Reasons for limiting judicial review


The judicial perspective

Legislative decisions
Polycentric decisions


The executive perspective

Considerations in the context of the Council’s first report
Other considerations in seeking to limit judicial review


The public perspective



Reasons for limiting judicial review

3.1            Policy considerations relevant to the scope of judicial review are generally not neatly set out anywhere.  Nor are they necessarily always apparent through a process of logical deduction.  For instance, where the impact of an administrative decision upon the freedom of an individual might be considered to be an important consideration in determining whether or not there should be a right of judicial review, the ‘end focus’ of judicial review is not upon merits outcomes.


3.2            As noted earlier in the discussion paper, in reviewing administrative action, the court’s task does not extend past identifying and enforcing the law determinative of the limits and governing the exercise of the decision-maker’s power.


3.3            It has been remarked by Brennan J in the case of Attorney-General (NSW) v Quin that:


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.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. 


The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests, but in terms of the extent of the power and the legality of its exercise.[1]


3.4            So it is that in the criminal, extradition and migration areas for instance, all of them involving decisions concerning personal liberty, the application of judicial review has been subject to statutory limitation.


3.5            As reflected in earlier discussion, it appears to be accepted by all elements involved in Australia’s administrative law system (the executive, the legislature and the judiciary), that in some circumstances, subject to constitutional limitations, there should be limits on the scope of judicial review.


3.6            In seeking to identify the relevant policy considerations underlying this view, the Council will be looking at a range of materials, including what has been said by courts and individual judges, administrators and commentators (including the Council) in relation to the scope of judicial review under the AD(JR) Act, other legislative regimes and at common law.  In so doing, however, it is not possible to dispense entirely with Constitutional considerations discussed in Part II of the discussion paper.


The judicial perspective

3.7            There are at least four important areas in which the courts have imposed limitations upon the scope of their own powers in response to the Constitutional boundaries to judicial review.  These limitations are often articulated in terms of related, though less constitutionally directed considerations, and represent a valuable tool in determining the desirable scope of judicial review. 


3.8            Nowadays, justiciability may best be categorised as a concept whose purpose is to confine the courts to the exercise of judicial power in relation to issues not properly assignable to other branches of government under the separation of powers doctrine and otherwise ‘within the institutional competence ‘ of the courts.[2]  Conversely, non-justiciability is a term that may conveniently be used to denote decisions where the court is of the view that ‘the decision-making function lies within the province of the executive and that it is inappropriate that the courts should trespass into that preserve’.[3] 


3.9            Historically, there is a range of decisions in which the courts have long indicated a reluctance to intervene.  Such decisions may be traced back to the seventeenth century and the rules relating to the immunity of the Crown from judicial review and for protecting the ‘unbounded discretion’ of the King’s prerogatives. [4]


3.10        Recent developments in the concept of justiciability have coincided with the diminution of the prerogative powers,[5] and a corresponding expansion of the range of executive powers exercised by officials.  There has been a related recognition that the doctrine of Crown immunity has less force in relation to executive action.  This is reflected in R vToohey: ex parte Northern Land Council, where it was noted that an exercise of statutory discretionary power by the Queen’s representative ‘very often affects the right of the citizen’[6] and:


…there may be a duty to exercise the discretion one way or another; the discretion may be precisely limited in scope; it may be conferred for a specific or an ascertainable purpose; and it will be exercisable by reference to criteria or considerations express or implied.[7]


3.11        In the wake of Toohey it has been said that:


…[the] function associated with Crown immunity [has been] banished from administrative law.  The assumption that questions of justiciability could be answered on the basis of simple distinctions between statutory powers and prerogative powers, or between the status of the Queens’ representative and that of a minister, [has been] exploded.[8]


3.12        Nonetheless, it is suggested that the concept of justiciability remains an important element of our administrative law system. 


3.13        In determining whether or not a decision is justiciable, the nature and effect of the decision have emerged as critical factors.  Two elements are involved:


·        whether the decision has consequences which affect some person or body other than the decision-maker by either:

Ø      altering legal rights or obligations enforceable by or against a person; or

Ø      depriving a person of some benefits which they had in the past and which they can legitimately expect to continue or where an assurance has been given by the decision-maker that the right will not be withdrawn, or depriving a person of some benefit or advantage or body other than the decision-maker; and


·        whether there are special features of the decision which make judicial review inappropriate[9] such as issues of high level policy, polycentricity,[10] and decisions of a legislative nature (discussed above).


3.14        The foundation for justiciability was discussed by Kirby J:


Th[e] foundation [of justiciability] lies in the separation of powers required by the Constitution. Is the question tendered, of its nature, such as is apt to a court performing court-like functions? If it is not, it matters little in practical terms whether the court, facing an objection, rules that it lacks jurisdiction for want of a "matter" engaging its powers, or that it says that any such "matter" would be non-justiciable. In either event, the court's duty is plain. It should stop the proceedings forthwith. It will thereby send the parties to the other branches of government, or to other public fora, in which they can make their complaint.[11]


3.15        With reference to these considerations, although some decisions are no longer immune from judicial review on the basis of prerogative, they are still treated with caution by the courts.  Decisions affecting national security, foreign affairs, decisions to prosecute or not to prosecute and the grant of pardons to convicted persons are amongst such decisions.  However, it is not sufficient to seek to identify cases that are non-justiciable on the basis of subject matter alone.[12] 


3.16        The grant of executive power under the constitution necessarily entails the imposition of enforceable limitations on the exercise of that power.[13]  Although non-justiciability may exclude certain aspects of judicial review, it may not exclude others.  Some aspects of decisions relating to international relations, national security and even politics, may be justiciable.[14]  Irrespective of subject matter, decisions will be subject to judicial review if they are illegal or ultra vires.[15]


3.17        Regard may also be had to the nature of the decision under review, including the way it is arrived at, rather than the general subject area.  In one case for example, where a decision to remove someone’s positive security vetting due to sexual preference was based on national security considerations and was not reviewable on substantive grounds, it was held that the decision was reviewable for breach of procedural fairness.[16] 


3.18        At its broadest, justiciability has been said to cover matters such as ‘the availability of alternative and more convenient remedies, political questions, questions concerning the distribution of scarce resources and future rights’.[17] 


3.19        Justiciability in the broad sense is what a significant portion of this discussion paper is about.

Legislative decisions

3.20        In Part II of the discussion paper, 'The significance and constitutional scope of judicial review', broad constitutional limits on the exercise of judicial review have been canvassed.  Arising from one of these limitations, the doctrine of the separation of powers, is the accepted categorisation of government functions as legislative, administrative and judicial. 


3.21        Although decisions are rarely held to be invalid on the basis of these distinctions, apart from those reflecting an exercise of judicial power, the legislative or administrative character of a decision has been an aspect which both the courts and government have taken into account in determining which has pre-eminence. 


3.22        The distinction is highlighted in the AD(JR) Act, which is limited in its application to ‘administrative decisions’.[18]  However, it has lost much of its significance as a result of the inclusion in the Judiciary Act of section 39B(1A)(c), which confers jurisdiction on the Federal Court in matters 'arising under any law made by Parliament'.[19]


3.23        Recent case-law seeks to address the issue of whether or not a decision is ‘legislative’ in terms of whether or not the rights of particular individuals are affected.  In Kioa v West for instance, three of the majority judges emphasised the need for persons to be affected ‘as individuals’ if natural justice is to apply.[20]


3.24        This topic is explored in more detail in Section III of Part V of the discussion paper, 'Nature of the decision'.

Polycentric decisions

3.25        It has been said that:


The notion of legal polycentricity…is best understood as referring to matters which are marked by the numerous, complex and intertwined nature of the issues, of the repercussions, and of the interests and people affected.  For example, any decision requiring the allocation of economic resources is significantly polycentric, as every competing claim on government resources is a relevant factor.[21]


3.26        A polycentric decision may therefore be a decision involving complex policy issues relating to the economic, political and social consequences of a proposed mining project, as occurred in Minister for Arts, Heritage and Environment v Peko Wallsend.[22] A result is that the case may not be appropriate for judicial review.


3.27        A polycentric decision may also be one where the limited nature of available government funding will constantly mean that the government will have to balance its priorities.  There is authority for the view that the courts may intervene in such circumstances where an allocation of resources is beyond power or 'capricious and irrational such that no reasonable person could have devised it': however, the courts should not intervene to devise a fairer method of allocation.[23] 


3.28        Case law indicates that the courts will retreat from review that will have an impact on the allocation of resources.  As noted by one British judge:


I would stress the absolute undesirability of the court making an order which may have the effect of compelling a doctor or health authority to make available scarce resources (both human and material) to a particular child, without knowing whether or not there are other patients to whom those resources might more advantageously be devoted.[24]


3.29        On one view, polycentric disputes are inappropriate for judicial resolution on the basis that not all affected parties may be identifiable or able to be brought before the court and that there may be too many possible permutations of results for the parties and judges to be able to provide reasons for the making of a decision.[25]  However, it has also been observed that:


All judicial decisions are polycentric to the extent that they have precedential value and those decisions cover interests and matters not directly before the court.[26]


3.30        It is noted[27] that the Canadian Supreme Court is willing to permit the intervention of affected parties,[28] whilst the US Supreme Court has long permitted written submissions from interested parties as amici curiae.[29] In Australian cases such as Project Blue Sky Inc v Australian Broadcasting Authority[30] involving a challenge to the validity of Australian Broadcasting Authority standards regulations, a tendency in this regard is noted, although whether it will crystallise remains uncertain.[31]


3.31        It has been said that:


…neither polycentricity in particular, nor capability in general, is a valid per se objection to judicial review of constitutional rights.  However, they may be factors supporting judicial restraint in particular cases, and they may require extensions of traditional procedures relating to evidence and the representation of wider interests.[32]


3.32        Although unlikely to be reviewable generally, such decisions would nonetheless be reviewable for ultra vires.  Further, it has been observed with reference to the Tampa case[33] that ‘the courts must be satisfied that a matter is non-justiciable before they decline to deal with the matter’.[34]


3.33        In that case, it was noted that:


It is not an interference with the exercise of executive power to determine whether it exists in relation to the subject matter to which it is applied and whether what is done is within its scope. Even in the United Kingdom, unencumbered by a written constitution, the threshold question whether an act is done under prerogative power is justiciable.[35]


3.34        The role of the courts with respect to judicial review may be limited if there is a principle of deference applied.


3.35        The focus of deference in Australia is primarily upon findings of fact and verbal slips in statements of reasons and is to be contrasted with the focus of the United States Chevron doctrine[36] and to an extent, the Canadian public interest standard,[37] on agency interpretation of legislation.  Contrary to the position in those two countries, in Corporation of the City of Enfield v Development Assessment Commission, the High Court has emphasised that the approach is not:


…the product of any doctrine of ‘deference’, but of basic principles of administrative law respecting the exercise of discretionary powers. [38]


3.36        In support of this view, the Court adverted to the distinction between the merits and the legality of administrative action, and to comments of Brennan J in Waterford v Commonwealth[39] to the effect that ‘there is no error of law simply in making a wrong finding of fact.’


3.37        However, where the legality of executive administrative action taken pursuant to a decision depends on the existence of a particular fact or factual situation, and the question is whether the tribunal acted within jurisdiction, their Honours held that the court must make its own independent determination.  This obligation would arise notwithstanding the fact that the court might attach greater weight to the decision of a primary decision-maker with particular knowledge of an industry or otherwise specially equipped to make the decision.[40]


3.38        The Court acknowledged however that while it must come to its own answer on the question of jurisdiction, if in so doing it were in doubt as to any factual matter, it would be open to it 'to resolve that doubt by giving weight to any determination upon it by the primary decision-maker.[41] 


3.39        The doctrine is also relevant to certain decisions made within jurisdiction.  In Enfield,[42] the High Court has said that where questions arise, within the jurisdiction of an administrative tribunal, upon a settled construction of the applicable legislation and where little might be gained from a detailed examination of previous decisions, in a proceeding in the original jurisdiction of a court on "appeal" from that tribunal, the 'court should attach great weight to the opinion of the [tribunal]'.


3.40        Reference is made to a case[43] where the court said that it 'should attach great weight to the opinion of the tribunal' in considering whether a proposed trade mark was distinctive and ought to have been registered.[44]  The Court also noted[45] approval by Dixon CJ, Williams and Kitto JJ in another case[46] of a passage from a judgment of Lloyd-Jacob J stating that:


By reason of his familiarity with trade usages in this country, a familiarity which stems not only from an examination of marks applied for and of the many trade journals which he sees, but from the perusal and consideration of trade declarations and the hearing of applications or oppositions, the Registrar is peculiarly well fitted to assess the standards by which the trade and public must be expected to estimate the uniqueness of particular indications of trade origin.[47]


3.41        As noted by Gleeson CJ, Gummow, Kirby and Hayne JJ,[48] the weight to be given to the opinion of the tribunal in each case will depend on the circumstances.  According to their Honours, such matters as the field in which the tribunal operates, criteria for appointment of its members, the materials  on which it acts in exercising its functions and the extent to which decisions are supported by disclosed processes of reasoning, would be relevant considerations. 


3.42        Where the question is whether the tribunal acted within jurisdiction, the court must make its own independent determination, although it may attach greater weight to the decision of a primary decision-maker with particular knowledge of an industry or otherwise specially equipped to make the decision.[49]


3.43        This approach may also influence the shape of the obligations to be assumed by decision-makers in relation to the grounds of review, notably, procedural fairness.  In Minister for Immigration and Ethnic Affairs v Jia for example, Hayne J said as follows:


The procedures for decision-making by that body [the Refugee Review Tribunal] are much less formal than those of a court. There is no provision for any contradictor and the procedures are, therefore, not adversarial. The decision-maker has little security of tenure and, at least to that extent, may be thought to have some real stake in the outcome. The decision-maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual's application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. A body like the Refugee Review Tribunal, unlike a court, is expected to build up "expertise" in matters such as country information. Often information of that kind is critical in deciding the fate of an individual's application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment.


The analogy with curial processes becomes even less apposite as the nature of the decision-making process, and the identity of the decision-maker, diverges further from the judicial paradigm. It is trite to say that the content of the rules of procedural fairness must be "appropriate and adapted to the circumstances of the particular case". What is appropriate when a decision of a disputed question is committed to a tribunal whose statutorily defined processes have some or all of the features of a court will differ from what is appropriate when the decision is committed to an investigating body. Ministerial decision-making is different again.[50]

Discussion point 2

3.44        These cases suggest a degree of deference to the inherent knowledge or expertise of the original decision-maker or tribunal on the part of the court.  This inherent knowledge or expertise may also be relevant to the shape of the obligations of the decision-maker on issues of procedural fairness. 


3.45        However, it is another thing altogether to suggest that that the expertise or inherent knowledge of the decision-maker (or the tribunal) is such as to form the basis for excluding judicial review; the adversarial process has the capacity to allow supplementation of the technical inadequacies of the courts.


Are there other factors relevant to the judicial perspective in seeking to define the desirable scope of judicial review?

Please elaborate.



The executive perspective

3.46        The most comprehensive indication of the executive view of the desirable scope of judicial review (at least for the purposes of the AD(JR) Act), occurred in the late 1970s when, at the request of the government, exclusions from the application of that Act sought by agencies were under consideration by the Council.

Considerations raised in the context of the Council’s first report

3.47        The Council’s first report, Administrative Decisions (Judicial Review) Act 1977: Exclusions under Section 19, - 1978, sets out a range of arguments for and against the exclusion of various sorts of decisions from review under the AD(JR) Act.


3.48        In the report, the Council rejected arguments by government agencies for the exclusion of judicial review on the basis of the following considerations:


·        the high number of decisions likely to be brought forward for review[51]

·        decisions involving large elements of policy[52]

·        the existence of adequate alternative remedies[53]

·        the urgency of the decision[54]

·        that the decision was made by an inter-governmental authority[55]

·        that the powers were exercised by State officials[56]

·        that the decision was made by a consultative or an advisory authority or authority not dealing directly with the public[57]

·        in general, that the Act would be used to frustrate and delay the administrative process

·        that the decision was a general management determination under the Public Service Act (such as decisions as to age limits, appropriate qualifications and the creation, abolition and classification of positions)[58]

·        decisions in the Public Service employment area (including decisions relating to recruitment and appointment, discipline, re-integration and appointment of First Division and Statutory officers) other than promotions and promotion appeals which were recommended for exclusion for 12 months from the date of commencement of the AD(JR) Act)[59]

·        the difficulty in producing reasons[60]

·        the possibility of parliamentary disallowance[61]

·        the status of the decision-maker and the person subject to the decision[62]

·        absence of review by the Administrative Appeals Tribunal/exclusion from the application of the Ombudsman Act 1976[63]

·        potential abuse of right to review;[64]and

·        that non-citizens should not be able to get the rights and privileges of the Act;[65]


3.49        The Council was divided as to the application of the AD(JR) Act to commercially competitive statutory authorities, recommending by a narrow majority against exemption.[66]


3.50        The Council also recommended that the following decisions be excluded from the operation of the AD(JR) Act:


·        decisions relating to the administration of justice[67]

·        decisions of the Conciliation and Arbitration Commission (on the basis, in part, of the historical development of the role of the High Court in judicial review of decisions of the Commission and analogous bodies)[68]

·        decisions of the Commonwealth Grants Commission relating to the granting of funds relating to the allocation of funds[69]

·        decisions made by ASIO under the Australian Security and Intelligence Organisation Act and the Telephonic Interception Act (on the basis that such decisions related to national security.  In the case of ASIO employment decisions, review was not considered appropriate)[70]

·        decisions relating to armed forces discipline (on the basis of the detrimental effect on the command relationship which is important in the operations of a disciplined force)[71]

·        certain decisions to withdraw monies in accordance with government appropriations (on the basis that such decisions related to internal financial arrangements made within government)[72]

·        various foreign affairs decisions (on the basis that those decisions relate to Australia’s relations with foreign countries and international organisations)[73]

·        decisions of the Advisory Council for Inter-Governmental Relations (on the basis that it dealt only with the relationships inter se the organs of government – if necessary, such an organisation should only be subject to judicial review in the High Court, which stands at the apex of both Commonwealth and State judicial systems)[74]

·        decisions relating to tax assessment (on the basis of the existence of a long established and well developed system of judicial review of taxation decisions, involving State and Territory Supreme Courts [although not with respect to Sales Tax] the Federal Court [with respect to income tax only] and ultimately the High Court, in the appellate structure.  It was noted that ‘[t]hese courts have power to substitute their assessment for that of the Commissioner, which is not a power available to the Federal Court under the [AD(JR] Act’.  The Council also noted that ‘[u]nder the existing law, tax becomes payable immediately upon the issue of the assessment and the obligation to pay is not deferred pending appeal.  Accordingly, there could be strong incentive to challenge the validity of the assessment under the Act, thereby circumventing the existing appellate processes and possibly deferring payment of the tax.’);[75]and

·        certain migration decisions relating to diplomatic and consular representatives (as such decisions were made on the basis of foreign relations considerations).[76]

Other considerations in seeking to limit judicial review

3.51        More recently, amendments to the Migration Act by the Migration Reform Act 1992, the Migration (Judicial Review) Act 2001 and the Migration Legislation Amendment (Procedural Fairness) Act 2002 have heightened discussion, from both a constitutional and a policy perspective, on the desirable scope of judicial review.  Arguments raised for limiting the scope of judicial review in the context of amendments to the Migration Act have included:


·        abuse of process;

·        the high volume of applications;

·        the need for consistency; and

·        cost.


3.52        As emphasised in Part I of the discussion paper, many enactments and decision-making schemes reflect a desire on the part of the government to limit judicial review.  However, in many instances, extrinsic evidence associated with these enactments (including the Schedule 1 amendment to the AD(JR) Act), provides little indication of the reasons for such limitations.


3.53        In the taxation area, the existence of alternate remedies appears to have been an important consideration.  In the explanatory memorandum to the Administrative Decisions (Judicial Review) Amendment Bill 1980 it is said that:


The purpose of this exclusion [of decisions affecting the assessment or calculation of taxation, including customs and excise duties] is to leave these matters subject only to the ordinary procedures for review or appeal provided in the relevant legislation under which the tax or duty is assessed or calculated, and to prevent these procedures being short circuited by application to the Federal Court for judicial review.


3.54        In its submission in response to draft Council report 32,[77] the Australian Taxation Office said that:


Recourse to the AD(JR) Act is of limited benefit to a taxpayer genuinely seeking review of an assessment as the Federal Court may only consider whether a decision is made according to law and cannot review the merits of a decision. If review were available under the AD(JR) Act this would undoubtedly be used to delay and frustrate the assessment process and to explore the information the Commissioner possessed in relation to the taxpayer.  Perhaps of fundamental importance…to allow review of decisions affecting assessments would radically disturb the onus of proof which, as an integral part of the taxation system, quite properly lies with the payer. It is the taxpayer, not the Commissioner, who is best aware of the taxpayer’s own affairs.[78]


3.55        The ‘conclusive evidence’ provision in section 177 of the Income Tax Assessment Act 1936 reflects a desire to limit and streamline the assessment and review process.  By stating that the production of a notice of assessment is conclusive evidence of its existence, the legislation seeks to avoid litigation by taxpayers delaying the assessment process by requiring the Commissioner in each case to prove the validity of the assessment or justifying the process under which the assessment was raised.  The policy underlying section 177 is to promote efficient tax administration by restricting appeals against assessments to the specialist tax law appeal processes.[79]


3.56        In its 32nd report, the Council also notes as a reason for the inclusion of paragraphs (e) and (g) (decisions relating to taxation assessment and calculation and decisions under the Taxation Administration Act 1953)[80] in Schedule 1 to the AD(JR) Act, the long established and well developed system for appeals against taxation decisions.[81]  In its first report, Administrative Decisions (Judicial Review) Act 1977, Exclusions under section 19, - 1978, the Council also paid cognisance to ‘the historical development of the role of the High Court in judicial review of decisions of the [then, Conciliation and Arbitration] Commission and analogous bodies’.[82]  Any potential to delay the collection of revenue would also be of significance.


3.57        Similarly with the Jurisdiction of Courts (Legislation Amendment) Act 2000 in relation to exemption from the application of the AD(JR) Act of certain decisions in the criminal justice area.  There too, related arguments were raised in relation to abuse of process, frustration of the criminal justice system and prolongation of the criminal justice system. 


3.58        Other restrictions on judicial review, such as those relating to the validity of appointments, though unstated, would also seem to arise from concerns for the efficacy of the administrative system as a whole, concerns apparently considered in those cases to outweigh the benefits of judicial review for the individual.  Similar considerations emerge in the area of workplace relations and public sector employment, where there is a strong emphasis on harmonious working relationships and effective dispute resolution.  This is a particularly important consideration where people may have to continue to work along-side each other.


3.59        Regulation 5.1 of the Public Service Regulations 1999 which contains a statement of general policy concerning review of actions, indicating that it is the policy of the Australian Government that Australian Public Service Agencies should achieve and maintain workplaces that encourage productive and harmonious working environments.  The intention of Part 5 is said to be to provide for a fair system of review of APS actions and it is noted that nothing in Part 5 is intended to prevent an application for review from being resolved by conciliation or other means at any time before the review process is completed.


Discussion point 3

Are there other factors relevant to the executive perspective in seeking to define the desirable scope of judicial review?

Please elaborate.



The public perspective

3.60        In seeking to determine the appropriate scope of judicial review in given situations, it is not only the views and interests of the courts and the executive that need to be taken into account.  The best interests of the general public need always to be taken into consideration.


3.61        The concept of administrative justice is relevant to any such consideration, holding, as it does, implications for both the quality and the procedural standards adopted in the making of a decision.


3.62        Elements such as:


·        lawfulness

·        rationality; and

·        fairness


have been said to be relevant to the quality of the decision, while concepts of:


·        accessibility

·        affordability

·        cost to the general public[83]

·        timeliness;[84] and

·        discernible reasons for the decision[85]


have been said to be relevant to the procedural side of administrative justice.[86]


3.63        As stated elsewhere in this discussion paper, while encompassing consideration of questions of lawfulness, procedural fairness, and in extreme situations, the rationality of a decision, judicial review does not provide for the substitution of one administrative decision for another. 


3.64        The court has no jurisdiction simply to cure administrative injustice or error.  It has therefore been observed that 'the extent of the support able to be given by judicial review processes to administrative justice is considerably circumscribed'.[87]


3.65        Additionally, there is a tension between judicial review and considerations of cost, timeliness and accessibility, all of which are desirable from the point of view of the individual applicant and the general community. 


3.66        Judicial review is often more expensive for the parties challenging a decision than merits review, and it is arguable that an external review on the merits will achieve the same outcome and result not only in the setting aside of the decision but the making of the correct or preferable decision in its place.


3.67        It has been said in this respect that:


(I)t is often good policy to commit certain primary decision-making, and the grievance procedures in relation to those primary decisions, to a relatively judge-proof environment.  Questions of accessibility (including cost, effectiveness and efficiency) must be relevant to the

design of relationships between bodies within a regulatory structure and to their individual and overall relationship in the courts.[88]


3.68        It has also been said that a decision-making system that:


…guarantees ultimate correctness or accuracy in decision-making is likely to run counter to these desirable essentials of the decision-making process. Detailed fact finding, careful balancing of issues,… will be slow.  Some persons affected by government decisions can afford to have this occur but they will be few in number.[89]


3.69        In response to such arguments it may be countered that there are significant rights going to the scope of decision-making power and the manner in which it is exercised recognised in the grounds of judicial review, which are not fully replicated in the merits review process.


3.70        As noted in Part II of the discussion paper, 'The Significance and Constitutional Scope of Judicial Review', judicial review is an essential element of the rule of law and a significant aid to executive accountability, consistency and precedent.  All these things are of ultimate benefit to members of the public who experience administrative decision-making.

Discussion point 4

Are there other factors relevant to the public perspective in seeking to define the desirable scope of judicial review?

Please elaborate.


[1] (1990) 170 CLR 1, 36.

[2] The Hon Sir Anthony Mason AC KBE, ‘The High Court as Gatekeeper’ (2000) 24(2) Melbourne University Law Review 784, 788 and ‘The Importance of Judicial Review of Administrative Action as a Safeguard of Individual Rights’ (December 1994) 1(1) Australian Journal of Human Rights 3, 8.

[3] The Hon Sir Anthony Mason AC KBE, ‘The Importance of Judicial Review of Administrative Action as a Safeguard of Individual Rights’ An Address to the Australian Bar Association Fifth Biennial Conference,
4 July 1994, 14.

[4] R v Toohey ; Ex parte Northern Land Council (1981) 151 CLR 170, 218 per Mason J quoting from
W Blackstone, Commentaries on the Laws of England (1809) Bk 1, p 251.  See also Margaret Allars, ‘The Rights of Citizens and the Limits of Administrative Decisions: The Contribution of Sir Anthony Mason to Administrative Law’ (2000) 28(2) Federal Law Review 187.

[5] The prerogative powers include, inter alia, the power to conduct foreign affairs, to declare war or peace, to enter into international treaties, to prorogue, dissolve and summon the parliament, to appoint Commonwealth officers (Commonwealth Constitution, section 64) and a priority to debts.

[6] (1981) 151 CLR 170, 219.

[7] Id.

[8] Margaret Allars, 'The Rights of Citizens and the Limits of Administrative Decisions: the Contribution of Sir Anthony Mason to Administrative Law' (2000) 28(2) Federal Law Review 187, 196.

[9] See Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374, 408-9.  See also Wilcox J in Minister for Arts, Heritage and the Environment v Peko Wallsend  (1987) 75 ALR 218, 305 and Kioa v West (1985) 159 CLR 550, 583 per Mason J.

[10] That is, disputes requiring account to be taken of a large number of interlocking and interacting interests and considerations.  See, for example, Lon Fuller, ‘The Forms and Limits of Adjudication’ (1979) 92 Harvard Law Review 353.

[11] Thorpe v Commonwealth of Australia (No 3) 144 ALR 677, 692.

[12] Sir Anthony Mason AC KBE, ‘The Scope of Judicial Review’, Lecture 2, National Lecture Series on Administrative Law (November 2001) AIAL Forum No 31 21, 24.

[13] Re Ditfort; ex parte Deputy Commissioner of Taxation (NSW) (1998) 19 FCR 347, 369.

[14] Peter Cane, ‘Merits Review and Judicial Review: The AAT as Trojan Horse’ (2000) 28 Federal Law Review 213, 216 – 7.

[15] Sir Anthony Mason, ‘The Importance of Judicial Review of Administrative Action as a Safeguard of Individual Rights’ (December 1994) 1(1) Australian Journal of Human Rights 3, 8.

[16] R v Director of Government Communications Headquarters; Ex Parte Hodges [1988] COD 123.

[17] Peter Cane, ‘The Function of Standing Rules in Administrative Law’ (1980) Public Law 303, 312.

[18] See the definition of ‘decision’ in sub-section 3(1) of the Administrative Decisions (Judicial Review) Act 1997.

[19] For further discussion see Australian Law Reform Commission Report 92, October 2001, The Judicial Power of the Commonwealth, A Review of the Judiciary Act 1903 and Related Legislation, 136.

[20] Kioa v West (1985) 159 CLR 550, 584 per Mason J, 619 – 21 per Brennan J and 632 per Deane J.

[21] Jeremy Kirk, ‘Rights, Review and Reasons for Restraint’ (March 2001) 23(1) Sydney Law Review 19, 26.

[22] (1987) 75 ALR 218.

[23] Minister for Primary Industries v Austral Fishing (1993) 112 ALR 211, 221 and 230 per Beaumont and Hill JJ.

[24] Re J (A Minor) (Medical Treatment) [1992] 4 All ER 614, 625 per Leggat J.

[25] Lon Fuller, ‘The Forms and Limits of Adjudication’ (1979) 92 Harvard Law Review 353, 394-5 and

[26] Jeremy Kirk, ‘Rights, Review and Reasons for Restraint’ (March 2001) 23(1) Sydney Law Review 19, 26.

[27] Id.

[28] FL Morton and I Brodie, ‘The Use of Extrinsic Evidence in Charter Litigation before the Supreme Court of Canada’ (1993) 3 National Journal of Constitutional Law 1, 10.

[29] US Supreme Court Rules, Rule 37.

[30] (1998) 194 CLR 355.

[31] See Attorney-General v Breckler (1999) 197 CLR 83.  The judgments in Re McBain; Ex parte Australian Catholic Bishops Conference; Re McBain; Ex parte  Attorney-General (2002) 76 ALJR 694 would suggest not.

[32] Jeremy Kirk, ‘Rights, Review and Reasons for Restraint’ (March 2001) 23(1) Sydney Law Review 19,

[33] Ruddock v Vadarlis (2001) 183 ALR 1.

[34] Sir Anthony Mason AC KBE, ‘The Scope of Judicial Review’, Lecture 2, National Lecture Series on Administrative Law (November 2001) AIAL Forum No 31 21, 26.

[35] Ruddock v Vardalis (2001) 183 ALR 1, [30] per Black CJ and French J.

[36] The Chevron doctrine applies in the United States where the statute administered by a federal agency or regulatory authority is susceptible of several constructions, each of which may be seen to be a reasonable representation of Congressional intent.  As noted by Gleeson CJ, Gummow, Kirby and Hayne JJ in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 151
‘It is a matter of debate in the US whether the doctrine applies to the interpretation by agencies of statutes which define their jurisdiction’.

[37] This arises from a general requirement in Canada that administrative agencies take into account public interest in their decision-making.  There is also another deference doctrine in Canada arising from the decision of the Supreme Court of Canada in New Brunswick Liquor Corp v CUPE Local 963 ((1979) SCR 227) restricting courts’ ability to review administrators’ interpretation of their statutory charter, including jurisdictional facts, unless the decision was patently unreasonable.  See further,
Robin Creyke, ‘The Criteria and Standards for Merits Review by Administrative Tribunals’, Commonwealth Tribunals: The Ambit of Review, Law and Policy Papers, Paper No 9, Centre for International and Public Law, 1, pp 15-16.

[38] Ibid, 153, per Gleeson CJ, Gummow, Kirby and Hayne JJ.  See also judgment by Gaudron J in the same case.

[39] (1978) 71 ALR 673.

[40] (2000) 199 CLR 135, 155.

[41] (2000) 199 CLR 135, 151, per Gleeson CJ, Gummow, Kirby and Hayne JJ. See also the judgment of Gaudron J 158-159.

[42] Ibid, 154, per Gleeson CJ, Gummow, Kirby and Hayne JJ.

[43] Id.

[44] Registrar of Trademarks v Muller (1980) 144 CLR 37, 41.

[45] Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 154 per Gleeson CJ, Gummow, Kirby and Hayne JJ.

[46] In Eclipse Sleep Products Inc v The Registrar of Trade Marks (1957) 99 CLR 300, 321-2.

[47] In the Matter of Ford-Werke AG’s Applications for a Trade Mark (1955) 72 RPC 191, 194.

[48] Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 154-155.

[49] Ibid, 155.

[50] (2001) 205 CLR 507, [180 – 181].

[51] Administrative Review Council, Administrative Decisions (Judicial Review) Act 1977: Exclusions under Section 19, Report No. 1, 1977, paragraph 49.

[52] Ibid, paragraph 50.

[53] Ibid, paragraphs 52 – 55.

[54] Ibid, paragraphs 56 – 58.

[55] Ibid, paragraph 59.

[56] Ibid, paragraph 60.

[57] Ibid, paragraph 61.

[58] Ibid, paragraph 94.

[59] Ibid, paragraph s 85, 86.

[60] Ibid, paragraphs 20 – 42 and 129A (a).

[61] Ibid, paragraph 129A (b).

[62] Ibid, paragraphs 129 (e) and 129A (d).

[63] Ibid, paragraphs 70 and 129 (b).

[64] Ibid, paragraphs 171 - 172.

[65] Ibid, paragraph 171.

[66] Ibid, paragraphs 68 – 73.

[67] Ibid, paragraphs 74 – 80.  See more detailed discussion later in the discussion paper.

[68] Ibid, paragraph 124.

[69] Ibid, paragraph 128.

[70] Ibid, paragraphs 136 – 138.

[71] Ibid, paragraph 150.

[72] Ibid, paragraph 154.

[73] Ibid, paragraphs 157 and 158.

[74] Ibid, paragraph 217.

[75] Ibid, paragraph 223.

[76] Ibid, paragraph 170.

[77] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, Report No 32, 1989, paragraph 265.

[78] It might be remarked that this is a principle of general application since it would include all those who seek to gain benefit/advantage from the government.

[79] See comments to this effect by the Court in Kordan Pty Ltd v Commissioner of Taxation 46 ATR 191.

[80] See Appendix I of this paper.

[81] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, Report No 32, 1989, paragraph 262.

[82] Ibid, paragraph 124.

[83] At an individual level, few persons affected by administrative decisions have the capacity to undertake an extensive review process.  The veterans’ review area, where legal aid funding is available for review, provides an exception in this regard.

[84] As noted elsewhere in this paper, the position with respect to migration and taxation differs in that, in those cases there may be advantages to the applicant in seeking to delay the decision-making process.

[85] Reflected in section 13 of the Administrative Decisions (Judicial Review) Act 1977.

[86] Justice R S French, ‘Administrative Justice in Australian Administrative Law’, in Robin Creyke and John McMillan (eds), Administrative Justice – the Core and the Fringe, Australian Institute of Administrative Law Inc, 9, 14.

[87] Ibid, 22.

[88] M Aronson, B Dyer, Judicial Review of Administrative Action, 2000, p 10.

[89] Dennis Pearce, ‘Is There Too Much Natural Justice’ (1992) 12 1994 AIAL Forum 9.  See also Justice R S French, ‘Judicial Review Rights’ (March 2001) 28 AIAL Forum
30, 31.