PART V - PROPOSED CONSIDERATIONS IN DEVELOPING A GUIDE TO THE SCOPE OF JUDICIAL REVIEW

SECTION I

Proposed considerations

SECTION II

Consistency/predictability

A case study
The migration experience

Abuse of review process

Previous Council consideration

Resource-related issues

The executive perspective
The judicial perspective
Previous Council consideration
Contributing factors and responses

SECTION III

Nature of the decision

Policy and policy decisionsDecisions related to the administration of justice
Decisions where there are ongoing relationships
Legislative decisions
Decisions made in urgent or emergency contexts

SECTION IV

Nature of the decision-maker

Status of the decision-maker

Expert decision-makers

Outside contractors

Government business enterprises

Decisions by certain other government bodies

SECTION V

Other

No impact on final decision
No injustice

 

SECTION I

Proposed considerations

5.1            Having regard to issues discussed in the preceding Parts of the discussion paper, the following considerations have been identified as relevant to the scope of judicial review:

 

·        Consistency/predictability

·        Resource-related issues:

Ø      cost/volume;

Ø      abuse of process;

 

·        Nature of the decision:

Ø      policy and polycentric issues

Ø      where there are ongoing relationships

Ø      legislative matters

Ø      matters relating to the administration of justice; and

Ø      the urgency or emergency of the circumstances.

 

·        Nature of the decision-maker:

Ø      status

Ø      expertise

Ø      being an outside contractor

Ø      government business enterprises

Ø      inter-governmental bodies; and

Ø      consultative and advisory authorities dealing directly with the public.

 

·        Other:

Ø      no impact on final decision/no injustice.

 

·        Alternative remedies available.

 

Discussion point 7

Do you agree with the items included in this list?

Are there items that should be added to or removed from the list?

Please elaborate.

 

SECTION II

Consistency/predicability

5.2            It has been accepted that an underlying value of administrative justice is consistency in administrative decision-making[1] and that there is a potential for inconsistencies to develop if limits are placed on review. 

 

5.3            Inconsistency and unpredictability in decision-making outcomes may suggest unfairness, sometimes graphically, where there are fiscal implications associated with decisions. 

 

5.4            It has been said in that respect that the courts had a role in the development of:

 

…coherent and explicable legal principles which provide administrators, the public, and their legal advisers, with clear guidelines whilst at the same time retaining sufficient flexibility to allow an appropriate balance between the public and private aspects of the public interest in the infinite variety of circumstances that come before the courts.[2]

A case study

5.5            Parts XIA (The Repatriation Medical Authority) and XIB (Specialist Medical Review Council)[3] were included in the Veterans’ Entitlements Act 1986 (the VEA) in response to concerns that the interpretation given to section 120 of the Act (reasonable hypothesis linking a veteran’s injury, disease or death with service) resulted in unmeritorious pension claims and lack of consistency in decision-making. 

 

5.6            Impetus was afforded for the amendments to the VEA by the decision of the High Court in Bushell v Repatriation Commission where in considering what medical-scientific evidence would support a reasonable hypothesis connecting a veteran’s medical condition with service, Mason CJ, Deane and McHugh JJ said inter alia:

 

…the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge.  Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable…But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.[4]

 

5.7            In an Audit Report handed down in 1992 by the Australian National Audit Office, it was observed that the approach adopted in Bushell would lead to ‘the great majority of claims being accepted.’[5] The Audit Report recommended a review of the compensation scheme for veterans and their dependents.  This review was subsequently undertaken by the Veteran’s Compensation Review Committee chaired by Peter Baume. 

 

5.8            In its 1994 report, A Fair Go, Report on Compensation for Veterans and War Widows, the Committee recommended, amongst other things, that:

 

An independent, Expert Medical Committee be established to resolve  general medical issues and to formulate Statements of Principle for application to all decision-making.[6]

 

5.9            The Repatriation Medical Authority (the RMA) had its origins in this recommendation.  It was proposed in the report that the Statements of Principle would have legislative authority, would guide the process of determining whether an injury was ‘predominantly war caused’ and would ensure consistent standards in decision-making.[7] 

 

5.10        Following this report, in 1994, substantial amendments to the Veterans’ Entitlements Act were presented to Parliament, including the inclusion of Parts XIA and XIB.[8]  In the explanatory memorandum to the legislation[9] it was stated that in providing for the establishment of the RMA, the intention of the new Part XIA was to ‘ensure a more equitable and consistent system of determining claims for disability pensions for veterans and their dependents’. 

 

5.11        The role of the RMA is to determine Statements of Principles (SoPs) with respect to injury, disease or death if it is of the view that sound medical-scientific evidence exists indicating a link eligible Australian Defence Force service.  The SoP system is founded on the basis that a connection between service and medical condition should be supported by established epidemiological evidence accepted by the RMA, rather than by the expert medical evidence produced in an individual application for pension.[10]

 

5.12        Pursuant to an undertaking given by the Government of the day at the time of the passage of the 1994 legislation, and reiterated by the successor to that Government, a review was subsequently undertaken of the RMA and the SMRC.  In the Report of the Review Committee[11] it was said of the SOP system that:

 

It provides a degree of certainty that is otherwise absent.  It provides a clear direction to claimants or their representatives as to the evidence that must be gathered for the purpose of making a claim.

 

It overcomes the need to search for supporting medical opinion. 

It reduces the range of matters that are open to be appealed which is overall beneficial not only in the public interest but in the interest of individuals.[12]

 

5.13        Indeed, the success of the Statement of Principles Scheme has been such that it is used as a reference framework in other compensation jurisdictions including in some overseas veterans administrations.

The migration experience

5.14        Consistency and predicability have also been important factors in the migration area.  In relation to that legislation, there has been a particular focus on uncertainties arising from the open-ended nature of the grounds of review. In his second reading speech to the Migration Reform Act 1992, the then Immigration Minister, the Hon Gerry Hand, stated that ‘the Government wishes to make the application of the legal concepts of migration decision-making predictable’. 

 

5.15        More recently, in his second reading speech to the Migration Legislation Amendment (Procedural Fairness) Bill 2002, the Minister for Immigration and Multicultural and Indigenous Affairs, the Hon Philip Ruddock MP, noted that one of the reasons for the inclusion in the Migration Act by the Migration Reform Act 1992 of the code of procedural fairness was to:

 

…replace the uncertain common law requirements of the natural justice 'hearing rule', in particular, which had previously applied to decision-makers.[13]

 

5.16        The Minister noted that the Bill, made it expressly clear that codes in the Migration Act 'do exhaustively state the requirements of the natural justice or procedural fairness hearing rule'.[14]  This represented a response to the decision of the High Court in Miah,[15] where it was found that the code of procedure relating to visa applications had not clearly and explicitly excluded common law natural justice requirements. 

 

5.17        As a result of the decision in Miah[16], even where the code was followed in every respect there could still be 'uncertainty about the legal procedures which decision-makers are required to follow to make a lawful decision'. 

 

5.18        Such developments are consistent with moves generally encouraged by the Productivity Commission for the development of performance indicators which are specific, clear and easily applied.  This is seen as an aid to better decision-making across public administration.[17]

Discussion point 8

5.19        The foregoing discussion notwithstanding, the view may be taken that arguments for legislative limitation of judicial review on the basis of considerations of consistency and predicability in decision-making will not always be convincing. 

 

5.20        As noted by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs, ‘consistency is not preferable to justice’.[18]  It might also be said that consistency is not necessarily synonymous with justice.  In some instances, the desire for consistency and predicability can override consideration of the implications of a decision in a particular case, and lead to decisions that are unjust.

 

5.21        Where practical technical expertise resides in a primary decision-making body, claims for legislative limitations on judicial review may have some basis.  Indeed, in some situations, ‘review inhibitors’ such as those utilised in the veterans’ affairs area, may be thought to present an acceptable ‘limiting and limited’ solution both in the context of merits and judicial review especially in high volume cases. 

 

5.22        As noted, establishment of the Veterans’ Affairs SoP system has been concluded to be in the public interest.[19]  In so far as the SoPs relate to technical medical issues and their epidemiological connection with events of service, often many years previously, however, they do not represent the usual evidentiary issues associated with administrative decision-making.

 

5.23        Nevertheless, the fact that consistency and predicability are values underlying judicial review should not be overlooked.  Courts have an important part to play in maintaining consistency in the interpretation of legislative provisions, particularly new provisions, and in the development of precedent. 

 

5.24        In the face of inconsistency and unpredictability, the cost of judicial review both to government and the individual may also be a factor for consideration.  This is explored in more detail below. 

 

Do you agree/not agree with these views? 

Are there other relevant considerations?

Please elaborate.

 

Abuse of review process

5.25        In recent times, government has tended to place particular focus on ‘abuse’ as a reason for limiting judicial review.  However, what constitutes ‘abuse’ may be difficult to identify. 

 

5.26        In his second reading speech to the Jurisdiction of Courts Legislation Amendment Act 2000, the Attorney-General said:

 

The object is to avoid the use of unmeritorious delaying tactics in the criminal justice process by removing the collateral access of defendants to federal administrative law procedures and remedies.[20]

 

5.27        There were also references in the debate of this legislation to the effect that:

 

Collateral attacks [lack] merits and are invariably only used by defendants with deep pockets.[21]

 

5.28        In the migration area, it has been remarked by the Minister for Immigration and Multicultural Affairs, the Hon Philip Ruddock MP, that:

 

…litigation can be an end in itself.  Given the importance attached to permanent residence in Australia, there is a high incentive for refused applicants to delay removal from Australia as long as possible.  This may be done to give time for them to establish ties within the community which they may hope will yield entitlement to a visa through another pathway. The incentive to delay removal from Australia is increased if the refused applicants are enjoying privileges such as work rights and access to Medicare.[22]

 

5.29        Further:

 

One of the difficulties that we experience in this area – I think the only other area that has been likened to it is the area in relation to tax decisions – is that generally speaking when people access judicial review or administrative review they do not achieve their immediate outcome.

 

…what if your principal intention is to enter Australia and work here temporarily – in other words, if people are seeking access to Australia merely as a guest worker?  I have to say the people who lodge asylum claims or who use the appeal system are very often people whose principal intention is to be a guest worker, who has permission to work.  …if they can delay determination of decisions in relation to their status they can achieve what is in fact their principal objective – the objective of being here and being able to work for a period of time.[23]

 

5.30        Again in the migration area, one of the arguments used to support passage of the Migration Legislation Amendment Act (No 2) 2001, limiting class actions in the migration jurisdiction, was said to be ‘to combat the recent increase in the use of class actions…for people with no lawful authority to remain in Australia to prolong their stay and frustrate removal action’.[24]

 

5.31        As suggested elsewhere in this paper, similar concerns could well have been at the root of the limitations on judicial review existing in relation to the review of income tax assessments.

Previous Council consideration

5.32        In 1986, in its 26th report, Review of the Administrative Decisions (Judicial Review) Act 1977 – Stage One, the Council concluded that:

 

…it is generally only correct to describe as abuses of the Act those proceedings which are designed to delay or frustrate Commonwealth administration (in a broad sense) merely in order to gain a tactical advantage rather than to establish a genuine legal right or interest.[25]

 

5.33        In saying this, the Council did not consider the existence of alternative remedies in the face of high volumes of applications for judicial review to be indicative, in themselves, of abuse of the administrative system. 

 

5.34        The Council noted further that abuse is not evidenced ‘by the mere fact that an application for an order of review has been refused’.  The Council noted in this regard that ‘even unsuccessful proceedings under the Act ‘may involve real questions, whether of fact or law or both, which justifiably require adjudication and determination by a court in relation to which it is reasonable to make an application under the Act.’[26]

 

5.35        The Council also considered that the fact that proceedings under the AD(JR) Act may have the consequence of delaying other proceedings already in train does not, in itself, indicate an abuse of process.

 

5.36        In Review of the Administrative Decisions (Judicial Review) Act 1977 – Stage One, while noting that:

 

It would be highly undesirable if the Act were being used unduly to frustrate or impede legitimate administrative action in an attempt to obtain mere tactical advantage…[27]

 

the Council concluded that ‘many of the allegations about ‘abuses’ had been exaggerated’.[28]

 

5.37        Although it found little evidence of such abuse, the Council considered that the possibility of using the AD(JR) Act for the purpose of delay existed in relation to the ongoing proceedings of tribunals such as the Australian Broadcasting Tribunal and in an area such as taxation.  However, in the end result, the Council recommended amendment to the Act to extend and clarify the Federal Court’s power to stay, or to refuse to grant an application under the AD(JR) Act as the mechanism to control abuse of power.[29]

5.38        The Council’s findings were subsequently endorsed by the Senate Legal and Constitutional Affairs Committee in its consideration of the 1986 Administrative Decisions (Judicial Review) Amendment Bill 1986.[30]

 

5.39        The Committee also acknowledged the view of the NSW Law Society that there was:

 

…great difficulty in appreciating the justification for penalising individuals who are genuinely aggrieved by Commonwealth administrative action by making it more difficult and expensive for them to bring review proceedings because of perceived abuse of the AD(JR) Act … in circumstances which are unlikely to recur.  The injustice is compound[ed] by the fact that individuals or corporations with vast resources [will still be able to use other methods of judicial review]. [31]

Discussion point 9

5.40        Having regard to the preceding discussion it would seem that identification of ‘abuse’ remains difficult and subjective.  For instance, in relation to the Jurisdiction of Courts Legislation Amendment Act 2000, the Government used no statistics or examples to back up its claims that judicial review was being used in collateral attacks on the criminal justice process.[32] 

 

5.41        Obviously, identification of what constitutes an abuse of process is not necessarily reflected in the number of applications for review or in the numbers of successful (or unsuccessful) applications. 

 

5.42        Similarly, high withdrawal rates for applications might be indicative of a desire to ensure that time limits for applications are met rather than a desire to abuse the system. 

 

5.43        In some areas, tax and migration for instance, it may be that there are time-advantages in lodging an application for judicial review.  Moreover, as stated elsewhere in this paper, the constitutional separation of powers principle makes judicial review imperative in relation to certain issues.

 

5.44        Undoubtedly, although there are circumstances where some people may be attempting to delay or frustrate administrative processes, there are others where they are not.  In such circumstances, applicants may be resorting to judicial review because they genuinely believe that they have a grievance – that they were not afforded procedural fairness or that there was a substantive error of law made in their case, which is best dealt with by the courts.

 

5.45        Accordingly, the view may be taken that ‘abuse’ should not readily be relied on by government as a reason for limiting review in a particular area.  By virtue of the methods they employ and their necessary focus on the case at hand, arguably, courts are better placed to identify ‘abuses’ in particular cases. 

 

5.46        If such ‘abuse’ is presented in the form of high volumes of cases and related strains on financial and human resources, it may be something which government should respond to. 

 

5.47        In view, however, of the fact that many applications may well be ‘genuine’, it is suggested that if it decides to limit judicial review on this basis, it is incumbent that there be an adequate alternative to judicial review.

 

Do you agree/not agree with these views? 

Are there any other relevant considerations?

Please elaborate.

 

Resource-related issues

The executive perspective

5.48        Resource-related issues cover both financial cost and cost in terms of the use of personnel, time and other resources.  Concerns as to resources are often inextricably linked to claims of abuse of process and may also frequently underlie concerns as to consistency and predicability. 

 

5.49        Concern in this area has tended to focus on the cost to government and, through government, to the public in general rather than to the individual.  Overall however, a balance must be achieved between:

 

…on the one hand, the need to provide individuals with a means by which they may effectively obtain judicial review of the legality of administrative action and, on the other hand, the need to rationalise and ensure the proper use of existing review mechanisms, to keep costs to a minimum and to protect public authorities from unwarranted legal action.[33]

5.50        At a 1987 administrative law seminar, the then Minister for Finance,
Senator Walsh, commented that the Australian system of administrative law is based upon the belief that ‘perfect legislation backed up by a legal system can deliver a perfect world’ and that this:

 

…implicitly assumes a world of unlimited resources in which the cost of sustaining the ‘perfect’ legal system need not be, or even should not be, taken into account.[34]

 

5.51        The Minister also observed that ‘equity is provided for those who feel aggrieved by decisions’ but at considerable cost to taxpayers who must pay for much more complex and cumbersome administrative procedures than would otherwise be the case’.[35]

 

5.52        Resource-related issues were a factor alluded to by the current Attorney-General in the context of the Jurisdiction of Courts Legislation Amendment Bill 2000:

 

…without reducing fairness or access to justice, the expectation is that the transfer of jurisdiction [from the Federal Court] will contribute to increased efficiency, and reduction of costly delays which may otherwise result from access to court systems. [36]

 

5.53        Such considerations also featured in the shaping of the review regime provided for in the Public Service Act 1999.  In a paper preceding the development of the scheme, it was noted that:

 

At present there are too many avenues of appeal, resulting in complicated and convoluted processes.  The responsibility to afford public servants a right of review of employment decisions needs to be balanced against the need to reduce the costs associated with an appeals culture.[37]

 

5.54        In relation to migration decisions, resource concerns have attracted bipartisan support.  In a submission to the Senate Legal and Constitutional Legislation Committee in its consideration of the Migration Legislation Amendment (Judicial Review) Bill 1998, former Immigration Minister, Mr Gerry Hand, said that:

 

Throughout my time as Minister…I was concerned with the amount of public resources consumed in judicial review processes which ultimately did not alter the situation that the person was not entitled to remain in Australia.  These resources not only included the costs to the Department.  They also included the use of [scarce] legal aid funds on persons with no link to Australia when Australian citizens and permanent residents were being denied legal aid for legitimate grievances.[38]

 

5.55        In the Explanatory Memorandum to the Migration Amendment (Judicial Review) Bill 2001, it is observed that, if they were to operate as predicted, the amendments effected by the Bill to the Migration Act would, ‘by reducing the issues to be addressed and allowing cases to be resolved more quickly, deliver substantial savings.’ [emphasis added]

 

5.56        In providing evidence in support of the earlier version of this legislation, the Migration Legislation (Judicial Review) Bill 1998, the Department provided evidence that the reforms were expected to deliver significant savings of up to 50% in the Department’s legal costs, once the backlog and initial challenges to the privative clause were dealt with.

The judicial perspective

5.57        Although the evaluation of resource issues is a matter of particular concern to the executive, the courts have not been oblivious to the pressures on primary decision-makers to deal with large numbers of cases with the attendant costs that that involves.  Judicial consideration of such issues arises, inevitably, however, in the context of individual hearings, particularly in the context of the ground of procedural fairness.

 

5.58        As discussed earlier, the nature and extent of cost considerations is not generally amenable to assessment on a case by case basis.  In one case, however, the High Court was prepared, having regard to the size of the administration and the volume of decision-making, to relax the requirement that decisions should be made by statutory office holders.[39]  In another case, in concluding that there was no universal mandate for an oral hearing by the delegate, the Federal Court had regard to the practical implications of the prescription of particular procedures:

 

The court has no direct knowledge of the resource implications of particular procedures, nor of the resources available to the Department to implement them.  Oral hearings by the ultimate decision-makers could be provided for all applicants using the simple artifice of increasing the number of person with appropriate delegations.  However, it may be…such a solution would also put the final decision-making responsibility in the hands of more junior and less experienced officers than those who currently hold delegations. In my opinion, courts should be reluctant to impose in the name of procedural fairness detailed rules of practice, particularly in the area of high volume decision-making involving significant use of public resources.[40]

 

5.59        There are limits however to the extent to which such considerations can supplant considerations going to the substance and quality of the decision-making process.

 

5.60        While Kirby P in Johns v Release on Licence Board[41] looked at the financial costs involved in increasing the content of the hearing rule for the Release on Licence Board, he noted that practical issues, such as the staff shortages and accommodation, should not be factors limiting the requirements of procedural fairness.

 

5.61        Although noting the intention of the Code under the Migration Act to assist delegates in the efficient and speedy resolution of the thousands of visa applications with which they must deal each year, Kirby J in Minister for Immigration and Multicultural Affairs: Ex parte Miah,[42] for example, was not prepared to construe the Act so as to exclude the rules of procedural fairness.  In such circumstances, courts are bound to have regard to the rights of the individual rather than broad-based issues of financial policy.

Previous Council consideration

5.62        In commenting on the volume of applications, in its first report in 1977, Administrative Decisions (Judicial Review) Act 1977, Exclusions under Section 19-1978, the Council responded to claims by some agencies that the AD(JR) Act would lead to an opening of the 'flood-gates' for review by noting that if there was a dramatic increase in the number of review applications an exclusion of that area could be made quickly.

 

5.63        The Council also noted that a high volume of litigation might be seen as evidence that the Act was having a ‘salutary effect in checking the lawfulness which may not otherwise be exposed.’

 

5.64        In some areas, the Council noted that new legislation could raise difficult questions for decision, resulting in an upsurge in the number of AD(JR) Act challenges.  The Council noted that this was followed frequently by a slackening off once the Federal Court’s approach to the legislation begins to emerge.[43]

Discussion point 10

5.65        Undoubtedly, resource considerations are a legitimate concern of government and as such, may have an important impact on the desirable scope of judicial review. 

 

5.66        It seems apparent, moreover, that the executive is best placed to assess the level of resources it can allocate to a particular area of government decision-making.  In contrast, judges are not in a position to determine where resources should be provided or how they should be apportioned.  Such decisions involve a range of issues and of knowledge. 

 

5.67        In this sense, such issues are polycentric,[44] involving consideration of matters of which a court is unlikely to have knowledge or to be equipped to act upon if it did.  As the role of a court is to examine cases on an individual basis, it would seem generally inappropriate for it to involve itself in such broad-based considerations.

Contributing factors and responses

5.68        What has emerged from this discussion and discussion of the related issue of abuse of process is that there is a range of factors which may contribute to high review costs in particular areas. 

 

5.69        In the Council's view, there are a number of ways that such concerns could be responded to other than through a reduction of judicial review rights. 

New legislation

5.70        As noted by the Council in its first report,[45] the passage of new legislation or amendments to existing legislation may encourage an initial ‘rash’ of cases ‘testing out the waters’.  This will undoubtedly lessen as the parameters of the new or amending legislation are established and training and procedures are put in place. 

 

5.71        In such circumstances, it may be considered that the courts have an important interpretative role to play and a role in achieving the consistency of approach referred to in the preceding section: only a court can offer a final and authoritative interpretation of a piece of legislation.  Attempts to reduce litigation by legislative means may be regarded as both unnecessary and inappropriate. 

Referral of cases by the court

5.72        Failure of the Federal Court in many instances to make adequate use of its discretionary power under paragraph 10(2)(b)(ii) of the AD(JR) Act to refuse an application where other ‘adequate’ avenues of review exist can, for instance, place pressures on the system.[46] 

Standards of primary decision-making

5.73        Poor quality decision-making may also, of course, encourage applicants to circumvent internal or tribunal review procedures in favour of judicial review.  Again, the answer is clearly not to limit the scope of judicial review, but to address decision-making problems at agency and tribunal levels. 

 

5.74        In some cases, strategies might be needed to improve the standard of primary decision-making.  In other areas, extended and improved alternative review mechanisms might need to be developed. 

Adequate alternatives

5.75        Where adequate alternative remedies are not in place, they might need to be established.  Where such remedies are in place, the courts might need to be encouraged to refer cases to them.  In some cases, a combination of all or some of these options might apply. 

 

5.76        Where an ‘adequate’ alternative review structure is provided, it is arguable that legislative limits on judicial review are justified.  However, where the provision of adequate alternative remedies is accompanied by active referral by the courts of appropriate cases to the alternative system, then it is equally arguable that legislative limitation of judicial review is unnecessary. 

 

5.77        In the context of adequate alternative remedies however, one of the features of the constitutional separation of powers doctrine is that tribunals can not make final binding and authoritative decisions.  While this system prevails, use of the courts for judicial review is inevitable (and of discernible value).

Access to legal aid/ avoidance of undesirable consequences

5.78        Other factors contributing to large volumes of judicial review cases might include easy access to legal aid as in the veterans’ entitlements area, or the desire to exploit the legal process to avoid an undesirable consequence, such as deportation, in the migration or criminal areas. 

 

5.79        The first of these examples, high levels of legal aid, is an issue which the government is best placed to address, though not, it is submitted, through limitations on the scope of judicial review. 

 

5.80        Response to the second example might include seeking to reduce the open-textured nature of some legislative decision-making provisions and (with greater difficulty), international conventions. 

 

5.81        Relevantly, in the taxation area where there might also be advantage in delay, measures have been taken legislatively to replace the judicial review regime with a comprehensive tiered review scheme capped ultimately, in most cases, with a right of appeal. 

 

5.82        If the conclusion is reached that there is no other way to bring costs into line than by imposing restrictions on judicial review, in addressing the issue, the preferable approach may be for parliament to use a fine-tuned legislative instrument, for example, by specifically identifying which decisions are reviewable.

 

5.83        If it is possible to retain some elements of review having regard to the potential of some grounds of review to attract greater cost responses than others,[47] then, arguably, this distinction should be made.  In any event, to maintain government accountability and to ensure the protection of individual rights, judicial review should only be replaced if there is an adequate alternative review mechanism: the rights of the individual applicant should not be manifestly reduced.  Consideration later in the discussion paper with regard to adequate alternative remedies is relevant in this regard.

 

Do you agree/not agree with these views? 

Are there other relevant considerations?

Please elaborate.

 

SECTION III

The nature of the decision

Policy and policy decisions

5.84        Policy has been described as ‘the process by which governments translate their political vision into programs and actions to deliver “outcomes” – the desired outcomes in the real world.’[48]  Such policy, often referred to as ‘government policy’, may be expressed, though not always, by way of government or ministerial statement, and has an expansive rather than a limited application.[49]

 

5.85        At another level, policy may be employed as a rule or guide for deciding when and what action may or may not be taken in the exercise of a statutory discretion.[50]  This sort of policy may take a variety of forms – from official departmental publications providing statements of objectives to detailed guidelines or instructions to unofficial expressions of opinion by public servants.  In the absence of any such statement or policy, a course of action may also be developed and followed over a period of time.  Many such “policies” do not have ministerial or government endorsement, may not be readily categorised in terms of broad-based government policy and may amount to little more than statements of objective, or opinions offered by individual agency officials as to what legislation means.[51]

The importance of policy in government decision-making

5.86        Development of government policy is commonly regarded as a function of government ‘for which it is publicly and politically accountable, and an elected government can rightfully expect that its policies will be carried into effect by the executive arm of government’.[52] 

 

5.87        The importance attached by the government to the awareness and responsiveness of administrators to government policy is reflected in the Australian Public Service Values set out in the Public Service Act 1999, which require that:

 

the APS [be] responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government’s policies and programs.[53]

 

5.88        The prominence afforded to policy is also reflected in the imposition on directors of statutory authorities and government companies by the Commonwealth Authorities and Companies Act 1997 of an obligation to ensure that any ‘general policies of the Commonwealth Government’ notified in writing by a Minister to the directors ‘are carried out’ in relation to’ the authority or company.[54]

 

5.89        A number of other Commonwealth statutes also encourage administrative regard to government policy, some providing for Ministerial direction where in the performance of its functions and the exercise of its powers, a body is ‘in conflict with major government policies’.[55]  Other legislation requires compliance with policies of the Commonwealth Government of which written notice is given.[56]

 

5.90        Under section 78AB of the Income Tax Assessment Act 1936, in considering whether to give a direction for the registration of a certified body on the Register of Environmental Organisations, the Environment Minister and the Treasurer are ‘required to take into account ‘the policies and budgetary priorities of the Commonwealth Government’.  Similarly, in making a decision under Division 396 (Land Transport Facilities Borrowing), the Minister for Transport and Regional Development is to take account of, amongst other things, ‘the extent to which the project conforms to Commonwealth and State government policies and planning requirements’.[57]

 

5.91        The way in which they handle policy in their decision-making processes represents a fundamental distinction between primary decision-makers, tribunals and courts.  Policy is often an integral part of administrative decision-making.  It may mean that a decision is correct notwithstanding a mistake of fact or an apprehension of the possibility of a fact existing.  Even though not included in a statute or regulation, it may dictate what is material in a particular case.  It may also reverse the onus of proof for example.[58]

Policy decisions

5.92        Most administrative decisions will have at their root some policy pronouncement of government.  Such elements usually overlap with other matters such as the view taken by the decision-maker of the law or upon factual matters or the conduct of the decision-maker vis à vis the applicant.

 

In practice it would be extremely difficult for the courts to isolate and to ignore policy elements whilst otherwise examining decisions for substantive unfairness and unreasonableness.[59]

 

5.93        There are some decisions, however, where policy is a critical element, either because there is no pre-existing policy, or where the subject matter of the decision is, in itself, reflective of high government policy.  Some decisions, such as those relating to international relations and national security may, by virtue of their nature, be considered to relate to higher policy issues than others.[60]

Exceptions to judicial review of certain sorts of policy decisions

5.94        In the reports of both the Kerr[61] and Ellicott[62] Committees, exceptions to the jurisdiction of the proposed Administrative Court were contemplated.  Both committees recommended that policy decisions of government ministers be excluded from judicial review,[63] the Ellicott Committee observing that:

 

There may…be some discretions exercised by Ministers which ought not be subjected to a general system of judicial review because their policy content or other special reasons make this undesirable in the public interest.  In some cases it will be found that procedures for review and perhaps judicial review, are already available. Discretions which, in our view, might be excluded would include some relating to defence, national security, relations with other countries, criminal investigation, the administration of justice and the public service.[64]

 

5.95        The limitations referred to by the Committee appear to reflect those formerly associated with the exercise of prerogative power and more recently, with court consideration of whether or not a matter before it is justiciable, that is to say, whether or not it is a matter upon which the court can, or considers it appropriate that it should adjudicate. 

 

5.96        The words of Brennan J of the United States Supreme Court in the decision of Baker v Carr are pertinent in this regard:

 

…the courts are not fit instruments of decisions where what is essentially at stake is the composition of those large contests of policy traditionally fought out in non-judicial forums, by which governments and the actions of governments are made and unmade.[65]

 

5.97        In summary, such decisions commonly include:

 

·               decisions relating to foreign affairs[66] (such as a decision to implement[67] or to enter into a treaty)[68]

 

·               decisions relating to national security

 

·               decisions to prosecute or not to prosecute

 

·               decisions relating to granting pardons to convicted persons;[69] and

 

·               decisions to appoint judicial officers.[70]

 

5.98        In its 1999 publication What Decisions Should be Subject to Merits Review? the Council also added to this grouping decisions affecting the Australian economy.  Included in this category were decisions of such fundamental significance as determining interest rates; floating the dollar; allocation of money to one program over another; and, setting foreign exchange rates.  However, it was considered that a decision of a Minister to approve a body corporate as a stock exchange may not be of sufficiently high political content to warrant exclusion from judicial review.[71]

 

5.99        Similarly with decisions in relation to matters of defence.  In 1989 in its 32nd report, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, the Council took the view that though they might well be susceptible to review under the AD(JR) Act, decisions deriving from the command power in section 7 of the Defence Act 1908 might well not be justiciable.

 

5.100    It has been said that the underlying rationale for the exemption from review of decisions in these areas rests with essentially practical considerations, such as the importance of speaking with a single voice in relation to matters of international relations, [72] and in achieving finality and immediate obedience in relation to the declaration or cessation of war or the deployment of forces.[73]

 

5.101    Under Schedule I to the AD(JR) Act there are also exclusions from review of a range of legislation coming broadly within these subject groupings.

 

5.102    Policy may also be political in the sense of being controversial: however, as observed by Kirby J:

 

…the mere involvement of a political or controversial question does not mean that a court lacks jurisdiction, that a controversy is not a ‘matter’ for the purpose of the Constitution, that a cause of action lacks viability or that the issue tendered is non-justiciable.[74]

 

5.103    A distinction may also be drawn between a decision that is ‘essentially political’ and one that is ‘policy driven’.[75]

 

5.104    As also noted by Dixon J at a somewhat earlier date, noting that exemptions for policy can be overstated:

 

The Constitution is a political instrument.  It deals with government and governmental powers.  The statement is, therefore, easy to make though it has special plausibility.  But it is really meaningless.  It is not a question whether the considerations are political, for nearly every consideration arising from the Constitution can be so described.[76]

Exceptions to the exemption

5.105    The decision in R v Secretary of State for the Home Department, ex parte Bentley,[77] is authority for the proposition that the courts cannot simply be ousted by the high policy nature of a decision:

 

The question is simply whether the nature and subject matter of the decision is amenable to the judicial process.  Are the courts qualified to deal with the matter or does the decision involve such questions of policy that they should not intrude because they are ill equipped to do so?…If, for example, it was clear that the Home Secretary had refused to pardon someone solely on the grounds of their sex, race or religion, the courts would be expected to interfere and, in our judgment, would be entitled to do so.[78]

 

5.106    It has also been recognised that:

 

The question in a particular case may not seriously implicate considerations of finality – e.g. a public program of importance (rent control) yet not central to the emergency effort.  Further, clearly definable criteria for decision [sic] may be available.  In such case the political question barrier falls away: ‘[A] Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared…[It can] inquire into whether the exigency still existed upon which the continued operation of the law depended.’[79]

 

5.107    This approach appears equally applicable in Australia.  In Re Ditfort[80] for example, Gummow J reached the conclusion that it is incorrect to assume that every case touching on foreign affairs lies beyond judicial consideration. 

 

5.108    Moreover, where government is administrating schemes within statutory limits set by parliament, the courts will enquire whether government is doing properly what it has authority to do.[81]

Circumstances of the individual

5.109    In some situations, policy decisions may have a particular import for certain individuals.  In those situations:

 

Despite the courts’ general reluctance to review policy, particularly at an abstract level, there are cases where the critical question is whether the established policy should be applied to an individual in particular circumstances or what weight should be given to policy, along with other relevant factors.  Judicial review may be available in some of these cases.  In some instances where the critical question relates to the application of policy, it is possible not to apply the policy without prejudicing the objects which the policy is designed to achieve.[82]

 

5.110    Pronouncements of the Court in relation to the treatment of cabinet decisions are also relevant and take the concept of exception a degree further.  For instance, in O’Shea’s case, while basing his decision on procedural fairness, Mason CJ recognised that cabinet may be involved in two different types of decisions – political policy decisions not open to judicial review and decisions more closely related to justice to the individual than with political, social and economic concerns.[83]

5.111    According to Sir Anthony Mason in his reasoning in this case:

 

I thought that although Cabinet is primarily a political institution concerned with political, economic and social concerns, it might be called upon to decide questions more closely concerned with justice to the individual when a duty to act fairly could arise.[84]

 

5.112    The courts have also sought to identify cases in which there is a legitimate expectation of some form of redress.  In FAI v Winneke[85] for example, it was held that the decision of the government, including the Governor acting on the advice of Ministers concerning a particular company, was reviewable where it dealt with matters that might be subject to a legitimate expectation.  Such an expectation would arise from the nature of the decision: it might also arise from the existence of a regular practice which the affected person might reasonably expect to continue.[86]

5.113    However:

 

The considerations by reference to which the reasonableness of a policy may be determined are rarely judicially manageable.  For this reason, the court is slow to intervene when injustice has been done to individual rights by what may appear to be an unjust policy.[87]

 

5.114    In conclusion, it has been said that:

 

On the authorities, the true test may well be: is the particular function appropriate for a court in the sense that the issues can be resolved by the application of legal principles and judicially manageable criteria and standards?  If so, some functions involving policy may be inappropriate, others not so.  If policy is to be dealt with according to judicial method, informing the formulation of principles to be applied to the case in hand, that is one thing, but if the court is required to deal with policy at large, then the function is non-judicial.[88]

Previous Council consideration

5.115    In response to arguments that decisions should be excluded from review on the basis of their policy nature, the Council noted in its first report, Administrative Decisions (Judicial Review) Act 1977, Exclusions Under Section 19, - 1978 that:

 

The Court is not concerned with Government policy except to the extent to which it produces an unlawful administrative decision. In this respect the powers of the Federal Court under the Act are no different from those of the High Court.  Accordingly, the presence of large elements of policy in the making of a class of decision is not a ground for exclusion from the Act.[89]

 

5.116    In its more recent publication What Decisions Should be Subject to Merits Review? the Council restated this view:

 

The fact that a decision-making power may be exercised by reference to a policy does not, in itself, exclude from review a decision made under the power.[90]

 

5.117    An exemption from merits review is recognised however for what are categorised as decisions with a high political content:

 

This exception relates to decisions that involve the consideration of issues of the highest consequence to the Government.  Only rarely will decision-making powers fall within this exception, and it is unlikely that a decision-making power not personally vested in a Minister would suffice.[91]

 

5.118    The Council noted though, that even where the high political content exception applies, in some areas, it will only apply to a few of the total number of decisions made under a decision-making power.[92]  The Council therefore considered it preferable for a decision made under such a power to be subject to merits review with an exclusion mechanism in place to cover those decisions falling within the exception.[93]

Discussion point 11

General treatment

5.119    It is suggested that in the majority of cases where ‘low level’ policy is involved, there is no difficulty in a court reviewing a decision made in the application of pre-existing policy.  Where the decision-maker has misconstrued the policy, the decision may be set aside for failure to take account of relevant circumstances, that is, the policy.

 

5.120    The court may also consider whether in the application of policy, the decision-maker has had regard to the facts of the particular case, or has reached an unreasonable conclusion or has altered the policy to dictate the outcome rather than considering the special or particular circumstances of the case.

 

5.121    In a case where an executive decision-maker has specified criteria in a policy statement which is consistent with the statute and is not unreasonable, a decision ignoring the criteria will be prima facie bad.  Similarly, a decision which fails in a particular case to recognise that policy criteria are satisfied may be considered unreasonable. 

 

5.122    Where there is no existing policy, it is largely for the decision-maker to determine which matters he or she considers material.[94]  Where the decision is a one off decision, greater restraint should be exercised, but there seems no basis, beyond that, to seek to limit judicial review. 

High policy

5.123    In areas of high policy, different considerations apply.  While high policy may be a factor justifying exclusion of merits review in some cases[95] different considerations would apply in relation to judicial review.  It may not be appropriate, in view of their subjectivity and quite often, their polycentricity, for a court to undertake judicial review of such decisions on the basis of grounds such as unreasonableness or irrelevant considerations.  Where an application is made to the court on the basis of an error of law, however, or an abuse of power, there would seem no reason to restrict judicial review.  Notwithstanding the ‘high policy’ element, it is still appropriate that the repository of that power (i.e. the decision-maker) exercise that power according to the law.

 

5.124    In those few cases where judicial review may not be appropriate, it may be argued that adoption of judicial concepts of justiciability and deference are more appropriate ways to achieve the correct balance between policy development and judicial review than the exclusion of certain policy decisions from the scope of judicial review by way of legislation.

 

Do you agree/not agree with these views? 

Are there other relevant considerations?

Please elaborate.

 

Decisions related to the administration of justice

What are decisions related to the administration of justice?

5.125    Decisions falling within this category include those relating to investigation, arrest, prosecution, bail, summary trial, committal, the filing of a nolle prosequi, indictment, appeal and parole.

 

5.126    Opinion appears to be divided on the interaction of judicial review with the decision-making processes of the criminal justice system.  Some point to the beneficial influence on the latter system of concepts of reasonableness and accountability. Others have raised concern at the encroachment of judicial review on the area of criminal administration and expertise. [96]

The executive perspective

5.127    Exemptions currently exist in Schedule 1 to the AD(JR) Act for:

 

(r)        decisions under the Extradition Act 1988;

(w)       decisions under the Witness Protection Act 1994;

(x)        decisions under subsection 60A(2B) of the Australian Federal Police Act 1979;

(xa)      decisions to prosecute persons for any offence against a law of the Commonwealth, a State or a Territory.

 

5.128    Arguments advanced in 1978 for exclusion of such decisions from review at the time of the writing of the Council’s first report, Administrative Decisions (Judicial Review) Act 1977, Exclusions under Section 19, included:

 

·        the Act may be used to hamper and frustrate the proper investigation and prosecution of offences

·        the obligation to give reasons may necessitate the premature disclosure of information to the prejudice of an investigation

·        there are adequate existing safeguards established to strike the right balance between the law enforcement agencies and the citizen

·        it is inappropriate to subject law enforcement officers who are engaged in criminal investigation and prosecution to the obligations of the Act, particularly the obligation to give reasons; and

·        most of the decisions lead to the matter being brought before a court and there are extensive appellate processes.[97]

 

5.129    With respect to exemptions from judicial review provided for in the Financial Transactions Reports Act 1993 and the Witness Protection Act 1994, the Government was motivated, respectively, by concerns that criminal investigations could be compromised, and for maintenance of the integrity of the program.  In the context of the Witness Protection Act 1994, in responding to inquiries from the Scrutiny of Bills Committee, the then Minister for Justice said:

 

…the decision to exclude the operation of the AD(JR) Act was not taken lightly.  It was done only after ensuring that there were internal review mechanisms…[the exemptions] are all designed to protect the integrity of the [program].  The importance of ensuring the safety of witnesses, their relatives and the AFP officers means that information must be subject to strict safeguards.[98]

 

5.130    The Committee accepted this argument.

 

5.131    More recently, arguments for and against exclusions in this area have arisen in the context of the Jurisdiction of Courts Legislation Amendment Act 2000.  Schedule 2 to this Act:

 

·        removes the right of the defendant to challenge the decision to prosecute under both the AD(JR) Act, the Judiciary Act 1903 and the Corporations Act 1989

·        suppresses rights to review of other pre-trial decisions once the prosecution is brought to court, and until the trial and any subsequent appeals are completed;[99] and

·        channels much of the remaining jurisdiction from the Federal to State and Territory courts.[100]

 

5.132    The reason for the amendments, according to the Attorney-General in his second reading speech, was ‘to avoid the use of unmeritorious delaying tactics in the criminal justice process by removing the collateral access of defendants to federal administrative law procedures and remedies’.[101]  In his response to the Senate Scrutiny of Bills Committee, the Attorney-General suggested that judicial review was ‘frequently’ a stalling tactic.[102]  He also noted in debate of the Bill that ‘collateral attacks’ generally lack merit and are ‘invariably used only by defendants with deep pockets’.[103]

 

5.133    Other arguments for the exclusion from review of such decisions included:

 

·        to avoid fragmentation of proceedings between courts at different tiers of the federation

·        to reduce cost and delay, and the consequential damage caused by delay to the prosecution case

·        that defendants still have recourse to relief by way of section 75(v) of the Constitution and to review either side of the prosecution proceedings

·        that the criminal courts themselves provide safeguards through the discretion to deny admissibility to prejudicial evidence, the grant of permanent stays to prevent an abuse of process and the appeal system; and

·        that the amendments place defendants in Commonwealth prosecutions in essentially the same situation as their State counterparts.

The judicial perspective

5.134    The position of the courts is that they will only ordinarily interfere with the processes of criminal justice by way of judicial review in exceptional circumstances.[104]  This applies equally to committal proceedings, issuing a warrant, deciding to prosecute or arresting a suspect.  In Barton v The Queen[105] for instance, the High Court decided that an exercise by the Attorney-General of the power to present an ex officio indictment is non justiciable.  The court also noted that there was well established English authority that the prerogative powers to enter a nolle prosequi and to grant or refuse a fiat in connection with a relator action, are not justiciable.  Clearly, policy considerations support this view. It would be undesirable for the courts to become closely involved in the question whether a prosecution should be commenced, when ultimately, it would be the task of the courts to determine the accused’s guilt or innocence.

 

5.135    However, in Barton’s case, Gibbs ACJ and Mason J held that where there was a suggestion of abuse of process, the court would stay a prosecution brought without reasonable ground, at least until a preliminary examination took place – where antecedent committal proceedings were dispensed with, a trial in their absence ‘unless justified on strong and powerful grounds, must necessarily be considered unfair’.[106]  The courts should not abdicate to the Attorney-General or the Crown prosecutor their function of deciding ‘where on balance the interests of justice lie’.[107]

 

5.136    Relevant factors for the courts have been said to include:

 

·        that the courts should not be seen to stand too close to the executive decision to prosecute

·        that there is strong public interest in the expeditious completion of criminal matters; and

·        fragmentation of proceedings between State and Federal courts should be avoided wherever possible.[108]

 

5.137    In the Federal Court case of Crane v Gething,[109] French J reaffirmed the general principles of judicial restraint subject to exceptions in appropriate cases.  In his view, success would be most likely in cases involving a pure question of law with no factual elements, where, though investigation has commenced, no proceedings are pending.

 

5.138    This generally cautious approach on the part of Australian courts may be contrasted with that in the UK where an application may always be pursued for the judicial review of a decision made by a magistrate or magistrates court.  In one case for example, an order for certiorari by way of judicial review was granted to quash a conviction by a magistrate’s court on the ground that there had been a denial of procedural fairness arising from the prosecutor’s failure to disclose to the court and the defence the existence of witnesses who could have given evidence favourable to the defence.[110]  In another case, it was held that the sentence was so far outside the normal discretionary limits as to enable the reviewing court to say that its imposition must involve an error of law of some description even though it might not be evident at once what was the precise nature of that error.[111]

Previous Council consideration

5.139    In its first Report, Administrative Decisions (Judicial Review) Act 1977, Exclusions Under Section 19 - 1978, the Council’s majority recommendation was that all decisions relating to the administration of criminal justice (including the investigation, arrest, prosecution, bail, summary trial, committal, decision to file a nolle prosequi, indictment, appeal and parole of persons for any offence against a law of the Commonwealth) other than:

 

·        appointments of investigators and inspectors under statutory powers

·        the issue of search warrants and analogous warrants under the Customs Act 1901 and other legislation; and

·        decisions to require the production of documents, the giving of information and the summoning of persons as witnesses, be excluded from review under the AD(JR) Act.

 

5.140    The Council has said subsequently, in relation to a proposal to exclude committal proceedings from the AD(JR) Act, that certain questions are more appropriately resolved in a judicial review context by a court with specialist expertise in that area and that defendants should not have to wait for trial to get an answer, for instance, with respect to the jurisdiction of a magistrate to conduct a committal hearing.[112]

 

5.141    In 1993, in a letter to the Standing Committee on Legal and Constitutional Affairs about exemptions from the Financial Transaction Reports Act 1988 (the FTRA), the Council took the view that decisions under that Act should not be exempted from judicial review.[113]  In response to concerns from the Attorney-General’s Department that criminal investigations could be compromised if statements of reasons for decisions were required, the Council referred to recommendations made in its 33rd report in 1991, Review of the Administrative Decisions (Judicial Review) Act: Statement of Reasons for Decisions, that section 13A(1) of the Act should be amended to provide that information should not be revealed if it would ‘disclose or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law’.  The Council recommended that this amendment should be expanded to cover decisions under the FTRA.

 

5.142    In 1999, in What Decisions Should be Subject to Merits Review?, the Council broadly endorsed the approach taken in its first report in 1978 report, noting that:

 

Decisions of a law enforcement nature, including decisions relating to investigations, should not be made subject to merits review.  If review of such decisions was available, both the investigation of possible breaches and the subsequent enforcement of the law could be jeopardised.[114]

 

5.143    The Council gives as examples decisions to place people on the Witness Protection Program, and decisions that involve prosecutorial discretions, including whether the person concerned would be a valuable or useful witness.  The Council notes, however, that a decision to remove someone from the Program would not be of the same quality as it would deprive the person concerned of an expectation of security and should be subject to merits review.[115]

Discussion point 12

5.144    Having regard to the preceding discussion, it may be that where adequate alternative remedies exist in the criminal justice system, judicial review can be dispensed with.

 

5.145    However, where personal security is not an issue, where adequate alternative remedies do not exist in the criminal justice system, and where the judicial review system can offer protection to individual rights, then it might be that review should be available.  Arguably, the matter is one which would be better determined at the judicial than the governmental level, on a case by case basis, rather than through the imposition, legislatively, of a total ban on access to judicial review or for specified periods.

 

Do you agree/not agree with these views? 

Are there any other relevant considerations?

Please elaborate.

 

Decisions where there are ongoing relationships

5.146    As reflected in extrinsic material surrounding the passage through Parliament of the Public Service Act 1999, one of the major objectives of the review structure provided for in that legislation was to reduce the complexities and the legalism of previously existing review structures. 

 

5.147    Consistent with this, the Public Service Act reflects an emphasis upon harmonisation and alternative means of resolving workplace disputes. Though decided well before the passage of the current legislation, the approach is reflected in the decision in Ansell v Wells.[116]  In that case, in determining the parameters of natural justice, it was said by the court that:

 

The procedures of the Promotions Appeals Committees, by applying statutory standards of relative efficiency and seniority in respect of officers of the Public Service, should be designed to ensure fairness to all concerned, but with the aim of fostering harmonious relations between fellow officers who must work or continue to work together and not of promoting discord between them.[117]

 

5.148    Arguably, the values saved by resort to legal action can rarely outweigh the damage to efficient administration, particularly where there are only marginal differences in merit between the candidates for promotion.

Discussion point 13

5.149    There may be some justification for limiting the right to be heard in employment-related cases, particularly where the attributes of various members of staff are being compared in a critical fashion. 

 

5.150    Similarly, in the case of grounds such as unreasonableness and irrelevant considerations, the subjective nature of the process necessary to arrive at a conclusion may outweigh the benefits of judicial review.  However, it is more difficult to argue that judicial review should be limited in cases where errors of law are in issue.  As against all grounds of review, however, the existence of adequate alternative remedies and dispute resolution strategies would seem to be a significant factor in limiting judicial review rights.

 

5.151    The emphasis upon informal dispute resolution mechanisms and access to the specialist Merit Protection and Review Commission (at least for a full merits review hearing) under the Public Service Act 1999 is noted in this regard.

 

Do you agree/not agree with these views? 

Are there any other relevant considerations?

Please elaborate.

 

Legislative decisions

Introduction

5.152    Although there may be some overlap of judicial, executive and administrative powers,[118] ‘the primary characteristic of the activities of administrators in relation to legislation is to maintain and execute those laws’.[119] 

 

5.153    However, legislative power may be delegated by the parliament to the executive subject to some measure of parliamentary control.   This is most often achieved by way of placing regulation-making power in the Governor-General in Council. 

 

5.154    Subject to parliamentary control by way of disallowance, legislative power may also be given to other designated persons, for instance Ministers of State.  It is in relation to this sort of power that issues arise as to the appropriateness, extent and nature of judicial review.

What are legislative decisions?

5.155    In the United Kingdom, it has been said that where a provision or rule is of general application, it is likely to be legislative in character, whereas, where it prescribes the application of a general rule to a particular situation, it is likely to be administrative.[120] 

 

5.156    In Australia, it has been held that a legislative decision is one involving making new rules of general application, that is, applying to the public at large or a defined section of the public, for example, all nursing homes.[121]  The classic statement of the distinction is that of Latham CJ in Commonwealth v Grunseit:

 

The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases.[122]

 

5.157    Exceptions to this rule are rare.[123]

5.158    Consistent with this, in its 35th report in 1992, Rule Making by Commonwealth Agencies, the Council considered legislative decisions to:

 

·        have the effect of changing or determining the content of the law, rather than applying it

·        be binding on the executive, rather than merely guidelines; and

·        be of general application and not directed at a particular case.[124]

 

5.159    This notwithstanding, as recognised by Gibbs CJ in the Bread Manufacturers of NSW v Evans,[125] the distinction between legislative and administrative decisions, while easy to state, is difficult to apply.  In that case, which involved a challenge to the validity of an order made by the Prices Commission under the Price Regulation Act 1948 concerning the sale-price of bread or bread products in NSW, His Honour said that:

 

The distinction between powers of an executive and those of an legislative nature is a fine one and opinions may easily differ on the question.[126]

 

5.160    The difficulty of delineating the three major spheres of government was first noted by the UK Donoughmore Commission in 1932.[127]  It would also seem that the requirement to publish the order or decision and provision that it be subject to judicial scrutiny by the parliament may be indicative of the legislative status of a determination.  However, publication in the Commonwealth Gazette or the right of veto by the relevant Minister is not sufficient.[128]

 

5.161    In the case of Queensland Medical Laboratories v Blewett, Gummow J also indicated that there were difficulties with the principle, noting that it was not an essential attribute of a ‘law’ that it formulate a rule of general application.[129]  On that basis, he suggested that:

 

…it is difficult to see how a sufficient distinction between legislative and administrative acts is that between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases.[130]

 

5.162    In a Federal Court case, Aerolineas Argentinas & Ors v Federal Airports Corporation,[131] the Court undertook an analysis of the character of a determination under section 56 of the Federal Airports Corporation Act 1986 imposing security charges for large aircraft landing at major city airports in Australia from the date of their imposition until December 1993.  In that case, it was held that the determination was administrative rather than legislative in character because:

 

·        it was not subject to disallowance by Parliament (a right of disapproval in the Minister not constituting such)

·        it was not subject to pre-notification in the Gazette, a pre-condition for any by-law coming into effect; and

·        it was subject to two forms of executive control - under the Prices Surveillance Act 1983 (Cth) and by the Minister.

The AD(JR) Act and legislative decisions

5.163    Under the AD(JR) Act a range of matters has been identified by the Federal Court as legislative and therefore non-reviewable:

 

·        determinations under the National Health Act 1953 relating to the brand of drugs that might be supplied [132]

·        customs tariff instruments [133]

·        fisheries management plans[134]

·        fisheries temporary management orders [135]

·        determinations relating to pathology services made under the Health Insurance Act 1973 (Cth) [136]

·        statements of principles made by Repatriation Medical Authority under the Veterans Entitlement Act 1986 (Cth));[137] and

·        licence area plans made under the Broadcasting Services Act 1992 (Cth). [138]

5.164    The distinction between legislative and administrative decisions has been eroded by the inclusion in the Judiciary Act of section 39B(1A)(c).  This section confers jurisdiction on the Federal Court in matters ' arising under any laws made by the Parliament'.[139]

The common law and legislative decisions

5.165    Rather than categorising decisions as legislative, the High Court has preferred to focus on the need for persons to be affected ‘as individuals’[140] in a direct manner.

 

5.166    In the case of Kioa v West, while adverting to the distinction between decisions of a legislative and an administrative character, the critical point was regarded by Brennan J to be the impact on the individual:

 

The legislature is not likely to intend that a statutory power of a strictly legislative nature be conditioned on the observance of the principles of natural justice for the interests of all members of the public are affected in the same way by the exercise of such a power … But the legislature is more likely to intend the exercise of a statutory power of an executive, administrative or quasi-judicial nature to be so conditioned if an exercise of the power singles out individuals by affecting their interests in a manner substantially different from the manner in which the interests of the public at large are affected. The approach is stated by Estey J. delivering the judgment of the Supreme Court in Attorney-General of Canada v. Inuit Tapirisat of Canada [citation omitted]:

 

" The answer is not to be found in continuing the search for words that will clearly and invariably differentiate between judicial and administrative on the one hand, or administrative and legislative on the other. It may be said that the use of the fairness principle ... will obviate the need for the distinction in instances where the tribunal or agency is discharging a function with reference to something akin to a lis or where the agency may be described as an 'investigating body' ... Where, however, the executive branch has been assigned a function performable in the past by the Legislature itself and where the res or subject-matter is not an individual concern or a right unique to the petitioner or appellant, different considerations may be thought to arise."[141]

 

5.167    As also noted by Mason J (as he then was) in Kioa’s case:

 

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.

 

…But the duty does not attach to every decision of an administrative character.  Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way.  Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly.  This is because the act or decision which attracts the duty is an act or decision –

 

" ... which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public.  An executive or administrative decision of the latter kind is truly a 'policy' or 'political' decision and is not subject to judicial review”.[142]

Who should determine when persons are affected as individuals

5.168    Although there are a number of approaches that may be taken in determining when persons are affected as individuals, it has been suggested by one commentator that decision-makers should be allowed a choice ‘in circumstances where consideration of individual interests is permissible, but not mandatory’.[143]  In this situation, it is suggested, ‘a  hearing is required where the decision-maker elects to have regard to individual interests, but not where the decision is based on general considerations without regard to its effect on any particular individual’.[144]  Under this approach, ‘the critical approach is not how many people are affected, but whether the decision-maker has taken account of the effect on actual (as opposed to hypothetical) individuals.[145]

 

5.169    This approach was taken in Dunlop v Woollahra Municipal Council.[146]  In that case, Wootten J concluded that although no hearing was required where the Council made a common rule (in relation to the exercise of statutory powers to fix building lines), the plaintiff in that case was entitled to a hearing since the action was based ‘not on general considerations, but on particular matters arising in relation to the plaintiff’s land.’[147]

Government attempts to establish legislative rather than administrative decision-making regimes

5.170    It is noted that in at least one instance, the government has sought to limit the potential for litigation by making decision-making legislative rather than administrative in character.  In the veterans’ entitlements area for instance,[148] with the potential for litigation that might retard the making of SoPs, the RMA and the SMRC were set up as statutory corporations and their functions were clearly made legislative in character rather than administrative.  The intended effect was to exclude them from the AD(JR) Act and from section 39B (as it was then) of the Judiciary Act.[149]

Discussion point 14

5.171    Having regard to the foregoing, particularly the impact of section 39B(1A)(c) of the Judiciary Act, it is suggested that distinction between legislative and administrative decisions has been eroded. 

 

5.172    Having regard to the approach adopted in the cases referred to above, it is suggested that decisions that:

 

·        determine the content of a rule of general application; and

·        do not conclusively determine the application of such a rule in a particular case

 

should not be subject to the full range of judicial review.  It is further suggested that this is a matter better determined by the courts than by the parliament.

 

Do you agree/not agree with these views? 

Are there any other relevant considerations?

Please elaborate.

 

Decisions made in urgent or emergency contexts

5.173    It has long been recognised that the need for urgent action may result in the exclusion of natural justice.[150]

5.174    The effect of the need for urgent action was discussed by Wilcox J in Marine Hull & Liability Insurance Co Ltd v Hurford,[151]a case concerning a statutory power to direct an insurance company under investigation not to issue or renew policies.  In that case, a distinction was drawn by the court between cases where the powers themselves by their very nature are inconsistent with the obligation to accord an opportunity to be heard and powers which may on occasion, but not always need to be exercised urgently.[152] In the second instance, issues arise as to whether the hearing requirement is always excluded, excluded only where urgency is established, or limited by urgency but never excluded.[153]

Previous Council consideration

5.175    In seeking exemption from the application of the AD(JR) Act in 1978, some agencies argued that where a decision is made in an emergency context
(eg where food is alleged to be a health hazard) there should be no judicial review because delay in making the decision or taking action to implement the decision could destroy the value and purpose of the decision itself.[154]

 

5.176    The Council considered that the “urgent or emergency context in which some classes of decision are made is not a ground for exclusion since the significant changes made by the Act do not alter the law or practice to be taken with respect to these decisions.”  This was because the Act does not:

 

·        alter the rules relating to interlocutory injunctions; and

·        a request for a statement of reasons or an application for an Order of Review does not operate to prevent the decision from being made and implemented.[155]

Discussion point 15

5.177    In cases where there is a need to make decisions in urgent or emergency contexts, it may not be necessary to provide a right to be heard, although other grounds of review, such as actual or apprehended bias, unreasonableness and error of law would still apply.  In many cases, the extent or nature of the urgency may not be able to be predicted: in such cases, it should not be sought to anticipate it by way of legislative limitation.

 

Do you agree/not agree with this view?

Are there any other relevant considerations?

Please elaborate.

 

SECTION IV

Nature of the decision-maker

Status of the decision-maker

The judicial perspective

5.178    Case-law supports the view that the status of the decision-maker does not in itself limit the scope of judicial review.[156]

 

5.179    In R v Toohey; ex parte Northern Land Council, the High Court held that the exercise of statutory power by the Queen’s representative is justiciable on the ground of improper purpose or bad faith.[157]  As noted earlier in Part (IV) of the paper in the discussion relating to justiciability, the fact that a decision-maker is a Minister or the Queen’s representative[158] does not, in itself, preclude judicial review, though it may amend it in some case, in the context of particular grounds, notably that of procedural fairness.[159] 

 

5.180    However, the judgment of the High Court in FAI Insurance Ltd v Winneke[160] supports the view that the fact that a statutory position has been conferred on a decision-maker at the highest level (the Governor in that case), may suggest that the content of the rule relating to procedural fairness should be reduced.  In that case, the court held that a decision of the Governor in Council refusing an application for renewal of a licence was reviewable for procedural fairness, the insurer not having had the opportunity to meet adverse comments of the Minister regarding their investments and financial position.

 

5.181    Susceptibility of the decision-maker to accountability via other accountability mechanisms is also a significant factor.  Hence the role of parliament in calling Ministers to account was relevant as evident in comments by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia, a case involving claims of actual and apprehended bias.  In reviewing the approach taken in the Federal Court, their Honours noted as follows:

 

…both French J and Cooper J evaluated the statements and conduct of the Minister in the light of his political functions and responsibilities. This is a matter of importance. In considering whether conduct of a decision-maker indicates prejudgment, or in some other respect constitutes a departure from the requirements of natural justice, the nature of the decision-making process, and the character of the person upon whom Parliament has conferred the decision-making capacity, may be of critical importance. French J was right to consider the Minister's conduct in relation to the radio interview, and the letter to the President of the Tribunal, in the light of the fact that he was "an elected official, accountable to the public and the Parliament and entitled to be forthright and open about the administration of his portfolio which ... is a matter of continuing public interest and debate."[161]

 

5.182    As noted by Kirby J in the same case, however:

 

Ministerial decisions are not the subject of the same requirements of actual and manifest independence and impartiality as are required by law of the decisions of courts and tribunals. Nevertheless, the misuse of high public office by a Minister for ends alien to the legislation conferring powers on the holder of that office would, self-evidently, involve a serious wrong-doing.[162]

 

5.183    In many cases, there is authority (often stated legislatively) for the delegation of decision-making powers or the hearing function to others.  In some cases, all that may be required is the adoption of the findings or recommendations of the person who performed the decision-making function.  In such circumstances, it may be that the standard of procedural fairness required may differ from that where the power cannot be divulged to others.[163]

 

5.184    However, according to Kirby J, also in Jia’s case, the fact that a decision-making power was conferred by the Migration Act personally upon the Minister, that it could not be delegated to an administrative officer of the Department and that it had to be reported to parliament:

 

…does not mean that a Minister is at liberty to give vent to personal biases, idiosyncratic opinions, prejudice against a particular applicant or blanket rules, applied without regard to any specific features of the case at hand.  Nor is a Minister at liberty to apply blindly his own, a departmental, a Party or even a Government policy which is inconsistent with the assumptions of individual justice and administrative decision-making that are inherent in the grant of power by the Parliament.[164]

 

5.185    His Honour also went on to say that:

 

Clearly the pressures, processes and nature of Ministerial decision-making differ from the judicial task.  Consequently, the obligation imposed by the courts on officers of the Commonwealth, including Ministers, should not ‘over-judicialise’ the performance of their functions, including in the making of decisions required of them by statute.  I accept that the Minister’s remark on an early morning interview radio should not be dissected in the way sometimes appropriate to analyses of the considered reasons of a court or tribunal.

 

5.186    Comments in this case by Hayne J are also relevant:

 

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 decision of a disputed question is committed to a tribunal whose statutorily defined processes have some or all 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.[165]

Previous Council consideration

5.187    In What Decisions Should be Subject to Merits Review? the Council said that:

 

Factors that will not exclude merits review that lie in the nature of the decision-maker include:

 

·        The decision-maker is an expert, or requires specialised expertise; and

·        The decision-maker is of high status.

 

5.188    In relation to the latter, the Council noted that:

 

The status of the primary decision-maker is not a factor that, alone, will make decisions of that person inappropriate for merits review.

 

For example, the fact that the decision-maker is a Minister or the Governor-General, is not, of itself, relevant to the question of review.  Rather, it is the character of the decision-making power, in particular its capacity to affect the interests of individuals, that is relevant.[166]

Discussion point 16

5.189    Although the nature of the decision-making body or the status of the decision-maker should not in itself render judicial review necessary or unnecessary, it is suggested that it may nonetheless have an impact on the appropriate scope of judicial review.  Where the status of the decision-maker is linked to the making of particular sorts of high level policy decisions, other considerations become relevant.  The preferred view may be that the determination of such issues is best left to the courts.

 

Do you agree/not agree with these views? 

Are there other relevant considerations?

Please elaborate.

 

Expert decision-makers

The judicial perspective

5.190    The courts have tended to take a cautious approach where the decision-maker is using special knowledge to make an assessment of a factual situation.[167]

 

5.191    As noted by Gleeson CJ, Gummow, Kirby and Hayne JJ in Corporation of the City of Enfield v Development Assessment Commission:

 

The weight to be given to the opinion of the tribunal [or the decision-maker] in a particular case will depend upon the circumstances.  These will include such matters as the field in which the tribunal operates, the criteria for appointment of its members, the materials upon which it acts in exercising its functions and the extent to which its decisions are supported by disclosed processes of reasoning.[168]

 

5.192    However, as noted in earlier discussion:

 

Where the question is whether the tribunal acted within jurisdiction, it must be for the court to determine independently for itself whether that is the case.[169]

 

5.193    As stated by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu:

 

…whilst it is for this court to determine independently for itself whether in a particular case a specialist tribunal has or lacks jurisdiction, weight is to be given, on questions of fact and usage, to the tribunal’s decision, the weight to vary with the circumstances.  The circumstances will include such matters as the field in which the tribunal operates, the criteria for appointment of its members, the materials upon which it acts in the exercise of its functions and the extent to which its decisions are supported by disclosed processes of reasoning.[170]

 

5.194    The more difficult cases would seem to be where the specialist body is required to make determinations that involve both the assessment of facts and the interpretation of the law, for example, determinations as to the existence of facts to meet criteria established by law.

Discussion point 17

5.195    It is suggested that the courts already show considerable deference to the expertise of expert decision-makers.  If limitations are imposed by way of legislation, they should only relate to areas within the particular purview of the decision-maker and to grounds of review (identified earlier) which, by their nature, come close to the boundaries of merits review.

 

Do you agree/not agree with this view? 

Are there any other relevant considerations?

Please elaborate.

 

Outside contractors

5.196    As remarked in the Australian National Audit Office Audit Activity Report: January to June 2001:

 

As a result of the greater use of outsourced services as significant elements of program delivery, project and contract management has become a major element of public administration.[171]

The executive perspective

5.197    Although there has been a concern at the possible reduction in executive accountability as a result of the greater use of outsourced services, the concern has been predominantly with broad-based agency accountability rather than with accountability to the service user.

 

5.198    For instance, in its 1996 report, Competitive Tendering and Contracting by Public Sector Agencies, the Industry Commission drew attention to the need to preserve accountability when services of government are contracted out:

 

The Commission agrees with numerous inquiry participants that, while responsibility to do certain things can be transferred, accountability for the results cannot.

 

Whatever the method of service delivery, a government agency must remain accountable for the efficient performance of the functions delegated to it by government…[172]

 

5.199    More recently, in the Commonwealth Procurement Guidelines and Best Practice Guidance, the Government has said that:

 

When outsourcing an activity, agencies cannot outsource their responsibility to ensure the efficient and effective use of Commonwealth resources, or their accountability for performance.  Outsourcing contributes to the quality of outcomes for an activity without affecting the existing accountability frameworks.  When an agency outsources a function, it is still responsible for ensuring the services provider is meeting the agency’s stakeholder need.[173]

 

5.200    It has been said further that:

 

The principle that agencies remain accountable for an activity even though the activity is subject to commercial tendering and contract does not mean that there is a common set of accountability arrangements which applies to all providers.  A number of factors will need to be balanced to ensure that providers are subject to the mix of accountability arrangements that maximise the benefits of competitive tendering and contracting but protect the interests of relevant stakeholders.  Agencies will need to consider, on a case by case basis, the level of access the agency and the Australian National Audit office require to a provider’s records, information and assets (including premises) to adequately monitor a provider’s performance.  This can be stated in the contract.[174]

 

5.201    This approach does not provide individuals with a direct right of recourse against the decision-maker.

 

5.202    The implications of recent amendments to the Privacy Act 1988 to extend its application to personal information held by contractors in relation to services provided to the Commonwealth or to other persons is relevant in this regard.[175]  The Council understands that the Government is currently considering whether to extend the Freedom of Information Act 1982 to requests by individuals about themselves held by the contractors for access to and correction of personal information held by them on behalf of the government.

The Council perspective

5.203    As noted by the Council in 1998 in its 42nd report, The Contracting Out of Government Services, judicial review under the Constitution and section 39B of the Judiciary Act is not limited to review of a decision taken under an enactment.  Decisions taken by a contractor under a non-statutory scheme may therefore, in appropriate cases, be the subject of an application to the High Court or the Federal Court for a writ of mandamus or prohibition or an application for an injunction.[176]  In contrast, the AD(JR) Act currently only extends to review of a decision under an enactment.[177]

 

5.204    Recently, the Government paid recognition to the importance of transparency and accountability when managing government contracts.  It indicated that the Ombudsman should have the jurisdiction to investigate actions of private sector organisations contracted by Commonwealth agencies to provide goods or services to the public and that it will consider amending the Ombudsman Act 1976 to achieve this.[178] 

 

5.205    The Government has also indicated that it does not support the view that commercial information is inherently confidential and that any decision to withhold information on commercial-in-confidence grounds needs to be fully substantiated, stating the reasons why such information should not be disclosed.[179]  It has also agreed in principle to the access by auditors to the premises of government contractors.[180]

Discussion point 18

5.206    In its 42nd report, the Council recommended that ‘the AD(JR) Act should extend to include a decision of an administrative character made or proposed to be made, by an officer under a non-statutory scheme or program, the funds for which are authorised by an appropriation made by Parliament.’ (Rec 22)  The emphasis here is upon the nature of the decision rather than the nature of the decision-maker.

 

5.207    It is suggested that this and other recommendations made in the report No 42 relating to the accountability of outside contractors remain an appropriate response in this area.

 

Do you agree/not agree with this view? 

Are there other relevant considerations?

Please elaborate.

 

Government business enterprises

5.208    It has been remarked that:

 

Judicial review can occasionally remedy individual grievances but rarely provides systemic relief.  The decision to litigate and to maintain the litigation can be happenstantial…Review in the wake of privatisation and outsourcing carries the additional problem that the complainant is typically conceived as a consumer with a consumer complaint, which is not the business of judicial review.[181]

What is a GBE?

5.209    In the Council’s first report, Administrative Decisions (Judicial Review) Act 1977, Exclusions Under Section 19, - 1978, the Council devoted a number of paragraphs[182] to consideration of submissions that a number of statutory authorities[183] should be excluded from the application of the Act on the basis of their commercially competitive natures.[184]  In its 32nd report in 1989, consistent with an increasing sophistication in the manner of government involvement in business activities, a shift in terminology was apparent, with growing reference to ‘government business enterprise’.

 

5.210    In its 38th report in 1995, Government Business Enterprises and Commonwealth Administrative Law, this evolutionary trend was almost complete, with only fleeting reference to ‘statutory authorities’. 

 

5.211    In this report, the Council defined government business enterprises (GBEs) as bodies owned (or partly owned) by government, that are principally engaged in commercial activity, and that are separate legal entities from government.  GBEs have characteristics in common with private enterprise (for example, selling goods or services commercially for financial return) while also belonging to the public sector as a result of government ownership and the requirement to operate in accordance with government policy.[185]  Some may become incorporated and some may be privatised.

 

5.212    Government business enterprises are subject to the Commonwealth Authorities and Companies Act 1997, the Corporations Law 1997, Governance Arrangements and their own enabling legislation (the Australian Postal Corporation Act 1989 for instance).  They provide services collectively consumed by members of the public, including education, health care, transport, public housing, land use regulation and urban planning.

 

5.213    Examples of government business enterprises include Telstra Corporation, Australia Post, the Snowy Mountains Hydro Electric Authority, the Defence Housing Authority and the Australian Government Solicitor.

The judicial perspective

5.214    Decisions of a GBE that are commercial decisions, or decisions made other than pursuant to specific statutory powers are unlikely to be reviewable under the AD(JR) Act although review may be available in limited circumstances under the Constitution or in the State Supreme Courts.

 

5.215    To come within the ambit of the AD(JR) Act, as with outside contractors, a decision must be ‘of an administrative character made…under an enactment’ within the meaning of section 3 of the AD(JR)Act.  Most day to day decisions made by a GBE, particularly commercial decisions (such as decisions concerning or made under contracts) are unlikely to fall within this definition as they are made under general powers rather than under a statute.[186]

 

5.216    Under section 75(iii) of the Constitution, whether a particular GBE may be a person ‘suing or being sued on behalf of the Commonwealth’ is a question to be determined in each case by reference to the particular legal structure and circumstances of the GBE.

 

5.217    Under section 75(v), GBEs are not themselves ‘officers of the Commonwealth’.  Whether an officer of a GBE is an ‘officer of the Commonwealth’ will depend in each case on factors such as whether the person is appointed, paid, controlled and removable by the Commonwealth, or is appointed by the Commonwealth to exercise a function of the Commonwealth.[187]

The executive perspective

5.218    Corporatisation of GBE’s tends to be accompanied by a requirement for ‘competitive neutrality’, a concept described in the Hilmer Report.[188]  In such an environment, administrative law becomes an ‘unnecessary impediment’ to neutral and hence effective competition with private sector business.[189]

 

5.219    The Humphrey Report[190] concluded that as GBEs generally trade in goods and services in the market, their activities are not administrative.  The Report recommended that GBEs be exempt from statutory administrative law.  This approach was subsequently confirmed by the Government in June 1997 upon the introduction of new Governance Arrangements for Commonwealth Government Business Enterprises.

 

5.220    However, in its report on Corporate Governance and Accountability Arrangements for Commonwealth Business Enterprises,[191] the Joint Committee of Public Accounts and Audit was of the view that, depending on their responsibilities, some aspects of administrative law should apply to GBEs.  The Committee was of the view that each GBE should be examined on a case by case basis to determine what aspects of administrative law should apply.

Other views

5.221    It has been noted by Justice Finn that:

 

…a statutory corporation as an agency of government can have no private or self-interest of its own separate from the public interest it is constitutionally bound to serve.  It is this that sharply differentiates such a corporation from one that is privately owned.

and

…despite the growing tendency to approximate the duties of directors of statutory corporations to those of Corporations Law directors – as witnessed by section 21ff of the  Act 1997 – the gulf between the two remains large and unbridgeable (at least without constitutional upheaval).[192]

 

5.222    Similarly, in Hughes case, His Honour said:

 

There is, I consider, much to be said for the view that, having no legitimate private interest in the performance of its functions, a public body (including a state owned company) should be required as of course to act fairly towards those with whom it deals at least in so far as this is consistent with its obligation to serve the public interest (or interests) for which it has been created.[193]

 

Previous Council Consideration

Report No 1, 1977/8

5.223    In its first report Administrative Decisions (Judicial Review) Act 1977, Exclusions under Section 19, 1978, the Council did not accept the argument for exemption from the AD(JR) Act of statutory authorities engaged in commercial activities.  Instead it felt that:

 

·        because the authorities are Commonwealth instrumentalities they should be subject to judicial review in the same way as other Commonwealth bodies

·        confidential information would not need to be disclosed

·        there is not always the choice on the part of the consumer to deal with another service provider; and

·        the extent to which the authorities are seen by outsiders to be related to the government will not be affected by their inclusion or exclusion from the Act.

 

5.224    The Council was divided as to the application of the Act to commercially competitive statutory authorities.  By a narrow majority the Council recommended against exemption.  The arguments in favour of exemption were:

 

·        applying the Act to them puts them at a commercial disadvantage

·        competitors may get access to vital information through reasons statements or discovery

·        competitors may use the Act to delay or hamper activities of the body

·        a person is not as affected by the decision, because they can obtain the services from another body; and

·        parliament’s desire to place these bodies on an equal footing with private businesses.

 

5.225    The arguments against exemption were:

 

·        as government bodies, statutory authorities must be subject to the rule of law like all other bodies

·        although they may be engaged in some commercial activities, statutory authorities are not truly equal to their competitors

·        in many instances, there is no real freedom of choice for consumers, who must continue to deal with the authority; and

·        the AD(JR) Act protects against the release of commercially sensitive or confidential information.

Report No 32, 1989

5.226    In its 32nd report, Review of the Administrative Decisions (Judicial Review) Act: Ambit of the Act, the Council was of the view that:

 

…the Australian community has the right to expect that decisions of government business enterprises are made according to law to the same extent as decisions of other government agencies.[194] 

 

5.227    While noting that it would be of concern if significant use was made of the AD(JR) Act to challenge commercial decisions, and that such a situation could place such enterprises at a disadvantage in the market, the Council was not of the view that significant use of the Act was being made for such purposes.  In the case of those GBEs not created under statute but incorporated under companies legislation, the Council considered that ‘the controls imposed by the requirements of company law provide[d]…a sufficient substitute for control through the judicial review jurisdiction of the courts’.

Report No 38, 1995

5.228    In its 38th report, Government Business Enterprises and Administrative Law, the Council said that:

 

…GBEs should [not] be under any special obligation to operate as ‘model’ businesses in respect of their commercial activities undertaken in a competitive market. Instead the Council considers that the standards of fairness governing these activities should be the same as those that apply throughout the market place.[195]

 

5.229    In the report, the Council concluded that:

 

·        Commonwealth administrative law statutes should prima facie apply to bodies that are government-controlled, including GBEs; and

·        GBEs should be exempt from the operation of Commonwealth administrative law statutes in relation to their commercial activities undertaken in a market where there is real competition.[196]

 

5.230    Consistent with this, the Council was of the view that the Ombudsman Act and the Archives Act should not apply to the commercially competitive activities of a GBE undertaken in a truly competitive market, although the Ombudsman should make the initial decisions as to whether the relevant commercial activities of a GBE are in fact performed in a truly competitive market.[197]

 

5.231    As in its 1989 report, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, the Council recommended that the scope of the AD(JR) Act should be expanded to embrace decisions of an officer of the Commonwealth under a non-statutory scheme that is funded out of monies appropriated by parliament specifically for the purposes of that scheme.[198]

 

5.232    In response to this approach it has been said that:

 

With respect, this [approach] does not indicate why the presence of the ‘competition factor’ makes removal of administrative law review appropriate.  Administrative law review is simply a casualty of the overwhelming political pressure to place corporatised GBEs in a position of ‘competitive neutrality’…There is no inquiry as to how competition in the market will promote the values of openness, rationality, fairness and participation which are protected by administrative law review…public power will continue to be exercised by corporatised GBEs and indeed by privatised GBEs.  A fruitful avenue for promoting values of rationality, fairness, openness and participation in their decision-making would be recognition of their public powers and the creation of statutory private rights, perhaps appropriately called ‘community service rights’, by which it may be controlled.[199]

Discussion point 19

5.233    It is suggested that the views with respect to judicial review expressed by the Council in its 38th Report, Government Business Enterprises and Commonwealth Administrative Law, remain an appropriate response in this area.

 

Do you agree/not agree with this view? 

Are there other relevant considerations?

Please elaborate.

 

Decisions by certain other government bodies

Intergovernmental bodies

5.234    In response to inquiries by the Council in the preparation of its first report, Administrative Decisions (Judicial Review) Act 1977, Exclusions Under Section 19, -1978, it was submitted that authorities established jointly by Commonwealth and State Governments or Commonwealth and foreign governments should not be subject to the AD(JR) Act.

 

5.235    In response to this claim, the Council noted that decisions of such authorities made under a Commonwealth enactment were currently subject to review and that exclusion from the Act would not exempt them from judicial review but only restrict the forum for review to the High Court or, in limited cases, the Supreme Courts of the Territories.[200]

Consultative and advisory authorities not dealing directly with the public

5.236    In seeking exemption from the application of the AD(JR) Act, it was suggested that departments not dealing directly with the public, or which act in a consultative or advisory capacity, should not come within the ambit of the Act.

 

5.237    In response, in its first report, Administrative Decisions (Judicial Review) Act 1977, Exclusions under Section 19 – 1978, the Council said:

Where authorities do not make decisions affecting a person’s interests, then no person would have standing to make an application under the Act.  Where a consultative or advisory authority does not make decisions of an administrative character its decisions will not fall within the terms of the Act.[201]

 

5.238    The Council concluded that in so far as these authorities fall within the terms of the Act and their decisions affect the interests of members of the public, then judicial review should be available.[202]

Discussion point 20

5.239    On the basis of the foregoing, it is suggested that the approach adopted by the Council in its first report and outlined above remains an appropriate response in this area.

 

Do you agree/not agree with this view? 

Are there other relevant considerations?

Please elaborate.

 

SECTION V

Other

No impact upon final decision

5.240    In circumstances where the alleged irregularity would not have resulted in a different result being reached, there is some authority for the view that there may be a discretion to deny a remedy.  As noted in Re Refugee Tribunal; ex parte Aala,[203] such a situation may occur where, irrespective of any question of procedural fairness or merit, the decision was one which the decision-maker was bound by the governing statute to refuse.  Alternatively, there may not have been an opportunity to make submissions on a point of law which must clearly be answered unfavourably to the prosecutor.  As also noted in Aala, the concern of judicial review:

 

…is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures.  Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for ‘trivial’ breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s75(v) should go.[204]

 

5.241    However:

 

Not every breach of natural justice affects the making of a decision.  The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice.  Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach…[205]

 

5.242    The High Court has also said that:

 

Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident [emphasis added] that the breach could not have affected the outcome…[206]

No injustice

5.243    In one British decision involving applications for certiorari and declarations, it has been said that:

 

[An applicant] may be debarred relief if he has acquiesced in the invalidity or waived it.  If he does not come with due diligence and ask for it to be set aside, he may be sent away with nothing.  If his conduct has been disgraceful and he has in fact suffered no injustice, he may be refused relief.[207]

 

5.244    In relation to procedural fairness, however:

 

… the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction.  The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures.  Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for ‘trivial’ breaches of the requirement of procedural fairness’, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go.  The issue always is whether or not there has been a breach of the obligation to accord procedural fairness, and if so, there will have been jurisdictional error for the purposes of s 75(v).

 

Cases said to turn upon ‘trivial’ breaches are often better understood on other grounds.  In particular…where the obligation to afford procedural fairness exists, its precise or practical content is controlled by any relevant statutory provisions and, within the relevant legislative framework, this will vary according to the circumstances of the particular case.[208]

Discussion point 21

5.245    From the foregoing it would seem that there is a range of factors relevant to whether or not judicial review should lie.  Arguably, such matters are ones upon which the courts should rule as it depends very much on the circumstances of the particular case.  As such, they are not matters appropriate for legislative intervention.

 

Do you agree/not agree with this view? 

Are there other relevant considerations?

Please elaborate.

 



[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.

[2] Justice von Doussa, 'Natural Justice in Federal Administrative Law', paper presented at a seminar by the Australian Institute of Administrative Law, Darwin, 7 July 2000, 3.

[3] Inserted by the Veterans Affairs (1994-95 Budget Measures) Legislation Amendment Act 1995.

[4] (1992) 175 CLR, 414-415.

[5] Australian National Audit Office, Audit Report 1992, 1992, paragraph 1.1.10.

[6] The Honourable Emeritus Professor Peter Baume AO, A Fair Go, Report on Compensation for Veterans and War Widows, 1994, paragraph 3.9.

[7] Ibid, paragraphs 3.7 and 5.6.20.

[8] For a comprehensive record and analysis of these amendments, see Robin Creyke and
Peter Sutherland, Veterans’ Entitlements Law, 2000, pp 521 – 524.

[9] The Veterans’ Affairs (1994-5 Budget Measures) Legislation Amendment Act 1994.

[10] Part XIB was inserted during debate on the Bill in the Senate to provide a means of appeal from determinations of the RMA to a body titled the Specialist Medical Review Council.  For further information in relation to this body see Robin Creyke and Peter Sutherland, Veterans’ Entitlements Law, 2000, pp 531 – 536.

[11] Emeritus Professor Dennis Pearce was appointed to conduct the review.  He was assisted by Professor D’Arcy Holman who provided a technical report relating to the work of the RMA: D Pearce, D Holman, Report of the Review Committee, Part Two, 1997.

[12] Ibid, p 524.

[13] Second Reading Speech, Hansard, 13 March 2002, 1106.

[14] Id.

[15] Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57.

[16] Id.

[17] See further Professor M Neave, ‘In the Eye of the Beholder – Measuring Administrative Justice’, in R Creyke and J McMillan, Administrative Justice – the Core and the Fringe, 1999, p 124 and L McDonald, ‘Measuring Administrative Justice – Lessons from the Report on Government Services’, in R Creyke and J McMillan, Administrative Justice – the Core and the Fringe, 1999, p 138.

[18] (No 2) (1979) 2 ALD 634, 645.

[19] D Pearce, D Holman, Report of the Review Committee, Part Two, 1997.

[20] The Daryl Williams, Attorney-General, Second Reading Speech, Jurisdiction of Courts Legislation Amendment Bill 2000,Hansard, 8 March 2000.

[21] Australia, House of Representatives, Debates, 14109.

[22] The Hon Philip Ruddock, Minister for Immigration and Multicultural Affairs, Second Reading Speech, Migration Legislation Amendment Bill (No 4) 1997, Hansard, 25 June 1997.

[23] Id.

[24] The Hon Phillip Ruddock, Minister for Immigration and Multicultural Affairs, Second Reading Speech, Migration Legislation Amendment Bill (No 2) 1999 [2000], Hansard, 14 March 2000.

[25] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act 1977 – Stage One, Report No 26, 1986, paragraph 38.

[26] Ibid, paragraph 8.

[27] Ibid, paragraph 3.

[28] Ibid, paragraph 9.

[29] Ibid, paragraphs 38-48.

[30] Senate Standing Committee on Legal and Constitutional Affairs, Administrative Decisions (Judicial Review) Bill 1987, Parliamentary Paper No 212, 1987.

[31] Ibid, paragraph 3.41.

[32] See comments in the Bills Digest to the Jurisdiction of Courts Legislation Amendment Act 2000, Bills Digest No 149, 1999-2000, p 15 which can be found on the Department of the Parliamentary Library at http://www.aph.gov.au/library/pubs/bd/1999-2000-2000BD149.htm; and Sean Brennan, ‘Judicial Review and the Pre-trial Process’ (2000) AIAL Forum No 26 33, 41.

[33] Submission of the Attorney-General’s Department to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Administrative Decisions (Judicial Review) Amendment Bill 1987,
Parliamentary Paper No 212, 1987, 26.

[34] Minister for Finance, Senator Walsh, Address to Seminar on Administrative Law - Retrospect and Prospect at the Australian National University, Canberra, 15 March 1987, 3.

[35] Ibid, at 5.

[36] The Hon Daryl Williams MP, Attorney-General, Second Reading Speech, Jurisdiction of Courts Legislation Amendment Bill 2000, Hansard, 8 March 2000.

[37]The Public Service Merit Protection and the Department of Employment, Workplace Relations and Small Business, ‘Accountability in a Devolved Management Framework’, May 1997.

[38] Submission of Mr Gerry Hand to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Administrative Decisions (Judicial Review) Amendment Bill 1987, Parliamentary  Paper No 212, 1987, 4.

[39] O’Reilly v Commissioner of State Bank of Victoria (1983) 153 CLR 1.

[40] Zhang De Yong v Minister for Immigration, Local Government and Ethnic Affairs (1997) 151 ALR 515, 551
per Wilcox J.

[41] (1987) 9 NSWLR 103.

[42] (2001) 206 CLR 57, [178].

[43] Administrative Review Council, Administrative Decisions (Judicial Review) Act 1977, Exclusions under Section 19, Report No. 1, 1978, paragraph 8.

[44] See discussion of this concept in Section II of this paper.

[45] Administrative Decisions (Judicial Review) Act 1977, Exclusions under Section 19, Report No. 1, 1978.

[46] Statistics are not available from the Federal Court in relation to numbers of cases referred by the Court under section 10(2)(b)(ii) of the AD(JR) Act.

[47] Full compliance with the rules relating to the right to be heard is a case in point.  As noted earlier in the discussion paper.

[48] United Kingdom Prime Minister and Minister for Cabinet Office, ‘White Paper’, Modernising Government, presented to the English Parliament in March 1999.

[49] Leppington Pastoral v Department of Administrative Services (1990) 94 ALR 67, 76.  In this case, the Full Court contrasted the statement that X’s property was required for use as an airport pursuant to a government policy of acquiring X’s property for an airport, with a statement referring to a policy that there should be a second airport in the Sydney region.  Although the latter could be regarded as a policy statement, the former, according to the court, could not.

[50] Dennis O’Brien, ‘Tribunals and Public Policy.  What Decisions are Suitable for Review?’ (April 1989) 58 Canberra Bulletin of Public Administration 86.

[51] John McMillan, ‘Review of Government Policy by Administrative Tribunals’ Law and Policy Paper
No 9
, Centre for International and Public Law 1998, 33, 34.

[52] Ibid, 33.

[53] Set out in section 10 of the Public Service Act 1999, paragraph 10(1)(f) of that Act

[54] Sections 28, 43 of the Commonwealth and Companies Act 1997.

[55] See for example, Australian Tourist Commission Act 1987 section 29(1), Dairy Produce Act 1986 section 8(1), Fisheries Administration Act 1991 section 91(1).

[56] See for instance section 11 of the Australian Research Council Act 2001.

[57] Sections 396 – 75, Income Tax Assessment Act 1936.

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

[59] Murray Wilcox, ‘Judicial Review and Public Policy’ (April 1989) 58 Canberra Bulletin of Public Administration 70, 71.

[60] Although, as noted in the discussion of justiciability, the nature of the particular decision rather than of the broad subject area is a more accurate gauge of reviewability.

[61] The Kerr Committee report, 1971.

[62] The Ellicott Committee report, 1973.

[63] The Kerr Committee report, paragraph 265; The Ellicott Committee report, 1973, paragraph 2.7.

[64] Ibid, the Ellicott Committee report, at paragraph 26.  A similar approach was adopted by the Committee in relation to public servants, authorities and tribunals at paragraph 30.

[65] Baker v Carr 369 US 186 (1962), quoted by McTiernan J (dissenting) in Victoria v Commonwealth (1975) 134 CLR 81, 135.

[66] In Thorpe v Commonwealth of Australia (No 3) (1997) 144 ALR 677, 690 Kirby J stated:

the issues presented by the declarations lacked "judicially discoverable and manageable standards for resolving" a justiciable issue. Traditionally in this country, as under like constitutional provisions in the United States, the courts have been extremely reluctant to pass upon the conduct of international relations.

[67] Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218.

[68] Koowarta v Bjelke Petersen (1982) 153 CLR 168, 229.

[69] It might be noted however that in the British decision, R v Secretary of State for the Home Department;
ex parte Bentley
[1993] 4 All ER 442, it was held that the Secretary’s decision not to recommend the granting of a posthumous pardon was susceptible to judicial review.

[70] For example, in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 18, a case concerning the exercise of a statutory power to appoint magistrates, Mason J pointed out that the court is reluctant to intervene in the judiciary’s traditional role of appointing judicial officers.

[71] Administrative Review Council, What Decisions Should be Subject to Merits Review? 1999, paragraphs 4.2, 4.23 and 4.24.

[72] See comments per Brennan J of the US Supreme Court in delivering the judgment of the court in
Baker v Carr (1961) 369 USR 186, 213.

[73] Ibid, quoting Martin v Mott, 12 Wheat, 19, 30.

[74] Thorpe v Commonwealth of Australia (No 3) (1997) 144 ALR 677, 692 per Kirby J.

[75] Sir Anthony Mason AC KBE, ‘Lecture 2 Scope of Judicial Review’ (November 2001) AIAL Forum
No 31
21, 24 – 25.

[76] Melbourne Corporation v The Commonwealth (1947) 74 CLR 31, 82.

[77] [1993] 4 All ER 442, QBD per Watkins, Neill LJJ and Tuckey J.

[78] Ibid, 453-3.

[79] Baker v Carr (1961) 369 USR 186, 213-214 quoting Chastleton Corp v Sinclair 264 US 543, 547-8.

[80] (1988) 19 FCR 347, 373.

[81] Minister for Arts, Heritage and Environment v Peko Wallsend (1987) 75 ALR 218, 280 per Sheppard J and 302 per Wilcox J.

[82] The Hon Justice 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 10.

[83] South Australia v O’Shea (1987) 163 CLR 378, 387.  In his Blackburn lecture, Sir Anthony subsequently reiterated that ‘in exceptional cases, judicial review may conceivably extend to a cabinet decision’ – see Sir Anthony Mason Blackburn Lecture, ‘Administrative Review - the Experience of the First Twelve Years’ (1989) 18 Federal Law Review 122. In O’Shea Deane J at 417 also suggested that:

…common law rules of procedural fairness extend in the absence of a clear contrary legislative intention, to control any administrative decision which is made pursuant to a statutory process and which ‘directly affects the rights, interest, status or legitimate expectations’ of another in his individual capacity’.

[84] Sir Anthony Mason, ‘Developments in Australian Administrative Law’ (1998) 28 Hong Kong Law Journal 379.

[85] (1981) 151 CLR 342.

[86] Council of Civil Service Unions v Minister of Civil Service [1985] AC 374; Kioa v West (1985) 159 CLR 550.

[87] The Hon Sir Gerard Brennan, ‘The Purpose and Scope of Judicial Review’, in M Taggart (ed) Judicial Review of Administrative Action in the 1980s, 1986, p 33.

[88] Sir Anthony Mason, ‘Judicial Review: A View from Constitutional and Other Perspectives’ (2000) 28(2) Federal Law Review 330, 337.

[89] Administrative Review Council, Administrative Decisions (Judicial Review) Act 1977: Exclusions under Section 19, Report No. 1, 1977, paragraphs 50-51.

[90] Ibid, paragraph 5.12, 27.

[91] Administrative Review Council, What Decisions Should be Subject to Merits Review?, 1999, paragraphs 4.2, 23 and 24.

[92] Ibid, paragraph 4.27.

[93] Ibid, paragraph 4.28.

[94] Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 375.

[95] Note the Council’s view was that the exception would be limited and countervailing accountability requirements should apply – see Administrative Review Council, What Decisions Should be Subject to Merits Review?, 1999, paragraphs 4.27 – 4.29.

[96] See for instance, D J Galligan, ‘Regulating Pre-trial Decisions’, in N Lang (ed), Criminal Justice,  1994, p 151.

[97] See Administrative Review Council, Administrative Decisions (Judicial Review) Act 1977: Exclusions under Section 19, Report No. 1, 1977, paragraph 77.

[98] Senate Standing Committee for the Scrutiny of Bills, First to Eighteenth Reports of 1994, Parliamentary Paper No 472, 1994, p 201.

[99] In both instances, judicial review rights to the High Court under section 75(v) of the Constitution are not affected.

[100] For further discussion of these amendments, see Sean Brennan, ‘Judicial Review and the Pre-trial Process’ (2000) AIAL Forum No 26 33.

[101] House of Representatives, Debates, Hansard, 8 March 2000, 14111.

[102] Senate Standing Committee for the Scrutiny of Bills, Sixth Report of 2000, 10 May 2000, 172.

[103] House of Representatives, Debates, Hansard, 5 April 2000, 15328.

[104] Lamb v Moss (1983) 49 ALR 533 affirmed in Young v Quin (1984) 56 ALR 165 and Clyne v Scott (1983) 52 ALR 405.

[105] Barton v The Queen (1980) 147 CLR 75, 92-3.

[106] Ibid, 100.

[107] Ibid, 101.

[108] Sean Brennan, ‘Judicial Review and the Pre-trial Process’ (2000) AIAL Forum No 26 33, 37.

[109] Crane v Gething (2000) 97 FCR 9.

[110] R v Leyland JJ, ex parte Hawthorne [1979] Crim LR 627.

[111] R v St Albans Crown Court, Ex Parte Cinnamond [1981] Crim LR 2453.

[112] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act; Redefining the Act’s Ambit, Draft Report 1988, Appendix B, 5.

[113] Administrative Review Council letter to the Senate Standing Committee on Legal and Constitutional Affairs dated 26 April 1993, set out in the Council's Seventeenth Annual Report, 1992 – 93, p 129.

[114] Administrative Review Council, What Decisions Should be Subject to Merits Review?, 1999, paragraph 4.31.

[115] Ibid, paragraphs 4.32 and 4.33.

[116] (1982) 43 ALR 41.  See also Finch v Goldstein (1981) 36 ALR 287.

[117] Ansell v Wells ibid, 60.

[118] For instance, judges may make rules of court, parliament may punish for contempt of parliament and administrators may make conclusive findings of fact.

[119] See Gummow J in Queensland Medical Laboratories v Blewett (1988) 84 ALR 615.

[120] See the Donoughmore Committee, Report of the Committee on Ministers’ Powers, 1932, Cmd 4060, 1.

[121] Nashua v Channon (1981) 36 ALR 215.

[122] (1943) 67 CLR 58, 82.  See also R v City of Munro Paragraph; ex parte
John Weeks Pty Ltd
(1987) 46 SASR 400, 406; Collins v Municipality of Wynyard (Tas Sup Ct), Green CJ, unreported, 24 December 1987; Botany Bay City Council v Minister of State for Transport and Regional Development (unreported, Federal Court, Lehane J, 28 May 1996).  See also Yates Co Pty Ltd v The Vegetable Seeds Committee and Ors (1946) 72 CLR 37, 54.

[123] For example, the Builders Labourer’s Federation (Special Provisions) Act (NSW) enacted to abolish the Builders Labourer’s Federation.  See Queensland Medical Laboratories v Blewett (1988) 84 ALR 615.

[124] Administrative Review Council, Rule Making by Commonwealth Agencies, Report No 35, 1992, paragraph 3.4.

[125] (1981) 180 CLR 404.

[126] Ibid, 416.

[127] Donoughmore Committee, Report of the Committee on Ministers’ Powers, 1932, Cmd 4060, 1.  See also Gibbs CJ in Bread Manufacturers of NSW v Evans, Id.

[128] See Beasley J, Aerolineas Argentinas & Ors v Federal Airports Corporation (1995) 63 FCR 100, [36].  Compare with Nashua Australia Pty Ltd v Channon (1981) 36 ALR 215 where it was held that the rules of natural justice apply to both judicial and administrative authorities and even purely administrative and executive powers.  Even where a discretion is in one sense unlimited, that does not mean that it is not reviewable and could not be wrongly exercised or that the court could not intervene.

[129] Queensland Medical Laboratories v Blewett (1988) 84 ALR 615, 634 - 5 per Gummow J.

[130] Ibid, 635 per Gummow J.

[131] Aerolineas Argentinas & Ors v Federal Airports Corporation (1995) 63 FCR 100 per Beasley J.  See also Federal Airports Corporation v Aerolineas (1997) 50 ALD 54.

[132] ICI Australia Operations Pty Ltd v Blewett (1989) 19 ALD 162.

[133] Sanyo Australia Pty Ltd v Comptroller‑General of Customs (Fed C of A, Davies J, No 645/91,
12 March 1992, unreported), but noted by the Administrative Review Council in Admin Review (1992) No 32 68.

[134] Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151.

[135] Donohue v Australian Fisheries Management Authority [2000] FCA 901; Bulletin [5642]; BC200003816.

[136] Melbourne Pathology Pty Ltd v Minister for Human Services and Health (1996) 40 ALD 565.

[137] In Vietnam Veterans’ Association of Australia (NSW) Branch v Alex Cohen [1996] 981 FCA 1 the Federal Court found that decisions of both bodies were not amenable to judicial review under either the
AD(JR) Act or section 75(v) of the Constitution.

[138] SAT FM Pty Ltd v Australian Broadcasting Authority (1997) 46 ALD 305.

[139] 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.

[140] Kioa v West (1985) 159 CLR 550, 584 per Mason J, 619-621 per Brennan J and 632 per Deane J.  See also R v Davies, Ex parte Menzies Hotel Pty Ltd (1983) 64 LGRA 53 which also reflects a move away from the distinction between legislative and other sorts of decisions.

[141] (1985) 159 CLR 550, [24] per Brennan J.  However, in the judgment of Gummow J in Queensland Medical Laboratories v Blewett (1988) 84 ALR 615, even although the decision of the Minister with regard to a new pathology services table was legislative in character, the fact that the committee which advised him was required to function in accordance with principles of procedural fairness brought the decision of the Minister within the scope of judicial review.

[142] (1985) 159 CLR 550 at 584 quoting Salemi v MacKellar (No. 2) (1977) 137 CLR 396, 452, per Jacobs J

[143] M Aronson, B Dyer, Judicial Review of Administrative Action, 2000, p 341.

[144] Id.

[145] Id.

[146] Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446, 478-479.

[147] Id.

[148] For background, see earlier discussion in relation to consistency and predictability.

[149] It has been concluded that this approach is no longer available following the introduction of s 39B(1A)(c) of the Judiciary Act 1903.

[150] See for instance White v Redfern (1879) 5 QBD 15 relating to seizure and destruction of contaminated meat; R v Davey (1899) 2QB 301 relating to the isolation of sufferers of an infectious disease; Minosea Pty Ltd v ACCC (1994) 35 ALD 493 relating to the production of books for an inquiry.

[151] (1985) 62 ALR 253.

[152] Ibid, 259-260.

[153] See also comments in Ridge v Baldwin [1964] AC 40.

[154] See Administrative Review Council, Administrative Decisions (Judicial Review) Act 1977: Exclusions under Section 19, Report No. 1, 1977, paragraph 56.

[155] Administrative Review Council, Administrative Decisions (Judicial Review) Act 1977: Exclusions under Section 19, Report No. 1, 1977, paragraphs 57-58.

[156] Minister for the Arts, Heritage and the Environment v Peko Wallsend (1987) 75 ALR 218, South Australia
v O’Shea
 (1987) 163 CLR 378.

[157] (1981) 151 CLR 170.

[158] Similarly with decisions of cabinet.  See Minister for the Arts, Heritage and the Environment v Peko Wallsend (1987) 75 ALR 218, South Australia v O’Shea  (1987) 163 CLR 378.

[159] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507.

[160] (1982) 151 CLR 342, 370 per Mason J.

[161] (2001) 205 CLR 507, [78].

[162] Ibid, [122].

[163] In Hot Holdings Pty Ltd v Creasey (2002) 193 ALR 90, a Minister's decision to approve a recommendation contained in a departmental minute was held to be valid, despite the fact that two officers involved in the preparation of the minute stood to benefit from the recommendation being carried out.  The majority of the High Court found that there was no reasonable apprehension of bias, as the involvement of the two officers in the actual decision-making process was 'peripheral'.

[164] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, [137].

[165]Ibid, [181].

[166] Administrative Review Council, What Decisions Should be Subject to Merits Review?, 1999, paragraphs 5.20, 5.21 and 5.29.

[167] For example, the work of a specialist medical tribunal, Hockey v Yelland (1984) 157 CLR 124.

[168] (2000) 199 CLR 135, 154-155.

[169] Ibid, 155.

[170] (1999) 197 CLR 611, 655.  His Honour notes that a similar approach has been adopted in Canada, at least with respect to findings of non-jurisdictional fact.

[171] Industry Commission, Competitive Tendering and Contracting by Public Sector Agencies, Report No. 48, 1996, paragraph 1.46.

[172] Ibid, paragraphs 4-5.

[173] Department of Finance and Administration, Commonwealth Procurement Guidelines Best Practice, September 2001, 15.

[174] Commonwealth of Australia 1998, Competitive Tendering and Contracting, AGPS, Canberra, 16-18.

[175] Privacy Amendment (Private Sector) Act 2000 (Cth).

[176] Administrative Review Council, The Contracting Out of Government Services, Report No 42, 1998, paragraph 6.41.

[177] However, the impact of section 39(1A)(c) of the Judiciary Act should be noted.

[178] 379th Report, Joint Committee of Public Accounts and Audit Contract Management in the Australian Public Service, Whole of Government Response, tabled out of session, Monday, 22 April 2002.

[179] Id.

[180] Id

[181] Mark Aronson, ‘A Public Lawyer’s Response to Privatisation and Outsourcing’ in M Taggart (ed), The Province of Administrative Law, 1997, 40.

[182] Administrative Review Council, Administrative Decisions (Judicial Review) Act 1977: Exclusions under Section 19, Report No. 1, 1977, paragraphs 68 – 73.

[183] In the absence of other considerations, where a statutory authority is exercising executive government functions, it is subject to constitutional review and to review under the AD(JR) Act. As noted by McHugh J in Australian Securities Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, [147]: ‘When a Commonwealth authority exercises executive functions of the Commonwealth in a manner akin to that in which ASIC is required to do under the ASIC Act, that authority is ‘the Commonwealth’ for the purposes of section 75(v) of the Constitution and sections 39, 39B, 56, 57 and 64 of the Judiciary Act.’

[184] Such bodes included the Australian Industry Development Corporation, the Australian National Airlines Commission, the Australian National Railways Commission, the Australian Shipping Commission, the Canberra Commercial Development Authority, the Commonwealth Banking Corporation, the Commonwealth Serum Laboratories, the Health Insurance Commission, the Housing Loans Insurance Corporation and the Reserve Bank of Australia.

[185] Administrative Review Council, Government Business Enterprises and Administrative Law, Report No 38, 1995, paragraph 2.1.

[186] See for example, General Newspapers Pty Ltd v Telstra Corporation (1993) 117 ALR 629.

[187] See The Commonwealth of Australia v Bogle (1953) 89 CLR 229 and Deputy Commissioner for Taxation
v State Bank of NSW
(1992) 174 CLR 219.

[188] See the Hilmer Report, Report of the Independent Committee of Inquiry on National Competition Policy, 1993, Chapter 13.

[189] Ibid, at 296.

[190] R Humphrey, Review of GBE Governance Arrangements, March 1997.

[191] Joint Committee of Public Accounts and Audit, Corporate Governance and Accountability Arrangements for Commonwealth Business Enterprises, Report No 372, December 1999, p xix.

[192] Justice Paul Finn, ‘The State Corporation’ June 1999 3(1) The Flinders Journal of Law Reform 1, 4 referring to his judgment in Hughes Aircraft Systems International Air services Australia (1997) 146 ALR 1, 40.

[193] Ibid, p 6.

[194] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, Report No 32, 1989, paragraph 436.

[195] Administrative Review Council, Government Business Enterprises and Commonwealth Administrative Law: Report to the Minister for Justice, Report No 38, 1995, paragraph 4.27.

[196] Ibid, paragraph 4.29.

[197] Ibid, paragraphs 4.35 and 4.42.

[198] Ibid, paragraph 4.51.

[199] Margaret Allars, ‘Private Law But Public Power: Removing Administrative Law Review From GBEs’ (March 1995) 6(1) Public Law Review 44, 76.

[200] See Administrative Review Council, Administrative Decisions (Judicial Review) Act 1977: Exclusions under Section 19, Report No. 1, 1977, paragraph 59.

[201] Ibid, paragraph 61.

[202] Id.

[203] (2000- 2001) 204 CLR 82.

[204] Ibid, [59] per Gaudron and Gummow JJ.

[205] Ibid, [104] per McHugh J.

[206] Id.

[207] F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry, [1975] AC 295, 320 (CA),
per Denning MR; affirmed [1975] AC 329.

[208] Re Refugee Tribunal; Ex parte Aala (2000-2001) 204 CLR 82, [60], [109] per Gaudron and Gummow JJ.