2.27        From a constitutional perspective, beyond the issue of the dichotomy between judicial and legislative power, the Commonwealth Parliament has considerable power to limit persons obtaining remedies prohibiting or enforcing administrative action.


2.28        Consistent with this view, it has been said that:


The proper balance between merits and judicial review is ultimately a matter of legislative policy, subject of course to any constitutional restrictions on the complete removal of judicial review.  It is for the government to determine whether to have any merits review of administrative decisions, and if so, the appropriate number of levels or tiers of merits review (whether internal or external).  Within constitutional limits, it is also open for the government to find ways to limit the availability and scope of judicial review avenues, so as to place more emphasis on a merits review process.[23]


2.29        Such limitations are of course subject to the ‘well recognised principle that the subject’s right of recourse to the court is not to be taken away except by clear words’.[24]


2.30        As said by Gleeson CJ in S157/2002 v Commonwealth of Australia:


Section 75(v) of the Constitution confers upon this Court, as part of its original jurisdiction, jurisdiction in all matters in which a writ of mandamus, or prohibition, or an injunction, is sought against an officer of the Commonwealth. It secures a basic element of the rule of law. The jurisdiction of the Court to require officers of the Commonwealth to act within the law cannot be taken away by Parliament. Within the limits of its legislative capacity, which are themselves set by the Constitution, Parliament may enact the law to which officers of the Commonwealth must conform. If the law imposes a duty, mandamus may issue to compel performance of that duty. If the law confers power or jurisdiction, prohibition may issue to prevent excess of power or jurisdiction. An injunction may issue to restrain unlawful behaviour. Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed. But it cannot deprive this Court of its constitutional jurisdiction to enforce the law so enacted.[25]

[1] A system more comprehensively and specifically directed than the system of entrenched civil rights of the United States, the Canadian Charter of Rights and Freedoms or the United Kingdom’s Human Rights Act 1998.

[2] It might be noted that the Government has recently considered establishing an office of Inspector-General of Taxation to strengthen the advice given to the government on matters of tax administration and process. The intention is that the Inspector-General will act as an advocate for all taxpayers.  Complaints for individual taxpayers would continue to be investigated by the Ombudsman.

[3] Church of Scientology v Woodward (1982) 154 CLR 25, 71 per Brennan J.

[4] Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 157 per Gaudron J.

[5] The Hon Sir Gerald Brennan, ‘The Mechanics of Responsibility in Government’ (1999) 58(3)
Australian Journal of Public Administration 3, 9.

[6] Mary Crock, ‘Privative Clauses and the Rule of Law: The Place of Judicial Review Within the Construct of Australian Democracy, in S Kneebone (ed) Administrative Law and the Rule of Law: Still Part of the Same Package?, Australian Institute of Administrative Law, 1999, 57, 80.

[7] Id.

[8] Submission of the Law Council of Australia to the Senate Legal and Constitutional Legislation Committee Inquiry into the Migration Legislation Amendment Bill (No 2) 1998, Migration (Visa Application) Charge Amendment Bill 1998 and Migration (Judicial Review) Bill 1998, Submission No 5, 18 January 1998, 12.

[9] Former Chief Justice of Australia, Sir Anthony Mason AC KBE, ‘The Importance of Administrative Action as a Safeguard of Individual Rights’ (December 1994) 1(1) Australian Journal of Human Rights 3.

[10] R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, 222 per Mason CJ.

[11] Justice R S French, ‘Judicial Review Rights’ (March 2001) 28 AIAL Forum 30, 32.

[12] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, Report No 32, 1989, paragraph 19.

[13] Submission of the Administrative Review Council to the Senate Legal and Constitutional Legislation Committee Inquiry into the Migration Legislation Amendment Bill (No 2) 1998, Migration (Visa Application) Charge Amendment Bill 1998 and Migration (Judicial Review) Bill 1998, Submission No 4, 18 January 1998, at 5.

[14] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, Report No 32, 1989, 6.

[15] Senate Legal and Constitutional Legislation Committee, Consideration of Legislation Referred to the Committee: Migration Legislation Amendment (Judicial Review) Bill 1998, April 1999, 27 citing the Scrutiny of Bills Committee report quoted in Submission No. 8, National Council of Churches in Australia, 3.

[16] The Kerr Committee report, 1971, see particularly Chapter 4, paragraphs 59 – 73.

[17] Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39, 1995, paragraphs 2.2 – 2.3, 2.54 – 2.55, and for example, powers conferred on the Administrative Appeals Tribunal by subsection 43(1) of the Administrative Appeals Tribunal Act 1974.

[18] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 68.

[19] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 37-38 per Brennan J.

[20] (1996) 185 CLR 259, 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

[21] Ibid, 291.

[22] Justice Brennan, 'The Purpose and Scope of Judicial Review' (1986) 2 Australian Bar Review 93, 95.

[23] David Bennett QC, Commonwealth Solicitor-General, ‘Balancing Judicial Review and Merits Review’ (September 2002) 53 Admin Review 22.

[24] Hockey v Yelland (1984) 157 CLR 124, 130 per Gibbs CJ.

[25] [2003] HCA 2, [5].