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Administrative Review Council - Admin Review |
Chris Finn[∗]
As an opening observation, it may be noted that, although the Council’s 2003 discussion paper is entitled The Scope of Judicial Review, the emphasis of the paper is clearly on restriction of that review. Little or no space is devoted to a consideration of possible arguments in favour of an expanded scope for judicial scrutiny of government action. Part Two of the paper contains a well-made exposition of the significance of judicial review, as an element of the ‘rule of law’, in improving accountability—and, indeed, in offering valuable feedback on administrative decision-making processes—but the paper does not appear to suggest any deficits in these areas for which more expansive judicial review might be a possible solution.
In this, the discussion paper captures much of the flavour of current commentary on the respective roles of the courts and the executive in relation to administrative decision making. Critiques of ‘interventionist’ courts are unsurprisingly led by governments that find such intervention inconvenient and frustrating and are not afraid to respond strongly, stridently and often, by all means at their disposal, in support of the various policies for which they claim a political mandate. The vexed area of migration law is an obvious example here, and the litany of government measures designed to ensure that the executive of the day prevails in this policy field need not be recited. But still it is frequently asserted that it is the courts that are the primary transgressors across the less-than-bright constitutional line between executive and judicial responsibility. Moreover, this is a view that attracts a considerable degree of academic support.
This article asks, however, whether such an adverse account of judicial review misses more than it sees. Should judicial review be subject to even further restriction? Or is it now in need of stalwart defence, as a vital element in our constitutional heritage? In a nutshell, it is argued here that the Council should exercise caution before recommending any further limits to the scope of judicial review. As the discussion paper correctly observes, access to the courts is a fundamental aspect of the democratic relationship between government and individuals and allows the lawfulness, fairness and rationality of government action to be assessed by an independent arbiter with no direct stake in the outcome. Given the manifold ways in which government necessarily regulates the actions of individuals in the broader public interest, this independent assessment provides an essential check and balance to what might otherwise appear as the arbitrary exercise of power by government agencies. While this is of obvious benefit to affected individuals, it is also of broader benefit to government. The existence of a strong and independent review mechanism does much to ensure that government action is legitimised, precisely because of its exposure to that independent scrutiny. Judicial review is an important—indeed, crucial—element of the rule of law.
As the discussion paper observes, there are already numerous legislative and judicial techniques for limiting the scope of judicial review. To the extent that judicial review requires limitation, those devices are more than adequate for the task. There are both external legislative and internal judicial constraints on judicial review. It is not implausible to suggest that, given judicially imposed limits such as justiciability and standing rules, as well as legislative exclusions such as privative clauses (and the range of more subtle techniques noted in the discussion paper), there is a strong case for more, not less, judicial review.
The discussion paper notes that the courts already have a number of methods for limiting the scope of judicial review. Some at least of these are themselves open to question. The Australian Law Reform Commission has previously reported at length on standing rules and recommended their relaxation.[1] This is a position that still deserves support, despite long legislative inaction on the matter. Strangely, the discussion paper makes little reference to standing rules as an existing technique for limiting the scope of judicial review.
The role of judicial deference should also not be overstated. Judicial deference on questions of fact is inherent in the nature of judicial review and is reflected in the parameters of the various grounds that constitute the substance of that review. When a decision maker has clearly erred in law, however, it is difficult to see why deference is appropriate. It is well established that in the Australian constitutional system the judiciary is the final arbiter of questions of law. This is because only the judiciary possesses the necessary degree of independence from government to make the required judgments as to the lawfulness of the intrusive exercise of government powers.
The discussion paper suggests that the ‘polycentric’ nature of a decision might be a basis for refusing review and classifying a decision as ‘non-justiciable’. However, this is questionable. As the discussion paper itself observes, there are few if any administrative decisions that are not in fact polycentric, in the broad sense that, although they might concern an individual and have direct consequences for that individual, they are also a particular instance of the implementation of a general policy. It is difficult to imagine any class of administrative decision that is made in a policy vacuum. Such decisions inevitably and rightly take into account the broader public interest, as understood by the decision maker and taking into account relevant formal or informal policy guidelines. More than that, most administrative decisions involve the balancing of a range of policy factors and interests. It may be that they involve the allocation of finite resources, in the sense that a decision involving the award of a benefit of some kind necessarily implies the non-award of that benefit to another party.
Even in the most extreme of these cases it does not follow that review by the courts is inappropriate. The initial decision made by an administrator might be polycentric in nature, but the matters faced by a review court will be different. Thus, the court does not ask whether a decision allocating a limited resource (for example, a visa) is the correct one but simply whether the decision was made fairly—that is, whether affected people (in particular the applicant in the matter) received a ‘fair’ hearing. This may not be a question that admits of a simple and obvious answer in all cases, but it is a quite different question from that decided by the original administrator. Equally, the reviewing court asks whether the impugned decision was made lawfully and rationally, without remaking the decision for itself.
It is argued, therefore, that ‘policy and polycentric issues’ do not provide a strong basis for limiting the scope of review, beyond those limits that flow from the nature of the grounds of review. The ‘policy’ nature of a discretion ought not in itself be sufficient reason for excluding or limiting judicial review. It should, however, be recognised that such decisions will be amenable to review only in limited circumstances, such as simple lack of power or jurisdiction. Other grounds are unlikely to be made out, because of the lack of a sufficiently individualised decision or the broad nature of the policy-making discretion at issue. There are already sufficient judicial techniques for dealing with such cases.
Similarly, the status of the decision maker should be of little or no account in determining the appropriate scope for judicial review. As noted, however, the nature of the decision-making power itself will be relevant, with policy-laden decisions tending to involve broader discretions and consequently decreased scope for review on grounds such as relevant and irrelevant considerations or unreasonableness. Finally, and despite the decision of the High Court in Jia[2], it would be dangerous to accede too far to the proposition that ‘political’ decision makers such as the Minister in that case are thereby absolved of the responsibility to make decisions in a fair and impartial manner. To do so is to rob administrative decision making of the appearance of fairness, which is integral to its continued legitimacy in the public eye.
The discussion paper correctly observes that ‘courts already show considerable deference to the expertise of expert decision makers’ (paragraph 5.195). There is little or no warrant for legislative attempts to further reinforce this deference. The legislature already has the ability to condition the existence of a jurisdiction on the subjective (albeit reasonable) opinion of a decision maker that relevant facts exist, rather than the objective existence of such facts. This approach appears to accord a suitable degree of deference to expert factual decision makers.
It is inappropriate to impose broad limitations on the review of ‘legislative’ decisions. Such decisions must, at a minimum, be shown to be within the scope of the relevant grant or grants of power. Just as a court is able to review the exercise of legislative power, albeit on limited constitutional grounds, so too should it be able to review the lawfulness of ‘legislative’ decisions. The distinction between ‘legislative’ and ‘administrative’ decisions can be a difficult one, productive of arid litigation. Eliminating this distinction and replacing it with a presumption in favour of the availability of judicial review would be a useful simplification.
It should be noted that the predication of both standing requirements and procedural fairness on the decision having an individualised effect will in many cases suffice to exclude effective judicial review. Classification of decisions as ‘legislative’ is therefore redundant. In other cases, where the asserted ground is excess of power, judicial review is an appropriate mechanism for ensuring that government acts within the limits of its statutory and other powers. Thus the practical result is consistent with that recommended in paragraph 5.172 of the discussion paper, with a limited range of grounds being available at the judgment of the courts.
Even in the case of urgent or emergency decisions, it is doubtful that legislative limitations on review will often be appropriate or necessary. Use of such powers could involve considerable intrusion on individual rights and freedoms. This in itself suggests that arguments for blanket exclusion of judicial review should be treated with great caution. Although abuse of such power could be expected to be rare, a judicial response should be available in those rare circumstances. It is to be expected that judicial intervention would be equally rare and may be limited to situations where a decision is simply beyond power or was not made in good faith. In the vast majority of cases, the nature of the grounds of review themselves will prevent review of emergency decisions, rendering a blanket exemption unnecessary.
The discussion paper explores at length suggestions that the nature of particular grounds of review justifies further limits on the scope of judicial review. In fact, it is noteworthy that the majority of the principal grounds for such review are listed in the discussion paper as attracting negative comment. The extensive list includes unreasonableness, the relevant or irrelevant considerations grounds, error of law, jurisdictional error, and procedural fairness. Judicial review would be little more than an empty shell if review on each of these grounds were to be wholly excluded. That fact alone strongly suggests that legislative attempts to exclude review on the basis of one or more of these grounds should be avoided. What should be, and is, recognised, however, is that some grounds (for example, unreasonableness) require significant judicial restraint in their deployment. It is suggested that, despite this, the discretionary nature of judicial restraint or intervention means that it can be more appropriately targeted to the facts of individual cases than a legislative attempt to limit review on the basis of particular grounds.
The discussion paper refers to the ‘public perspective’ on the scope of judicial review. Notably, this raises questions of accessibility and affordability. Matters such as the need for consistency and predictability, potential ‘abuse of process’, and the volume and cost of cases can also be usefully considered under this heading. Each of these is discussed briefly in the sections that follow.
Two other matters warrant mention in relation to the public perspective. First, it must be asked whether legislative attempts to further limit review—with the result that complexity is added to the review process—are truly in the public interest. Legislative barriers such as the privative clause in the Migration Act 1958 have been strikingly unsuccessful in diminishing the volume or complexity of litigation. They have simply increased the complexity, cost and length of such litigation. It is difficult to see that this is in the public interest. Similarly, legislative measures to prohibit class actions are difficult to reconcile with a stated commitment to accessibility and affordability.
Legislative devices aimed at excluding judicial review will also exclude the educative and corrective effect of that review. It is well accepted that one of the benefits of judicial review lies in its potential to improve the quality of primary decision making, to the benefit both of the relevant agency and of people subject to that decision making. The most effective and rational way of lessening the demand for judicial review is to maintain that high quality of primary decision making. Exclusions from review might have the opposite effect.
Although consistency is obviously desirable, it is more important that administrative decision makers make the correct and preferable decision on the facts of the individual case before them. In any event, in high-volume jurisdictions there will already be a high degree of consistency (and hence predictability) in decision-making processes. The availability of judicial review would probably have only a marginal impact on this.
One might also ask exactly how the availability of judicial review affects consistency and predictability. Differing outcomes are to be expected within any given class of administrative decisions since the facts will vary from case to case. Consistency here cannot mean consistency of outcome: it can only mean consistency in the decision-making process. At most, this will mean somewhat more elaborate decision-making processes in particular cases, as the facts of those cases require it. But the principles of fairness and rationality to be applied to those facts remain consistent.
In fields such as migration the spectre of ‘abuse of process’ looms large in the government mind. The scale of such ‘abuse’ in reality and the appropriate response to it are different matters.
The first question to be asked must be exactly what constitutes abuse of process. It can hardly be abuse to exhaust the full range of legal rights available to one. Moreover, in a field such as migration, where the majority of such concerns appear to arise, many applicants are unrepresented and thus in a very poor position to assess the legal strength of their own claims. This is even more the case when the legal matters to be argued concern not the factual merits of a visa application but the judicial review question of whether the process of determining that application has miscarried in a manner that might attract judicial intervention.
Even where it is possible to argue in hindsight that abuse of process may have occurred, such abuse is difficult to detect in advance unless it is very clear. On the rare occasions that it is clear, the court has suitable mechanisms for acting. Statements of claim can be, and are, struck out if they disclose no reasonable cause. But broad-brush legislative attempts to limit judicial review on the basis of perceived abuse of process should be strongly resisted. These measures cannot distinguish in advance between the meritorious and the unmeritorious cases. This can rarely be done until the arguments have been heard. To attempt a legislative limit on review in order to block purported abuse would have the unfortunate, and unjust, consequence of also blocking a large number of meritorious claims.
The volume and cost of cases ought not be a prima facie justification for limiting the scope of judicial review. A high volume of cases may well be an indication of lower quality primary decision making, as the discussion paper suggests. The ‘ready availability of legal aid’ is not a significant factor.
Judicial review traces and delineates a key constitutional divide between the realm of the executive branch of government and that of the courts. The crucial distinction is the one between judicial review and merits review. As the discussion paper observes, courts will, and on occasion do, transgress beyond the proper constitutional limits of their role. It is difficult to see how it could be otherwise when a social institution is asked to answer difficult questions of interpretation and principle. A far more important question, and a correspondingly more difficult one to answer, is how frequently this occurs. It is equally important to ask if there are corresponding occasions when review is inappropriately declined by courts because of an excess of constitutional sensitivity. It is unlikely that the errors will all be in one direction.
While executively inspired attempts to limit review can be seen as one possible response to instances of judicial transgression, it would seem impossible to ‘target’ legislatively imposed limits to just such cases. Rather, the result would be a blanket ban on review in the relevant field, which would give rise to a possibility of subsequent injustice when an admittedly faulty administrative decision is placed beyond review. In short, the cure might be worse than the disease, which does not seem very virulent. Constitutional restraint should be seen as a two-way street, not a burden placed on the judiciary alone.
In this respect judicial self-restraint—while permitting the possibility of occasional error—has a broad advantage over legislative exclusions in that it is more discretionary and can be tailored to the facts of an individual matter. In general, judicial techniques for limiting the scope of judicial review are preferable to legislative measures for several reasons.
First, as noted, a judicial response—in essence involving a decision against an applicant on any of the number of discretionary elements that must be considered in the course of a judicial review—can be tailored and adapted to the facts of the matter at hand. The case can be judged on its ‘legal’ merits. Pre-emptive judgment, ill-adapted to as yet unforeseen legal issues, is avoided, as are its attendant injustices. It is worth re-emphasising the degree of injustice that is likely to flow from legislative attempts at a blanket restriction on judicial review in a class or classes of cases.
Second, it cannot be assumed that legislative techniques designed to exclude review will be effective. S157 shows that courts are unlikely to simply accept the more forceful attempts to oust their jurisdiction, at least where that jurisdiction is sourced to the Constitution.[3] It is doubtful if a single judicial review matter will be deterred by means of the privative clause tested in that case. Indeed, from the point of view of speeding up and simplifying the judicial review process (that is, ‘administrative efficiency’), privative clauses are likely to be strongly counterproductive. Their practical effect is to provide a further, and highly complex, matter to be litigated—quite apart from the substantive merits of the particular ground or grounds to be argued. As with standing rules, the result is likely to be longer, more complex litigation rather than the exclusion of judicial review. Thus, if it were true that litigants in some fields (for example, migration) were ‘abusing’ the review process in order to delay the implementation of decisions taken against them, the use of devices such as privative clauses would aggravate rather than solve the problem. It would merely provide further areas for dispute. This is not in the interests of the courts, the litigants or administrative efficiency.
Finally, the question of constitutional propriety must be considered. Judicial review is in essence an accountability mechanism designed to provide a check on the power of the executive branch of government. Given that, the executive should not be able to finely calibrate its level of accountability to suit the needs of the day. Executive government ought not be the sole determiner of its own level of accountability to the courts, to parliament, and ultimately to the Australian people. If government is to be accountable solely on terms of its own choosing, that accountability is virtually meaningless. To put it bluntly, judicial review should, on occasion, be inconvenient for the executive if it is to be an effective accountability mechanism. An independent and impartial review of the legality of administrative action is one of the essential elements of a developed democratic society. Ultimately—and taking into account the decline in the doctrine of ministerial responsibility—it is one of the few devices left to ensure that the scope of executive activity remains consistent with legislative intent. It is fundamental that the executive branch be kept within the lawful range of its statutory and other powers. Were this not the case, there would be little substance to the requirement for the democratic assent of parliament.
There might be potential for some useful rationalisation in the area of alternative remedies. However, the judicial discretion to deny relief when an adequate alternative remedy is available involves legislative and judicial cooperation. The legislature must first provide a genuine functional alternative to judicial review. The adequacy of that alternative is crucial. An essential element in any ‘adequate’ alternative remedial system will always be provision for determination of questions of law by an independent judicial body.
This turns on a broad understanding of the term ‘question of law’. It is therefore suggested that a statutory appeal on a question of law will provide an adequate alternative to judicial review as long as it is understood that such an appeal encompasses the normal judicial review grounds, such as denial of procedural fairness. The statutory appeal to the Federal Court on a question of law provided by s. 44 of the Administrative Appeals Tribunal Act 1975 is a well-known example.
As the discussion paper suggests (in paragraph 6.20), ‘merits’ review will provide an adequate—and in many cases superior—alternative remedy as long as it is full and comprehensive. That merits review cannot, however, be a dead end: provision must be made for an appeal from the merits review body on a question of law if required. An appeal ‘on the merits’ alone is not an ‘adequate’ alternative remedy in the relevant sense. Critically, a merits review body is not constitutionally authorised to determine questions of law. It possesses highly competent and dedicated members, but it is denied the necessary degree of constitutional independence from the executive, whose actions it is meant to scrutinise. As a consequence, it cannot ‘adequately’ perform the supervisory role of a judicial review court.
Where an avenue for merits review exists, it should generally be used in the first instance, except in cases where a contentious question of law will inevitably reach the courts however it is determined by the tribunal. Thus, the availability of merits review in the Administrative Appeals Tribunal, allied with the possibility of further appeal under s. 44 of the Administrative Appeals Tribunal Act, provides ‘adequate’ alternative remedies in the relevant sense, and courts should generally decline judicial review when these remedies are available. The most significant exception to this approach would be when a question of law is in serious dispute and it is apparent that any decision made by the tribunal on that question would probably be subject to appeal. Such circumstances would usually be dealt with under s. 45 of the Administrative Appeals Tribunal Act. In short, the current situation seems adequate and appropriate. The view taken by the Administrative Review Council in its submission to the Senate Legal and Constitutional Committee’s Inquiry into Migration Legislation Amendment in January 1998 (quoted in paragraph 6.75 of the discussion paper) seems entirely appropriate.
Without making a detailed point-for-point comparison, it appears that the tax and workplace relations schemes described in the discussion paper provide adequate functional alternatives for normal merits and judicial review. More detailed consideration would be required to reach a final conclusion, but it is tentatively suggested here that nothing in the nature of these regimes makes them unique. Similar regimes could in theory be considered for other areas of administrative decision making. This would, however, have the substantial disadvantage of introducing further complexity into the system of merits and judicial review for Commonwealth administration and as a result might not be in the public interest so far as accessibility of justice is concerned. Consequently, such a suggestion should be viewed with caution. This is one area—the availability of review—in which consistency is clearly desirable.
There are good policy reasons for limiting judicial review in the criminal justice system, so as to avoid fragmenting the process. This view is subject to the availability of adequate alternative remedies. Appeals to independent courts are, of course, a feature of the criminal justice system. The views expressed in the discussion paper (paragraph 5.145) on this point seem appropriate.
The foregoing comments make it apparent that, except in quite limited circumstances, the author does not favour additional legislative attempts to limit the scope of judicial review. For example, the author does not support further attempts to include privative clauses in Commonwealth legislation, since these clauses not only attempt to deny rights that should be accorded in a society that respects the rule of law but are also difficult and complex in their interpretation and certain to lead to additional litigation as a result.
The discussion paper suggests (paragraph 7.28) that legislative attempts to limit review should ‘focus on the ambit of the power conferred, rather than on the extent to which a court is precluded from examining an exercise of power’. That said, it is reiterated that a desire to avoid the inconvenience of review is a poor reason for reconfiguring statutory discretions.
Discretions should be neither broadened nor narrowed with an eye to limiting judicial scrutiny. They should be drafted to confer the level of discretion most appropriate to the administrative or regulatory task at hand. Over-emphasis on defensive drafting would probably limit the effectiveness with which that task is carried out and, paradoxically, lead to more review.
Judicial review is better avoided by the making of high-quality, fair, lawful and reasonable decisions. Where this standard is not achieved, judicial review not only serves individual justice but also provides a useful corrective and feedback mechanism for the executive. Legislatures should be careful to avoid ‘shooting the messenger’ in such instances.
As the discussion paper acknowledges, there will be rare instances where it can safely be said that a procedural irregularity will have had no impact on the outcome of a decision-making process and/or will have resulted in no injustice. In these circumstances the judicial discretion to refuse relief is well established. The views expressed about this in the discussion paper seem to be soundly based. To the extent that this outcome of the administrative process turns on a question of law that must be decided against the applicant, it may be appropriate for the courts to refuse relief. If, however, it is the facts that appear against the applicant, procedural irregularities might have resulted in an imperfect assessment of those facts and the matter should normally be remitted for a new decision.
In general, situations where the decision could not have been affected by the breach are difficult to foresee in advance and so are best left for judicial determination. Particular care should be taken by courts in reaching this conclusion where it appears that it might require them to descend to the merits of the administrative decision in question.
It is argued that there is little reason for decreasing the scope of judicial review, given the range of judicial and legislative devices already in existence. The availability of an adequate alternative remedial structure provides the best rationale for such restriction, preserving as it does the constitutional role of the courts as the final, independent arbiters of legality.
In some respects it is arguable that the scope of judicial review should be increased rather than decreased. In particular, the standing rules deserve legislative rationalisation, and it is appropriate that outsourced service providers remain fully accountable to the courts and the public. In this, the positions previously taken by the Australian Law Reform Commission and the Administrative Review Council in earlier reports[4] should be endorsed and deserve reconsideration by government.
It is notable that there are three Commonwealth avenues for review—provided by s. 75(v) of the Constitution, the Administrative Decisions (Judicial Review) Act 1977, and s. 39B of the Judiciary Act 1903. In addition, there are statutory appeals on a question of law, as well as statute-specific schemes such as the taxation and workplace relations schemes discussed in the discussion paper. Some degree of rationalisation might be possible. This could be a matter for the Council to consider in the future, if not in the context of this particular inquiry.
Perhaps the time has come for a substantial updating of the Administrative Decisions (Judicial Review) Act, such that it ‘covers the field’. Is there still any valid rationale for excluding from review ‘legislative’ decisions, such as the making of regulations, or decision-making powers formally conferred on the Governor-General? And what of the numerous and ad hoc exclusions from review (and the right to obtain reasons) that have accumulated over the years in the Act’s schedules? It may be that a broader scope for judicial review—with the elimination of unnecessary technical restrictions on access—would best serve fair and rational government administration and the Australian community.
[∗] Senior Lecturer in Law, University of Adelaide.
[1] Australian Law Reform Commission 1996, Beyond the Door-keeper: standing to sue for public remedies, Report no. 78, ALRC, Sydney.
[2] Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17.
[3] Plaintiff S157 of 2002 v The Commonwealth [2003] HCA 2.
[4] Australian Law Reform Commission 1996, Beyond the Door-keeper: standing to sue for public remedies, Report no. 78, ALRC, Sydney; Administrative Review Council 1998, The Contracting Out of Government Services, Report no. 42, ARC, Canberra.
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URL: http://www.austlii.edu.au/au/journals/AdminRw/2004/2.html