The Administrative Review Council Report on Judicial Review

Renaissance of the ADJR Act?

2013 Public Law Weekend Administrative Law Conference Australian National University
15 November 2013

RTF version

The Hon. Justice Melissa Perry^[1]

Introduction

The architects of modern Australian administrative law in the 1970’s created a bold new structure. That structure rested on foundations essential for a society governed by the rule of law. When that structure was implemented in the late 1970’s and early 1980’s, the Administrative Decisions (Judicial Review) Act 1977 (Cth) was a central pillar.  

That bold new structure was itself borne of a period of great change following the end of the Second World War as to the nature and extent of government. In turn, it included mechanisms for review of the system itself, establishing the Administrative Review Council (‘the ARC’) which is an independent statutory body charged with the supervisory function of keeping the system under review.^[2] That foresight proved wise, with many of the recommendations made by the ARC since its inception in response to significant changes in the environment in which administrative law is applied, having been implemented by successive governments. The sheer scale and complexity of regulation today in the digital era where the bulk of administrative decisions are now made by or with the assistance of computers, including through on-line transactions, serves to illustrate the extent of change. Centrelink, for example, in the last financial year processed over 2.9m new claims, and hosted 74.5m digital self-managed transactions. ^[3] In addition, Centrelink payments were subject to over 135,000 internal review applications with in excess of 12,000 proceeding to the Social Security Appeals Tribunal and nearly 2,000 to the Administrative Appeals Tribunal.^[4]

Other significant aspects of change include the emergence of jurisdictional error as the centre-piece of s 75(v) jurisprudence. This, we now know, provides a constitutionally irreducible minimum standard of judicial review and spelt the demise of the privative clause. That jurisprudence applies equally to the jurisdiction conferred on the Federal Court by s 39B of the Judiciary Act 1903 (Cth) which is in the same terms as s 75(v) of the Constitution. This and other causes of increasing fragmentation in Australia’s judicial review landscape in part prompted the ARC to conduct an assessment of the current system in an effort to improve the accessibility and efficiency of judicial review in Australia.^[5]

The question which this paper raises is what augers for the future of the ADJR Act? Is it in a period of stagnation; should it be permitted a quiet retirement; or should we facilitate its renaissance? Alternatively, is what we really need better described as an administrative law ‘revolution’?^[6]

These were the questions that pre-occupied the minds of the members of the ARC in preparing the Council’s comprehensive report on Judicial Review in Australia published late last year. As the ARC explained in its report, increasing divergence between the two avenues of judicial review available in the Federal Court – s 39B and the ADJR Act - is of growing concern.^[7]  The tension between the two mechanisms has, in effect, resulted in two increasingly divergent systems, each with a distinct ambit and accompanying jurisprudence. This duality was described by the ARC as ‘undesirable’, with the Council (subject to a separate view) advocating for a renewed commitment to, and revitalisation of, the ADJR Act in order to restore it to a place of central prominence in Australia’s federal landscape of judicial review. The Council’s view is that the administrative law system’s departure from the path initially envisaged for it in the 1970’s introduced unnecessary complexity into a federal judicial review system once lauded for its simplicity and ease of access.

Foundations of the judicial review system

In considering the future of the federal judicial review framework, it is useful to identify the principal concerns underlying the initial reforms themselves, and the values and concepts that they embodied. I begin therefore with a brief detour into the genesis of modern administrative law in Australia.

Our federal judicial review system is a product of its constitutional context. Prior to the reforms of the 1970’s, an individual seeking federal judicial review was required to seek such review in the High Court. Endowed with original jurisdiction under s 75(v) of the Constitution to issue prerogative writs against officers of the Commonwealth, it fell to the High Court to entertain federal judicial review applications ‘in all matters in which a writ of Mandamus or prohibition or an injunction is sought’. The fact that this process failed to make efficient use of the High Court’s limited resources was aggravated by applicants who too often stumbled their way through the legal darkness cast by the opaque language of s 75(v).  Applicants had no identified grounds for review to guide them through remedies beset with technicality and no right to seek reasons for an administrative decision which might cast light on its legality.^[8] Such a system was ill-equipped to deal with the massive expansion in the post-War period of governmental regulation and statutory discretions affecting the daily lives of Australians.

It was against this backdrop that the Kerr Committee imagined the bold new structure for administrative law to which I have referred. The aim was to design a better alternative to judicial review at common law built on the values of lawfulness, impartiality, transparency and accountability.^[9]

As Professors Creyke and McMillan explained on the twenty-fifth anniversary of the Kerr Report, the backdrop for the implementation of Australia’s administrative law framework was that:

‘The dramatic post-war expansion of Australian government had created new pressures that demanded a fresh response. The growth of discretionary power had also altered the balance between citizen and government in a way that threatened the ideals of accountability and administrative justice. Innovation was required.’^[10]

When it arrived, Australia’s ‘public law revolution’ was one that occurred both quietly and relatively quickly. On the heels of the Kerr Committee’s report published in 1971, federal administrative law reform proceeded with a now almost unrecognisable degree of bipartisanship that was sustained between the successive Whitlam and Fraser governments. The underlying theme of Australia’s Brave New (administrative law) World was to establish a comprehensive, structured and coherent system that could be readily navigated and accessed by individuals. The establishment of the Administrative Appeals Tribunal introduced a quick and cost effective merits review system that was designed to operate in tandem with the judicial review process established by the ADJR Act.^[11] In addition, the founding of the Federal Court of Australia in 1976 promised improved accessibility to review by offering a streamlined one-stop-shop, factors which quickly saw it become the primary forum for judicial review applications in Australia with the ADJR Act utilised as the principal vehicle for commencement.^[12]

At its heart, the system sought to reduce the complexities previously associated with seeking judicial review. The ADJR Act has been described as the ‘key element of the administrative review mechanisms developed in the 1970’s’ and was intended to overcome many of the technical issues associated with obtaining what we now describe to be constitutional writs under s 75(v).^[13]

The strengths of the ADJR Act identified by the Commission included the fact that it:^[14]

• established a clear and self-contained procedure for initiating judicial review;
• set criteria for standing to institute proceedings under the Act;
• defined the range of decisions to which the scheme applies and those which are excluded;
• listed the grounds upon which administrative decisions can be set aside, providing guidance to litigators and decision-makers as to the legal requirements for a lawful decision; and
• made available flexible remedies all of which were available on establishing a ground of review.

In addition, pursuant to s 13, the Act introduced the right to obtain written reasons for a decision upon request in order to provide applicants with access to information that could evidence a relevant ground for judicial review.

The procedural benefits of the Act as initially designed deserved the wide acknowledgment that it received for having enhanced the availability and accessibility of federal judicial review in Australia.

An eclipse of the ADJR Act?

Fast forward thirty-years to the present day. While the essential features of the ADJR Act have remained intact, it is clear that the ADJR Act occupies a very different position within the Australian federal administrative law landscape. Notwithstanding its prominence in the early days when it quickly become the primary vehicle for federal judicial review applications, its procedural influence has somewhat faltered in more recent times.

The primary challenge identified by the ARC for the federal judicial review system is the practical emergence of two distinct but overlapping systems of federal judicial review.^[15] As earlier explained, ‘judicial review’ by the constitutional writs may be sought directly in the High Court under s 75(v) of the Constitution or in the Federal Court pursuant to its statutory ‘doppelganger’ under s 39B of the Judiciary Act 1903 (Cth). On the other hand, ‘statutory judicial review’ under the ADJR Act is available in the Federal Court and the Federal Circuit Court.^[16]

Since the enactment of s 39B of the Judiciary Act in 1983 to stem the flow of applications instituted directly in the High Court under s75(v), there has been a growing trend in judicial review applications under s 39B, either jointly or in lieu of an ADJR application. In fact, whereas the ADJR Act was once the predominant mechanism for judicial review applications, as noted in the ARC’s report, nearly half of all applications for judicial review that are now commenced in the Federal Court are being brought under s 39B, with the somewhat ironic result that ‘a jurisdiction that was designed to supplement the ADJR Act is increasingly overtaking it in importance’.^[17]

It is true that to some extent, this is a product of the scope of judicial review under the ADJR Act which, unlike s 39B, is limited to decisions which are ‘final and operative’,^[18] ‘administrative’ and made ‘under an enactment’.^[19] Furthermore, certain categories of decisions made under statute are subject to judicial review under separate schemes, notably tax, and fall outside the ambit of the ADJR Act. The most significant area, however, now excluded from the ADJR Act is decisions made under the Migration Act 1958 (Cth), the consequence of which has been that modern jurisprudence on s 75(v) (and therefore s 39B) has been driven and shaped predominantly by decisions in the migration context.

The deeper concerns raised by the Council from the marginalisation of the ADJR Act related to the risk that this trend might pose for the accessibility of judicial review in the long term.^[20] The Council explained that, in its view:

‘…the ADJR Act has played a central role in improving the quality of Australian Government decision making since 1980 and elevating respect for the rule of law in government. An important body of jurisprudence that lies at the core of Australian administrative law and that is generally understood within government has been developed under the ADJR Act. The relative ease with which proceedings can be commenced under the Act means also that judicial review is more accessible to the Australian community and that proceedings can be commenced without professional legal assistance.’^[21]

The ARC’s recommendations: A renaissance for the ADJR Act?

Following the ARC’s comprehensive examination of the federal judicial review framework, the Council’s central recommendation proceeds on the basis of maintaining (or perhaps more accurately restoring) the pre-eminent position of the ADJR Act with the majority recommending that the ADJR Act ‘should be maintained as the principal avenue for federal judicial review’^[22] – a conclusion which was strongly supported by submissions to the Council.^[23]

To accomplish this, the Council proposed a suite of measures aimed at revitalising this complex area of the law and renewing the role of the ADJR Act. This included proposals that:

• a schedule be added to the Act, which can be amended by regulation, which lists other reports and recommendations that are decisions to which the Act applies;
• decisions to commence civil penalty proceedings be exempted from the ADJR Act on the basis that judicial review could fragment judicial proceedings;
• a clarification to the ‘no evidence’ ground of review contained in ss 5(3) and 6(3) of the Act;
• greater clarification as to the standing of representative organisations; and
• the separate statutory schemes for review of taxation and AAT decisions be maintained.

With respect to the exclusion of migration decisions from the ADJR Act, the Council considered that the government should consider bringing migration decisions back into the ADJR ‘fold’, albeit that the ARC stopped short of recommending that this occur in the medium to short term. Interestingly the Migration Review Tribunal and Refugee Review Tribunal submitted to the Council that the privative clause should be repealed and migration decisions be reviewed under the ADJR Act, emphasising the high stakes for the individuals concerned and that the steps taken in the attempt to restrict judicial review in the migration context have had the result of returning judicial review to the complexity associated with the constitutional writs which the ADJR Act had overcome.^[24]

However, it has been the Council’s principal recommendation to align constitutional and statutory judicial review that has attracted the most attention. In this regard, the Council proposes that the Act be expanded to more closely align it with the constitutional judicial review jurisdiction presently encompassed by s 39B of the Judiciary Act 1903 (Cth).  It is proposed that this could occur by amending the ADJR Act to host two separate sources of jurisdiction by adding a new head of jurisdiction to the Act.

In this regard, the Council explained in its report that:

‘…the advantages of the remedial and standing provisions of the ADJR Act should, in most cases, also be available in relation to decisions currently only reviewable in the Federal Court under s 39B of the Judiciary Act. The federal judicial review system would be more accessible to individuals, and the legal requirements for decisions makers clearer, if constitutional review and statutory review were more closely aligned.’^[25]

By expanding the scope of the ADJR Act to encompass the High Court’s s 75(v) jurisdiction, applicants currently able to apply for judicial review only under s 39B would have standing under the ADJR Act to seek an order of review. Applicants would be able to benefit from the simpler ADJR procedures and access the remedial options, notwithstanding that the constitutional writs would continue to be relevant in the sense that the availability of judicial review under s75(v) is tied to those remedies. This would also enable an applicant to proceed with a judicial review application under the ADJR Act with ‘jurisdictional error’ being a relevant ground of review under the Act. Although a concurrent s 39B application would remain available, the incentive to make an application in the alternative under s 39B, as is currently a common occurrence, would be removed.  

The Council accepted that ‘the main source of uncertainty – and potential doctrinal untidiness – in the Council’s proposal is that the Federal Court would be applying two bodies of substantive law under the ADJR Act.’^[26] However, the Council also pointed out, that this already occurs and ‘[i]t is possible, on the Council’s recommended approach, that courts would pay explicit regard to the criteria in s 5 of the ADJR Act in elaborating the concept of jurisdictional error. A closer alignment of statutory judicial review and constitutional judicial review could lead to the development of a more coherent and integrated body of legal principle to guide decision makers on the requirements for lawful decision making.’^[27]

Alternative proposals

One of the benefits of the ARC report is that it both provokes and contributes to a broader debate within and outside government. While there has not been a formal response to the report, it is notable that even by the start of this year, over 600 copies of the report had been distributed.

The position adopted by the Council has not been uncontroversial. The minority position adopted by the Secretary of the Attorney General’s Department, Roger Wilkins AO, in the ARC Report advocated not for amendments to the ADJR Act, but rather for its repeal in order to achieve a fully unified system of judicial review.  The ‘jurisdictional limits’ model had been proposed by Stephen Gageler SC (as his Honour then was) and favoured by the Secretary. That model posits that federal judicial review be conducted solely within the constitutional jurisdiction contemplated by s 75(v) and its statutory mirror, s 39B, but that Parliament would spell out the jurisdictional limits of administrative decisions perhaps in a code or charter, or in the Acts Interpretation Act 1901 (Cth). As the Secretary explained, a ‘set of jurisdictional limits is a key feature of this model’ which would provide limitations on the power of executives to make statutory decisions.^[28] This would shift the focus from a list of grounds for judicial review in the courts to a list of the jurisdictional limits of decision-makers in the first instance.

The simplicity of the model and the ease of its solution to the bifurcation of the judicial review system may have some appeal.  And an approach that would see a unified judicial review system operating in the constitutional jurisdiction has attracted some eminent advocates, notwithstanding that it would involve a radical departure from the last thirty years of federal judicial review practice in Australia.

It should also be said that the increasing eclipse of the ADJR Act is not necessarily seen by all as a problem that warrants fixing.^[29]  In this regard, the Council’s report has been criticised as a ‘disappointing report’ that resulted in ‘convoluted recommendation(s)’^[30] and as a ‘solution in search of a problem’.^[31]  However, it is perhaps revealing that, despite the fact that the respective positions offered by the majority of the ARC and that contained in the Secretary’s separate report lie at different ends of the spectrum, they do agree on one key aspect: the undesirability of a differentiated ambit in the constitutional and general statutory regime for judicial review.

Conclusion

In contrast to the challenge faced by the Kerr Committee of constructing a new structure for administrative law, adaptation and reform of the existing system is, in the ARC’s view, the preferable approach. That said, the recommendations proposed by the ARC’s report are by no means without significance.  If the core values that underpinned the package of reforms created in consequence of the Kerr Committee remain intact, then it may be right to question whether the recommendations are a ‘disproportionate response to the identified problem, if it exists’.^[32] But it is equally true that they do not involve throwing Kerr’s ‘legislative baby’ out with its increasingly ‘cloudy bathwater’. Rather, the recommendations seek the preservation of a framework that has served Australian administrative law well for over three decades, whilst pursuing the need for a more robust, efficient and procedurally simpler system of judicial review.

If the Kerr Report was the catalyst for the birth of an Australian system of administrative law, perhaps the ARC’s report might be seen, in time, as the catalyst for the system’s reawakening. It has at very least given us much cause for thought.

^[1] LL.B (Hons)(Adel), LL.M, PhD (Cantab), Justice of the Federal Court of Australia. The author acknowledges the invaluable intellectual input and research of Alexander Smith. The author has been a member of the Administrative Review Council since 2006.

^[2] Administrative Appeals Tribunal Act 1975 (Cth) ss 48, 51.

^[3] Commonwealth Department of Human Services, Annual Report 2012-2013 (2013) 30 and 39.

^[4] Commonwealth Department of Human Services, above n 3, 199.

^[5] Administrative Review Council, Federal Judicial Review in Australia, Report No. 50 (2012) 11.

^[6] See, eg, Roger Wilkins AO, ‘Judicial review: a jurisdictional limits model’ (2013) 72 AIAL Forum 20.

^[7] Administrative Review Council, above n 5, 72.

^[8] See Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.

^[9] Administrative Review Council, Automated Assistance in Administrative Decision Making: Report to the Attorney-General, Report No 46 (2004) 3; Melissa Perry, ‘Administrative Justice and the Rule of Law: Key Values in the Digital Era’ (Paper presented to the Rule of Law in Australia Conference, 6 November 2010) 1-2

^[10] Robin Creyke and John McMillan, ‘Forward’ The Kerr Vision of Australian Administrative Law – At the Twenty-five Year Mark (Australian National University, 1998) iii.

^[11] Matthew Groves, ‘Should we follow the gospel of the Administrative decisions (Judicial Review) Act 1977 (Cth)?’ (2010) 34 Melbourne University Law Review 736, 738.

^[12] Ibid.

^[13] Commonwealth Administrative Review Committee Report, Parliamentary Paper No 144 of 1971, Ch 3; Justice JS Lockhart, ‘The System of Administrative Review – Twenty-Five Years On’ in Robin Creyke and John McMillan (eds) The Kerr Vision of Australian Administrative Law – At the Twenty-five Year Mark (Australian National University, 1998) 74.

^[14] Administrative Review Council, above n 5, 11-12.

^[15] Ibid 72.

^[16] Administrative Decisions (Judicial Review) Act 1977 (Cth) s 8.

^[17] Administrative Review Council, above n 5, 72.

^[18] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

^[19] Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(1)(a).

^[20] Administrative Review Council, above n 5, 12.

^[21] Ibid 73 [4.5].

^[22] Administrative Review Council, above n 5, 72.

^[23] Ibid 11.

^[24] Ibid 119 [6.18].

^[26] Administrative Review Council, above n 5, 76 [4.20].

^[27] Ibid 76 [4.21]; see also John McMillan, ‘Restoring the ADJR Act in federal judicial review’ (2013) 72 AIAL 12.

^[28] Roger Wilkins AO, ‘Judicial review: a jurisdictional limits model’ (2013) 72 AIAL Forum 20.

^[29] See, eg, Justice Alan Robertson ‘Nothing like the Curate’s Egg’ (Paper presented to the NSW Bar Association, 19 June 2013) 2.

^[30] Cheryl Saunders, ‘Constitution as Catalyst: Different paths within Australasian Administrative Law’ (2012) 10 NZJPIL 143, 162 (at footnote 115).

^[31] Justice Alan Robertson, above n 29, 6.

^[32] Ibid 12.