ADMINISTRATIVE REVIEW COUNCIL

REPORT TO THE ATTORNEY-GENERAL

REVIEW OF THE ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT:

THE AMBIT OF THE ACT

Report No. 32

Australian Government Publishing Service Canberra 1989

© Commonwealth of Australia 1989 ISBN 0 644 09557 1 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without written permission from the Director Publishing and Marketing, AGPS. Inquiries should be directed to the Manager, AGPS Press, Australian Government Publishing Service, GPO Box 84, Canberra ACT 2601. Commonwealth legislation herein does not purport to be the official or authorised version. Printed in Australia by Pirie Printers Sales Pty Ltd, Fyshwick, ACT

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ADMINISTRATIVE REVIEW COUNCIL GPO Box 9955 Canberra ACT 2601 17 March 1989 Dear Attorney-General, I have pleasure in submitting to you a report by the Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: the ambit of the Act. I should draw your attention to the fact that the report had been virtually finalised before Justice Boulton and Mr Conybeare were appointed to the Council. They took no part in the deliberations on the report. Yours sincerely, (Dr) C.A. Saunders President The Hon Lionel Bowen, MP Attorney-General Parliament House Canberra ACT 2600

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The members of the Administrative Review Council at the date of the Council’s adoption of this report were:

Dr C.A. Saunders (President) Justice T.R. Hartigan Professor D.C. Pearce Justice Elizabeth Evatt, AO Justice A.J. Boulton Mr P. Brazil Mr R.L. Brown Mr C. Conybeare Mr J.H.P. Disney Mr S.A. Hamilton Mr W.E. Impey Mr J.F. Muir Ms H.F. Vorrath

The members of the committee responsible for overseeing the report were:

Dr C.A. Saunders (Chair) Professor D.C. Pearce Justice Elizabeth Evatt, AO Mr R.L. Brown Mr L.J. Curtis, Deputy Secretary, Attorney-General’s Department Mr S.A. Hamilton Dr J.E. Griffiths, Blake Dawson Waldron (Consultant)

The Council expresses its gratitude to its Director of Research, Mr Denis O’Brien, who had responsibility for this project.

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CONTENTS Paragraph Page SUMMARY ix LIST OF RECOMMENDATIONS x INTRODUCTION 1 Council’s review of the AD(JR) Act 1 1 Stage 1 report 4 1 Fate of Amendment Bill in Parliament 5 1 Scope of present report 8 2 A lay person’s guide to the report 12 3 CHAPTER 1: JUDICIAL REVIEW IN THE COMMONWEALTH 4 Introduction 15 4 Nature of administrative review 17 4 Nature of judicial review 19 5 Judicial review under general law 28 8

High Court 28 8 Federal Court 29 8

Section 39B 30 9 Section 44(2A) 33 9

Prerogative writs 35 10 Common law grounds of review 37 10

Ultra vires 38 10 Natural justice 39 10 Jurisdictional error and error of law on the face of the record 40 10

Common law remedies 42 11 Prohibition and certiorari 45 12 Mandamus 52 13 Injunction 55 14 Declaration 56 14

Procedural reform of common law 60 14 The AD(JR) Act 62 15 Implications of present judicial review structure 72 17 CHAPTER 2: DEVELOPMENT OF SCOPE OF JUDICIAL REVIEW AT COMMON LAW SINCE AD(JR) ACT CAME INTO FORCE

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Prerogative powers 78 19 Statutory powers vested in Governor-General 86 21 Conclusion on amenability to review 91 22 Justiciability as limiting factor 93 23 Summary 97 24 CHAPTER 3: SHOULD THE AD(JR) ACT BE EXTENDED? 25

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Paragraph Page CHAPTER 4: A WIDER BASIS FOR THE AD(JR) ACT - OFFICER DECISIONS

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Effect of inclusion of officer decisions 112 29 Submissions made to Council 115 30

Commonwealth contracting 116 30 Non-statutory schemes 129 32 Personnel decisions 132 33 Academic decisions 141 34 Bodies created by executive order 143 35 Decisions made in ordinary course of public administration 146 36

Conclusions of Council 149 36 General 149 36 Contract and tender decisions 153 37 Personnel management decisions 158 38 Officer decisions that should be covered: non-statutory schemes 161 38

Application of the grounds of review 168 39 Reports or recommendations 172 40

Decisions of bodies established by executive order 175 41 Other non-statutory decisions 180 42

Constitutional basis for altered ambit of Act 184 43 CHAPTER 5: A WIDER BASIS FOR THE AD(JR) ACT - STATUTORY DECISIONS OF GOVERNOR-GENERAL

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Submissions made to the Council 189 45 Conclusions of Council 199 46

Appointment decisions 204 48 Decisions made by Executive Council following decision of the Cabinet

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Other decisions 207 48 Appropriate respondent to review proceedings 212 49

CHAPTER 6: SCHEDULE 1 EXCLUSIONS 50 Background 213 50 The principle of exclusion by means of Schedule 1 218 51 Effect of compressing Schedule 1 222 53 Particular exclusions presently provided for in Schedule 1 225 53

Decisions under the Conciliation and Arbitration Act 1904 or the Industrial Relations Act 1988

225

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Decisions under the Coal Industry Act 1946, other than decisions of the Joint Coal Board

234

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Security and intelligence decisions 236 55 Taxation decisions 260 60

The issue of the exclusions 260 60 Interpretation of paragraph (e) 273 62

Decisions under Foreign Takeovers Act 278 63 Certain decisions under Banking (Foreign Exchange) Regulations 288 65 Decisions of the National Labour Consultative Council 291 66 Decisions of the National Companies and Securities Commission made in the performance of a function, or the exercise of a power,

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conferred on it by a State Act 293 66

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Paragraph Page Decisions of the Ministerial Council for Companies and Securities 299 67 Decisions under the Defence Force Discipline Act 1982 302 67 Decisions under the Customs Act to require securities in respect of anti-dumping duty that may be payable

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Decisions under section 25(1) or Part IIIA of the Commonwealth Electoral Act

309

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Decisions under the Extradition Act 1988 316 70 Means of excluding review apart from Schedule 1 329 72 ADDENDUM: DISSENTING VIEWS 74 CHAPTER 7: ADDITIONAL AREAS THAT HAVE BEEN SUGGESTED FOR INCLUSION IN SCHEDULE 1

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Committal decisions 335 77 Prosecution decisions 350 79 CHAPTER 8: THE DISCRETION OF THE COURT TO REFUSE RELIEF

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CHAPTER 9: JUSTICIABILITY 84 Proposal set out in 1988 draft report 366 84 Decision making by the Cabinet 367 84 Submissions made to Council 373 86 Conclusions of Council 376 86 CHAPTER 10: DECISIONS OF AN ADMINISTRATIVE CHARACTER MADE UNDER AN ENACTMENT

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‘Decision’ 382 88 Making of reports or recommendations 389 89

‘Administrative character’ 409 94 Decisions of a judicial character 412 94 Decisions of a legislative character 415 95 Academic assessment decisions 425 97 Commercial decision making 426 98

‘Under an enactment’ 439 100 CHAPTER 11: OVERLAPPING JUDICIAL REMEDIES 102 Introduction 444 102 Appeals and other procedures 453 103

Customs 453 103 Taxation 462 105 Trade practices 476 108 Patents, trade marks and designs 480 109

Comment on the appropriateness of provisions for appeals, etc, to courts in other areas

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CHAPTER 12: OUSTER OF JURISDICTION OF STATE COURTS 113 Introduction 490 113 Case law 494 114 Conclusion 506 116

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Effect of cross-vesting scheme 508 116

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Paragraph Page CHAPTER 13~ IMPACT ON ADMINISTRATION 118 APPENDIX 1: CONSULTATIONS 120 APPENDIX 2: SCHEDULES TO THE AD(JR) ACT 122 APPENDIX 3: ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) AMENDMENT BILL 1987

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SUMMARY Judicial review in the Commonwealth is entrenched by the Constitution which, in section 75, enables review of Commonwealth administrative action to be sought in the High Court by the prerogative writs or by the orders of declaration or injunction. But the law relating to the prerogative remedies is notoriously complicated and contains many technical procedural snares. The purpose of the Administrative Decisions (Judicial Review) Act 1977 was to cut through that complexity and to simplify judicial review. In codifying the grounds of review and simplifying the procedures for review, the Act has proved to be a beneficial reform. Its success is acknowledged by applicants for review, by administrators and by the Federal Court which has jurisdiction under the Act. A more accessible procedure is now available for challenging on legal grounds administrative decisions which affect a person’s rights, interests or legitimate expectations. In this respect, but within the limits of the coverage of the Act, the judicial review facility placed in the hands of the Australian public by the Constitution has been made more effective. 2. There are, however, significant areas of administrative action to which the Act does not extend. These are areas which do not fall within the present definition of decision to which the Act applies. Decisions in this category include decisions not taken under an enactment and decisions excluded from the Act by Schedule 1. To obtain review of these decisions, an aggrieved person must approach the High Court, or alternatively the Federal Court in its prerogative writ jurisdiction under section 39B of the Judiciary Act 1903. The latter jurisdiction is derived from the prerogative writ jurisdiction of the High Court. Decisions of the Governor-General also are excluded from the ambit of the Act which was enacted at a time when it was not clear that, in appropriate circumstances, they could be reviewed by the courts. 3. This report recommends that the reforms of the Administrative Decisions (Judicial Review) Act be extended to certain non-statutory decisions made by officers of the Commonwealth and to statutory decisions of the Governor-General. It also recommends repeal of many of the paragraphs of Schedule 1. The changes are not seen by the Council as fundamental or sweeping. They will not extend in any way the areas of judicial review presently available in the Commonwealth. They will simply allow the reforms of judicial review brought about by the Act to apply to areas currently reviewable under the general law in accordance with procedures which the Act was intended to simplify. 4. In recommending an extension in the coverage of judicial review under the Act, the report proposes that certain limitations on review be written into the Act. It proposes that the Act be amended by provisions along the lines of the Administrative Decisions (Judicial Review) Amendment Bill 1987 to extend the powers of the Federal Court to refuse to grant applications for review especially in cases where the applicant has an alternative remedy available. The report also recommends that the Act be amended by the addition of a provision requiring the Federal Court not to grant an application for review if it is satisfied that the decision or conduct sought to be challenged is not justiciable.

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LIST OF RECOMMENDATIONS Recommendation 1: Extension of Act to certain non-statutory decisions made by officers of the Commonwealth (paras 161-1 74) (1) The definition of decision to which the AD(JR) Act applies ought to be amended to include a decision of an administrative character made, or proposed to be made, by an officer of the Commonwealth 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. (2) Section 3(3) of the Act ought to be amended by omitting the words ‘in the exercise of a power under that enactment or under another law. Recommendation 2: Statutory decisions of the Governor-General (paras 188-212) (1) The definition of decision to which the AD(JR) Act applies ought to be amended to remove the present exclusion of decisions of the Governor-General made under an enactment. (2) The Minister responsible for the advice tendered to the Governor-General ought to be named as respondent in any application for review of a decision of the Governor-General. Recommendation 3: Decisions of the Australian Industrial Relations Commission (paras 225-233) Paragraph (a) of Schedule 1 to the AD(JR) Act ought to be amended to refer to decisions of persons holding office under the Industrial Relations Act 1988. Recommendation 4: Decisions relating to security and intelligence (paras 236-259) Paragraphs (d) and (da) of Schedule 1 to the AD(JR) Act ought to be repealed.� Recommendation 5: Taxation decisions (paras 260-277) Paragraphs (e) and (g) of Schedule 1 to the AD(JR) Act ought to be repealed.* Recommendation 6: Decisions under Foreign Takeovers Act (paras 278-287) Paragraph (h) of Schedule 1 to the AD(JR) Act ought to be repealed.* Recommendation 7: Certain decisions under Banking (Foreign Exchange) Regulations (paras 288-290) Paragraph (j) of Schedule 1 to the AD(JR) Act ought to be repealed. Recommendation 8: Decisions of the National Labour Consultative Council (paras 291-292) Paragraph (I) of Schedule 1 to the AD(JR) Act ought to be repealed. Recommendation 9: Decisions under the Defence Force Discipline Act (paras 302-304) Paragraph (o) of Schedule 1 to the AD(JR) Act ought to be repealed. Recommendation 10: Decisions under the Customs Act to require anti-dumping securities (paras 305-308) � A minority of the Council disagree with these recommendations. The minority views are set out in the addendum to Chapter 6.

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Paragraph (p) of Schedule 1 to the AD(JR) Act ought to be repealed. Recommendation 11: Decisions concerning electoral redistributions under the Commonwealth Electoral Act (paras 309-315) Paragraph (q) of Schedule 1 to the AD(JR) Act ought to be repealed. Recommendation 12: Decisions of a magistrate of a State or Territory under the Extradition Act 1988 (paras 316-328) Paragraph (r) of Schedule 1 to the AD(JR) Act ought to be amended to refer to decisions of a magistrate of a State or Territory made in proceedings under the Extradition Act 1988. * Recommendation 13: Exclusions of review by means other than Schedule 1 (paras 329-334) (1) Section 1 9 ought to be amended by the insertion of a sunset clause which brings regulations made under the section to an end 1 2 months after the day on which they take effect. (2) Any Act which excludes the operation of the AD(JR) Act in relation to particular decisions should also specifically amend the AD(JR) Act. Recommendation 14: Exclusion from Act of decisions of magistrates in committal proceedings (paras 335-349) (1) Schedule 1 to the AD(JR) Act ought to be amended to include decisions of magistrates made in committal proceedings. (2) The definition in section 9(2) of decision to which section 9 applies ought to be amended to exclude such decisions from the operation of the section. Recommendation 15: The discretion of the Federal Court to refuse relief (paras 359-363) (1) The AD(JR) Act ought to be amended by provisions along the lines of the Administrative Decisions (Judicial Review) Amendment Bill 1987. (2) The Bill should be altered by substituting words along the following lines for the concluding words of proposed paragraph 10(2)(c):

the Court shall refuse to grant the application if it is satisfied, having regard to the interests of justice, that the alternative review right is, in all the circumstances, adequate.

(3) The Bill should be further altered by substituting words along the following lines for the concluding words of proposed paragraph 10(2)(d):

the Court shall refuse to grant the application if it is satisfied, having regard to the interests of justice, that it should do so.

Recommendation 16: Review under Act available only in relation to justiciable decisions (paras 364-380) (1) The AD(JR) Act ought to contain a provision which requires the Federal Court not to grant an application for a review of a decision or of conduct engaged in for the purpose of making a decision if it is satisfied that the decision or conduct is not justiciable. (2) A further provision should require the Federal Court, in exercising its power not to grant the application, to do so at the outset of proceedings wherever appropriate. Recommendation 17: Reports and recommendations (paras 389-408) (1) Section 6(1) ought to be amended to apply to conduct for the purpose of the making of a decision to which the Act applies whether by the person engaging in the conduct or by another person. (2) Consequential amendments ought to be made to sections 6(1)(c), 9(1)(b) and 3(5).

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INTRODUCTION

Council’s Review of the AD(JR) Act 1. One of the statutory functions of the Administrative Review Council is to inquire into the adequacy of the law and practice relating to the review by courts of administrative decisions and to make recommendations to the Attorney-General about any improvements that might be made. In 1980, before the Administrative Decisions (Judicial Review) Act 1977 (‘AD(JR) Act’) came into operation, Attorney-General Durack foreshadowed that the Council would be asked to review the operation of the Act after experience had been acquired of its operation. On 3 June 1983, Attorney-General Evans requested the Council to undertake the review. 2. Following the request to review the Act, the Council’s secretariat prepared an issues paper. It was circulated to interested groups and persons in July 1984. Public seminars to consider it were held in Canberra, Sydney and Melbourne in July and August 1984. Publication of issues concerning the Act and the discussions in public forums led to the Council receiving many submissions relating to the project from government agencies and private individuals and organisations. Many of the submissions received are not referred to in detail in this report but have been influential in its preparation and in the proposals for reform set out in it. 3. It became apparent to the Council following the receipt of submissions on the 1984 issues paper that the most pressing issue which needed to be addressed was the claim that advantage was being taken of the machinery of the Act to delay and frustrate certain areas of Commonwealth administration. This claim led to calls for appropriate action to be taken to prevent the Act being used in this way.

Stage 1 Report 4. The Council resolved that this matter ought to be dealt with as promptly as possible. Accordingly, the Council’s secretariat circulated in mid January 1986 a discussion paper which dealt specifically with the claim that the Act was being used in some areas merely to delay or frustrate Commonwealth administration. Following receipt of submissions on the discussion paper, the Council prepared a report to the Attorney-General, Review of the Administrative Decisions (Judicial Review) Act 1977: Stage 1, Report No. 26. The report was transmitted to the Attorney-General in August 1986 and was tabled in the Parliament on 25 November 1986. The report recommended amendments to the Act by which the Federal Court’s powers could be extended and clarified to enable it to stay or to refuse to grant applications for review in appropriate cases.

Fate of Amendment Bill in Parliament 5. The Administrative Decisions (Judicial Review) Amendment Bill 1986 was introduced into the House of Representatives on 22 October 1986. The Bill had not, however, been passed by the Senate before the dissolution of both horses of the Parliament on 5 June 1987. Following the general elections in 1987, a new Bill, the Administrative Decisions (Judicial Review) Amendment Bill 1987, was introduced into the Senate. The Bill was in substance identical to the 1986 Bill. It took account of the recommendations contained in the Council’s Report No. 26. In certain critical respects, however, it went further than had been recommended by

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the Council by requiring the Federal Court to refuse applications made under the AD(JR) Act where the applicant had an alternative right to seek review unless the applicant satisfied the Federal Court that the interests of justice required that it should not refuse to grant the application. 6. The 1987 Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs. It reported in October 1987. It recommended that the provisions contained in the Bill by which the onus was placed upon the applicant to satisfy the Federal Court that it should exercise its discretion not to refuse to grant the application for review should not be enacted. On 18 December 1987 the government responded in the Senate to the report of the Senate Standing Committee on Legal and Constitutional Affairs. The government said that it did not accept the recommendation of the committee that the ‘reverse onus provisions’ contained in proposed paragraphs 10(2)(c) and 10(2)(d) set out in the Bill not be enacted. The government said that, in its view, the proposed paragraphs struck an appropriate balance between the need to ensure efficient and economic use of administrative review processes and the right of the citizen to have access to judicial review of administrative action where, in the opinion of the Federal Court, the interests of justice so required. 7. The Bill was defeated in the Senate following resumption of debate on it on 28 April 1988. The Council understands that the government does not presently have plans to bring forward a fresh Bill dealing with the matters addressed by the Council in Report No. 26. In the broader sweep of the present report, however, the Council has itself considered those matters afresh.

Scope of Present Report 8. Whereas the stage 1 report was concerned solely with the alleged problem of use of the Act to delay and frustrate Commonwealth administration, the present report is concerned with the broader issue of the ambit of the Act. It also deals with the related issues of overlapping judicial remedies and the ouster of jurisdiction of State courts. 9. In order to assist in the preparation of the report, a draft report setting out draft recommendations was prepared by the Council and distributed to interested groups and persons in July 1988. The Council is grateful to all those groups and persons who accepted the invitation to comment on the draft report. A list of those who commented appears in Appendix 1. The Council also conducted public meetings on the draft report in Melbourne on 4 August 1988 and in Canberra on 5 October 1988. Again, the Council appreciates the helpful comments which were made in the discussions. 10. The AD(JR) Act was enacted for two purposes. The first was to establish a single, simple form of proceeding in the Federal Court for judicial review of Commonwealth administrative actions as an alternative to the cumbersome and technical procedures for review by way of the prerogative writs. The second was to give persons whose interests were affected by decisions taken in the exercise of statutory powers an entitlement to obtain a statement of reasons for the decisions. No longer would it be possible for a decision maker to hide behind silence. Given the twofold purpose of the Act, an examination of its ambit requires consideration of both the decisions for which review can be obtained under the Act and the extent of the statutory requirement for decision makers to provide statements of reasons for decisions upon request.

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11. In order to deal with the project in manageable chunks, however, the Council has confined this report to the ambit of the Act for judicial review purposes, leaving the issue of reasons to be dealt with in a separate study. The Council is proceeding with that study and expects soon to issue a draft report for public discussion purposes dealing with the statements of reasons issue. That report will take up any issues concerning the availability of statements of reasons which flow from the recommendations made in this report. In particular, it will consider whether those classes of decisions presently set out in Schedule 1 which the Council recommends in the present report should not continue to remain beyond the scope of review under the Act should nonetheless remain beyond the reach of section 13 of the Act. The Council is aware that the government will not wish to take action on the recommendations in this report which extend the ambit of review under the Act until such time as the Council is in a position to give it advice on the extent of the statements of reasons requirement.

A Lay Person’s Guide to the Report 12. Judicial review is a technical area of the law. Any report on judicial review in the Commonwealth will necessarily be a report of some technical complexity. It is a difficult area for most lawyers, let alone for those who do not have legal qualifications. While every effort has been made in the present report to make it as comprehensible as possible to persons who do not have a working familiarity with the area of judicial review, it is inevitable that some of the material in the report will be difficult for them. 13. The guide in this and the next paragraph may assist the lay person to come to grips with the report. The AD(JR) Act was passed by the Commonwealth Parliament to reform the law under which a person might challenge the lawfulness of a decision or of administrative action of a Commonwealth agency. Any challenge under the Act takes place in the Federal Court. Paragraphs 15-27 of chapter 1 describe how judicial review under the Act meshes with other forms of challenge of Commonwealth decisions or action and describes the nature of judicial review. The lay reader may, however, choose not to read paragraphs 37-61 of that chapter which deal with the law relating to the prerogative writs, preferring to take as given the complexity of that law and the fact that the AD(JR) Act was intended to replace it as the major means of challenging the lawfulness of administrative action. 14. The AD(JR) Act, as presently in force, does not permit review of decisions that are not made under statute, decisions that are made under statute but are made by the Governor-General and other decisions that are made under statute but are excluded from the scope of the Act by Schedule 1 to the Act. If it were thought appropriate to do so, one way of bringing non-statutory or executive decisions within the scope of the Act would be to extend its ambit to cover decisions of an officer of the Commonwealth. This proposal is discussed in Chapter 4. Chapter 5 discusses the bringing of statutory decisions of the Governor-General within the ambit of the Act. Chapter 6 contains a discussion of the decisions presently excluded from the scope of the Act by Schedule 1. The final chapter which the lay person might wish to read is chapter 13 which deals with the impact on Commonwealth government administration of the recommendations made in the report.

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CHAPTER 1

JUDICIAL REVIEW IN THE COMMONWEALTH

Introduction 15. Judicial review of Commonwealth administrative action is an integral part of the Commonwealth administrative review system. This chapter deals with judicial review in that context. It describes how judicial review is entrenched by the Constitution which, in section 75, enables review to be sought in the High Court by the prerogative writs or by the orders of declaration or injunction. As the chapter briefly indicates, however, the law relating to the prerogative remedies is notoriously complicated and contains many technical snares which may mean that, if the wrong remedy is sought, the whole proceedings may fail notwithstanding the substantive merits of the case. 16. The purpose of the AD(JR) Act was to cut through that complexity and to simplify judicial review. Significant areas of administrative action are not, however, covered by the Act. These are areas which do not fall within the present definition of decision to which the Act applies. To obtain review of these decisions, one must approach the High Court, or alternatively the Federal Court in its prerogative writ jurisdiction under section 39B of the Judiciary Act 1903. The latter jurisdiction is derived from the prerogative writ jurisdiction of the High Court under the Constitution. The implications of this present judicial review structure in the Commonwealth are mentioned in the concluding section of the chapter.

Nature of Administrative Review 17. Administrative review in the Commonwealth is concerned with review of actions of Commonwealth government departments and bodies. It places in the hands of the Australian community a means by which individuals dissatisfied with those actions can seek to have them reviewed. Although judicial review as an aspect of administrative review has been available in the High Court since the establishment of the Commonwealth, the three principal institutions which make up the modern system of administrative review in the Commonwealth are the Ombudsman, the Administrative Appeals Tribunal (‘AAT’) and the Federal Court. The nature of the review provided by each is different. Together they provide an integrated package of mechanisms for review: • The Ombudsman investigates complaints about defective administration and can

recommend appropriate redress. The Ombudsman conducts investigations in private and operates in a relatively informal way.

• The AAT has been given power, in some but not all areas of Commonwealth administration, to adjudicate on the merits of a specific decision by an administrator. The functions conferred on it are administrative in character. It initially seeks to conciliate the dispute in a private conference with the parties, proceeding to a more formal, public hearing if conciliation fails. It has power to change the decision if, on the basis of the material before it, it does not think that the decision was the correct or preferable one.

• The Federal Court is given power under the AD(JR) Act to review the legality of administrative decisions made under an enactment. It also has power under section 39B of the Judiciary Act to review by means of the prerogative writs the legality of action

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taken by an officer of the Commonwealth. Unlike the AAT, the court does not have power to substitute its own decision for that of the administrator. ‘The question for the court generally is whether the action is lawful in the sense that it is within the power conferred on the relevant minister, official or statutory body; or that the prescribed procedures have been followed; or that the general rules of law, including adherence to the principles of natural justice, have been observed.’ (Riordan v Parole Board of the Australian Capital Territory (1981) 34 ALR 322, 327)

18. The Ombudsman, the AAT and the Federal Court are independent of the administrator whose action is complained of Review by them, and by the High Court in its constitutional jurisdiction described below, complements the political process. One function of the Parliament is to scrutinise the actions of Ministers and the departments they administer. This scrutiny is one of the major checks and balances of our system of government, and the constituency work of members of Parliament is a fundamental part of that system. But members of Parliament cannot oversee every one of the hundreds of decisions affecting individuals in the community that are made every day by administrators. The administrative review system complements the parliamentary processes by providing facilities specifically designed for the redress of individual grievances.

Nature of Judicial Review 19. Judicial review of administrative decisions is an aspect of the rule of law which requires that executive action is not unfettered or absolute but is subject to legal constraints. The availability of judicial scrutiny of the legality of administrative action serves the twofold purpose of protecting individual rights and interests from unauthorised action and ensuring that public powers are exercised within their legal limits. The principle that administrative action be amenable to judicial scrutiny can be traced back at least to the early seventeenth century. By the beginning of the twentieth century the principle was well established, so that the right to obtain judicial review was one of the very few fundamental rights written into the Australian Constitution at federation. The basis of this right is to be found in the jurisdiction conferred on the High Court under sections 75(iii) and (v) of the Constitution. In Bank of NSW v Commonwealth (1948) 76 CLR 1, 363 (Bank Nationalisation Case) Justice Dixon said that section 75(v) was written into the Constitution ‘to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding federal power’. At a seminar on administrative review in Canberra on 15-16 May 1987, Sir Gerard Brennan of the High Court of Australia said:

So long as section 75(v) stands in the Constitution there can be no doubt but that administrative decision making by officers of the Commonwealth is open to judicial review. Statute cannot change that. It cannot be changed except by the will of the Australian people expressed under section 128 of the Constitution.

20. In the Commonwealth context, it is therefore a rule of fundamental constitutional importance that a decision made or action taken in the exercise of authority, whatever its source, is susceptible to review by the courts, if the decision maker or action taker is an officer of the Commonwealth or a person acting for or on behalf of the Commonwealth or a Commonwealth authority and if the decision or action affects a right, privilege, duty, obligation or legitimate expectation of a person. 21. As well as ensuring that public powers are exercised within their legal limits, judicial review serves to enhance community confidence about the standards that will generally be applied by the Commonwealth administration in making decisions which affect the interests

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of individuals in the community. An essential part of judicial review of administrative action has been the progressive development by an independent judiciary of procedural standards of fairness and lawfulness against which the powers of government officials may be measured. Values held in the contemporary community have influenced the development of those standards. Through the processes of judicial review, the community is provided with an assurance that powers which are exercised by government on behalf of the people may be scrutinised by the judiciary, and decisions or actions which infringe against the standards may be set aside. 22. On the other hand, the limited role of judicial review needs to be borne in mind. On a judicial review application, the court is concerned only with the legality of the decision or action in question. It is not concerned with the merits of the decision or action. While this distinction may not always be easy to make in practice, it does in the Council’s view properly mark out the role of the courts. It is appropriate that the courts are unable to stand in the shoes of the decision maker and to exercise a discretion on his or her behalf. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Justice Mason said (p.40-1):

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

23. The distinction between legality and merits will often be seen as most acute in those cases where the applicant’s prime concern is about the intrinsic merit of the decision affecting him or her but where, in the absence of a statutory right of merits review, the only avenue of challenge of the decision is judicial review. 24. It is sometimes suggested, particularly by administrators, that a problem with judicial review is that, although the grounds of review may be established and relatively certain, the uncertain application of the scope of many of them can give rise to considerable opportunity for the administrative process to become a fertile field for lawyers, and for the legal culture to have a dominant influence. If this is in fact a problem, it should not be overstated. Any risk of intrusion of excessive legalism into the administrative process may be addressed in part through the exercise by the courts of appropriate judicial restraint. In the Council’s view, judicial review cases in Australia have generally shown the courts to be careful to ensure that the administrative process by which government is carried on does not become a series of justiciable controversies. In the Commonwealth arena, this is exemplified by the attitude of the courts to review of decisions in the criminal committal process and in the public service promotion and personnel area. 25. One area in which the courts have clearly exercised restraint is where the effect of the case put to them by the applicant requires them to go beyond a decision as to the legality of a policy and to determine its reasonableness or appropriateness: NCA (Brisbane) Pty Ltd v Simpson (1986) 70 ALR 10. As Justice Brennan of the High Court has said:

In the world of politics, the court’s opinions on policy are naturally less likely to reflect the popular view than the policies of a democratically elected government or of expert administrators. The considerations by reference to which the reasonableness of a policy may be determined are rarely judicially manageable. For this reason, the court is slow to intervene when injustice has been done to individual interests by what may appear to be an unjust policy. (Judicial Review of Administrative Action in the 1980s, Taggart ed., 1986, 33)

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26. A more important answer to any risk of excessive legalism in the administrative process which judicial review might be thought to cause may lie in the hands of the government through structural adjustment in the administrative review area. The aim should be to ensure that judicial review is not the only avenue of challenge of decisions but performs its intended role of providing a remedy of last resort. In this regard, experience in the migration area is likely to prove instructive. There has been no satisfactory facility to date for the external review of decisions on their merits in that jurisdiction. As a result, migration decisions have formed the lion’s share of applications made to the Federal Court under the AD(JR) Act: 93 in a total of 287 applications in 1988; 94 in a total of 289 applications in 1987; 106 in a total of 303 applications in 1986. If the system of review on the merits of migration decisions proposed by the government towards the end of 1988 proves to be satisfactory, the Council would expect to see a significant falling-off in judicial review in the area. On the other hand, if the new system does not operate satisfactorily, judicial review applications may continue unabated. While the institution in the migration area of a system of review on the merits that is perceived to be satisfactory may have the effect of substituting review on the merits for judicial review, the result will surely be more satisfactory, both from the point of view of administrators and from the point of view of applicants, in enabling the real issues at stake to be addressed relatively cheaply and in enabling values other than legal values to be brought to the task of review. 27. The assertions that are made from time to time about a growing propensity for judicial review to interfere in the administrative process are not borne out in fact. Table 1 below sets out the total number of applications made under the AD(JR) Act in each of the past 5 years. The feature of the figures is the relative constancy in the number of applications from year to year. Furthermore, of course, the annual numbers of applications pale into insignificance when one considers the hundreds, if not thousands, of decisions to which the AD(JR) Act applies that are made every day by administrators across the spectrum of Commonwealth activity. Table 2, which sets out total review applications excluding migration applications as the largest single category, shows even more clearly how static the number of judicial review applications under the Act has been over the past 5 years.

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Judicial Review Under General Law High Court 28. Section 75(iii) of the Constitution confers jurisdiction on the High Court in relation to any matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party. Under this power the High Court can issue a declaration in respect of administrative action where the Commonwealth or its agent is a party to proceedings. The High Court’s jurisdiction to issue other administrative law remedies is made explicit in section 75(v) which provides that it has jurisdiction to grant mandamus, prohibition or an injunction against a Commonwealth officer. These are the remedies available at common law1 or, in the case of injunction, in equity. Federal Court 29. The original jurisdiction of the High Court under section 75(v) has now also been conferred on the Federal Court under section 39B of the Judiciary Act. That section and a related provision, section 44(2A), were enacted in 1983. They read as follows:

39B. (1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (2) The reference in sub-section (1) to an officer or officers of the Commonwealth does not include a reference to -

(a) a person holding office under the Conciliation and Arbitration Act 1904 or the Coal Industry Act 1946; or

(b) a Judge or Judges of the Family Court of Australia.

1 The one common law remedy not referred to is certiorari. However, it may sometimes be claimed as an alternative to prohibition in accordance with the principles discussed in R v Cook; ex parte Twigg (1980) 147 CLR 15, 26 per Justice Gibbs.

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44. (2A) Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court’s own motion, remit the matter, or any part of the matter, to the Federal Court of Australia.

Section 39B 30. This section has two significant effects. First, it enables prerogative writ proceedings to be commenced in the Federal Court. Secondly, it places the High Court in a position to remit to the Federal Court, in accordance with section 44 of the Judiciary Act, cases arising under the High Court’s jurisdiction under section 75(v). 31. The impetus for amending the Judiciary Act in this manner stemmed partly from the operation of the AD(JR) Act. Certain proceedings in the High Court had demonstrated that there remained situations where judicial review could be sought only in the High Court, because the ambit of the AD(JR) Act was restricted and section 9 of the Act ousted the jurisdiction of State courts. (See, for example, Appliance Holdings Pty Ltd v Commonwealth, High Court, unreported, 12, 16 May 1983 (Legal Reporter, vol. 4, no. 9, p. 11) and in the Matter of Hayes and Mercury Marie Pty Ltd; Ex parte Outboard Marine Australia Pty Ltd, High Court, unreported, 7, 10 June 1983.) In the absence of jurisdiction in either the Federal Court or State courts, remittal from the High Court was not possible. This was despite the beneficial interpretation given to section 44 of the Judiciary Act (as it then appeared) in Johnstone v Commonwealth (1979) 143 CLR 398 in which it was held that the power in the High Court to remit matters pending before it allows a matter to be remitted to a court which, although it does not have jurisdiction independently of the remitter, has ‘jurisdiction over the same kind of party and the same kind of subject matter as that over which the High Court has jurisdiction’ (per Justice Aickin at p. 408). Sir Harry Gibbs, Chief Justice of the High Court, had adverted to the need for legislative action in his address to the 22nd Australian Legal Convention, 1983, ‘The State of the Australian Judicature’ (Legal Reporter, vol. 4, no. 12, 28 July 1983, p. 6). 32. The High Court was concerned that it might be required to determine a significant number of applications arising in its original jurisdiction. In these circumstances, action was taken to relieve the High Court of that obligation. Section 44(2A) 33. The effect of this amendment is to enable the High Court to remit to the Federal Court matters arising in the High Court’s jurisdiction under section 75(iii) of the Constitution. The explanation for section 44(2A) was provided by Chief Justice Gibbs in State Bank of New South Wales v Commonwealth Savings Bank of Australia (1984) 58 ALJR 394:

...there remained some matters in respect of which neither the State courts nor the Federal Court had jurisdiction - particularly those matters in respect of which jurisdiction was removed from State courts by s.9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), but was not conferred on the Federal Court by s.5(1) of that Act... It was anomalous that matters of the kind described in Sch. 1 of that Act had to be heard in this Court, and the effect of subs.(2A) was to remove that anomalous limitation on the power of remitter. (p. 396)

34. In contrast with the section 39B procedure, no provision is made for proceedings referred to in section 44(2A) to be commenced in the Federal Court, possibly because section 75(iii) has a very broad application beyond administrative law matters.

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Prerogative writs 35. The High Court’s prerogative writ jurisdiction, now conferred on the Federal Court under section 39B, overlaps with the Federal Court’s other jurisdiction under the AD(JR) Act to the extent that the prerogative writs are available to review administrative actions by a Commonwealth officer which are made under an enactment. However, each form of review also has its own distinct application. The prerogative writ jurisdiction is not confined to enactments but extends to the review of any actions of a Commonwealth officer. The AD(JR) Act, on the other hand, covers decisions under an enactment, even if not made by an officer of the Commonwealth. 36. In order to provide some basis for comparison of the reforms made by the AD(JR) Act with the position under the prerogative writ procedures, it is necessary to provide a brief description of the grounds on which the legality of action could be reviewed by the writs and of the rules relating to these common law remedies. Common law grounds of review 37. The established grounds on which at common law administrative action may be reviewed by the courts for illegality are ultra vires, denial of natural justice, jurisdictional error and non-jurisdictional error of law on the face of the record. Ultra vires 38. The doctrine of ultra vires is often described as having two forms - narrow or simple ultra vires, and broad or extended ultra vires. Narrow ultra vires is generally well understood. The principle is that a public authority may not act beyond its statutory power. Broad ultra vires encompasses abuse of power and defects in its exercise. As Enright says:

At first glance it may seem surprising that ultra vires extends to misuses and defects, as these do not appear to involve an excess of power. Behind this extension is the view that conferment of a power authorises only a proper exercise of it, not an improper one. (Judicial Review of Administrative Action, 1985, 557)

Abuse of power includes exercise of power for an improper purpose, taking irrelevant considerations into account, unreasonable exercise of power, etc. These aspects of broad ultra vires may be seen set out in section 5 of the AD(JR) Act. Natural justice 39. Briefly, natural justice comprises 2 common law rules designed to ensure that fair procedures are followed in making decisions which affect the rights, obligations or legitimate expectations of individuals. The rules are, first, that in certain circumstances a decision maker must afford a hearing to a person whose interests will be affected by a decision and, secondly, that the decision maker must not be biased. Again, the natural justice ground of review is also an important ground of review under the AD(JR) Act. Jurisdictional error and error of law on the face of the record 40. ‘Jurisdiction’ may be translated as ‘power to act or decide’. The difference between ultra vires and jurisdictional error is described by Hotop as follows:

Like the doctrine of ultra vires, jurisdictional error involves bodies acting beyond their lawful authority. Historically, however, the term ‘vires’ was applied to non-judicial bodies exercising legislative or administrative powers, whereas the term ‘jurisdiction’ was used in relation to inferior courts or tribunals exercising judicial or quasi-judicial powers. (Principles of Australian Administrative Law, 6th ed, 1985, 247)

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Prior to the decision in Anisminic Ltd v Foreign Compensation Tribunal [1969] 2 AC 147, a distinction was drawn between errors of law ‘going to jurisdiction’ (jurisdictional errors of law) and errors of law ‘within jurisdiction’ (non-jurisdictional errors of law). A good example of a jurisdictional question is given by Cane (An Introduction to Administrative Law, 1986, 63):

Suppose, for example, that a rent assessment committee has power to fix a fair rent of premises (a discretionary power) but only if the premises are furnished (a jurisdictional question). The question of whether the decision as to what a fair rent would be is valid or not will only arise if the premises in question were furnished.

According to the traditional distinction between jurisdictional and non-jurisdictional errors of law, the courts could review errors of law on matters going to jurisdiction but not errors of law on matters within jurisdiction. There was, however, one significant exception: the courts could review an error of law on a matter within jurisdiction if the error was apparent on the face of the ‘record’. 41. In Anisminic the majority of the House of Lords held that the court could quash a decision for error of law even though it was an error made in the process of exercising the power rather than an error in deciding whether the power existed. The effect of the Anisminic decision was to blur the distinction between jurisdictional and non-jurisdictional errors of law. However, several Australian cases (some of which are referred to in Sykes, Lanham and Tracey, General Principles of Administrative Law, 2nd ed. (1984), pp 59-60) have recognised that the distinction between jurisdictional and non-jurisdictional errors of law still subsists (see Houssein v Under Secretary. Department of Industrial Relations and technology (1982) 148 CLR 88). In a 1982 article which reviewed Australian cases since 1969 one Australian writer expressed the following conclusion:

The point should first be made that Australian judges do not appear to have doubted the continuing validity of the distinction between jurisdictional and non-jurisdictional error . . . There are no cases where judges have contemplated the merging of the two categories of error of law, no matter how close the practical effect of their judgments has brought them to this point. (Bath, ‘The Judicial Libertine - Jurisdictional and Non-jurisdictional Error of Law in Australia’ (1982) 13 FL Rev 13. 18)

Common law remedies 42. The traditional way at common law of challenging the validity of administrative action is by use of the prerogative writs of prohibition, certiorari and mandamus or the equitable remedies of injunction and declaration. This section of the chapter briefly discusses these remedies. The point of the discussion is to provide a basis on which the difference between them and the order of review procedure provided for in the AD(JR) Act can be grasped. 43. It is true to say that there have been developments concerning the features of the common law remedies since the AD(JR) Act was enacted, eg, in relation to different standing requirements for the different remedies. In relation to standing, Lord Diplock referred in R v Inland Revenue Commissioners; ex pane National Federation of Self-Employed and Small Businesses Ltd (1982] AC 617, 640 to a ‘virtual abandonment’ of the former restrictive rules as to the locus standi of persons seeking prerogative orders against authorities exercising governmental powers. To the extent that any such developments mean that a particular feature of the common law remedies no longer constitutes a significant difference from the order of review procedure in the AD(JR) Act, the discussion below does not concern itself with that feature.

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44. The prerogative writs share few common features. One such feature, however, is that the granting of the writs is discretionary. That is to say, even when the grounds that have to be satisfied before the particular writ concerned is issued are satisfied, the court may nonetheless refuse to issue the writ on discretionary grounds, eg, because of delay in seeking the remedy (see, eg, Queensland v Commonwealth (1988) 77 ALR 291), acquiescence by the applicant in the conduct complained of, etc. Another major feature of the prerogative writs is that historically, and in the absence of statutory reform, they involve a 2-step procedure. The procedure is commenced by the applicant making an ex parte application to the court for an order nisi, that is, an order that the writ be issued unless cause is shown as to why it should not be issued. The order is normally granted if a prima facie case is shown. Following service of the order, the court hears a motion to make the order absolute. At the completion of this hearing, at which the parties argue the issues involved, the court either makes the order absolute or discharges it. Prohibition and certiorari 45. In simple terms the writ of prohibition stops a body from continuing on an erroneous path. It follows that it cannot issue if the decision maker has exhausted his or her power. Certiorari, on the other hand, quashes a completed decision. 46. The classic statement of the circumstances in which the remedies of prohibition and certiorari become available was made by Lord Atkin in R v Electricity Commissioners; ex parte London Electricity Joint Committee Co [1924] 1 KB 171, 205:

Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to [the writs of prohibition and certiorari].

The concept of a duty to act judicially in the context of natural justice was modified by Lord Reid’s judgment in Ridge v Baldwin [1964] AC 40 where he expressed the view that the obligation to act judicially was not a separate requirement but could be deduced from the nature of the power given to the body. He said that any body having the power to make decisions affecting rights was under a duty to give a fair hearing. It now appears that a body obliged to observe natural justice will be regarded, by virtue of that fact alone, as having a duty to act judicially for the purposes of the availability of prohibition and certiorari: Aronson and Franklin, Review of Administrative Action (1987), 577. 47. However, areas of uncertainty appear to subsist in the law concerning the availability of certiorari. Thus, the High Court has held that certiorari is not available to quash relevant parts of a report of a Royal Commission because the report itself is merely a report to the executive, not in itself legally affecting the rights of the applicant: R v Collins; ex parte ACTU-Solo Enterprises Pty Ltd (1976) 8 ALR 691. (Certiorari may, however, be available to quash a coercive order of a Royal Commissioner: Thelander v Woodward [1981] 1 NSWLR 644. R v Collins still appears to be good law in Australia. In Mahon v Air New Zealand (1985) 50 ALR 193 the Privy Council left open the question whether the report of a Royal Commissioner could be quashed.) Furthermore, the courts in New South Wales have held that even though a committal hearing affects rights, the magistrate is acting in an executive (rather than judicial manner) and is therefore not amenable to the writs of certiorari and prohibition: Ex parte Cousens; Re Blacket (1946) 47 SR(NSW) 145. 48. If a decision has already been made by an administrative tribunal or other public authority, certiorari is available to quash the decision for jurisdictional error of law or on the ground that the decision was made in contravention of the rules of natural justice.

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Prohibition is available on the same grounds, although, as was mentioned above, it will only issue if there is some action remaining to restrain. 49. Only certiorari, however, is available to quash a decision vitiated by a non-jurisdictional error of law. The court will only do so if the error of law appears on the face of the record: Hockey v Yelland (1984) 157 CLR 124. What constitutes ‘the record’ for these purposes may be difficult to determine. There is general agreement that the formal order of a tribunal will be included in the record but the courts have differed on what else is included (see Aronson and Franklin, Review of Administrative Acton (1987), 558-62). In the United Kingdom, section 12 of the Tribunals and Inquiries Act 1971 imposes an obligation on many tribunals to give reasons for their decisions upon request. It also provides for those reasons to form part of the record. Likewise, section 10 of the Administrative Law Act 1978 of Victoria provides that a statement of reasons given under that Act is to be taken as forming part of the record. 50. Although under the procedure for review in the AD(JR) Act the notion of the record is not relevant, it is suggested that a statement of reasons provided under section 13 of that Act would be likely to be regarded as forming part of the record for the purpose of any prerogative writ proceedings. Some support for this view is provided by Coles v Burke (1987) 10 NSWLR 429 in which the New South Wales Court of Appeal held that the reasons given by a District Court judge formed part of the record for the purposes of certiorari. 51. A decision vitiated by non-jurisdictional error of law is not a nullity. It is voidable in the sense of being legally effective until quashed by certiorari. Mandamus 52. Whereas certiorari and prohibition are concerned with control of the exercise of discretionary powers, the prerogative writ of mandamus is designed to enforce a public duty which has been imposed upon a public official or body. It also lies for a refusal to exercise the jurisdiction conferred on a tribunal, but does not lie for error of law that does not go to jurisdiction: Re Queensland Electricity Commission; ex parse Electrical Trades Union of Australia (1987) 72 ALR 1, 4. 53. The traditional learning is that mandamus does not lie against the Crown nor against a Crown servant acting in his or her capacity as a Crown servant. However, if the duty is imposed on the Crown servant not in that capacity but as a persona designate, then mandamus will lie. The distinction may not be an easy one to make. The position was stated by Chief Justice Bray of South Australia in G H Mitchell and Sons (Australia) Pty Ltd v Minister for Works (1974) 8 SASR 7, 14 as follows:

Mandamus will not lie against the Crown or against a Minister of the Crown when acting purely as a servant of the Crown, but it may go against him where he is charged with the performance of some statutory duty and the applicant for mandamus is entitled to have an act done in the discharge of that duty without which he cannot enforce or enjoy some right which he possesses. As it is sometimes put, mandamus will lie against a Minister when he is acting, not simply under a duty to the Crown as its servant, but as a persona designata.

Support for this view may be found in R v Toohey; ex parse Northern Land Council (1981) 151 CLR 170 in which the High Court indicated that judicial review would lie against the Crown representative in relation to the exercise of a power conferred on him by statute (Justice Stephen at p. 204; Justice Mason at p. 223), although Chief Justice Gibbs in particular

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indicated that the writs of certiorari and mandamus would not issue against the Crown as such (p. 186). 54. An important limitation on the availability of mandamus is that it is generally regarded as a remedy of last resort. Thus the courts have said that mandamus will not be granted if another remedy is available: R v Paddington Valuation Officer; ex parte Peachey Property Corporation Ltd [1966] 1 QB 380. On occasion this view has been maintained even where the alternative remedy is arguably illusory, eg, an appeal to the visitor of a university where the visitor is the King-in-Council: R v Dunsheath; ex parte Meredith [1951] 1 K13 127. Injunction 55. Like the remedy of a declaration, and unlike the prerogative writs, an injunction was historically a private law, as opposed to a public law, remedy. The injunction performs essentially the same function as the writ of prohibition, namely to restrain a person or body from illegal action, but can also be used to prevent the execution of a completed decision. It is available to protect private and public statutory rights. Declaration 56. Although the declaratory order has its genesis in the 16th century, it was not commonly used in English or Australian law until the 20th century. Use of the declaration to challenge administrative action came to prominence in the United Kingdom following the leading case of Dyson v Attorney-General [1911] 1 KB 410. The constitutional jurisdiction of the High Court of Australia meant that use of the declaratory procedure in constitutional law matters has been common since the establishment of the Commonwealth. However, until the end of the Second World War, the prerogative writs were the main method of judicial review of administrative action (see Young, Declaratory Orders, 2nd ed. (1984), 116). Since then the declaration has become widely used as an alternative means of review. A declaration declares what the legal position of the parties is. It does not have coercive force. ‘Being a non-coercive remedy . . ., it is very useful in situations where the seeking of a coercive remedy might be thought unnecessarily aggressive, and where the plaintiff is confident that the defendant will do the right thing once he knows what it is’ (Cane, An Introduction to Administrative Law (1986), 147). Many examples of the use of the declaratory order to review administrative action may be given (see chapter 13 of Young, op. cit.). 57. The Federal Court is given power under section 21 of the Federal Court of Australia Act 1976 to make a binding declaration of right in relation to a matter in which it has original jurisdiction. The power of the Federal Court to grant a declaration in respect of Commonwealth administrative action therefore depends upon whether the action relates to a matter in respect of which it has been given jurisdiction. 58. It seems that the remedy of declaration is available in relation to jurisdictional errors but not as a remedy for error of law on the face of the record: Punton v Ministry of Pensions and National Insurance (No 2) [1964] 1 All ER 448. 59. However, in general, the declaration is a more flexible remedy than the prerogative writs. In Sankey v Whitlam (1978) 142 CLR 1, 22 Chief Justice Gibbs said that ‘if the decision of a magistrate is immune from review by means of the prerogative writs it does not follow that a declaration cannot be made in relation to the subject matter of the proceedings’.

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Procedural reform of common law 60. In the Commonwealth procedural reforms have recently been made in relation to the Federal Court’s prerogative writ jurisdiction under section 39B of the Judiciary Act. The reforms were made by amending Federal Court Rules which came into effect on 26 April 1988. Until that date, the 2-step procedure (order nisi, final order) described in paragraph 44 applied in relation to the court’s jurisdiction to grant prohibition or mandamus against a Commonwealth officer. That 2-step procedure was based on the procedure to be found in the High Court Rules (Order 55) in relation to the High Court’s prerogative writ jurisdiction. Under the amended Federal Court Rules, however, an application for an order under section 39B is to be made in the same way as applications are ordinarily made in the Federal Court’s original jurisdiction. The application is required to be supported by affidavit, to state the relief sought by the applicant and the name of the Commonwealth officer against whom the order is sought. The amended rules also permit the bringing in the one application of proceedings under section 39B of the Judiciary Act and proceedings under the AD(JR) Act. 61. This procedural reform of the Federal Court Rules removes the 2-step procedure for obtaining a prerogative writ under section 39B. The reform does not, however, affect the substantive law concerning the operation and availability of the writs.

The AD(JR) Act 62. The principles of judicial review have developed dramatically during this century, in response to the growth of executive government. As can be seen from the brief analysis in the previous section of this chapter, however, judicial review at common law abounds with technicality and complexity. The choice of the wrong remedy may be fatal to an applicant’s case. The technicality of the rules surrounding the remedies is perhaps not surprising given their haphazard and incremental development as judge-made rules. But, as time has gone on, a clear need for simplification has arisen. 63. The AD(JR) Act was developed and put in place in the Commonwealth as a response to the perceived need for reform. The Act resulted from the recommendations of the Commonwealth Administrative Review Committee (‘the Kerr Committee’) which presented its report to the government in August 1971. In its report the Kerr Committee recommended wide ranging reforms to simplify and improve the scheme of judicial review which then applied in the Commonwealth area. 64. One of the primary purposes of the Act was to free the courts from the need to identify the character of the remedy being sought. A significant reform made by the Act is that it allows the courts to consider the substance of the particular grievance before deciding upon the appropriate remedy. The prime question on a judicial review application under the Act is whether a particular ground of review exists. Other significant reforms made by the Act were to establish a simple, single form of proceeding in the Federal Court for obtaining judicial review and to codify the grounds of review. As with review under the prerogative writs, however, orders of review under the Act are discretionary: Lamb v Moss (1983) 49 ALR 533. Even if a decision falls within the ambit of the Act and grounds of review are established, the circumstances may be such that the Federal Court will not grant an order of review. (See Attorney-General for the Northern Territory v Hand (1988) 15 ALD 186 where the Federal Court found that the Minister had breached the rules of natural justice in failing to inform the applicant of certain representations made to him and in failing to give the

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applicant an opportunity to respond to them, but where the court nonetheless declined on discretionary grounds to quash the Minister’s decision.) 65. The Act also gave a person who is entitled to make an application under the Act for review of a decision a right to request the decision maker to provide a statement of reasons for the decision unless the decision is included in any of the classes of decisions set out in Schedule 2 to the Act. This is perhaps the major innovation of the Act. At common law, a person whose interests are affected by a decision has no right to obtain a statement of reasons for the decision: Public Service Board of New South Wales v Osmond (1985) 159 CLR 656. The extent of the right to request a statement of reasons requires special attention and is examined by the Council in a separate part of its project on the AD(JR) Act. 66. Procedural reforms of prerogative writ procedures, such as those made by the recent amendments of the Federal Court Rules, whereby proceedings may be commenced by application in much the same way as other applications for relief have the effect of bringing the procedures close to the procedures under the AD(JR) Act. However, the substantive differences between prerogative writ proceedings, or proceedings analogous to prerogative writ proceedings, and proceedings under the AD(JR) Act still remain. Some of those substantive differences are: • Applicants under the AD(JR) Act do not have to choose a particular remedy. They

simply seek an order of review. In prerogative writ review, on the other hand, there is a risk that if the wrong writ is chosen, relief may not be available.

• The grounds of review under the AD(JR) Act are set out in the Act. This assists applicants in framing a case. It also has educational advantages for public administrators, promoting internalisation of the rules of law.

• The distinction between jurisdictional and non-jurisdictional errors of law is of no significance.

• There is no need to determine what constitutes ‘the record’. • The learning about the prerogative writ of mandamus not lying against a Crown servant

acting in his or her capacity as a Crown servant is unimportant (section 3(1) of the Act defines ‘duty’ as including ‘a duty imposed on a person in his capacity as a servant of the Crown’).

• The remedies which the Federal Court can grant under section 16 are broader than those available at common law. One difference is that the court may make an order quashing a decision from a date earlier or later than the date of the order (see, Wattmaster Alco Pty Ltd v Button (1986) 70 ALR 330).

67. The AD(JR) Act was enacted in 1977 but did not come into force until 1 October 1980. Section 5 provides that a person who is aggrieved by ‘a decision to which this Act applies’ may apply to the Federal Court for an order of review on any of several enumerated grounds. The grounds for the most part constitute a codification of the common law grounds of review but are intended to allow room for judicial development (see particularly s.5(1)(h)). Section 6 makes provision for judicial review applications in relation to conduct for the purpose of making a decision to which the Act applies, and section 7 makes provision for judicial review applications in relation to failures to make decisions to which the Act applies. A ‘decision to which this Act applies’ is defined in section 3(1) as:

a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1.

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68. It is important to note that, even though a decision may fall within that definition, it does not follow that the decision is thereby exposed to all the grounds of review set out in section 5 of the Act. The position was made clear by the High Court in Kioa v West (1985) 159 CLR 550 where it held that section 5(1)(a) of the Act, which provides that a decision made under an enactment may be reviewed on the ground of breach of the rules of natural justice, does not impose an obligation to apply those rules where, under the general law, there is no obligation to comply with them (see, eg, Chief Justice Gibbs, p.566-7; Justice Mason, p.576-7). Similarly, in ‘Sydney’ Training Depot Snapper Island Ltd v Brown (1988) 14 ALD 464, Justice Wilcox mentioned that judicial review on the grounds of breach of the rules of natural justice would not be available where the decision concerned was made solely in the exercise of a right of private property. 69. A significant step taken in the AD(JR) Act was to remove from State courts the major part of their jurisdiction to review Commonwealth administrative action. This ouster of jurisdiction, which extends beyond the coverage of the Act, is more fully discussed in chapter 12. 70. The AD(JR) Act has, in the Council’s view, been an effective and significant reform. Administrators too have acknowledged its effectiveness. Indeed, the impression given in some of the submissions made to the Council by government bodies is that the Act has been too effective in doing what its original proponents intended for it; they therefore suggest that its scope needs to be carefully scrutinised. In the light of the purpose of the reforms made by the Act, the Council finds it a little odd that it should occasionally be argued that some classes of decisions should not be covered by the Act because the Act makes judicial review more accessible. 71. A possible danger in the enactment of codifying legislation such as the AD(JR) Act is that the Act may lead to rigidity in the law. That is to say, the Act, which was intended as the primary means for obtaining judicial review of Commonwealth administrative action, may stand still while the common law develops, thus detracting from the primacy of the Act. That danger is illustrated in the development, discussed in chapter 2, of the scope of judicial review at common law. While the Act gives rise to a potential for dangers of this kind, it is not, in the Council’s view, a fundamental objection to the approach taken in the Act. It simply means that the Act needs to be kept under review and updated as necessary. The ongoing review task is one the Council was set up to perform.

Implications of Present Judicial Review Structure 72. The High Court’s constitutional judicial review jurisdiction is relevant to a review of the AD(JR) Act because it continues to provide a guaranteed means of review for matters not covered by the Act. The High Court’s original jurisdiction cannot be removed, short of a constitutional amendment, whatever limits are imposed on the jurisdiction of the Federal Court under sections 39B and 44(2A) of the Judiciary Act or under the AD(JR) Act. 73. Effectively, however, the issue that needs to be faced in a review of the AD(JR) Act is whether the substantive reforms introduced by that Act should be extended to areas of Commonwealth administrative action now excluded from its operation or whether those areas should continue to be covered only by the prerogative writs. In considering that question four points need to be borne in mind: • First, the AD(JR) Act already overlaps most of the area covered by the area of the section

39B jurisdiction. Accordingly, any extension of the Act to cover the whole of that

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jurisdiction would not be a significant change and would not extend at all the scope of judicial review in the Commonwealth.

• Secondly, if the AD(JR) Act is not extended, applicants will still have recourse to the prerogative writ procedures.

• Thirdly, the recent amendments of order 54A of the Federal Court Rules enable an applicant to seek in the one application relief under section 39B and under the AD(JR) Act. These amendments suggest that there is no longer a valid case for saying that the review of certain decisions should be subjected to the more complicated procedures of the prerogative writs. The Council considers that the argument is of doubtful validity in any event if it is intended to discourage resort to administrative review. Evidence from certain administrative law practitioners in New South Wales suggests that, notwithstanding the complexity of prerogative writ procedures, they will be resorted to if necessary by those with the financial resources to do so.

• Fourthly, and perhaps most significantly, retaining the present coverage of the AD(JR) Act is likely to have the effect in certain cases that an applicant’s case for judicial review is submerged in unproductive and costly jurisdictional tangles about whether a particular decision was made under an enactment or pursuant to prerogative or executive powers. In Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290, which concerned a request for a statement of reasons rather than an application for judicial review, it ultimately became necessary for the High Court to determine whether the decision to refuse Mr Mayer refugee status was a decision made under an enactment and therefore subject to the AD(JR) Act or a decision made pursuant to prerogative or executive powers.

74. Since 1984 when the amendments of the Judiciary Act were made to introduce section 39B and thereby to confer a prerogative writ jurisdiction on the Federal Court, limited use has been made of that jurisdiction. Reference might be made to the following cases by way of example: Re Minister for Communications; ex parte NBN Ltd (1987) 12 ALD 150 (mandamus); R v Maurice: ex parte Attorney-General (NT) (1987) 73 ALR 123 (separate applications under the AD(JR) Act and under section 39B); Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 67 ALR 195 (separate applications under the AD(JR) Act and under section 39B); Mostyn v Deputy Commissioner of Taxation (1987) 73 ALR 396 (separate applications under the AD(JR) Act and under section 39B); Baker v Evans (Federal Court, unreported, 26 May 1987) (separate applications under the AD(JR) Act and under section 39B); Adco Marine Pty Ltd v Collector of Customs (1987) 79 ALR 478 (mandamus). 75. Table 3 shows in absolute terms the relative numbers of applications filed since 1 January 1984 under the AD(JR) Act and section 39B.

Table 3 Judicial review applications

Year AD(JR) Act s.39B Both AD(JR) Act Only only and s.39B 1984 241 44 7 1985 258 23 6 1986 302 25 1 1987 281 10 8 1988 278 5 9 1360 107 31 Source: Federal Court registry, Sydney

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In the period from 26 April 1988 to 31 December 1988 which followed the amendments of order 54A of the Federal Court Rules enabling an applicant to seek in the one application relief under section 39B and under the AD(JR) Act, 7 applications of this kind were made.

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CHAPTER 2

DEVELOPMENT OF SCOPE OF JUDICIAL REVIEW AT COMMON LAW SINCE AD(JR) ACT CAME INTO FORCE

76. This chapter describes the two areas of administrative action which, as a result of developments in the general law, are now susceptible to judicial review under the general law but are not covered by the AD(JR) Act. The areas concern the exercise of powers reposed by statute in the Governor-General or a Governor and the exercise of prerogative powers, whether exercisable by the Crown representative or a Minister. It is necessary for these areas to be examined in a review of the AD(JR) Act because its coverage and its reforms do not extend to decisions made otherwise than under statutory power nor to decisions of the Governor-General made under statutory power. In the latter case the Act as enacted, in excluding decisions of the Governor-General from its ambit, reflected the then common law position that the courts would not review such decisions (except on the ground of simple ultra vires). 77. The development towards increased intervention that has occurred at common law in these areas has been accompanied by development in the notion of justiciability as a limiting factor on judicial scrutiny. That development, which is described below, relates not only to the areas of the exercise of prerogative power and the exercise of statutory power by a Crown representative but may also have relevance in relation to the exercise of statutory power by other officials (see, for example, Barton v R (1980) 147 CLR 75 where the High Court concluded that a statutory power vested in the Attorney-General of New South Wales to file an ex officio indictment was not examinable by the courts; cf Newby v Moodie (1989) 83 ALR 523 where the full court of the Federal Court denied that non-justiciability was relevant to a decision of the Director of Public Prosecutions made under the provisions of the Director of Public Prosecutions Act to institute and maintain a prosecution for an offence against Commonwealth law). However, non-justiciability is a notion which, because of its nature, is likely to arise more often in connection with exercises of non-statutory power. Prerogative Powers

78. The prerogatives of the Crown have an ancient source. They have been described as ‘the remnants of English absolute monarchy - of the autocratic position of the medieval Crown’ (Fajgenbaum and Hanks, Australian Constitutional Law, 1st ed., 1972, 49). The narrow (but arguably strictly correct) view of prerogative power as expressed by Blackstone is that it refers to legal power of a non-statutory origin pertaining to the Crown alone. The modern, and wider, view of prerogative power as expressed by Dicey (Law of the Constitution, 10th ed., 1959, 424) is that it encompasses every non-statutory power which the executive can lawfully exercise irrespective of whether the power is unique to the executive (see R v Criminal Injuries Compensation Board; ex parte Lain [1967] 2 QB 864; Council of Civil Service Unions v Minister for Civil Service [1985] AC 374). 79. Dr H.V. Evatt in his thesis, The Royal Prerogative (Law Book Company, 1987), classified prerogatives into 3 broad classes: (a) executive powers, such as the power to declare war, appoint ambassadors, etc; (b) immunities and privileges, such as the right to be paid a debt before other creditors; (c) proprietary rights, such as treasure trove and the

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wastelands of a colony. For the purposes of the present discussion of judicial review, probably only the executive powers need to be considered. 80. Despite the antiquity of prerogative power and despite the gradual march of statutory provisions which have had the effect of supplanting it, particular prerogatives remain actively in use. Thus, as the submission of the Attorney-General’s Department to the Council indicated, in some 150 cases per year in the Commonwealth the question arises of the exercise of the prerogative of mercy. These cases mainly involve applications for pardon or remission of fines in connection with breaches of taxation law. The appointment of ambassadors by the Governor-General is a further example of a common use of prerogative power. Other examples of traditional prerogative executive powers include the powers vested in the Attorney-General to enter a nolle prosequi, to grant or refuse a fiat in a relator action or to file an ex officio indictment. 81. The wider Diceyan view of prerogative power would encompass all executive powers which the Commonwealth may lawfully exercise. Clearly, the range here is broad. As the commentary of Professor Zines in Evatt, The Royal Prerogative, indicates, generally speaking ‘the criterion adopted by the High Court in respect of the executive power of the Commonwealth is . . . whether the subject comes within Commonwealth legislative power’ (p. C12). Additionally, however, the Commonwealth has executive power which is implied from its existence and status as a national government (see Australian Assistance Plan Case (1975) 134 CLR 338; Davis v Commonwealth (1989) 82 ALR 633). The power of the Commonwealth to enter into contracts falls within this broader view of prerogative power. 82. In the Commonwealth, section 61 of the Constitution has had the effect of conferring on the Commonwealth ‘all the prerogative powers of the Crown except those that are necessarily exercisable by the States under the allocation of responsibilities made by the Constitution and those denied by the Constitution itself: Davis v Commonwealth (1989) 82 ALR 633, 640. Section 2 has also been regarded as providing a separate source of power. However, it is arguable that the position that has been reached in the High Court in relation to the construction of section 61 means that little, if any, operation should now be accorded to section 2 (see Zines commentary in Evatt, The Royal Prerogative, pp C5-C7). On the other hand, it is not certain that the Governor-General has in all cases power under section 61 to grant royal charters; an assignment of power to the Governor-General by the Queen may be preferable (for a recent use of section 2, see the assignment by Her Majesty dated 8 December 1987 of the power to amend charters). For present purposes, the position in relation to royal charters may be put to one side. 83. Prerogative powers have often been regarded by the courts as unsuitable for review because it is said that the nature and subject matter of the discretions concerned do not lend themselves to supervision by the courts. In R v Toohey: ex parte Northern Land Council (1981) 151 CLR 170, Justice Mason listed the reasons for a distinction between the reviewability of a statutory decision and a decision made pursuant to a Crown prerogative as follows:

The statutory discretion is in so many instances readily susceptible to judicial review for a variety of reasons. Its exercise very often affects the rights of the citizen; there may be a duty to exercise the discretion one way or another; the discretion may be precisely limited in scope: it may be conferred for a specific or an ascertainable purpose; and it will be exercisable by reference to criteria or considerations express or implied. The prerogative powers lack some or all of these characteristics. Moreover, they are in some instances by reason of their very nature not susceptible of judicial review.(p. 219)

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84. The present position in England, however, is that in certain circumstances certain prerogative powers are reviewable by the courts: Council of Civil Service Unions v Minister for Civil Service (the GCHQ Case) [1985] AC 374. Lord Denning in an earlier case, Laker Arrways v Department of Trade [1977] QB 643, had expressed his view on why such powers ought to be subject to review as follows:

Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive. (p. 705)

85. In Australia too it now seems to be clear that judicial review is not excluded merely because the power exercised was a prerogative power. Although the High Court has indicated that certain prerogative powers are not susceptible to judicial review (Justice Mason in Toohey mentioned the prerogative discretions of the Attorney-General to enter a nolle prosequi, to grant or refuse a fiat in a relator action and to file an ex officio indictment and the royal prerogatives relating to war and the armed services), the fact that a particular power is to be found in the prerogative does not make it unexaminable as such. In Toohey Justice Mason saw the question as being ‘whether the exercise of the particular prerogative power is susceptible of review and on what grounds’ (p. 221). This sentiment was echoed by Lord Scarman in the GCHQ Case who said that ‘the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter’ (p. 407). In Minister for Arts Heritage and the Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 the full court of the Federal Court held that executive action was not immune from judicial review merely because it was carried out in pursuance of a power derived from the prerogative rather than a statutory source. The High Court refused special leave to appeal from the Federal Court’s decision in the case.

Statutory Powers Vested in Governor-General 86. Until the decision of the High Court in R v Toohey; ex pane Northern Land Council the common view was that acts of the Crown representative could not be examined by the courts (otherwise than for lack of authority). The rule that acts of the Crown representative could not be impugned was based on the doctrine of sovereign immunity under which the Sovereign and her representatives were regarded as immune from suit. The High Court in Toohey held that the doctrine of sovereign immunity, to the extent that it continued to have any application at all, had no application to the exercise of a statutory discretion by a Crown representative in Council. In speaking of the doctrine Justice Mason said-

Appropriate as it is that this principle should apply to personal acts of the Sovereign, it is at least questionable whether it should now apply to acts affecting the rights of the citizen which, though undertaken in the name of the Sovereign or his representative, are in reality decisions of the executive government. In the exercise of the prerogative as in other matters the Sovereign and her representatives act in accordance with the advice of her Ministers. (p. 220)

The High Court concluded in Toohey that it could examine an exercise of power by the Crown representative in Council for the purpose of determining whether it had been exercised for an improper purpose. In South Australia v Tanner (High Court, 7 February 1989, not yet reported) Justice Brennan said that the Toohey Case ‘affirmed the duty of the courts to ensure that statutory powers, whether legislative or not and whether vested in the Executive Government or in another repository, are exercised only in accordance with law’. 87. In FAI Insurances Ltd v Winneke (1982) 151 CLR 342 the High Court held that the Governor of Victoria was under an obligation to comply with the rules of natural justice

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when, acting with the advice of the Executive Council, he declined to approve an application for renewal of a workers’ compensation insurer’s licence. A similar issue was before the High Court in South Australia v O’Shea (1987) 163 CLR 378. In that case the issue was whether the decision of the Governor in Council of South Australia not to release Mr O’Shea on licence, despite the recommendation of the Parole Board that he be released, was subject to the requirements of natural justice. A majority of the High Court found that Mr O’Shea had been accorded procedural fairness. Central to the High Court’s decision is the assumption that the decision of the Governor-in-Council was amenable to review. 88. In Orientimex Australasia v Melbourne (1983) 62 LGRA 152 Justice Fullagar of the Victorian Supreme Court interpreted the FAI Insurances Case as meaning that the position with regard to renewal of licences was not that the Governor must observe the rules of natural justice, but rather that the rules of natural justice must be observed at an earlier stage in the course of the doing of the series of acts by various persons which culminates in the renewing or the refusal of the licence, and that the court would vitiate the culminatory legal act where natural justice had not been observed before that legal act (p. 157). Even if this is the correct interpretation of the FAI Insurances Case, however, the upshot appears to the Council to be that a decision of the Crown representative may be susceptible to review in cases where the rules of natural justice are required to be observed. 89. Ball v Maritime Services Board (1988) 15 ALD 149 concerned a statutory power vested in the Governor of New South Wales to resume land for public purposes. The plaintiff argued that a particular resumption of land was invalid. One of the arguments relied on by the Maritime Services Board was that the resumption was one achieved by an exercise of discretion by the Governor and that no court would question the good faith of the Governor. The Supreme Court of New South Wales said (p. 154):

The role of the Governor in the class of case to which this resumption belongs is merely as an instrument through which the machinery of resumption is activated. The purpose of the resumption is the purpose of the resuming authority, not of the Governor. But even if I were wrong in that and it were held that the case was one in which the Governor had exercised an independent discretion, I would still be of the opinion that the plaintiff could challenge the purpose expressed in the notification and seek to show another purpose . . . . It may be said that in the case of resumption of land it is certainly arguable . . . that when the resumption is one, in fact, initiated for a particular purpose by a public authority, be it Minister or Corporation, the court will permit the stated purpose of the resumption to be challenged notwithstanding that the legislation, so far as the action of the Governor in the matter is concerned, suggests discretionary action by him.

90. That acts of the Queen or of the Crown representative performed under statutory power are amenable to judicial review has been accepted in other jurisdictions. In New Zealand it has been held that decisions of the Governor-General made under statutory power may be reviewed: CREEDNZ Inc v Governor-General [1981] 1 NZLR 172. In the United Kingdom the Queen’s Bench Division of the High Court recently held that it could hear an application for judicial review of a decision of the visitor of the University of London where the University of London Act identified the visitor as the Queen in Council and where the visitor’s jurisdiction was exercised by virtue of the statutes scheduled to the Act: R v University of London [1987] 3 All ER 204.

Conclusion on Amenability to Review 91. It would now appear to be the case that decisions of the Governor-General under statutory power are amenable to judicial review on grounds going to purpose or on natural

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justice grounds. The Council regards this as a sensible position. It would be anomalous if a decision of the Crown representative, who in the statutory context is legally bound to exercise powers with the advice of Ministers (s.16A, Acts Interpretation Act 1901), was not subject to judicial review while a Minister in the exercise of a statutory power given to him was subject to review. 92. It would also appear to be the case that the exercise of a prerogative power is not immune from review as such. The matter was summed up in Minister for Arts Heritage and the Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 where Chief Justice Bowen said:

In my opinion, subject to the exclusion of non-justiciable matters, the courts of this country should now accept responsibility for reviewing the decisions of Ministers or the Governor-General in Council notwithstanding the decision is carried out in pursuance of a power derived not from statute but from the common law or the prerogative. (p. 224)

(See also Macrae v Attorney-General for New South Wales (1987) 9 NSWLR 268. On 19 February 1988 the High Court refused the Attorney-General for New South Wales special leave to appeal against the decision of the Court of Appeal in that case.)

Justiciability as Limiting Factor 93. Although executive powers in general are not beyond the scrutiny of the courts, it is clear that not every exercise of executive power will qualify as a subject for judicial review. Many acts of a high governmental or political nature will not so qualify. A fundamental matter which the courts will always consider is whether ‘the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter upon which the court can adjudicate’ (Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374, 407, Lord Scarman). There are certain decisions upon which the courts will not adjudicate. For example, the courts have said that the following decisions are non-justiciable: a decision to enter into a treaty (Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 229) and a decision to implement a treaty (Minister for Arts Heritage and the Environment v Peko-Wallsend). 94. The critical factor on the issue of justiciability will be the nature and effect of the decision concerned. If it is a decision which directly affects individual liberties, alters the rights or obligations of a particular person or deprives the person of some benefit or advantage, it may more readily qualify as a subject for judicial review.2 95. Non-justiciabilty in administrative law is a developing concept. As a limiting mechanism on the judicial role it has been argued to be more satisfactory than standing (Cane, ‘The Function of Standing Rules in Administrative Law’ [1980] Public Law 303, 312). Certainly, as was mentioned above, standing requirements have been considerably relaxed

2 In the GCHQ Case the test was expressed by Lord Diplock in the following terms: To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either: (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either:

(i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or

(ii) he has received assurance from the decision maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. ([1985] 1 AC 374, 408)

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by the courts in recent times. In his 1980 article in Public Law Cane saw the doctrine of justiciability as ‘covering such matters as the availability of alternative and more convenient remedies, political questions, questions concerning the distribution of scarce resources and future rights’ (p. 312). Galligan (Discretionary Powers, 1986, 248) has suggested that judicial review is most effective when it is directed at aspects of administrative decisions that are of an adjudicative kind. For Galligan non-justiciability is encapsulated in the notion that tasks which are not suited for adjudicative processes are not justiciable. 96. The American jurist, Lon Fuller, provided a classic formulation of justiciability in an article first written in 1957 but which was not published in its final form until 1978 ((1978) 92 Harvard LR 353). He suggested that judicial procedure was not suitable for dealing with what he called ‘polycentric’ disputes, that is disputes requiring account to be taken of a large number of interlocking and interacting interests and considerations. Cane (An Introduction to Administrative Law, 1986, 150) has said that polycentricity probably provides the best theoretical justification of why the prerogative writs are not available to challenge the process by which delegated legislation is made. The notion of polycentricity as providing a limit on the judicial role is well illustrated by the Peko-Wallsend Case referred to above. In that case the judges of the Federal Court did not rule out judicial review of decisions of the Cabinet but clearly indicated that, depending on the circumstances of the decisions, review may not be available because of their non-justiciable nature. Chief Justice Bowen said:

However, the whole subject-matter of the decision [to nominate Stage 2 of Kakadu National Park for inclusion on the World Heritage List) involved complex policy questions relating to the environment, the rights of Aboriginals, mining and the impact on Australia’s economic position of allowing or not allowing mining as well as matters affecting private interests such as those of the respondents to this appeal. It appears to me that the subject-matter of the decision in conjunction with its relationship to the terms of the Convention placed the decision beyond review by the court. (pp. 224-5)

Summary 97. In summary it may be said that since the AD(JR) Act was enacted there have been significant developments in the scope of judicial review at common law. In the first place, decisions made pursuant to prerogative power are not immune from judicial review merely because of their source in the prerogative. Secondly, decisions of the Governor-General under statute are amenable to review. In the latter case, the courts have recognised that these decisions are in reality decisions of the executive government. The courts have, however, indicated that certain decisions, because of their nature or circumstances, may not qualify as appropriate subjects for review or, in other words, are not justiciable. The notion of non-justiciability in the judicial review area can be expected over time to be the subject of further refinement in the case law.

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CHAPTER 3

SHOULD THE AD(JR) ACT BE EXTENDED? 98. If developments in the scope of judicial review at common law mean that now, in certain circumstances, exercises of prerogative power vested in a Minister of the Governor-General are amenable to judicial review, the question arises whether the AD(JR) Act, which was intended to simplify and improve judicial review, should be extended in ambit to cover those areas. The draft report issued by the Council in July 1988 suggested that there did not appear to be a case in logic or principle why the Act should not be so extended. It pointed out that, in relation to decisions of officers of the Commonwealth, which would include decisions of Ministers made in the exercise of prerogative power, the Federal Court already had a review jurisdiction under section 39B of the Judiciary Act. It also pointed out that the intention of the Committee on Review of Prerogative Writ Procedures (the Ellicott Committee) was that the judicial review Act which it proposed for the Commonwealth should confer on the Court’s jurisdiction under section 75 of the Constitution (Ellicott Committee Report, para. 19). 99. Certain submissions made to the Council on the 1988 draft report, in particular from the Department of Defence and the Attorney-General'’ Department, put the view that the fact that a decision may be the subject of judicial review under common law principles does not compel the conclusion that the AD(JR) Act should also be available in those cases. Clearly, however, if the AJ(JR) Act h as in some respects fallen behind the common law and if the Act was intended to reform judicial review of Commonwealth administrative action at common law, the Council considers that the case in favour of at least keeping the Act in step with the ambit of review at common law is very strong. 100. A somewhat different view was taken by the Department of Immigration, Local Government and Ethnic Affairs in its submission on the 1988 draft report. It suggested that the Council’s study should begin by considering whether it is desirable as a matter of policy that all the decisions which the courts have signalled a readiness to review in the prerogative writ jurisdiction should be reviewable by the courts. If not, the Department said, the Council should consider narrowing the range of decisions which the courts can review under the prerogative writ jurisdiction by changing the substantive law upon which the jurisdiction is exercised. The Department’s submission referred to Werrin v Commonwealth (1937) 59 CLR 150 as providing authority in support of the proposition that the Parliament can by legislation change the substantive law upon which the prerogative writ jurisdiction is exercised. 101. Werrin v Commonwealth was, however, concerned with section 75(iii) of the Constitution and the issue was whether that section prevented the parliament from extinguishing a cause of action against the Commonwealth. The High Court decided that question in the negative. It seems to the Council that the broad ambit of section 75(iii) may need to be approached differently from the wording of section 75(v) which confers a jurisdiction on the High Court in relation to specific administrative law remedies. The High Court has decided that it is not possible by statute to prevent the issue of the prerogative writs out of the High Court: R v Hickman: ex parte Fox (1945) 70 CLR 598. Nor would it appear to be possible to redefine by statute the ambit of that constitutional jurisdiction.

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102. Werrrn v Commonwealth does nonetheless raise an interesting question concerning judicial review of Governor-General decisions. The question whether the Governor-General is an officer of the Commonwealth has not been finally determined. If it were to be held that the Governor-General is not such an officer, any review of a decision of the Governor-General would need to be sought in the jurisdiction of the High Court under section 75(iii). Although the Council would not, as a matter of policy, suggest this course, it might be possible, consistently with section 75(iii), to legislate to exclude judicial review of decisions or action of the Governor-General. 103. As to the general point made by the Department of Immigration, Local Government and Ethnic Affairs, the Council has no argument as a matter of policy with the scope of the decisions which the courts have shown a readiness to review under the general law. The Council indicated in chapter 2 that, so far as decisions of the Governor-General in the statutory context are concerned, it is sensible that those decisions be treated on the same basis as ministerial decisions. Similarly, the readiness of the courts to deny distinctions based on the source of power, whether statute or prerogative, is a rational development in terms of the upholding of the rule of law. Where decisions made pursuant to the prerogative are concerned, the reduced opportunity for parliamentary scrutiny might be seen as strengthening the argument in favour of the availability of judicial review. 104. The draft report issued by the Council in July 1988, in suggesting that the ambit of the AD(JR) Act ought to be extended to bring its scope into line with the ambit of review at common law, proposed that the following steps be taken: • expansion of the definition of decision to which the Act applies to include a decision of

an officer of the Commonwealth; • removal from the definition of the exclusion of decisions of the Governor-General made

under an enactment; • repeal of Schedule 1; • insertion in the Act of a provision requiring the Federal Court not to grant an application

for review of a decision or conduct if it is satisfied that the decision or conduct is non-justiciable.

Chapter 4 considers the first of those proposed steps in the light of the submissions made to the Council on the draft report. Chapter 5 considers statutory decisions of the Governor-General. Chapter 6 considers the classes of decisions presently covered by Schedule 1. Chapter 9 considers the notion of non-justiciability. 105. The general principle which informs the Council’s conclusions in the remainder of the present report is that steps should be taken to bring the scope of the AD(JR) Act into line with what appears to the Council to be the ambit of judicial review at common law but that, where areas of uncertainty exist about the availability of the prerogative writs, the AD(JR) Act ought not to venture into those areas. Adherence to this principle has meant that the report has not taken up the suggestion in the Council’s earlier draft report that the Act be expanded to cover all decisions of an officer of the Commonwealth. While review of particular action of an officer of the Commonwealth may be available under the prerogative writs, the general law recognises that not every action of a Commonwealth officer will be amenable to the writs. This problem does not arise as acutely in relation to decisions under an enactment because a decision which has a statutory base is more likely to be a decision which impinges upon the interests of a person and which is likely therefore to provide a basis for application of the grounds of review.

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106. If accepted, the proposals in the report, while not increasing the range of decisions presently subject to judicial review, may have the effect of making judicial review easier by comparison with judicial review under the general law, but this was the very purpose of the introduction of the AD(JR) Act. If the scope of the Act were not to be altered and if significant areas of Commonwealth administrative action were to remain capable of being reviewed only by way of the prerogative writs, access to the courts to challenge decisions in those areas would be the province only of those with the resources necessary to fund cumbersome and expensive prerogative writ proceedings.

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CHAPTER 4

A WIDER BASIS FOR THE AD(JR) ACT - OFFICER DECISIONS

107. Many decisions of officers of the Commonwealth are covered by the AD(JR) Act at present because they are made under an enactment. However, those decisions which are not made under an enactment are not covered. 108. The expression ‘officer of the Commonwealth’ in section 75(v) of the Constitution (and see s.51(39) of the Constitution where the expression is also used) has been broadly interpreted by the courts (Lane, The Australian Federal System, 2nd ed., 1979, 644-8). It includes officers of the public service departments (The Tramways Case (No. 1) (1914) 18 CLR 54, 86), Ministers and persons holding judicial office in the Commonwealth. It also includes authorities such as the Coal Industry Tribunal jointly established by Commonwealth and State Acts even where the power being or purportedly being exercised is identifiable as power conferred by a State Act: Re Cram; ex parte New South Wales Colliery Proprietors’ Association (1987) 72 ALR 161. The term does not, however, include judges of State courts exercising invested federal jurisdiction: R v Murray and Cormie; ex parte Commonwealth (1916) 22 CLR 437. Nor would the term cover State officers exercising administrative functions under Commonwealth law. Nor are State magistrates conducting committal proceedings for Commonwealth offences officers of the Commonwealth for the purposes of section 39B of the Judiciary Act: Trimbole v Dugan (1984) 57 ALR 75, 79. 109. The term ‘officer of the Commonwealth’ may also not cover all Commonwealth statutory authorities. It has, for example, been doubted whether the National Companies and Securities Commission is itself an officer of the Commonwealth since it does not occupy an office: BHP v NCSC (1986) 67 ALR 545, 551. It was presumably this doubt which, in BHP v NCSC; Elders IXL v NCSC (No. 1) (1986) 4 ACLC 375, caused the plaintiffs to seek an injunction against the NCSC in the High Court’s jurisdiction under section 75(iii). It has also been said that the Australian Broadcasting Corporation cannot, having regard to the terms of its Act, be regarded as ‘the Commonwealth’; accordingly, officers of the Corporation are not officers of the Commonwealth: Waterhouse v Australian Broadcasting Corporation, Federal Court, unreported, 21 October 1987. Nor is Telecom an officer of the Commonwealth, although Telecom Commissioners may well be: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499. In holding, in Post Office Agents Association Ltd v Australian Postal Commission (unreported, 14 December 1988), that Australia Post is not an officer of the Commonwealth, Justice Davies took the view that the fact that Australia Post was a body corporate meant that it was not an officer. 110. It is likely that the members and staff of many statutory authorities standing well outside the shield of the Crown are not officers of the Commonwealth. Lane has suggested that whether a person is an officer of the Commonwealth would be determined by the following factors: ‘is the person appointed, removable and paid by, as well as responsible to, the Commonwealth’ (The Australian Federal System, 2nd ed., 1979, 646). 111. The above discussion highlights the fact that the concept of a ‘decision of an officer of the Commonwealth’ is both wider and narrower in some respects than the f concept of a

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‘decision of an administrative character made under an enactment’. This means that, if it were thought appropriate for officer decisions to come within the scope of the Act, those decisions should probably be added as an alternative limb to the present concept of ‘decision under an enactment’.

Effect of Inclusion of Officer Decisions 112. If the Act were to be amended to include a decision of an administrative character made by an officer of the Commonwealth in the definition of decision to which the Act applies, it is clear that judicial review would be able to be sought under the Act of several kinds of decision which the Federal Court has not in the past been able to review under the Act but which are potentially susceptible to review under the prerogative writs. Thus, all decisions lying within the discretion of the executive would potentially fall within the scope of the Act. An example may be seen in Gunaleela & Ors v Minister for Immigration and Ethnic Affairs (1987) 74 ALR 252 (first instance), 263 (appeal). In that case the Federal Court found that decisions that certain non-citizens did not have the status of refugees were decisions that lay within the discretion of the executive because the non-citizens, not having temporary entry permits, were deemed by the Migration Act not to have entered Australia (cf Woudneh v Minister for Immigration, Local Government and Ethnic Affairs, 16 September 1988, not yet reported, where a similar decision was susceptible to review under the AD(JR) Act because the person concerned had entered Australia under a temporary entry permit and section 6A of the Migration Act could therefore apply). 113. Other decisions which would fall within the scope of the Act would be decisions of the kind in issue in MacDonald Pty Ltd v Hamence (1983) 1 FCR 45 where it was held that the Act as it is presently drafted did not apply to review of a decision of the Canberra Tourist Commissioner to remove the name of a motel from a publication issued by the Canberra Tourist Bureau listing accommodation in the city because the Bureau’s powers and duties were not defined in any enactment. Also potentially amenable to review under the Act would be decisions made pursuant to the rights of the Commonwealth to manage and control its own property (Clamback v Coombes (1987) 12 ALD 150; and see “Sydney” Training Depot Snapper Island Ltd v Brown (1988) 14 ALD 464), decisions made pursuant to the inherent executive power of the Commonwealth to conduct legal proceedings to which the Commonwealth is a party (Dixon v Attorney-General (1987) 75 ALR 300) or a decision under a non-statutory scheme administered by the Commonwealth Employment Service to cease providing particular services to an individual employer (Taranto Pty Ltd v Madigan (1988) 81 ALR 208). 114. The benefits of ensuring that the scope of the Act was at least as extensive as the scope of judicial review available under section 75(v) of the Constitution would include the removal of jurisdictional questions of the kind with which the Federal Court had to deal in the above cases. In the Council’s view, it is regrettable that, despite the Act’s laudable objective of simplifying judicial review, jurisdictional questions turning on its ambit, which have little or nothing to do with the substance of a person’s claim that unlawful administrative action has occurred, appear with some frequency in the case law. On the other hand, the Council notes that the recent amendments of Order 54A of the Federal Court Rules should have the effect of reducing the incidence of cases involving purely jurisdictional issues. If there is any doubt whether a decision complained of was made under an enactment and if an officer of the Commonwealth can be identified as the relevant decision maker, an applicant properly advised should seek in the one application relief under the AD(JR) Act and under section 39B of the Judiciary Act. The procedural reform

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which would allow this course to be followed does not, however, constitute a complete answer to the difficulty of obtaining review of particular decisions because any relief under section 39B must run the gauntlet of the technicality and complexity of the rules concerning the prerogative writs.

Submissions made to Council 115. A significant number of the submissions made to the Council on its 1988 draft report supported extension of the ambit of the Act to embrace decisions of an administrative character made by an officer of the Commonwealth. Opposition to aspects of the proposal came largely from particular Commonwealth departments and agencies, although some of them responded favourably. Commonwealth contracting 116. The 1988 draft report drew attention to the fact that amendment of the Act in the way proposed would have the potential to bring the area of Commonwealth contracting within the scope of the Act. It was mentioned in chapter 2 of the present report that the entry by the Commonwealth into a contract is an exercise of executive power (Richardson, ‘Executive power of the Commonwealth’ in Zines (ed.) Commentaries on the Australian Constitution (1977), p.50). In Hawker Pacific Pty Ltd v Freeland (1983) 5 ALN, N369 an unsuccessful tenderer sought review under the AD(JR) Act of a decision to award a contract to the successful tenderer. It was held that decisions concerning the exercise of the Commonwealth’s power to contract were not reviewable under the Act as it presently stands because the power to contract was either an inherent prerogative or governmental power, and not a power conferred by any enactment. Statutory authorities, on the other hand, may be given a specific power under their statute to enter into contracts. If so, the decision to contract may be a decision under an enactment and may be reviewable under the AD(JR) Act: ACT Health Authority v Berkeley (1985) 60 ALR 284. 117. There have been few reported instances of review of tender decisions at common law. Unsuccessful tenderers appear in the past to have been reluctant to bring judicial review proceedings. However, indications are that unsuccessful tenderers may now be more prepared than in the past to seek review (for a recent instance see the proceedings in the Northern Territory which led ultimately to the proceedings in Northern Territory of Australia v Skywest Airlines (1987) 48 NTR 20; in Cord Holdings Ltd v Burke (1985) 7 ALN, N72 the applicant for review, an unsuccessful bidder for a casino contract, argued unsuccessfully that the principles of natural justice were applicable to the decision to exclude it from consideration for the contract). Standing is likely to be a problem for any party apart from an unsuccessful tenderer. 118. A further difficulty facing an applicant who might wish to seek judicial review of a tender or contract decision is the difficulty of identifying appropriate criteria for the review of the decision. The decision of Justice Yeldham in White Industries Limited v Electricity Commission of NSW (Supreme Court of NSW, 20 May 1987, unreported) illustrates the difficulties that an unsuccessful tenderer faces. In that case it was held that the nature of the power to contract by the acceptance of any one of a number of tenders was inconsistent with an obligation to observe the principles of natural justice. Nor did the court grant relief on any other grounds. It noted the submission of the Solicitor-General that an exercise by the Crown of its common law right to contract was not subject to judicial review on the basis of taking into account relevant or irrelevant considerations, but found it unnecessary to

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consider the argument. The question of standing was also raised before the court but again the court did not find it necessary to deal with the matter. 119. In the contract area, the recent decision of the Supreme Court of Victoria in Waverley Transit Pty Ltd v Metropolitan Transit Authority (2 June 1988, not yet reported) is significant. That case concerned a decision of the MTA not to renew a contract between it and the plaintiff and instead to award a contract to a third party. The contract concerned was a contract to operate a private bus service. The MTA has power under the Transport Act of Victoria to grant commercial bus licences, inter alia, to persons with whom it has contracted. The plaintiff argued that the tender evaluation process was actuated by actual bias. The MTA argued that the case involved ordinary contractual principles to which the principles of natural justice did not apply. It said that a decision of a government body not to accept a tender offer was not justiciable. 120. The Supreme Court of Victoria disagreed. It said that the Transport Act did not demonstrate that the Parliament intended that the power not to renew a contract for the provision of transport services could be exercised by the MTA without regard to the rules of natural justice. It found that, in the circumstances where a long-standing contractual relationship existed with the plaintiff, the MTA was required by principles of administrative law to act fairly. 121. The Supreme Court granted the plaintiff a declaration that the decision of the MTA was void and of no effect and an injunction preventing the MTA from proceeding with the contract made with the third party. 122. Several agencies, and in particular the Department of Administrative Services and the Department of Defence, expressed concern about the potential for exposing contracting and tender decisions to review under the Act if officer decisions were to be included within its compass. 123. The Department of Administrative Services said that there did not appear to be a clear case that the common law had advanced to the point where it was obvious that decisions as to contractual matters were being regularly reviewed by the prerogative writs. It suggested several reasons why the application of the AD(JR) Act to the contracting area needed to be carefully considered. First, it suggested that tender and contracting decisions did not appear to fall into the traditional concept of an administrative decision that would be reviewable by a court. The Department noted in this connection that several of the established grounds of judicial review appeared to be inappropriate for such decisions leg, natural justice, improper exercise of power, error of law). The Department also said that a great deal of thought would have to be given to the remedies that might be available. The circumstances applicable to a procurement contract would be different from that of a construction contract. An application for review by a person not a party to the contract might be particularly difficult where the parties had entered into a binding agreement and where action had been taken under the contract. 124. The Department made the further point that the contractual power of the Commonwealth is at large. While an enactment, by its objectives and terms provides guidance to a court in reviewing a decision made under it no such Guidance exists in relation to the bare cower to contract.

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125. If a construction contract were involved and if, under the contract, the Commonwealth were acting as principal where it managed the construction, many decisions would be required to be made by a Commonwealth officer during the course of the contract. In these circumstances, the other party to the contract would have contractual remedies available. Delay and cost penalties would occur if judicial review remedies were availed of in conjunction with or as an alternative to contractual remedies. 126. A general point made by the Department was that, if the provisions of the AD(JR) Act were to be applied to contracting, the Commonwealth would be placed in a much different position to the private sector at a time when it was increasingly expected to be competitive with the private sector:

It would introduce to contract law governing Commonwealth contracts a new element that could disturb the normal relationship between the parties to a contract and would provide a disincentive to persons to deal with the Commonwealth.

127. The view that the exercise by the Crown of its right to contract ought not to be subjected to judicial review either on the basis of failing to have regard to relevant considerations or having regard to irrelevant considerations or on the basis of denial of natural justice was supported by the submission of the Solicitor-General for New South Wales, Mr Keith Mason, QC. He suggested that the subjection of the Crown to review in this area was an inversion of principle:

It seems to turn the modern approach that the Crown is entitled to no special treatment in the exercise of its private rights into a rule that the Crown is liable to suffer the worst of both worlds. If it enters into a commercial transaction it must comply with the law of contract and the law of tort in relation to pre-contractual negotiations, yet it is now said that it must also satisfy the public law requirements of administrative law. The two may not always be consistent.

128. On the other hand, the general case in favour of judicial review of tender decisions has recently been put by a New Zealand commentator who has said that it is unexceptionable that even when a public authority appears to be acting as if it were a private citizen in entering contracts, it will be subject to the administrative law grounds of review ([1987] New Zealand Law Journal 340). This is because, unlike the private citizen, a public body has been created and is inherently limited by a statute enacted to promote the public good (see Webster v Auckland Harbour Board [1987] 2 NZLR 129). Non-statutory schemes 129. Expansion of the Act to include a decision of an administrative character made by an officer of the Commonwealth would also have the effect of bringing within the scope of the Act decisions made in administering non-statutory schemes that are authorised by an exercise of executive power and funded by a one-line appropriation in appropriation legislation. Present examples would include the Skillshare Scheme, and the many other non-statutory schemes administered by the Department of Employment, Education and Training, such as the Commonwealth Rebate for Apprentice Full-time Training (CRAFT) Scheme and the Special Apprentice Training Scheme, the Australian Traineeship System, the JOBTRAIN Program, the JOBSTART Program, and the Job Search Training Program. A major example from recent history would be the Australian Assistance Plan (see Victoria v Commonwealth (AAP Case) (1975) 134 CLR 338). These kinds of schemes by their nature are the same as schemes which have statutory authority and are presently subject to the AD(JR) Act (see, eg, the Customs Global Tender Quota Scheme considered by the Federal Court in Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1988) 14 ALD 351). The only difference is the absence of a statutory base for the schemes.

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130. It can be argued that judicial review under the AD(JR) Act ought in principle to be available in relation to decisions taken under non-statutory schemes because the existence or non-existence of legislation is not a critical factor. Again, of course, the difficulty of identifying appropriate criteria for the review of non-statutory decisions may make judicial review of such decisions somewhat more difficult than review of decisions under an enactment, although many statutory decision making powers may also be largely devoid of criteria against which their lawfulness may be measured. 131. The CYSS National Employers’ Group put the view strongly to the Council that aggrieved applicants for funding under non-statutory schemes administered by the Department of Employment, Education and Training such as the (now replaced) Community Youth Support Scheme and the Skillshare Scheme ought to have processes available to them for review of decisions made by the Minister. A similar view was put by the Federal Council of the Australian Social Welfare Union. Indeed, both bodies went further and argued in favour of rights of appeal on the merits against decisions made under such schemes. Personnel decisions 132. In Australia it appears to be accepted that the relationship between the Crown and public servants is contractual, albeit an unusual one. In Fowell v loannou (1982) 45 ALR 491, 509 Justice Woodward said that a public service employee ‘was employed pursuant to a contract of employment, the basic terms of which were constituted by a code, made up of a body of legislative, regulatory and arbitrated provisions, having the Public Service Act at its heart’. In the United Kingdom, on the other hand, there has been much debate about whether or not civil servants have a contract of employment (Fredman and Morris ‘Civil Servants: A Contract of Employment?’ [1988] Public Law 58; and see G.F. Smith, Public Employment Law (1987), 85-90). In a recent decision the Queens Bench Division held that, at least until 1985, civil servants did not have contracts because the requisite intention to create legal relations did not exist (R v Civil Service Appeal Board, ex pane Bruce [1988] ICR 649; a brief note of the case appears in [1987] Public Law 630-1). 133. The contractual relationship between the Commonwealth and its employees means that contractual remedies are available to enforce payment of wages or for wrongful dismissal from the public service. In the case of a dismissal decision, an action for reinstatement through an industrial tribunal may also be available (see, eg, Re Public Service Association of New South Wales and Public Service Board of New South Wales, unreported, Industrial Commission of New South Wales, 24 June 1988). 134. In addition to any contractual or industrial remedies that may be available to a Commonwealth employee aggrieved by a personnel decision, administrative law remedies may be available. If the AD(JR) Act were expanded to include a decision of an officer of the Commonwealth, many personnel decisions made pursuant to the contracts of employment between the Commonwealth and its employees would be covered by the Act. Many employment decisions are decisions made under the Public Service Act, regulations made under the Act or determinations made pursuant to section 82D of the Act. For public sector employees not covered by the Public Service Act, other legislation is relevant. Where decisions derive from an enactment, the AD(JR) Act applies at present. Certain decisions, however, in the public sector employment area relate to the contractual relationship between employer and employee and do not derive from statutory provisions. An example may be seen in Bayley v Osborne (unreported, 19 December 1984) in which Justice Davies held that the power to direct the working by an officer of standard hours was a power conferred by

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the contract of employment between the officer and the Commonwealth; accordingly, a decision made pursuant to the power was not a decision under an enactment and was not reviewable under the AD(JR) Act. 135. Whether public service personnel decisions should be subject to judicial review as well as the industrial law processes is a broad policy issue. In the United Kingdom case R v Civil Service Appeal Board, ex pane Bruce referred to above, the court said that the appropriate forum for resolving the dispute concerning the termination of the applicant’s appointment was an industrial tribunal and that it would be only in exceptional cases that leave would be granted to apply for judicial review. Again, in R v East Berkshire Area Health Authority, ex parte Walsh [1985] QB 152 the Court of Appeal held that judicial review would not be available where an employee’s claims concerning his dismissal by a public authority arose out of the terms of his contract with the authority rather than from the exercise by the authority of its statutory powers. Since the applicant was not seeking to enforce a public right but his private contractual rights, his application was a misuse of the procedure for judicial review. Lord Justice May said that, in the great majority of cases involving disputes about the dismissal of an employee by his employer, ‘the most appropriate forum for their resolution is an industrial tribunal’ (p.169-70). 136. The Federal Court’s discretion under section 10 of the AD(JR) Act not to grant an application for review where an alternative review or appeal right exists may be relevant depending upon the nature of the particular dispute in question. 137. The Council notes that review of public sector personnel decisions by means of the prerogative writs has been sought in the past (eg, Ansell v Wells (1982) 43 ALR 41) but such applications have been rare. In the early 1980s, at about the same time as the Commonwealth judicial review mechanisms were increasingly being activated to challenge personnel and promotion decisions in the Commonwealth, use was being made of the prerogative writs in the States to challenge similar decisions. That activity both in the Commonwealth and the States has, however, declined in recent times. Applications under the AD(JR) Act in relation to decisions under the Public Service Act numbered 14 in 1985, 5 in 1986, 11 in 1987 and 5 in 1988. 138. The Department of Industrial Relations said that the extension of review under the AD(JR) Act to public sector personnel decisions would appear to be discordant with the government’s initiatives to streamline public sector employment practices and to align them more closely with the private sector. The Department also said that such an extension might unreasonably intrude into the managerial responsibilities of the government as employer. The Department considered that the need for additional judicial review of public sector personnel decisions was not apparent when the various avenues of review presently available were considered. 139. The Department of Defence highlighted the effect on the personnel management area of the inclusion of officer decisions within the scope of the AD(JR) Act. The Department mentioned, in particular, the difficulties which it saw if a decision such as a decision to post a member of the Defence Force to a particular locality for a particular period were to be susceptible to judicial review under the Act. 140. The possibility that all decisions made at any level in relation to staff matters would become amenable to review under the Act was also a matter about which the solicitor for the Commonwealth Banks expressed concern.

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Academic decisions 141. The Registrar of the Australian National University submitted that ‘academic decisions’ should not be brought within the compass of the AD(JR) Act. The ANU described as decisions of this kind decisions assessing the academic qualifications for the enrolment or admission of students, making assessments, allocating academic grades and determining academic status for the purpose of admission to degrees, diplomas and the like. 142. Evans v Friemann (1981) 35 ALR 428 suggests that many of these decisions are decisions of an administrative character, and the Council is of the view that the extensive coverage of these classes of decisions by University legislation made under the Australian National University Act would have the effect of exposing most of them to review under the AD(JR) Act as it presently stands. The University considers, however, that, at present, most of them are not made under University legislation and are therefore not amenable to review under the AD(JR) Act. On the other hand, the University said that it was realistic to assume that University staff members would be regarded as officers of the Commonwealth and their decisions would therefore be susceptible to review under the Act if it were expanded to encompass officer decisions. Other decisions referred to by the ANU involving academic assessment were decisions made concerning the appointment and promotion of members of the academic staff which involved full and frank assessment by their peers. The University submitted that it was also not appropriate for these decisions to be susceptible to review under the Act. Bodies created by executive order 143. Another particular area of difficulty which was identified in submissions from the firm of Freehill, Hollingdale and Page was the area of the National Health and Medical Research Council. The NH&MRC is a body created by an Order-in-Council of the Governor-General. Internal advice to the Secretary of the Department of Community Services and Health (a copy of which was provided to the Council) has correctly pointed out that the key issue under the AD(JR) Act is the nature of the decision in question, not the nature of the body which makes the decision. Thus, decisions of the NH&MRC by way of advice to the Minister for Community Services and Health on the application of the Medical Research Endowment Fund for the purposes of the Medical Research Endowment Act 1937 (s.6(2)) would probably be covered by the AD(JR) Act at present. 144. The basis of the constitution of the NH&MRC is, however, significant in relation to the functions it exercises which do not have, or may not have, a foundation in an ‘enactment’. The functions of the NH&MRC and its committees in relation to the approval of public health standards may fall into this category. Such standards include standards for foods, chemicals and water quality. The standards as established by the NH&MRC have no legal effect in themselves but may be adopted and enforced by the States through State legislation. 145. From 1953 when the National Health Act was established until 1986 it appears that the NH&MRC was established and re-established by successive Orders-in-Council of the Governor-General in reliance on section 9 of the National Health Act. Since at least 1986, however, the Orders-in-Council have also relied on section 61 of the Constitution as a result of the power in section 9(1) of the National Health Act being seen as insufficient to support certain of the functions of the NH&MRC. It may be that section 61 was also relevant prior to 1986. The AAT in considering an application made under the Freedom of Information Act for documents held by the NH&MRC (as created by the 1981 Order) concluded that it was

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not constituted under any enactment: Wertheim and Department of Health (1984) 7 ALD 121, 137. If the NH&MRC were to be regarded as constituted under an enactment within the meaning of the AD(JR) Act, its decisions might be taken to be made under that enactment or, if another Act applied (as in the case of the Medical Research Endowment Act), that other Act. If, however, particular functions of the NH&MRC are supported only by the executive power of the Commonwealth, those functions would not be amenable to review under the AD(JR) Act.

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Decisions made in ordinary course of public administration 146. The Attorney-General’s Department pointed out that there are a great number of decisions made in the ordinary course of public administration that are not currently subject to review under the AD(JR) Act but which would be so subject if officer decisions were to be included within its scope. The Department argued that these decisions should not be subjected to judicial review unless there were benefits resulting from review because of the expense to the community and disruption that would be caused to the administrative process as a result of unwarranted review. 147. The Australian Customs Service suggested that, if decisions of an officer of the Commonwealth were to be encompassed within the scope of the Act, decisions relating to the administration of criminal justice or the institution or conduct of proceedings in a civil court and investigations preparatory to such proceedings ought to be exempted from review under the Act. The concern of Customs was that including officer decisions within the scope of the Act would render amenable to review under the Act decisions of a preliminary or advisory nature or decisions reached only at a formative stage in the investigative process. 148. The Department of Immigration, Local Government and Ethnic Affairs made a similar point. It considered that the inclusion of officer decisions would lay open to the possibility of review under the Act a range of decision making steps in the decision making process. The Department made the point that the potential for additional legal challenges in the decision making process would tie up departmental resources and increase the costs of administration. The Minister for Community Services and Health, the Department of Employment, Education and Training and certain other agencies also expressed concern about the potential resources impact of the proposal at a time when cut-backs in staffing numbers meant that existing staff were carrying a significantly increased workload.

Conclusions of Council General 149. The Council considers that generally speaking the ambit of review under the AD(JR) Act ought to be no less extensive than the ambit of judicial review at common law. The Department of Arts, Sport, the Environment, Tourism and Territories takes a similar view. In its submission to the Council it said that the logic in not excluding from the AD(JR) Act decisions that could be reviewed under section 39B of the Judiciary Act was ‘quite apparent’. 150. Yet the Council can see difficulties in attempting to achieve this position by expanding the ambit of the Act to all decisions of an administrative character made by an officer of the Commonwealth. The major difficulty is that the Act would give the appearance of applying to a broad range of non-statutory decisions, yet many of those decisions would not in fact be amenable to the prerogative writs at common law and would not therefore be open to review under the AD(JR) Act. This is because, as was mentioned above (para.68), the High Court has established in Kioa v West (1985) 159 CLR 550 that the grounds of review under the Act apply only in the same circumstances in which they apply at common law. Thus, for example, the performance by an officer of the Commonwealth of preliminary fact-finding functions not provided for by statute would be unlikely to attract the operation of the prerogative writs. Those functions would not satisfy the Atkin test for applicability of the writs that was mentioned in chapter 1 (para.46), namely, that the body concerned must have legal authority to determine questions affecting the rights of an individual (see R v Fowler: ex parte McArthur and Murray [1958] Qd R 41 for an example of a case where the court held that

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the writ of certiorari did not lie to a person exercising purely fact-finding and reporting functions). Accordingly, the exercise of like functions would be unlikely to be amenable to review under the AD(JR) Act if it were to cover officer decisions. 151. Other facultative or preliminary decisions of various kinds made in the ordinary course of administration which are not provided for by statute and which do not in themselves have a relevant effect on the interests of a person would also be unlikely to provide the basis for a successful challenge under the Act. 152. A possible means of dealing with the difficulty mentioned above would be to amend the Act so that it covered decisions of an administrative character made by an officer of the Commonwealth but excluded classes of those decisions that appeared not to be amenable to the prerogative writs on the present state of the law. The Council has, however, rejected this approach because it would lead to too much uncertainty. The more certain approach is to include within the scope of the Act only those officer decisions which clearly provide a basis for review under the prerogative writs. Contract and tender decisions 153. An area in which it has not yet been established that judicial review will always be available under the prerogative writs is the area of Commonwealth tendering and contracting. Although the AD(JR) Act as it presently stands has in limited instances been availed of in this area where statutory powers of a statutory authority have been involved, it is true to say, as the Department of Administrative Services pointed out, that in the non-statutory area decisions as to contractual matters are not being regularly reviewed by the prerogative writs. One difficulty may be that a party wishing to initiate judicial review proceedings in this area would face distinct difficulty in establishing criteria for review. 154. While the availability of judicial review at common law remains uncertain, the Council considers that it should be cautious in opening up the contracting and tendering area to review under the AD(JR) Act. The view can be taken, furthermore, that contractual decisions lie at the fringe of administrative decision making. They can be regarded as falling more readily into the private law area. 155. The Council considers that it would be unwise to make too much of the Waverley Transit Case referred to above. That case involved a renewal of a contract in circumstances where the plaintiff was led to believe by the MTA that, at the end of the ‘short-term’ contract, the contract would be renegotiated and renewed. Another special feature of the case was that the MTA essentially operated a licence scheme, having power under statute to issue and renew licences for persons having a contract with the MTA. The deprivation of the plaintiff’s licence was a significant element in the case. 156. In accepting that the contractual area, to the extent that it is not covered by statute, should remain outside the ambit of the AD(JR) Act, the Council nonetheless notes the importance of this area of government decision making. Commonwealth purchasing, which is only one element of the Commonwealth contracting area, is big business. A paper tabled in the Parliament in November 1988 entitled, Proposals for reform of Commonwealth Government purchasing arising from Government review under the Financial Management Improvement Program, said (p.3):

The 1986-87 Budget Explanatory Notes estimate annual Commonwealth budget sector expenditure on goods and services at about $8 billion. Some 3 500 people are employed

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in purchasing and related activities. Purchasing is. therefore, a significant activity, which plays a key role in supporting Government programs.

The significant role of the Commonwealth in the economy as a consumer of goods and services and as a property owner and occupier give considerable scope to the Commonwealth for using its contractual powers as a tool of regulation. 157. The Council also notes the concerns that are expressed from time to time about Commonwealth tender and contract processes. The area has produced many complaints to the Ombudsman (see Ombudsman, Annual Report, 1987-88, pp.21-3). In view of this the Council considers that it should make a separate study of Commonwealth contracting and tender processes. The study should also consider appropriate review or complaint mechanisms. The Council intends to take up this study as soon as it has the resources to do so. Personnel management decisions 158. In relation to personnel management decisions in the public sector, the Council notes that most of them are already covered by the AD(JR) Act. Certainly most of the more important decisions have a statutory base (appointment, transfer, promotion, discipline, dismissal, etc). In the Council’s view, many of the staffing decisions referred to by the Australian National University would already be susceptible to review under the AD(JR) Act. Those that would not would be contractual decisions of the kind considered in Australian National University v Burns (1984) 6 ALD 193 and Bayley v Osborne (para. 134 above). In this area, contractual remedies or industrial remedies may be available. Again, it is not apparent that many of the non-statutory decisions in the area would provide a basis for intervention by means of the prerogative writs. 159. The Department of Defence referred to decisions to post a member of the Defence Force to a particular locality for a particular period. It is not clear to the Council that those decisions, which appear to derive from the command power in section 9 of the Defence Act 1908, are not already susceptible to review under the AD(JR) Act. Whether the Federal Court would regard a decision in this area as justiciable is another question. 160. An area of concern mentioned by the Australian National University is the area which it described as ‘academic’ decision-making (assessment of students, etc). Again, it would seem to the Council that this area, or a large part of it, is already covered by the AD(JR) Act. The question does arise, however, whether it should be covered. This question is better left for consideration in the context of discussion of the phrase ‘decision of an administrative character’ in chapter 10. Officer decisions that should be covered: non-statutory schemes 161. The area in which the Council considers that there is a clear case for the Act to encompass officer decisions is the area of decision making under a non-statutory scheme or program that is authorised by an exercise of executive power and funded by an appropriation made by the Parliament specifically for the scheme or program. 162. Many such schemes and programs are administered by the Department of Employment, Education and Training. Several examples were mentioned above. Various schemes of this kind are, however, also administered by other Departments.

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163. In some cases, a scheme that is in fact supported only by executive action may nonetheless be the subject of legislation passed by the Parliament. This will often be because the government sees legislation as having presentational value. In other cases, however, the legal basis for such a scheme is the executive power supported by a one line appropriation in appropriation legislation. An administrative scheme that rests on this basis is often seen as having the advantage of flexibility. It can easily be modified or indeed brought to an end as circumstances change. 164. It is difficult to see why action under such a scheme should not be covered by judicial review under the AD(JR) Act when, if the scheme had a statutory basis, the action would be subject to the Act. Why should an accident of birth determine whether powers exercised under such schemes should or should not be open to review under the Act? In the Council’s view, the funding of such schemes by a specific item in appropriation legislation passed by the Parliament gives them the same public interest character as they would have if they were the subject of other legislation enacted in the public interest. 165. The Department of Employment, Education and Training made the point in its submission that it is difficult to see how decisions not under statute could effectively be handled in a judicial review application. The Department said that there may be no more information available to determine the criteria to apply than a government press release. The Council accepts that this is a substantial difficulty (see the discussion below) but points out that this tends to go more towards the question how often an applicant will be successful in establishing grounds for review than towards the question whether review under the AD(JR) Act should potentially be available. 166. Another issue raised by the Department was that, where funding decisions based on assessment of relative needs were involved, the challenge could require examination by the Federal Court of other similar projects. The Council does not see this as a relevant concern. While it may be relevant to the issue of review on the merits of such decisions, it would not seem to arise in the judicial review context. Many funding decisions under statute are presently susceptible to review under the AD(JR) Act, and the Council is not aware of this particular concern having caused problems. 167. In the statutory area, whether a particular decision has been made ‘under’ an enactment for the purposes of the AD(JR) Act has from time to time caused problems. In Evans v Friemann (1981) 35 ALR 428, 436 the Federal Court said that ‘under’ means ‘in pursuance of or ‘under the authority of’. In the non-statutory area, it may sometimes be more difficult to say whether a particular decision has been made ‘under’ a particular scheme. The Council would, however, expect the Federal Court to take a similar approach to that taken in the statutory area, and considers that it can be left to the court to resolve any difficulty which may arise. Application of the grounds of review 168. The substantial difficulty involved in bringing decisions under non-statutory schemes within the scope of the AD(JR) Act is that many of the grounds of review set out in sections 5 and 6 may not apply to the making of those decisions (eg, ss.5(1)(d), 5(1)(e), 6(1)(d), 6(1)(e)). Nor would section 7 appear to have any operation. To establish the ground of review in section 5(1)(e) a person aggrieved by a decision must show that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. In the non-statutory scheme context, no ‘enactment’ within the meaning of the AD(JR) Act can be pointed to. The lack of a basis for operation of section

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5(1)(e) means that the expansion of that around in section 5(2) (irrelevant considerations, unreasonableness etc would not be attracted. 169. In the United Kingdom, the courts in considering non-statutory exercises or power have indicated the potential for the unreasonableness ground to apply. In Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC: 374 411 Lard Diplock said:

While I see no a priori reason to rule out ‘irrationality’ as a ground for judicial review of a ministerial decision taken in the exercise of ‘prerogative’ powers. I find it difficult to envisage in any of the various fields in which the prerogative remains the only source of the relevant decision making power a decision of a kind that would be open to attack through the judicial process upon this ground.

For the unreasonableness ground to apply under the AD(JR) Act, however, it is necessary to point to a power conferred by an enactment. It might be suggested that a possible way out of this dilemma would be to break the link with enactment for the purposes of judicial review applications in the non-statutory area. However, this approach would not be satisfactory. As Justice Davies said in Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1988) 14 ALD 351, 359 decisions of the Federal Court ‘and of the Administrative Appeals Tribunal, both before and after Re Drake (No.2), have shown a reluctance to regard non-statutory rules as binding’. In the non-statutory area with which this report is presently concerned, the schemes concerned are not schemes which have been endorsed by the Parliament at all, except indirectly through an appropriation of moneys. Much learned argument has recently been devoted to the question whether rules or schemes made under the authority of parliamentary enactments are to be attributed with legal force (see Baldwin and Houghton, ‘Circular arguments: the status and legitimacy of administrative rules’ [1986] Public Law 239). However, where a scheme does not have parliamentary sanction, it is difficult to regard the scheme as having a binding character such as would support application of many of the grounds of judicial review. As has been pointed out, many non-statutory schemes are based on nothing more than a press release of the Minister. In the Council’s view, it would not be appropriate to elevate documents of this kind to the status of enactments for the purposes of the AD(JR) Act. 170. All of the above goes to show the fundamental problems in terms of legal theory that are associated with setting up schemes by an exercise of the executive power supported by a one line appropriation in appropriation legislation. 171. Despite the limited scope for operation of the grounds of review, the Council nonetheless remains of the view that decisions under non-statutory schemes should be brought within the scope of the AD(JR) Act. Importantly, it would appear to the Council that the natural justice ground of review would, in certain circumstances, have application, and R v Criminal Injuries Compensation Board; ex parte Lain [1967] 2 QB 864 provides authority for the proposition that a non-statutory decision may be set aside on the ground of error of law. Furthermore, once the jurisdiction of the Federal Court has been attracted by the application made to it for review of the decision concerned, the court may be able to grant declaratory relief under section 21 of the Federal Court of Australia Act. In practice, however, the limited availability of grounds of review may mean that the non-statutory area is unlikely to be productive of numerous judicial review applications. Reports or recommendations 172. The inclusion within the scope of the AD(JR) Act of officer decisions made under non-statutory schemes or programs may in certain circumstances raise a question about the

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scope of section 3(3) of the Act. That section provides that, ‘where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law’, the definition of ‘decision’ for the purposes of review is deemed to include the making of such a report or recommendation. 173. Occasionally, a statute may provide for the making of a pre-decisional report or recommendation but the decision itself is one made not under statute but under a non-statutory scheme. An example may be seen in the Employment, Education and Training Act 1988. Section 27 of that Act confers on the Australian Research Council the function of making recommendations to the Minister with respect to grants, etc, for research schemes. However, the Minister’s power to make grants is not provided for in the Act. It appears from the way that research grants have been administered in the past (Department of Employment, Education and Training, Annual Report 1987-88, pp 103-5) that moneys for grants will be the subject of an appropriation made by the Parliament and the Minister will make the grants in the exercise of executive power. 174. There appears to be no reason why section 3(3) should not apply to reports or recommendations in these circumstances. In the Council’s view, the section ought to be amended by omitting the words ‘in the exercise of a power under that enactment or under another law. Recommendation 1: Extension of Act to certain non-statutory decisions made by officers of the Commonwealth (1) The definition of decision to which the AD(JR) Act applies ought to be amended to

include a decision of an administrative character made, or proposed to be made, by an officer of the Commonwealth 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.

(2) Section 3(3) of the Act ought to be amended by omitting the words ‘in the exercise of a power under that enactment or under another law’.

Decisions of bodies established by executive order 175. If the Act were to be amended as proposed in recommendation 1, several kinds of decisions would still remain outside its coverage. Amongst them would be those decisions of an administrative character made by bodies established by an executive order that could not be regarded as having been made under an enactment, within the meaning of the AD(JR) Act. It was mentioned above that certain decisions of the National Health and Medical Research Council may fall into this category. 176. Considerable potential exists for the use of the executive power to create bodies whose actions might fall outside the scope of the Act. The Australian Assistance Plan Case (1975) 134 CLR 338 should be noted where Justice Mason indicated that a possible basis for the Act creating the Commonwealth Scientific and Industrial Research Organisation is section 51(39) of the Constitution (the incidental power) combined with section 61 (p.397). Professor Zines (Evatt, The Royal Prerogative, p. C13) has commented that it follows from this that the Commonwealth could have created the CSIRO by executive action rather than by legislation, subject to an appropriation of funds to carry it on. ‘An appropriation for a valid exercise of the executive power of the Commonwealth is necessarily an appropriation for a purpose of the Commonwealth within the meaning of s.81 of the Constitution’: Davis v Commonwealth (1989) 82 ALR 633, 642.

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177. If it were thought desirable for the AD(JR) Act to apply to decisions of a body established by an executive order, it would not seem to be appropriate to bring them within the Act through reliance on the officer of the Commonwealth concept. The body itself would be unlikely to be regarded as an officer of the Commonwealth and its members might or might not be officers. In this connection it should be noted that the National Health and Medical Research Council comprises members some of whom are State government representatives and representatives of union, social service, consumer or business groups. All are appointed by the Minister and may be entitled to sitting fees paid by the Commonwealth. It is not clear, however, that they are all to be regarded as officers of the Commonwealth. The staff of a body established by an executive order might be officers but the possibility of review of their decisions might not be helpful. 178. Several reasons might be suggested in favour of bringing the decisions of bodies established by an executive order within the ambit of the AD(JR) Act. First, it might be said that, as with decisions under non-statutory schemes, there are strong public interest reasons for decisions of executive bodies to be brought within the scope of the Act. It might be argued that the availability of some mechanism which will assist in ensuring accountability in decision making is stronger in the case of a body that is the creation of the executive than in the case of a body created by the Parliament. That is because, for statutory bodies, the Parliament has established in the legislation setting up the bodies a framework for legitimate decision making, whereas the Parliament has not had the opportunity to set the limits of decision making in the case of an executive body. The second reason that might be suggested for bringing decisions of bodies created by an executive order within the ambit of the Act is that the clear trend of judicial authority in recent years has been to switch from a source-based approach to judicial review (does the power derive from statute or the prerogative?) to a subject-matter test (is the particular decision justiciable?). This trend was discussed in chapter 2. It was clearly illustrated in the GCHQ Case [1985] 1 AC 374 where the House of Lords said that in certain circumstances prerogative powers are reviewable by the courts but where their Lordships decided that, because the Prime Minister acted ‘in the interests of national security’ in denying GCHQ employees the right to join a union, her decision was not justiciable. 179. The Council has concluded, however, that it ought not to recommend an amendment of the AD(JR) Act to encompass decisions of bodies created by an executive order. One difficulty concerns the range of such bodies. For a start, all the departments of State are entities which have been created in this way. An amendment of the AD(JR) Act which encompassed them as such would involve the same difficulty as was discussed above concerning the bringing within the Act of all decisions of an administrative character made by officers of the Commonwealth. Secondly, while some executive bodies are created by Executive Council order (eg, the NH&MRC, the Australian Secret Intelligence Service), others are created by action of a particular Minister (eg, the recent Australian Constitutional Commission). Some may make certain decisions which affect the interests of individuals, others may not. The basis for any challenge on legal grounds of action of the Australian Constitutional Commission, for example, is hard to see when it was simply charged with the responsibility of producing a report on the revision of the Constitution. In the case of the NH&MRC it is arguable that its actions in the area of public health standards are purely advisory and that neither it nor its committees make ‘decisions’ within the meaning of the AD(JR) Act. The procedures of the NH&MRC are under consideration by the Council in a separate project which it has commenced in the community services and health area. A system of appropriate review of its decisions is likely to emerge from that study.

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Other non-statutory decisions 180. What other non-statutory decisions would remain beyond the scope of the AD(JR) Act notwithstanding its amendment in accordance with recommendation 1? The list is potentially large, although, since many may not have a relevant effect on the interests of a person, the possibility of legal challenge in many cases may in practice be ruled out. The Department of Immigration, Local Government and Ethnic Affairs in its submission mentioned several of the more important non-statutory decisions which may arise in its Minister’s portfolio: • decisions on refugee status where the person claiming that status has not entered

Australia (see the Gunaleela Case, above); • accreditation of migration agent decisions in relation to the Business Migration Program; • decisions by the Office of Professional Qualifications on recognition of overseas

qualifications; • sponsorship decisions; • decisions in relation to custody, for example, where the person is to be held, whether the

person may be allowed visitors, etc; • decisions to take legal action to enforce loan agreements and to conduct legal

proceedings generally (see Dixon v Attorney-General, above); • decisions of the Albury Wodonga Development Corporation with regard (for example) to

the speed and location of developments. 181. Examples of other kinds of non-statutory decisions which would remain beyond the scope of the AD(JR) Act would be decisions of the Governor-General under the prerogative of mercy and prerogative decisions to nominate an area for inclusion on the World Heritage List (Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218). 182. Certain non-statutory decisions that were antecedent to a statutory decision would be picked up through the amendment of section 6 of the AD(JR) Act discussed at chapter 10 below. An amendment of that section which ensured that it was able to apply to conduct other than conduct of the decision maker would allow greater scope for the operation of section 3(5) of the Act. 183. For other non-statutory decisions that are justiciable, however, the potential avenue of judicial review would continue to be section 39B of the Judiciary Act or, in the case of prerogative decisions of the Governor-General, section 75(iii) of the Constitution (if, as may be argued, he is not an officer of the Commonwealth).

Constitutional Basis for Altered Ambit of Act 184. The constitutional basis for the enactment of the Act is to be found mainly in Chapter III of the Constitution. Section 76(ii) of the Constitution allows the Parliament to make laws conferring original jurisdiction on the High Court in any matter ‘arising under any laws made by the Parliament’. The Constitution then goes on, in section 77, to empower the Parliament to vest jurisdiction in federal courts apart from the High Court with respect to such a matter. The constitutional validity of the Act as it is presently drafted to apply to decisions ‘under an enactment’ probably rests on these provisions and, to the extent that ‘enactment’ is defined in the Act to include Ordinances of a Territory and regulations made under Ordinances, also on section 122, the Territories power: Evans v Friemann (1981) 35 ALR 428, 432-3.

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185. If, for the purpose of covering certain non-statutory decisions made by officers of the Commonwealth, the ambit of the Act were to be extended as proposed in this chapter, section 76(ii) could not be relied on and the issue arises whether some other source of constitutional power exists which would authorise the extension. 186. The Council has no doubt that constitutional authority would exist. In the first place it might be argued that section 76(i) of the Constitution could be relied on. When taken with section 77, it has the effect of empowering the Parliament to confer jurisdiction on the Federal Court in any matter arising under the Constitution or involving its interpretation. The High Court has said that the word ‘matter’ in section 76 means the subject matter for determination in a legal proceeding: In Re Judiciary and Navigation Acts (1921) 29 CLR 257. It may be argued that a controversy between parties as to the validity of the exercise of a power conferred by section 61 of the Constitution answers the description of a matter arising under the Constitution in the same way as a controversy between parties as to the validity of the exercise of a power conferred by an Act of the Parliament answers the description of a matter arising under a law made by the Parliament. Although there is High Court authority for the proposition that an action brought in the Supreme Court of a State for the determination, as between an individual and the Commonwealth, of rights and obligations arising out of a contract is not a cause arising under the Constitution or involving its interpretation within the meaning of section 40 of the Judiciary Act (Heimann v Commonwealth (1935) 54 CLR 126), it can be argued that the better view is that section 76(i) would support a law conferring jurisdiction in a matter arising under an exercise of Commonwealth executive power. 187. It is also arguable that section 51(39) of the Constitution could be relied upon as a source of power. The section empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested by the Constitution in, amongst other things, ‘the Government of the Commonwealth or . . . any department or officer of the Commonwealth’. It ‘enables the Parliament to legislate in aid of an exercise of the executive power’: Davis v Commonwealth (1989) 82 ALR 633, 641. A law relating to the judicial review of decisions of an officer of the Commonwealth might be argued to come within this head of power. If so, sections 76(ii) and 77(i) of the Constitution should enable the jurisdiction to be conferred on the Federal Court.

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CHAPTER 5

A WIDER BASIS FOR THE AD(JR) ACT - STATUTORY DECISIONS OF GOVERNOR-GENERAL

188. The development at common law of the scope of judicial review of decisions of the Governor-General suggests that it is not appropriate that all decisions of the Governor-General under an enactment should continue to be excluded from the AD(JR) Act. The draft report issued by the Council in July 1988 proposed the removal of the present exclusion of decisions of the Governor-General from the definition of decision to which the Act applies.

Submissions made to the Council 189. Several submissions made to the Council addressed this issue. Most of them agreed that statutory decisions of the Governor-General should be reviewable under the AD(JR) Act, but some argued to the contrary. 190. The Department of Defence in a helpful submission listed the provisions in defence legislation conferring decision making powers on the Governor-General. These include powers of appointment and termination of appointment to statutory offices, powers of promotion of officers, powers in relation to the detention and release of persons of unsound mind, powers to call out the forces, general powers for defence purposes (establishing ammunition factories, etc). The Department argued that most decisions under these provisions were inappropriate for judicial review. 191. The Department of Social Security also argued that, if decisions of the Governor-General were to come within the scope of the Act, appointment decisions ought to be excluded. 192. The Attorney-General’s Department said:

The Commonwealth should be cautious in opening up vice regal decisions to judicial review. While the draft report draws attention to a number of court decisions where decisions involving Crown prerogative were held to be reviewable in some degree under the general law, these judicial moves have been tentative. It is unlikely that any Government would agree to the review of the conduct of Cabinet leading up to a decision of the Governor-General or recommendations put to the Governor-General by the Executive Council. Also, the judges would possibly not relish such a role in any case, and indeed might reject it on constitutional grounds.

The Department went on to say that, while there may be decisions of the Governor-General that should be susceptible to review under the AD(JR) Act, those decisions should be specifically identified. A possible candidate which the Department mentioned was the dismissal of statutory office holders who are not removable without cause. 193. Of particular concern to the Department were decisions taken in the course of the administration of criminal justice. Exposing to review under the Act decisions on applications for early release or for release on licence or parole and on applications for a variation of parole or licence would, in the Department’s estimation, affect some 350 cases per year.

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194. A further area in which the Department considered that review under the Act would be inappropriate was where the Governor-General had a power under statute to make certain arrangements with the States (eg, under the Marriage Act, s.9, s.28). 195. The Commonwealth Solicitor-General, Dr Gavan Griffith QC, also argued that statutory decisions of the Governor-General ought not, as a general matter, be susceptible to review under the AD(JR) Act. Dr Griffith saw problems in circumstances where the responsible Minister took a matter to the Cabinet before formal determination by the Executive Council. In his view, this situation was to be distinguished from the situation in the FAI Insurances Case where the responsible Minister directly recommended a matter for determination by the Executive Council. Dr Griffith illustrated his point by reference to the O’Shea Case. Where the conventional rules of collective Cabinet responsibility applied, the Solicitor-General saw difficulties in the application of the principles of natural justice because the rules of collective Cabinet responsibility require that a Minister not inform an applicant of the Minister’s views on a matter before the matter is taken to the Cabinet. 196. The Office of the Solicitor-General of Tasmania agreed that statutory decisions of the Governor-General ought not to be susceptible to review under the AD(JR) Act. The Office said that exposing those decisions to review would ‘open up possibilities of unnecessary intrusion into the exercise of the royal prerogative’. 197. The Law Society of South Australia said that, in its view, there were cogent arguments for and against an amendment of the AD(JR) Act which would subject statutory decisions of the Governor-General to review under the Act. On balance, the Society did not favour such an amendment and preferred that aggrieved persons seek redress under existing remedies. In the Society’s opinion, the proposed amendment was somewhat delicate and the Society said that it would not like to see the decisions of the Governor-General treated lightly or with disdain. 198. The Department of the Prime Minister and Cabinet said that it was not persuaded that there was justification for opening up vice regal decisions to judicial review:

While the draft Report notes that vice regal decisions taken under statutory powers have been held in recent cases to be reviewable in certain circumstances, and that vice regal prerogative power may not be immune from review (per obiter dicta in the Peko-Wallsend case), we do not believe that the law is sufficiently settled to support an argument for the extension into these areas of the coverage and reforms of the AD(JR) Act.

The Department went on to say that the objectives sought by removing the present exclusion of decisions of the Governor-General ‘could be achieved by the simple means of extending the ambit of the Act to non-statutory actions of ministers and officials in preparing recommendations to the Governor-General’.

Conclusions of Council 199. The Council has concluded that decisions of the Governor-General made under an enactment ought not to continue to be excluded from the ambit of the AD(JR) Act. A fundamental premise of a parliamentary democracy is that the powers exercised by government are exercised in accordance with the laws that the representatives of the people have made in the public interest. As was pointed out in chapter 1, judicial review serves to sustain this notion. In the Council’s view, it is appropriate that it do so. It follows that the

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identity of the decision maker under statute should be largely irrelevant to the question whether the validity of the exercise of the power may be tested in the courts. 200. Since decisions of Ministers under statute are properly susceptible to review under the AD(JR) Act, it is difficult to see why statutory decisions of the Governor-General. which must be made with the advice of Ministers (s.16A, Acts Interpretation Act 1901), should continue to be excluded. 201. The present exclusion of statutory decisions of the Governor-General results in some fine distinctions being made. In Steiner v Attorney-General (1984) 52 ALR 148 the Federal Court dismissed an application for judicial review of a decision of the Attorney-General pursuant to section 19A of the Crimes Act 1914 that he would not recommend to the Governor-General that the applicant be granted a licence to be at large. Section 19A of the Crimes Act displaces the operation of section 16A of the Acts Interpretation Act by vesting the power in question in the Governor-General acting with the advice of the Attorney-General. In dismissing the application for review, the Federal Court said that the immunity conferred on a decision of the Governor-General by section 3(1) of the AD(JR) Act would be lost if a challenge to the ministerial advice underlying the decision were permitted. This decision was followed by the full court of the Federal Court in Thongchua v Attorney-General (1986) 66 ALR 340. 202. On the other hand, in Attorney-General (NT) v Minister for Aboriginal Affairs (1987) 73 ALR 33 what was in issue was a recommendation of the Minister for Aboriginal Affairs to the Governor-General pursuant to section 11(1)(b) of the Aboriginal Land Rights (Northern Territory) Act 1976 that a grant of land be made to particular land trusts for the benefit of traditional aboriginal owners. The Court held that it had jurisdiction under section 3(1) of the AD(JR) Act to review the Minister’s recommendation, which was separate from any decision of the Governor-General. Justices Lockhart and Gummow said (p.46):

The question of the amenability at general law of decisions of the Governor-General in Council to judicial review has been a vexed one. But, putting to one side issues that may still arise where a power or function is vested by the Constitution itself in the Governor-General in Council, it is now settled that, where legislation is the source of the power or function in question, judicial review under the general law is not precluded by the identity or nature of the Executive Council or the office of the Governor-General in what otherwise would be an appropriate case for judicial review for ultra vires or denial of natural justice: R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; 38 ALR 439; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; 41 ALR 1.

As the primary judge in this case pointed out, what is now settled law was not so when the AD(JR) Act was passed. The reservation from review of decisions of the Governor-General under any enactment (AD(JR) Act s.3(1)) may be seen as reflecting what was orthodox thinking in 1977 as to the scope of judicial review at general law.

203. The anomaly involved in maintaining the present exclusion of decisions of the Governor-General is further highlighted when one considers present provisions in the Commonwealth statute book for the termination of appointment of statutory office holders for cause. In most cases the power to appoint a member to a statutory authority or to terminate such an appointment is vested in the Governor-General. In some cases, however, even where the authority is a major one, the relevant power may be vested in a Minister (see, eg, the Civil Aviation Authority established by the Civil Aviation Act 1988). Appointment decisions are more fully discussed below but if, for present purposes, one focuses on decisions to terminate an appointment for cause, it is odd that certain of those decisions

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should be susceptible to review under the AD(JR) Act while others are not and the only difference between the relevant powers is the identity of the decision maker. In the Council’s view, it is appropriate that a statutory power to dismiss a person from office for cause be susceptible to judicial review. Appointment decisions 204. A particular concern that has been raised in some submissions to the Council is that exposing statutory decisions of the Governor-General to review under the AD(JR) Act would expose to review appointment decisions made by the Governor-General in Council. In Macrae v Attorney-General for New South Wales (1987) 9 NSWLR 268 the Court of Appeal of New South Wales held that the decision of the Attorney-General of New South Wales not to recommend the appointment of five former magistrates as magistrates under the Local Courts Act 1982 was void because it was made in such a way as to deny the applicants their legitimate expectations of procedural fairness. The Court of Appeal regarded the decision of the Attorney-General as made in the exercise of prerogative power notwithstanding that the power to appoint was vested in the Governor under section 12 of the Act. 205. However, Macraes Case turned on particular circumstances from which the Court of Appeal was able to conclude that the applicants had legitimate expectations which would be affected by a decision whether or not to recommend them for reappointment. In Cole v Cunningham (1983) 49 ALR 123 the Federal Court held that an applicant for appointment or reappointment to the Commonwealth Public Service is not entitled to natural justice because he has no legitimate expectation, let alone right, which can be disappointed or affected by a refusal to appoint him. It would appear that the circumstances which might give rise to a successful judicial review challenge to an appointment decision would be most unusual. The Council does not consider that bringing statutory decisions of the Governor-General within the ambit of the AD(JR) Act is likely generally speaking to provide a basis for challenges under the Act to statutory appointments by the Governor-General. Decisions made by Executive Council following decision of the Cabinet 206. It was mentioned above that both the Commonwealth Solicitor-General and the Attorney-General’s Department saw problems in exposing statutory decisions of the Governor-General to review under the AD(JR) Act in circumstances where the responsible Minister had taken the matter concerned to the Cabinet before formal determination by the Executive Council. Clearly, the interposition of the Cabinet in the decision making process will have an effect on the susceptibility to judicial review of a particular decision. As the decision of the full court of the Federal Court in Minister for Arts, Heritage and the Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 illustrates, the courts will rarely entertain a judicial review application which challenges a decision on natural justice grounds if the Cabinet has participated in the decision making process (see Chief Justice Bowen, p.225). Much may depend upon the nature of the decision with which the Cabinet has involved itself (see South Australia v O’Shea (1987) 163 CLR 378). The effect of the involvement of the Cabinet in the decision making process, however, may arise not only in relation to decisions of the Executive Council but also in relation to statutory powers conferred on a Minister. The fact of the matter is that decisions that are perceived by a Minister or the government to be important will be taken to the Cabinet notwithstanding the identity of the ultimate decision maker. The question of the involvement of the Cabinet in the decision making process is, therefore, a broad question which may affect the justiciability of decisions made by various decision makers. It is more appropriate to deal more fully with the matter in the context of the general discussion of justiciability in chapter 9.

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Other decisions 207. Where a person holds an appointment at the pleasure of the Governor-General, the power to dismiss the person is not conditioned on the requirements of natural justice: Coutts v Commonwealth (1985) 157 CLR 91. Clearly, where officers of the Defence Force are concerned, exposing decisions of the Governor-General to review under the AD(JR) Act would not affect the reviewability of decisions to terminate appointments:

The power to dismiss an officer of the Defence Force, whether it flows from statute or the prerogative, is a power to dismiss at pleasure. That is, the power to dismiss may be exercised at any time and for any reason, or for no reason or for a mistaken reason. In point of law, an officer has no security of appointment. (Courts v Commonwealth 1985) 157 CLR 91, 105 per justice Brennan)

208. As to other decision making powers in the defence context, the Council makes the point that many of them would be highly likely to be regarded by the courts as non-justiciable (eg, powers to call out the forces). In R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170, 219-20 Justice Mason referred with approval to certain observations in United Kingdom case law which suggested that the refusal of the courts to review the exercise of the royal prerogatives relating to war and the armed services was based on the view that they were not, by reason of their character and their subject matter, susceptible of judicial review. 209. The Governor-General’s other powers under statute include powers to make regulations and to issue proclamations and orders of various kinds. The making of regulations and other instruments of a legislative character would not be encompassed by the Council’s recommendation, as the Council does not propose to disturb the requirement in the definition of decision to which the AD(JR) Act applies that the decision be ‘of an administrative character’. 210. The Council can see no reason, however, why the making of a proclamation that is administrative in character should not be reviewable. An example may be a proclamation under section 13 of the Quarantine Act 1908 prohibiting the importation into Australia of goods of a certain kind. 211. The Attorney-General’s Department in its submission mentioned statutory decisions of the Governor-General to make certain arrangements with the States. The Council sees no difficulty in these decisions being brought within the ambit of the AD(JR) Act. Similar decision making powers are from time to time conferred on Commonwealth Ministers by statute and are, therefore, within the ambit of the AD(JR) Act. However, standing requirements and the difficulty of establishing grounds for review ensure that review of this kind of decision making is not in practice sought in the courts. Appropriate respondent to review proceedings 212. An application for review of a decision of the Governor-General would be a suit brought against the Governor-General in his official capacity rather than personally. In these circumstances, as is suggested by the High Court in FAI Insurances Ltd v Winneke (1982) 151 CLR 342, it would be both proper and sufficient to sue the Attorney-General as representing the Crown in its executive capacity (see especially Justice Wilson at p. 404). The more satisfactory course, however, would be for the Commonwealth Minister responsible for the advice tendered to the Governor-General to be named as the appropriate respondent. The Administrative Arrangements Order will reveal who the responsible Minister is. Recommendation 2: Statutory decisions of the Governor-General

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(1) The definition of decision to which the AD(JR) Act applies ought to be amended to remove the present exclusion of decisions of the Governor-General made under an enactment.

(2) The Minister responsible for the advice tendered to the Governor-General ought to be named as respondent in any application for review of a decision of the Governor-General.

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CHAPTER 6

SCHEDULE 1 EXCLUSIONS

Background 213. The AD(JR) Act as originally enacted applied to a decision of an administrative character made under an enactment other than a decision by the Governor-General. There were no exclusions from the ambit of the Act by means of Schedule 1 or Schedule 2. However, section 19 of the Act provided that regulations under the Act might declare a class or classes of decisions to be decisions that were not subject to judicial review under the Act. The intention was that the Act would not be brought into operation until a study had been made of what, if any, exclusions from its ambit ought to be made by way of appropriate regulations under section 19. 214. The question of what, if any, exclusions should be made was referred to the Council for examination and report. In consultation with Commonwealth departments and agencies, the Council conducted an intensive investigation. It reported to the Attorney-General in October 1978 (Administrative Decisions (Judicial Review) Regulations, Report No. 1, not printed for general circulation). 215. The Council’s report was examined by the government. The conclusions that the government reached on the question of exclusions were summarised as follows by the then Attorney-General, Senator Durack, in his second reading speech on the Administrative Decisions (Judicial Review) Amendment Bill 1980:

In the first place it is clear, as a result of the Council’s investigation of the matter, that there are some circumstances in which it would not be appropriate to lay on decision-makers the obligation to give full written reasons for their decisions, but equally it would not be proper to withdraw the decisions concerned from review by the Federal Court. The inappropriateness of requiring written reasons to be given will generally arise by reason of the nature of the decision in question. As the Act stands, there is no provision to exclude classes of decisions only from the obligation to give reasons. Exclusion must be from the whole Act. It therefore became clear that the Act ought to be amended to allow some classes of decisions to be excluded from the obligation to give reasons without, at the same time, excluding those decisions from review by the Federal Court. The second conclusion to which the Government came was that those matters proposed for exclusion before the Act is brought into operation, either from the Act as a whole or from the requirement to give reasons, should be subject to full parliamentary debate; that is, the initial exclusions should be contained in the Act itself, and not left to regulations made under the Act. (Senate, Hansard, 21 May 1980, p.2573-4)

216. Those conclusions were given effect to in the Administrative Decisions (Judicial Review) Amendment Bill 1980. The Bill inserted 2 schedules in the Act. Schedule 1 listed the classes of decisions which were to be excluded from the operation of the Act as a whole. Schedule 2 listed the classes of decisions which were to be excluded from the obligation to give a statement of reasons. 217. The schedules have been added to, subtracted from and otherwise amended since 1980. As presently in force, they are reproduced in Appendix 2 to this report.

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The Principle of Exclusion by means of Schedule 1 218. The recommendations made so far in this report have been underpinned by the following objectives: • to effectuate the purposes for which the AD(JR) Act was enacted of simplifying both the

procedure and the substantive law of judicial review in relation to Commonwealth decisions, in the interests of equity and efficiency;

• to eliminate, as far as possible, the need for litigants to consider dual avenues of review in the Federal Court which, again, detract from the simplicity, equity and efficiency of the law and the legal process.

These objectives compel the conclusion that, in general, the ambit of the AD(JR) Act should be co-extensive with judicial review at common law, at least to the extent that review is clearly available in the Federal Court under section 39B of the Judiciary Act. 219. The Council has been guided by these objectives also in considering which, if any, decisions which otherwise fall within the ambit of the Act should be excluded from it and whether any consequential alterations should be made to the scope of section 39B. In the Council’s view, it is important for any exclusion of classes of decisions from the ambit of the Act to be attributable to accepted principle, not only to provide a sound foundation for the existing Act but also as a guide to future decision makers in making any further exclusions from the Act. 220. It is convenient to divide the existing exclusions in Schedule 1 of the Act into five categories for this purpose. (1) Some decisions which are excluded from the AD(JR) Act under Schedule 1 also are

excluded from section 39B. The effect of exclusion of a decision from section 39B is to expose the decision to review by the High Court in its constitutional jurisdiction. This has significant consequences, both for the litigants and for the High Court. Exclusion nevertheless is justifiable, where the nature of the decision is such that it is appropriate for review to take place only at the level of the High Court. Even in relation to these decisions, the High Court could remit to the Federal Court cases with which it did not wish to deal.

Decisions in this category are decisions referred to in paragraphs (a) and (c) of Schedule 1 dealing with the Australian Industrial Relations Commission and the Coal Industry Tribunal respectively. On balance, the Council accepts the philosophy underlying the present exclusion of these decisions from section 39B, and recommends, with some modification, their continued exclusion from the AD(JR) Act (paras 225-35).

(2) There is a second category of decisions in which the Commonwealth has an

involvement but which are not reviewable in the Federal Court under section 39B because they are not officer decisions. This alone does not justify their exclusion from the AD(JR) Act. There may be additional considerations, however, which suggest that they should be so excluded. In particular, paragraphs (m) and (n) of Schedule 1 exclude certain decisions taken under the inter-governmental companies and securities scheme. The exclusions give effect to agreements between the Commonwealth and the States in relation to the scheme. Clearly, once such an agreement has been entered into, exclusion is necessary. Equally, in chapter 7, the

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Council suggests that committal decisions, which are not presently excluded from the AD(JR) Act, should be left to be reviewed by the processes which normally apply in the State court systems, in the interests of the integrity of the criminal law process of the State court systems.

(3) There is a third category of decisions for which the Parliament has provided a

comprehensive or nearly comprehensive system of review on the merits in the Federal Court. The taxation assessment decisions in paragraph (e) fall into this category. The majority of the Council considers that, even though an avenue of appeal to the Federal Court as an alternative to appeal to the AAT has been provided in this case, the exclusion of these decisions from the AD(JR) Act is unwarranted. Any duplication or abuse of the review process could be adequately dealt with by the court in the exercise of the discretion it would have following implementation of recommendation 15. Some members of the Council take the view, however, that review under the AD(JR) Act can appropriately be excluded where Parliament has provided for a review in the Federal Court.

A variant on this category are the extradition decisions referred to in paragraph (r). Decisions of State magistrates in the extradition process are similar to committal decisions in the ordinary criminal law process. Here, however, the Parliament has provided in the extradition legislation itself for judicial review of magistrates decisions in either the Federal Court or the State Supreme Courts. The Council is of the view that these decisions should be excluded from the AD(JR) Act in the same way as ordinary committal decisions.

The majority of the Council considers that surrender decisions of the Attorney-General under the extradition legislation should be subject to the AD(JR) Act. A minority of the Council considers that, either on the grounds that there has already been an opportunity for review in the Federal Court or on national interests grounds (see category (4) below), review of these decisions under the AD(JR) Act should not be available.

(4) There is a fourth category of decisions presently provided for in Schedule 1 for which

a minority of the Council believes judicial review should not be available at all, in the national interest. These decisions are decisions relating to security and intelligence, decisions under the Foreign Takeovers Act and surrender decisions of the Attorney-General under the extradition legislation. While it is not possible, because of section 75(v) of the Constitution, to exclude review of these decisions altogether, these members nevertheless take the view that further judicial review should not be provided by making the AD(JR) Act available. These members consider that some of these decisions could also be excluded from section 39B but they stop short of recommending such an exclusion of all of them, on pragmatic grounds.

(5) For the various reasons set out below, the Council agrees that all other decisions

presently listed in Schedule 1 should be removed from it. 221. The detailed reasoning of the Council on these issues is set out below. The reasoning of the minority on decisions in categories (3) and (4) are set out in an addendum to the chapter.

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Effect of Compressing Schedule 1 222. Many of the submissions made to the Council supported the abolition of Schedule 1 or supported a significant reduction in its extent. Several submissions, however, put a case for a particular class or particular classes of decisions presently within the schedule to remain excluded from the ambit of review under the Act. Those submissions are referred to in the discussion below of each of the particular exclusions. 223. In examining the Schedule 1 exclusions, the Council has borne in mind the recommendations it made in its Report No. 26, Review of the Administrative Decisions (Judicial Review) Act 1977: Stage One, which were aimed at limiting the availability of judicial review under the Act in certain circumstances. The Council has considered those issues again in chapter 8 of the present report. The recommendations which it makes in that chapter are designed to complement the approach which the Council takes here to the exclusions in Schedule 1. 224. The proposals made in this chapter also have implications for the obtaining of statements of reasons. A class of decisions set out in Schedule 1 is excluded not only from judicial review under the Act but also from the requirement under section 13 to provide reasons on request. It was mentioned in the introduction to this report that this requirement is presently the subject of separate consideration in a draft report which the secretariat of the Council is preparing for discussion purposes. While it would not be appropriate for classes of decisions to be removed from Schedule 1 until such time as the question of the exposure of those decisions to the requirements of section 13 were dealt with, the Council does not see any difficulty in practice in this report recommending their removal from the schedule. It assumes that no final decisions on their removal will be taken by the government until such time as the Council is in a position to give it advice on the extent of the statements of reasons requirement.

Particular Exclusions Presently Provided for in Schedule 1 Decisions under the Conciliation and Arbitration Act 1904 or the Industrial Relations Act 1988 225. Paragraph (a) of Schedule 1 presently has the effect of excluding from review under the AD(JR) Act decisions of the Conciliation and Arbitration Commission, other bodies under that Act and bodies under the new Industrial Relations Act, including the Australian Industrial Relations Commission. The paragraph also excludes from review decisions of the Minister made in the exercise of his powers under the Conciliation and Arbitration Act or the Industrial Relations Act. Certain decisions under the Conciliation and Arbitration Act presumably have some transitional operation but, with the coming into force on 1 March 1989 of the Industrial Relations Act, the practical effect of paragraph (a) of Schedule 1 is to exclude from review under the Act decisions of the new Australian Industrial Relations Commission and decisions of the Registrar, inspectors and the Minister under that Act. 226. The exclusion is similar to, but a little wider than, the exclusion in section 39B(2)(a) of the Judiciary Act of a person holding office under the Industrial Relations Act. In the draft report issued by the Council in July 1988 views were sought on these exclusions, the effect of which is that review of decisions of members of the Commission is exclusively within the original jurisdiction of the High Court. It was noted in the draft report that at least some of

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the Justices of the High Court had supported the view that review of these decisions should be dealt with in the original jurisdiction of the Federal Court. In a speech at the Australian Legal Convention in Perth in 1987 the Chief Justice, Sir Anthony Mason, asked why should applications for writs against the Commission ‘come straight to the High Court without our having the benefit of consideration by an intermediate court when all appeals coming to the court are subject to the grant of special leave’. The Chief Justice’s views were echoed from the bench in subsequent comments by Justice Deane when hearing an application by the Municipal Officers Association for a writ against a decision of the Commission (The Australian, 10 December 1987). 227. In an oral judgment on 24 February 1989 in Overseas Telecommunications Commission; ex parte Professional Radio and Electronics Institute of Australasia, Justice Brennan said that it was regrettable that the High Court was the only court with jurisdiction to supervise the exercise by the Conciliation and Arbitration Commission of its powers under the Conciliation and Arbitration Act. Justice Brennan was critical of the Parliament in excluding decisions made by the Commission from the jurisdiction of the Federal Court which, as a court regularly exercising original jurisdiction, he said was equipped to deal speedily with applications to supervise the exercise of non-judicial powers. 228. On the other hand, although decisions of the Commission have been challenged on traditional writ grounds of natural justice (Overseas Telecommunications Commission Case referred to above: Re Building Workers lndustrial Union; ex parte Gallagher (1988) 76 ALR 353), more often challenges are on the grounds of no constitutional basis of jurisdiction (Constitution, s.51(35)). This suggests that there is a need for special treatment of cases in which the decision relates to jurisdictional issues in the constitutional sense. 229. As with the exclusion from section 39B of judges of the Family Court, the exclusion in the section and in the AD(JR) Act relating to the Commission may, in so far as presidential members of the Commission are concerned, relate to their equality of status with judges of the Federal Court. 230. The applications which appear to be of particular concern to the High Court are applications concerning single members of the Commission. Jurisdictional challenges to action taken by them may be satisfactorily dealt with by the Industrial Relations Act 1988. Section 45(1)(g) of the Act provides for appeals to a Full Bench of the Commission against a decision of a member of the Commission that the member has jurisdiction, or against a refusal of a member of the Commission to exercise jurisdiction, in a matter arising under the Act. 231. Some submissions made to the Council supported the exclusion from review under the AD(JR) Act of decisions of the Commission. Others did not. The Department of Industrial Relations, in particular, argued that extension of review under the AD(JR) Act to decisions of members of the Commission would be inappropriate. A similar view was expressed by President Maddern of the Commission in discussions which a committee of the Council had with him. The Victorian Bar said that, if the exemption in favour of the Commission were maintained, it should be maintained only for presidential members. 232. The Council has concluded that the present exclusion from judicial review under the AD(JR) Act is appropriate to the extent that decisions of the Commission and the Registrar are concerned. The reasons may be summarised as follows:

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• The main problem from the High Court’s point of view has been the seeking in the High Court of writs in relation to decisions of single members of the Commission. The Industrial Relations Act deals with this problem by providing for an appeal to the Full Bench on jurisdictional matters.

• Jurisdictional issues in this area frequently relate to the scope of the Commonwealth’s constitutional power. The High Court is the appropriate forum for this kind of jurisdictional issue to be determined.

• The Commission is not an ordinary adjudicative tribunal. Effectively, it is a legislative tribunal, the major decisions of which have an important impact on the Australian economy. The parties to Commission proceedings are private individuals: employers on the one hand, employees on the other.

• Decisions of the Registrar should be regarded on the same basis as decisions of the Commission. Under the Industrial Relations Act, matters before the Registrar may be removed by the President of the Commission to be heard and determined by the Commission (s.80) and appeals lie to the Commission from decisions of the Registrar (s.81).

233. The Council is not, however, of the view that the present wording of paragraph (a) of Schedule 1 is appropriate and considers that the exemption should be aligned more closely with section 39B(2)(a) of the Judiciary Act. There is no reason, for example, why decisions of the Minister administering Part XII of the Industrial Relations Act (‘Financial Assistance and Costs’) or why decisions or conduct of inspectors under the Act should not be covered by the ambit of the AD(JR) Act. The Department of Industrial Relations in its submission said that it accepted that decisions of officers of the Arbitration Inspectorate were appropriate for review under the AD(JR) Act and that the currently existing exemption for those decisions need not continue. In the Council’s view, the exclusion in paragraph (a) of Schedule 1 ought to be an exclusion of decisions of persons holding office under the Industrial Relations Act. Recommendation 3: Decisions of the Australian Industrial Relations Commission Paragraph (a) of Schedule 1 to the AD(JR) Act ought to be amended to refer to decisions of persons holding office under the Industrial Relations Act 1988. Decisions under the Coal Industry Act 1946, other than decisions of the Joint Coal Board 234. The Coal Industry Act is expressed to provide a means for securing and maintaining adequate supplies of coal throughout Australia and for providing for the regulation and improvement of the coal industry in New South Wales. In addition to providing for the establishment of the Joint Coal Board, the Act provides for the establishment of the Coal Industry Tribunal to consider and determine industrial matters in the mining industry. Paragraph (c) of Schedule 1 has the effect of excluding from review under the AD(JR) Act decisions concerning industrial matters made under the Coal Industry Act. 235. The Council notes that the future of the Coal Industry Tribunal has been under discussion between the Commonwealth and New South Wales governments. While the tribunal continues, however, the Council is of the view that the same considerations as apply in relation to the judicial review of decisions of the Industrial Relations Commission apply in relation to the judicial review of decisions of the tribunal. This view is supported by the Department of Industrial Relations. The Council considers that paragraph (c) of Schedule 1 should stand in its present term.

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Security and intelligence decisions 236. Paragraph (d) of Schedule 1 excludes from review decisions under any of the following Acts: Australian Security Intelligence Organization Act 1956 Australian Security intelligence Organization Act 1979 Inspector-General of Intelligence and Security Act 1986 Telecommunications (Interception) Act 1979 Telephonic Communications (Interception) Act 1960. Paragraph (da) of Schedule 1 excludes from review decisions under section 13 of the Migration Act 1958. 237. The Australian Security Intelligence Organization Act 1956 was repealed by the Australian Security Intelligence Organization Act 1979. The ASIO Act 1979 is expressed to be an Act relating to the Australian Security Intelligence Organization. It deals with the functions, powers and staffing arrangements of ASIO, and the office of Director-General. Part IV is concerned with security assessments which are furnished by ASIO to Commonwealth agencies, and establishes the Security Appeals Tribunal to which a person may appeal against an adverse or qualified security assessment. Section 37(5) provides that no proceedings other than an appeal to the Security Appeals Tribunal may be brought in any court or tribunal in respect of the making of a security assessment or anything done in respect of an assessment in accordance with the ASIO Act. Proceedings of the Security Appeals Tribunal are conducted in private and neither party is present when submissions are being made or evidence is being adduced by the other party (s.58), and various other provisions of Division 4 (review of security assessments) of Part IV (security assessments) strictly limit the disclosure of information and publication of the findings of the Tribunal. Findings of the Security Appeals Tribunal are binding on other review bodies (s.61(2)) and are not subject to review by any court or other tribunal (s.62). 238. The Inspector-General of Intelligence and Security Act 1986 provides for the appointment of an Inspector-General of Intelligence and Security and for the performance by the Inspector-General of certain review functions. Specifically, the Inspector-General may, at the request of the responsible Minister, of his own motion or in response to a complaint made to him, inquire into any matter that relates to the compliance by the security and intelligence agencies of Australia with the laws of the Commonwealth, the States or the Territories, the propriety of particular activities of the agencies and, in certain cases, acts or practices of the agencies that may be inconsistent with or contrary to any human right. 239. The Telephonic Communications (Interception) Act 1960 was repealed by the Telecommunications (Interception) Act 1979. The latter Act prohibits the interception of telecommunications except where specially authorised in the interests of national security or in connection with narcotics offences. Interception may only take place on a warrant authorising interception. 240. The effect of paragraph (da) of Schedule 1 is to exclude from review decisions of the Minister for Immigration, Local Government and Ethnic Affairs to order the deportation of non-citizens upon security grounds. The paragraph was inserted in Schedule 1 by the Intelligence and Security (Consequential Amendments) Act 1986 at the same time as the reference to the Inspector-General of Intelligence and Security Act 1986 was inserted in paragraph (d).

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241. In Council Report No. 1, Administrative Decisions (Judicial Review) Regulations, the Council recommended exclusion of decisions under the ASIO Act and under the now-repealed Telephonic Communications (Interception) Act. It noted that the Ellicott Committee had recommended that decisions relating to national security should be considered for exclusion. 242. However, in the draft report issued by the Council in July 1988 the point was made that, since the Council made its recommendation in Report No. 1, a majority of the High Court in Church of Scientology v Woodward (1982) 154 CLR 25 had held that the question whether particular acts of ASIO were relevant to security could be determined by the court. Justice Mason said:

No one could doubt that the revelation of security intelligence in legal proceedings would be detrimental to national security. But it does not follow that ASIO’s activities should be completely free from judicial review. To so conclude would be to ignore the protection which is given by the doctrine of Crown privilege to information the disclosure of which is prejudicial to national security. (p. 59)

The majority distinguished the principle of judicial review from the availability of evidence necessary to establish the plaintiff’s case. Justice Mason said:

The fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials. (p 61).

243. The 1988 draft report suggested that, in the light of the decision of the High Court in Church of Scientology v Woodward, support for the exclusions presently to be found in paragraphs (d) and (da) of Schedule 1 was difficult to maintain. 244. Submissions on the draft report which dealt specifically with the exclusion from the Act of decisions relating to security matters were made by the Attorney-General’s Department, the Department of Immigration, Local Government and Ethnic Affairs, the Department of the Prime Minister and Cabinet, the Law Council of Australia and the Law Society of South Australia. 245. The Attorney-General’s Department said:

With regard to the ASIO legislation, the High Courts decision in Church of Scientology v Woodwood is not seen as affecting the issue whether ASIO should be excluded from review under the AD(JR) Act. The fact that section 75(v) of the Constitution would apply (a factor that none could dispute) does not necessarily mean that the AD(JR) Act should. The status quo should be maintained for the same reasons as advanced by the Council in its report number 1 on exclusions from the Act. There is also support for maintaining the status quo in the Ellicott Report. Further, there are adequate remedies already available in that the Inspector-General of Security and Intelligence Act 1986 provides a review of actions by ASIO both as to laws and propriety and the Security Appeals Tribunal provides an avenue for appeals against security assessments. Given the importance and sensitivity of ASIO’s role in protecting the people of Australia from espionage, sabotage, politically motivated violence, attacks on Australia’s defence system and acts of foreign interference, yet another right of review would make that work significantly more difficult.

The Telecommunications (Interceptions) Act 1979 prohibits the interception of telecommunications except in accordance with the scheme provided in the Act. The place where questions as to the legality of an interception under that Act would arise is in a

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prosecution, either for breach of the Act itself, or for criminal offences in which evidence based on intercepted information is sought to be admitted. Relevant prosecutions would be conducted in State or Territory Courts, and the law of the appropriate jurisdiction as to rights of appeal and review in relation to the criminal trials taking place in that jurisdiction should apply (and not the AD(JR) Act).

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The views of the Department of the Prime Minister and Cabinet were broadly similar. 246. The Department of Immigration, Local Government and Ethnic Affairs said:

While the common law and indeed the Act itself may allow the confidentiality of security assessments to be maintained it does not guarantee that decisions based on such material upon which the applicant may have been given no opportunity to comment, will not be challengeable for breach of the rules of natural justice. It might be argued in cases involving confidential information relevant to national security that the requirements of natural justice/procedural fairness dictate that the applicant should know the entire case against him/her and have the opportunity to respond to adverse allegations (though Kioa v MInisler for Immigration and Ethnic Affairs (1985) 62 ALR 321 per Brennan J at p93 (sic) may imply that this is incorrect).

247. The Law Council of Australia, the views of which were supported by the Law Society of New South Wales, said that, whilst the exclusion of decisions in relation to the security organisations may initially seem to be appropriate, national security in itself should be no bar to judicial review. It went on to say that, if a true national security issue emerges which renders the issue non-justiciable, that will be the reason why it could be expected that the judiciary will decline to deal with the application. 248. On the other hand, the Law Society of South Australia proposed that decisions under the ASIO Act and the Inspector-General of Intelligence and Security Act remain excluded from the ambit of the AD(JR) Act. 249. The Council agrees with the Law Council of Australia that the exclusion from review under the AD(JR) Act of decisions relating to the intelligence and security agencies is not appropriate. Contrary to the submission of the Attorney-General’s Department that the High Court’s decision in the Church of Scientology Case is not seen as affecting the issue whether ASIO should be excluded from review under the AD(JR) Act, the Council considers that the decision does affect that issue. While Justice Mason was not dealing directly with the issue of the application of the AD(JR) Act to national security activities, the view he expressed that those activities should not be completely free from judicial review necessarily suggests that any appropriate review should take place in the court which regularly exercises original judicial review jurisdiction. Furthermore, the Council does not consider that the AD(JR) Act should be regarded as ‘yet another right of review’ in the security and intelligence area. The fact is that judicial review is already available. The AD(JR) Act is merely a different (and more satisfactory) conduit. The availability of the Security Appeals Tribunal to deal with appeals against security assessments is relevant to the issue of the grant of a judicial review remedy in relation to a security assessment decision. However, this is a discretionary matter with which section 10 of the AD(JR) Act has been specifically designed to deal 250. It may be ‘obvious and unarguable’ that ‘no governmental interest is more compelling than the security of the nation’ (Haig v Agee (1981) 453 US 280, 307) but the Council does not consider that the activities of the security agencies should be free from judicial scrutiny merely because they are security agencies. Such an approach would not appear to be consistent with the approach in R v Secretary of State for the Home Department; ex parte Ruddock [1987] 2 All ER 518. In that case the Secretary of State argued that the Queen’s Bench Division ought not to entertain an application for judicial review of a warrant to tap telephones because to do so would be detrimental to national security. The Secretary of State had, as a matter of policy in the interests of national security, declined either to confirm or

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deny the existence of a warrant. The court held that it would not decline to exercise its supervisory jurisdiction merely because a Minister said that his policy was to maintain silence in the interests of national security. 251. Similarly, in Alister v R (1982) 154 CLR 404, 413 Chief Justice Gibbs said that, notwithstanding the respect that must be paid to a claim for immunity made by a Minister in relation to a matter of national security, he was not at all convinced that the public interest required that ASIO should be able in all cases to refuse to disclose whether a document existed. 252. In the Council’s view, a distinction is properly drawn between the amenability to review of security decisions as a class and the applicability of the grounds of review to a particular decision. This is illustrated by Council of Civil Service Unions v Minister for the Civil Service (GCHQ Case) [1985] AC 374 where the House of Lords held in relation to the Minister’s action that a breach of the rules of natural justice could be justified on grounds of national security. 253. The argument of the Attorney-General’s Department that any questions as to the legality of an interception under the Telecommunications (Interceptions) Act should appropriately be dealt with in criminal proceedings requires qualification in relation to the availability of declaratory relief. In Sankey v Whitlam (1979) 142 CLR 1 the High Court held that the courts can make declarations in relation to questions which could have fallen for decision in criminal proceedings, although the discretion to grant declaratory relief should be exercised sparingly. 254. The fears of the Department of Immigration, Local Government and Ethnic Affairs that, in cases involving information of a national security nature, the requirements of natural justice might dictate that the applicant should know the entire case against him are, in the Council’s view, adequately addressed by the courts themselves. They have clearly indicated that a claim of public interest immunity may be made in relation to such information. Furthermore, as the Department noted in its submission, Justice Brennan in the Kioa Case (1985) 159 CLR 550, 616 indicated that reasons of national security may, in certain cases, make it impossible to observe the principles of natural justice. 255. The Council notes that the recent enactment of the Inspector-General of Intelligence and Security Act means that there is now a formal mechanism in place for overseeing the activities of the security and intelligence agencies. Given the nature of national security activities, that mechanism is likely to prove more satisfactory for persons aggrieved by security decisions than use of judicial review processes. However, in the Council’s view, the existence of that mechanism should not be regarded as militating against coverage by the AD(JR) Act any more than the existence of Ombudsman review in other areas should be regarded as militating against coverage by it. 256. The Council would be further confirmed in the view that the exclusion from review under the AD(JR) Act of decisions relating to the intelligence and security agencies should not continue if particular proposals contained in Discussion Paper No. 20, Disclosure of Official Information, of the Gibbs committee on criminal law were to be implemented. That paper suggests removal of the defence of public interest in relation to a prosecution for an offence of unauthorised disclosure of official information relating to security and intelligence (para 6.55). The justification given for this proposal is that sufficient statutory avenues of complaint exist in the Commonwealth for investigations of complaints of illegality by the

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intelligence services. The paper refers in particular to the Ombudsman and the Inspector-General of Security. While both these bodies have a valuable role to perform in this area, the Council does not share the view that they constitute a sufficient bulwark against any illegality by the security agencies. The independence of the judicial arm from the other arms of government does, on the other hand, provide a bulwark against illegality. 257. On 24 March 1988 the Council advised the Attorney-General that a case could be made out for an exclusion under the AD(JR) Act of special access decisions under section 56(2) of the Archives Act made in relation to records that had originated with, or been received from, the security agencies (see Twelfth Annual Report, 1987-88, letter 12). The Council pointed out that review of such decisions under section 39B of the Judiciary Act would continue to be available. However, it noted the fact that Schedule 1 had been inserted in the AD(JR) Act and that it excluded certain security decisions from review under the Act. On this basis, it said that a case for exclusion could be maintained. 258. The Council has argued above, however, that security decisions as a class are not appropriate for continued exclusion from the scope of the Act. Consistently with that view, therefore, the Council now considers that there ought to be no exclusion of special access decisions under the Archives Act from the scope of the AD(JR) Act. 259. Some members of the Council disagree with the recommendation that paragraphs (d) and (da) of Schedule 1 ought to be repealed. The views of these members on the classes of decisions set out in those paragraphs appear in the addendum to this chapter. Recommendation 4: Decisions relating to security and intelligence Paragraphs (d) and (da) of Schedule 1 to the AD(JR) Act ought to be repealed.

Taxation decisions The issue of the exclusions 260. Paragraph (e) of Schedule 1 excludes from review decisions making, or leading to the making of, assessments or calculations of tax, or decisions disallowing tax objections, or decisions amending, or refusing to amend, assessments or calculations of tax, under the various Acts concerned with the assessment or calculation of tax. 261. Paragraph (g) excludes from review decisions concerning tax clearance certificates. 262. One reason for the inclusion of paragraphs (e) and (g) in Schedule 1 is because there is in the Commonwealth a long established and well developed system for appeals against taxation decisions. So far as income tax is concerned, section 187 of the Income Tax Assessment Act provides that a taxpayer dissatisfied with the Commissioner’s decision on an objection may, within 60 days after service of the notice of the decision, request the Commissioner to refer the decision to either the Administrative Appeals Tribunal or the Federal Court. Similarly, section 14H of the Taxation Administration Act confers a right of review by the AAT of objection decisions in relation to the issue of tax clearance certificates. 263. When paragraph (e) of Schedule 1 came into force, the appeal route was either to a Taxation Board of Review or to a State Supreme Court. Any appeal from a decision of a State Supreme Court lay to the Federal Court. Paragraph (e) was aimed at ensuring that taxpayers were unable to short circuit the established appeal route by getting their cases into the Federal Court without going through the antecedent step of having the cases referred

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either to a Board or to a State Supreme Court. However, with the changes to taxation appeal arrangements which came into force in recent years, this particular justification for paragraph (e) has ceased to have force. 264. As is noted in chapter 11 (para.472), the taxation objection and appeal provisions until recently did not extend to the sales tax area but, since 1 July 1986, that area too is now covered. 265. The Australian Taxation Office in its submission on the draft report said that it was strongly opposed to any repeal of paragraph (e). The Office said that the scheme of the income tax legislation is that taxpayers may challenge an assessment by way of established procedures whereby the Federal Court or the AAT is empowered to substitute its decision for that of the Commissioner. A central element of this scheme, the Office said, was that assessments were open to challenge only through the appellate procedure contained in the relevant legislation. The submission of the Office also made the following points:

Recourse to the AD(JR) Act is of limited benefit to a taxpayer genuinely seeking review of an assessment as the Federal Court may only consider whether a decision is made according to law and cannot review the merits of a decision. If review were available under AD(JR) this would undoubtedly be used to delay and frustrate the assessment process and to explore the information the Commissioner possessed in relation to the taxpayer.

Perhaps of more fundamental importance is that to allow review of decisions affecting assessments would radically disturb the onus of proof which, as an integral part of the taxation system, quite properly lies with the taxpayer. It is the taxpayer, not the Commissioner, who is best aware of the taxpayer’s own affairs.

266. The Australian Customs Service in its submission also expressed opposition to the repeal of paragraph (e). It said that an appeal to the AAT via the payment under protest mechanism (s.167(1) of the Customs Act) addressed appeals against tariff classification (a matter of law) and valuation (a matter of fact) of the goods concerned. The Australian Customs Service considered that, given that an appeal mechanism was in place, the additional introduction of review under the AD(JR) Act would ‘serve to disrupt operations without legitimate identifiable benefits to the duty-payer or the ACS’. 267. On the other hand, the Taxation Institute of Australia in its submission supported the suggestion of the Council that paragraph (e) ought to be repealed. The Institute expressed its agreement with the suggestion made in the draft report that section 10 of the AD(JR) Act provides a more appropriate means for determining whether or not a particular application for judicial review ought to be granted than is achieved by a blanket exclusion of classes of matters from the ambit of review under the Act:

Considerations involving time and justice to the parties are, in the view of the Institute, appropriately taken into account in determining which is the more appropriate means for having a decision reviewed, and this is not possible at the moment.

268. In the Council’s view, the availability of a comprehensive appeals system does not provide a basis for an exclusion from the AD(JR) Act. The Act specifically contemplates in section 10 that, in certain cases which come before the court on a judicial review application, adequate provision for appeal or review will be made elsewhere. The section provides for exercises of the court’s discretion in those circumstances to refuse to grant the judicial review application.

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269. In Report No. 26 the Council recommended that this discretion be fortified by a provision in the Act requiring the court’s discretion to be exercised at the outset of proceedings wherever appropriate. In chapter 8 of this report the Council again makes recommendations for the strengthening of the discretion of the court under section 10. The adoption of those recommendations should serve to ensure that the AD(JR) Act is not used in the way referred to by the Australian Taxation Office and the Australian Customs Service. 270. A further reason for proposing that decisions referred to in paragraphs (e) and (g) of Schedule 1 are not appropriate for continued exclusion from the AD(JR) Act is that the present exclusion is anomalous. If the main reason for the exclusion is the existence of a right of review on the merits, the consistent line which ought to be taken in the Commonwealth is that, whenever legislation gives a right of review of a particular class of decisions by the AAT, steps ought to be taken to exclude review under the AD(JR) Act. Quite properly, this course is not in fact taken. Section 10 of the AD(JR) Act is in place to deal with the alternative remedies issue. 271. The Council notes that before the possibility of appealing to the AAT became available, paragraph (f) of Schedule 1 also excluded from review decisions of the Taxation Boards of Review. This exclusion was consistent with the philosophy behind the original exclusion of tax matters from the Act that taxpayers ought to be prevented from short circuiting the established appeal route by getting their case into the Federal Court without going through the antecedent steps. With the abolition of the Taxation Boards of Review and the conferral of a tax appeal jurisdiction on the AAT, paragraph (f) was repealed and no like exclusion from judicial review was put in place in relation to the AAT. In Kretchmer and Repatriation Commission (7 November 1988, not yet reported) the AAT (Justice Hartigan, Mr Bannon, QC, and Mr McMahon) expressly recognised that in some circumstances, for example where an error of law as to jurisdiction had been made by the AAT, the only satisfactory course for an applicant might be to seek judicial review of the decision of the AAT. 272. Some members of the Council disagree with the recommendation that paragraphs (e) and (g) of Schedule 1 ought to be repealed. The views of these members on the classes of decisions set out in those paragraphs appear in the addendum to this chapter. Interpretation of paragraph (e) 273. The interpretation of paragraph (e) has been the subject of consideration by the courts in several cases. In Intervest Corporation Pty Ltd v Federal Commissioner of Taxation (1984) 58 ALR 317 the applicant sought review of decisions refusing a request for a determination of a further period during which the applicant might make a sufficient distribution within the meaning of section 105A of the Income Tax Assessment Act. The question in issue was whether a refusal of a request was an integral part of the process of making an assessment and was therefore excluded from the operation of the AD(JR) Act by paragraph (e). The Federal Court held that the decision was not so excluded. The court also held that a demand by the Commissioner of Taxation under section 264 of the Income Tax Assessment Act was not excluded from review by paragraph (e). This latter view was followed by a full Federal Court decision in Hadfield France Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 249. 274. Paragraph (e) also does not cover decisions of the Commissioner of Taxation under section 206 refusing applications for extension of time to pay tax. Several applications under the AD(JR) Act have sought review of these decisions.

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275. One matter commented on by the Federal Court in the Intervest Corporation Case was that, even if it had concluded that a decision refusing a request was a decision leading up to the making of an assessment, the decision would not fall within paragraph (e) if it were made after the notice of assessment had been given. In that case the decision could only lead up to the making of an amended assessment. However, noted the Federal Court, decisions leading up to the making of amended assessments were not caught by the words of paragraph (e). 276. The Council considers that this is a questionable reading of paragraph (e) and that, even if the exclusion were to remain in the Act, there would be no need to propose an amendment of the paragraph to deal with it. Section 173 of the Income Tax Assessment Act provides that, except as otherwise provided, every amended assessment shall be an assessment for all the purposes of that Act. In the Council’s view, it is difficult to argue that, in paragraph (e) of Schedule 1 to the AD(JR) Act, the expression ‘decisions . . . leading up to the making of assessments . . . under the . . . Income Tax Assessment Act’ do not encompass decisions leading up to the making of amended assessments. 277. Certain other cases which have involved the interpretation of paragraph (e) are usefully discussed in Enright, Judicial Review of Administrative Action (1985), pp 222-5 and in Pearce, Commonwealth Administrative Law (1986), pp 119-121 (and see paras 465-7 below). In many cases what is in issue is the definition of the boundary between those decisions which are and those which are not ‘decisions leading up to’ the making of an assessment. Recommendation 5: Taxation decisions Paragraphs (e) and (g) of Schedule 1 to the AD(JR) Act ought to be repealed. Decisions under Foreign Takeovers Act 278. Paragraph (h) of Schedule 1 excludes from review decisions under the Foreign Takeovers Act 1975. In its Report No. 1, Administrative Decisions (Judicial Review) Regulations, the Council mentioned that the reason put forward by the Department of the Treasury for exclusion of these decisions was that classified or commercially confidential material may have to be revealed in proceedings or statements of reasons. This argument was dealt with in paragraphs 32-43 of that report. The Council concluded that section 14 of the Act provided an adequate safeguard in relation to the obligation to provide a statement of reasons. 279. So far as proceedings under the AD(JR) Act are concerned, the doctrine of public interest immunity means that a court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it: Sankey v Whitlam (1979) 142 CLR 1, 38. Confidentiality may be a material consideration when privilege is claimed on the ground of public interest: Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners [No.2] [1974] AC 405. The same principles relating to public interest immunity as apply in relation to documents also apply in relation to oral evidence: Young v Quin (1985) 59 ALR 225. The operation of the doctrine of public interest immunity, which once used to be known as Crown privilege, is referred to in paragraphs 41-2 of the Council’s Report No. 1. The effect of section 14(4) of the AD(JR) Act is that the general powers of the Federal Court with respect to discovery are not altered by the Act. The Act does not, therefore, make any change to the general law relating to public interest immunity.

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280. In these circumstances, the Council considers that the commercial confidentiality of material involved in the making of particular decisions ought not to provide a ground for exemption of those decisions from the scope of the AD(JR) Act. The question of exemption from the requirement to provide a statement of reasons on request is a separate matter. This will be taken up by the Council in the next stage of the AD(JR) project. 281. A further reason for the exclusion of decisions under the Foreign Takeovers Act from the scope of the AD(JR) Act was given in a letter of the Treasurer to the Attorney-General dated 23 December 1988. In that letter the Treasurer said:

I am concerned that to make decisions under the Foreign Takeovers Act subject to judicial review would have a substantial adverse effect on the administration of foreign investment policy. Most foreign investment proposals are assessed primarily in terms of their consistency with the national interest and that issue would appear to be the likely subject of any review. It is the prerogative of the Government to determine the national interest, consistent with its overall economic and social agenda, and in my view this is not a matter which should be open to review on any other basis.

282. The Council notes that the Foreign Takeovers Act empowers the Treasurer to make decisions on national interest grounds on foreign investment proposals which fall within the Act. Furthermore, under a proposed amendment of the Foreign Takeovers Act which is presently in the Parliament relating to acquisitions of interests in Australian urban land, the same national interest test governs any order by the Treasurer prohibiting a proposed acquisition (see proposed section 21A set out in the Foreign Takeovers Amendment Bill 1988). The booklet, Australia’s Foreign Investment Policy - A guide for investors, sets out Australia’s foreign investment policy. The foreword to the booklet written by the Treasurer states that the Australian government welcomes foreign investment and that the government’s policy is to encourage direct foreign investment consistent with the needs of the Australian community. The booklet goes on to say that in the majority of industry sectors, proposals are approved as a matter of course unless judged contrary to the national interest. It also says that investors can expect that approval will not be withheld from proposals on national interest grounds other than in unusual circumstances affecting Australia’s vital interests and development. 283. Historically, very few proposals for investment in Australia have been rejected. The Annual Report 1986-87 of the Foreign Investment Review Board shows that in 1986-87 1,352 proposals for investment in Australia were considered by the Board and only 5 were rejected. Considerably more applications for approval followed the changes to the government’s policy announced on 29 September 1987 concerning foreign purchases of developed residential real estate. The number of rejections, however, remains low. The new government policy concerning acquisitions of urban real estate is proposed to be put on a legislative footing under the amendments contained in the Foreign Takeovers Amendment Bill 1988. Other changes to government policy announced earlier in 1987 have had the effect of excluding from the Foreign Takeovers Act acquisitions below certain thresholds. This liberalisation of foreign investment guidelines is again proposed to be given legislative effect in the Foreign Takeovers Amendment Bill 1988. 284. The Council agrees with the view expressed in the letter of the Treasurer that the national interest is a matter properly to be determined by the government. It does not, however, consider that the fact that the national interest provides the predominant test governing any decision by the Treasurer under the Foreign Takeovers Act to prohibit proposed investment in Australia provides a basis for an exclusion from the AD(JR) Act. In

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the Council’s view, it is proper that a decision made pursuant to government policy be able to be tested for its legality; this is already possible under section 39B of the Judiciary Act. On the other hand, it may be that the considerations involved in the making of a particular decision render that decision non-justiciable. The Council considers that the limitations on review deriving from justiciability provide a sufficient safeguard in relation to decisions under the Foreign Takeovers Act. 285. The circumstances which arose recently when the Treasurer used his powers under the Foreign Takeovers Act to block a large commercial development at Woolloomooloo Bay may be argued to support the case in favour of jurisdiction under the AD(JR) Act being available. The Treasurer was reported to have blocked the proposal because of the adverse environmental impact which he considered it would have on the historic waterfront area. His decision was criticised by the New South Wales government on the grounds that it was an abuse of his discretionary powers under the Foreign Takeovers Act (see Australian Financial Review, 2 March 1989). 286. The Taxation Institute of Australia in its submission to the Council on the 1988 draft report suggested an additional reason for the view that the exclusion in paragraph (h) of decisions under the Foreign Takeovers Act should not be maintained. The Institute drew attention to the fact that section 35 of the Foreign Takeovers Act enables the Treasurer to approach the State and Territory Supreme Courts for an order to enforce an order which the Treasurer has made under the Act. Since decisions of the Treasurer to make such an order therefore create enforceable obligations, the Institute considered that they ought not to have the favoured treatment which the absence of opportunity for review under the AD(JR) Act confers. 287. Some members of the Council disagree with the recommendation that paragraph (h) of Schedule 1 ought to be repealed. The views of these members on the exclusion in that paragraph are set out in the addendum to this chapter. Recommendation 6: Decisions under Foreign Takeovers Act Paragraph (h) of Schedule 1 to the AD(JR) Act ought to be repealed. Certain decisions under Banking (Foreign Exchange) Regulations 288. Paragraph (j) of Schedule 1 excludes from review any decision under the Banking (Foreign Exchange) Regulations in respect of which the Treasurer has given a certificate that the decision gives effect to the foreign investment policy of the government. 289. All sorts of decisions made at high government levels give effect to policy of the government of the day. It is proper, however, that a decision made pursuant to a government policy be able to be tested for its legality. Even if a particular decision gives effect to policy of a fundamental kind, that does not provide an appropriate foundation for an exclusion from the scope of the AD(JR) Act. On the other hand, if high government policy considerations are involved in a particular decision, it may be that the court will regard the decision as non-justiciable. The Council considers that the limitations on review deriving from justiciability provide a sufficient safeguard in relation to decisions referred to in paragraph (j) and that the exclusion presently set out in the paragraph need not be maintained. In chapter 9 the Council makes a recommendation which is aimed at highlighting for litigants and the courts the limitation on judicial review deriving from the notion of non-justiciability.

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290. The Taxation Institute of Australia in its submission supported the view that the present exclusion in paragraph (j) should not be maintained. Recommendation 7: Certain decisions under Banking (Foreign Exchange) Regulations Paragraph (j) of Schedule 1 to the AD(JR) Act ought to be repealed.

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Decisions of the National Labour Consultative Council 291. Paragraph (I) of Schedule 1 excludes from review under the Act decisions of the National Labour Consultative Council. The Council is established by the National Labour Consultative Council Act 1977. Its purpose is to provide, in the public interest, a regular and organised means by which representatives of the Commonwealth Government and of employers and employees may consult together on industrial relations matters of national concern. 292. It is difficult to see why paragraph (I) is included in the schedule. The National Labour Consultative Council is a consultative body. Its Act does not provide for it to make decisions as such. Such decisions as it does make, however, would not seem to be of a kind which would confer standing on a particular person. It is much like the Economic Planning Advisory Council and other consultative forums, the decisions of none of which have been excluded from the AD(JR) Act. Recommendation 8: Decisions of the National Labour Consultative Council Paragraph (1) of Schedule 1 to the AD(JR) Act ought to be repealed. Decisions of the National Companies and Securities Commission made in the performance of a function, or the exercise of a power, conferred on it by a State Act 293. Paragraph (m) of Schedule 1 excludes from review under the Act decisions of the NCSC made in the exercise of a power conferred on it by a State Act. Such conferrals arise because of the present Commonwealth-State co-operative scheme relating to companies matters. 294. The Council notes that legislation for the establishment of a Commonwealth companies scheme to replace the present co-operative scheme is presently in the Parliament. The Council has provided advice to the Attorney-General on review matters under the proposed new scheme. Its letter of 18 May 1988 is set out as letter 16 of its Twelfth Annual Report 1987-88. In the letter the Council advised that under the new scheme it was appropriate that decisions of the Australian Securities Commission, which is proposed as the successor of the NCSC, be fully amenable to judicial review under the AD(JR) Act. 295. As paragraph (m) presently stands, it might be questioned whether it is necessary, as a decision of the NCSC made in the performance of a power conferred by a State Act might be regarded as not being a decision to which the AD(JR) Act applies. The reason for the paragraph is, however, to be found in the Administrative Remedies Agreement of 21 April 1982 between the Commonwealth and the States relating to the co-operative companies scheme. Under the agreement the Commonwealth and the States agree that any review of administrative decisions under State laws (and, if so, what review should be provided) is a matter to be determined by State Governments. The agreement requires unanimous approval by the Ministerial Council for Companies and Securities of any proposal to alter the existing law on the review of administrative decisions under the co-operative scheme. 296. These arrangements are underscored by section 9(3) of the AD(JR) Act which excludes decisions of the NCSC or its delegates made in the exercise of a power conferred by a State Act from the operation of the provision ousting the review jurisdiction of the State courts. Paragraph (m) was relied on by the Federal Court in Allan v National Companies and Securities Commission (1986) 66 ALR 170 where it was held that a decision of the NCSC or its

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delegate under the Companies (Western Australia) Code was not reviewable under the AD(JR) Act. 297. The view that the exclusion in paragraph (m) should be maintained was supported in submissions received from State Corporate Affairs offices. 298. Given that, under the inter-governmental arrangements presently applying in the companies area, any change to paragraph (m) is a matter not only for the Commonwealth but also for the States, the Council sees virtue in the agreed position on judicial review being maintained while the present co-operative companies scheme remains in force. The Council therefore considers that the paragraph should stand in its present form for the time being. As mentioned above, however, it is arguable that the paragraph is not necessary as a matter of law. Decisions of the Ministerial Council for Companies and Securities 299. Paragraph (n) of Schedule 1 excludes from review decisions of the Ministerial Council for Companies and Securities. The functions of the Council are to keep under review companies and securities industry legislation and to supervise the operation of the co-operative scheme. By clause 4 of the supplementary inter-government agreement of 21 April 1982 it was agreed that neither the Commonwealth nor any State would attempt to legislate to subject the Ministerial Council to review under administrative law unless the proposed legislation was approved by a unanimous resolution of the Ministerial Council. This agreement reflects a view that such controls as there are over the Ministerial Council should be political. 300. It is expected that, upon the coming into force of the Commonwealth’s new scheme of companies and security law, the Ministerial Council will cease to exist. 301. Again, whether paragraph (n) is legally necessary is open to serious question as most Ministerial Council decisions are made pursuant to powers conferred on it by the agreement between the Commonwealth and the States. It would appear that very few of its decisions could be categorised as being decisions under an enactment within the meaning of the AD(JR) Act. The inter-governmental nature of the arrangements relating to the Ministerial Council would, however, make it difficult to dispense with the present exemption while the co-operative companies scheme remains in force. For this reason the Council considers that the exemption set out in paragraph (n) ought to be maintained for the time being. Decisions under the Defence Force Discipline Act 1982 302. Paragraph (o) of Schedule 1 excludes from review under the Act decisions under the Defence Force Discipline Act 1982. The Defence Force Discipline Act provides for its own code of appeals and review relating to discipline in the Defence Force. 303. The Department of Defence in its submission argued in favour of maintaining the present exclusion set out in the paragraph. The Department said:

The basic function of the Defence Force is to defend Australia in battle against Australia’s enemies. In battle members of the Defence Force are given commands to perform tasks which place those members in grave and immediate personal danger. It is essential to Australia’s defence that the training and conditioning of members of the Defence equip them to obey those commands efficiently and without question. This obedience is instilled in members by, amongst other things, the comprehensive and self contained Defence Force system of discipline contained in the Defence Force Discipline Act. This Act prescribes offences that apply to members of the Defence Force, creates tribunals for

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the trial, conviction and punishment of such offences, provides machinery for appeals against and reviews of convictions and punishments and deals with ancillary matters such as arrest, search, seizure, investigation of offences, trial procedures and serving of sentences. It is essential for the instilling of discipline in members of the ADF, and hence for the efficiency of the ADF that no outside persons or bodies can intervene in this system of discipline. For instance it would be most undesirable that a member of the ADF should, when being given a command by his commanding officer (CO), entertain the slightest belief that the CO’s decision could be interfered with by another person outside the chain of command or the Defence Force system of discipline.

304. The Council does not disagree with the Department about the necessity for maintaining the Defence Force discipline code and the primacy of the code for dealing with matters of discipline. The existence of that code does not, however, in the Council’s view, constitute a basis for exclusion of the AD(JR) Act. As was mentioned above in relation to tax assessment decisions, section 10 of the Act is in place to deal with cases where a remedy which is more adequate than would be available under judicial review is available to a person whose interests are affected by a particular decision. For similar reasons as apply in relation to decisions concerning taxation assessments, the Council considers that the exclusion in paragraph (o) should not be maintained. Recommendation 9: Decisions under the Defence Force Discipline Act Paragraph (o) of Schedule 1 to the AD(JR) Act ought to be repealed. Decisions under the Customs Act to require securities in respect of anti-dumping duty that may be payable 305. Paragraph (p) was inserted in Schedule 1 by the Customs Securities (Anti-Dumping) Amendment Act 1982. The amendment followed litigation under the AD(JR) Act which challenged decisions to impose securities (see, eg, Tasman Timber Ltd v Minister for Industry and Commerce (1982) 46 ALR 149 and Feltex Reidrubber Ltd v Minister for Industry and Commerce (1982) 46 ALR 171). 306. It is difficult to see what the amendment achieved. Certainly, it has not prevented judicial review applications in respect of preliminary dumping decisions. In Re Hayes: ex parte J Wattie Canneries Ltd (1986) 70 ALR 65 (first instance) (1987) 74 ALR 202 (appeal) an application was brought in the Federal Court’s jurisdiction under section 39B of the Judiciary Act to review a preliminary finding of dumping made by the Comptroller-General of Customs following which he had sought to impose securities on J Wattie Canneries Ltd. 307. The Council notes that the Business Law Section of the Law Council of Australia, in its submission on the Gruen Report on anti-dumping procedures, said that provisional measures by way of the taking of securities should be restored to the ambit of decisions reviewable under the AD(JR) Act. The Australian Customs Service in its submission on the 1988 draft report of the Council said that, if, as appeared to be the case, an approach to the Federal Court in its prerogative writ jurisdiction was available, it could have no proper objection to the removal of paragraph (p) from Schedule 1. 308. The Council considers that the exclusion in paragraph (p) should not be maintained. Recommendation 10: Decisions under the Customs Act to require anti-dumping securities Paragraph (p) of Schedule 1 to the AD(JR) Act ought to be repealed.

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Decisions under section 25(1) or Part IIIA of the Commonwealth Electoral Act 309. Paragraph (q) of Schedule 1 excludes from review under the Act decisions under section 25(1) and decisions under Part IIIA of the Commonwealth Electoral Act. Section 25 has now been renumbered as section 48 and Part IIIA is now Part IV. Section 48(1) relates to the determination of State representation entitlements in the House of Representatives. Part IV relates to electoral re-distributions. 310. Section 48(1) requires the Electoral Commissioner, after he has ascertained the numbers of the people in the Commonwealth and the several States to determine the number of members of the House of Representatives to be chosen in the several States at a general election. Section 48(3) provides that a decision by the Electoral Commissioner is final and conclusive, subject to the Constitution and to section 39B of the Judiciary Act. 311. Section 77 of Part IV of the Electoral Act likewise provides that a decision by the Electoral Commissioner, the Electoral Commission, a redistribution committee, an augmented Electoral Commission or the redistribution commissioners for a State made under Part IV is final and conclusive, again subject to the Constitution and to section 39B of the Judiciary Act. 312. In a submission to the Council the Electoral Commissioner, Dr Colin Hughes, argued strongly for the maintenance of the present exclusion set out in paragraph (q). He said:

Review under the AD(JR) Act of decisions associated with the determination of State representation entitlements and with electoral re-distributions was quite deliberately excluded by the Parliament in 1983 because there was a general consensus that the opportunities to disrupt the redrawing of boundaries open to persons with a vexatious or partisan purpose ought to be minimised to the greatest extent possible.

Dr Hughes referred to the writ issued out of the High Court in 1982 by Mr Peter Paterson challenging the basis of the statistical series used by the Australian Statistician in providing population figures for the purposes of the Representation Act 1905. In Dr Hughes view, this case indicated the potential for challenge of State representation entitlements and electoral re-distributions. Dr Hughes went on to say that an even more immediate problem was the risk of delay in completing a redistribution which the possibility of review under the AD(JR) Act would bring. 313. In the Council’s view, however, the fact that review is available in the Federal Court under section 39B of the Judiciary Act makes it very difficult to justify the present exclusion in the AD(JR) Act. Furthermore, of course, challenges to the decisions of parliamentary redistribution commissioners have been maintained in other jurisdictions. In R v Boundary Commission for England; ex parte Foot [1983] 1 All ER 1099 Mr Michael Foot and other members and officials of the Labour Party in the United Kingdom sought judicial review of a report of the Boundary Commission for England containing recommendations for revised parliamentary constituency boundaries and sought to prevent the Commission from submitting the report to the Home Secretary. The Court of Appeal, in dismissing the application, expressly disagreed with the notion that the courts had no part to play in such matters. Although the discretion of the Boundary Commission was wide, making it difficult, if not impossible, in practice for the applicant to discharge the burden of showing that the Commission had exercised its powers wrongly or improperly, nonetheless the court could and would intervene in defence of the ordinary citizen if the Commission exceeded its powers or chose to do something in a way which was unauthorised by the Parliament.

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314. On the other hand, it may be that an Australian court would consider that the drawing of electoral boundaries raises polycentric problems, making the issues non-justiciable. Dr Hughes has himself argued the polycentricity of these issues: Hughes, ‘Government Action and the Judicial Model’ in Tay and Kamenka (eds), Law Making in Australia (1980), p.268. 315. In the Council’s view, if questions such as these are Justiciable, the explicit preservation of the avenue of review through section 39B of the Judiciary Act makes it very hard to justify the exclusion from the AD(JR) Act presently set out in paragraph (q). If, on the other hand, the courts in Australia were to regard such decisions as non-justiciable because of their polycentric nature, it would not seem necessary for the exclusion to be maintained. Recommendation 11: Decisions concerning electoral re-distributions under the Commonwealth Electoral Act Paragraph (q) of Schedule 1 to the AD(JR) Act ought to be repealed. Decisions under the Extradition Act 1988 316. Paragraph (r) of Schedule 1 excludes from review under the Act decisions under the Extradition Act 1988. 317. The question of the appropriateness of the exclusion from the AD(JR) Act of extradition decisions has been considered by the Council on several occasions. 318. As mentioned in its Report No. 26, Review of the Administrative Decisions (Judicial Review) Act 1977, Stage One (paras 34-36), the earlier Commonwealth extradition legislation, the Extradition (Commonwealth Countries) Act 1966 and the Extradition (Foreign States) Act 1966, provided for their own judicial review procedures in respect of certain decisions. The judicial review procedures in the Acts were apparently called for as a result of requirements arising from Australia’s relations with other countries. 319. In a letter of advice to the Attorney-General dated 1 October 1985 the Council said that it was of the view that no case had been made out at that time to warrant exclusion of extradition decisions (including those decisions in respect of which the extradition legislation established statutory review procedures) from judicial review under the AD(JR) Act. However, the Council also said that the relationship between the two forms of review in relation to the decisions concerned should be closely monitored. 320. A further letter of advice was provided to the Attorney-General on 19 November 1987 in connection with the proposed new extradition legislation now contained in the Extradition Act 1988. The letter appears as letter 5 in the Council’s Twelfth Annual Report, 1987-88. The letter dealt with the question of overlap of remedies. The Council said that decisions of the Attorney-General whether or not to surrender a fugitive to the country requesting extradition should remain subject to the AD(JR) Act. Since the statutory review procedure does not apply in relation to those decisions, no question of overlap with the AD(JR) Act arises in relation to them. As to a decision of a magistrate whether or not to commit a fugitive to prison, the Council said that the availability of the statutory review procedure warranted the exclusion of decisions of that kind from the scope of the AD(JR) Act. The Council noted in its advice that the existence of an alternative statutory review procedure underlay the exclusion in Schedule 1 of other decisions from the AD(JR) Act, although it queried whether an exclusion of the magistrate’s decision was

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necessary in the light of the Federal Court’s discretion under section 10(2)(b) of the AD(JR) Act to refuse relief. 321. The Attorney-General responded to the Council’s letter of advice. He said that the decision to exclude all decisions under the extradition laws from the scope of the AD(JR) Act was taken to ensure that persons aggrieved by extradition decisions had only one review process available to them. 322. The Council notes that there have been some problems in the extradition area caused by the various opportunities for review that the extradition process provides. In Hempel v Attorney-General (1988) 77 ALR 641 Justice French of the Federal Court identified the problem as arising ‘in large part out of divided review of divided primary decision-making’ (p. 675). The enactment of paragraph (r) of Schedule 1 is apparently aimed at removing any question of overlap of the statutory review procedures with the AD(JR) Act. 323. The Attorney-General’s Department in its submission to the Council on the 1988 draft report argued against the repeal of paragraph (r). The Department pointed to the capacity of fugitives to seek prerogative writ relief in the nature of writs of habeas corpus from a State or Territory Supreme Court or from the High Court, together with other judicial review relief under the statutory procedure provided for in the extradition legislation or under the AD(JR) Act. Clearly, however, the availability of such prerogative writ relief is unaffected by paragraph (r). 324. A more substantial reason put forward by the Department in its submission for the exclusion from review under the AD(JR) Act of committal decisions of a magistrate in the extradition process was that such decisions were akin to committal proceedings for offences against Commonwealth law and the Council had advised that such decisions ought to be excluded from the ambit of the AD(JR) Act (see the discussion of this in chapter 7 below). The Council agrees that these two categories of committals ought to be treated similarly in relation to the question of the availability of review under the AD(JR) Act. It might be argued that the extradition process is more the creature of Commonwealth law than is the ordinary committal process where the Commonwealth has historically chosen to use the processes of the particular State or Territory jurisdiction concerned. It might therefore be argued that the committal process under extradition legislation ought not to be treated in the same way as the committal process for offences against Commonwealth law. However, as the submission from the Department points out, in extradition cases the State and Territory courts apply their own laws of evidence and criminal procedure to determine whether, if the offence alleged against the fugitive had been committed in their jurisdictions, committal for trial would be warranted. Similarly, they apply their own criminal law to determine whether the dual criminality test is satisfied. The Council furthermore notes authorities which suggest that decisions of magistrates in committal proceedings under extradition legislation are to be treated analogously for judicial review purposes to decisions of magistrates in ordinary committal proceedings. In Trimbole v Dugan (1984) 57 ALR 75 the Federal Court held that a magistrate performing committal functions under extradition legislation was not an officer of the Commonwealth for that purpose. At first instance in Wiest v Director of Public Prosecutions (1988) 81 ALR 129 Justice Davies said that the limitations applying to the review of proceedings before magistrates in committal proceedings also applied with respect to proceedings brought before a magistrate in extradition matters.

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325. In the appeal in Wiest v Director of Public Prosecutions (21 December 1988, not yet reported) the full court of the Federal Court unanimously concluded that the statutory review procedure in the former extradition legislation had displaced the provisions of the AD(JR) Act in relation to the review of the decisions of a magistrate to which the procedure applied. Since it can be assumed that, if paragraph (r) were not in force, the AD(JR) Act would be similarly displaced by the statutory review procedure in the new extradition legislation, the question arises whether the Council’s view that these decisions ought not to be covered by the Act needs to be reflected by an amendment of the Act to that effect. A possible approach would be not to amend the AD(JR) Act, and to leave the matter of the overriding of the Act to the general law. On balance, however, the Council considers that an amendment would be desirable so that the question of the application of the AD(JR) Act was apparent on the face of the Act. 326. As to the extra step in the extradition process, namely, the decision of the Attorney-General whether or not to surrender a fugitive to the country requesting extradition, the Council remains of the view that the AD(JR) Act ought not to be excluded in relation to it. As was said in the earlier advice of the Council, no question of overlap with the AD(JR) Act arises concerning such decisions and the Attorney-General is required to determine additional questions to those which have to be determined by the magistrate (eg, whether or not if the fugitive were surrendered he would be subjected to torture). 327. One further reason, so the Council understands, for the exclusion of all extradition decisions from the scope of the AD(JR) Act is that countries with which Australia might wish to negotiate extradition arrangements wish to see on the face of our extradition legislation the full ambit of any review remedies that may be available. It is difficult, so it is said, to explain to other countries that our extradition legislation does not represent a complete ‘code’. The Council is not sure how seriously this argument is put. It would seem to the Council that our negotiators may be failing in their duty if they fail to explain to other countries that Australia has a Constitution which gives certain review rights that, short of a constitutional amendment, cannot be taken away. 328. Some members of the Council disagree with the proposal that surrender decisions of the Attorney-General under the Extradition Act should not be excluded from the AD(JR) Act. The views of those members are set out in the addendum to this chapter. Recommendation 12: Decisions of a magistrate of a State or Territory under the Extradition Act 1988 Paragraph (r) of Schedule 1 to the AD(JR) Act ought to be amended to refer to decisions of a magistrate of a State or Territory made in proceedings under the Extradition Act 1988.

Means of excluding review apart from Schedule 1 329. This report now considers two other means of excluding decisions from the scope of the Act, apart from the Schedule 1 mechanism. First, limited use has been made of the regulation making power in section 19 to exclude decisions from judicial review under the Act. The first such instance was in Statutory Rules No. 317, 1982, which excluded from the Act decisions relating to the taking of securities in relation to anti-dumping duty. Schedule 1 was later amended by the addition of paragraph (p) which took up the exclusion in the regulations. The second occasion on which regulations under section 19 were used was in Statutory Rules No. 209, 1985, which excluded from the Act decisions of the Conciliation and Arbitration Commission made under the Building Industry Act 1985. A further exclusion (in

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SR 1986, No. 108) related to decisions under the Parliamentary Commission of Inquiry Act 1986. That Commission was set up to inquire into the conduct of the late Justice Murphy of the High Court and to report to the Parliament. 330. The second development concerning exclusions from the AD(JR) Act is the use in new legislation of a privative clause to exclude the operation of the AD(JR) Act. The Act contains a provision (section 4) which provides that the Act has effect notwithstanding anything contained in any law in force at its commencement. This provision overrode the 8 privative clauses in existence when the Act was enacted (see Report No.1 of the Council, Administrative Decisions (Judicial Review) Regulations, Attachment 2) which purported to oust judicial review. However, section 4 does not have effect in relation to an Act passed after the commencement of the AD(JR) Act. An example of a legislative proposal containing its own privative clause excluding the operation of the AD(JR) Act is to be found in the Cash Transaction Reports Act 1988. Section 42 of the Act excludes most decisions under the Act from the operation of the AD(JR) Act. 331. In the Council’s view, if there are to be exclusions from judicial review under the Act, those exclusions should appear on the face of the Act. The Act is remedial legislation for the benefit of those who would wish to challenge the legality of Commonwealth administrative action. Members of the public and their advisers should be able to feel confident that the extent of their rights is fully contained within the AD(JR) Act. The Council recognises that, if one accepts that some exclusions from judicial review under the Act are appropriate, the difficulties of the government’s legislative program or the need for speed of action may make it desirable in some circumstances for regulations under section 19 to be made excluding review. The Council’s considers, however, that this means of exclusion should not become a permanent means of exclusion and that section 19 should contain a ‘sunset’ clause providing that regulations made under the section cease to remain in force at the expiration of a specified period after the date on which they take effect. The period concerned should be no longer than is sufficient for an amendment of the Act to provide for the particular exclusion. If such an amendment were not made in time, the regulations would need to be remade if the government of the day wished to continue to exclude the operation of the AD(JR) Act in relation to particular decisions. 332. In its 1988 draft report the Council proposed that the sunset period be 12 months. The Department of Employment Education and Training argued that 12 months may be too short in some cases, especially now that Statute Law (Miscellaneous Provisions) Bills are not available in each session of the Parliament. In the Council’s view, however, a 12 month period is sufficient. Although Statute Law (Miscellaneous Provisions) Bills may not be available, Ministers have the opportunity of bringing forward at least once a year a Bill which amends any number of separate Acts for which they have portfolio responsibility. In any event, if a Department were unable to obtain a legislative amendment within the 12 months, the option would remain open for it to remake the regulations. 333. The Council further considers that, if legislation is drafted with its own privative clause excluding judicial review under the AD(JR) Act, that legislation ought also specifically amend the AD(JR) Act. This approach would avoid ‘hidden’ amendments being made to the scope of review under the AD(JR) Act. 334. As to the particular privative clause in the Cash Transaction Reports Act, the Council points out that it has previously advised the government that exclusion of review under the AD(JR) Act is not appropriate: Twelfth Annual Report, 1987-88, letter 1.

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The view that the exclusion is not appropriate was supported by the submission of the Taxation Institute of Australia.

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Recommendation 13: Exclusions of review by means other than Schedule 1 (1) Section 19 ought to be amended by the insertion of a sunset clause which brings

regulations made under the section to an end 12 months after the day on which they take effect.

(2) Any Act which excludes the operation of the AD(JR) Act in relation to particular decisions should also specifically amend the AD(JR) Act.

Addendum

Dissenting views

1. The following paragraphs record the dissenting views of certain members of the Council on the issue of exclusions from the AD(JR) Act of: • decisions relating to security and intelligence; • taxation decisions; • decisions under the Foreign Takeovers Act; • decisions under the Extradition Act. General principle of exclusion from AD(JR) Act 2. As was indicated in paragraph 220, some members of the Council consider that the availability of judicial review under section 75 of the Constitution should not pre-empt consideration of whether, as a matter of policy, a particular case is one in which judicial review should not be available or, if available, should not be facilitated or extended by making the AD(JR) Act available. (See in this regard the submission of the Department of Immigration, Local Government and Ethnic Affairs referred to in paragraph 100 above). These members of the Council are not, however, in complete agreement about the applicability of this view to each of the cases of security and intelligence decisions, taxation decisions, decisions under the Foreign Takeovers Act and decisions under the Extradition Act. 3. These members have gone on to consider whether the exclusion of an area from the AD(JR) Act ought to be accompanied by an equivalent removal of the area from review under section 39B of the Judiciary Act (see para.99 above). Some of these members take the view that it is logical that an exclusion from the AD(JR) Act be accompanied by an equivalent removal from section 39B (as was done in the cases of the Conciliation and Arbitration Commission and the Family Court of Australia). Others of these members consider that it is necessary also to take account of the policy enshrined in the recent changes in the Judiciary Act of not involving the High Court unduly in cases that are not appropriately initiated in the High Court. These latter members also point to the increasing desire of the High Court Justices to wish in any event to remit such cases immediately to the Federal Court if started in the High Court. In practice, in the view of these members, exclusion from the AD(JR) Act does not mean automatic exclusion from the scope of section 39B. Security and intelligence decisions 4. Certain members of the Council take the view that the exclusion from the AD(JR) Act of the intelligence and security matters referred to in paragraphs (d) and (da) of Schedule 1 to the AD(JR) Act should be continued. They refer to the fact that resort is now available to the Inspector-General of Intelligence and Security, and to the Security Appeals Tribunal in relation to security assessments. These bodies have been specifically designed to provide an

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avenue for review of decisions including on legality, but in a way that protects the national interest. Given the importance and sensitivity of the national interests concerned, the further facilitation of review under the AD(JR) Act could make the work of the agencies significantly more difficult. The decision in Church of Scientology v Woodward confirms that some judicial review is already available in the High Court and in the Federal Court under section 39B of the Judiciary Act, but it is still necessary to consider whether the additional availability of the AD(JR) Act would prejudice the effective and efficient functioning of the intelligence and security agencies. The view submitted by the Attorney-General’s Department and, in effect, by the Department of the Prime Minister and Cabinet is that it would. Analogous considerations apply to the performance of functions under the Telecommunications (Interception) Act, which in its relevant respects deals with authorised interceptions for purposes of national security and serious criminal offences, and prohibition of interceptions for other purposes. Questions of legality are adequately dealt with in resulting criminal proceedings, either for breach of the Act itself or for criminal offences in which evidence based on intercepted information is sought to be given. Also what would be involved in many cases would be review of a decision of a Federal Court judge to grant a warrant to intercept (in respect of serious criminal offences or a recommendation of ASIO to the Attorney-General in the case of security matters). Security assessments are also involved in decisions under section 13 of the Migration Act 1958. 5. The proper balance in the view of these members is to retain the present position, that is, retain paragraphs (d) and (da) but not exclude those particular cases from section 3 9 B of the Judiciary Act 1903. Taxation decisions 6. Certain members of the Council take the view that the exclusion contained in paragraph (e) should be maintained. The fact that the Federal Court is now the court to which income and sales tax appeals go (previously they went to State Supreme Courts) is seen as being a particular reason why the Federal Court should not also be given AD(JR) Act jurisdiction over the making of assessments. There is a well established scheme whereby the Federal Court, or the AAT (subject to appeals on questions of law to the Federal Court), can review assessments of such tax or calculation of customs duty. A key element in the scheme, as pointed out by the Australian Taxation Office, is that assessments are only open to challenge through the appellate procedure contained in the relevant legislation (section 177 of the Income Tax Assessment Act 1936). The efficiency and effectiveness of the scheme would be significantly affected if this aspect were lost. 7. These members refer also to a recent practice of relying on AD(JR) Act applications in areas relating to tax or duty not covered by paragraph (e), leading often into long and complex litigation. The number of cases involved has been relatively small and appears to be abating but it is reasonable to assume that, if paragraph (e) were deleted, AD(JR) Act applications directly involving assessments would significantly increase, leading to a heavier load on the Federal Court in relation to matters which could be raised in the Federal Court or in the AAT in the context of the established systems of appeals from assessment of tax or calculation of duty. 8. In the view of these members, the exclusion in paragraph (e) could also be applied to section 39B of the Judiciary Act 1903.

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Decisions under Foreign Takeovers Act 9. Certain members of the Council take the view that the proposed justiciability test would not, in the absence of a developed jurisprudence as to what is covered by the test, guarantee a satisfactory safeguard for the exercise of the national interest considerations which the Treasurer has the responsibility for determining under the Foreign Takeovers Act 1975. They take the view that, pending the clarification of the justiciability test (assuming it were adopted), no steps should betaken to delete paragraph (h). In the view of these members the exclusion could also be applied to section 39B of the Judiciary Act 1903. Decisions under Extradition Act 10. Certain members of the Council consider that it would not be appropriate to seek a reversal of the recent decision by the Parliament to exclude from the AD(JR) Act all decisions under the Extradition Act 1988. They take the view that not only decisions of a magistrate of a State or Territory under the Extradition Act but also decisions taken by the Attorney-General after court processes under the Extradition Act have been completed, should remain outside the ambit of the AD(JR) Act. The difficulties that the availability of AD(JR) Act review would present for countries with which Australia has or seeks extradition relations appear in the view of these members to be real, on the information provided to the Council. Countries with which negotiations are conducted expect that the systems of review contained in the Extradition Act would normally be sufficient and that when that appellate or review process is exhausted the remaining decision by the responsible Minister is final. The matters that the Attorney-General takes into account are matters either already determined by the courts or matters which are likely to involve relations with the country concerned leg, risk of torture). 11. In the view of some but not all of these members, jurisdiction under section 39B of the Judiciary Act should remain, as applications of this kind are not matters that are appropriately initiated in the High Court.

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CHAPTER 7

ADDITIONAL AREAS THAT HAVE BEEN SUGGESTED FOR INCLUSION IN SCHEDULE 1

Committal decisions 335. In Lamb v Moss (1983) 49 ALR 533 the full court of the Federal Court held that a decision of a magistrate made in the course of committal proceedings for an offence against Commonwealth law was a decision to which the AD(JR) Act applies. Accordingly, section 9 of the Act operates to remove the jurisdiction of State courts to review such decisions. The court emphasised in Lamb v Moss that the jurisdiction to interfere in criminal proceedings should only be exercised in exceptional circumstances. 336. In a letter of advice dated 4 July 1985 the Council wrote to the Attorney-General expressing the view that decisions taken by magistrates in committal proceedings should not be subject to judicial review under the AD(JR) Act but that such decisions should be subject to review by State courts. Accordingly, the Council recommended that decisions of a magistrate in committal proceedings should be added to the classes of decisions set out in Schedule 1 to the Act and that the definition of ‘decision to which this section applies’ in section 9(2) should be amended to ensure that the inclusion of committal decisions in the schedule would not have the effect of removing the jurisdiction of State courts to review them. 337. The Council’s advice rested primarily on the view that the Commonwealth had chosen to use State and Territory court systems for the prosecution of offences against Commonwealth laws. The Council saw no compelling reason why committal proceedings should be divorced from other aspects of the criminal process regarding the use of State and Territory court procedures. It considered that the law of the State or Territory concerned, including the law relating to rights of appeal and review in respect of the criminal trial, should apply. 338. The government has not taken up the recommendations made by the Council in its letter. Since the Council wrote to the government, several applications for review of decisions in committal proceedings have been made under the AD(JR) Act. Most of the applications have been refused. In Kunakool v Boys (1988) 77 ALR 435 a useful summary of the position was given by Justice French. In brief, he pointed out that the court’s restraint in reviewing decisions made in committal proceedings was at its strongest in cases which involved interlocutory decisions made in the course of a committal hearing. Nevertheless, the principle applied both to review of the conduct of incomplete proceedings and to reviews of the ultimate decision (p. 445). 339. In O’Donovan v Vereker (1988) 76 ALR 97 the full court of the Federal Court upheld an appeal from a single judge of the court who, on an application under the AD(JR) Act, had set aside decisions of a magistrate in committal proceedings relating to a tax minimisation scheme know as the Norfolk Island Public Art Gallery scheme. The respondents sought special leave to appeal to the High Court against the full Federal Court decision. Special leave was refused by the High Court.

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340. Two points of importance for present purposes were made by the High Court in refusing special leave. First, the High Court expressed doubt about the position that had been reached in Lamb v Moss in relation to committal decisions. Chief Justice Mason said:

We would add that we are by no means convinced that the Federal Court has the jurisdiction which it claimed to exercise in the present case and we would emphasise what the learned judges of the Federal Court have already pointed out, that if that court has the jurisdiction, it is a jurisdiction to be exercised very sparingly and in most exceptional cases only. (Transcript of proceedings. 18 March 1988, pp 14-15)

Secondly, the High Court emphasised the undesirability of allowing judicial review proceedings to fragment the criminal prosecution process. 341. In Forsyth v Rodda (not yet reported, 2 December 1988) Justice Wilcox reached the view that the circumstances of the case before him did not constitute the ‘exceptional circumstances’ that would warrant interference by the Federal Court with a magistrate’s decision to commit the applicant for trial. 342. Most of the submissions on the 1988 draft report which addressed the issue of review of committal decisions expressed support for the exclusion of those decisions from the ambit of the Act. However, certain submissions disagreed with this approach. 343. Justice Wilcox of the Federal Court reiterated a view which he had previously expressed to the Council that such an exclusion was not appropriate. He mentioned that the system in relation to the review of committal proceedings in the Federal Court had now settled down but if the jurisdiction were to be turned over to the State courts a rash of applications could be expected by practitioners trying their luck in the new jurisdiction. 344. Mr Moshinsky, QC, of the Victorian Bar, in expressing disagreement with the proposed exclusion, said that he did not agree that the State courts provided a suitable forum for review proceedings:

In Victoria, the Full Court in Reg v Hamilton (unreported 21.7.80) decided that certiorari was not available as a remedy to quash a decision by a magistrate to commit a person to trial, because such a decision was of an administrative nature. In my view, it is also arguable that a Magistrates Court is not ‘a Tribunal’ within the meaning of the Victorian Administrative Law Act 1958 because the definition of this term excludes a Court (Section 2). A committal although an administrative procedure is conducted by a Court (see ss.3.43 Magistrates Court Act).

Mr Moshinsky went on to say that it was not clear that the Victorian courts would follow their New South Wales counterparts in deciding that, although the prerogative writs would not lie, review could be sought by means of a declaratory order. 345. The Law Council of Australia, the Law Society of New South Wales, the Law Society of the Australian Capital Territory and the firm of Macphillamy, Cummins and Gibson all expressed opposition to the removal of committal decisions from the ambit of the Act. The Law Council of Australia said:

There is no reason m principle why decisions of magistrates in committal proceedings should be excluded from review, other than a suggestion that either the number of applications make such decisions inappropriate or that it is inappropriate to unnecessarily disrupt the committal process. Sufficient discretion exists in the Federal

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Court to either entertain an application or to dismiss an application without an order. The inadequacy of those discretionary powers has not been demonstrated.

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346. The Council notes that in Waterhouse v Gilmore (1988) 12 NSWLR 270 the Supreme Court of New South Wales confirmed that, as a magistrate’s decision whether or not to commit for trial is purely executive in nature, prohibition and certiorari will not lie. However, the court said that that was no obstacle to the grant of a statutory mandamus pursuant to section 134 of the Justices Act (NSW). Nor, in the court’s view, was it an obstacle to the grant of declaratory relief in exceptional cases. 347. The Legal Aid Commission of New South Wales said in its submission that, in its extensive criminal practice, it had not been necessary to use the AD(JR) Act to seek review of committal decisions. Instead the usual practice was ‘to take the matter to a State Court under the prerogative writs and declaratory applications’. 348. The Council is not persuaded by the submissions it has received that it should reconsider its earlier advice. Relief will be granted in the Federal Court only in the most exceptional circumstances. Likewise, it appears that, if the matter of review were to be left for the State courts, at least a declaration would be available in the most exceptional circumstances. 349. In the Council’s view, decisions of magistrates made in committal proceedings should be excluded from the scope of review under the AD(JR) Act and the definition in section 9(2) of decision to which section 9 applies should be amended so as not to include such decisions. Recommendation 14: Exclusion from Act of decisions of magistrates in committal proceedings (1) Schedule 1 to the AD(JR) Act ought to be amended to include decisions of

magistrates made in committal proceedings. (2) The definition in section 9(2) of decision to which section 9 applies ought to be

amended to exclude such decisions from the operation of the section.

Prosecution decisions 350. In a letter to the Attorney-General dated 5 September 1985 the Council provided advice on a proposal by the Director of Public Prosecutions to exclude from review under the AD(JR) Act decisions taken in connection with the prosecution of offences against Commonwealth or Territory laws. The Council said that, to the extent that prosecution decisions were currently susceptible of review under the Act, they should remain so, at least for the time being. The Council’s letter is set out as letter 3 of its Tenth Annual Report, 1985-86. 351. The view that the discretion of prosecutors to investigate and prosecute should be subject to effective controls was expressed by Justice Gaudron of the High Court in a paper to the Australian Legal Convention in Perth in September 1987. She noted that the discretion was now vested ‘in large and powerful institutions, which, subject only to some tinkering at the margins of accountability, are little subject to review, either de facto or de jure, and which wield power far in excess of that ever at the disposal of the ordinary citizen’. On the other hand, at the same convention, Justice Wilson of the High Court said:

There is room for debate as to whether the decision to prosecute should be subject to review: one must balance the public interest in a speedy trial against the demand for checks and balances that proceed from a lack of trust in the integrity or competence of the

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prosecuting authority. Speaking for myself, I would find the balance in favour of a speedy trial.

352. In a response at the Perth Convention to the paper of Justice Gaudron, Mr Ian Temby QC, the then Commonwealth Director of Public Prosecutions, denied that his office was insufficiently accountable. He mentioned four ways in which it was accountable: • in the committal proceedings related to the prosecution - these provide a procedure by

which the decision to prosecute can be effectively challenged and thus provide a real safeguard against misconceived or oppressive prosecution;

• the AD(JR) Act: - in some cases Mr Temby said that recourse to the Act had little to commend it

where it sought to usurp the established processes of the criminal law; • through the tabling in the Parliament of prosecution guidelines; • through the making of an annual report to the Parliament. Mr Temby’s view reflected views that he had expressed in an earlier article, ‘The DPP and ministerial responsibility’ ([1987] Law Institute Journal 568). 353. Mr John Coldrey, QC, the Victorian Director of Public Prosecutions, adverted to similar considerations to those mentioned by Mr Temby in an address at the Second International Criminal Law Congress, Surfers Paradise, 19-24 June 1988. However, in his paper Mr Coldrey said that a decision to institute a prosecution was necessarily subject to judicial review and the courts had a record of careful scrutiny of, and where necessary, criticism of, prosecutions regarded as being inappropriately launched. 354. The Council notes that the full court of the Federal Court in Newby v Moodie (1989) 83 ALR 523 held that a decision of the Commonwealth Director of Public Prosecutions Act to institute and maintain a prosecution for an offence against Commonwealth law was capable of being reviewed under the AD(JR) Act. 355. The Office of the Director of Public Prosecutions argued in its submission for the removal of prosecution decisions from the ambit of the AD(JR) Act. Justice Pincus of the Federal Court, who was a member of the unanimous full court bench in Newby v Moodie, also supported their exclusion. 356. The Director of Public Prosecutions said that, if the Council’s recommendation was accepted that decisions of magistrates in committal proceedings be removed from the scope of the AD(JR) Act, it would seem inevitable that, unless prosecution decisions were also excluded, defendants who wished to delay their prosecution would simply change the target of their attack and seek review of the decision to charge them, to carry on the prosecution or to file an indictment. As a result, in the view of the DPP, any benefit in terms of the speedy and fair administration of criminal justice that would otherwise result from removing decisions in committal proceedings from the ambit of the Act would be lost. The DPP went on to say that the reasoning of the Council in concluding that committal proceedings should not be divorced from other aspects of the criminal process regarding the use of State and Territory court procedures applied equally to prosecution decisions. 357. The Council does not consider that, by removing decisions of magistrates in committal proceedings from the ambit of the Act but leaving prosecution decisions within it, any delays in the criminal justice process will be merely removed from the committal stage to the prosecution stage. The full court of the Federal Court in Newby v Moodie indicated that

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the same attitude would be taken to applications for review of prosecution decisions as were taken by the court in relation to applications for review of committal decisions, namely, that an order of review would be granted only in the most exceptional cases. A further full court decision in Wouters v Deputy Commissioner of Taxation (not yet reported, 22 November 1988) affirmed that only in exceptional cases would the court intervene to review the initial decision to prosecute. In the Council’s view, the Federal Court possesses adequate discretion to ensure that applications for review of prosecution decisions do not become an abuse of process. The Council also does not agree with the DPP that the Council’s reasoning in arriving at the conclusion that committal decisions ought not to fall within the ambit of the Act applies equally to prosecution decisions. In the Council’s view, the exercise of powers by the DPP in relation to prosecutions is a matter of Commonwealth statute law alone under the Director of Public Prosecutions Act. 358. The Commonwealth Solicitor-General, Dr Gavan Griffith, QC, in his submission, expressed agreement with the view that prosecution decisions should remain subject to the AD(JR) Act.

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CHAPTER 8

THE DISCRETION OF THE COURT TO REFUSE RELIEF 359. The introduction to this report mentioned that the Council’s stage one report on the AD(JR) Act dealt specifically with the claim that the Act was being used in some areas merely to delay or frustrate Commonwealth administration. The report contained recommended amendments to the AD(JR) Act by which the Federal Court’s powers could be extended and clarified to enable it to stay or to refuse to grant applications for review in appropriate cases. It was also mentioned in the introduction that the Administrative Decisions (Judicial Review) Amendment Bill 1987 introduced by the government took account of the recommendations contained in the Council’s Report No. 26 but went further than had been recommended by the Council by requiring the Federal Court to refuse applications made under the Act where the applicant had an alternative right to seek review unless the applicant satisfied it that the interests of justice required that it should not refuse to grant the application. The Bill foundered in the Senate following a report in October 1987 of the Senate Standing Committee on Legal and Constitutional Affairs which recommended that the provisions contained in it by which the onus was placed upon the applicant to satisfy the Federal Court that it should exercise its discretion not to refuse to grant the application for review should not be enacted. 360. The Bill is set out in the present report as Appendix 3. 361. Especially in the light of the recommendation made in the present report for the repeal of many of the paragraphs of Schedule 1, the Council considers it appropriate that it reconsider the amendments proposed in the Administrative Decisions (Judicial Review) Amendment Bill 1987 having regard to the report of the Senate Committee on the Bill. The potential exposure to review under the Act of classes of decisions presently set out in Schedule 1 in respect of which other rights of review exist or may exist makes this course desirable. Furthermore, the Council is aware from discussions it had with judges of the Federal Court in the course of the preparation of the present report that the general thrust of the provisions of the Bill is supported by the court. 362. The Council has taken as its starting point the terms of the Bill itself. It is not proposed to rehearse the findings of the Council in Report No. 26 upon which the Bill was based. The Council’s conclusions and the reasons for them may be found fully set out in that report. In relation to the way the Bill was expressed, the Senate Committee said the following:

Nonetheless, the Committee recognises the need for some legislative formulation of the Court’s discretion to refuse to grant applications for review where applicants possess adequate alternative remedies. Further, in the Committee’s view, it is desirable that the formulation of this discretion should demonstrate the legislature’s view that the discretion should be exercised in appropriate circumstances.

Accordingly, the Committee would have no objection to the enactment of proposed paragraphs 10(2)(c) and 10(2)(d) if the onus were to be placed upon the respondent - not upon the applicant. (paras 5.7-5.8)

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363. Having considered the views of the Senate Committee, the Council considers that changes could be made to the Bill which would seem to satisfy the concerns of the Senate Committee and which would, furthermore, be broadly consistent with the recommendations made by the Council in Report No. 26. Set out below are the Council’s versions of paragraphs 10(2)(c) and 10(2)(d) of the AD(JR) Act, as proposed to be amended by the Bill. The new words which the Council proposes are underlined: (c) where: (i) an application under section 5, 6 or 7 is made to the Court in respect of a decision, in

respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision; and

(ii) provision is made by any law other than this Act under which the applicant is entitled to seek a review by another tribunal, authority or person (not being a court) of that decision, conduct or failure;

the Court shall refuse to grant the application if it is satisfied, having regard to the interests of justice, that the alternative review right is, in all the circumstances, adequate; and (d) where: (i) an application under section 5, 6 or 7 is made to the Court in respect of a decision, in

respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, being a decision, conduct or failure by a tribunal, authority or person in the course of proceedings before the tribunal, authority or person;

(ii) review of the decision, conduct or failure is available by reason of provision made by any law (including this Act) under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person of any decision of the first-mentioned tribunal authority or person on the conclusion of the proceedings referred to in subparagraph (i); and

(iii) the Court considers that it is desirable to refuse to grant the application in order to avoid interference with the due and orderly conduct of the proceedings referred to in subparagraph (i) or for the reason that, in all the circumstances, the balance of convenience (including the interest of the applicant, another party or any other person, the public interest and the consequences of delay in those proceedings) so requires;

the Court shall refuse to grant the application if it is satisfied, having regard to the interests of justice, that it should do so. Recommendation 15: The discretion of the Federal Court to refuse relief (1) The AD(JR) Act ought to be amended by provisions along the lines of the

Administrative Decisions (Judicial Review) Amendment Bill 1987. (2) The Bill should be altered by substituting words along the following lines for the

concluding words of proposed paragraph 10(2)(c): the Court shall refuse to grant the application if it is satisfied, having regard to the interests of justice, that the alternative review right is, in all the circumstances, adequate.

(3) The Bill should be further altered by substituting words along the following lines for the concluding words of proposed paragraph 10(2)(d): the Court shall refuse to grant the application if it is satisfied, having regard to the interests of justice, that it should do so.

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CHAPTER 9

JUSTICIABILITY 364. Chapter 2 drew attention to the notion of justiciability as providing a limitation on judicial review, particularly in cases where an exercise of executive power is in issue. As was mentioned in chapter 5, however, the notion of justiciability may also be relevant in relation to exercises of statutory power, for example, in cases involving matters of high government policy or political sensitivity where the Cabinet has been involved in the decision making process. Hotop, Principles of Australian Administrative Law (6th ed., 1985) expresses the view that the courts are ‘likely to hold that natural justice is excluded by necessary intendment where the legislature confers on the Governor-General (or Governor) or a minister unconditional subjective discretionary powers involving matters of high government policy’ (p.211). But these may not be the only types of areas where the notion of justiciability may be relevant. In Church of Scientology v Woodward (1983) 154 CLR 25 it was argued at first instance in the High Court by the Solicitor-General that decisions made by ASIO under the statutory discretions implicit in the ASIO Act were not justiciable (p.38). 365. At paragraph 93 in chapter 2 mention was made of some decisions which Australian courts have said are not justiciable. In the special leave application in the High Court in Attorney-General for New South Wales v Macrae (19 February 1988) the Solicitor-General for New South Wales argued that the New South Wales Court of Appeal had fallen into error in not concluding that the power to appoint to judicial office was, of its nature, unsuitable for judicial review. In refusing the special leave application, however, the High Court did not find it necessary to deal with this argument. In Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 Lord Roskill considered that decisions such as those relating to the making of treaties, the defence of the nation, the prerogative of mercy, the grant of honours, the dissolution of the Parliament and the appointment of Ministers would not be susceptible to judicial review ‘because their nature and subject matter are such as not to be amenable to the judicial process’ (p. 418).

Proposal set out in 1988 draft report 366. In the draft report of the Council issued in July 1988 it was suggested that in order to make it clear to the Federal Court that, notwithstanding an expansion in the ambit of decisions to which the AD(JR) Act applies, judicial review should not be granted where a particular decision would not qualify as a subject for judicial review under the general law, a provision should be inserted in the Act requiring the court not to grant an application for review where it was satisfied that the decision or conduct concerned was not justiciable. The draft report said that, although such a provision would merely reflect the legal position and would not therefore be strictly necessary, it would have the advantage of providing a positive reinforcement of the court’s discretion.

Decision making by the Cabinet 367. A particularly sensitive area is the area of decision making by the Cabinet. Until recently the question whether a decision of a Westminster-style Cabinet may be the subject of judicial review had not been litigated. In Minister for Arts Heritage and the Environment v Peko-

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Wallsend Ltd (1987) 75 ALR 218 the question was squarely raised before the full court of the Federal Court. The court did not, however, determine the matter conclusively. Justice Wilcox indicated that, in certain circumstances, a decision of the Cabinet may be the subject of judicial review. Justice Sheppard said that the question whether any decision of the Cabinet could ever be the subject of the exercise of the Federal Court’s supervisory jurisdiction was a difficult one. Although unnecessary for him to express a view finally on the matter, he inclined to the view that the application in the case should fail at the outset because the decision in question was one made by the Cabinet. He said:

In my opinion, the Cabinet being essentially a political organisation not specifically referred to in the Constitution and not usually referred to in any statute, there is much to be said for the view that the sanctions which bind it to act in accordance with the law and in a rational manner are political ones with the consequence that it would be inappropriate for the court to interfere with what it does. (p. 227)

Chief Justice Bowen indicated that decisions of the Cabinet, as a body which functions according to convention, are in a special position. He noted that the ‘prospect of Cabinet itself . . . having to accord a hearing to individuals who may be adversely affected by its decisions is a daunting one. It could bring the proceedings of Cabinet to a grinding halt’ (p. 225). In the case before him he said that in his opinion it would be inappropriate for the court to intervene to set aside the decision of the Cabinet to nominate stage 2 of the Kakadu National Park for the World Heritage List. He added that the matter appeared to his mind ‘to lie in the political arena’. 368. As mentioned in chapter 2 (para. 85), the High Court refused special leave to appeal from the decision of the Federal Court (13 November 1987, [1987] 8 Leg. Rep. No. 21). The reasons of Chief Justice Mason for refusing special leave may be seen as lending support to the notion of the non-justiciability of certain decisions. He said that the case fell on the wrong side of the border between a decision that essentially relates to Australia’s international obligations and a decision that relates essentially to the circumstances of an individual. Justice Dawson said that, where political decisions were concerned, it was the political process which had to take care of such fairness as was necessary. 369. The question of the justiciability of Cabinet decisions also arose in South Australia v O’Shea (1987) 163 CLR 378. In that case, as was mentioned above (para.87), what was in issue before the High Court was a decision of the Governor-in-Council of South Australia not to release Mr O’Shea on licence despite a recommendation of the Parole Board that he be released. However, the constitutional practice in that State is that recommendations to the Governor-in-Council are based on a Cabinet decision. The participation of the Cabinet in the decision making process was said to generate important objections to the existence of a duty to act fairly. The first related to the fact that the Cabinet was a political institution. Chief Justice Mason agreed that it was but said that in some instances it was called upon to decide questions which were much more closely related to justice to the individual than with political, social and economic concerns. Thus, in appropriate cases, it would be subject to a duty to act fairly. The second objection to the existence of a duty to act fairly related to the confidential nature of Cabinet deliberations. As to this the Chief Justice said:

But I can find no persuasive reason why the courts should not, in an appropriate case, require as an incident of natural justice or the exercise of a duty to act fairly that there be placed before Cabinet by the responsible Minister the written submissions of the individual affected by the decision to be made or an accurate summary of such submissions. Such a requirement could not amount to an intrusion into Cabinet’s control of its own proceedings and it would in all probability conform to existing practice. (pp. 387-8)

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370. Having regard to the Peko-Wallsend Case and the O’Shea Case, it might tentatively be suggested that, on the present state of the law, if a court were prepared to entertain review of a Cabinet decision at all, it would only do so if it were a decision that related essentially to the rights, entitlements or legitimate expectations of a particular person. 371. Decisions of the Cabinet concerning the making of appointments to particular positions would not normally fall into this class. Certainly, as was mentioned in chapter 5, it appears that appointment decisions would rarely be open to challenge in the courts on natural justice grounds. 372. One reason why only in the most unusual circumstances are the courts likely to contemplate review of a Cabinet decision is the reason adverted to in the submission to the Council of the Commonwealth Solicitor-General (para. 195), namely, that review may have the effect of undermining the principles of collective Cabinet responsibility upon which executive government is founded. Those principles eschew any inquiry into the motives of individual Ministers at the Cabinet table and prevent disclosure of the course of deliberations of the Cabinet. Furthermore, of course, in many cases where decisions of the Cabinet are in question, the political processes might be seen as providing any necessary sanctions.

Submissions made to Council 373. Many of the submissions made to the Council on the 1988 draft report addressed the question whether the AD(JR) Act should have written into it a provision requiring the Federal Court not grant an application for review of a decision or conduct which it considered was not justiciable. Opinions were fairly evenly divided. 374. Those who supported such a provision considered that it would provide a useful control mechanism. Many of them pointed out, quite correctly, that it would simply affirm the present legal position. Some who were in favour of the provision thought that it might lead to some uncertainty until the principles were settled by the courts. 375. The Law Council of Australia saw the provision as unnecessary because it might be expected that no judge would determine a non-justiciable issue. The Public Interest Advocacy Centre said:

We are concerned that the provision not become an extra hurdle to access to judicial review under the Act. The proposed provision requires further clarification. The onus should not be on the applicant to establish the justiciability of a decision, nor should it be able to be used as a delaying or obstructive tactic. The idea of an inclusive list of relevant factors has sufficient merit to warrant further consideration.

Conclusions of Council 376. The Council has reached the view that, notwithstanding some of the difficulties mentioned above about writing a provision into the Act which draws attention to the justiciability issue, such a provision would be desirable. It would act as a spur to the courts in further establishing principles about the circumstances which made particular decisions not appropriate for review in the courts. It would serve to draw to the attention of a judge in a particular case that the limitation of justiciability may be relevant to the case. The Council derives support in the conclusion it has reached from the favourable response which it

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received from the Chief Justice of the High Court, Sir Anthony Mason, in a discussion which he had with the Council on the 1988 draft report. 377. In some of the submissions made to the Council it was said that, if a provision about justiciability were to be inserted in the Act, it would be desirable for the provision to set out an indicative list of factors which might be regarded as making judicial review inappropriate. In the Council’s view, however, the more satisfactory course would be to leave this for judicial development through the case law. The notion of non-justiciability is still in an embrionic state which makes it well nigh impossible, and certainly fraught with difficulty, to set criteria down. 378. The Council accepts that many cases may be needed to establish principles concerning justiciability. However, this is not a fundamental problem. The principles of judicial review have been the subject of development through the case law over many decades and, notwithstanding legislative intervention in, for example, an Act like the AD(JR) Act, many of the concepts, such as natural justice, remain in a process of evolution through judicial development. 379. A further concern that has been raised about writing the notion of justiciability into the Act is that respondents may rely on it to argue against the availability of review of decisions presently covered by the Act. In the Council’s view, this concern is not significant. If particular classes of decisions have, to date, been considered by the Federal Court in its judicial review jurisdiction, it is self evidently the case that those decisions are justiciable. 380. In order to assist in minimising inconvenience, expense and delay, the Council considers that the justiciability provision should be accompanied by a further provision requiring the Federal Court to consider the justiciability issue at the outset of proceedings wherever appropriate. As the submission of the Australian Customs Service pointed out, it may not always be possible for this matter to be determined at the outset of proceedings. The Council agrees but considers that this can be taken care of in the drafting of the provision. The Council notes that in the special leave application in the Peko-Wallsend Case the High Court was able to deal with the justiciability issue notwithstanding the attenuated nature of special leave proceedings. Recommendation 16: Review under Act available only in relation to justiciable decisions (1) The AD(JR) Act ought to contain a provision which requires the Federal Court not

to grant an application for a review of a decision or of conduct engaged in for the purpose of making a decision if it is satisfied that the decision or conduct is not justiciable.

(2) A further provision should require the Federal Court, in exercising its power not to grant the application, to do so at the outset of proceedings wherever appropriate.

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CHAPTER 10

DECISIONS OF AN ADMINISTRATIVE CHARACTER MADE UNDER AN ENACTMENT

381. Earlier recommendations made in this report would have the effect of expanding the coverage of the definition in the AD(JR) Act of decision to which the Act applies. The present substance of the definition is ‘a decision of an administrative character made . . . under an enactment’. In this chapter the appropriateness of that phrase is considered.

‘Decision’ 382. The Act does not contain a definition of what constitutes a ‘decision’ for the purposes of review but it does contain provisions which expansively define references to the making of a decision. Sections 3(2) and (3) provide that: (2) In this Act, a reference to the making of a decision includes a reference to -

(a) making, suspending, revoking or refusing to make an order, award or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d) imposing a condition or restriction; (e) making a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; or (g) doing or refusing to do any other act or thing.

(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.

383. Fundamentally, a judicial review application will not be successful unless there has in fact been a ‘decision’ susceptible of review. In several cases before the Federal Court it has been argued that there was no decision (see, eg, Higgs v Commissioner of Taxation (1984) 6 ALN N181, ACT Health Authority v Berkeley (1985) 60 ALR 284, Letts v Commonwealth of Australia (1985) 62 ALR 517, Mahoney & Ors v Dillon (1987) 71 ALR 395, Lloyd v Marine Council (1988) 14 ALD 521, Merman v Comptroller-General of Customs (1989) 16 ALD 88. On some occasions the argument has succeeded. 384. It does not appear to the Council that this aspect of the Act requires any change. The Federal Court has been able to give some guidance on when a decision susceptible of review has been made and it is only in an unusual case that there is likely to be any doubt. As Acting Chief Judge Fox said in Evans v Friemann (1981) 35 ALR 428, the ‘making of a decision is a mental process, which may be communicated orally or in writing, or be apparent from action taken or not taken .... In ordinary usage, the special feature of a decision is its conclusiveness, or finality for the time being, and this is to be contrasted with the thought, or consideration which precedes it’ (p. 431). A decision which takes the form of a

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recommendation can nonetheless be a decision for the purposes of the Act: Lloyd v Marine Council (1988) 14 ALD 521. 385. The Federal Court has indicated that no qualification of the word ‘decision’, such as ‘governmental’, is to be implied into the Act. In ACT Health Authority v Berkeley (1985) 60 ALR 284 the full court of the Federal Court said:

As an adjunct to this submission, it was put that the decisions to which the Act relates are those of a governmental nature, meaning thereby . . . decisions at a high level of government, and of a nature unique to government. There is, in our view, no basis for thus limiting the legislation.

This approach would appear to accord with the purpose of the AD(JR) Act. 386. A question that has caused some difficulty is whether a mere ‘opinion’ or ‘intermediate determination’ constitutes a ‘decision’, or whether ‘decision’ refers only to ‘ultimate and operative’ determinations. In an early line of cases the Federal Court in dealing with this question was influenced by Director-General of Social Services v Chaney (1980) 31 ALR 571. That case concerned an appeal to the Federal Court from a decision of the Administrative Appeals Tribunal. It was held that an appeal would only lie ‘from a decision of the Tribunal which constitutes the effective decision or determination of the application for review’ (Justice Deane, p.593). The application of this reasoning in cases under the AD(JR) Act led to the court taking the view that only a decision in the nature of an ultimate or operative determination of an issue was subject to review, as distinct from a determination of an issue arising in the course of making an ultimate decision (see, eg, Riordan v Parole Board of the A.C.T (1981) 34 ALR 322, Roberts v Garrett (1982) 40 ALR 311). This approach had the effect of limiting the ambit of the Act. That line of cases has now, however, been disapproved of by the full Federal Court in Lamb v Moss (1983) 49 ALR 533. In that case the court ruled that a wide meaning should be given to ‘decision’, not restricted to decisions which finally determine rights or obligations. The court stated that a broad meaning not only accorded with the ‘evident legislative policy’ of the Act but also was more likely both to produce a ‘consistent and logical relationship’ between the Federal Court and State courts and to ‘reduce the grey area of jurisdictional uncertainty’ created by the exclusion of State courts under section 9 of the Act. 387. While the Chaney approach may well be justified in relation to appeals to the Federal Court from decisions of the Administrative Appeals Tribunal, the Council considers that the approach in Lamb v Moss is more appropriate in relation to applications for judicial review of decisions. The latter approach allows the court greater freedom in an appropriate case to secure justice to the individual. It is consistent with the approach adopted in the United Kingdom: R v Oxford City Justices, ex parte Berry [1987] 1 All ER 1244. Legislative reform of this aspect of the Act now appears unnecessary. 388. Further difficulties have occasionally arisen on the question whether the Act applies to ‘mechanical’ decisions which lack any element of discretion (see, eg, Hawker Pacific Pty Ltd v Freeland (1983) 5 ALN, N369, where this issue was raised but nothing turned on it). On the other hand, the definition of ‘decision to which this Act applies’ in section 3(1) makes it clear that a decision is within the Act’s ambit whether it is made in the exercise of a discretion or not. Reform of this aspect of the Act would not appear to be warranted.

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Making of reports or recommendations 389. Section 3(3) set out above provides that, where ‘provision is made by an enactment for the making of a report or recommendation’ before a decision is made, the definition of ‘decision’ for the purposes of review is deemed to include the making of such a report or recommendation. It was held in Ross v Costigan (1982) 41 ALR 319, 332 that the section only applies where there is provision in an enactment for a specific report or recommendation as a condition precedent to the making of a decision under the enactment or some other enactment. Thus, although review of the conduct of a Royal Commissioner may be able to be sought in reliance on other provisions of the AD(JR) Act, the section would not deem the making of a report or recommendation pursuant to the letters patent of a Royal Commissioner to be a decision where no provision was made for the making of a report or recommendation before a decision was made. Likewise the provision will not apply to enable review of a decision of the Attorney-General in relation to the giving of advice to the Governor-General in connection with the Governor-General’s power under the Crimes Act to release a person on licence, in circumstances where there is nothing in the Crimes Act providing for the making of a report or recommendation by the Attorney-General: Thongchua v Attorney-General (1986) 66 ALR 340. 390. Although this interpretation of section 3(3) has been described as restrictive (Enright, Judicial Review of Administrative Action (1985), p.234), it would appear to be correct. Section 3(3) clearly requires for its operation that provision be made by an enactment ‘for the making of a report or recommendation before a decision is made’. The question is whether the section ought to be restricted in this way or whether it ought to deem the making of a report or recommendation to be a decision whether or not an enactment requires it to be made before a decision is made in the exercise of a statutory power. 391. The purpose of section 3(3) was presumably to reverse the common law principle that, in general, reports and recommendations preliminary to a decision are unreviewable because they do not determine rights or obligations: Testro Brothers Pty Ltd v Tart (1963) 109 CLR 353. In R v Collies; ex parte ACTU-Solo Enterprises Pty Ltd (1976) 8 ALR 691 the High Court held that a report of a royal commissioner was not subject to the writ of certiorari as the function involved was purely informative and ‘nether affected nor in any way subjected the persons to a new hazard’ (p. 695). 392. The Kerr Committee recommended that the common law be reformed in this respect: Report of the Commonwealth Administrative Review Committee, 1971, para. 253. The Ellicott Committee took a broad view as to the kind of provision required. It recommended that ‘reports and recommendations made or required to be made pursuant to a law of the Commonwealth’ be reviewable: Report of the Committee of Review on Prerogative Writ Procedures, 1973, para. 31. On the other hand, the Bland Committee appeared to favour a narrower view. It recommended that review ‘should be limited to reports and recommendations relating to matters of administration, required to be made by legislation as a basis for decision-making by a Minister’: Final Report of the Committee on Administrative Discretions, 1973, para. 206. 393. Section 3(3) is not always relied on by applicants. This may be seen from the circumstances which arose in Jackson v Secretary, Department of Health (1987) 75 ALR 561. That case concerned the recommendation of an Acute Care Advisory Committee which section 3B of the Health Insurance Act requires as a pre-condition to the making by the Secretary of a decision concerning an acute care certificate. The Secretary’s delegate had simply ‘rubber stamped’ the recommendation of the committee. The applicant did not,

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however, seek a statement of reasons from the committee for its recommendation; instead, the statement of reasons was sought from the Secretary’s delegate. 394. Whether section 3(3) is in fact necessary may be open to question. The Federal Court has at times been willing to review the making of a recommendation as if it were the making of a decision to which the Act applies without the necessity of calling section 3(3) in aid (see Attorney-General (NT) v Minister for Aboriginal Affairs (1987) 73 ALR 33, Lloyd v Marine Council (1988) 14 ALD 521). In Century Metals v Yeomans (Federal Court, unreported, 12 December 1988) Justice French said that the section is best viewed as facultative and not exhaustive of the circumstances in which a report or recommendation may be treated as a decision to which the Act applies. To the extent, however, that section 3(3) may be of assistance, it is arguable that it should be amended to enable review of the making of a report or recommendation irrespective of any decision flowing from the report or recommendation. Such a reform would enable review on legal grounds of conclusions in the report of a Royal Commissioner, for example (cf R v Collies; ex parte ACTU-Solo Enterprises Pty Ltd (1976) 8 ALR 691). 395. It may be argued that the present limited scope of section 3(3) can be overcome through reliance on section 6. That argument would have it that the making of a report maybe regarded as engaging in ‘conduct’ under section 6 and may therefore be reviewable under that section (see Gourgaud v Lawton (1982) 42 ALR 117, 126). The argument may not, however, be particularly helpful as the Federal Court has held that section 6 is limited to conduct ‘which is part of a decision-making process by virtue of being conduct engaged in for the purpose of making a decision to which the Act applies’: Gourgaud v Lawton (1982) 42 ALR 117, 126. If this case correctly expresses the law, it would seem that the only conduct which is reviewable under section 6 is that of the decision maker. On this view, review of the making of a report or recommendation under section 6 would be limited to the improbable case of a decision maker reporting or making a recommendation to himself. (It should be noted that in Mayer v Minister for Immigration and Ethnic Affairs (1984) 6 ALD 655, 661 Justice Davies considered that a determination of refugee status by the Minister was a report within the meaning of section 3(3) which was a required pre-condition of the making of a decision of the Minister as to the grant of a permanent entry permit and was therefore a decision to which the AD(JR) Act applied.) 396. Some doubt arises, however, about Gourgaud v Lawton. The interpretation of section 6 adopted in that case appears to be literally correct. It appears nonetheless to be at odds with remarks by the full court of the Federal Court in Gunaleela v Minister for Immigration and Ethnic Affairs (1987) 74 ALR 263, 277. It also appears to be at odds with a decision of Justice Lee in Merman v Comptroller-General of Customs (1989) 16 ALD 88. Justice Lee said that he did not take the comments of Justice Davies in Gourgaud ‘to be intended to express an opinion that the operation of s.6 is limited to conduct engaged in for the purpose of making a decision to which the Judicial Review Act applies being only such conduct as is engaged in by the person authorised to make the decision under the relevant enactment’ (p. 94). Justice Lee said that, if the scope of section 6 were limited in this way, the section coupled with section 9 would have the effect of excluding a substantial area of conduct from judicial review. In Century Metals v Yeomans (not yet reported, 12 December 1988) Justice French said that although the language of section 6(1)(c) strongly suggests that the person engaging in the conduct is the decision maker, that does not exclude the proposition that the conduct to which section 6 applies is conduct which, although undertaken by other persons, can be regarded as that of the decision maker.

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397. Because there appear to be few cases where the terms of section 3(3) have caused problems and because it appears that the Federal Court is able to review the making of pre-decisional recommendations without calling the section in aid, it may be argued that an amendment of the section is not warranted. Furthermore, it would seem that one of the most likely circumstances in which reliance on the section would be sought is where the decision made subsequent to the report or recommendation is not amenable to review under the Act because of the exclusions from the Act (eg, where it is a decision of the Governor-General). Earlier recommendations made in this report would, if implemented, enlarge the ambit of the Act and reduce the present scope of exclusions from it. The implementation of the recommendations, it might be argued, would significantly reduce any need for amendment of section 3(3). 398. On the other hand, certain preliminary proceedings may have grave repercussions. In Re Pergamon Press Ltd [1971] Ch.388, which concerned actions in an inquiry by company inspectors under the U.K. Companies Act which would lead to a report to the Board of Trade. Lord Denning observed in relation to the question whether the inspectors were bound to observe the principles of natural justice:

They may accuse some; they may condemn others; they may ruin reputations or careers. Their report may lead to judicial proceedings. It may expose persons to criminal prosecutions or to civil actions. It may bring about the winding up of a company, and be used itself as material for the winding up. (p. 399)

399. On balance, therefore, it was proposed in the draft report issued by the Council in July 1988 that suitable amendments ought to be made to the Act to allow greater scope for judicial review of reports and recommendations. The draft report suggested that the most satisfactory way to achieve this would be by amendments of both section 3(3) and section 6. The suggested amendment of section 3(3) was aimed at ensuring that the section applied to reports or recommendations made or required to be made before any decision was made under an enactment. The suggested amendment of section 6 was aimed at reversing the effect of Gourgaud v Lawton. 400. It is probably fair to say that the draft recommendation concerning section 3(3) attracted more opposition in submissions made to the Council than any other proposal in the draft report. The Department of Employment, Education and Training said:

The proposal could entail a significant additional workload in relation to matters having no direct relationship to the ultimate decision. For example, many submissions may be put to a Minister for funding of organisations yet it may be that only the last (or even none of these) recommendations are accepted by the Minister. To provide for review of those earlier recommendations or reports would be extremely wasteful of scarce resources. The case is even clearer if a situation is postulated where each separate decision in a chain of decisions is able to be challenged separately.

The Minister for Community Services and Health, Dr Blewett, said:

In my Department, decision-makers frequently rely on the reports and recommendations of others, and indeed there is often a chain of recommendations leading from a junior officer to a senior decision-maker. If all such recommendations became reviewable under the Act then, having regard to the time which may be taken before an AD(JR) Act application can be heard and decided by the Federal Court there could be lengthy delays in Departmental decision-making and in the delivery of services to the public. Furthermore, in such cases it would often be not only the applicant for review who was affected. For example, if one considers an application to review a recommendation as to

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the choice of an organization to provide rehabilitation services to the disabled, it is evident that such an application with its attendant delays before the final decision could be taken, could affect the viability of the recommended organization and the provision of needed services to the disabled could be delayed to their disadvantage . . . Similar effects could be expected with recommendations on staff selection. In my view this would be contrary to the intention of the Government that selection processes in the Commonwealth Public Service should be more efficient.

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Similar views were expressed by the Australian Customs Service, the Department of Defence, the Department of Immigration, Local Government and Ethnic Affairs, the Australian Taxation Office and the Attorney-General’s Department. 401. The Federal Airports Corporation expressed concern that reports of a commercial or operational kind which might or might not lead to decisions would be subject to review before any action concerning them was taken. 402. The Health Insurance Commission voiced concern at the potential for staff selection reports and reports to the Minister of a Medical Services Committee of Inquiry to be the subject of review applications. 403. In separate submissions, the Solicitor-General for South Australia, Mr John Doyle, QC, and Professor James Crawford of Sydney University both thought that, if the proposed amendment of section 3(3) went ahead, it would need to distinguish between reports and recommendations prepared specifically as a prelude to a decision and those which were merely capable of leading to particular action. 404. The Council considers that some of the submissions made on the suggested amendment of section 3(3) took an unwarranted view of what its effect might be or misunderstood the reach of the present provision. In fact, the suggested amendment proposed only a minor change to the existing provision. In relation to the submission of the Health Insurance Commission, for example, the Council notes that reports of a Medical Services Committee of Inquiry are covered by section 3(3) as it presently stands (see sections 104 and 105 of the Health Insurance Act 1973). Nonetheless, the Council has decided not to pursue the suggested amendment of section 3(3). 405. It considers that the more satisfactory way of enhancing the reviewability of reports and recommendations which affect the rights, obligations or legitimate expectations of a person is by amendment of section 6. The only amendment of section 3(3) which the Council proposes is that set out in recommendation 1(2). 406. The Federal Court in the Gunaleela Case, Merman Case and Century Metals Case was clearly concerned to overcome the limitations of section 6, as interpreted in Gourgaud v Lawton. In the Council’s view, it is appropriate that legislative action be taken. The Council considers that section 6(1) ought to be amended to apply to conduct for the purpose of the making of a decision to which the Act applies whether by the person engaging in the conduct or by another person. 407. The Council recognises that this proposed change to section 6(1) may raise the kinds of concerns that were adverted to above concerning the amendment of section 3(3) suggested in the 1988 draft report. However, the proposed amendment of section 6(1) is justified when regard is had to the position that applies under the prerogative writs. Certiorari or prohibition may not be available to quash a non-binding report or to prevent the exercise of preliminary fact-finding functions: R v St Lawrence s Hospital Statutory Visitors; ex parte Pritchard [1953] 1 WLR 1158. This will be so where the preliminary steps have only an indirect effect on the applicant’s interests. However, prohibition may be granted to prevent an investigation from going further if the investigation is a significant and integral part of a process in which questions affecting the rights of individuals will be determined: R v Electricity Commissioners [1924] 1 KB 171. Since the AD(JR) Act is not to be regarded as

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providing grounds of review where the grounds would not apply under the general law (Kioa v West (1985) 159 CLR 550, 566-7, 576-7), an applicant will only be able to obtain review under section 6 if it can be successfully shown that the applicant is a person who is aggrieved by the conduct concerned. 408. An amendment of section 6 along the lines proposed above would require a consequential amendment of paragraph 6(1)(c). It would appear that that paragraph could be amended to read as follows: (c) that the person proposing to make the decision does not have jurisdiction to make it. Minor consequential amendments would also be required to sections 9(1)(b) and 3(5). Recommendation 17: Reports and recommendations (1) Section 6(1) ought to be amended to apply to conduct for the purpose of the

making of a decision to which the Act applies whether by the person engaging in the conduct or by another person.

(2) Consequential amendments ought to be made to sections 6(1)(c), 9(1)(b) and 3(5).

‘Administrative Character’ 409. This aspect of the definition of ‘decision’ has been the subject of a considerable amount of litigation. The Act does not attempt to define ‘administrative character’ and it is left to the Federal Court to give that concept meaning. 410. The Federal Court has indicated that the word ‘administrative’ is not in the context of the Act to be distinguished from ‘executive’: ACT Health Authority v Berkeley (1985) 60 ALR 284, 286. Difficulties have, however, arisen in the demarcation of ‘administrative, decisions from ‘legislative’ and ‘judicial’ decisions. 411. The restriction of the Act to review of administrative decisions is probably due largely to the fact that the terms of reference of the Kerr Committee were confined to administrative decisions. But the resultant need to classify functions as administrative, judicial or legislative is unfortunate. Classification of functions by the courts for administrative law purposes has not in the past proved to be successful. The meanings attributed by them to such terms as ‘administrative. ‘judicial’ and ‘legislative’ have been described as ‘inconsistent’ (de Smith, Judicial Review of Administrative Action, 4th ed., 1980, p.69), and in R v Toohey; ex parte Northern Land Council (1980) 151 CLR 170, 225 Justice Mason said that ‘the classification of powers is not a sound criterion for the operation of precise rules of law’. Decisions of a judicial character 412. It has been said that ‘Judicial acts generally entail determination of questions of law and fact in relation to disputes susceptible of determination by reference to established rules or principles’: Hamblin v Duffy (1981) 34 ALR 333, 338. Judicial decisions made by the courts are subject to the ordinary procedures for appeal and review provided by the judicial system. Yet there are some decisions which fall outside judicial power in the constitutional sense and which may nonetheless be of a judicial character. Decisions of this character were presumably thought to be inappropriate for review under the AD(JR) Act largely because it was doubted to what extent the Constitution allowed persons who did not exercise the judicial power of the Commonwealth to make decisions of a judicial character (see Kotsis v Kotsis (1970) 122 CLR 69). The courts have, however, recognised that non-judicial tribunals

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or bodies may exercise powers of a judicial character. The exercise of such powers will often be reviewable at common law. In these circumstances it may be asked whether it is appropriate for the AD(JR) Act to be drawn in such a way as to exclude decisions of a judicial character from its ambit. 413. In several cases the Federal Court has found that a particular decision is judicial in character and hence not reviewable under the Act (eg, Letts v Commonwealth of Australia (1985) 62 ALR 517 - decision of Registrar of High Court to seek a direction of a Justice of the High Court m relation to proceedings brought by the applicant in the High Court; Registrar of Motor Vehicles v Dainer (1984) 57 ALR 759 - decision of A.C.T. magistrate on appeal against a decision of the Registrar of Motor Vehicles refusing to renew a registration; Baker v Campbell (1982) 44 ALR 431 - decision of a justice of the peace to issue a search warrant under the Crimes Act 1914). In certain other cases decisions which one of the parties have argued to be judicial in character have been held by the Federal Court to be administrative (Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154 - decision of Deputy Registrar of Family Court refusing to accept for filing a notice disputing a bill of costs lodged by the Director of Legal Aid; Lamb v Moss (1983) 49 ALR 533 - decision of a State magistrate made in the course of committal proceedings for a Commonwealth offence; and see Emanuele v Cahill (1987) 71 ALR 302; Narain v Parnell (1986) 64 ALR 561). 414. The Council considers that it is unnecessary to recommend expansion of the phrase ‘decision of an administrative character’ to cover decisions of a judicial character. The Federal Court has taken a broad view of decisions administrative in character, thus ensuring that few problems arise in practice. Decisions of a legislative character 415. It can be argued that the fundamental difference between legislative and administrative acts justifies exclusion of legislative acts from the scope of the Act. An administrative act is generally concerned with ‘the application of . . . general rules to particular cases’: Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260. Thus it can be said that the scope of operation of judicial review, which is concerned fundamentally with the rule of law, is appropriately focussed on review of administrative acts. A legislative act, on the other hand, ‘is the creation and promulgation of a general rule of conduct without reference to particular cases’: de Smith, Judicial Review of Administrative Action, 4th ed., 1980, p. 71. Legislation passed by the Parliament may, of course, be biased in favour of a particular group in the community at the expense of another group or may otherwise be open to criticism. But that constitutes no basis for its review on legal grounds. The concept of the sovereignty of parliament means that, subject only to constitutional limitations, legislation of the Parliament cannot be struck down on legal grounds. 416. There is, however, a category of legislative functions which is more akin to the administrative process. That category comprises subordinate legislative functions. Those functions may be subject to judicial review at common law (see, for example, Bread Manufacturers of NSW v Evans (1981) 38 ALR 93 and R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170) and the question arises whether they should come within the scope of the AD(JR) Act. As has been pointed out elsewhere (Craven, ‘Legislative action by subordinate authorities and the requirement of a fair hearing’ (1988) 16 MULR 569, 587), the practical effect of subordinate legislative action upon those who come within its terms will be precisely the same as it would have been had the person concerned been the subject of an individual decision to the same end.

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417. If subordinate legislative actions were to come within its scope, the difficult problem of characterising a particular decision as administrative or legislative would be largely removed (cf Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 where the full court of the Federal Court noted that the making of a by-law could be a legislative act or an administrative act depending on the context and subject-matter of the by-laws). 418. Subordinate or delegated legislative actions in the traditional sense have encompassed the making or issuing of regulations, by-laws, rules, orders or other statutory instruments. Regulations as such have always been subject to disallowance in the Parliament under section 48 of the Acts Interpretation Act 1901. Increasingly, however, legislation passed by the Parliament has provided for the making not only of delegated legislation in the traditional sense but also of rules, standards, guidelines, determinations and the like, which also have a legislative flavour. As with delegated legislation in the traditional sense, instruments of this kind are commonly required to be tabled in the Parliament and may be subject to disallowance, although frequently they are not. Examples in the Commonwealth sphere are: • decisions of the Minister for Community Services and Health to make rules under section

99AAA of the National Health Act 1953 relating to the National Health Pharmaceutical Benefits Incentive Payments Scheme;

• decisions of the Minister for Community Services and Health under section 45D of the National Health Act 1953 to determine standards to be observed in the provision of nursing home care in approved nursing homes;

• determinations by the Public Service Commissioner under section 82D of the Public Service Act 1922 of terms and conditions of public service employment;

• decisions of the Minister for Community Services and Health under section 23H of the Health Insurance Act 1973 to formulate principles to be complied with by him in the exercise of his powers to approve private hospitals;

• decisions of the Minister for Community Services and Health under section 124H of the Health Insurance Act 1973 to make guidelines relating to determinations by a Medicare Participation Review Committee concerning a doctor found guilty of a Medicare offence;

• decisions of the Minister for Veterans’ Affairs under section 29 of the Veterans’ Entitlements Act 1986 to approve a Guide to the Assessment of Rates of Veterans’ Pensions which then becomes binding on decision makers (including the Administrative Appeals Tribunal) in the veterans’ pensions area.

419. It might be argued, on a wide reading of ‘administrative’, that certain subordinate legislative decisions similar to the kinds mentioned here are amenable to review under the Act. However, on the basis of the kind of test for distinguishing legislative and administrative acts referred to above (para. 415), there must be doubt whether such decisions fall within the Act. In Queensland Medical Laboratory v Blewett (not yet reported, 15 December 1988) the Federal Court held that a determination by the Minister under section 4A of the Health Insurance Act of a new pathology services table was a decision of a legislative rather than an administrative character. 420. Since the AD(JR) Act was enacted, there has been a significant change in the law in Australia on the extent to which subordinate legislative functions are amenable to judicial review. When the Act was passed, subordinate legislation could be reviewed and held to be invalid for a number of reasons, all of which might be regarded as branches of the general doctrine of ultra vires. These reasons are conveniently summarised in Pearce, Delegated Legislation (1977), 93-4. They include: • non-compliance with procedural requirements;

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• subordinate legislation not authorised by empowering enactment (simple ultra vires); • in the case of legislative instruments made by bodies other than the Crown

representative in Council - exercise of power for an improper purpose. The further possibility of reviewing subordinate legislation on natural justice grounds was illustrated in Bread Manufacturers of New South Wales v Evans (1981) 38 ALR 93. However, the decision of the High Court in that case turned on particular features which required that a public inquiry be held before orders fixing the price of bread were made and the Chief Justice indicated in his judgment (at p. 102) that he did not doubt the correctness of Bates v Lord Hailsham (1972] 1 WLR 1373 in which it was held that failure to comply with the rules of natural justice in the course of making delegated legislation did not invalidate the legislation. The general rule that a person affected by legislative action is not entitled to a hearing before the taking of that action was also noted by Justice Brennan in Kioa v West (1985) 159 CLR 550, 620:

The legislature is not likely to intend that a statutory power of a strictly legislative nature be conditioned on the observance of the principles of natural justice for the interests of all members of the public are affected in the same way by the exercise of such a power.

421. A further and somewhat more certain ground for impugning subordinate legislation was opened up by the decision of the High Court in R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170. In that case the High Court (Justice Murphy dissenting) held that a regulation could be invalidated on the ground that it was made in bad faith. 422. In many cases it will not matter that a decision to make subordinate legislation is not itself subject to review under the AD(JR) Act. This is because, since the instrument by which the decision is made is an enactment for the purposes of the Act (section 3(1)), a decision made under it may be challenged and, on that challenge, it is open to the applicant to attack the subordinate legislation collaterally. On the other hand, there are cases where it will be in the interests of an applicant with standing to challenge head-on the making of the subordinate legislation. Thus, in the Bread Manufacturers Case mentioned above, the bread manufacturers made a direct challenge on natural justice grounds to orders fixing the price of bread. 423. It may be desirable for the Act to be expanded to permit review under the Act of subordinate legislative decisions in appropriate cases, although the Council does not presently propose such an expansion in the ambit of the Act. In the draft report issued by the Council in July 1988, comments were requested on the desirability of a rule-making procedure being devised in the Commonwealth under which interested persons would have an opportunity through oral and written submissions to participate in the rule-making process. Models for public participation in the rule making process or for public consultation in relation to the making of rules may be found in the United States under the Administrative Procedures Act and in Victoria under the Subordinate Legislation Act 1962. 424. A rule-making procedure to deal with the growing volume of subordinate legislation may be more satisfactory than judicial review in ensuring fairness in the process by which it is made. Several of the submissions received by the Council commented on this suggestion. The Council proposes to embark on a discrete project on rule-making as soon as the present priorities of its work program permit. Those submissions will be considered in that context.

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Academic assessment decisions 425. Mention was made in chapter 4 (para. 141) of concerns raised by the Australian National University at the coverage by the AD(JR) Act of academic assessment decisions of the university. While it may be true to say that this kind of decision making is not at the forefront of the administrative decision making which the AD(JR) Act was introduced to cover, the Council does not consider it inappropriate, as a matter of principle, that academic assessment decisions be amenable to the grounds of review set out in section 5. Furthermore, the Council notes that the Australian National University is not alone in having its decisions, including academic assessment decisions, potentially amenable to judicial review. Decisions of universities in Victoria are also amenable to judicial review under the Administrative Law Act of that State (see s.14, Administrative Law Act 1978 and Kyrou, Victorian Administrative Law, para. 3173 ff.). Finally, it would seem that, at least since the AD(JR) Act came into force, the Australian National University has been careful to ensure that its decisions are made according to law. Certainly, the Council is not aware of judicial review applications having been brought against its decisions to any significant extent. Commercial decision making 426. A general argument that has been put to the Council from time to time is that it is not appropriate for the processes of the AD(JR) Act to apply to the decisions of government business enterprises. The question of the application of the Act to the commercial decisions of government business enterprises was also raised m one or two of the submissions made to the Council m the context of the present report. 427. The solicitor for the Commonwealth Banks expressed concern at the possibility of a disgruntled client seeking review under the AD(JR) Act of a decision to refuse a loan. The powers of the Commonwealth Banks to make loans are explicitly set out in the Commonwealth Banks Act 1959 at present. In Evans v Friemann (1981) 35 ALR 428 Acting Chief Justice Fox, in a passage that was obiter, indicated that an ordinary day to day banking decision was probably to be regarded as ‘part of the process of administering the bank’s affairs’ (p. 435). The view that commercial decision making is nonetheless administrative in character may be further supported by reference to paragraph (k) of Schedule 2. That paragraph excludes from the statements of reasons requirement decisions of specified Commonwealth authorities in respect of their commercial activities. A possible view of this paragraph is that commercial activity is specifically excluded for more abundant caution (see Enright, Judicial Review of Administrative Action (1985), p. 185). On the other hand, the paragraph might be argued to be explicable only on the basis that administrative activity must include commercial activity. 428. If commercial activities are administrative m character, it would seem that many such activities of government business enterprises that are statutory authorities would fall within the ambit of the AD(JR) Act. On the other hand, unlikely to be covered would be the decisions of those government business enterprises, relatively few in number, which are not created by statute but are incorporated under companies legislation. 429. The question that is now considered is the appropriateness of the processes of the AD(JR) Act applying to the decisions of those government business enterprises that are statutory authorities. 430. The Council notes the efforts that have been made by government in recent years to ensure that public sector administration operates efficiently, with a focus on effective outcomes. It has been said that the public sector must operate in a way that is more akin to

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the private sector model - orientated less on processes and procedures (how things are done) and more on outputs and outcomes (results or end products). The steps taken to give government business enterprises greater autonomy in their operations reflect this orientation (see Government White Paper, Policy Guidelines for Commonwealth Statutory Authorities and Government Business Enterprises, October 1987).

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431. It has been suggested that the new focus of public sector administration necessarily means that government business enterprises should not be capable of having their decisions reviewed in the judicial renew jurisdiction of the courts. The suggestion is that the public sector enterprises should not be subject to review mechanisms which do not apply to their private sector counterparts. 432. In the Council’s view, these suggestions reveal some basic misunderstandings. In the first place, of course, private sector companies are fully accountable in their operations to their shareholders. To propose that the decisions of government business enterprises should not be subject to independent scrutiny in the courts is to arrogate to the enterprises a freedom from review that private sector enterprises do not have. Secondly, if a particular government business enterprise is not supported by funds which have been raised through taxes and charges imposed as public imposts on the people of Australia, it at least has the resources of the Commonwealth standing behind it. If it should fail, revenue raised by the Commonwealth will be available to bail it out. The Australian public has a consequent interest in ensuring that mechanisms exist to enforce accountability in decision making if necessary. 433. Finally, bodies which have been created in the public interest must operate in a way that serves the public interest. That was dramatically illustrated in the recent controversy concerning the pay increases awarded by the Overseas Telecommunications Commission to its senior executives. In that case, the government, concerned that the increases may be outside national wage fixing guidelines, intervened in the public interest and ultimately forced the resignation of the managing director of OTC as a result of the wage increases that had been granted. Any illusion that public interest issues are not relevant in the new order of public sector administration should be dispelled by this episode. In fact, the white paper of the government referred to above makes it quite clear that improvement in public accountability is one of the major aims of the government in its reforms of public sector authorities. 434. The issue of the applicability of judicial review to decisions of statutory authorities that might be characterised as business decisions has arisen in other jurisdictions. In Re B.C. Development Corporation and Friedmann (1985) 14 DLR (4th) 129 the question at issue was the scope of the jurisdiction of the Ombudsman of British Columbia and whether that jurisdiction extended to actions and decisions of a British Columbia Crown corporation. This depended on whether its activities could be characterised as a ‘matter of administration’ within the terms of the Ombudsman Act. The decision of the Supreme Court of Canada in upholding the Ombudsman’s view that the Ombudsman had jurisdiction is relevant also in the judicial review context. Justice Dickson said (at p. 147-8):

A transaction can thus be characterised as a matter of administration even though it carries a business flavour. Indeed, a bewildering array of governmental authorities now regularly implement governmental policies and programs in the marketplace. The decisions made by the government’s agents in these areas are no less administrative merely because the policies they implement are tied to some greater or lesser extent to business concerns.

435. One Canadian commentator in commenting on the case has said that the public executive function carried on by the B.C. Development Corporation is implementation of government policy in accordance with objects stated in its Act:

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It makes no difference that this function and conduct relates to ‘business’ activities and involves what might be characterised as business judgments. The bottom line is that these are public functions carried out under statutory authority. (Lucas, ‘Judicial Review of Crown Corporations’ (1987) 25 Alberta Law Review 363, 370)

436. In the Council’s view, the Australian community has the right to expect that decisions of government business enterprises are made according to law to the same extent as the decisions of other government agencies. It would, nonetheless, be of some concern to the Council if significant use were being made of the AD(JR) Act to challenge the commercial decisions of those government business enterprises which compete in the marketplace with private sector enterprises. The need to defend numerous judicial review applications might have the result of placing government business enterprises at a significant disadvantage by comparison with their private sector counterparts. It does not appear to the Council, however, that the number of judicial review applications in this area is at all significant. 437. It might be noted in this connection that the AD(JR) Act cannot be regarded as responsible for issuing in a means of challenging the decisions of government business enterprises in the courts. Long before the AD(JR) Act was in place, plaintiffs had from time to time brought challenges to such decisions: Inghs v Commonwealth Trading Bank (1969) 119 CLR 334. 438. It was mentioned above that the commercial decisions of those government business enterprises which are not created by statute but which are incorporated under companies legislation may not be able to be characterised as decisions made under an enactment and may not therefore be amenable to review under the AD(JR) Act. The Council considers that the controls imposed by the requirements of company law provide in this case a sufficient substitute for control through the judicial review jurisdiction of the courts.

‘Under an Enactment’ 439. The Act applies to a decision of an administrative character made under an enactment. ‘Enactment’ is defined in section 3(1) as meaning: (a) an Act; (b) an Ordinance of a Territory other than the Northern Territory; (c) an instrument (including rules, regulations or by-laws) made under such an Act or

under such an Ordinance: or (d) a law, or a part of a law, of the Northern Territory declared by the regulations, in

accordance with section 19A to be an enactment for the purposes of this Act, and, for the purposes of paragraph (a), (b) or (c) includes a part of an enactment.

440. The question has been raised whether the reference to ‘instrument’ in paragraph (c) is limited to instruments of a legislative character or whether it can include administrative’ documents (Pearce, Commonwealth Administrative Law (1986), para. 316). The full Federal Court ruled in Chittlck v Ackland (1984) 53 ALR 143 that a document of a non-legislative character is included in the definition as long as: • it is made under, in pursuance of or under the authority of an Act or Ordinance; • is a document under which decisions of an administrative character may be made; and • is of such a kind that it has the capacity to affect legal rights and obligations. 441. The court held that a document which was made under the provisions of the Health Insurance Commission Act and which set out the terms and conditions of the plaintiff’s

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employment was, in all the circumstances of the particular case, an instrument for the purposes of the Act and, accordingly, an administrative decision taken under that instrument was reviewable. 442. The decision appears to put a gloss on the earlier decision in Australian National University v Burns (1982) 43 ALR 25 where the full Federal Court had held that a decision to dismiss a university professor was not subject to the Act because the decision was taken not under an enactment but under the professor’s contract of employment. Significantly, the court had not considered whether the contract of employment was an ‘instrument’ for the purposes of the Act, but had confined itself to the issue whether the decision to dismiss was taken under the University’s enabling Act. 443. The question arises whether the expansive meaning given to ‘instrument’ in Chittick goes too far. On the one hand, it might be argued that the result in that case carries the risk of the Act being used to review decisions of a private, as opposed to a public, character. On the other hand, it is arguable that the Chittick case presents no such risk because of the emphasis placed by the court on the fact that the enabling Act empowered the employer unilaterally to determine and, if necessary, alter the terms and conditions of employment. Thus the document in Chittick is distinguishable from ordinary contractual documents because it was the formal expression of a determination arrived at unilaterally. To this extent that document, while not a formal legislative measure, shared a fundamental feature of such measures. The Council considers that the decision in that case warrants no change to the definition of ‘enactment’ in section 3(1).

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CHAPTER 11

OVERLAPPING JUDICIAL REMEDIES

Introduction 444. Chapter 1 considered the extent to which procedures for obtaining judicial review are available in the High Court by virtue of the Constitution and are available in the Federal Court by virtue of the Judiciary Act 1903. The amendment of the AD(JR) Act proposed in recommendation 1 would have as one of its effects coverage by the Act of some of the jurisdiction presently conferred on the Federal Court under section 39B of the Judiciary Act. Alteration of the Act in this way would assist in rationalising judicial review in the Commonwealth. It would lessen the scope for jurisdictional arguments about the application of the Act. As is mentioned in chapter 4, however, certain decisions would continue to be reviewable only in the Federal Court’s prerogative writ jurisdiction. 445. This chapter considers the extent to which a person who is aggrieved by Commonwealth administrative action may have a statutory right to institute proceedings, otherwise than under the AD(JR) Act or section 39B of the Judiciary Act, in State courts, the Federal Court or the Territory Supreme Courts in relation to that action. The proceedings may be proceedings by way of an appeal or other action. Where an appeal is provided for, it is usually an appeal in the strict sense, that is, an appeal on matters of law and the merits. In appeal proceedings that are not restricted to questions of law the court has power to substitute its decision on the matters in issue for that of the body appealed from. In review proceedings, on the other hand, the court’s basic power in relation to an illegal decision is to quash it or set it aside (see Cane, An Introduction to Administrative Law, 1986, pp.40-1). In quashing the decision or setting it aside, the court may remit the matter to the body which made the decision with a direction to reconsider it in accordance with the decision of the court (see, eg, s.16(1) AD(JR) Act). An appeal right may therefore give an appellant more ample remedies than are available in a judicial review application, although if the decision maker whose decision is appealed from exercised broad discretions in the making of the decision, the court will be constrained in the extent to which it may stand in the shoes of the decision maker and itself exercise those discretions: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589. 446. Where jurisdiction is conferred on the courts to hear an appeal, the jurisdiction conferred is original, not appellate, jurisdiction: British Imperial Oil Company Limited v Federal Commissioner of Taxation (1926) 38 CLR 153. 447. To the extent that, in some areas of Commonwealth administration, there exists side by side with rights under the AD(JR) Act a right to appeal, or to make other application, to the courts in relation to decisions of Commonwealth agencies, the operation of the AD(JR) Act as one fork of a bifurcated review path needs to be considered. Problems of overlapping remedies in this sense were adverted to in the Council’s report, Review of the Administrative Decisions (Judicial Review) Act 1977. Stage One (paras 44-7), and it was indicated in that report that the matter was to be left for further study. 448. The discussion in this chapter is not concerned with situations where, because of the narrowness of the ambit of the AD(JR) Act or the exclusions provided for in Schedule 1 to the

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Act, any judicial remedy in respect of administrative action must be found outside the Act; the concern of the chapter is solely with situations of overlap with the AD(JR) Act. 449. It is again pointed out that the AD(JR) Act in section 10 contemplates that judicial review will be available in certain areas where an alternative scheme of appeal or review exists. The Federal Court has a discretion in these cases to refuse to grant a judicial review application. The implementation of recommendation 15 of this report should have the effect of strengthening the hand of the court in these circumstances. It may be, however, that this recommendation does not fully meet the concerns that have been expressed from time to time by Commonwealth agencies about the existence of alternative means of challenging administrative action. The concern that is expressed is that the provision of review under the AD(JR) Act as an alternative to other judicial procedures may have the effect of disrupting Commonwealth administration and increasing costs. Where different courts are involved, it may also have the undesirable effect of allowing aggrieved persons to ‘forum shop’ - to choose between courts for tactical advantage only. 450. Relevant to a discussion of overlapping remedies is the provision made by section 9 of the AD(JR) Act which excludes State courts from reviewing decisions to which the section applies. Section 9 is more fully considered in chapter 12. It is, however, relevant in this context because any overlap with the AD(JR) Act will not exist where section 9 has the effect of ousting the State courts’ jurisdiction. That having been said, it may not always be clear whether section 9 has had the effect of ousting the jurisdiction of a State court. For example, in Woss v Jacobsen (1985) 60 ALR 313 it was held by the full court of the Federal Court that the jurisdiction of the Supreme Court of Western Australia to review a decision of a magistrate under section 19 of the Service and Execution of Process Act 1901 was not ousted by section 9 of the AD(JR) Act. Whether or not a State court’s jurisdiction is ousted will depend on whether or not what is provided for in each particular case can be characterised as a ‘review’ within the meaning of section 9 of the AD(JR) Act. As Woss v Jacobsen illustrates, this may not always be an easy question to determine. 451. Appendix C of the draft report issued by the Council in July 1988 listed all the provisions which the Council was able to find which conferred rights of appeal to the courts, or which provided for other applications to the courts, in respect of administrative decisions. 452. Submissions which have been made to the Council indicate that, in practice, only a few of the provisions have given rise to problems associated with overlap with the AD(JR) Act. The areas concerned are now considered.

Appeals and other procedures

Customs 453. The Customs Act 1901 sets out a scheme in relation to the seizure of goods. Section 203 provides that an officer may seize any forfeited goods or any goods that he believes on reasonable grounds are forfeited goods. A notice of seizure is then served on the owner of the goods: s.205. The notice is required to inform the owner that the goods shall be deemed to be condemned as forfeited to the Crown unless, within 30 days of the date of service of the notice, the owner makes a claim for the goods. Where the owner does claim the goods, the Collector may retain possession of them and give notice to the owner that the goods will be deemed to be condemned as forfeited to the Crown unless, within 4 months of that notice, the owner brings an action against the Collector for their recovery. Such an

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action, in detinue, trespass or conversion, may be brought in the State Supreme Courts by virtue of the jurisdiction conferred on them by section 39 of the Judiciary Act. 454. A decision to seize goods is related to the prosecution, or a possible prosecution, of the owner of the goods for offences against the Customs Act. A successful prosecution will result in the goods being condemned as forfeited to the Crown: s.229. Seizures take place where there are strong grounds for believing that an offence has been committed and where the goods are required either to assist in the investigation into the alleged offence or as evidence. 455. In a series of cases in 1985-86 the AD(JR) Act was used to challenge certain seizure decisions of Customs. In Frost v Collector of Customs (1985) 63 ALR 297 Justice Wilcox held that section 16(1)(c) of the AD(JR) Act empowered the Federal Court to make a declaration in relation to the forfeiture of a motor vehicle under the Customs Act. He indicated that if the making of such a declaration was not within the power conferred by section 16(1)(c), it was, for the reasons given by Justice Northrop in Tetron v Luckman (1985) 8 ALD 243, within the accrued jurisdiction of the court. Justice Pincus in Pearce v Button (1985) 60 ALR 537 had reached a similar conclusion that section 16(1)(c) empowered the court to declare that the goods the subject of the seizure decision in respect of which the application for review was made were not forfeited goods. 456. In a submission to the Council dated 2 March 1986, the Australian Customs Service said:

The uses of the ADJR Act in the cases cited above have caused difficulty. It is unclear whether an ADJR application for review of a decision to seize can in any circumstances be characterised as an ‘action for the recovery of goods’ in terms of section 208A of the Customs Act. It is unclear whether, and if so upon what basis, the Federal Court has jurisdiction to determine the ownership of seized goods and, by necessary implication, the question of forfeiture.

The uncertainties provide a climate in which applicants commence recovery proceedings in a Supreme Court but, in the hope of finding a quicker solution, also commence ADJR action. The situation results in an unnecessary proliferation of litigation and an inefficient diversion and fragmentation of ACS resources. It is symptomatic of the superimposition of the ADJR Act procedures upon the scheme prescribed in the Customs Act for the forfeiture, seizure, retention and recovery or condemnation of goods. The ACS would see great merit in the establishment of a clear delineation between the rights of an applicant under the ADJR Act and those of an importer under the Customs Act.

457. However, in an appeal from the decision of Justice Pincus in Pearce v Button, the full court of the Federal Court held that, on a review of the legality of a decision to seize goods, there was no power, pursuant to section 16(1)(c) of the AD(JR) Act, to determine the question of fact whether the imported goods were forfeited: Pearce v Button (1986) 65 ALR 83. In a further case, O’Neil v Wratten (1986) 65 ALR 451, Justice Jackson took the view that, if the question of forfeiture of goods could be determined by the Federal Court in its accrued jurisdiction, the discretion to do so should not be exercised except in a special case. 458. As was pointed out by the Council in Report No. 26, the effect of the full court decision in Pearce v Button is that the question of forfeiture of goods will continue to fall for determination in the traditional venue, namely, the State courts (para. 25). The statistics show an apparent decline in the number of applications under the AD(JR) Act for review of customs decisions (not including applications relating to anti-dumping and countervailing

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duties). In 1985, out of a total of 264 applications, there were customs matters. In 1986, customs matters had declined to 17 out of a total of 303 applications. The figures for 1987 show 26 customs matters in a total of 289 and in 1988 customs matters accounted for 22 in a total of 287 applications. 459. It therefore appears that problems of overlap of the AD(JR) Act with other remedies in the customs area have substantially diminished as a result of decisions of the Federal Court. The Council does not consider that amendments of the AD(JR) Act are required to restrict access to the Act in customs matters. 460. At the same time, however, it is questionable whether the result that has now been reached concerning challenges to the seizure of imported goods under the Customs Act is appropriate. The procedures provided for in the Act for challenging seizures, which involve an action for detinue in the State Supreme Courts, are archaic, cumbersome and drawn out. It might be desirable for a procedure to be available such as the one the full Federal Court in Pearce v Button said was impermissible under the AD(JR) Act whereby a party could approach the Federal Court to challenge a seizure decision and, in those proceedings, have the substantive question determined whether or not the goods concerned were in fact unlawfully imported and were thus forfeited to the Crown. Alternatively, as the Council proposed in its Report No. 23, Review of Customs and Excise Decisions: Stage 2, the AAT might be given a role in relation to the review of seizure decisions. 461. The Council notes that the Australian Law Reform Commission has been given a reference concerning the Customs Act and considers that this matter might appropriately be taken up by the Commission in its reference. The Australian Customs Service has indicated to the Council that it agrees with this course. In recent correspondence with the Council in connection with Report No. 23 the Australian Customs Service has, however, indicated that it is disposed not to agree with the Council’s approach of giving the AAT jurisdiction in certain cases to review seizure decisions. Taxation 462. In Report No. 26 (at para. 21) the Council referred to a detailed submission made to it by the Commissioner of Taxation in which concerns were expressed about the use being made of the AD(JR) Act to frustrate the administration of the tax legislation. Concerns were expressed in relation both to the recovery of tax and to the assessment of tax. 463. Questions concerning alleged use of the Act to frustrate or delay Commonwealth administration were addressed by the Council in Report No. 26, and the gist of the proposals in that report has been taken up in recommendation 15 of the present report. If the Act is amended as recommended in recommendation 15, the amendments should assist the Federal Court in the exercise of its discretion to refuse to grant an application in appropriate circumstances. 464. Problems concerning overlapping remedies may arise in relation to decisions which are not strictly speaking assessment decisions and are not therefore presently excluded from review under the AD(JR) Act by paragraph (e) of Schedule 1, but which are related to the assessment process. In a submission to the Council dated 20 February 1986, the Commissioner of Taxation said:

There are a significant number of decisions under taxation legislation which are not strictly speaking assessments but where a review on the merits is available under the taxation legislation. If these matters are heard under the AD(JR) Act, the established

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appeal processes are undermined, as taxpayers who take AD(JR) action gain an unfair advantage over those who are prepared to follow the established processes, and the merits of decisions will become merged with the legality. By this tactic, a taxpayer is able to choose the forum and to isolate that aspect of the overall issue which is to his best advantage. In particular, in some circumstances, a taxpayer may have a matter which affects the assessment determined in a forum where paragraph 190(b) [which imposes on the taxpayer the burden of proving that the assessment was excessive] had no application.

465. In Mercantile Credits Ltd v Federal Commissioner of Taxation (1985) 61 ALR 331 applications were made under the AD(JR) Act for review of decisions of the Commissioner of Taxation to refuse to issue certificates of exemption from withholding tax on interest payable by Mercantile Credits Ltd on 2 off-shore loans. The Commissioner’s refusal to issue the certificates was based upon his view that the loans were loans raised in pursuance of contractual obligations entered into on or after 20 May 1983 and thus, by virtue of section 1 28G(3) of the Income Tax Assessment Act, the exemption from withholding tax on the interest payments was not available. Before the application under the AD(JR) Act was made, the taxpayer had lodged with the Commissioner an objection against the Commissioner’s decision and, upon the disallowance of the objection, had requested the Commissioner to refer the matter to the Supreme Court of New South Wales. 466. The Commissioner filed a notice of objection to the competency of the AD(JR) Act application on the ground that paragraph (e) of Schedule 1 to the AD(JR) Act excluded the decision from review under the Act. The Commissioner also asserted that adequate provision was made in the Income Tax Assessment Act for the applicant to seek a review by the Supreme Court (now the Federal Court) or a Board of Review (now the AAT) of his decision to refuse to issue the certificates. 467. Justice Morling dismissed the objection as to competency. He held, following the decision of Justice Fisher in Domaine Finance Pty Ltd v Federal Commissioner of Taxation (1985) 61 ALR 375, that a refusal to issue an exemption certificate under section 128H of the Income Tax Assessment Act was not a decision of the kind referred to in paragraph (e) of Schedule 1 to the AD(JR) Act:

A decision refusing to issue a certificate is a decision affecting liability to payment of withholding tax, not a decision forming any part of the process of making or leading up to the making of the calculation of the tax. (p. 335)

468. Justice Morling also declined to exercise his discretion under section 10(2)(b)(ii) of the AD(JR) Act to refuse to grant relief. He noted that the applicant had the alternative remedy open to it of an appeal to the Supreme Court. However, he said that it would lead to unnecessary delay and increased expense if the Federal Court were not to exercise its jurisdiction, having regard to the fact that all the material relating to the matter in issue between the parties was before the Federal Court and to the fact that it was able to decide the question expeditiously. 469. Following a decision adverse to the Commissioner on the substantive point in issue between the parties (Mercantile Credits Ltd v Federal Commissioner of Taxation (No.2) 85 ATC 4581), the Commissioner appealed unsuccessfully to the full court of the Federal Court (Federal Commissioner of taxation v Mercantile Credits Ltd 86 ATC 4119). On the appeal, the Commissioner did not, however, seek to challenge the decision of Justice Morling at first instance that Mercantile Credits had a right to proceed under the AD(JR) Act.

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470. Where, as in the Mercantile Credits Case, a decision has been made by the Australian Taxation Office which may be reviewed on the merits, the question arises whether it is appropriate for the Federal Court not to grant an application for judicial review. On the one hand, the Commissioner’s decision might be based on a nice question of law, as it was in the Mercantile Credits Case, and it might be convenient to dispose of the issue in contention between the parties by a judicial review application based on the ground that the decision involved an error of law. On the other hand, the sorts of considerations mentioned by the Australian Taxation Office (para. 464 above) might be regarded as being of sufficient significance to suggest that the Federal Court ought not to grant a judicial review application. 471. The Council considers that the discretion of the Federal Court under section 10, as proposed to be amended in accordance with recommendation 15, provides a sufficient means of dealing with cases of this kind. It does not consider it appropriate that any other change be made to the AD(JR) Act to deal with them. 472. One long-standing problem area in the taxation field has been the area of sales tax. Prior to 1 July 1986 a sales tax payer only had a limited right of appeal to a Board of Review. Appeal rights were confined to the sale value of the goods concerned. No right of appeal to the courts existed. The Taxation Boards of Review (Transfer of Jurisdiction) Act 1986, which came into force on 1 July 1986, brought the objection and appeal provisions of the sales tax law into line with the comparable income tax provisions. It broadened the scope of sales tax appeals and gave sales tax payers a choice of appealing either to the Administrative Appeals Tribunal (which took over the jurisdiction of the Boards of Review) or to a State Supreme Court. Further changes to the jurisdiction of courts in subsequent legislation removed the taxation jurisdiction from the State Supreme Courts and conferred it on the Federal Court. 473. Because of the limited appeal rights which existed in the sales tax area before 1 July 1986, some taxpayers had taken the step of disputing the classification of goods by seeking declaratory orders from the State Supreme Courts (see, eg, Nomad Industries of Australia Pty Ltd v Commissioner of Taxation [1983] 2 NSWLR 56. In doing so, they had to overcome the hurdle of section 9 of the AD(JR) Act, but had been successful in doing so (see chapter 12). 474. The changes in objection and appeal provisions since 1 July 1986 are likely, in the Council’s view, to reduce significantly approaches to the Supreme Courts of the States of the kind instanced in Nomad. As a result, to the extent that overlapping remedies may continue to be available in the sales tax area, any problems are likely to be of the same order as discussed above in relation to the income tax area. The Council notes that the authors of the CCH Australian Sales Tax Guide have ventured the view that ‘with enactment of the new objections and appeals provisions . . . [the route of disputing the classification of goods by seeking declaratory orders from the Supreme Court] will effectively be closed’ (p. 71, 102). 475. A question may be raised as to the appropriateness of provisions in taxation legislation for appeals to the courts as an alternative to appeals to the Administrative Appeals Tribunal. Appeals to the courts in taxation matters are by way of a rehearing of those matters. The Council considers that this mode of challenging an assessment decision should remain available as an option. A right to appeal to the courts has been a traditional feature of the taxation system in Australia since 1922. Indeed, the constitutional bar against an incontestable tax lie, a tax imposed under a taxation law which, while making the taxpayer’s liability depend upon specified criteria, purports to deny him all right to resist an

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assessment by proving in the courts that the criteria of liability were not satisfied in his case: Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365) may make it necessary that there be in the taxation laws provisions which give taxpayers the right to challenge assessments in the courts.

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Trade practices 476. In a submission to the Council dated 20 September 1984, the Trade Practices Commission (‘TPC’) expressed concern at the problems created by the fact that the TPC’s actions and decisions were subject to 2 separate avenues of challenge: • proceedings in the Federal Court under section 163A of the Trade Practices Act 1974

seeking declaratory orders or orders byway of, or in the nature of, prohibition, certiorari or mandamus in relation to actions of the TPC;

• proceedings in the Federal Court under the AD(JR) Act. The TPC drew attention to cases where applications had been made both under section 163A and under the AD(JR) Act. It then made the following comment:

As with most proceedings in the Federal Court AD(JR) actions proceed in a very formal way and are subject to all the usual delays which Federal Court procedures permit where a person, is determined to have delay. Applications under the AD(JR) Act are heard as a right whether or not they have any apparent merit. The Commission is accustomed to delaying tactics and copes as best it can. For various reasons it is most worthwhile for a person to delay Commission investigations into their conduct. These benefits include decreasing certainty of witnesses’ memory over time and the more obvious benefit in consumer protection prosecutions that the Crimes Act requires that proceedings must be instituted one year from the date of the alleged offence. Delaying the investigations by challenges in these cases may well bring the matter out of time for prosecution. The Courts have become accustomed to this tactic and many 163A challenges have been dealt with very quickly. But if there is added to a 163A challenge an AD(JR) challenge then a timely resolution is that much more difficult, particularly as there is no reason why an unsuccessful section 163A challenge could not be followed by an AD(JR) Act challenge, or vice versa.

477. The Council notes that the number of applications under the AD(JR) Act in relation to decisions under the Trade Practices Act is small. According to figures supplied to the Council by the Federal Court, there were 3 applications in 1983, none in 1984, 1985, 1986 and 1987 and 3 in 1988. Furthermore, the Federal Court has a discretion under section 10(2)(b) of the Act to refuse to grant an application under the Act where the applicant is entitled, under another law, to seek a review by the Federal Court of the decision concerned. The Council considers that this discretion of the court is sufficient to prevent serious problems with overlapping remedies arising in the trade practices area. 478. The question may be raised whether section 163A of the Trade Practices Act is appropriate. The section was inserted in the Act prior to the coming into force of the AD(JR) Act. As initially drafted, the section conferred jurisdiction on the Industrial Court. It was introduced to fill a gap in the jurisdiction of that court to deal with matters arising under the Trade Practices Act. That gap had become apparent when actions were commenced in State and Territory Supreme Courts for the making of declaratory orders (House of Representatives, Hansard, 25 March 1976, p. 1012). The jurisdiction of the Industrial Court was latter transferred to the Federal Court. 479. The Council notes that the remedies provided for in section 163A are no broader than those available under the AD(JR) Act. However, the section does have certain special features. In the first place, it confers power on the Federal Court ‘in relation to a matter arising under’ the Act to make a declaratory order ‘in relation to the operation or effect of any provision of this Act . . . .’. Secondly, it provides that the Minister may institute a proceeding in the Federal Court under the section and may intervene in proceedings.

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Thirdly, it provides that the Trade Practices Commission may intervene in proceedings instituted under the section. (The Commission did so in Re Trade Practices Act 1974 (1978) 19 ALR 191.) Having regard to those special features, the Council is of the view that the section should remain notwithstanding that it shares with the AD(JR) Act certain features of judicial review under that Act. Patents, trade marks and designs 480. In a submission to the Council dated 21 February 1986 the Commissioner of Patents drew attention to a number of cases where parallel actions had been taken under the Patents and Trade Marks Acts and under the AD(JR) Act. At the time the submission was written the intellectual property legislation provided for appeals against certain decisions of the Commissioner of Patents or the Registrar of Trade Marks to be taken to the Supreme Courts of the States and Territories and for appeals against certain other decisions to be taken to the Administrative Appeals Tribunal. Since the coming into force of the Jurisdiction of Courts (Miscellaneous Amendments) Act 1987, appeals which formerly lay to the Supreme Courts now lie to the Federal Court. 481. In one group of cases involving a decision of the Commissioner where the statute gave a right of appeal to the AAT rather than the courts and in which the same point was in issue, applications for review were simultaneously lodged with the Federal Court under the AD(JR) Act and with the AAT. The applications came on before the Federal Court (Scaniainventor v Commissioner of Patents (1981) 36 ALR 101) and were ultimately remitted to the Commissioner. The applications in the AAT were then not proceeded with. In a comment on these cases, the Commissioner of Patents said in a submission to the Council that, as the question to be determined in the cases was a point of law, it was appropriate that review was sought under the AD(JR) Act. Furthermore, the Commissioner said that, although review was sought in both the AAT and the Federal Court, the 2 avenues were not pursued for the purpose of delaying or frustrating administrative action. 482. Another instance mentioned in the Commissioner’s submission was a case where an appeal had been lodged with a State Supreme Court under the statutory appeal procedure and, simultaneously, an application for review under the AD(JR) Act was lodged. The proceedings under the AD(JR) Act were subsequently withdrawn. 483. The submission of the Commissioner of Patents does not disclose serious problems of overlap of the AD(JR) Act with other remedies. Although the intellectual property area needs to be monitored to ensure that problems do not arise in the future, it appears likely that the recent transfer of jurisdiction in appeals from the State Supreme Courts to the Federal Court will assist in reducing instances where parallel proceedings are commenced. Furthermore, where a review by the Administrative Appeals Tribunal is available, proposed paragraph 10(2)(c) referred to in recommendation 15 should reduce the scope for cases such as Kimberley-Clark Limited v Commissioner of Patents (1989) 15 ALD 740 being determined in the Federal Court under the AD(JR) Act. 484. The Council is engaged in a separate project which examines the question of the appropriateness of appeals to the courts against decisions of the Commissioner of Patents and the question whether instead there ought to be appeals to the Administrative Appeals Tribunal. The Council notes the support which the Commissioner of Patents has expressed for this project.

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Comment on the Appropriateness of Provisions for Appeals, etc, to Courts in other areas 485. The enactment of the AD(JR) Act, which clearly defines a jurisdiction for judicial review of Commonwealth administrative action, raises the question of the appropriateness of other provisions which were identified in Appendix C to the draft report issued by the Council whereby challenges to that action may be brought by other means. The new Commonwealth administrative review system was conceived as a coherent package under which decisions that were appropriate for review on the merits would be made reviewable by the Administrative Appeals Tribunal and under which the legality of decisions could, subject to some exceptions, be tested in the Federal Court under the AD(JR) Act. 486. Some of the provisions which were identified in Appendix C to the draft report have since been amended or repealed or the question of review by the AAT in lieu of appeal or review proceedings in a court is being pursued by the Attorney-General’s Department. Set out below are the remaining provisions with a brief comment by the Council in each case: • Overseas Telecommunications Act 1946, s.69

- the Council has been advised that this provision, which deals with applications for review of compensation decisions in relation to property acquisition, property damage and the like, is not actively used;

- property acquisitions in Australia involving OTC are dealt with under the scheme in the lands acquisition legislation;

- it would appear that section 69 could be repealed; • Australian Capital Territory Supreme Court Act 1933, s.8, s.35A

- the Council agrees with views expressed in the submission from the Chief Justice of the A.C.T. Supreme Court that these provisions should not be disturbed on the basis that the appeal from the Registrar to the Supreme Court is an appeal from one judicial officer within the Supreme Court to another;

• Broadcasting Act 1942, s.134 - the Council agrees with the view expressed in the submission from the Federation

of Australian Commercial Television Stations that this provision should not be disturbed on the basis that the power given to the Federal Court is wider than the powers conferred on it under the AD(JR) Act;

• Commonwealth Prisoners Act 1967, s.11 - this provision, which deals with review of decisions by prescribed authorities to

cancel parole orders, is presently being considered by the government in the context of a review of laws relating to sentencing and the conditional release of federal offenders;

• Crimes Act 1914, s.19A - this provision is also being considered in the review referred to in connection with

s.11 of the Commonwealth Prisoners Act; • Minerals (Submerged Lands) Act 1981, s.56

- the Council considers that this provision should not be disturbed; - it agrees with the views expressed in the submission of BHP that the Supreme

Court’s power on an appeal from a decision of the Designated Authority is broader than the power of the Federal Court under the AD(JR) Act;

- review by the AAT would not be appropriate, the Designated Authority being a State Minister;

• Petroleum (Submerged Lands) Act 1967, s.91 - identical considerations to the considerations under the Minerals (Submerged

Lands) Act apply here;

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• Removal of Prisoners (Territories) Act 1923, s.8A - the Council agrees with the views expressed in the submission of the Chief Justice

of the A.C.T. Supreme Court that this provision should not be disturbed on the basis that the appeal provided for from a magistrate to the Supreme Court is peculiarly within the province of the Supreme Court;

• Service and Execution of Process Act 1901, s.19, s.26G - again, these appeals from a magistrate to a State or Territory Supreme Court are

peculiarly within the province of the Supreme Court; • Transfer of Prisoners Act 1983, s.l1

- again, these appeals from a court of summary jurisdiction to a State or Territory Supreme Court are peculiarly within the province of the Supreme Court;

- the provision is, furthermore, part of a uniform legislative scheme with the States. 487. Certain of the provisions that were listed in Appendix C to the draft report provide for an appeal on a question of law to the Federal Court from a decision of an inferior administrative tribunal. The provisions concerned are: • Section 44, Administrative Appeals Tribunal Act 1975. • Section 79, Complaints (Australian Federal Police) Act 1981. The Council considers that, notwithstanding the availability of judicial review under the AD(JR) Act, these provisions should stand. A right to appeal on a question of law from a decision of an administrative tribunal may be one of the necessary indicia that the tribunal exercises administrative, rather than judicial, power and that thus its constitution does not infringe against section 71 of the Constitution (Federal Commissioner of Taxation v Munro (1926) 38 CLR 153). 488. Similarly, it would appear to be in the interests of persons who are required by the National Crime Authority to provide certain information or to answer questions to have available to them a specific means of seeking an order of review from the Federal Court. Accordingly, the Council is of the view that the provision made by section 32 of the National Crime Authority Act should stand. 489. As to the remaining provisions that were listed in Appendix C, the Council makes the following comments: • Bankruptcy Act provisions. The courts having jurisdiction in bankruptcy have

traditionally had a supervisory jurisdiction in bankruptcy matters. The special nature of the bankruptcy jurisdiction suggests that no change is warranted to these provisions.

• Companies and securities provisions. The government has introduced legislation for a Commonwealth companies and securities scheme to replace the present co-operative Commonwealth and State scheme. The Council has provided advice to the government on review matters under the new scheme. The Council considers that it is appropriate for those provisions of the present scheme which provide for review on the merits by the courts to remain on foot while they are part of a co-operative scheme between the Commonwealth and the States.

• Section 29C of National Service Act. Reform of this provision is proposed in government legislation following a report by the Senate Standing Committee on Constitutional and Legal Affairs entitled Conscientious Objection to Conscripted Military Service.

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• Provision under Protection of Movable Cultural Heritage Act and under other Acts

under which action may be brought in a court of competent jurisdiction for the recovery of goods. The Council considers that seizure decisions under these Acts ought to be considered in the light of whatever recommendation is made by the Australian Law Reform Commission in relation to the review of seizure decisions under the Customs Act.

• Section 59 of the Shipping Registration Act. Applications to a court for rectification of the register of ships would seem to be governed by similar considerations to those which apply in relation to applications to the court under the intellectual property legislation for rectification of the register. Consideration of this provision is deferred pending the Council’s findings in its intellectual property project referred to above (para. 484).

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CHAPTER 12

OUSTER OF JURISDICTION OF STATE COURTS

Introduction

490. The current jurisdiction of State courts to review Commonwealth administrative action is very limited and would appear to be confined to actions for damages (to the extent that such actions are available) and habeas corpus proceedings. There has long existed a policy of restricting the jurisdiction of State courts to review Commonwealth administrative action. Section 38(e) of the Judiciary Act 1903 deprives State courts of jurisdiction to grant mandamus or prohibition against a Commonwealth officer. This provision does not affect the jurisdiction of State courts to review the actions of such officers in proceedings involving other administrative law remedies such as certiorari, declarations or injunctions, but section 9 of the AD(JR) Act now operates severely to circumscribe that jurisdiction. The intention of section 9 is to oust the jurisdiction of State courts to review both decisions to which the AD(JR) Act applies and any other decision or conduct of a Commonwealth officer (even though the decision or conduct is not reviewable under the AD(JR) Act itself). ‘Review’ is defined in section 9(2) as including all the traditional remedies for obtaining judicial review, other than habeas corpus. The jurisdiction of the Territory courts is unaffected by section 9. 491. There are differences between the extent to which jurisdiction is conferred on the Federal Court under the AD(JR) Act and the extent to which the jurisdiction of the State courts is excluded by section 9. The jurisdiction removed from the State courts under section 9(1)(a) is jurisdiction to review a ‘decision to which this section applies’. The expression ‘decision to which this section applies’ is defined in section 9(2) to mean a decision to which the AD(JR) Act applies or a decision that is included in any of the classes of decisions set out in Schedule 1 to the AD(JR) Act (other than paragraphs (m) and (n)). Thus, Schedule 1 decisions may be reviewed neither by the State courts nor by the Federal Court under the AD(JR) Act, although they may be reviewed by the Federal Court under section 39B of the Judiciary Act. Furthermore, section 9(1)(d) removes from State courts jurisdiction to review decisions made by an officer of the Commonwealth, including a decision in the exercise of judicial power. As the AD(JR) Act presently stands, there is no grant of power to the Federal Court under that Act corresponding with this exclusion. One purpose of this aspect of the exclusion made by section 9 is to ensure that actions of the federal judiciary, including members of the Federal Court itself, are not subject to review in State courts (see second reading speech of Mr Ellicott in introducing the AD(JR) Bill: House of Representatives, Hansard, 28 April 1977, p. 1396). 492. The major issue that arises concerning section 9 is whether it has proved adequate in ousting the jurisdiction of the State courts or whether it contains defects that need to be addressed. Some decisions of the State courts have taken a narrow view of the section. Certain of the decisions are dealt with in the discussion below of the case law. 493. A further issue that arises concerning the section is, in view of the apparent desire for Commonwealth administrative action to be reviewable in one court, namely the Federal Court (apart, of course, from the High Court’s original jurisdiction under the Constitution),

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whether the section should be extended to oust the jurisdiction of Territory Supreme Courts in relation to Commonwealth administrative action. This issue arises particularly in relation to the Supreme Court of the Northern Territory which is now set up under legislation of the self-governing Northern Territory and the majority of the judges of which do not also hold Federal Court commissions. The government may wish to give attention to this matter, but the Council makes no recommendation about it in this report.

Case Law 494. In Nomad Industries of Australia Pty Ltd v Commissioner of taxation [1983] 2 NSWLR 56 the plaintiff sought a declaration in the Supreme Court of New South Wales that an item imported into Australia by it had a certain sales tax classification. The Commissioner of Taxation moved to have the proceedings dismissed on the grounds that the subject of the proceedings was a decision within paragraph (e) of Schedule 1 to the AD(JR) Act and, by virtue of the operation of section 9, the Supreme Court did not have jurisdiction. The effect of the Commissioner’s motion, if successful, would have been that neither the Federal Court under the AD(JR) Act nor the State court would have had jurisdiction. Justice Rogers found that section 9(1)(a) did not apply because no ‘decision’ of the Commissioner was involved; the Commissioner’s view as to the existence or otherwise of a liability imposed by the sales tax legislation was not a decision within section 9:

Contentions or opposing view points may proffer a dispute for resolution by the courts without a need for a ‘decision’ being made by either party. It is sufficient for the contestants to embrace opposite views of the proper construction or application of a statutory provision. (p. 63)

495. His Honour also held that section 9(1)(d) did not apply. He said that although it was difficult to say what the outer reaches of the expression ‘conduct . . . engaged in by an officer of the Commonwealth’ were, the declarations sought in the case as to the application of a statutory provision did not constitute a ‘review’ of such conduct. 496. Similar reasoning to that in Nomad was applied in Delmore Pty Ltd v Commonwealth (1985) 60 ALR 613. In that case Justice McLelland in the Equity Division of the New South Wales Supreme Court distinguished between a review of a decision on the one hand and a determination of the correctness or otherwise of a question which has been the subject of a decision, on the other. In the first class of case, what was under examination was the act of the decision maker. In the second class of case, what was under examination was a question which may be independent of any act of a decision maker. The two classes of case were not mutually exclusive: they were intersecting classes. However, no case which did not fall within the first class was caught by the terms of section 9 of the AD(JR) Act. Thus, if the invalidity or impropriety of the act of the decision maker, as such, was not a necessary element of the claim for relief, section 9 did not operate to exclude the jurisdiction of a State court. In the case before him, Justice McLelland held that the Supreme Court had jurisdiction to determine the plaintiff’s claim for a declaration of entitlement to hospital benefits. The validity of the acts of the decision maker in question was irrelevant to the substantive issue in the proceedings, namely, whether the Commonwealth was liable to make payments to the plaintiff under the Health Insurance Act. That issue was to be resolved simply by applying the terms of that Act to the facts as found, and not by any examination of any acts of the decision maker. 497. Rosenthal v Phillips (1984) 60 ALR 260 involved proceedings in the Supreme Court of Victoria which followed the seizure of items belonging to the plaintiff by the federal police

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acting under a warrant issued under the Crimes Act. In the proceedings the plaintiff sought damages for trespass and declarations that he was entitled to possession of the items. The defendants sought to have the action struck out on the ground that the Supreme Court had no jurisdiction to grant the relief sought because of the provisions of section 9 of the AD(JR) Act. The critical question before the Supreme Court was whether the plaintiff sought relief which amounted to a ‘review’ of conduct engaged in by officers of the Commonwealth and which section 9 prevented the supreme Court from granting. 498. The Court held that section 9 did not exclude the jurisdiction of a State court to entertain the plaintiff’s claim in trespass despite success in that regard being dependent on a finding about the illegality of the conduct of the defendants which was in turn dependent on the validity of the search warrants. Accordingly, the plaintiff’s claims for damages and declarations as to his right to possession of the items were within the jurisdiction of the Supreme Court. However, the plaintiff’s associated claim for a declaration that the search warrants were not authorised by the Crimes Act was directly within the prohibition in section 9 and ought to be struck out. 499. At the heart of the decision in Rosenthal was a constitutional argument. The argument is that the only source of power to enact section 9 is section 77(ii) of the Constitution, but the Parliament ‘cannot take away the jurisdiction of the State courts in any matter enumerated in sec. 76 [of the Constitution], until it has first conferred that jurisdiction upon a federal court’ (Quick and Garran, The Annotated Constitution of the Australian Commonwealth, p. 803). Thus, section 9 would be beyond constitutional power if it were to remove from the State courts a jurisdiction which belonged to them and if that jurisdiction were not to be conferred upon a federal court. 500. In Clamback and Hennessy Pty Ltd v Commonwealth (1985) 62 ALR 233 the Supreme Court of New South Wales avoided the exclusive operation of section 9 by what one commentator has described as ‘a tortured piece of statutory construction’: Aitken, ‘The exclusion of the operation of section 9 of the Administrative Decisions (Judicial Review) Act’ [1986] Australian Current Law 36039. At issue in the case was a proposal of the Commonwealth to build a fence at Bankstown Airport. The plaintiff had obtained an ex parte injunction in the Supreme Court to restrain the Commonwealth from building the fence. In proceedings to continue the injunction the Commonwealth submitted that under section 9(1)(d) of the AD(JR) Act the Supreme Court had no jurisdiction to deal with the matter. 501. The Supreme Court held that the Commonwealth’s submission failed. Justice Needham noted that section 9(1)(d) departed from the uniform use in sections 9(1)(a), (b) and (c) and 3(2) of the word ‘make’ or ‘made’ in connection with the ‘decision’, and substituted the word ‘given’. He said that the use of the phrase ‘any . . . decision given’ involved the concept of a person or tribunal deciding between opposing contentions. While there was no doubt that the Assistant Regional Manager (Airports) had made a decision to erect a fence, he had not ‘given’ a decision. 502. In view of the decision in this case it is unclear why the plaintiff subsequently brought an action in the Federal Court under the AD(JR) Act (Clamback v Coombes (1987) 12 ALD 150). In those proceedings the Federal Court held that the decision to build the fence was a decision made under the Commonwealth’s general executive power and hence was not within the ambit of the AD(JR) Act.

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503. In Woss v Jacobsen (1985) 60 ALR 313 warrants for the apprehension of Woss and others on a charge of conspiracy to defraud the Commonwealth were issued by a Queensland magistrate. Since Woss resided in Western Australia, the warrant for his arrest was endorsed under the Service and Execution of Process Act 1901 for execution in that State. He was brought before a Western Australian magistrate who ordered his extradition to Queensland under the Act. Woss applied to the Federal Court under the AD(JR) Act for a review of the magistrate’s decision. 504. The primary judge declined to exercise jurisdiction under the AD(JR) Act, taking the view that section 19 of the Service and Execution of Process Act made adequate provision by which Woss might seek a review by the Supreme Court of Western Australia. In taking that view, he considered that section 9 of the AD(JR) Act did not operate to deprive the Supreme Court of Western Australia of jurisdiction. 505. In the appeal to the full court of the Federal Court, the full court held that section 9 precludes State courts from only those reviews which are similar in nature to those described in section 9(2) and that they are not similar merely because the order made by the State court at the end of the review may be of the same effect as an order made at the end of a review of the kind set out in section 9(2). Thus, a review by way of a hearing de novo was not withdrawn from the courts of the States by section 9. On the other hand, the full court pointed out that the sort of review by a State court or other body which might lead to the Federal Court declining, under section 10, to exercise jurisdiction was broader than the sort of review removed from the State courts by section 9.

Conclusion 506. While it is appropriate, in the Council’s view, that the AD(JR) Act should confer on the Federal Court a review jurisdiction in relation to Commonwealth administrative action that is exclusive of the jurisdiction of State courts, the Council is further of the view that the jurisdictional arrangements should not operate in such a way as to prejudice potential applicants for review through the creation of jurisdictional vacuums. There ought to be no disputes in which neither a State court (by virtue of the exclusion in section 9) nor the Federal Court (by virtue of exclusions in the AD(JR) Act) has jurisdiction. The mischief of the jurisdictional vacuum was the mischief identified by Justice Rogers in the Nomad Case. That mischief has now been eliminated by the enactment of section 39B of the Judiciary Act. The recommendations made in this report for the repeal of most of the paragraphs of Schedule 1 to the AD(JR) Act sustain that approach. If those recommendations are implemented, the Federal Court’s jurisdiction under the AD(JR) Act will be broadened. 507. Notwithstanding the expansion of the ambit of the AD(JR) Act recommended in this report, it is likely that from time to time actions which challenge Commonwealth administrative action will be maintained in State Supreme Courts. The Council considers, however, that the breadth of section 9 will ensure that those actions are few. In these circumstances, the Council sees no need for steps to be taken to deal with them.

Effect of Cross-Vesting Scheme 508. The national scheme for the cross-vesting of jurisdiction between Federal, State and Territory courts which has been put in place under the Jurisdiction of Courts (Cross-Vesting) Act 1987 and parallel legislation in each of the States and the Northern Territory provides a procedure which, amongst other things, enables a State Supreme Court to transfer certain

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proceedings to the Federal Court if the Federal Court would be the more appropriate forum for their determination. Except in exceptional cases, the scheme requires the transferral to the Federal Court of special federal matters, which include matters arising under the AD(JR) Act or within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act. (The cross-vesting scheme has been analysed in a series of articles in the Australian Law Journal: (1988) 62 ALJ 328; (1988) 62 ALJ 589; (1988) 62 ALJ 698; (1988) 62 ALJ 1016). 509. The question that presently arises is whether, in the light of the cross-vesting legislation, section 9 of the AD(JR) Act is any longer necessary. Several submissions made to the Council suggested that it was at least questionable whether section 9 was any longer required. The Solicitor-General for South Australia, Mr John Doyle, QC, said:

It seems to me that Commonwealth policy would probably be sufficiently achieved by reliance upon a provision which ensured that relevant matters were referred from State Courts to the Federal Court rather than a provision which denied jurisdiction to a State Court.

510. Notwithstanding these views, the Council has concluded that section 9 should remain on foot. It was mentioned above that one of the purposes of the section was to ensure that actions of the federal judiciary were not subject to review in the State courts. Matters arising in proceedings of this kind would appear to be beyond the scope of the transfer requirements of section 6 of the Cross-vesting Act relating to ‘special federal matters’.

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CHAPTER 13

IMPACT ON ADMINISTRATION 511. The recommendations made in this report do not extend in any way the areas of judicial review presently available in the Commonwealth. Indeed, the recommendations as a whole have the effect of reducing the present scope of judicial review because recommendation 14 (exclusion from the AD(JR) Act of decisions of magistrates in committal proceedings) would remove from the AD(JR) Act a judicial review jurisdiction that is not available under the prerogative writs. 512. In the Commonwealth the jurisdiction of the courts to review administrative action cannot be removed short of a constitutional amendment. That jurisdiction is appropriate in principle. It constitutes one of the few guarantees given to the Australian people under the Constitution. The need for that jurisdiction to be preserved and sustained has become more apparent as the reach of government has increased during this century. It is now clearly recognised that the business of the executive government has become so complicated and so extensive that parliamentary review through the mechanism of ministerial responsibility is an inadequate means of supervising much of the administrative decision making. Neither the Parliament nor an individual Minister has time or opportunity to supervise effectively all decisions. Yet particular decisions may be of great importance to individuals in the community. 513. Astute senior administrators have come to realise that scope for external scrutiny of administrative action in the courts brings certain practical benefits. The potential for decisions to be challenged on a judicial review application provides an impetus for decisions within his or her area of responsibility to be made in accordance with proper procedures. The resultant improved decision making is not only of general benefit to the government and the community but is also of personal benefit to senior administrators in the discharge of their management responsibilities. 514. Of course, administration would bog down if judicial review were to intrude inordinately into the process of administration. However, the statistics show that this has not happened. Although one of the prime purposes of the AD(JR) Act was to make judicial review more accessible, the number of applications under the Act in recent years has remained virtually static (see chapter 1). The courts consistently take the view, which accords with the separation of powers under the Constitution, that it is for the person entrusted with the decision making power to make the decision, not the courts. The exploration of this principle, which has taken place under the auspices of the AD(JR) Act in recent years, has made an important contribution to a fuller understanding of the Australian constitutional system. The instances where the courts have found it necessary to cross the dividing line into the realm of the decision maker have been so rare as to excite considerable comment. Provided that there has been no illegality, procedural impropriety or abuse of power, the courts do not interfere. 515. This report, if implemented, will have the effect of removing some of the present legislative bars on review under the AD(JR) Act. However, those legislative bars can no longer sensibly be maintained in view of the jurisdiction conferred on the Federal Court

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under section 39B of the Judiciary Act and, so far as statutory decisions of the Governor-General are concerned, in view of developments in judicial review at common law. 516. The removal of legislative restrictions on review under the AD(JR) Act means that, for those administrators whose areas of responsibility include the making of decisions which are presently covered by those restrictions, a degree of certainty about the application of the Act is removed. However, other recommendations in the report build in safeguards. Recommendation 15 proposes that the AD(JR) Act be amended by provisions along the lines of the Administrative Decisions (Judicial Review) Amendment Bill 1987 to extend the powers of the Federal Court to refuse to grant applications for review especially in cases where the applicant has an alternative remedy available. Recommendation 16 proposes that the Act be amended by the addition of a provision requiring the Federal Court not to grant an application for review if it is satisfied that the decision or conduct concerned is not justiciable. 517. The extent of the requirement under the AD(JR) Act for administrators to provide statements of reasons for their decisions upon request has the potential for greater impact on administration than the recommendations made in this report. That issue is not dealt with in this report but will be addressed in the Council’s next report on the AD(JR) Act.

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APPENDIX 1

CONSULTATIONS The following is a list of individuals, agencies and organisations who commented on the Council’s draft report ‘Review of the Administrative Decisions (Judicial Review) Act: Redefining the Act’s Ambit’ which was circulated for comment as a discussion document in July 1988. Mr E.J. Cooper Justice Pincus, Federal Court Justice Kirby, Acting Chief Justice of NSW Mr R. Todd, Deputy President, AAT Professor J. Crawford, Sydney University Corporate Affairs Department, Western Australia Professor J. Goldring, Australian Law Reform Commission Mr J. Doyle, QC,. Solicitor-General, South Australia Freehill, Hollingdale and Page Corporate Affairs, Victoria Justice Wilcox, Federal Court Australian Electoral Commission Mr K. Mason, QC, Solicitor-General, New South Wales Mr N. Moshinsky, QC Legal Aid Commission, Western Australia Mr M.B. Smith Mr M. Starr, Companies and Securities Branch, Attorney-General’s Department (Cth) National Companies and Securities Commission Director of Public Prosecutions Mr R. Skiller Mr D. Thompson BHP Australian National Rails Justice Nicholson, Chief Justice, Family Court of Australia Institute of Patent Attorneys of Australia Legal Aid Commission of NSW Federal Airports Corporation Health Insurance Commission Victorian Bar Dr A. Ardagh, Riverina-Murray Institute of Higher Education Minister for Community Services and Health Australian Customs Service Australian National University Chief Justice Miles, ACT Supreme Court Dr G. Griffith, QC, Solicitor-General for the Commonwealth Federation of Australian Commercial Television Stations Aboriginal Legal Rights Movement Austrade Patents Office Department of Arts, Sport, the Environment, Tourism and Territories

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Australian Broadcasting Tribunal Law Society of the ACT Department of Administrative Services Macphillamy Cummins & Gibson Mr V. Gleeson, Canberra College of Advanced Education Department of Defence Department of Immigration Commissioner of Taxation National Employers’ Group Office of the Solicitor-General of Tasmania Australian Social Welfare Union Public Interest Advocacy Centre Department of Employment, Education and Training Commonwealth Banks Attorney-General’s Department Reserve Bank of Australia Department of Primary Industries and Energy Department of Veterans’ Affairs; Taxation Institute of Australia Department of the Prime Minister and Cabinet Department of Social Security Law Society of South Australia Law Council of Australia Law Society of New South Wales Department of Industrial Relations Justice Maddern, President, Conciliation and Arbitration Commission Sir Anthony Mason, Chief Justice, High Court of Australia

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APPENDIX 2

SCHEDULES TO THE AD(JR) ACT

Schedule 1 Classes of decisions that are not decisions to which this Act applies (a) decisions under the Conciliation and Arbitration Act 1904 or the Industrial Relations Act

1988; (c) decisions under the Coal Industry Act 1946, other than decisions of the Joint Coal

Board; (d) decisions under any of the following Acts:

Australian Security Intelligence Organization Act 1956 Australian Security Intelligence Organization Act 1979 Inspector-General of Intelligence and Security Act 1986 Telecommunications (Interception) Act 1979 Telephonic Communications (Interception) Act 1960;

(da) decisions under section 1 3 of the Migration Act 1958: (e) decisions making, or forming part of the process of making, or leading up to the

making of, assessments or calculations of tax or duty, or decisions disallowing objections to assessments or calculations of tax or duty, or decisions amending, or refusing to amend, assessments or calculations of tax or duty, under any of the following Acts:

Australian Capital Territory Taxation (Administration) Act 1969 Debits Tax Administration Act 1982 Coal Excise Act 1949 Customs Act 1901 Customs Tariff Act 1987 Estate Duty Assessment Act 1914 Excise Act 1901 Fringe Benefits Tax Assessment Act 1986 Gift Duty Assessment Act 1941 Income Tax Assessment Act 1936 Pay-roll Tax Assessment Act 1941 Pay-roll Tax (Territories) Assessment Act 1971 Petroleum Resource Rent Tax Assessment Act 1987 Acts providing for the assessment of sales tax Taxation (Unpaid Company Tax) Assessment Act 1982 Trust Recoupment Tax Assessment Act 1985 Wool Tax (Administration) Act 1964;

(g) decisions under Part IV of the Taxation Administration Act 1953; (h) decisions under the Foreign Takeovers Act 1975: (j) decisions, or decisions included in a class of decisions, under the Banking (Foreign

Exchange) Regulations in respect of which the Treasurer has certified, by instrument in writing, that the decision or any decision included in the class, as the case may be, is a decision giving effect to the foreign investment policy of the Commonwealth Government;

(l) decisions of the National Labour Consultative Council;

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(m) decisions of the National Companies and Securities Commission made in the performance of a function, or the exercise of a power, conferred, or expressed to be conferred, upon it by any State Act or law of the Northern Territory;

(n) decisions of the Ministerial Council for Companies and Securities established by Part VII of the Agreement between the Commonwealth and the States as copy of which is set out in the Schedule to the National Companies and Securities Commission Act 1979:

(o) decisions under the Defence Force Discipline Act 1982; (p) decisions under section 42 of the Customs Act 1901 to require and take securities in

respect of duty that may be payable under the Customs Tariff (Anti-Dumping) Act 1975;

(q) decisions under sub-section 25(1) or Part IIIA of the Commonwealth Electoral Act 1918; (r) decisions under the Extradition Act 1988.

Schedule 2 Classes of decisions that are not decisions to which section 13 applies (a) decisions in connection with, or made in the course of, redress of grievances, or

redress of wrongs, with respect to members of the Defence Force; (b) decisions in connection with personnel management (including recruitment, training,

promotion and organization) with respect to the Defence Force including decisions relating to particular persons;

(c) decisions under any of the following Acts: Consular Privileges and Immunities Act 1972 Diplomatic Privileges and Immunities Act 1967 International Organizations (Privileges and Immunities) Act 1963;

(d) decisions under the Migration Act 1958, being - (i) decisions under section 6, other than -

(A) a decision relating to a person who, at the time of the decision, was a person in respect of whom there was in force a visa under that Act; or

(B) a decision relating to a person who, having entered Australia within the meaning of that Act, was in Australia at the time of the decision;

(ii) decisions in connection with the issue or cancellation of visas; (iii) decisions under section 8 relating to whether a person has diplomatic or consular

status; or (iv) decisions relating to a person who, having entered Australia, within the meaning of

that Act, as a diplomatic or consular representative of another country, a member of the staff of such a representative or the spouse or a dependent relative of such a representative, was in Australia at the time of the decision;

(e) decisions relating to the administration of criminal justice, and, in particular - (i) decisions in connection with the investigation or prosecution of persons for any

offences against a law of the Commonwealth or of a Territory; (ii) decisions in connection with the appointment of investigators or inspectors for the

purposes of such investigations; (iii) decisions in connection with the issue of search warrants under a law of the

Commonwealth or of a Territory; (iv) decisions in connection with the issue of Writs of Assistance, or Customs Warrants,

under the Customs Act 1901; and (v) decisions under a law of the Commonwealth or of a Territory requiring the

production of documents, the giving of information or the summoning of persons as witnesses:

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(f) decisions in connection with the institution or conduct of proceedings in a civil court,

including decisions that relate to, or may result in, the bringing of such proceedings for the recovery of pecuniary penalties arising from contravention of enactments, and, in particular -

(i) decisions in connection with the investigation of persons for such contraventions; (ii) decisions in connection with the appointment of investigators or inspectors for the

purposes of such investigations; (iii) decisions in connection with the issue of search warrants, Writs of Assistance or

Customs Warrants under enactments; and (iv) decisions under enactments requiring the production of documents, the giving of

information or the summoning of persons as witnesses; (g) decisions of the Minister for Finance to issue sums out of the Consolidated Revenue

Fund under an Act to appropriate moneys out of that Fund for the service of, or for expenditure in respect of, any year;

(h) decisions under section 32 or 36A of the Audit Act 1901; (i) decisions of the Commonwealth Grants Commission relating to the allocation of

funds; (j) decisions of any of the following Tribunals;

Academic Salaries Tribunal; Defence Force Remuneration Tribunal; Federal Police Arbitral Tribunal; Remuneration Tribunal;

(k) decisions of any of the following authorities in respect of their commercial activities; Australian Dairy Corporation Australian Honey Board Australian Industry Development Corporation Australian Meat and Live-stock Corporation Australian National Airlines Commission Australian National Railways Commission Australian Shipping Commission Australian Wheat Board Australian Wool Corporation Canberra Commercial Development Authority Christmas Island Phosphate Commission Commonwealth Bank of Australia Commonwealth Banking Corporation Commonwealth Development Bank of Australia Commonwealth Savings Bank of Australia Commonwealth Serum Laboratories Commission Health Insurance Commission Housing Loans Insurance Corporation;

(l) decisions of the Reserve Bank in connection with its banking operations (including individual open market operations and foreign exchange dealings);

(m) decisions in connection with the enforcement of judgments or orders for the recovery of moneys by the Commonwealth or by an officer of the Commonwealth;

(o) decisions of the National Director of the Commonwealth Employment Service made on behalf of that Service to refer, or not to refer, particular clients to particular employers;

(p) decisions under the Civil Aviation Act 1988 that -

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(i) relate to aircraft design, the construction or maintenance of aircraft or the safe

operation of aircraft or otherwise relate to aviation safety; and (ii) arise out of findings on material questions of fact based on evidence, or other

material- (A) that was supplied in confidence; or (B) the publication of which would reveal information that is a trade secret;

(q) decisions in connection with personnel management (including recruitment, training, promotion, and organization) with respect to the Australian Public Service or any other Service established by an enactment or the staff of a Commonwealth authority, other than a decision relating to, and having regard to the particular characteristics of, or other circumstances relating to, a particular person;

(r) decisions relating to promotions, transfers, temporary performance of duties, or appeals against promotions or selections for temporary performance of duties, of or by individual officers of the Australian Public Service;

(s) decisions relating to transfers or promotions under section 53A of the Public Service Act 1922;

(t) decisions relating to- (i) the making of appointments in the Australian Public Service or any other Service

established by an enactment or to the staff of a Commonwealth authority; (ii) the engagement of persons as employees under the Public Service Act 1922 or under

any other enactment that establishes a Service or by a Commonwealth authority; or (iii) the making of appointments under an enactment or to an office established by, or

under, an enactment; (u) decisions in connection with the prevention or settlement of industrial disputes, or

otherwise relating to industrial matters, in respect of the Australian Public Service or any other Service established by an enactment or the staff of a Commonwealth authority;

(w) decisions relating to the making or terminating of appointments of Secretaries under the Public Service Act 1922;

(y) decisions relating to- (i) engaging, or terminating engagements of, consultants; or (ii) employing, or terminating the employment of, staff, under the Members of Parliament

(Staff) Act 1984.

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APPENDIX 3

ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) AMENDMENT BILL 1987

1987

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

THE SENATE (Presented pursuant to leave granted and read a first time, 15 September 1987)

(Minister for Transport and Communications, Senator Evans)

A BILL

for

An Act to amend the Administrative Decisions (Judicial Review) Act 1977, and for related purposes

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows: Short title etc. 1. (1) This Act maybe cited as the Administrative Decisions (Judicial Review)

Amendment Act 1987. (2) The Administrative Decisions (Judicial Review) Act 19771 is in this Act referred to

as the Principal Act. Rights conferred by this Act to be additional to other rights 2. Section 10 of the Principal Act is amended:

(a) by inserting in subsection (2) “and without limiting the generality of section 10a” after “subsection (1)”;

(b) by omitting from paragraph (2) (a) “and”; (c) by omitting from subparagraph (2)(b)(ii) “other than this Act” and substituting, “other

than this Act or section 39a of the Judiciary Act 1903,”: (d) by omitting from subparagraph (2)(b)(ii) “by another court, or by another tribunal,

authority or person” and substituting “or by another court”; (e) by adding at the end of subsection (2) the following paragraphs:

“(c) where (i) an application under section 5, 6 or 7 is made to the Court in respect of a

decision, in respect of conduct engaged in for the purpose of making a decisions or in respect of a failure to make a decision; and

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(ii) provision is made by any law other than this Act under which the applicant is entitled to seek a review by another tribunal, authority or person (not being a court) of that decision, conduct or failure;

the Court shall refuse to grant the application unless the applicant satisfies the Court that the interests of justice require that it should not refuse to grant the application; and

(d) where (i) an application under section 5, 6 or 7 is made to the Court in respect of a

decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, being a decision, conduct or failure by a tribunal, authority or person in the course of proceedings before the tribunal, authority or person;

(ii) review of the decision, conduct or failure is available by reason of provision made by any law (including this Act) under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person of any decision of the first-mentioned tribunal, authority or person on the conclusion of the proceedings referred to in subparagraph (i); and

(iii) the Court considers that it is desirable to refuse to grant the application in order to avoid interference with the due and orderly conduct of the proceedings referred to in subparagraph (i) or for the reason that, in all the circumstances, the balance of convenience (including the interest of the applicant, another party or any other person, the public interest and the consequences of delay in those proceedings) so requires:

the Court shall refuse to grant the application unless the applicant satisfies the Court that the interests of justice require that it should not refuse to grant the application."; and

(f) by inserting after subsection (2) the following subsections: “(2a) The power of the Grant or another court under subsection (2) to refuse to grant an application may be exercised at any stage in the course of the proceedings before the Court or the other court in relation to the application, but the Court or the other court shall endeavour to ensure that any exercise of the power occurs at the earliest appropriate stage in the course of the proceedings. “(2B) For the purposes of subsection 24(1A) of the Federal Court of Australia Act 1976, but without affecting the meaning of that sub-section apart from this sub-section, an order of the Court under this section refusing to grant an application shall be taken to be an interlocutory judgment”.

3. The Principal Act is amended by inserting after section 10 the following section: Power of the Court to refuse applications etc, in certain circumstances “10a (1) The Court may, in its discretion:

(a) refuse to grant an application under section 5, 6 or 7 for the reason that the Court considers it would be inappropriate to grant the application; or

(b) stay proceedings in relation to an application under section 5, 6 or 7 at any time in the course of the proceedings for the reason that the Court considers it would be inappropriate for the proceedings to be continued at that time.

“(2) The power of the Court under paragraph (1) (a) to refuse to grant an application may be exercised at any stage in the course of the proceedings before the Court in relation to the application, but the Court shall endeavour to ensure that any exercise of the power occurs at the earliest appropriate stage in the course of the proceedings.”

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Application 4. The amendments made by this Act apply in relation to applications under section 5, 6 or 7 of the Administrative Decisions (Judicial Review) Act 1977 lodged after the commencement of this Act. Note: 1 No. 59, 1977, as amended. For previous amendments, see No. 66, 1978; No. 111, 1980; Nos. 111, 115. 122, 137, 140 and 153. 1982: Nos. 62 and 144. 1983: Nos. 76, 159 and 164, 1984: Nos. 4, 47 and 65. 1985; Nos. 41. 76, 102, 112 and 153: 1986: and Nos. 62 and 76, 1987