The grounds of review

Review of facts
Review of process


A closer look at certain grounds of review

Relevant/irrelevant considerations
Error of law
Jurisdictional error
Procedural fairness (including probative evidence)



4.1            In this Part, the Council will examine the reasons why, in certain areas, the nature of the grounds of review themselves might encourage limitations on the scope of judicial review.


The grounds of review

4.2            Notwithstanding the measures taken by the courts to maintain a boundary between merits and judicial review, it is one which is not always easy to maintain. The nature of particular grounds of review highlights this tension.  As a result, a number of the grounds of review have become a significant factor for government and courts in seeking to permit, exclude or limit the scope of judicial review.


4.3            The Council considers that it would be useful to undertake a brief analysis of those grounds.  The response of courts, administrators and others to the issues raised in relation to such grounds may well be of assistance, in a broad sense, in identifying policy guidelines for the scope of judicial review and, more narrowly, to the determination of the extent to which those grounds should apply in particular situations.

Review of facts

4.4            A controversial aspect, recognised by both the courts, administrators and others is the open texture of a number of the grounds of review and the extent to which they provide courts with the potential to engage in a subjective reconsideration of the facts (i.e. the merits) of a case.[1]


4.5            As stated, the tension between fact and law is a key factor in determining the margins of judicial and merits review.


4.6            On the role of primary decision-makers and tribunals, it has been said that:


Findings of fact are traditionally the domain where a deciding authority or tribunal is master in its own house.  Provided only that it stays within its jurisdiction, its findings are in general exempt from review by the courts, which will in any case respect the decision of the body that saw and heard the witness or took evidence directly.[2]


4.7            However, there is a strong perception that with the assistance of certain grounds of review, the Federal Court has engaged in merits review, particularly in its response to applications for judicial review on the basis of error of law:[3]


Judicial review’s professed indifference to the substantive merits of the impugned decision is not always convincing, and not ultimately reconcilable with some of the grounds of review.[4]


4.8            In so far as they focus the attention of the courts on significant errors of fact or reasoning relied upon by a decision-maker in support of a decision, such grounds:


…have a greater tendency than others to blur the line between the legality and the merits of a decision, and provide tools by which a court can re-examine aspects of the merits of a decision.[5]


4.9            Grounds with this potential include:


·        unreasonableness;

·        the no evidence rule;

·        failure to take into account relevant considerations and taking account of irrelevant considerations;

·        jurisdictional error;

·        the jurisdictional fact doctrine; and

·        procedural fairness (including the probative evidence rule, adverse factual material).[6]

Review of process

4.10        Another aspect of the grounds of review which has provoked comment has been the extent to which judicial review may frustrate principles of simplicity, cost and time efficiency by focussing too greatly on the procedures by which a merits review decision is arrived at.


4.11        The ground of procedural fairness is as subjective, and arguably more so, than the grounds of review referred to above.  Was an applicant provided with a sufficient opportunity to present their case?  Was a decision-maker actually prejudiced or, in the case of apprehended bias, has there been conduct or some event involving the decision-maker that might undermine public confidence in the administrative process?


4.12        Although:


The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.[7]




There words which are of universal application to every kind of enquiry and every kind of domestic tribunal.  The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, and the subject matter being dealt with.[8]


4.13        Following the decision of the High Court in Kioa v West,[9] in which it was held that where the rules of procedural fairness operate, applicants are entitled to be heard in respect of all matters that are crucial or critical to the decision-making process, the ground presented administrators with significant resource and logistical difficulties.[10]


A closer look at certain grounds of review

4.14        The Council believes that an appreciation of the scope and purpose of each of the following grounds of review is useful in measuring their operation in the context of merits and judicial review.


4.15        This ground rests on the premise that:


…when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised.[12]


4.16        Categories of unreasonableness include:


·        that the decision was devoid of plausible justification[13]

·        the giving of excessive or inadequate weight to a consideration[14]

·        making an erroneous finding of fact on a point of importance[15]

·        failure to have proper regard to departmental policy or representation[16]

·        the unnecessarily harsh effect of the decision[17]

·        failure to give genuine, proper and realistic consideration to a matter including making adequate inquiry as to facts[18]

·        demonstrable inconsistency with other decisions;[19]and

·        discrimination without a rational distinction.[20]


4.17        ‘Unreasonableness’ is, accordingly, a broad head of judicial review, with the potential to stem executive excess by filling gaps not covered by more specifically stated grounds.[21]


4.18        The ground ‘crystallised’ from the decision of Lord Greene MR in Associated Provisional Picture Houses Ltd v Wednesbury Corporation.[22]  There it was restricted to capturing decisions so unreasonable that no reasonable person could ever have come to them.[23]  The intention was not to capture administrative decisions regarded as ‘less reasonable’ than those which the reviewer might have made.


4.19        In Australia, the essentially circular language of the Wednesbury unreasonableness test was rephrased in a number of cases.[24]  Indeed, in the context of migration decision-making, it has been remarked that by the end of the 1980s:


Some judges were very cautious, stressing that a mere difference in opinion or a preference for a different result could not justify a finding of unreasonableness.  However others took a more interventionist and critical approach…[25]


4.20        By way of response to the expansive interpretation adopted by the courts in some cases, unreasonableness was excluded as a ground of review under former Part 8 of the Migration Act on the basis that:[26]


It has long been recognised that this ground of review, if not interpreted with great care and precision, will come close to a review of a decision on the merits, especially where review on the merits is not available.[27]

4.21        Where unreasonableness remains available as a ground of review, both the High Court and the Federal Court have held that its scope must be limited.  For instance, the Federal Court has said that:


We must again stress the limited nature of judicial review on the ground of unreasonableness.  That ground is not available as a vehicle to obtain the judgment of the court on matters that in the end are not concerned with the legality of a decision but with contested views about its wisdom or substantive fairness – judgments about matters of that nature are to be made elsewhere by the community and its political representatives; the concern of the court is only with the legality of decisions.[28]


4.22        Additionally, the High Court has indicated that unreasonableness should not be equated with irrationality and indeed, an unreasonable decision can be valid notwithstanding that the underlying reasoning process was logically flawed.[29]


4.23        Further:


Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’ or even ‘so unreasonable that no reasonable person could adopt it.’  If these are merely emphatic ways of saying that the reasoning is wrong, then they have no particular legal consequence.[30]


4.24        In this case, it was also noted that:


…the fact that a decision involves an error of law does not mean that it is unreasonable.[31]


…an unreasonable decision is one for which no logical basis can be discerned.[32]


4.25        Nonetheless, there is always the potential for expansion.  The obligation has expanded over time to become more onerous and open-ended.[33] 


4.26        This has occurred for instance in relation to the duty to conduct an adequate inquiry, whereby a decision-maker may act unlawfully by not attempting to obtain information ‘when it is obvious that material is readily available which is centrally relevant to the decision to be made’[34] or where the available material ‘contains some obvious omission or obscurity that needs to be resolved before a decision is made’.[35] 

Relevant/irrelevant considerations[36]

4.27        During the 1980s, one of the bases frequently used for invalidating migration decisions was the principle that the obligation of a decision-maker to give consideration to relevant matters is an obligation to give ‘proper, genuine and realistic consideration to the merits of the case’.[37]  Directed at discouraging the making of perfunctory declarations that all relevant matters have been taken into account, in circumstances where a decision appeared harsh or unwarranted, this ruling provided scope for courts to be persuaded that the merits of the case had not been given appropriate consideration.[38] 


4.28        While it could be construed as providing an unfettered discretion, where the statute or grant of power is silent on the matters to be taken into account, the nature of the statute may suggest some limits and it has been held that:


In a case…where relevant considerations are not specified, it is largely for the decision-maker, in light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.  The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances bound to take into account for there to be a valid exercise of the power to decide.[39]


4.29        In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[40] Mason J noted the following features of this and the related ground of taking into account irrelevant considerations:


·        the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account in making that decision; and


·        what factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.


4.30        Although both these decisions leave open the question as to what the decision-maker was ‘bound’ to do and what are the indications of obligation, thereby affording the ground the capacity for use as a basis for de facto merits review,[41] Australian courts have trodden a careful path in this regard.  As also noted by Mason J in 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 legislature 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.


It follows that in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.[42]


4.31        This approach was supported by the High Court majority in Minister for Immigration and Multicultural Affairs v Yusuf,[43] where it was pointed out that questions of fact material to the ultimate decision are determinable by way of the subjective thought processes of the decision-maker, not the objective or external assessment of the court.

Error of law

4.32        At common law, errors of law must go to jurisdiction except in the case of applications under the writ of certiorari, which covers non-jurisdictional errors of law on the face of the record.  At common law, the ground of error of law on the face of the record has been severely restricted.  However, empirical work on this project has underlined how often the courts use this ground.[44]


4.33        The distinction between errors of law on and off the record does not exist under the AD(JR) Act, with both jurisdictional and non-jurisdictional errors being reviewable on or off the record.[45]  The only preconditions to the statutory grounds are that the error goes to jurisdiction and must have affected or possibly affected the outcome:


A decision does not ‘involve’ an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.[46]


4.34        There is no error of law in making a wrong finding of fact.[47] However, to the extent that the courts draw distinctions between matters of law and fact, both the statutory and the common law grounds of review have the potential to allow courts to move into areas of merits review that are, arguably, more appropriately dealt with by tribunals.


4.35        Determining what constitutes an error of law can be difficult:


No matter what the abstract definitions might be, practitioners appreciate that what counts for an error of law in one field, or even in one period, might not be so counted in a different field or period…


Lying behind any definition of error of law are assumptions that there is a difference between the primary facts, materials, judicial notice and experiential knowledge of the decision-maker on the one hand and the application to those facts ‘as found’ of legal terms and standards on the other hand.[48]

Jurisdictional error

4.36        Error of law going to jurisdiction, or jurisdictional error, has become a key ground of review in cases in which there has been recourse to the Constitutional writs of prohibition and mandamus.[49]  No distinction is made for the purposes of jurisdictional error between errors of law and errors of fact.


4.37        Craig v South Australia[50] is authority for the view that what constitutes a jurisdictional error of law is much wider for an administrator or tribunal than for a court.


4.38        Despite concern that judicial review ‘engage the practical realities of decision-making and bear witness to a tolerance of non-critical error of law’,[51] in Craig’s case, it was held that jurisdictional error exists where:


…an administrative tribunal falls into error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion, and the tribunal’s exercise or purported of power is thereby affected, it exceeds its authority or powers.[52] 


4.39        More recently, in Yusuf, McHugh, Gummow and Hayne JJ with the concurrence of Gleeson CJ and Gaudron J have said that:


‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material.  What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.[53]


4.40        There are other cases where grounds of review have been linked to an excess of jurisdiction.  In Re Refugee Tribunal; ex parte Aala,[54] it was held that the Constitutional writs would apply where a decision was made in breach of the rules of procedural fairness, as such a breach would represent an excess of jurisdiction.  As noted by Gaudron and Gummow JJ in that case:


If an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under section 75(v) of the Constitution.[55]


4.41        So too, in Minister for Immigration and Multicultural Affairs v Eshetu,
Gummow J expressly linked unreasonableness to section 75(v) of the Constitution.[56]


4.42        These recent decisions indicate a tendency to adopt a wider not a narrower view of jurisdictional error with a commensurate risk of becoming involved in merits review.


4.43        It has been remarked, having regard to this approach, that:


The legal rules giving rise to the traditional grounds of judicial review are in this way linked by a common theme. They are not discrete and freestanding. They are all aspects of jurisdiction. They serve to identify the scope of a decision-maker’s power and the conditions of its valid exercise.[57]


4.44        An element of the error of law and jurisdictional error grounds is that an error of fact which goes to jurisdiction will be a ground of relief.  Jurisdictional fact review proceeds on the basis that it is a ground of invalidity for an official to exercise discretionary executive power in the absence of a jurisdictional fact.[58]


4.45        It has been noted that, although once rare and confined largely to the review of constitutional facts, review on this ground is on the increase and that:


…there is an obvious risk of divergent outcomes when there are two separate investigations of a jurisdictional fact.[59]


4.46        Factors contributing to this risk are said to include:


·        different evidence before the tribunal and the court

·        the fact that the tribunal is not bound by the rules of evidence

·        the extent to which tribunal decision-makers may draw on their own knowledge in reaching a decision

·        the susceptibility of material generally to different interpretations; and

·        the time gap between the reaching of the respective decisions.

Procedural fairness (including probative evidence)

4.47        The doctrine of procedural fairness represents an important aspect of good administration.  Ways in which it does this include by:


·        appealing to a fundamental sense of justice

·        ensuring that all the necessary information is obtained from the parties

·        ensuring high quality impartial decisions; and

·        fostering public confidence in the fairness of the administrative system.


4.48        Traditionally, the doctrine had two elements:


·        that a decision-maker must afford an opportunity to be heard to a person whose interests will be adversely affected by a decision; and

·        that a decision-maker must be impartial and disinterested in the matter to be decided.


4.49        The probative evidence rule, to be considered in more detail below, may be regarded as a further aspect of procedural fairness rule. 


4.50        There are two steps indicating whether there has been a breach of this ground: is there an implication that procedural fairness applies.  If so, what fair process should have been applied (content).  It is only when a positive answer is given to the first question and a negative answer to the second that a breach of the ground of review is made out.  The no bias rule and the probative evidence rule only apply to the second of these questions.

Right to be heard

4.51        The relevant principles are stated as follows in the judgment of Mason J in Kioa v West:


It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it ... The reference to `right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and -reputation, as well as to proprietary rights and interests.[60]


4.52        At the same time the courts have maintained the view that procedural fairness is not a universally available right.  Certain factors must be present before it will be implied as a principle of common law.  Further, the implication can be excluded. 


4.53        In Mahon v. Air New Zealand, Lord Diplock said in delivering the judgment of the Privy Council that the repository of a power to inquire and make findings and who contemplates making an unfavourable finding:


…must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made.[61]


4.54        As also noted by Brennan J in Annetts v McCann:


This is a general principle which, subject to any contrary intention expressed or implied in the statute, applies to statutory inquiries in which the inquisitor is authorized to publish findings that might reflect unfavourably on a person's conduct.[62]


4.55        However such exclusion must be in specific terms.  More recently in Minister for Immigration and Multicultural Affairs; Ex parte Miah it has been said that:


It is now settled that, when a statute confers on a public official the power to do something which affects a person's rights, interests or expectations, the rules of natural justice regulate the exercise of that power "unless they are excluded by plain words of necessary intendment".[63]


4.56        It was also argued,[64] amongst other things, that because the Migration Act established a mandatory duty to inform applicants about certain kinds of information, Parliament could not have intended that a similar duty should be imposed in relation to other types of information.


4.57        In rejecting this argument, McHugh J said that:


An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations".  Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice.[65]


…so to argue is to fall into the error of inferring from the presence of some matters concerned with natural justice that Parliament intended to exclude natural justice in all other respects.[66]


4.58        Bias may be actual or apprehended and may manifest itself in the decision-maker’s personal associations, interests or in the structure of the decision-making process.[67]


4.59        Subject to the need to accommodate differences between court proceedings and proceedings before other kinds of tribunals, the High Court has said that the rule against bias would be as applicable to a tribunal as to a court.[68]


4.60        In Minister for Immigration and Ethnic Affairs v Jia's case, however, it is suggested that what might constitute a breach of procedural fairness depends to a degree on the nature of the decision-making body, that is, whether the body is a court, tribunal or a Minister.  As a result, what would be categorised as pre-judgment in a court, will not necessarily be so classified in relation to a tribunal, which is expected to build up expertise in matters such as country information (for instance the Refugee Review Tribunal).[69]

Probative evidence[70]

4.61        This rule has links with unreasonableness and with error of law on the face of the record[71] although it would seem that, in Australia at least, it should not be equated to error of law.[72]  It is best regarded, however, in the context of the ground of procedural fairness.  In R v Deputy Industrial Injuries Commission, ex parte Moore, Diplock LJ noted that natural justice requires that tribunal’s decisions are based on some evidence of probative value, that is:


The requirement that a person exercising quasi-judicial functions, must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. [73]


4.62        What is substantive or adequate is inevitably affected by one’s perception of the justice or injustice of the particular decision.  In common with the ‘extended ultra vires’ grounds of unreasonableness, irrelevant/relevant considerations and error of law, this ground could provide recourse to re-examination of the facts of a case.  As with those grounds, however, the courts have trodden warily.


4.63        According to Lord Diplock, the obligation ensuing from the probative evidence rule:


…means that [the decision-maker] must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above.  If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom the Parliament has entrusted the responsibility of deciding the issue.  The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own views for his.[74]


4.64        Because of its tendency to blur the merits/judicial review boundary, the High Court has also cautioned against too heavy a reliance on this rule.[75]

Content of procedural fairness

4.65        As intimated earlier in this Part, identification of what constitutes procedural fairness in a particular case can vary:


The definition of fair procedures to govern the making of every determination affecting the interests of an individual is a formidable task.  Indeed, the almost infinite range of factors preclude an a priori definition of precise procedures to guide every administrator in the exercise of his power in every case.  Some agencies have power to summon witnesses, some do not.  Some can compel the production of documents, some can not.  Some are bound by the constraints of confidentiality, some are not.  Some administrative decisions depend on clearly defined facts, some require a rather diffuse inquiry.  Some decisions owe little to policy, some owe a lot.  Some administrative decisions are made at leisure, some must be made on the moment.  Across the broad spectrum of administrative decision-making, the principles of natural justice require that the procedure be fair in all the circumstances.[76]


4.66        In some cases where the rules relating to the right to be heard are applicable:


…nothing less than a full and unbiased hearing of each affected individual’s case will satisfy them.  In other circumstances, something less may suffice.  Thus, the circumstances of a particular case may be such that procedural fairness does not require that each person affected be accorded an effective opportunity of being personally heard before a decision is made but nonetheless requires that the decisions-maker be and appear to be, personally unbiased.[77]

The judicial perspective

4.67        The courts have regarded this rule as one of fundamental importance and one that may only be displaced in the event of a clear statutory intention to that effect.  This is reflected in the decision of the High Court in Kioa v West, where it was said that:


The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.[78]


4.68        Although concern has been expressed that procedural fairness should not be pursued inflexibly to the detriment of efficient decision-making[79] it has been said that:


It is not the purpose of section 75(v) of the Constitution to engage the jurisdiction of the Court through the decisions of administrative decision-makers to decide whether or not some minor or inappropriately worded reference to the material upon which the decision-maker relies has not been brought to the attention of the person affected.  Something more is required to demonstrate an arguable breach of the rules of natural justice.[80]

The executive perspective

4.69        As a result of the decision in Kioa v West[81] migration officials were obliged to afford applicants an adequate opportunity to present all matters relevant to their case, [82] although no judge went so far as to require formal or informal oral hearings. 


4.70        In areas with many elements to the decision-making process, it has been suggested that this requirement can become both onerous and unnecessary.[83]  In these circumstances, the courts have adopted the view that the overall process must be fair.[84]


4.71        It has been noted in this regard that:


Procedural fairness is the great protection against bureaucratic unfairness.  The question is not whether we have too much natural justice - the principle of natural justice must drive decision-making.  The real issue is that those who are creating models for the procedure to be followed, whether they be public servants or judges, need to be aware that an excess of procedure can be counter-productive.  It cannot be assumed that the provision of additional procedural challenges will necessarily be to the advantage of persons affected by the decision in question.[85]


4.72        For ordinary people, considerations of cost, speed, finality and accessibility will also be important elements.


4.73        At the same time, note the procedural standards imposed on the public sector, particularly procedural fairness, have led to a general improvement in primary decision-making.[86]

Discussion points 5 and 6

4.74        As remarked by the Council in 1989 in its 32nd report, Review of the Administrative Decisions (Judicial Review) Act: the Ambit of the Act:


…in the Council’s view, judicial review cases in Australia have generally shown the courts to be careful to ensure that the administrative processes by which government is carried on does not become a series of justiciable controversies.[87]


4.75        Discussion of the grounds of review in the preceding section of this paper has not dislodged this view.


4.76        However, the scope of certain grounds of review is not fixed.  Grounds may expand or contract in response to a range of considerations, and there is not always a congruence between the perceptions of the courts and the executive at any given point in time as to ‘how much’ and ‘why’.  Inevitably, this will render the relationship between the courts and the executive an uneasy one. 


4.77        Having regard to the nature of the grounds of review examined in this discussion paper, and to the way in which the courts have generally addressed those grounds, the view might reasonably be taken that no ground, in itself, without more, warrants the exclusion of judicial review.  However, there are clearly other significant factors, such as cost, consistency and predicability which may need to be addressed.  It is the ‘other’ and the ‘by whom’ elements that the Council proposes to address in the following Parts of this discussion paper.




Do you agree/not agree with these views? 

Please explain why/why not.




Are there other matters associated with the grounds of judicial review discussed above or of any other grounds of review which are of relevance/concern in seeking to determine the appropriate scope of judicial review? 

Please elaborate.




[1] See discussion by J McMillan, ‘Federal Court v Minister for Immigration’ (December 1999) 22 AIAL Forum 1.

[2] HWR Wade and CF Forsyth, Administrative Law, 1994, p 312.  See also J McMillan, ‘Federal Court v Minister for Immigration’ ibid, and J McMillan, ‘Recent Themes in Judicial Review of Federal Executive Action’ (1996) 24 Federal Law Review 347.

[3] Sir Anthony Mason, ‘Life in Administrative Law Outside the AD(JR) Act’, Australian Institute of Administrative Law (NSW Chapter), Seminar, 17 July 1996.  See also J McMillan, ‘Recent Themes in Judicial Review of Federal Executive Action’ ibid.

[4] Mark Aronson, ‘A Public Lawyer’s Response to Privatisation and Outsourcing’ in Taggart (ed), The Province of Administrative Law, 1997, 40, 47 – 48.  In the footnote to this remark, it is said that ‘review for unreasonableness: clearly involves an examination of the impugned decision’s merits, albeit from the perspective of a large degree of deference.’  See also comments by R Sackville, Commentary on a paper presented by Sir Anthony A Mason, ‘Life in Administrative Law Outside the AD(JR) Act’, Australian Institute of Administrative Law (NSW Chapter), Seminar, 17 July 1996.

[5] David Bennett QC, Commonwealth Solicitor-General, ‘Balancing Judicial Review and Merits Review’ (September 2002) 53 Admin Review 5.

[6] In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356 where Mason CJ submitted that care should be taken to ensure that grounds of judicial review like ‘no evidence’, ‘probative evidence’ and ‘error of law’ do not become vehicles for converting judicial review into a search for errors of fact.

[7] National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 312 per
Gibbs CJ.

[8] Lord Justice Tucker in Russell v Duties of Norfolk [1949] 1 All ER 109, 118 (CA).

[9] (1985) 159 CLR 550.

[10] See Dennis Pearce, 'Is There too much Natural Justice?] 1994 AIAL Forum 94.

[11] The common law position has been entrenched in paragraphs 5(2)(g) and 6(2)(g) of the AD(JR) Act.

[12] Kruger v The Commonwealth (1997) 190 CLR 1, 36 per Brennan J.  Adopted also by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 650.

[13] Chan v Minister for Immigration and Ethnic Affairs  (1989) 169 CLR 379.

[14] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

[15] GTE (Australia) v Brown (1986) 14 FLR 309.

[16] Nikac v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65.

[17] Edelsten v Wilcox and FCT (1988) 83 ALR 99.

[18] Although according to Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 159
CLR 550, 570, ‘[t]he circumstances in which a decision will be invalid for failure to inquire are…strictly limited’.

[19] Kruse v Johnston [1898] 2 QB 91; Fares Rural Meat and Livestock Co Pty Ltd (1990) 96 ALR 153.  

[20] The Council of the City of Parramatta v Pestell (1972) 128 CLR 305.

[21] Empirical research suggests that this ground is one of the most frequently relied on by applicants, and that it is upheld in the courts in 21.1% of cases, Robin Creyke and John McMillan, 'Success in Judicial Review - An Empirical Study', forthcoming AIAL.

[22] [1948] 1 KB 223.

[23] Ibid, 233, 234

[24] In Attorney-General (NSW) v Quin (1989) 170 CLR 1, 36 it was said by Brennan J that the decision must amount to ‘an abuse of power’; in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 290, Mason CJ and Deane J used the words ‘so devoid of plausible justification that no reasonable person could have taken that course’.  For a full discussion of this topic see Rossana Panetta, ‘Wednesbury Unreasonableness: Judicial or Merits Review?’ (2002) 9(4) Australian Journal of Administrative Law 191.

[25] Mary Crock, ‘Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?’ (September 1996) 18 Sydney Law Review 267.

[26] Section 476(2).  This provision was challenged and upheld in Abebe v Commonwealth; Re Minister for Immigration and Multicultural Affairs (1999) 162 ALR 1.

[27] Explanatory Memorandum to the Migration Reform Bill 1992, paragraph 415.  Further, as pointed out by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 42, when the ground of asserted unreasonableness is given too much or too little weight to one consideration or another: ‘a court should proceed with caution…lest it exceed its supervisory role by reviewing the decision on its merits’.

[28] City of Botany Bay Council v Minister for Transport and Regional Development (1999) 58 ALD 628, 637 per Black CJ, Lee and Weinberg JJ.

[29] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

[30] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 626 per Gleeson CJ and McHugh J.

[31] Ibid, 640 per Kirby and Gaudron JJ.

[32] Id.

[33] See discussion by J McMillan, ‘Recent Themes in Judicial Review of Federal Executive Action’ (1996) 24 Federal Law Review 347, 381-2; R Creyke, ‘The Impact of Judicial Review on Tribunals: Recent Developments’, paper presented at the AIJA Tribunals Conference, Melbourne, 6 June 2002.

[34] Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549, 563 per Wilcox J.

[35] Videto v Minister for Immigration and Ethnic Affairs (1986-7) 69 ALR 342, 353 per Toohey J.

[36] This ground also appears in section 5(2)(b) of the AD(JR) Act which, in this regard, is substantially declaratory of the common law.

[37] Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 292, 292 per Gummow J.

[38] See J McMillan, ‘Federal Court v Minister for Immigration’ (December 1999) 22 AIAL Forum 1, 4.  This approach to judicial review was subsequently closed down in 1992 by the omission from Part 8 of the Migration Act of the failure to consider relevant matters as a ground for judicial review.

[39] Sean Investments v McKellar (1981) 38 ALR 363, 375 per Deane J.

[40] (1986) 162 CLR 24, 40-41.

[41] See for instance the case of Roberts v Hopwood [1925] AC 578, now largely discredited in Australia, involving a statute empowering the Council to pay its employees ‘such salaries as it may see fit’.  See also Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77, 80 per Davies, Burchett and Lee, where it was held that the consideration of an irrelevant matter will occur by ‘[t]he taking into account of a fact found ‘unreasonably’, or proceeding upon an erroneous premise on a fundamental matter.  See also Akers v Minister for Immigration, Local Government and Ethnic Affairs (1988) 16 ALD 688, 694 per Lee J.

[42] (1986) 162 CLR 24, 40-41.

[43] (2001) 206 CLR 323, [68] per McHugh, Gummow and Hayne JJ.

[44] R Creyke, J McMillan, ‘Litigants Perception of Administrative Law – An Empirical Study’, forthcoming, 2003.  This study suggests that 'error of law' is the ground of review most frequently relied upon by applicants, with a success rate of 42.3%.  'Relevant consideration' is the second most frequently relied on ground, with a success rate of 35.3%.

[45] Under former Part 8 of the Migration Act there was error of law in the event of an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appeared on the face of the record.

[46] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 per Mason CJ.  See also comments by Toohey and Gaudron JJ at 384.

[47] Waterford v Commonwealth (1987) 163 CLR 54, 77.

[48] M Aronson, B Dyer, Judicial Review of Administrative Action, 2000, p 159.

[49] See general discussion of the Constitutional writs and section 75(v) of the Constitution in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, [79 – 83] per Gaudron, McHugh, Gummow and Hayne JJ.

[50] (1995) 184 CLR 163, 179.

[51] Justice R S French, ‘Judicial Review Rights’ (March 2001) 28 AIAL Forum 30.  Some decisions support an overt deference to the opinion of the decision-maker on questions of law: see for instance, comments per Kirby J in Australian Broadcasting Commission v Bonner (1984) 54 ALR 653, 668-9.

[52] Craig v South Australia (1995) 184 CLR 163, 179.

[53] Minister for Immigration and Ethnic Affairs v Yusuf (2001) 206 CLR 323, [80].

[54] (2000- 2001) 204 CLR 82.

[55] Ibid, 101See also Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2.

[56] (1999) 197 CLR 611, [126].  His view does not appear to have attracted any support from the present majority of High Court judges.

[57] Stephen Gageler, The Legitimate Scope of Judicial Review’ (November 2001) 21(3) Australian Bar Review 279, 291.

[58] Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135.

[59] Mark Aronson, ‘Resurgence of Jurisdictional Fact’ (March 2001) 12(21) Public Law Review 17, 27.

[60] (1985) 159 CLR 550, 583.

[61] (1984) AC 808, 820.

[62] (1990) 170 CLR 596, 609 per Brennan J.  Sir Anthony Mason has said, subsequently, that '[I]t may be that this suggestion falls short of providing a test which is instructive and helpful', The Brennan Legacy, Blowing the winds of legal orthodoxy’, 2002, p 53.

[63] (2001) 206 CLR 57, [126] per McHugh J.

[64] Ibid, [139].

[65] Ibid, [126] per McHugh J.  See also S157/2002 v Commonwealth of Australia [2003] HCA 2, [30] per Gleeson CJ and Re Refugee Tribunal; Ex parte Aala (2000 - 2001) 204 CLR 82, [41] per Gaudron and Gummow JJ.

[66] Ibid, per McHugh J [126], [139].  In response to this decision, in late December 2001, a Bill was introduced into the Parliament, the Migration Legislation (Procedural Fairness) Bill 2001, which seeks ‘to provide clear legislative intention that the codes the Bill specifies are to betaken to be an exhaustive statement of the common law natural justice hearing rule’; see the Explanatory Memorandum to the Bill, paragraph 4.   report on the Bill by  the Senate Legal and Constitutional Committee for inquiry,. tabled its report on 5 June 2002, recommended(with one dissentor) that the Bill proceed.  The Bill was assented to on 3 July 2002.

[67] See for instance Webb v The Queen (1994) 181 CLR 41, 74, referred to in the majority judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v the Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group (2000) 176 ALR 644.

[68] See Ebner v the Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group (2000) 176 ALR 644.

[69] (2001) 205 CLR 507, [180]-[181] per Hayne J.  See also Kirby J in this case to the effect that notwithstanding differences between the roles of judicial officers and tribunal members, the standards for apprehended bias are in both cases rigorous, [115].

[70] Sections 5 and 6 of the AD(JR) Act expressly authorise review on the ground that there was ‘no evidence or other material’ to justify the decision when some particular fact is to be established.'

[71] R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338.

[72] See Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 per Black CJ,
von Doussa and Carr JJ.

[73] (1965) 1 QB 456, 488.  See also the Privy Council in Mahon v Air New Zealand [1984] AC 808.

[74] R v Deputy Industrial Injuries Commission, ex parte Moore (1965) 1 QB 456, 488 per Diplock LJ.

[75] Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, 690.

[76] Justice Brennan, ‘The Purpose and Scope of Judicial Review’ (1986) 2 Australian Bar Review 73,

[77] Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648, 652 per Deane J.  See also Kioa v West (1985) 159 CLR 550, 632-3 per Deane J.

[78] Kioa v West, ibid, 584.  See also the judgments of Wilcox J and French J in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 69 ALD 1 and of the Court in S157/2002 v Commonwealth of Australia [2003] HCA 2.

[79] McInnes v Onslow Fane (1978) 1 WLR 1520.

[80] Re Minister for Immigration and Multicultural Affairs; Ex parte Brian Gerald James Goldie, 3/9/01,
Kirby J (Chambers).

[81] (1985) 159 CLR 550.

[82] Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100.

[83] In the Migration Reform Bill 1992, the Government sought to address these difficulties.

As noted by the Hon Gerry Hand, former Minister for Immigration:

‘Under the reforms, the decision-making procedures will be codified.  This will provide a fair and certain process with which both applicant and decision-maker can be confident.  Decision-makers will be able to focus on the merits of each case knowing precisely what procedural requirements are to be followed.  These procedures will replace the somewhat open-ended doctrines of natural justice and unreasonableness…

As the codified procedures will allow an applicant a fair opportunity to present his or her claims, failure to observe the rules of natural justice and unreasonableness will not be grounds of review.’

See Hon Gerry Hand, Minister for Immigration and Ethnic Affairs, Second Reading Speech to the Migration Reform Bill 1992, Hansard, 4 November 1992.

[84] Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648.

[85] Dennis Pearce, ‘Is There Too Much Natural Justice?’ (1992) 1 AIAL Forum, 94.

[86] See recent comments by Anthony Blunn AO, 'Administrative Decision-Making - An Outsider Tells' to be published in AIAL Forum in 2003.

[87] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, Report No 32, 1989, paragraph 24.6.