Administrative Review Council :
"The Scope of Judicial Review"
(July 2006)
The Administrative Review Council is an Australian statutory body that provides, among other things, advice to the Australian Attorney General on matters of Commonwealth administrative law. In its latest report, The Scope of Judicial Review, the Council addresses the constitutional and policy considerations relevant to the scope of judicial review in Australia, and considers when it is appropriate to seek to reduce the scope or practical availability of judicial review. The Council's conclusions are summarised in a framework of indicative principles, intended to provide a guide to governments, policy officers and drafters in the consideration of review mechanisms to be incorporated in legislation.
The Administrative Review Council (ARC) was established in 1976 under Part V of the Administrative Appeals Tribunal Act 1975 (Cth). The Council provides advice to the Australian Attorney-General and the Attorney-General's Department on matters of administrative law, through letters of advice and reports. In its 30 year history, the ARC has published 47 reports on a wide range of administrative law issues. The Council also has a broader advisory function, and it often makes submissions and provides advice to Parliamentary committees, government bodies and legislative proposals on relevant administrative law issues. Another priority function of the ARC is to raise awareness of administrative law, which it does primarily through the publication of its administrative law bulletin Admin Review, and also through reports on topics of relevance to governments and administrative decision makers.
The ARC's latest report, The Scope of Judicial Review, was launched on 19 May 2006 by the Chief Justice of the High Court of Australia, the Hon Murray Gleeson AM, and the Australian Attorney-General, the Hon Philip Ruddock MP. The report addresses constitutional and policy considerations relevant to the scope of judicial review, and in particular, the report notes the essential role of judicial review in maintaining the rule of law and safeguarding individual rights. The report considers when it is appropriate to seek to reduce the scope or practical availability of judicial review, and the Council's conclusions have been summarised in a succinct framework of indicative principles. This framework is intended to provide guidance to governments, policy officers and drafters in the consideration of review mechanisms to be incorporated in legislation.
The following summary contains extracts from the report; the full version is available from the ARC website.
The present scope of judicial review (in Australia)
The High Court derives its judicial review jurisdiction from ss 75(iii) and 75(v) of the Australian Constitution. The two provisions confer on the High Court the jurisdiction to undertake judicial review of administrative and legislative action by the Commonwealth and its officers – in particular, to ensure that such action is carried out within limits imposed by the Constitution and any valid enactment.
The Administrative Decisions (Judicial Review) Act 1977 (Cth) provides that the Federal Court has jurisdiction to review decisions of an administrative character made under a Commonwealth enactment or by a Commonwealth authority under a state or territory enactment. Further jurisdiction, similar to that of the High Court, is also conferred on the Federal Court by ss 39B(1) and 39B(1A) of the Judiciary Act 1903. Subject to a few exceptions, the Federal Magistrates Court has the same jurisdiction as the Federal Court under the Administrative Decisions (Judicial Review) Act.
State and territory courts have very limited jurisdiction to review Commonwealth conduct.
Section 5 of the Administrative Decisions (Judicial Review) Act lists the grounds of review available for the review of decisions made under the Act. Examples are breach of natural justice, error of law, acting for an unauthorised purpose, failure to consider a relevant matter, and acting under direction. Most of these grounds of review derive from grounds for review available under the common law in relation to one or other of the prerogative writs or equitable remedies. The grounds of judicial review can usefully be divided into two categories: grounds relating to procedure and grounds relating to the substantive exercise of power. The first category is directed at procedural fairness and ensuring mandatory statutory procedures are observed, while the second category is designed to ensure that decision makers act within their substantive authority and correctly apply the substantive law that governs the exercise of power.
The Parliament and the scope of judicial review
Section 77 of the Constitution gives Parliament power to make laws defining the jurisdiction of any federal court other than the High Court with respect to, among other things, the matters mentioned in ss 75(iii), 75(v), 76(i) and 76(ii). These are matters in which the Commonwealth is a party, or in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, matters arising under or involving the interpretation of the Australian Constitution, and matters arising under any laws made by Parliament. The Commonwealth Parliament has significant legislative power – which it has exercised – to extend judicial review beyond what is expressed in the Constitution.
The Commonwealth Parliament also has power to limit or remove any judicial review jurisdiction that has been created, so long as any limitation does not infringe Chapter III of the Constitution and so long as the limitation is sufficiently clearly expressed. Section 75(v) of the Constitution vests in the High Court a jurisdiction for judicial review that provides an irreducible minimum basis for challenging unlawful Commonwealth activity, which Parliament cannot remove.
There are a number of legislative mechanisms that have been adopted or might be available to Parliament to reduce the scope of judicial review directly or indirectly. These include the use of privative clauses, which purport to make the decision final and conclusive, provisions empowering the issue of certificates that constitute conclusive evidence, provisions indicating that non-compliance with aspects of a statutory requirement does not affect the validity of the action taken, provisions conferring powers with no duty to exercise, time limits and privatisation of decision making. The effectiveness of these methods is discussed further in the ARC's report.
It is clear that, if it chooses to do so, Parliament can expand or limit the scope of judicial review in the context of particular decision-making powers. In situations where legislation affects that practical scope of judicial review, the Council considers that two guiding principles for legislative drafting are essential.
First, in order for provisions of this kind to be effective, they must be clear and unambiguous in their effect and operation. Provisions that limit the scope of judicial review will be narrowly construed: courts will assume that Parliament does not intend to impose any restrictions beyond what is clearly and unambiguously stated.
Second, the provisions should be as specific as possible. That is, it is inadvisable to use general privative clauses or provisions that in some general manner seek to protect all decisions made under an enactment. This is because, when a general provision of this kind appears to conflict with a specific provision that limits the powers of an administrative decision maker, normal principles of statutory construction tend to favour giving effect to the specific provision rather than the general one. It follows that in this context any provisions designed to limit the scope of judicial review should specify clearly what the limits of the exercise of power are.
Judicial review in context
Broadly speaking, judicial review of administrative action and legislation involves a process whereby disputes about the effect of past allegedly unlawful action can be resolved and current or proposed unlawful conduct can be stopped or prevented. In this way the courts provide a check on the executive and legislative branches of government. The public law values that underlie judicial review are the rule of law, the safeguarding of individual rights, accountability, and consistency and certainty in the administration of legislation.
Justifications put forward for reducing the scope of judicial review
A strong justification is needed to reduce judicial review in such a way as to allow unlawful conduct to proceed without the availability of any kind of remedy. The Council accepts that in some limited circumstances the public law values that underlie judicial review can be advanced by means other than judicial review. It also accepts that there are other important legal and governmental values that can at times conflict with the values underlying judicial review. That said, the Council considers that the rule of law and the provision of remedies for redressing unlawful government action or inaction are paramount values in Australian society and under the Australian Constitution.
The framework of indicative principles is reproduced below, with the main justifications put forward for limiting the scope of judicial review, and the Council's conclusions and commentary. The framework is intended to provide a quick guide to the circumstances in which restrictions on judicial review can be justified. It should be read in conjunction with the more detailed discussion the ARC's report, in particular, chapters 3 and 5.
Limiting judicial review: a framework of indicative principles
| Types of decisions | Claimed justification for limiting judicial review | Are limits on judicial review justified? | Commentary |
|---|---|---|---|
| Decisions in relation to criminal, civil penalty or extradition proceedings | Potential fragmentation of proceedings, abuse of process | Yes | Limiting the availability of judicial review will not encroach on the rule of law: accountability and protection of individual rights can be ensured through the criminal justice process, which enables legal questions about the validity of the process to be raised both in the trial and on appeal. Questions about consistency and certainty inherent in the judicial process can also still be accommodated. |
| Decisions where there is neither a right to a benefit nor a duty on the decision maker to consider conferring a benefit | The benefit differs in kind from other legal rights and is created as part of a scheme that contains other safeguards | In most cases | By its nature, such a decision is one to be exercised, if at all, in exceptional circumstances and does not confer any right or give rise to any legitimate expectation as to its exercise. There are other means of accountability to control executive decision making in such circumstances – for example, periodic or annual reports to Parliament, periodic review of legislation, tabling of decisions in Parliament, and other mechanisms of the parliamentary process. Judicial review should be available where such power is exercised in bad faith or for an improper purpose. |
| Urgent decisions | The need for urgency in making or implementing the decision | Sometimes | Courts are well placed to decide whether the principles of judicial review need adaptation to take account of the circumstances of a particular case. If a statutory power will always be exercised in urgent circumstances, the legislative scheme can be framed with this in mind – for example, to spell out minimum procedural fairness requirements. Some legal requirements, such as absence of actual bias, fraud or other mala fides, should apply in all circumstances. |
| Decisions involving polycentric factors – that is, decisions that involve the distribution of limited resources among one or more applicants for those resources | The decision might be based on a multiplicity of factors that are beyond judicial cognisance. Judicial review might result in delays that could cause practical frustrations | Sometimes | Judicial review does not extend to the merits of the decision. A court will be guided by the nature of the legislative scheme and the importance of not undermining a policy or planning process, and it is possible that the court will find the matter non-justiciable. Careful drafting of legislation can minimise potential practical difficulties. Because decisions of this kind would generally fall within the High Court's original jurisdiction under s 75(v) of the Constitution, a complete removal of judicial review is not possible, and the need to develop a different approach for controlling judicial review becomes all the more important. |
| Decisions where adequate alternative remedies are available | Judicial review is unnecessary | Sometimes | There are well-developed principles by which a court may decline on discretionary grounds to undertake judicial review. The discretion finds legislative expression in s 10(2)(b)(iii) of the Administrative Decisions (Judicial Review) Act 1977. Imposing additional legislative limitations on the discretionary process of the courts could impair the process or lead to failure to anticipate novel circumstances. |
| Decisions where there is a particular need for certainty | Adverse impact of judicial review on people affected by a decision, including third parties | Sometimes | Legislation can give certainty to executive processes – for example, by providing that a decision will have effect as though it is valid after the passage of a reasonable period for challenging the decision without directly seeking, and to the extent constitutionally possible, to limit judicial review. |
| Decisions where judicial review is sought on the ground of procedural fairness | Ground of review provides for decision makers little guidance on the limits of their authority | Sometimes | Procedural fairness should be an element in decision making in all contexts, although what is fair will vary with the circumstances. Flexibility enables courts to fashion the requirements of procedural fairness to reflect the circumstances of each case. Although this can lead to uncertainties for decision makers, legislation can override the general law requirements of procedural fairness and specify the requirements for a particular situation. There is, however, a risk that the legislation will have a limiting effect that disadvantages applicants in certain instances. |
| Decisions where judicial review is sought on grounds of unreasonableness, failure to have regard to relevant considerations, or having regard to irrelevant considerations | Grounds of review provide for decision makers little guidance on the limits of their authority | Sometimes | It is difficult to exclude these grounds: they embody a broader principle that legislation must be understood and applied correctly to the facts of a case. An alternative approach is to control how these grounds apply by clearly specifying in legislation the legal requirements for the exercise of a power. It is not easy to exclude from the jurisdiction of the High Court under s 75 of the Constitution grounds that embody the obligation to apply legislation correctly. |
| Decisions about policy | The executive branch of government, rather than the judiciary, is best placed to determine policy matters | Sometimes | A court is not concerned with policy as such; rather, it is concerned with determining whether a policy has been lawfully adopted and applied. If there is no judicially manageable standard for making that determination, a court is likely to find the matter non-justiciable – for example, if the policy being applied relates to treaty making, the conduct of foreign policy, some budgetary and financial decisions, and matters of national security. |
| Decisions that are not final or operative decisions | If every step in the administrative process is reviewable, efficient decision-making processes will be frustrated and fragmented | Sometimes | Courts have developed restraints to take account of this consideration and generally undertake judicial review only if an operative decision has been made that affects the rights or interests of a person. Attempts to legislate further controls would not result in greater clarity. |
| Decisions of a subordinate legislative character | The breadth of the discretion makes judicial review difficult to apply | No | The fact that a decision is legislative in nature does not of itself provide a justification for reducing the scope of judicial review. Although the grounds of review might not apply as readily, that is a consequence of the nature of the function under review. |
| Decisions where consistency in decision making is important | Judicial review can undermine the objective of consistency in such decisions | No | Judicial review is concerned only with questions of law, so it does not preclude consistency in factual or policy matters. Legislation can limit the adverse impact of judicial review on decision-making processes by clearly defining the parameters for the exercise of an administrative discretion. |
| Decisions that are subject to unmeritorious challenge or where delay is an end in itself | Strong public policy grounds such as an unwarranted burden on the courts and unnecessary expense to the community | No | Blanket removal of judicial review would affect all applicants, including those with meritorious claims. In some areas it is possible, legislatively, to remove the incentive to use judicial review as a deferral mechanism – as, for instance, under the Income Tax Assessment Act 1936. In other situations this argument can be resolved by enabling the courts to dispose of unmeritorious applications at an early stage in the proceedings, as is provided for in the Migration Litigation Reform Act 2005. |
The Scope of Judicial Review complements the principles set out in another ARC publication, What Decisions should be Subject to Merits Review? In this report, the Council suggests that most administrative decisions that will, or are likely to affect the interest of a person should be subject to a review of the facts, law and policy aspects of the original decision. However, the report recognises that some decisions that may otherwise have been suitable for merits review exhibit factors that either make them unsuitable for, or may justify excluding them from, review. These factors are set out in a clear and succinct manner, and provide practical guidelines to assist others in the development of proposals or legislation that involve the creation of administrative powers of decision.
The Scope of Judicial Review, What Decisions should be Subject to Merits Review? and a number of other ARC publications are available from the ARC website