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Martin, Wayne --- "The 30th Anniversary: Judicial Review In Western Australia" [2007] AdminRw 9; (2007) 58 Admin Review 55


The 30th anniversary: judicial review in Western Australia

The Hon. Chief Justice Wayne Martin[*]

Supreme Court of Western Australia

There have been significant reforms in Western Australia over the last two decades in the area of administrative law, one of the earliest being the Freedom of Information Act 1992 and most recently the establishment of the State Administrative Tribunal under the State Administrative Tribunal Act 2004. At the same time, there is another very significant development in train—the enactment of legislation dealing with judicial review. In moving the third reading of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003, the Attorney-General for Western Australia, the Hon. Jim McGinty, commented:

The Government intends that administrative law be substantially overhauled during this term of government. This is the first of many initiatives we will be taking in this area. We will be bringing in legislation … to implement the second leg of that reform, which is the judicial review of administrative decisions legislation, that will hopefully significantly simplify these historic prerogative writs that are usually used as the means of effecting judicial review …[1]

That legislation was recently provided to me as a substantially developed draft for my comment. It is clear from its content that it has substantially adopted the recommendations of the Law Reform Commission of Western Australia report no. 95, Judicial Review of Administrative Decisions (2002). As appears from that report,[2] although at the time of its release I was no longer Chairman of the Commission, I had enjoyed some significant degree of involvement in the development of the report and its recommendations.

Underlining the report’s recommendations was the proposition that the reform should substantially follow the provisions of the Commonwealth’s Administrative Decisions (Judicial Review) Act 1977 (recommendation 7, p 26).[3] This certainly reflects the impact which that legislation has had as a legislative model in the field of administrative law. It has already been substantially adopted[4] in the Australian Capital Territory[5], Queensland[6] and Tasmania.[7] While the Judicial Review Bill implements the recommendation of the Commission in substantially following the ADJR Act, it is not at present proposed in Western Australia to adopt a provision in terms of s 16 of the Judicial Review Act 1991 (Qld), that where a provision appears to express the same idea as a provision of the ADJR Act but in different words (because of different legislative drafting practice), the ideas are not taken to be different merely because of that difference in expression.

Substantive reforms

The ADJR Act implemented reforms of both a substantive and a procedural nature. One of the first issues for the Commission in developing its report was to consider whether its recommendations supporting the substantial adoption of the ADJR Act should encompass its reform of the substantive law as well as its merely procedural elements. Adopting its reform of the substantive law effectively codifies the grounds of review.

The charge has been laid that this codification has stultified the development of the common law.[8] At the time of its report, the Commission noted that an argument against statutory specification of the grounds of review might be that such codification might stifle the development of the law (p. 23). However, the Commission pointed to the generality of the language which has been used in the ADJR Act and, in particular, by way of example, to the statutory ground of review ‘that a breach of the rules of natural justice has occurred’ (s 5(1)(a)). It noted that, as the Act does not define what the rules of natural justice are, their ambit and content are left to be filled by the general law as enunciated by the courts from time to time. In the Commission’s view this suggested ample scope for judicial development of the substantive law relating to natural justice within the statutory ground of review.

The charge appears to be that this ample scope for ongoing development in the common law identified by the Commission has not, however, been explored as a consequence of a focus upon—perhaps a fascination with—the ADJR Act. In similar vein, Dr Caron Beaton‑Wells has recently noted that the catch-all grounds under s 5(1)(j) (‘that the decision was contrary to law’) and under s 5(1)(e) and 5(2)(j) (‘any other exercise of power in a way that constitutes abuse of the power’) ‘have hardly been used’.[9]

Noting the development of the common law in England, Justice Kirby in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs[10] concluded:

To some extent the development of the common law of judicial review in Australia was retarded by the enactment of the ADJR Act in 1977. That Act sought to codify the grounds of review in the federal context. The effects of the ADJR Act were overwhelmingly beneficial and review of federal administrative action was more commonly pursued under that Act than had been the case under the earlier common law. However, in areas where the ADJR Act or the common law are, for whatever reason, inapplicable or no longer available, the rules governing the provision of the constitutional writs, and their relationship to the larger common law developments in administrative review, assume a greater significance. (para 157)

And, after reviewing developments in administrative law in the United Kingdom, his Honour went on:

The common law in Australia might have developed along similar lines. However, it was at about the time of Lord Wilberforce’s exposition in Tameside [1976] UKHL 6; [1977] AC 1014] that the ADJR Act was enacted in relation to federal administrative decisions. The somewhat arrested development of Australian common law doctrine that followed reflects the large impact of the federal legislation on the direction and content of Australian administrative law more generally. (para 166)

The Commission made two recommendations which it hoped would remove any such possibility of stultification in the Western Australian context.

The first recommendation was to include in the judicial review legislation statutory provision for a ground of review intended to embrace any development in the non-statutory grounds of review (recommendation 9, p 27). This recommendation does not appear to be explicitly addressed in the Bill. Section 5(1)(j) of the ADJR Act (‘that the decision was otherwise contrary to law’), which is replicated in the Bill, is arguably broad enough to have already had the desired result but has failed to save the ADJR Act from the charge of stultification.

However, the second recommendation of the Commission was to include a provision for the granting of any remedy that would have been available if the reforms that not been instituted (recommendation 6, p 25). The Bill adopts this recommendation through a provision in the clause which abolishes the prerogative writs other than habeas corpus (see below), providing that an order for review may be granted on any ground that would have justified the grant of prerogative relief.

This may address any potential for stultification in Western Australia. However, more fundamentally, Professor Aronson has responded to the charge—rightly, in my view—arguing that it is not valid to retard a statutory scheme for fear that its success might retard the common law.[11] The debate between statutory codifiers and common lawyers is, of course, not new. It has occurred in many legal contexts—the sale of goods, criminal law and corporations law, to mention just some. Administrative law does not appear to offer any exceptional or unique features to the arguments.

There are three substantial arguments, noted by the Commission,[12] in favour of extending the proposed reforms beyond mere procedure to embrace the substantive law governing judicial review:

• It removes deficiencies in the existing law, the example provided by the Commission being the requirement that the relevant error of law be demonstrated by reference only to the face of ‘the record’ for the purposes of some forms of relief.[13]

• There is a general educative and instructive benefit of statutory prescription in providing both decision makers and persons affected by administrative decisions with a clear statement of the grounds which might be relied upon to seek a review of administrative decisions. As Kirby J observed in S20, this has probably been a factor in the explosion of judicial review in the Federal Courts.[14]

• The adoption of the substantive law reforms of the ADJR Act facilitates harmonisation of state and Commonwealth law, one consequence of which is to pick up in a state context the substantial body of jurisprudence which has already been and continues to be developed under the ADJR Act. Such harmonisation offers the opportunity to provide greater clarity in the operation of the legislation and reduce the necessity for protracted litigation to obtain that clarity.

While there has been debate, perhaps somewhat enervated, about repealing the ADJR Act,[15] on the whole, the legislation continues to be supported,[16] albeit with growing calls for recognition and reform of its jurisdictional shortcomings, some of which are addressed in the Western Australian Bill, as I report below.

A right to reasons

One of the most significant and enduring[17] of the reforms arising from the ADJR Act has been the conferral of a right to reasons. At the time of the Commission’s report, there was in Western Australia no common law duty[18] or general statutory obligation on an administrative decision maker to give reasons when she or he made a decision. Section 21 of the State Administrative Tribunal Act 2004 now entitles a person to request the maker of a decision reviewable by the Tribunal to provide a written statement of the reasons for the decision. The Tribunal has jurisdiction to review a significant range of decisions on their merits. Complementing such a reform in the context of judicial review, recommendation 28 of the Commission was to adopt and reiterate its recommendations in its 1986 report[19] with respect to the creation of a general entitlement to reasons for decisions and as to the classes and categories of decisions to which the obligation to provide reasons ought not to apply (p 37). This is being implemented in the Judicial Review Bill.[20]

The requirement that the decision be ‘under an enactment’

There has been longstanding criticism of the limitation of the operation of the ADJR Act to ‘decisions under an enactment’.[21] The common law is not so restricted.[22] It has been rightly commented that it is difficult to justify this restriction.[23] Indeed, the Administrative Review Council has consistently suggested reform in this area. In 1989, in Review of the Administrative Decisions (Judicial Review) Act: the ambit of the Act (Report no. 32), the ARC included a recommendation that the ambit of the Act be extended to certain non-statutory decisions made by Commonwealth officers, being decisions ‘under a non-statutory scheme or program the funds for which are authorised by an appropriation made by the Parliament for the purpose of that scheme or program’. [24] It repeated that recommendation in its 1998 report The Contracting Out of Government Services (Report no. 42).[25] This reform was embodied in the Judicial Review Act 1991 (Qld).[26]

While the Commission considered that the removal of any jurisdictional limitation with reference to decisions under an enactment might open the application of judicial review uncomfortably wide,[27] it endorsed the ARC’s approach, reflected in the Queensland legislation, recommending that the ambit of the statutory remedy should extend to decisions or conduct of an administrative character made under or pursuant to Western Australian legislation or to decisions of officers or employees of the state or a local government authority involving public funds (recommendation 10, p 28).

It has been suggested that the ARC has been over-anxious in its concerns about removing any jurisdictional limitation with reference to decisions under an enactment; that fears about thereby exposing to judicial review matters such as purchasing, staffing and property management decisions ignore that the ADJR Act is premised on the applicant identifying an excess of power and in such cases ‘decision-makers unconstrained by statute are rarely likely to exceed their power, unless it be in breach of a duty to accord natural justice, and even there the duty is not likely to have much content’.[28]

The approach taken in the Judicial Review Bill goes further than that recommended by the Commission, removing any jurisdictional limitation with reference to decisions under an enactment and requiring merely that the decision be that of an administrative character of an officer, employee or consultant engaged by the state, a minister of the state, a local government, or a judicial officer. Thus, in Western Australia, the approach taken will define the ambit of the Act by reference to the identity of the decision maker, rather than the source of the power. Upon reflection, it seems unnecessarily restrictive to require that a non‑statutory decision involve the expenditure of public funds to be reviewable under the statute, and the Bill does not impose such a restriction.

Decisions of an administrative character

The restriction of the ADJR Act to decisions ‘of an administrative character’ has also been the subject of repeated criticism over the life of the Act. It is true that the generality of expression used in the imposition of this restriction has very occasionally given rise to litigious controversy. It is also true that the consequence of the restriction is to consign those who wish to challenge decisions of a legislative or judicial character for want of jurisdiction to prerogative or equitable remedies, with their less satisfactory procedures.

However, removal of this restriction would be a significant departure from the scope of the federal legislation, detracting significantly from the ambition of federal–state harmony. It would require the grounds of review to be carefully reviewed to assess the extent to which they were appropriately available in the review of decisions of a legislative or judicial character. This was not a course recommended by the Commission; nor is this approach taken in the Bill, which is restricted to decisions of an administrative character.

Privatisation of decision making

The common law of judicial review addresses control of government activity, leaving, as a matter of policy, commercial activity to be regulated in a different environment. Increasingly, however, government functions have been hybridised, with the result, recognised by the Commission, that conflicting policy considerations arise in considering whether such activities should be subject to judicial review:

On the one hand, the availability of the statutory remedy in respect of such agencies could be said to put them at a significant commercial disadvantage in their competitive activities by subjecting them to a possible burden to which their private enterprise competitors are not subject. On the other hand, some GBEs [government business enterprises] provide services in monopoly or near monopoly conditions, in circumstances in which the non-provision of those services can have very important consequences for an individual. In certain circumstances, such individuals should have access to the courts if the agency acts unlawfully.[29]

These conflicting considerations have been recognised by the ARC. In its 1995 report Government Business Enterprises and Commonwealth Administrative Law (Report no. 38),[30] the ARC concluded that Commonwealth administrative law statutes should ordinarily apply to bodies that are government-controlled, including government business enterprises, although GBEs should be exempt from the operation of those statutes in relation to their commercial activities undertaken in a market where there is real competition. While the Commission was of the view that it would not be desirable to state a single or inflexible rule in relation to the applicability of the statutory remedy to such bodies,[31] it suggested that the preferable approach would be to consider particular enterprises for exclusion from the operation of the Act by way of a schedule to the Act, on a case-by-case basis.[32]

Because the Bill defines its ambit of operation by reference to the identity of the decision maker, rather than the source of the power to make the decision, the effect is to encompass decision making by officers of GBEs. The Bill will extend to decisions of state government bodies (and their officers, employees and consultants), defined in clause 3 to include bodies (whether or not incorporated) and offices established for a public purpose by a written law, as well as bodies and offices established by the Governor or a minister. Exemptions of particular bodies can then be specified in a schedule to the Act where appropriate.

While the Western Australian approach will be broader than that yet taken in any other jurisdiction, it does not address the situation of private sector bodies exercising public functions.[33] This possible area of extension of judicial review was highlighted by the decision of the High Court in NEAT Domestic Trading Pty Ltd v AWB Ltd,[34] handed down the year after the Commission’s report. While Professor Allars has commented that ‘given the unusual statutory scheme considered in NEAT, it may prove to be an isolated authority, quickly forgotten’,[35] the decision has also been described as having ‘the alarming consequence that the Commonwealth may successfully insulate itself from legal, and even political, accountability’.[36] Reflecting considerations not dissimilar to those expressed by the Commission in the context of GBEs, the ARC concluded in its recent report The Scope of Judicial Review that a decision made by a private body but given statutory effect ought in principle to be subject to judicial review, although specific activities could be excluded from review on a case-by-case basis if it was probable that the availability of public law remedies would thwart the proper delivery of services.[37]

Although it is not reflected in the current draft of the Bill, I consider there may be some merit in considering, by analogy to the approach taken by the ARC, whether judicial review should include review of a decision of an administrative character made by a person other than an officer of the state where both the following criteria apply:

• The decision is given authoritative effect for the purposes of a decision made by an officer of the state.

• Review of the latter decision could not, in the absence of review of the former decision, lead to the latter decision being set aside by the court.[38]

As proposed by the ARC, specific activities could be excluded from review on a case-by-case basis if it was probable that the availability of public law remedies would thwart the proper delivery of services.

Professor Aronson’s resolution of the difficulties flowing from increasing government outsourcing and privatisation of government functions would be to replace ‘decisions under an enactment’ with ‘decisions, conduct, acts or omissions in breach of Commonwealth law imposing restraints on or requirements for the exercise of public power’.[39] A similar recommendation has been made by Dr Caron Beaton-Wells.[40] It is an approach consistent with developing trends in the United Kingdom, suggesting a focus on the nature of the power being exercised rather than on its derivation or the status of the person exercising it.[41] It is also consistent with the approach adopted in South Africa’s Promotion of Administrative Justice Act 2000.[42] Despite the eminence of these views, I would not favour that approach in the Judicial Review Bill. In my view, the notion of ‘public power’ unnecessarily raises ambiguities sufficiently addressed by a more mechanistic approach. Those ambiguities and uncertainties would be likely to produce more contentious litigation concerning the ambit of the Act than is presently justified by the relative rarity of reposing governmental decisions in private hands.

Vice-regal exclusion

Under the ADJR Act, decisions of the Governor-General are not open to review.[43] Again, the ARC has suggested reform in this area, in 1989 recommending the removal of this limitation,[44] a reform now embodied in the Judicial Review Act 1991 (Qld)[45] and the Judicial Review Act 2000 (Tas).[46] Nor does vice-regal immunity still exist at common law.[47] Given this ‘anomaly’[48] in the ADJR Act, the Commission suggested that it probably reflected what was perceived to be the law prior to the decision of the High Court in FAI Insurances Ltd v Winneke.[49] Of course, that is no longer the general law of Australia, as enunciated by the High Court in that decision.

The Commission added the following observation in a state context:

The non-applicability of the statutory remedy in a state context to the decisions of the Governor would overlook the fact that decisions of the Governor made on matters of administration are, by constitutional convention, made upon the advice of the responsible Minister. This convention means that such decisions of the Governor are, in a very real and practical sense, regarded as the decision of the responsible Minister. (p 28)

The Commission recommended that the statutory remedy apply to the decisions of the Governor and that, in relation to requests for reasons for such a decision, or proceedings for judicial review, the appropriate respondent should be the minister responsible for the relevant area of administration (recommendation 11, p 28). The Judicial Review Bill has given effect to both elements of this recommendation.

Decisions must be final in nature

In its 2006 report The Scope of Judicial Review (Report no. 47) the ARC referred to the ‘vexed question’[50] of whether judicial review should extend to the preliminary steps and conduct leading to the making of a final decision. The ARC summed up the competing concerns succinctly:

If every step in the administrative process is separately reviewable, there is a danger that efficient decision making will be hampered and fragmented. On the other hand, the integrity of the administrative process can hinge on whether the preliminary steps in that process have been undertaken lawfully. (para 5.2.7)

To some extent, the ADJR Act makes provision addressing the necessary balance. It provides for an application for an order of review in respect of both a ‘decision’ (s 5) and ‘conduct for the purpose of making a decision’ (s 6). However, the majority approach of the High Court in Australian Broadcasting Tribunal v Bond:[51]

• adopting a narrow meaning of ‘decision’ as extending only to a final or operative and determinative, substantive determination, unless ‘the statute provides for the making of a finding or ruling on a point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment’

and

• emphasising that ‘conduct’ ‘looks to the way in which the proceedings have been conducted … rather than decisions made along the way with a view to the making of a final determination’

left many intermediate decisions as neither ‘decisions’ nor ‘conduct’ and unreviewable under the ADJR Act.

The ARC, in its report The Scope of Judicial Review, refers to ‘the difficulty of applying these concepts in a complex statutory setting where numerous steps are involved in making and implementing a decision’.[52] It did not consider the solution to be to attempt to develop some detailed principle about steps in the administrative process amenable to judicial review.[53] The Commission similarly saw risks in any attempt to modify the concept of ‘decision’ under the ADJR Act to resolve these difficulties.[54] Rather, both perceived the best resolution to lie in the exercise by the court of its discretion to dismiss an application and thereby ensure that proceedings are not initiated prematurely or for a spurious or ulterior reason.[55] In particular, it has been suggested that s 14 of the Judicial Review Act 1991 (Qld), which is also being implemented in the Judicial Review Bill 2006, ‘addresses more directly the real mischief the High Court had in mind’.[56] Section 14 provides that where the reviewable matter has been made or engaged in by a tribunal, authority or person in the course of a proceeding and:

(c) the court considers that it is desirable to dismiss the application in order to avoid interference with the due and orderly conduct of the initial proceeding because, in all the circumstances, the balance of convenience (including the interests of the applicant, another party or another person, the public interest and the consequences of delay in the initial proceeding) so requires;

the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so.

The Commission went further in its recommendations. Motivated by the concern that much of the damage associated with an adverse decision made by a decision maker arises at an earlier stage of the process than the final decision, it suggested that if ‘conduct’ was statutorily defined to include recommendatory decisions made as necessary steps towards the making of a final decision then the potential applicant’s interests may be protected before the final decision is made, although it noted that this would only be practical if the discretion to refuse relief is included in the reforms. [57] Its recommendation to this effect (recommendation 12) has not been given effect in the Bill. However, such a development is not pressing. Indeed, the ARC, in its report The Scope of Judicial Review, cites a number of cases where there has been judicial review under the ADJR Act in respect of statutory steps occurring before the culmination of the administrative process.[58]

Time for commencement of proceedings

The ADJR Act makes general provision for application for an order for review to be brought within 28 days of the decision being furnished to the applicant.[59] The Commission did not support this approach.[60] It was strongly of the view that the period of 28 days specified under the Commonwealth and Queensland Acts is too short and generally has the consequence of necessitating applications for extension of time, which consume limited judicial resources.[61] The Commission recognised that while the specification of strict limitation periods for the commencement of proceedings has the capacity to create injustice, delay in the commencement of proceedings can equally be a source of injustice. It considered that the best balance between these competing considerations was not to impose an arbitrary and inflexible time limit but to prescribe a merely presumptive time limit capable of judicial extension in an appropriate case.

It recommended that proceedings for judicial review be commenced as soon as reasonably practicable and in any event within six months of notification of the decision under review, with the proviso that the court may extend that period if satisfied that such an extension would not be likely to cause substantial hardship to any person or substantially prejudice the rights of any person or be detrimental to good administration (recommendation 15, p 31).[62] Conversely, it recommended that if the proceedings are not commenced as soon as reasonably practicable there should be power in the court to dismiss the proceedings, even if brought within six months, if the court is satisfied that the delay in commencement of proceedings would be likely to cause substantial hardship to any person or substantially prejudice the rights of any person or be detrimental to good administration (recommendation 16, pp 31–2).

These recommendations have been implemented in the Bill.

Standing to commence proceedings

The Commission gave particular consideration to the comprehensive review of the law relating to standing to commence proceedings by the Australian Law Reform Commission in its report Standing in Public Interest Litigation.[63] It saw considerable force in the arguments advanced by the ALRC to the effect that limiting the right to commence proceedings to persons whose interests are affected might produce an unsatisfactory constraint upon review. The Commission gave the example of an administrative decision which affects the entire community but does not affect any person or group of persons within that community to any greater extent than any other. It noted that in such a case that decision can be placed effectively beyond legal challenge unless the Attorney-General is prepared to grant his or her fiat to enable proceedings to be brought in his or her name (a relator action). The Commission agreed with the ALRC’s view that the availability of a relator action is not an adequate protection of the public interest in the lawfulness of administrative action which may have a profound effect upon the community as a whole, particularly in circumstances where it is a decision of the government that is being challenged, with a consequent political inhibition upon the grant of the necessary fiat.[64]

The Commission recommended a ‘small departure’ from the language of the ADJR Act, to the effect that, although a person’s interests are not affected by the conduct or decision under review, he or she should have the power to commence or continue proceedings under the proposed statutory remedy with the leave of the court, to be granted if the court is satisfied that it is in the public interest for the proceedings to be commenced or continued (recommendation 18, p 32) Rather than attempt to specify in the legislation the aspects of the public interest which might justify the grant of such leave, the Commission favoured leaving the issue in the general discretion of the court (p 32).

This recommendation has been given effect in the Bill.

Discretionary refusal of relief

In its 1986 report Review of the Administrative Decisions (Judicial Review) Act 1977: stage 1[65] the ARC recommended that the Federal Court be given a general discretion in appropriate circumstances to refuse relief and to dismiss proceedings prior to their conclusion. Although not implemented at the Commonwealth level, this has been embodied in the Judicial Review Act 1991 (Qld) s 48. The Commission also supported such a discretion as a means of preventing the use of judicial review as a ‘tactic of frustration’ in a decision-making process and limiting the potential for meddling by an applicant with an insufficient interest in a decision (p 35). It suggested that ‘appropriate circumstances’ could, for example, include where there are other avenues of redress available to the applicant (p 35).

This recommendation has been implemented in the Bill.

The Commission also supported the recommendation made in a number of jurisdictions that there be an express power to refuse relief in the event that the only ground established is one of form or technicality that has not resulted in substantial prejudice to the applicant for review.[66]

This recommendation has been implemented in the Bill.

Costs

Other than in respect of intervention in proceedings by the Attorney- General,[67] the ADJR Act makes no provision as to costs. The Commission was of the view that established principles relating to costs should apply equally to proceedings for judicial review, although with some refinement in recognition of the public aspect of such litigation.[68] It was attracted to the approach adopted in Queensland.[69] In particular, s 49(1)(e) of the Judicial Review Act 1991 (Qld) provides that on a costs application the court may order that each party is to bear only their own costs of the proceeding, regardless of its outcome. In the second reading speech on the Queensland legislation, the Hon. DM Wells MP observed that s 49 ‘will assist less wealthy parties who have a meritorious case but are afraid of losing the application and therefore paying the legal costs of both parties to the proceeding’.[70] The Commission’s recommendation (recommendation 26, p 35) that the legislation should contain provisions relating to the costs of proceedings which are essentially the same as those adopted in the Judicial Review Act 1991 (Qld) (p 35) is being implemented in the Bill.

However, it is interesting to note that the Queensland Legal, Constitutional and Administrative Review Committee, in its 2005 discussion paper The Accessibility of Administrative Justice, concluded that s 49 orders have rarely been made and, when made, the approach of the Supreme Court has been to construe the provision narrowly. [71]

Abolition of prerogative writs

As in Tasmania[72] (but unlike the approach adopted in Queensland, where the older common law procedures have survived, albeit subject to procedural reforms), it is proposed in Western Australia to give effect to recommendation 3 (p. 25) of the Commission to abolish the writs of mandamus, certiorari, prohibition and quo warranto (although not the writ of habeas corpus).

This recommendation proved to be one of the more controversial aspects of the Commission’s report and has been the subject of criticism by commentators on the ground that abolition of the prerogative writs could conceivably leave persons without remedy. There may well be some force in that criticism. The Act will identify by way of schedule the class of decisions not ‘decisions to which the Act applies’. In respect of such decisions, judicial review under the Act will of course not be available. With the abolition of the prerogative remedies other than habeas corpus, persons aggrieved by such decisions would need to seek the equitable remedies of injunction and declaration in order to obtain judicial review. This may be undesirable. Perhaps a better approach would be to retain the availability of prerogative remedies in respect of decisions to which the Act does not apply.

Interim relief and interlocutory procedures

The Commission considered there was no good reason why the general powers of the court with respect to the preservation and protection of the rights and interests of parties to litigation by way of interim orders should not extend to proceedings for judicial review under the statute (recommendation 20, p 33). This recommendation has not been given express recognition in the Bill but is arguably available in the inherent jurisdiction of the court.

The Commission similarly considered that there was no good reason why the usual interlocutory procedures such as interrogatories and discovery should not apply with respect to applications for judicial review (recommendation 21, p 33). The Bill makes no specific provision in respect of either of these recommendations but probably does not need to.

Declaratory and injunctive relief

The Commission recommended (recommendation 4) that there be included a statutory provision requiring the court to refuse declaratory or injunctive relief unless satisfied that the proceedings could not have been brought by way of the statutory remedy or that bringing the proceedings by way of the statutory remedy would not have been a reasonable course to follow (p 25). This issue is addressed in the Bill by giving the court a power to dismiss proceedings brought otherwise than by way of application under the Act, but without reversing the onus in relation to the exercise of that power in the manner recommended by the Commission.

The Commission also recommended (recommendation 5) that the procedures for invoking declaratory and injunctive relief be reformed to conform as closely as possible to the procedures applying to the statutory remedy (p 25). This is not specifically addressed in the Bill, perhaps because of a reasonable view that it is best achieved by rules of court dealing with the procedure for the grant of equitable relief in administrative law cases.

The State Administrative Tribunal

At the time of the Commission’s report, the creation of the State Administrative Tribunal had been announced but the necessary legislation had not been enacted. In that context, the Commission addressed the question of whether the proposed new tribunal should be subject to any statutory process of judicial review. The competing considerations were expressed by the Commission in the following terms:

On the one hand, SAT should be subject to the same legal obligations as any other administrative body. On the other hand, it would be undesirable for any general statutory remedy to cut across any specific mechanism for judicial review created by the SAT Act itself—such as that recommended by the taskforce on the establishment of SAT, namely, a right of appeal to the Supreme Court on questions of law, subject to the grant of leave of the Court.

The legislation creating the tribunal has conferred a right of appeal corresponding to the recommendations of the taskforce—that is, a right of appeal on questions of law, subject to the grant of the leave of the court.

The Commission’s view was that, provided its recommendations in respect of the conferral of a discretionary power upon the court to refuse or entertain an application for relief are adopted, the possibility of problems arising from overlapping remedies (that is, judicial review and appeal) would be greatly reduced. In the Commission’s view, the conferral of a right of appeal would be sufficient in many cases to justify the exercise of a discretion to dismiss an application for judicial review.

The Commission’s expectations in this regard have been vindicated by a recent decision of the Western Australian Court of Appeal dealing with an application for the grant of a prerogative relief against the State Administrative Tribunal.[73] In that case, the court[74] held that the State Administrative Tribunal was to be regarded as an ‘anomalous Tribunal analogous to a Court’ for the purposes of the application of the doctrine of jurisdictional error enunciated in Craig v State of South Australia.[75] Accordingly, the court held that, although the tribunal had made a number of errors of law because it had jurisdiction to determine questions of law, they were not errors of a kind which justified the grant of certiorari. However, more significantly for present purposes, the court went on to hold that, even if grounds for certiorari had been made out, the court would nevertheless have exercised its discretion to refuse relief because of an unexplained failure to exercise the avenue of appeal provided by the State Administrative Tribunal Act.

Summary

Until recently Western Australia could fairly be described as lagging behind in the reform and development of administrative law. Although legislation creating an ombudsman and providing freedom of information was enacted at about the same time as other jurisdictions, notwithstanding many reports and recommendations over many years there had been no substantive change to the arrangements for either merits review or judicial review.

The creation of the State Administrative Tribunal on 1 January 2005 has provided Western Australia with arrangements for merits review which are at least as satisfactory as in any other jurisdiction, being comparable with those which exist in Victoria and federally. If and when the Judicial Review Bill is enacted, the arrangements for judicial review in Western Australia will be at least as advanced as in any other comparable jurisdiction, including notably Queensland and Tasmania. And Western Australia will be the only non-federal jurisdiction to have fully developed and advanced mechanisms for both merits and judicial review. Further, its judicial review legislation will in many respects copy, but in some respects advance from, the Commonwealth legislation.

Although the final terms of the proposed Bill have not yet been publicly exposed, assuming the Bill proceeds largely in the form of its current draft, it will represent a significant improvement in the avenues available to the people of Western Australia to obtain reasons for and judicial review of administrative decisions.


[*] Wayne Martin was President of the Administrative Review Council from 2001 to 2005 and a member from 1997 to 2000. He acknowledges his indebtedness to Dr Philip Jamieson for his very considerable assistance in the preparation of this paper.

[1] At <http://www.parliament.wa.gov.au/hansard/hans35.nsf/NFS/ ec40a4d04c9dbc4948256d8d002d4f01?OpenDocument&highlight=0,judicial%20review>, viewed 5 September 2006.

[2] In the acknowledgments section.

[3] See also recommendation 8, that the grounds of review (to be specified in the proposed Act) should follow as closely as possible the terminology used in the ADJR Act (p 27) (being implemented by clauses 17–19); and recommendation 22, that the powers of the court in conducting judicial review under the remedy proposed should be the same as those conferred on the Federal Court conducting a review pursuant to the terms of the ADJR Act (p 34) (being implemented in clause 26). Related to this is recommendation 27, that jurisdiction to conduct judicial review proceedings should be vested in the Supreme Court of Western Australia (p 36) (being implemented in clause 16).

[4] A comparative discussion of the statutory developments in Queensland, Tasmania, Victoria and the Australian Capital Territory, with reference to the ADJR Act, appears in Aronson, M et al. 2004, Judicial Review of Administrative Action, 3rd edn, Lawbook Company, Sydney, pp 19ff.

[5] Administrative Decisions (Judicial Review) Act 1989.

[6] Judicial Review Act 1991.

[7] Judicial Review Act 2000.

[8] See discussion of Justice Kirby’s charge in Aronson, MI 2005, ‘Is the ADJR Act hampering the development of Australian administrative law?’ Australian Journal of Administrative Law, vol. 12, no. 2, pp 79–97 at 80–1, 91ff; Griffiths, J 2005, ‘Commentary on Professor Aronson’s article “Is the ADJR Act hampering the development of Australian administrative law?”’ Australian Journal of Administrative Law, vol. 18, no. 2, pp 98–102; Beaton-Wells, C 2005, ‘Australia’s ADJR Act: reform or repeal?’ Paper presented at Administrative Law Forum, Canberra, 30 June – 1 July, pp 18–19.

[9] Beaton-Wells, C 2005, op. cit., p 17.

[10] (2003) 198 ALR 59; (2003) 77 ALJR 1165; [2003] HCA 30 at pars 157, 166.

[11] Aronson, MI 2005, op. cit. p 92.

[12] At pp 22–23.

[13] Procedural and remedial simplifications are discussed in, for example, Beaton-Wells, C 2005, op. cit., pp 13–16.

[14] Discussed in, for example, ibid., p 16, referring to the educative benefits of codification.

[15] ibid., esp. p 25.

[16] On which, see, Aronson, MI 2005, op. cit., esp. pp 90–1; Beaton-Wells, C 2005, op. cit., pp 13ff; Griffiths, J 2005, op. cit., pp 100–1; Robertson, A 2003, ‘The administrative law jurisdiction of the Federal Court: is the ADJ(JR) Act still important?’ Australian Bar Review, vol. 24, p 89 at 101.

[17] See Robertson, A 2003, op. cit., esp. p 101.

[18] Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.

[19] Law Reform Commission of Western Australia 1986, Judicial Review of Administrative Decisions: procedural aspects and the right to reasons, Project no. 26(II), LRCWA, Perth.

[20] Note recommendation 29, that the obligation to provide reasons under the proposed legislation would not apply to entities which have an independent statutory obligation to provide reasons (p 38) (which is broadly implemented in clause 27(a)), and see ADJR Act s 13(11).

[21] Recently espoused in, for example, Aronson, M 2005, op. cit. pp 79–97; Beaton-Wells, C 2005, op. cit., pp 7ff. Horan, C 2003, ‘Judicial review of non-statutory executive powers’, Federal Law Review, vol. 31, no. 3, pp 551–72, discusses alternative possibilities federally for review of decisions of non-statutory executive powers. On the constitutional writs, see further Jackson, D 2004, ‘Development of judicial review in Australia over the last 10 years: the growth of the constitutional writs’, Australian Journal of Administrative Law, vol. 12, no. 1, pp 22–9; Williams, G 2004, ‘Commentary on “The growth of constitutional writs”’, Australian Journal of Administrative Law, vol. 12, no. 1, pp 30–4.

[22] Examples appear in Aronson, MI 2005, op. cit., pp 84–5.

[23] ibid., p 84.

[24] At 40–1. A Commonwealth-funded scheme not established by or under an enactment is not subject to the ADJR Act: Ex-Christmas Islanders Association Inc v Attorney-General [2005] FCA 1867; Barnett v Minister for Housing and Aged Care and/or Minister for Community Services and Health [1991] FCA 446; (1991) 31 FCR 400.

[25] At para. 6.43.

[26] See ss 4 and 9.

[27] At p 28 (fn 123).

[28] Aronson, M. et al. 2004, op. cit., p 79.

[29] At pp 29–30.

[30] At para 4.29.

[31] At p 30.

[32] ibid.

[33] See discussion of the issues in, for example, Finkelstein, R 2006, ‘Crossing the intersection: how courts are navigating the “public” and “private” in judicial review’, AIAL Forum, vol. 48, April, pp 1–11. To be contrasted with the exercise of a ‘private’ power by a public body: see Griffith University v Tang [2005] HCA 7; (2005) 213 ALR 724 and the associated body of literature; for example, Gangemi, M 2005, ‘Griffith University v Tang: review of university decisions made “under an enactment”’, Sydney Law Review, vol. 27, no. 3, pp 567–77; Hill, G 2005, ‘Griffith University v Tang: comparison with NEAT Domestic, and the relevance of constitutional factors’, AIAL Forum, vol. 47, December, pp 6–16; Mantziaris, C & McDonald, L 2006, ‘Federal judicial review jurisdiction after Griffith University v Tang’, Public Law Review, vol. 17, no. 1, pp 22–48; Stewart, D 2005, ‘Griffith University v Tang, “under an enactment” and limiting access to judicial review’, Federal Law Review, vol. 33, no. 3, pp 526–53; Stewart, D 2005, ‘Non-statutory review of private decisions by public bodies’, AIAL Forum, vol. 47, December, pp 17–32; Will, M 2005, ‘Judicial review of statutory authorities’ AIAL Forum, vol. 47, December, pp 1–5.

[34] [2003] HCA 35; (2003) 198 ALR 179. There is an extensive body of literature on this decision: see, for example, Buckland, A & Higgisson, J 2004, ‘Judicial review of decisions by private bodies’, AIAL Forum, vol. 42, July, pp 37–47; Conde, C 2005, ‘Accountability for the exercise of “public” power: a defence of NEAT Domestic’, AIAL Forum, vol. 46, July, pp 1–14; Hill, G 2004, ‘The Administrative Decisions (Judicial Review) Act and “under an enactment”: can NEAT Domestic be reconciled with Glasson?’, Australian Journal of Administrative Law, vol. 11, no. 3, pp 135–50; Mantziaris, C 2003, ‘A “wrong turn” on the public/private distinction: NEAT Domestic Trading Pty Ltd v AWB Ltd’, Public Law Review, vol. 14, no. 4, pp 197–201. A more general analysis appears in Gageler, S 2005, ‘The legitimate scope of judicial review: the prequel’, Australian Bar Review, vol. 26, no. 3, pp 303–12.

[35] Allars, M 2005, ‘Public administration in private hands’, Australian Journal of Administrative Law, vol. 12, no. 2, pp 126–47 at 145.

[36] Arora, N 2004, ‘Not so neat: non-statutory corporations and the reach of the Administrative Decisions (Judicial Review) Act 1977’, Federal Law Review, vol. 32, no.1, pp 141–61 at 160.

[37] At para 3.10.

[38] ibid.

[39] Aronson, MI 2005, op. cit., p 89.

[40] Beaton-Wells, C 2005, op. cit. esp. at p 6.

[41] Recognised, for example, by Beaton-Wells, C 2003, ‘Administrative law in South Africa: no longer a “dismal science”’, Public Law Review, vol. 14, no. 2, pp 85–108 at 97–8.

[42] See 1(1), with its emphasis on public powers and public functions.

[43] Under s 3 (definition of ‘decision to which this Act applies’).

[44] Administrative Review Council 1989, Review of the Administrative Decisions (Judicial Review) Act: the ambit of the Act, Report no. 32, ARC, Canberra, ch. 5.

[45] See s 53.

[46] See s 41.

[47] The authorities are set out in Aronson, MI 2005, op. cit. p 83 (fn 42).

[48] As described by Aronson, ibid., p 83.

[49] [1982] HCA 26; (1982) 151 CLR 342. See also, for example, Beaton-Wells, C 2005, op. cit., p 9.

[50] At para 5.2.7.

[51] [1990] HCA 33; (1990) 170 CLR 321.

[52] At para 5.2.7.

[53] At para 5.2.7.

[54] At p 29; cf Aronson, M 2005, op. cit., p 84.

[55] Administrative Review Council 2006, The Scope of Judicial Review, Report no. 47, ARC, Canberra, para 5.2.7; Law Reform Commission of Western Australia 2002, Judicial Review of Administrative Decisions, Report no. 95, LRCWA, Perth, p 29.

[56] Aronson, M et al. 2004, op. cit., p 20.

[57] At p 29.

[58] At para 5.2.7 (fn 113).

[59] Section 11(3).

[60] Though cf recommendation 30 in respect of the time within which an application should be made for reasons: ‘Any request for a statement of reasons should be made within 28 days of notification of the decision, but there should be a power in the court to extend that time in an appropriate case’ (the basis for the distinction is discussed at p 38) (being implemented in clauses 28(3) and (4)); and see ADJR Act s 13(2).

[61] At p 31.

[62] Law Reform Commission (Ireland) 2004, Report on Judicial Review Procedure, LRC 71, LRCI, Dublin, pars 2.36–2.45, recommended that a six-month time limit apply in all matters of conventional review, with the possibility of extension where good reason exists.

[63] Australian Law Reform Commission 1985, Standing in Public Interest Litigation, Report no. 27, ALRC, Sydney. The period under the Promotion of Administrative Justice Act 2000 (South Africa) is 180 days: discussed in Beaton-Wells, C 2003, ‘Administrative law in South Africa: no longer a “dismal science”’, Public Law Review, vol. 14, no. 2, pp 85–108 at 104.

[64] The Commission noted at p 32 that this was also consistent with the recommendation of the (English) Law Commission (1994, Administrative Law: judicial review and statutory appeals, Report no. 226, LC, London, para 5.20).

[65] Report no. 26, ARC, Canberra.

[66] Referring to Peter Bayne 1999, Judicial Review in Victoria, Victorian Attorney-General’s Law Reform Advisory Council Expert Report no. 5, Melbourne, recommendation 25, and Manitoba Law Reform Commission 1987, Administrative Law: judicial review of administrative action, Report no. 69(II), MLRC, Winnipeg, recommendation 41.

[67] ADJR Act s 18.

[68] At p 37.

[69] Which was also supported by Peter Bayne 1999, op. cit., recommendation 26.

[70] Hansard, 26 November 1991, p 3138, available at <http://parlinfo.parliament.qld.gov.au/isysnative/XFxXRUJTRVJWRVJcSEFOX0lTWVM2REJcMTk5MVw5MTExMjZoYS5wZGY=/911126ha.pdf#xml=http://parlinfo.parliament.qld.gov.au:80/isysquery/irleb95/2/hilite>, viewed 29 September 2006.

[71] Queensland Legal, Constitutional and Administrative Review Committee 2005, The Accessibility of Administrative Justice, Discussion paper, QLCARC, Brisbane, para 7.2.3.

[72] Section 43.

[73] Re Carey; Ex parte Exclude Holdings Pty Ltd & Ors [2006] WASCA 219.

[74] (Of which this author was a member.)

[75] [1995] HCA 58; (1995) 184 CLR 163.


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