SECTION I
Two perspectives
The executive perspective
The judicial perspective
SECTION II
What is an adequate alternative remedy
Nature of the review right
Adequate alternative remedies – two case studies
SECTION III
The grounds of review
Error of law
Procedural fairness
Unreasonableness, irrelevant considerations etc
Concluding comments
SECTION IV
Merits review
The judicial perspective
The executive perspective
Previous Council consideration
6.1 In approaching the issue of alternative remedies, it is important to bear in mind that judicial review is but one element in our administrative justice system. As well as judicial review, there is also internal review by a superior officer, merits review by a tribunal and official scrutiny mechanisms such as the Ombudsman, the parliamentary member whose constituent is affected by a decision, and the Minister who may be the subject of representations on the matter. Additionally, there is access to the courts in many cases, either by way of limited or full appeal.
6.2 Unofficial mechanisms which may also have a significant impact on the political process include non-government organisations and the media. Access to official documents by way of freedom of information and statutory requirements for the provision of statements of reasons are also important, while systemic issues may be addressed by Commonwealth and State Auditors-General.
6.3 It has been noted that widening the scope of judicial review brings ‘a greater risk that the efficient administration of government will be impaired’ and possibly ‘a fragmentation of the process of administrative decision-making and [setting] at risk the efficiency of the administrative process’.[1]
6.4 In its 1973 Report on Prerogative Writ Procedures, the Ellicott Committee took the view that where specific appeal regimes are in place, the courts should be able to decline judicial review jurisdiction.[2] The Committee noted that:
In relation to some statutory discretions, provision is already made for judicial review before the courts, for example, under the taxation law. We think it is desirable that where this is the case the court exercising the jurisdiction for general judicial review should have power to decline to exercise its jurisdiction.[3]
6.5 This argument was used by some agencies in seeking exemption in 1978 from the application of the AD(JR) Act: it is reflected in paragraph 10(2)(b)(ii) of the Act, which provides that the Court may decline to review an application if it considers that adequate provision is made under another enactment for review of a decision by the Federal Court, another court, tribunal or person. The form of review that will supplement judicial review is very broadly defined in sub-section 10(3) of the Act to include reconsideration, rehearing, appeal, injunction and declaration. From this, it follows that, subject to the discretionary limitations established by sub-section 10(2), the AD(JR) Act remedies are intended to be generally available.
6.6 In the Explanatory Memorandum to the Administrative Decisions (Judicial Review ) Amendment Act 1980, which inserted the current Schedule 1 into the AD(JR) Act, several references are made to the Government not wanting applicants ‘short circuiting’ the statutory appeal procedures and going straight to the Federal Court. Similar arguments were also relied on for example in relation to exclusion of decisions under the Income Tax Assessment Act 1936 and, more recently, under the Jurisdiction of Courts Legislation Amendment Act 2000 and the Workplace Relations Act 1996, from review under the AD(JR) Act.
The AD(JR) Amendment Bill 1986
6.7 This Bill, which was ultimately blocked in the Senate, represents the most significant legislative attempt to restrict judicial review on the basis of the existence of alternative remedies. It would have provided for the near automatic refusal of relief under the Act where there were either alternate means of review or where the proceeding challenged was not complete, unless the interests of justice required otherwise. Proposed section 10(2)(d)(iii) of the Bill would have required the court to consider whether it was:
…desirable to refuse to grant the application in order to avoid interference with the due and orderly conduct of the proceedings…or for the reason that…the balance of convenience (including the interest of the applicant, another party or any other person, the public interest and the consequences of delay in those proceedings) so requires.
6.8 The aim, according to then Attorney-General, the Hon Lionel Bowen, was to reduce delay and increase administrative efficiency, as proceedings were increasingly being fragmented by interlocutory AD(JR) applications. In supporting the Bill, the Attorney-General’s Department noted that:
Where there is an effective administrative review of administrative action by an independent body, persons affected by that action should be encouraged to use that remedy, rather than to seek resort to the Federal Court under the AD(JR) Act in the first instance.[4]
6.9 The Bill took into account recommendations made by the Council in its 26th Report in 1986, Review of Administrative Decisions (Judicial Review) Act 1977 - Stage 1, but went further than had been recommended by the Council by requiring the Federal Court to refuse applications made under the Act where the applicant had an alternative right to seek review unless the applicant satisfied it that the interests of justice required that it should not refuse to grant the application.
6.10 In considering the Bill, the Senate Legal and Constitutional Legislation Committee recognised the need to strike a balance between merits and judicial review, and that applicants should be encouraged to use merits review before resorting to judicial review. The Committee also recognised that there was a problem of applicants ‘leap-frogging’ merits review and proceeding straight to judicial review for tactical reasons. However, the Committee was loathe to recommend restricting judicial review for all applicants because of a few unmeritorious vexatious ones.
6.11 The existence of an adequate alternative remedy represents an important factor for the courts in determining whether or not judicial review should lie.[5]
6.12 Under the AD(JR) Act, however, the Federal Court has tended to start from the presumption that if the court has jurisdiction to entertain an application for judicial review, the application should not be refused merely because there is some other remedy available, unless there are strong reasons to the contrary. It has been held that the onus persuading the court to examine the discretion adversely to the applicant rests with the respondent party requesting the exercise of the discretion.[6]
6.13 Under the Constitution, the court also retains a discretion to grant relief, amongst other things, having regard to whether there is a more convenient remedy. In one case for instance, in relation to the writ of mandamus, it was said by the High Court that mandamus is not a ‘writ of right’ and that there are ‘well recognised grounds upon which the court may, in the exercise of its discretion, withhold the remedy’, including that:
…the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party had been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made.[7]
6.14 In another decision of the High Court it was said that although a right of appeal does not bar the power of a superior court to grant prohibition, and that any such provision would be invalid, the court nonetheless has a discretion to grant or refuse the remedy. Factors enlivening the discretion might include that a decision in favour of one party might render academic whether or not prohibition should issue, or because it would assist the court in discharging its ultimate responsibility. In Aala, the Court confirmed prohibition as a discretionary remedy. Relevant factors that might cause the discretion to be exercised adversely to the applicant include "the delay, waiver, acquiescence or other conduct of the prosecutor".[8]
6.15 Other considerations include "the high purposes of vindicating the public law of the Commonwealth, of upholding lawful conduct on the part of officers of the Commonwealth, of defending the rights of third parties under that law, and of maintaining the provisions of the Constitution".[9]
6.16 In
addressing whether or not an alternative to an application under
sub-section 10(2) of the AD(JR) Act is ‘adequate’ it has been said that:
In this context, the adequate provision is to be read as adequate in the sense of suitability or sufficient provision for review.[10]
6.17 In determining what constitutes ‘adequacy’ of the alternate remedy, it would seem that it is proper to compare it with the power of the court under the AD(JR) Act. In the case of Webb v Jackson[11] for instance, a case commenced in the Supreme Court was considered relevant as it allowed a rehearing of the matter, including the admission of fresh evidence. In that case, it was also considered relevant that five other actions had been brought in the Supreme Court involving the same subject matter. In contrast, a right of review under the Public Service Act 1922 was considered inadequate as it did not provide the range of remedies available under the AD(JR) Act.[12]
6.18 Some of the factors considered relevant to determining the adequacy or otherwise are set out below.
6.19 Factors here include:
Nature and scope of review powers
6.20 The nature of review provisions and the scope of the powers entrusted to the review body may be relevant factors in determining their adequacy as alternative review mechanisms.[13] It has been held by the High Court that where there is a full appeal right, there will be no right of judicial review from the initial decision.[14] However, the appeal needs to be ‘full and comprehensive’.[15] In contrast to a right of appeal, recourse to a review tribunal with no rights to reverse or even modify the original decision – will not expunge judicial review for procedural fairness.[16] Similarly, an appeal on a question of law alone is not sufficient.[17]
6.21 While an appellate body may have jurisdiction to undertake a de novo hearing and review a decision it may not have the power to substitute its own decision for that appealed against, but merely to confirm the decision or else recommend that it be set aside or varied. As such, it would not be an adequate alternative. The remedy on appeal must be a true alternative; that is, if the appeal should succeed, the appellate body must have the power to rectify the error complained of.[18]
6.22 Account must also be taken of whether review by appeal is automatic, on request, or whether leave to appeal must be sought and obtained. If establishment of an appeals tribunal and determination of an appeal is discretionary, this would not be a true alternative.[19] The standing or lack of standing of the applicant to the appeal will also be a relevant factor.
6.23 Time limits may also be a factor. A right dependent on the success of an application for extension of the relevant time limit may not be an adequate alternative.
6.24 Whether the onus of proof is on an applicant in an appeal from a decision, when they would not have otherwise have had such an onus, is also a relevant factor.[20]
Discussion point 22
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Are the courts sufficiently pro-active in refusing to allow judicial review in the face of other remedies? Please elaborate. |
Timing
6.25 Timing is also important.
Has there already been a hearing?
6.26 In one case, the Federal Court[21] refused to entertain an application for judicial review on the basis that there had already been a hearing in the AAT. In reaching this conclusion, the Court was influenced by the fact that the AAT could offer:
· full merits review, encompassing law and fact, with the possibility of an appeal to the Federal Court on a question of law; and
· having regard to the Aged Care Act, reconsideration of all the steps taken to reach the ultimate decision and therefore, that proper conduct of a review by the AAT would cure all the defects in the process that led to the ultimate decisions complained of, if there were such defects.
6.27 The Court also noted that its decision as to the adequacy of merits review was not theoretical in view of the fact that the applications had been heard by the Tribunal.
Is the matter in the process of being heard/heard?
6.28 In Saitta Pty Ltd v Commonwealth, it was held by Weinberg J at first instance that:
The fact that it has available to it adequate alternative remedies in the AAT in proceedings which it has already commenced provides considerable support for the proposition that the proceedings in this Court should at least be stayed. Where full merits review is available to, and has already been invoked by an applicant, Courts will often exercise their discretion to stay or dismiss applications for judicial review.[22]
6.29 In another case, the Court declined to allow an application for judicial review whilst an appeal under section 44 of the Administrative Appeals Tribunal Act 1975 was under way.[23]
Preliminary or procedural decision
6.30 It has been held that if undertaken at too early a point, judicial review may result in a fragmentation of the decision-making process and that this may be detrimental to the efficiency of the system as a whole.[24]
6.31 The position has also been complicated by the restricted interpretation of ‘decision’ in Australian Broadcasting Tribunal v Bond. In that case, Mason CJ held that a decision is generally but not always, a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for determination.
6.32 There are doubts too as to whether an isolated error at a preliminary stage should invalidate a subsequent or final decision. According to Toohey and Gaudron JJ in Bond:
If the decision is to stand because it is not attended by a reviewable error, review of the conclusions and findings leading to that decision to see if they were attended by some error which, ex hypothesi, was not carried into the decision so as to render it reviewable is a futile exercise.[25]
Is an appeal pending?
6.33 It has been held that whether or not the fact that the applicant has chosen to appeal and that his appeal is still pending is a good reason to refuse an applicant a judicial remedy must depend on the status of the appellate body, the nature of the appeal and the grounds on which remedy is sought, for example, appeal to the Minister when not afforded a full hearing – no assurance of oral hearing or legal representation.[26]
Are there concurrent AAT proceedings?
6.34 In one case,[27] it has been observed that where full merits review is available and has been invoked by an applicant, Courts will often exercise their discretion to stay and dismiss judicial review. In that case, it was considered relevant that the AAT could consider questions of law arising in proceedings before it.[28] It could therefore consider as part of its consideration of decisions in issue, the validity of the Aged Care Principles. Although unable to exercise judicial power or to grant the declaratory relief sought, it could arrive at a conclusion as to whether or not the steps preceding the making of the sanction decisions were lawful and whether various provisions of the Act were contravened.
6.35 If the presence or absence of jurisdiction depends on questions of fact, and the court against which prohibition has been sought has not yet determined those questions of fact, let alone whether it has jurisdiction, the court may decide the application for review to be premature.[29]
Was there a delay in instituting proceedings for judicial review?
6.36 In one case,[30] delay in bringing proceedings to halt an Inquiry already started under the Public Service Act 1922 was considered an important factor in denying relief. Assessment of the adequacy of the suggested alternative may not be possible until the strength of the applicant’s claim is ascertained.
Public interest element
6.37 In the same case, public interest in the efficient administration of the Public Service Act 1922 was held to be a factor in refusing relief.[31]
Benefit of court proceeding to applicant
6.38 It has been held in one case that the applicant would not ‘suffer any great hardship if [the respondent’s] application succeeds’ was a relevant consideration.[32] It was noted in this regard, in a case not involving pure issues of law but ‘at best, mixed questions of fact and law’, that although the Anti-Dumping Authority was ‘not necessarily constituted by legally qualified members…its practice is to obtain advice from the Australian Government Solicitor on any legal issues raised’.[33]
Complexity of the issues
6.39 It was held in one case that:
…given the apparent complexities of this litigation, it is difficult to state in advance of the final hearing what ultimate substantive relief, if any were to be granted, would be the appropriate relief. Until the likely form of that relief is known, it is premature to speculate about the possible existence of discretionary reasons why the Court might, notwithstanding a prima facie entitlement to relief, nonetheless, decline to order judicial review. This is particularly so when the true nature and scope of the administrative review now relied upon is not yet fully known.[34]
Relative cost/speed
6.40 It is relevant, generally speaking, to have regard to any unnecessary delay and any increased cost if the alternative suggested remedy is pursued.[35] The desirability of a speedy, authoritative decision may also be an important factor. As noted by Fox ACJ in Graham v Commissioner of Superannuation:
The main consideration…is what is best to be done in the interests of the parties and the public interest and with a view to saving cost and time and reaching as soon as possible a finality of decision.[36]
6.41 It was noted in the case that:
If the matter were not dealt with by the court the applicant could seek reconsideration by the Commissioner and then go the AAT and if the question of law was still decided adversely to her, she might have to come back to the court. The inability an administrative court to make a definitive ruling was held to be a factor in the decision.[37]
6.42 Expediency was a factor in Kelly v Coats, a case involving an error of law, where it was held by Toohey J that the application before the Federal Court '…is likely to be a more expeditious way of disposing of the matter than the procedures to be found in the Repatriation Act’.[38]
Other judicial consideration in the case
6.43 In one case where judicial consideration had already been undertaken at first instance, the Full Federal Court indicated that it would not be appropriate for the court to exercise the discretion under paragraph 10(2)(b)(ii) of the AD(JR) Act.[39]
Urgency
6.44 In the case of Twist v Randwick Municipal Council, Mason J noted that:
This case related to an appeal to the district court from a demolition order made by the Council. The provision indicated a legislative intention to exclude any hearing prior to the making of the demolition order. The appeal thereby provided the exclusive remedy. The appeal was a hearing de novo – a full and comprehensive one on facts and law.[40]
6.45 In Du Pont,[41] it was noted that the regime prescribed under the Customs Act 1901 contained legislative directions as to the times in which various steps were to be taken and that:
Because of the commercial context in which the questions of alleged dumping arise may change rapidly there is an obvious need, explicitly recognised by Parliament, to have the disputed issues resolved promptly.[42]
Consequences of the decision
6.46 In Minister for Immigration and Multicultural Affairs v Miah,[43] in allowing judicial review, McHugh J indicated that the nature of the interest and consequences for the individual, as well as the subject matter of the application were important. In that case, consequences included possible risk to life and were, on that basis, undeniably important.
6.47 Conversely, it has been held by the Federal Court in another case that proceedings under the Public Service Act should proceed under that Act.[44]
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Are there factors other than those identified in the discussion paper relevant to the circumstances in which remedies will present adequate alternatives to judicial review? Please elaborate. |
6.48 In view of their success, an overview of the income tax and workplace relations schemes where, in excluding or limiting judicial review, heavy reliance is placed on the availability of remedies alternative to judicial review. Both schemes appear to enjoy both judicial and government support. Details of the two schemes are set out in Appendix 4 to the discussion paper.
Discussion point 24
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Are there particular features of the tax and workplace relations review regimes that set them apart? Are there other decision-making regimes which might be included here? Please elaborate. |
6.49 An important factor influencing the court’s determination whether to exercise the discretion to allow a judicial review application to proceed to hearing or not can also be the ground of challenge and the consequences flowing from judicial intervention.
6.50 There is authority to suggest that where prohibition/certiorari are sought for patent jurisdictional error, a court has no discretion to refuse the writ once the court has determined the nature of the error.[45] Indeed, when an application is on the ground of no jurisdiction/error of law, the courts have seldom declined to give a remedy merely because the decision is subject to appeal.[46]
6.51 A similar approach prevails under the AD(JR) Act. It has been held for instance that ‘assuming that the applicant’s complaint is truly one of error of law, the present application [for judicial review] is likely to be a more expeditious way of disposing of the matter than the procedures to be found in the Repatriation Act’.[47]
6.52 The factors relevant to refusing relief in the face of an alternative remedy have been identified by McHugh J in Miah’s case, a case in which it was contended that the right to a full de novo review by the Tribunal indicated Parliament’s intention to limit the requirements of natural justice at the stage where a delegate is examining the applications. While noting that:
It is true that the existence of appeal or review rights may affect the extent to which the requirements of natural justice apply at an earlier level of decision-making,
6.53 His Honour considered that:
…there is no general rule that a right of appeal or review necessarily denies or limits the application of the rules of natural justice. There is no inflexible rule that the presence of a right of appeal or review excludes natural justice.[48]
6.54 His Honour suggested that the following factors can be relevant in determining whether such a right excludes or limits the rules of natural justice:
· the nature of the original decision: preliminary or final
· whether the original decision is made in public or private
· the formalities required for original decision
· the urgency of the original decision
· the nature of the appellate body - judicial, internal, "domestic"
· the breadth of appeal - de novo or limited; and
· the nature of the interest and subject matter.
6.55 In the case at hand, His Honour’s view was that the right of appeal to the tribunal was insufficient to conclude that the Parliament intended that the delegate was not required to accord natural justice. Although the de novo right of review was important it was not sufficient to outweigh the inference of the subject matter that procedural fairness should lie.
6.56 It would seem that in cases involving applications on the basis of grounds involving greater focus on fact than law, the courts are more prepared to regard alternative review processes including merits review by a tribunal as ‘adequate’.
6.57 This was the case for instance in the Federal Court case of Meng Kok Te v Minister for Immigration and Ethnic Affairs and Another[49] where Branson J held that the alternative process, review by the AAT, involving full merits review, would be an adequate alternative to judicial review and that questions of fact and law could be argued. Moreover, the decision of the AAT following such review would be open to be appealed to the Federal Court on the ground of error of law.
Discussion point 25
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Do you agree with this assessment? How do other grounds influence the court's determination of the existence of adequate alternative remedies? Please elaborate. |
6.58 As reflected in the above discussion, the courts are prepared in some cases to regard full de novo merits review by a tribunal as an adequate alternative remedy. As also noted above, a range of other factors such as the timing of the application, the nature of the decision appealed from and the ground upon which review is sought, are also pertinent.
6.59 In Brag v Secretary, Department of Employment, Education and Training,[50] Davies J expressed the general principle that:
This court is too busy and its processes too costly for it generally to be appropriate for an applicant to come to the court when there is an informal and expeditious administrative tribunal established to resolve the dispute.
and:
We…express the view that in many, (perhaps most) circumstances, the Court’s proper response to an application of this particular sort [where the statute establishes a specific appeal mechanism] should not be to embark upon a full hearing, but rather to exercise the discretion under s10(2)(b)(ii) adversely to the applicant.[51]
6.60 In its report on the Administrative Decisions (Judicial Review) Amendment Bill 1987, the Senate Standing Committee on Legal and Constitutional Affiars indicated its sympathy with the considerations underlying the Bill, namely, that where administrative tribunals have been established with jurisdiction to deal with matters in their entirety, such tribunals should resolve those matters, rather than the Court, which may address only questions of law.[52]
6.61 Establishment of a comprehensive merits review system was considered by the Government to be a significant argument for the limitations on judicial review provided for in the Migration Reform Act 1992:
The review procedures established in [the Act] provide for comprehensive merits review of all visa related decisions and in recognition of this, this ground of review will no longer be available.[53]
6.62 Similarly, it has been remarked in relation to migration visa decisions that:
There is an obligation to provide review, but there is no obligation to provide review both of an administrative character and in relation to providing additional access to the courts. The obligation is to provide one but not both.[54]
6.63 Conversely, in its 32nd report in 1989, when considering the issue of exclusion from review of taxation decisions the Council was of the view that:
…the availability of a comprehensive appeals system does not provide a basis for an exclusion from the AD(JR) Act. The Act specifically contemplates in section 10 that, in certain cases which come before the court on a judicial review application, adequate provision for appeal or review will be made elsewhere. The section provides for exercise of the court’s discretion in those circumstances to refuse to grant the judicial review application.
If the main reason for the exclusion is the existence of a right of review on the merits, the consistent line which ought to be taken in the Commonwealth is that, whenever legislation gives a right of review of a particular class of decision by the AAT, steps ought to be taken to exclude review under the AD(JR) Act. Quite properly, this course is not in fact taken. Section 10 of the AD(JR) Act is in place to deal with alternative remedies.[55]
6.64 As stated by the Law Council of Australia in its submission in 1998 to the Senate Legal and Constitutional Legislation Committee on the Migration Legislation Amendment (Judicial Review) Bill 1998.
…there is abundant evidence that the merits review process at the moment is not so efficient and effective that one should be prepared simply to say, by comparison with all the other areas of merits review and primary decision-making at the federal level that this one should be subject to only the lightest touches of judicial review.…what sets apart the proposed privative clause in the Judicial Review Bill is that it would operate to protect the rulings of bodies that do not have the status of courts but which nevertheless make findings that typically involve issues of both fact and law…[56]
6.65 Further, in oral evidence before the Committee, the Australian Law Reform Commission said that:
It seems to be a misguided belief that judicial review is some alternative to merits review, particularly when the form of merits review is as fined down and sparse as the RRT process is, covering what are in many cases some of the most difficult fact finding, judgmental and legal conundrums that any decision-maker at the federal level is faced with.[57]
6.66 In the context of the same report, the Commonwealth Ombudsman noted that:
It is…questionable that merits review could ever be a substitute for judicial review in relation to dealings with technical legal arguments and the provision of precedent and guidance to tribunal members.[58]
6.67 In seeking exclusion in 1978 from the ambit of the AD(JR) Act, some agencies argued that the existence of adequate alternative avenues of review is relevant to determining whether classes of decisions should be excluded from the Act.
6.68 In its first report in 1977 on the Administrative Decisions (Judicial Review) Act 1977, the Council said that:
Review under the Act relates only to unlawfulness, whereas alternative remedies suggested as adequate (such as appeals to the Administrative Appeals Tribunal) generally relate to the merits of the decision in question. While individuals may regard review on the merits as more desirable than judicial review in most situations, there will be cases in which judicial review is preferable.
…
Judicial review by the Federal Court is part of a comprehensive administrative review structure which includes the Administrative Appeals Tribunal and the Ombudsman. There can be an overlapping of jurisdiction of the three main review bodies in some areas. But this is an integral part of the structure…and the three avenues of review can operate consistently. Accordingly, the existence or non-existence of review by the Tribunal or Ombudsman is neutral in any argument based on alternative remedies, and does not justify any exclusion from the Act.[59]
6.69 The Council rejected the argument from agencies that the existence of alternate remedies justified total exclusion from the AD(JR) Act, noting that section 10 of the Act explicitly provides that the AD(JR) Act rights are additional to other existing remedies.
6.70 In its report, the Council also noted that:
Judicial review is a basic remedy in administrative review, for it is the primary means of ensuring that administrative action is subject to the rule of law. Hence the existence of an alternative remedy is not in itself a substitute for judicial review. Generally speaking an alternative remedy becomes relevant only where there are other principles which support exclusion from the Act and where the alternative remedy could properly be regarded as compensating for the consequences of exclusion.[60]
6.71 Subsequently in its 26th Report in 1986, Review of Administrative Decisions (Judicial Review) Act 1977 – Stage 1, the Council looked, at the issue of overlapping remedies, recommending that the Court’s discretion to stay or refuse to grant an application for review of a decision should be capable of exercise at any stage of the proceedings and should be exercised at the outset of proceedings wherever appropriate although only in a preliminary way.[61]
6.72 As noted above, while taking into account the recommendations made in the Report, the Administrative Decisions (Judicial Review) Amendment Bill 1987 went further than this.
6.73 In its 32nd report in 1989, Review of the Administrative Decisions (Judicial Review) Act: the Ambit of the Act, the Council suggested that:
The aim [of government] should be to ensure that judicial review is not the only avenue of challenge of decisions but performs its intended role of providing a remedy of last resort.[62]
6.74 In the Report, the Council recommended that the AD(JR) Act should be amended by provisions along the lines of the Administrative Decisions (Judicial Review) Amendment Bill 1987 and that the Bill should be amended by substituting words along the following lines for the concluding words of proposed paragraph 10(2)(c):
…the Court shall refuse to grant the application if it is satisfied, having regard to the interests of justice, that the alternative review right is, in all the circumstances, adequate.[63]
The Council also recommended that the concluding words of proposed paragraph 10(2)(d) of the Bill should be amended to read:
…the Court shall refuse to grant the application if it is satisfied, having regard to the interests of justice, that it should do so.[64]
6.75 In relation to overlapping judicial remedies, the Council noted that:
To the extent that, in some areas of the Commonwealth administration, there exists side by side with rights under the AD(JR) Act a right of appeal, or to make other application to the courts…the operation of the AD(JR) Act as one fork of a bifurcated review path needs to be considered.[65]
6.76 In its deliberations, the Council noted that a right of appeal is wider than a review right as, unless restricted to issues of law, it will allow review on matters of law and the merits.
6.77 In What Decisions Should be Subject to Merits Review? the Council considered that the preliminary nature of some decisions was a factor justifying excluding merits review, in the following terms:
This is because review of preliminary or procedural decisions may lead to the proper operation of the administrative decision-making process being unnecessarily frustrated or delayed. In the case of preliminary or procedural decisions, the beneficial effect of merits review is limited by the fact that such decisions do not generally have substantive consequences. The benefits are outweighed by the cost of potentially frustrating the making of substantive decisions.[66]
6.78 More recently, the Council has said that:
While the Council supports the use of independent merits review tribunals, it is not of the view that the existence of merits review in any way justifies the removal of judicial review or the removal of appeal rights under section 44 of the Administrative Appeals Tribunal Act 1975.
…
In the Council’s view, the preferable approach would be to legislate to give courts clear power and authority to strike out proceedings for judicial review at a preliminary hearing, unless the court was satisfied, at that stage, that there was a bona fide issue as to the legality of the tribunal’s proceedings or decision. Under this proposal, courts could be required, in each application for judicial review of a decision, to consider whether or not to exercise this power.[67]
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In what circumstances should the availability of full merits review be sufficient to displace an application for judicial review? Please elaborate. |
6.79 Having regard to the preceding discussion, it is apparent that there are circumstances where judicial review might appropriately be supplanted in the face of an adequate alternative remedy. Moreover, there are circumstances where full merits review by a tribunal, as well as a right of appeal to a court, will be regarded as ‘adequate’ for this purpose.
6.80 As reflected in the preceding paragraphs, the circumstances in which an alternative remedy may be regarded as ‘adequate’ are multifarious. As illustrated in the tax and workplace relations areas, some of these circumstances can be actively anticipated and provided for through the provision of comprehensive complaint handling and alternate review processes. In the tax area, for instance, merits review is supplemented but not supplanted by a comprehensive objection and review stage, the rulings process and a full appeal right.
6.81 In situations where grounds such as procedural fairness and unreasonableness form the basis of an application for judicial review, the better response may be that a full merits review can provide an adequate alternative to judicial review. In the case of a claim of bias for instance, it will be the task of the tribunal to undertake a full and unbiased hearing of the application.
6.82 In the case of a ground such as unreasonableness, where, as discussed earlier, there is a strong likelihood that the ‘mischief’ complained of, the unreasonableness, will be cured by the review process the arguments for merits as opposed to judicial review are pertinent.
6.83 Arguably, the issue becomes more pointed in circumstances where a tribunal is an expert tribunal and the subject matter of the decision is of a technical and complicated matter. The workplace relations area is a case in point.
6.84 Other relevant factors include the quality of the decision-making body and the powers of the decision-making body.
6.85 In situations where other grounds of review are likely to be relied on, where there is not full merits review or where issues of error of law are involved, the right to judicial review may be the preferred option. In such circumstances, though not all review options have been employed, it may still be preferable to permit judicial review. It has been said for instance, that:
There is no reason for driving the subject to that expensive process (ie appeal) to abide by the chance of repetition of error, which, if committed, can, at least, be one rectified by prohibition, and may be so committed as to be placed beyond the reach of even that remedy; or for compelling him to submit even to that direct inconvenience arising from that decision alone, if none lay beyond him.[68]
Discussion point 27
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Do you agree/not agree with these views? Are there any other relevant considerations? Please elaborate. |
[1] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 336-7 per Mason CJ in the context of the ambit of the concept of ‘decision’.
[2] The Ellicott Committee report, paragraph 33.
[3] Id.
[4] Quoted in the Senate Inquiry into the Administrative Decisions (Judicial Review) Bill 1986, Parliamentary Paper 212, 1987, paragraph 4.4.
[5] A comprehensive analysis is provided in an article by Dame Enid Campbell, ‘Judicial Review and Appeals as Alternative Remedies’ (1982) 9-10 Monash University Law Review 14.
[6] Kelly v Coats (1981) 35 ALR 93, per Toohey J.
[7]
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte
Ozone Picture Theatres (1949)
78 CLR 389 at 400. See also Re Refugee Tribunal; Ex parte Aala (2000-
2001) 204 CLR 82 per Gaudron and Gummow JJ.
[8] Re Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82, 107 per Gaudron and Gummow JJ.
[9] Ibid, 137 per Kirby J.
[10] Edelsten v Minister for Health (1994) 32 ALD 730, 734 per Northrop J.
[11] Webb v Jackson (1984) 56 ALR 254.
[12] Inglis v Bateson (1990) 99 ALR 149.
[13] Brock v Child Support Registrar (1995) 38 ALD 255.
[14]
Twist v Randwick Municipal Council (1976) 12 ALR 379; Marine
Hull & Liability Insurance Co Ltd
v Hurford (1985) 62 ALR 253.
[15] Furnell v Whangarei High School Board [1973] AC 660.
[16] Colpitts v Australian Telecommunications Commission (1988) 14 ALD 554.
[17]
Twist v Randwick Municipal Council (1976) 12 ALR 379;
Marine Hull & Liability Insurance Co Ltd
v Hurford (1985) 62 ALR 253.
[18] R v Hull Board of Visitors; Ex parte St Germain (1979) QB 425, 448 –9, 456, 465.
[19] R v Town Planning Committee; Ex parte Skye Estate Ltd [1958] SASR 1, 21, 24, 27-8, 39-40.
[20] Marine Hull v Hurford (1985) 62 ALR 253, 264. See also Calvin v Carr [1980] AC 574.
[21] Saitta v Commonwealth [2001] FCA 817, [25]-[29] per Gray J.
[22] Saitta Pty Ltd v Commonwealth (2000) FCA 1546.
[23] Anita Chowdhary v Peter Bayne in his capacity as a senior member of the AAT & Comcare (1999) AAR 100.
[24] This is the general tenor of comments made by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 336-7.
[25] Ibid, 378.
[26] R v Spalding (1955) 5 DLR (2d) 374.
[27] Saitta Pty Ltd v Commonwealth [2000] FCA 1546, [103]-[104] per Weinberg J.
[28] By virtue of section 42 of the Administrative Appeals Tribunal Act 1975.
[29] R v Judges of Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (1979) 143 CLR 190.
[30] Vickers v Hanks [1999] FCA 695 per Carr J.
[31] Id.
[32]
Re Du Pont (Australia) Limited and E I Du Pont De Nemours and
Co and: Comptroller-General of Customs; Peter Kittler; Anti-Dumping “Authority
and Minproc Holdings Ltd (1993) 30 ALD 829, [14]-[15] per
Heerey J.
[33] Ibid, [16].
[34] Moran Hospitals Pty Ltd v Conor King and Paul Huntley (1997) 49 ALD 444.
[35] Mercantile Credits Ltd v Commissioner of Taxation (No 1) (1985) 5 FCR 510 followed in Ross Milton Hagedorn v Department of Social Security (1996) 44 ALD 274.
[36] (1981) 3 ALN N86.
[37] Id.
[38] Kelly v Coats (1981) 35 ALR 93, 95.
[39] Swan Portland Cement Limited v Comptroller-General of Customs (1989) 25 FCR 523.
[40] (1976) 136 CLR 106, 113-4.
[41] Re Du Pont (Australia) Limited and E I Du Pont De Nemours and Co and: Comptroller-General of Customs; Peter Kittler; Anti-Dumping “Authority and Minproc Holdings Ltd (1993) 30 ALD 829, [14] per Heerey J.
[42] Id.
[43] (2001) 206 CLR 57.
[44] Beck v Thornett (1984) 6 ALN N209.
[45] Yirrell v Yirrell (1939) 62 CLR 287.
[46]
See for example, Swan Portland Cement Ltd v Comptroller-General of Customs (1989)
90 ALR 280.
Kelly v Coats (1981) 3 ALN 52.
[47] Ibid, 96 per Toohey J.
[48] Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, [145].
[49] Meng Kok Te v Minister for Immigration & Multicultural Affairs (1998) FCA (16 October 1998).
[50] (1995) 38 ALD 251, 253.
[51] Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523, 530 per Morling, Pincus and O’Loughlin JJ. The Privy Council has also agreed with these sentiments: Harley Development v Commission of Inland Revenue [1996] 1 WLR 727.
[52] Senate Standing Committee on Legal and Constitutional Affairs, Administrative Decisions (Judicial Review) Bill 1987, Parliamentary Paper No 212, 1987, paragraphs 4.13-14, 26.
[53] Explanatory Memorandum to the Migration Reform Bill 1992, paragraph 415. Further, as pointed out by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, 42, when the ground of asserted unreasonableness is given too much or too little weight to one consideration or another:’…a court should proceed with caution…lest it exceed its supervisory role by reviewing the decision on its merits.’
[54] The Hon Philip Ruddock, Minister for Immigration and Multicultural Affairs, Second Reading Speech, Migration Legislation Amendment Bill (No 4) 1997, Hansard, 25 June 1997, 2.
[55] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, Report No 32, 1989, paragraphs 268 and 270.
[56] Submission of the Law Council of Australia to the Senate Legal and Constitutional Legislation Committee Inquiry into the Migration Legislation Amendment Bill (No 2) 1998, Migration (Visa Application) Charge Amendment Bill 1998 and Migration (Judicial Review) Bill 1998, 18 January 1998, paragraph 12.4.
[57] Australian Law Reform Commission in ‘Transcript of Evidence’ in Senate Legal and Constitutional Legislation Committee Consideration of Legislation Referred to the Committee (ed), Migration Legislation Amendment (Judicial Review) Bill 1998, 1998, paragraph 2.80.
[58] Submission of the Commonwealth Ombudsman to the Senate Legal and Constitutional Legislation Committee Inquiry into the Migration Legislation Amendment Bill (No 2) 1998, Migration (Visa Application) Charge Amendment Bill 1998 and Migration (Judicial Review) Bill 1998, 18 January 1998, 14.
[59] Administrative Review Council, Administrative Decisions (Judicial Review) Act 1977: Exclusions under Section 19, Report No. 1, 1977, paragraphs 52, 54, 28-9.
[60] Ibid, paragraph 55.
[61] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act 1977 – Stage One, Report No 26, 1986, paragraphs 47, 92.
[62] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, Report No 32, 1989, paragraph 26.
[63] Ibid, paragraph 363 and Recommendation 15.
[64] Id.
[65] Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, Report No 32, 1989, paragraph 447.
[66] At paragraph 4.4.
[67] Extract from the Council’s submission to the Senate Legal and Constitutional Legislation Committee Inquiry into the Migration Legislation Amendment Bill (No 2) 1998, Migration (Visa Application) Charge Amendment Bill 1998 and Migration Legislation Amendment (Judicial Review) Bill 1998, 18 January 1998.
[68] Burder v Varley (1840) 12 Ad & E 233.