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Editors --- "The Scope of Judicial Review Discussion Paper" [2003] AdminRw 3; (2003) 55 Admin Review 12


The Scope of Judicial Review discussion paper

This article canvasses several matters raised in the Council’s discussion paper The Scope of Judicial Review. The Council is seeking comments and submissions in response to the paper.[1] A full version of the paper can be obtained by contacting the Council Secretariat.[2]

In March 2003 the Council launched its discussion paper The Scope of Judicial Review. The paper explores the desirable scope of judicial review, with particular regard to the need to achieve a suitable balance between individuals’ right to test the legality of government actions and the need to prevent litigation from frustrating government policies. The Council hopes that the discussion paper will encourage debate and attract submissions. Its ultimate aim is to develop a set of guidelines for agencies, legislators and commentators exploring policy matters relevant to the scope of judicial review.

Limiting judicial review

In view of the Council’s historical involvement with the subject of the scope of judicial review[3] and having regard to significant developments in the history of Australian judicial review, the Council considers it both timely and helpful to revisit the subject. As a result of ss. 39B(1) and 39B(1A)(c) of the Judiciary Act 1903, and the consequent impact on the use of the Administrative Decisions (Judicial Review) Act 1977, the scope of any such consideration must necessarily extend beyond the scope of judicial review for the purposes of the latter Act.

The discussion paper identifies a range of ways in which—having regard to constitutional considerations—judicial review might appropriately be limited. It explores the limitations that can be imposed on judicial review and the role of the executive, parliament and the judiciary in setting those limitations.

Traditionally, privative clauses—or Hickman clauses—have been an important means of limiting judicial review.[4] However, as noted in the discussion paper, there are numerous ways in which the parliament has sought, through legislation, to limit the scope of judicial review, among them the following:

• by giving a decision-making body very wide jurisdiction

• by providing that a provision is not intended to affect the validity of a determination[5]

• by providing that anything the body does shall have effect as if enacted by parliament

• by including evidentiary clauses deeming all things done and that a certain result has been achieved on production of a certificate or other formal proof of proper form

• by way of a self-executing decision—that is, a decision where the ‘decision’ follows automatically from the existence of objective facts[6]

• by providing that only certain decisions are reviewable, thus excluding others, which may then only be challenged at common law on limited grounds

• by amending the range and scope of the grounds of review themselves

• by making certain aspects of the decision-making process legislative rather than administrative in character.

When is limiting judicial review appropriate?

A large part portion of the discussion paper is devoted to the circumstances in which judicial review might appropriately be limited. This discussion encompasses an analysis of judicial, executive and public perspectives and includes consideration of the grounds of review, consistency and predictability, resource-related matters, the nature of the decision, the nature of the decision maker, no impact on the final decision, and alternative remedies.

The grounds of review

The discussion paper calls for comments on whether the nature of any grounds of review is sufficient to justify limiting judicial review. Several grounds are examined, including grounds containing the potential for high degrees of factual consideration and/or with a tendency to blur the distinction between merits review and judicial review. Among such grounds are unreasonableness and jurisdictional error.

The nature of procedural fairness also appears to have been a factor for parliament and the executive in seeking to limit judicial review. The executive has suggested that in some circumstances the requirements of procedural fairness are unduly onerous and unnecessary.[7] It has also been noted that ‘it cannot be assumed that the provision of additional procedural challenges will necessarily be to the advantage of persons affected by the decision in question’.[8]

In contrast, having regard to the nature of the grounds of review examined in the discussion paper and to the way courts have generally dealt with those grounds, it might also be reasonable to take the view that no ground, in itself, warrants the exclusion of judicial review. There are, however, obviously other important factors—such as cost, speed, finality, accessibility, consistency and predictability—that may need to be taken into account.

The Council seeks comments in this regard.

Consistency and predictability

The discussion paper also explores the question of consistency and predictability. On one hand, the achievement of consistency and predictability does not justify limiting judicial review, because ‘consistency is not preferable to justice’.[9] In some instances, the desire for consistency and predictability can override consideration of the implications of a decision in a particular case and lead to decisions that are unjust.

On the other hand, consistency and predictability can enhance justice and are important values underlying judicial review. 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.

The discussion paper calls for comments on where the balance between achieving consistency and predictability and justice might lie.

Resource-related matters

Resource-related matters cover both financial costs and costs in terms of the use of personnel, time and other resources. Concerns about resources are often inextricably linked to claims of abuse of process and can also underlie concerns about consistency and predictability.

Judicial review has sometimes been seen as an obstacle to government action. In some areas—tax and migration, for instance—it may be that a time advantage is gained by lodging an application for judicial review. However, although applications for judicial review can delay the effecting of government decisions, to deny or limit this right might also impinge on administrative justice by negatively affecting claimants with genuine grievances; it could also have cost implications for society.

The discussion paper suggests that identification of what constitutes an abuse of process is not necessarily reflected in the number of applications for review or in the number of successful (or unsuccessful) applications. It is beyond question that, although there are circumstances where some people may be attempting to delay or frustrate administrative processes, there are others where they are not. The Council therefore raises for consideration the idea that ‘abuse of process’ should not readily be relied on by government as a reason for limiting review in a particular area. By virtue of the methods courts employ and their necessary focus on the case at hand, it is arguable that courts are better placed to identify ‘abuses’ in particular cases. The discussion paper seeks further views on this.

Linked to the issue of limiting judicial review on the basis of ‘abuse of process’ are the related issues of excluding judicial review on the basis of the high volume of applications and the cost of such applications. The Council seeks views on whether these considerations—volume and cost[10]—present sufficient justification for limitations on individuals’ challenge of the legality of a government decision.

Resource considerations are a legitimate concern of government and, as a result, may have an important impact on the desirable scope of judicial review. It is reasonable to assume that the executive is in the best position to assess the level of resources it can allocate to a particular area of government decision making. Judges are generally not in a position to determine where resources should be provided or how they should be apportioned. Resource considerations often involve taking account of a range of factors that a court is unlikely to have knowledge of or to be equipped to act upon if it did. The role of a court is to examine cases on an individual basis, so it would seem generally inappropriate for it to involve itself in such broad-based considerations. This view is consistent with the doctrine of the separation of powers.

Another view is that concerns about abuse of process, the high volume of applications and the associated cost could be responded to by means other than reducing judicial review rights. Possible options are greater use by the Federal Court of its discretionary power to refer cases to other suitable avenues of review and the establishment of adequate alternative remedies.[11]

The Council is interested in receiving comments on whether such mechanisms are sufficient for allaying concerns about abuse of process, the high number of applications and the associated cost.

The nature of the decision

The discussion paper examines whether the particular nature of a decision may, in certain circumstances, justify limiting judicial review. It looks at decisions involving policy, polycentric matters, ongoing relationships, legislative matters, matters relating to the administration of justice, and urgency or emergency circumstances.

The Council seeks comments on when the nature of a decision would warrant limiting judicial review.

The nature of the decision maker

The discussion paper examines whether the nature of the decision maker might be an appropriate factor in limiting judicial review. In particular, it explores whether the status or expertise of the decision maker could justify limiting judicial review and whether judicial review should be limited when the decision maker is a contractor, a government business enterprise, an intergovernmental body, or a consultative and advisory authority that deals directly with the public.

No impact on the final decision

Where an alleged irregularity would not have resulted in a different result being reached, there is some support for the view that there may be a discretion to deny a remedy. As noted in Re Refugee Tribunal; ex parte Aala[12], such a situation may occur where, regardless of any question of procedural fairness or merit, the decision was one that 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 that clearly must be answered unfavourably to the prosecutor.

The Council seeks comments on whether such matters are ones on which the courts or the legislature should rule.

Alternative remedies

Part VI of the discussion paper focuses on the impact of adequate alternative remedies on the scope of judicial review. It seeks comments on what constitutes an adequate alternative to judicial review; the impact on the ‘adequacy’ of alternative remedies of applications for review on particular grounds of review; and the circumstances in which the availability of full merits review is sufficient to displace an application for judicial review.

How should limitation of judicial review be achieved?

The final part of the discussion paper considers the way any limitations on judicial review might appropriately be imposed.

The constitutional framework places a significant constraint on parliament’s capacity to limit the scope of judicial review.[13] Nevertheless, subject to the overriding requirement that the subject matter of the law lie within Commonwealth legislative power[14], it appears to remain open to parliament to define the powers of a decision maker in such a way as to exclude at least most of the traditional grounds of judicial review.

The principal means by which parliament has in the past sought to limit judicial review has been through the use of privative clauses. As traditionally construed in Australia, these clauses have been read not as purporting to limit the role of the courts but as expanding the powers of a decision maker. This approach to construction, based on the Hickman principle, arguably makes it difficult to identify or predict the clauses’ meaning with any real certainty.[15]

The discussion paper suggests that, as a general principle of administrative justice, provisions taking away the right to review of administrative decisions should be clearly stated, their effect should be clearly apparent, and they should focus on the extent of the power conferred rather than on the extent to which a court is precluded from examining an exercise of power.

As an important companion to this view, it is suggested that, in so far as parliament may seek to limit judicial review, it should do so with reference to particular decision-making powers.

The discussion paper calls for comments on the need for clarity and specificity in limiting judicial review.

Conclusion

The Council hopes that the discussion paper will make a significant contribution to the debate about the scope of judicial review. It also hopes that the ultimate objective of the discussion paper—the development of guidelines—will help interested parties identify the circumstances in which, and the area of our constitutional system through which, the exclusion of judicial review is appropriate.


[1] Comments and submissions should be sent to The Executive Director, Administrative Review Council, Robert Garran Offices, National Circuit, Barton ACT 2600.

[2] Phone 02 6250 5800; facsimile: 02 6250 5980; email: arc.can@ag.gov.au; a copy of the discussion paper is also available on the Council’s website <law.gov.au/arc>.

[3] The Council’s first report, Administrative Decisions (Judicial Review) Act 1977—exclusions under section 19, in 1978 addressed this topic in the context of exemptions from the application of the Administrative Decisions (Judicial Review) Act.

[4] However, as a result of Plaintiff S157/2002 v. Commonwealth [2003] HCA 2, where the High Court significantly reduced the scope of the privative clause’s intended effect, the desirability of using such clauses to limit judicial review is uncertain.

[5] In Project Blue Sky v. Australian Broadcasting Authority (1998) CLR 355, [93] per McHugh, Gummow, Kirby and Hayne JJ, it was found that, rather than seeking to make a distinction between mandatory and directory provisions, the better approach was ‘to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid’.

[6] See Goldie v. Commonwealth of Australia (2002) 188 ALR 708, involving consideration of s. 189 of the Migration Act 1958.

[7] In the Migration Reform Bill 1992, the government sought to deal with these difficulties—see Hon. Gerry Hand, Minister for Immigration and Ethnic Affairs, Second Reading Speech to the Migration Reform Bill 1992, Hansard, 4 November 1992.

[8] Dennis Pearce, ‘Is there too much natural justice?’ AIAL Forum, vol. 1, 1992, p. 94.

[9] Per Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634, 645.

[10] For example, these arguments have been used to support recent amendments to the Migration Act 1958 by the Migration Reform Act 1992, the Migration (Judicial Review) Act 2001 and the Migration Legislation Amendment (Procedural Fairness) Act 2002.

[11] Further mechanisms are examined in the discussion paper.

[12] (2000–2001) [2000] HCA 57; 204 CLR 82.

[13] Specifically, the doctrines of the rule of law and the separation of powers, which find particular expression in s. 75(v) of the Constitution.

[14] Plaintiff S157/2002 v. Commonwealth of Australia [2003] HCA 2 [102].

[15] An example of this is the High Court’s decision in Plaintiff S157/2002 v. Commonwealth of Australia [2003] HCA 2, where the Court unanimously held that the privative clause and time limit clause in the Migration Act 1958 were constitutionally valid but construed them so narrowly so as to significantly reduce their effect. The privative clause was not considered clear enough to prevent judicial review of an administrative decision involving jurisdictional error and, specifically, involving contravention of natural justice.


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