Administrative Review

Administrative Review

Council

ADMINISTRATIVE DECISIONS

(JUDICIAL REVIEW) ACT 1977

EXCLUSIONS UNDER SECTION 19, -1978

Report No. 1

ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) REGULATIONS

TABLE OF CONTENTS

Paragraphs

Part I – The Content and Effect of the Act

• Introduction

• The Content of Reasons

• The Possibility of Amending s.13

• Obligation is Personal

• In Statements of Reasons

• Discovery in Proceedings under the Act

• Review of s.14 Certificates

Part II – General Principles Relating to Exclusion

• Decisions administered by the Public Service Board

• Employment Decisions not regulated by the Public Service Board

Attachment 1

Attachment 2

Amdt.1 10/11/78

ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) REGULATIONS

1.By letter dated 28 April 1977 the then Attorney-General, the Honourable R.J. Ellicott, Q.C., M.P., forwarded to the Administrative Review Council a copy of the Administrative Decisions (Judicial Review) Bill and sought its advice "as to the classes of decisions, if any, that the Council thinks ought to be excluded from the scope of the Bill by regulation". That Bill has since been enacted as the Administrative Decisions (Judicial Review) Act 1977 (hereinafter called "the Act") but has not yet been proclaimed pending the determination of exclusions from the Act.

2.The Council appointed a Sub-Committee (consisting of Sir. Clarrie Harders, O.B.E., (Convenor),the Honour-able Mr Justice M.D. Kirby, Mr R.V. Cyles, Q.C., and Mr D.L. Linehan) to report on the reference. The Sub-Committee met on eleven occasions and in the course of its meetings held discussions with representatives of the following organisations:

Australian National Airlines Commission

Australian Shipping Commission

Australian Taxation Office

Commonwealth Banking Corporation

Department of the Capital Territory

Department of Immigration and Ethnic' Affairs

Department of Social Security

Department of the Treasury

Public Service Board

Administrative and Clerical Officers Association

Council of Australian Government Employees Organisations

Council of Professional Associations

The Sub-Committee also held discussions with Professor Freda Hawkins, the Honourable A.J. Grassby, Commissioner for Community Relations, and Mr Alan Neaves, Crown Solicitor. In addition, officers of the Council's Secretariat held discussions with the Commonwealth Serum Laboratories, the Department of Business and Consumer Affairs, and the Department of Transport.

3.The deliberations of the Council have been based upon responses to a letter from Sir Clarrie Harders to all departmental heads which set out the effect of the Act and sought proposals for exclusions from the Act. In reply to this letter a large number of submissions was received. The Council has not considered exclusion of any class of decisions unless either a department has sought its exclusion, or it falls within one of the general classes of decision considered in Part V of this report.

4.Departmental submissions for exclusion of decisions from the operation of the Act were most frequently based upon one or more of the following grounds:

• the burden of giving reasons;
• the possibility of being obliged to disclose confidential information in a statement of reasons;
• the suggested undesirability of the Act being applied to decisions of statutory authorities in competition with private enterprise; and

• the suggested undesirability of the Act being applied to decisions related to the administration of justice.

A number of other grounds were advanced by Departments in support of submissions that a class of decisions be excluded.

5.This report will outline all the submissions made by Departments, and the reasons for the Council's several recommendations.

6.The Council's recommendations correspond in part with the proposals of the Committee on Prerogative Writ Procedures (the "Ellicott Committee") which recommended the reform of judicial review procedures. The Ellicott Committee proposed (at paragraphs 27 and 30 of its Report) that consideration should be given to excluding from the legislation which it recommended, classes of decisions in the following areas:

• defence
• national security
• relations with other countries
• criminal investigation
• employment in the Public Service

CLASSES OF DECISIONS RECOMMENDED FOR EXCLUSION

7.The Council recommends the exclusion of the following classes of decisions:

(a)Decisions related to disciplinary proceedings within the Australian Defence Force (see paragraphs 149-150);

(b)All decisions under the Australian Security Intelligence Organisation Act 1956 and all decisions under the Telephonic Communications (Interception) Act 1960 (see paragraphs 135 - 138);

(c)All decisions under the Consular Privileges and Immunities Act 1972, the Diplomatic Privileges and Immunities Act 1967, and the International Organisations (Privileges and Immunities) Act 1963 (see paragraphs 155 - 156);

(d)Decisions under Passport Regulations 7,11 and 12 in so far as they are taken on the direction of foreign governments (see paragraphs 157 - 158);

(e)Decisions under paragraphs 8(1)(b) and 8(3)(b) of the Migration Act 1958, (which relate to diplomatic and consular officials and their families) (see paragraphs 169 - 170);

(f)Decisions related to the administration of criminal justice (including the investigation and prosecution of persons for any offence against a law of the Commonwealth) other than:

(i) Appointments of investigators and inspectors under statutory powers (for example under the Companies Ordinance of the Australian Capital Territory);

(ii) The issue of search warrants, and of analogous warrants under the Customs Act and other legislation;

(iii) Decisions to require the production of documents, the giving of information and the summoning of persons as witnesses (see paragraphs 74 - 80);

(g)For a period of 12 months only from the commencement of the operation of the Act, decisions under the Public Service Act 1922 relating to promotions and promotion appeals and analogous decisions of statutory authorities (see paragraphs 104-114, 180, 187, 226);

(h)Decisions of the Commonwealth Grants Commission relating to the allocation of funds (see paragraphs 127-128);

(i)Decisions under sections 32 and 364 of the Audit Act 1901 and section 3 of the Appropriation Acts (Nos. 1 and 2) (see paragraphs 153-154);

(j)The making of assessments and decisions affecting assessments for income, estate, gift, and sales taxes (see paragraphs 222-223);

(k)Tentatively, decisions of the Conciliation and Arbitration Commission (but not decisions of Industrial Registrars or Deputy Industrial Registrars), the Public Service Arbitrator or a Deputy Public Service Arbitrator, the Coal Industry Tribunal and the Flight Crew Officers Industrial Tribunal. (See paragraphs 124-125);

(1)All decisions of the Advisory Council for Inter-Government relations. (See paragraphs 189-190).

8.Although some departments or statutory authorities who would seek exemption from the operation of the Act may wish to make submissions at some future time, it is recommended that the proclamation of the Act should not be delayed because of that possibility. If any departmental submission should be received subsequent to this report, it is recommended that it be referred to Council for its recommendation and that no exclusion should be made pending Council's further recommendation.

9.It is recommended that no classes of decisions other than those referred to in paragraph 7 should be excluded from the Act.

10.This report is divided into seven parts:

Part IThe content and effect of the Act

Part IIGeneral principles relating to exclusion

Part IIIDecisions under enactments administered by Departments which advised that they seek no exclusions

Part IVDecisions under enactments administered by Departments which have not provided advice as to exclusions

Part VClasses of decisions suggested for exclusion by several Departments

Part VIDecisions under enactments administered by Departments which have advised that they seek exclusions

Part VIIFinal Observations

PART I

THE CONTENT AND EFFECT OF THE ACT

THE CHARACTER OF THE ACT

11.The Administrative Decisions (Judicial Review) Act 1977 was foreshadowed by the recommendations of the Commonwealth Administrative Review Committee (the Kerr Committee) and the Ellicott Committee. Pursuant to the Act, the Federal Court of Australia is invested with the power of judicial review of Commonwealth administrative decisions within the ambit provided by the Act. The Court, the Administrative Appeals Tribunal, and the Commonwealth Ombudsman are all instruments of the new administrative review system. Unlike the Acts establishing the Tribunal and Ombudsman, the Act does not create a new form of review but merely simplifies, codifies, reforms, and makes more effective the existing judicial review of Commonwealth administrative action. Judicial review is concerned solely with the lawfulness of administrative action. Unlike review by the Administrative Appeals Tribunal, it does not permit a substitution of the Court's view of the merits for that of the primary decision-maker. Unlike the Ombudsman, a court engaged in judicial review is not concerned with maladministration unless it involves unlawfulness. Judicial Review under the Act is thus different from the review effected by either the Administrative Appeals Tribunal or the Ombudsman.

12.The Act achieves real improvements in the effectiveness and efficiency of judicial review. It is important to ensure that the resolution of the central issue of a review proceeding is reached quickly and simply and with the minimum of intrusion of a side issues or technicalities. The investing of a jurisdiction to review administrative decisions in one Court, granting a single remedy and following a uniform procedure is an advantageous reform. The Act goes further than this and, by eschewing the preservation of the several prerogative writs, it avoids the difficulties encountered overseas by engrafting a new, single procedure upon the old remedies (see the Canadian experience). This is a significant advance which would itself have been a sufficient justification for the Act.

13.There are, however, other provisions of the Act which promote the desiderata of speed, simplicity, and the minimum intrusion of side issues or technicalities. The obligation to provide reasons on request, supplemented by the general availability of discovery and interrogatories with leave of the Court, enables the real issues to be ascertained at an early stage. The real issues might otherwise be obscured, and cases might be determined minor and side issues. The Act avoids the unhelpful technicalities of common law judicial review. In particular, by including a general ground of error of law (whether or not that error appears on the record of the decision and by specifying the situations in which a decision is unlawful for lack of evidence to justify it, the Act enables the direct issue of unlawfulness to be posed and determined simply and directly.) The furnishing of reasons is both an aid to the remedy of error, and an assurance of sound administration.

THE CHANGES MADE BY THE ACT

14.In respect of decisions subject to it, the Act makes the following significant changes to judicial review. It:

• creates a simple and flexible procedure for judicial review in a uniformly available forum

• sets out the grounds of review, including the situations in which the absence of evidence to support' a decision will constitute a ground of review

• removes the common law rule that a remedy may be obtained for error of law within jurisdiction only where the error appears on the face of the record of the decision - for which error only the writ of certiorari (or possibly declaration) is available

• is intended to apply irrespective of any provisions in pre-existing legislation which sought to limit the courts powers to review administrative decisions (see the Explanatory Memorandum to the Bill, paragraph 17)

• creates a general right for persons adversely affected by a decision to be provided upon request with a statement of reasons for the decision. This may be exercised independently of any application for an Order of Review, or it may be exercised as an adjunct to review proceedings.

15.At common law there is a variety of remedies for unlawful administrative decisions. While many elements are common to several remedies, there is no uniformity in availability, grounds, or procedures. The Kerr Committee described the law of judicial review prior to the Act as a "complex pattern of rules as to appropriate courts, principles and remedies" (Commonwealth Administrative Review Committee Report – 1971, Parliamentary Paper NO. 144; paragraph 58).

16.The Act creates a uniform procedure which is sufficiently flexible to meet the differing requirements of particular cases. It establishes a general Order of Review which may include orders fulfilling the same functions as all of the separate orders available at common law. The Federal Court is given jurisdiction to review all decisions to which the Act applies. The Act does not affect judicial review in the original jurisdiction of the High Court (which is provided for by section 75. of the Constitution and cannot be excluded by legislation) or the Territory Supreme Courts. The jurisdiction of State Supreme Courts to review the conduct or decisions of officers of the Commonwealth (other than by way of Habeas Corpus) is removed by the Act.

17.In setting out the grounds of review, the Act may perform an educative role by informing lawyers of the law of judicial review. Definition of the precise breadth of the grounds of review (particularly the "no-evidence" ground) must await the determination of the Federal Court. In making its recommendations, the Council has assumed that the Act achieves the aim of the Government as stated in the Second Reading Speech on the Bill, by the Attorney-General, namely, that the Act does not provide review on the merits but concerns only whether the "action is lawful" (Commonwealth, Parliamentary Debates, House of Representatives, 28 April 1977, p. 1394).

18.At common law the remedy of certiorari (and possibly declaration) is available for errors of law within jurisdiction only if the error appears on the record of the decision. This is a significant restriction on the availability of the remedy. It also creates uncertainty as there can be doubt as to which documents constitute the record. There is no such restriction on the grant of an Order of Review in respect of decisions subject to the Act.

19.The eight provisions in Commonwealth Acts which seek to restrict the courts' power to review administrative action (privative clauses) are identified in Attachment 2 to this report. They are of limited effect in so far as review by the High Court is concerned where the High Court's jurisdiction arises under section 75(v) of the Constitution because this constitutional jurisdiction cannot be excluded by Act of Parliament. In any other proceedings before the High Court, it has been held that such provisions prevent judicial review of any "bona fide" attempt to exercise authority in a matter relating to the subject with which the legislation deals and capable reasonably of being referred to the power possessed by the decision-maker (see R v Hickman, ex parte Fox and Clinton (1945) 70 CLR. 598, 615).

THE FURNISHING OF STATEMENTS OF REASONS UNDER SECTION 13

20.The creation of a general right to a statement of reasons is a most significant change. The absence of a right to reasons has generally hampered judicial review and made it difficult to detect and review unlawful administrative action. The duty to furnish a statement of reasons will also assist in improving the quality of decision-making, which is a major object of external administrative review-.

21.It must be expected that the operation of the Act, and section 13 in particular, will have an impact upon the administration of departments and the operations of Government. Indeed, one aim of the Act is to cause administrators to identify to themselves the reasons which motivate their decisions. This impact and the burdens associated with furnishing statements of reasons were of concern to the Council when it made its recommendations to the Attorney-General on the Bill for this Act. Whilst the Council welcomed the legislation, the Council pointed out in its advice to the Attorney of 16 April 1977 that the burden of providing reasons for decisions may be substantial in some areas of the Public Service and the introduction of the section would immediately create those additional burdens.

22.Parliament passed the section after Council's advice to the Attorney-General of the additional administrative burden which would be imposed by section 13. No new circumstance has been demonstrated since the Act was passed which would warrant a departure from Parliament's decision.

23.It must be accepted that, in cases where there is now no obligation to give reasons and reasons are not usually given, section 13 will result in some increase in work (although perhaps not to the extent predicted by some departments). This increase in work will occur in two ways. First, a sufficient record must be made of the decision at the time it is given to enable a statement fulfilling the requirements of section 13 to be given later if requested. Second, the actual writing of the reasons will take time. The extent of the extra workload in any area of decision-making will depend on a number of circumstances,including the complexity of the subject matter, the volume of decisions and the number of requests made.