ADMINISTRATIVE
REVIEW COUNCIL
REPORT TO THE
ATTORNEY-GENERAL
REVIEW OF THE ADMINISTRATIVE
DECISIONS (JUDICIAL REVIEW)
ACT 1977 – STAGE ONE
Report No. 26
® Commonwealth of Australia 1986
ISSN 0815-3795
ISBN 0 644 05307 0
Typeset in Australia by Creative Typographics, Hobart
Printed in Australia by Pirle Printers Sales Pty Ltd, Fyshwick, A.C.T. 2609
ADMINISTRATIVE REVIEW COUNCIL
G.P.O. Box 9955
Canberra, A.C.T. 2601
13 August 1986
Dear Attorney-General,
I have pleasure in submitting to you herewith a report by the Administrative Review Council on Review of the Administrative Decisions (Judicial Review) Act 1977 - Stage One.
Yours sincerely,
E. J. L. Tucker
Chairman
The Hon. Lionel Bowen, M.P.
Attorney-General
Parliament House
Canberra, A.C.T. 2600
The members of the Administrative Review Council at the date of the Council’s adoption of this report were as follows:
Mr E. J. L. Tucker (Chairman)
The Hon. Mr Justice J. D. Davies
Mr G. K. Kolts, O.B.E., Q.C.
The Hon. Xavier Connor, A.O., Q.C.
Mr A. J. Ayers, A.O.
Mr P. Brazil
Mr J. H. P. Disney
Mr P. J. Flood
Mr W. E. Impey
Mr J. F. Muir
The Hon. Mr Justice P. R. Munro
Mr A. D. Rose
Dr C. A. Saunders
The members of the Committee responsible for oversighting the AD(JR) Act project at the date of the Council’s adoption of this report were as follows:
Dr C. A. Saunders (Chair)
The Hon. Mr Justice J. D. Davies
The Hon. Xavier Connor, A.O., Q.C.
Mr L. J. Curtis, A.M.
Mr J. H. P. Disney
Mr G. K. Kolts, O.B.E., Q.C.
The Hon. Mr Justice P. R. Munro
Mr E. J. L. Tucker
The Council expresses its gratitude to the members of its secretariat, both past and present, and its consultants on this project for the assistance given by them in preparing this report. In particular, it wishes to thank its previous Director of Research and present consultant on the AD(JR) Act project, Dr John Griffiths, now of Dawson Waldron, Solicitors (Sydney), its other consultant on the project, Professor J. E. Richardson, A.O., its present Director of Research, Mr Denis O’Brien, and its present Principal Project Officer, Mr Ron Fraser.
CONTENTS
Paragraph Page
Summary 1
Recommendations 3
Introduction 4
Council’s review of the AD(JR) Act 1 4
Structure of the report 5 4
Chapter 1: Alleged abuses of the Act 6
What is an ‘abuse’ of the AD(JR) Act? 6 6
Examination of areas of concern 10 7
Broadcasting 11 7
Trade practices 15 8
Migration 17 8
Taxation 21 10
Customs 25 11
Committal proceedings 28 12
Commonwealth prosecution decisions 31 12
Extradition proceedings 34 13
Chapter 2: The need for reform 37 15
Chapter 3: Proposals for reform 16
Objectives of the AD(JR) Act 42 16
Overlapping remedies 44 16
Abuse and delay: options for reform 48 17
Requirement of leave 49 18
Extending and clarifying the Federal Court’s powers to28
refuse an application 68 23
Existing powers of the Federal Court 69 23
Provisions modelled on Victorian Administrative
Law Act 75 25
Formulation of the Court’s discretion 80 26
Review of interlocutory decisions 85 27
Rules of court 89 29
Power to stay an application 90 29
Existence of other avenues of review 91 29
Exercise of discretion at outset of proceedings 92 30
Appeals 93 30
Exclusion of particular classes of decision from AD(JR)
Act review 95 31
Other proposed changes 99 32
Appendix: Consultations 34
34
SUMMARY
1. This report constitutes the first stage of a major examination of the operation of the Administrative Decisions (Judicial Review) Act 1977. The project was commenced in June 1983. On three separate occasions during 1985 the Council advised the government on various proposals to exempt particular classes of decisions from review under the AD(JR) Act. The present report is being transmitted to provide advice to the government in relation to current claims that the Act is being abused in some areas and to calls for appropriate action to be taken to prevent such abuses occurring. In the preparation of this report the Council has been assisted by those organisations which, and individuals who, responded to the discussion paper circulated by the Council in mid-January 1986. (paras 1-4)
2. The purpose of the Act was to provide a relatively simple means of obtaining judicial review of administrative action. The Act purports to strike a balance between, on the one hand, the need to provide individuals with a means by which they may effectively obtain judicial review of the legality of public administrative action and, on the other hand, the need to protect public authorities from unwarranted action. The fundamental issue is whether experience of the Act’s operation has demonstrated that, in the course of achieving its primary aims, the Act has left public authorities open to unwarranted litigation. (para 6)
3. It would be highly undesirable if the Act were being used unduly to frustrate or impede legitimate administrative action in an attempt to obtain mere tactical advantage. However, in the Council’s view an increase in the number of judicial review cases, whether generally or under specific legislation, does not of itself indicate that the Act is being abused. Again, an abuse of the Act is not indicated by the mere fact that an application for an order of review has been refused. Even unsuccessful proceedings under the Act may involve real questions, whether of fact or law or both, which justifiably require adjudication and determination by a court. (paras 6-8)
4. In the Council’s view it is generally only correct to describe as abuses of the Act those proceedings which are designed to delay or frustrate Commonwealth administration (in a broad sense) merely in order to gain a tactical advantage rather than to establish a genuine legal right or interest (para 9). The Council has found little evidence of such abuses
(paras 10-36). However, it considers that the possibility of using the Act for the purposes of delay exists in relation to the conduct of ongoing proceedings of tribunals such as the Australian Broadcasting Tribunal and in an area such as taxation (para. 38).
5. A further difficulty which the Council perceives is in relation to problems of overlapping remedies, both in general terms and in terms of legislation which provides specific avenues for judicial review of, or appeal against, administrative action. The issue of overlapping remedies arises in relation to many areas of Commonwealth administration and the Council believes that a detailed study of the statutory provisions in those areas is required to determine whether such provisions are appropriate and warranted where AD(JR) Act review also applies. This matter will be further considered in the next stage of the Council’s review of the AD(JR) Act. The Council also intends to examine at that time the relationship between review by the Federal Court under section 39B of the Judiciary Act 1903 and review by that Court under the AD(JR) Act. (paras 44-6)
6. However, the Council makes one recommendation now relating to overlapping remedies, and that is that the Federal Court’s (and, in certain circumstances, any other court’s) discretion to stay, or to refuse to grant, an application for review of a decision etc should be capable, of being exercised at any stage of the proceedings and should be exercised at the outset of proceedings wherever appropriate (paras 47 and 92 and
recommendation 1(5)).
7. In the light of the Council’s conclusion that there is a possibility that the procedures established by the Act may be used for purposes of delay, at least in relation to certain areas of administration such as broadcasting and taxation, the report discusses several options for reform. It examines in detail arguments for and against a requirement of leave and the Council concludes that the reasons advanced for the adoption of a leave requirement are not persuasive (paras 48-67). However, after considering the Federal Court’s existing powers (paras 69-74), and the desirability or otherwise of amendments based on the Victorian Administrative Law Act (paras 75-9), the Council recommends the amendment of the Act to extend and clarify the Federal Court’s powers to stay, or to refuse to grant, an application under the AD(JR) Act (paras 80-94). In particular the Council recommends that the Court’s powers be defined more clearly in the Act by providing for:
· specific formulation of the Federal Court’s general discretion to stay or to refuse to grant an application (paras 83-4 and recommendation 1(1));
· making special provision in relation to interlocutory decisions made in the course of proceedings before another court, tribunal, authority or person, or a failure to make a decision in the course of such proceedings, designed to assist the Federal Court in the exercise of its discretion to stay or refuse to grant an application by specifying the interests it should take into account, including the consequences of delay in such proceedings (paras 85-88 and recommendation 1(4)(a));
· specific reference to the Federal Court’s powers to stay, or to refuse to grant an application, under one or more relevant rules of the Federal Court Rules (para. 89 and recommendation 1(4)(b));
· retention of the Federal Court’s, or any other court’s, existing powers to dismiss or stay an application instituted otherwise than under the Act where an application has been made under the Act (recommendation 1(2));
· retention of the Federal Court’s power to stay or dismiss an application made under the Act where an alternative avenue of judicial review has been utilised or there is adequate provision for review of a decision under a law other than the Act and the Court is satisfied that, in all the circumstances of the case, it would be reasonable for the applicant to seek such review (recommendation 1(3)); and
· exercise of the Court’s discretion to stay, or to refuse to grant, an application at any stage of the proceedings and at the outset wherever appropriate (para. 92 and
recommendation 1(5)).
8. Apart from decisions taken in the course of committal proceedings involving Commonwealth offences (a matter on which the Council has already made a recommendation to the government), the Council does not support the exclusion from review under the AD(JR) Act of the particular classes of decisions in relation to which concern about abuse of the Act has been expressed. (paras 95-8)
RECOMMENDATIONS
Powers of the Federal Court to stay, or to refuse to grant, an application for review
1. The Administrative Decisions (Judicial Review) Act 1977 (‘the Act’) should provide that:
(1) The Federal Court may, in its discretion, stay, or refuse tog rant, an application made to it under section 5, 6 or 7 for a review of a decision, of conduct engaged in for the purpose of making a decision, or of a failure to make a decision, where the Federal Court is of the opinion that it is inappropriate, or inappropriate at that time, either to hear and determine or to grant the application as the case may be.
(2) In a proceeding instituted otherwise than under the Act, the Federal Court or any other court may, in its discretion, stay, or refuse to grant, an application for a review of a decision, of conduct engaged in for the purpose of making a decision, or of a failure to make a decision, for the reason that an application has been made to the Federal Court under section 5, 6 or 7 in respect of that decision, conduct or failure.
(3) The Federal Court may, in its discretion, stay, or refuse to grant, an application made to it under section 5, 6 or 7 for a review of a decision, of conduct engaged in for the purpose of making a decision, or of a failure to make a decision -
(a) where the Federal Court is satisfied that the applicant has sought a review by the Federal Court or by another court of that decision, conduct or failure otherwise than under the Act; or
(b) where the Federal Court is satisfied that adequate provision is made by any law other than the Act under which the applicant is entitled to seek a review by the Federal Court, by another court or by another tribunal, authority or person, of that decision, conduct or failure, and that, in all the circumstances of the case, it would be reasonable, or would have been reasonable, for the applicant to seek that review.
(4) Without limiting the discretion referred to in clause (1), the Federal Court may exercise its discretion to stay, or to refuse to grant, an application -
(a) in a case where the application is made in respect of a decision made or to be made in the course of proceedings before another court, tribunal, authority or person or where the application is made in respect of a failure to make a decision in the course of such proceedings, where the Federal Court is satisfied that -
(i) those proceedings will conclude in a final decision that will be subject to review by the Federal Court under the Act or by another court; and