I have pleasure in enclosing the submission in response to the consultation paper on Judicial Review in Australia.

Transcription

1 1 July 2011 ARC Secretariat Access to Justice Division Attorney-General s Department 3-5 National Circuit BARTON ACT arc.can@ag.gov.au Dear Sir or Madam ARC Consultation Paper on Judicial Review in Australia I have pleasure in enclosing the submission in response to the consultation paper on Judicial Review in Australia. The submission has been prepared by the Administrative Law Committee of the Law Council of Australia. Thank you for giving us the opportunity to comment. Yours sincerely, Bill Grant Secretary-General GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra 19 Torrens St Braddon ACT 2612 Telephone Facsimile Law Council of Australia Limited ABN

2 Submission to the ARC on Judicial Review in Australia Consultation paper April July 2011 GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra 19 Torrens St Braddon ACT 2612 Telephone Facsimile Law Council of Australia Limited ABN

3 Table of Contents Introduction and General Comments...3 Ambit or Scope of Review...4 Grounds of Review...10 Right to seek judicial review...13 Judicial review and Reasons for decisions...15 Availability of Remedies in judicial review proceedings...16 Additional statutory review mechanisms...24 Conclusion...25 Attachment A: Profile of the Law Council of Australia...26 Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 2

4 INTRODUCTION AND GENERAL COMMENTS 1 These submissions respond to the Consultation Paper "Judicial Review in Australia" issued by the Administrative Review Council (ARC) in April The submissions adopt the sub-headings used by the ARC on pages 9 to 12 of the Consultation Paper, under the heading "DISCUSSION QUESTIONS", and where a numbered question under those sub-headings has been answered directly, a specific reference to that question is included. References to specific paragraphs of the Consultation Paper are set out in square brackets in bold in the format: [CP 1.1]. 2 The report is entitled Judicial Review in Australia but issues are only addressed at a Federal level. There is scope for an intergovernmental Committee to consider standardising some aspects of judicial review at State and Federal levels - refer in this context to the March 2011 NSW Justice and Attorney General discussion paper Reform of Judicial Review in NSW 1 and the article by Matthew Groves 2 which questions whether the Victorian Administrative Law Act has any utility. 3 The Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) remains central to judicial review notwithstanding the existence of the review rights 3 provisions of the Judiciary Act 1903 see the article by Alan Robertson SC at page The ADJR Act should be retained for a number of reasons, including because: 4.1 it describes judicial review in modern, accessible language, thus making it easier for both decision makers and those affected by the exercise of power to know the framework of legality, and understand the potential for review; 4.2 non jurisdictional errors which may otherwise be non-reviewable can be reviewed under the Act; 4.3 it creates a very important statutory right to reasons; and 4.4 it contains simplified procedures and extended remedies (s16). 5 The introduction of a minimalist statutory scheme [CP ] might have adverse consequences, for example, it may encourage more debate about 1 NSW Justice and Attorney General discussion paper Reform of Judicial Review in NSW (March 2011) 2 Groves M Should the Administrative Law Act 1978 (Vic) be Repealed? (2010) 34 Monash Law Review Robertson A The administrative law jurisdiction of the Federal Court Is the AD(JR) Act still important? (2003) 24 Australian Bar Review 89 Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 3

5 whether something amounted to a jurisdictional error. Simplifying the grounds would be unlikely to assist development of the common law see below. 6 The general approach should not be to cut back judicial review. First, it is in any event entrenched in the Constitution. Secondly, it is an essential part of the rule of law. Also, attempts to cut back judicial review in the migration jurisdiction have led to more complexity. 7 Continuing to maintain a fairly clear line between merits review and judicial review may be essential to maintain the legitimacy of judicial review see Griffiths commentary 4 on Aronson paper 5 at page 102. Ambit or Scope of Review Question 3 8 This question is unclear, but if it is understood as asking whether the making of delegated legislation should be justiciable under the ADJR Act then the answer is "yes". 9 The making of delegated legislation is justiciable under s 39B(1) and 39B(1A)(c) of the Judiciary Act The vast majority of cases will raise the ground of narrow excess of power. There need not be any fear that the existence of other grounds of review in the ADJR Act will expand the bases upon which delegated legislation can be successfully challenged. 6 Scrutiny by a parliamentary committee may not eliminate all cases of ultra vires delegated legislation. It is important that judicial review be available. 11 There is no difficulty in a mixing of administrative power and legislative power. The example given in [CP 4.12] is an example of a legislative power vested in a Minister that is required by ss 37B and 37C of the Environmental Protection and Biodiversity Conservation Act 1999 to be exercised according to a statutory procedure. The observance or non-observance of the procedure is not a separate decision. 12 The reform can be achieved by providing for an exception to the of an administrative character requirement, or removing it altogether. Also, not all of the grounds of review would apply to delegated legislation so consequential amendments to s5 of the ADJR Act would be required to specify which grounds applied only to delegated legislation. 4 Griffiths J Commentary on Aronson article (2005) 12 AJ Admin L 98 5 Aronson M Is the ADJR Act hampering the development of Australian administrative law? (2005) 12 AJ Admin L 79 6 Because the ADJR Act is essentially procedural: Gageler S, The legitimate scope of judicial review (2001) 21 Aust Bar Rev 279 at 282. Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 4

6 Question 4 13 The requirement introduced by Australian Broadcasting Tribunal v Bond 7 that a decision to which this Act applies must be final or ultimate or operative is a requirement not found in the ADJR Act and is not supported by the definition of decision in s 3(2) of the ADJR Act. It has resulted in an undesirable proliferation of litigation on a technical issue of justiciability. 14 Such a requirement does not apply in review under s 39B(1) or 39B(1A)(c) of the Judiciary Act. 15 It has also resulted in an artificial construction of s 6 of the ADJR Act which is even more obviously not supported by the terms of s 6 itself. 16 The Bond requirement should be expressly removed. 17 If there are concerns about abuse of the ADJR Act by the bringing of proceedings at early stage of an investigative process, or otherwise prematurely, a further basis can be added to the Court s discretion to decline to exercise jurisdiction under s 10(2)(b) of the ADJR Act. 18 In relation to [CP 4.16] the making of a report or recommendation for which provision is made in the enactment is a justiciable decision under s 3(3) of the ADJR Act. 19 Other kinds of advice or recommendations are reviewable as the entire decision is exposed for review. At a time prior to the final decision such advice or recommendations might be reviewable as conduct engaged in under ss 3(5) and 6 of the ADJR Act. However there are doubts on account of Bond as to the grounds available. It may be that clarification should be provided in an appropriate place to remove the effect of Bond upon review of conduct and bring the position into line with the common law under s 39B of the Judiciary Act. Question 5 20 Yes, review should be available under the ADJR Act of decisions made under executive schemes for which financial or other assistance is provided to individuals. The provision in s 4(b) of the Judicial Review Act 1991 (Qld) has worked well. Question 6 21 The test for judicial review jurisdiction should not be based on whether procedural fairness is implied because: 21.1 This is circular and asks the court to engage in a hypothetical exercise. The court is required to consider whether a ground of review is arguable, or would be established, before it can determine whether the decision is reviewable at all (in all cases, even if procedural fairness is not argued) It excludes review of delegated law-making which is not subject at common law to procedural fairness, even though the applicant may 7 (1990) CLR 321. Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 5

7 seek to challenge the making of the delegated legislation on the ground that it is ultra vires Statutory exclusion of procedural fairness would indirectly amount to a form of privative clause Such a test tends to freeze the test of justiciability and the grounds of review. 22 A test of public power is desirable as an additional residual part of the test of justiciability, to cover prerogative and other non-statutory powers, but should be rejected as a single or core test because: 22.1 it invites the restrictive approach evident in NEAT it has a very unhappy track record in the UK given the difficulty of distinguishing between public and private powers 23 There do not appear to be any benefits in attempting to identify certain kinds of administrative decision-makers as reviewable whilst others are not. The only decision-maker that seems clearly out of bounds is Cabinet. 24 The obvious touchstone of public power is the exercise of statutory power. The absence of a statutory source of power, combined with the nature of the decision, are the important elements in a decision that might suggest it should not be amenable to judicial review. The desirable test might retain under an enactment but broaden the scope of review to cover appropriate exercises of non-statutory power, possibly by adding one or more additional paragraphs to the test, including one deploying the idea of public power. There would also be some benefit in clarifying the position of declarations and expressions of opinion which are not expressly authorised to be made by statute, but which when made have specific statutory consequences. 9 Question 7 25 The High Court s decision in NEAT was a surprise given that the corporation AWBI was exercising implied statutory power. Once an exercise of statutory power is located it should be justiciable (subject to Sch 1), irrespective of the nature of the decision-maker. 26 A provision should be included in the test of justiciability to reverse the effect of NEAT. 27 A provision should also be included to reverse the effect of Griffith University v Tang 10 (which warranted discussion in the Consultation Paper), in particular the superadded requirement introduced by Tang, that the decision must itself confer, alter or otherwise affect legal rights or obligations (ie they must owe in an immediate sense their existence to the decision or depend upon the presence of the decision for their enforcement). 8 NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR Eg Aye v Minister for Immigration and Citizenship (2010) 187 FCR 449, (2005) 221 CLR 99. Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 6

8 28 It may be possible to rephrase under an enactment and link it more closely to the identity of the decision-maker rather than the source of the power. see Tang at [29]. Aronson suggests decisions, conduct, acts or omissions in breach of Commonwealth law imposition of restraints or requirements for the exercise of public power (at 89) [CP 4.37]. Such an amendment might still leave debate about whether public power was being exercised in a particular case, but it may avoid many of the arid debates that have occurred. However done, the NEAT decision should be reviewable otherwise it is potentially an easy way for government to immunise what are truly exercises of public power from judicial review. 29 The formula in [CP 4.35] is not apt to reverse NEAT and would be difficult to apply and should therefore not be introduced. 30 It is anomalous that domestic bodies are subject to judicial review at general law for denial of procedural fairness but not under the ADJR Act. There are also difficulties under s 39B(1) because of the officer of the Commonwealth requirement, and probably under s 39B(1A)(c) as there is no law made by the Parliament. However, this is such a regular part of judicial review at the state level it seems appropriate to cover this area at the federal level. 31 There is also authority for review of other exercises of non-statutory power by non-governmental bodies at general law at the state level. 32 Consistently with the answer to Question 5, an appropriately worded paragraph should be included in the test to capture appropriate exercises of power by these bodies whether they are domestic bodies or corporations exercising certain kinds of non-statutory powers. The paragraph would need to be carefully crafted, and might include reference to public power, but not so as to exclude domestic bodies. 33 With reference to [CP 4.37], justiciability should not depend upon establishing that administrative action involves a breach of Commonwealth law imposing restraints on or requirements for the exercise of public power because: Question it is not clear whether this test is proposed generally or only in relation to non government bodies. In either case it appears unduly restrictive it would cover non-compliance with many, but possibly not all, statutory procedures a Commonwealth law imposing a restraint is unlikely to cover procedural fairness it probably would not allow for judicial review on the grounds collectively known as abuse of power or broad ultra vires such as failure to take into account relevant considerations. 34 It is not the case, as is suggested by [CP 4.46], that the common law test of justiciability is part of the test of justiciability under the ADJR Act. The latter test is quite discrete. Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 7

9 35 The common law test of justiciability should not be included in the ADJR Act because: Question the test is ill-defined; 35.2 the ADJR Act test should not be made more technical and unpredictable; 35.3 if this is a necessary element of the ADJR Act test, it will leave the ADJR Act justiciability test offering no greater ambit than s 39B of the Judiciary Act; 35.4 there does not appear to be any benefit, in adding the test, or in attempting to add a list of factors which are likely to operate as a restraint; 35.5 adding the test might be construed as a necessary element to be met, rather than an additional basis for establishing justiciability; and 35.6 adding such a test would raise risks of narrowing the ambit of review while offering prospects of only marginal improvement to access to judicial review, given that review on this basis is available under s 39B(1) in relation to officers of the Commonwealth. 36 With reference to the bullet point categories in [CP 4.53] of classes of decisions excluded by Sch 1 to the ADJR Act: 36.1 The exclusion proposed in the first bullet point (relating to the nature of the decision meaning it should only be reviewed by the High Court) should be maintained The exclusion in the second bullet point (Commonwealth decisions that are not "officer" decisions) needs further consideration given that these decisions would in any event be excluded by under an enactment and if they were not so excluded because the intergovernmental body was exercising power under a statutory provision, they ought to be justiciable 36.3 The issue in the third bullet point relating to Schedule 1(e) of the ADJR Act needs to be correctly described: review of tax assessment decisions on the merits is available in the Administrative Appeals Tribunal (with an appeal on questions of law to the Federal Court) under Part IVC of the Taxation Administration Act 1953 (Cth). Alternatively a direct appeal lies to the Federal Court under Part IVC. This system leaves some tax decisions on the periphery still justiciable under the ADJR Act and/or Judiciary Act. It works perfectly well see Commissioner of Taxation v Futuris Corporation Ltd Special attention needs to be given to any proposal to remove Part IVC and replace it with ADJR Act review. This should not be done at the expense of AAT review of tax assessment decisions. It could also 11 (2008) 237 CLR 146. Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 8

10 reduce the scope of direct Federal Court appeals from tax decisions which currently allow determination of whether the assessment is excessive on any basis. 12 It also risks opening up gaming by taxpayers who seek to use the ADJR Act to get a pre-emptive determination of a question and also could undermine the status of the AAT As to the fourth bullet point there is no harm in excluding exercises of power which are substantively a matter of national security or intelligence. They would not be justiciable at general law under s 39B of the Judiciary Act As to the fifth bullet point - Individual consideration needs to be given to each of the other classes of decision Special attention needs to be given to the exclusion of migration decisions which leaves Part 8 of the Migration Act 1958 (Cth) to operate. This exclusion should be removed so that review of migration decisions may occur under the ADJR Act like review of other federal administrative decisions. This entails repeal of the special regime under Part 8 of the Migration Act. However, restrictions upon review should be retained for decisions of the Minister's delegate where such decisions may be, or have been, reviewed by the Migration Review Tribunal or the Refugee Review Tribunal. These restrictions should be retained via Schedule 1 or s10(2)(b) of the ADJR Act. 37 As to [CP 4.56] 3 rd sentence, it should not be possible to exclude ADJR Act review by making a regulation. Exclusion of review should only be introduced by an Act, including amendment of Sch 1. Section 19 of the ADJR Act should be repealed. 38 As to [CP 4.56] 4 th sentence this does not reflect the practice. Where special provision is made in another Act for a separate regime of review, that has normally been accompanied by amendment of the ADJR Act by adding an exclusion to Schedule 1. This is the case with tax assessment decisions and migration decisions. Exclusion of ADJR Act review is not hidden. It is a matter of the desirability of a one-stop shop in Schedule 1 indicating in one place all the exclusions of ADJR Act review. Question There is no reason for excluding from review under the ADJR Act decisions of the Governor-General, since they are justiciable under s 39B(1) and 39B(1A)(c) of the Judiciary Act. 40 So long as under an enactment is retained in the test of justiciability under the ADJR Act removal of the exclusion of the Governor-General does not introduce any radical change, given the availability of review under the Judiciary Act. 12 Although the taxpayer is normally limited to the grounds stated in the objection to the original assessment: Taxation Administration Act 1953 s 14ZZO. Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 9

11 41 However it should be recognised that some exercises of prerogative power may be justiciable under s 39B(1) and in this respect the ADJR Act may still lag behind review at general law unless other amendments are made to the test under the ADJR Act. Question The statement of principle made at [CP 4.61] is not correct. Tendering decisions are justiciable at general law. See Cubic Transportation Systems Inc v State of New South Wales 13 and Dockpride Pty Ltd v Subiaco Redevelopment Authority Consideration should be given to bringing the ADJR Act into line with the general law. This could be confined to exercises of statutory power to enter contracts. Where there is an existing contract the position would not change: the Court would need to determine whether the decision was made under the contract or under an enactment. 44 Views differ as to whether an exercise of statutory power to enter a contract should be justiciable under the ADJR Act. What follows are some general considerations relevant to the question. 45 General powers to enter contracts are vested in regular statutory authorities and in corporatised government business enterprises. The ADJR Act does not expressly exclude decisions made in exercise of such powers. General Newspapers Pty Ltd v Telstra 15 and its aftermath require close consideration with reference to the question whether it makes a difference that the decisionmaker is a corporatised GBE. 46 It is desirable that a consistent approach be taken to the underlying principle as to what kinds of decisions are justiciable, and that the scope for securing relief or accountability via private law be taken into account. 47 Many administrative and constitutional decisions have a commercial impact, not just those that involve an exercise of a power to enter a contract. The commercial impact of a decision is not an appropriate criterion for excluding judicial review. Grounds of Review 48 The question raised is whether there should be some change to the identification of the grounds of review in the ADJR Act, for example, whether they should be simplified; or added to; or whether general principles should be included. 49 As originally formulated by the Kerr Committee 16 there were 6 grounds: 49.1 Denial of natural justice. 13 [2002] NSWSC [2005] WASC ( FCR Kerr Committee Report (1971) Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 10

12 49.2 Failure to observe prescribed procedures in cases where the failure has materially affected a person Want or excess of jurisdiction Ultra vires action (ie taking into account irrelevant considerations or failing to take into account relevant considerations; exercising a power for an improper purpose; exercising a discretionary power in bad faith; not considering the merits of the particular case; acting under dictation; Wednesbury unreasonableness; and uncertainty) Any error of law appearing in or from the record Fraud. 50 The Ellicott Committee recommended two more: 50.1 otherwise acting contrary to law; and 50.2 lack of evidence. 51 There does not seem to be anything fundamentally wrong with the grounds as listed in the ADJR Act, and it would not assist to pare them back and make them more general. Unless it was made clear that the intention was to depart from the common law in some fundamental way the Court would need to look to the common law in any event. 52 In addition, the clear list of potential judicial review grounds in the ADJR Act has an educative effect by setting out a relatively comprehensive summary of the common law. It also ensures that cases which might involve Judiciary Act review as well as ADJR Act review are rare, and are not unnecessarily complicated when they are seen to be necessary by an applicant - while the grounds will be virtually the same, the points of difference will be minimal (eg is there a decision under an enactment?) 53 There appears to be a consensus amongst academic commentators and some senior practitioners that the listing of the grounds has not resulted in any major adverse consequence to the scope of judicial review eg Aronson and Griffiths. 54 The reason for the UK expansion of judicial review is due to peculiar factors UK s geo political positioning in Europe; the Human Rights Act and the absence of a written Constitution which incorporates a strict separation of powers. Due to the nature of Australia s written Constitution it might not be desirable (or even possible) to create rights of review that use a principle such as proportionality or which seek to substantively protect legitimate expectations. 55 While the otherwise contrary to law (s 5(1)(j)) and abuse of power (s 5 (2)(j)) grounds) may not be engaged much that is not a reason to remove these grounds (see Griffiths at 99) [CP 4.71]. 56 At [CP 4.74] is the suggestion by Kirby J of including grounds to deal with serious administrative injustice or fundamental flaws of logic or reasoning 17. But should changes to the grounds be made to capture such errors? How 17 Illogicality is not a ground for judicial review as it does not necessarily result in error of law, although it may do so - see Buchanan J in Tisdall v Webber [2011] FCAFC 75 at [126]. Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 11

13 would they be worded and how would straying into merits review be avoided? Could the Wednesbury unreasonableness ground be loosened? But if so how again without facing criticism that the judiciary is straying into the executive field? 57 There are also dangers in trying to reduce the grounds and make them more general, as such amendment might have unintended consequences. There is no obvious reason why the ADJR Act cannot take developments in the grounds from the common law, and also why ADJR Act ground reasoning cannot feed into developments at common law 58 If general principles were stated what would they be [CP 4.78]? Aronson at 94 suggests some possibilities - fundamental rights and freedoms; principles of good government and administration; transparency in government decision making; fairness; participation; accountability; consistency of administrative standards; rationality; legality; impartiality; and political neutrality It is unclear how such principles would help. They appear to be too generic and vague and distract from some practical problems with the ADJR Act that should be addressed now. The precise legal status of such principles, how they would bind decision-makers and whether (and in what circumstances) they would provide a basis for granting relief also seem to be likely sources of complexity and unpredictability. 59 One aspect of the problem is that the requirements for the proper exercise of a statutory power (eg whether procedural fairness is required and what considerations must or must not be taken into account) are normally found in the statute that confers the power. The difference between substantive limits on power (which can be enforced under s 39B as well as the ADJR Act) and procedures for enforcing those limits 18 needs to be kept in mind. 60 For the same reasons there does not appear to be a need to include in the ADJR Act an overarching principles statement to the effect, for example, that the Act is intended to promoted fairness, lawfulness and rationality in decision making. 61 There could be a simplification of some of the wording of the various grounds while making it clear that this was not intended to cut down their reach. But apart from making it (superficially) easier for a non administrative lawyer to grasp the concept it is unlikely that such reform would actually inform. More of an issue might be the simple absence of general knowledge in the community that a right of judicial review exists in the first place. 62 On that issue, it is noted that the knowledge of those governed by the judicial review framework is severely lacking. This deficiency involves decision makers as well as those affected by the exercise of administrative power. It is time to treat judicial review jurisprudence as creating positive obligations rather than a set of negatives. To highlight these positive obligations would improve the lawfulness of decision making, improve clarity of the legal obligations in this area, and assist all parties to identify what are the opportunities and/or risks of judicial review. 18 As to the essentially procedural nature of the ADJR Act see Gageler, loc cit. Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 12

14 63 Adding to the lack of understanding is the series of positive statutory obligations placed on decision makers to advise those affected by decisions of any particular merits review rights. Giving such notice is misleading to both the decision maker and the person affected by the decision, because the absence of reference to judicial review gives the impression that it does not exist. 64 It is recommended that statutory notices of review rights include the possibility of judicial review. It is also recommended that legislation which contains statutory decision making powers or functions makes express reference to the obligations established for lawful decision making, and the possibility of judicial review when such obligations are not met. 65 To limit instances of decisions that might reasonably be classified as abuses of power or otherwise as unfair or illogical but which were not open for technical reasons to judicial review, or where merits review is what is really required, a general statutory power could be vested in the Ombudsman to permit from time to time as the need arose additional AAT jurisdiction to review of the merits in a particular case where jurisdiction was not otherwise conferred on the AAT. 66 This referral power might be used sparingly, be subject to satisfaction on public interest grounds, and to other legislative guidelines as to when it could be used, but also might apply in cases where what has occurred seems administratively unfair and the correct and preferable decision may not have been made. One would need to be careful not to open a Pandora s Box (and classes or types of decisions might be entirely excluded) but this might create the capacity to deal with particular instances of unfairness where relief was otherwise unavailable. Right to seek judicial review Question The following observations are made in answer to the ARC's question 14 regarding the appropriate test for standing in judicial review proceedings. 68 As the Consultation Paper notes [CP 3.36 and 3.54], there is a convergence of sorts between the "special" or "sufficient" interest test which applies to judicial review by way of the constitutional writs, and the "person aggrieved" test which applies to proceedings under the ADJR Act. In addition, the "special interest" test also applies to the equitable remedies (injunctions and declarations) which are an alternative mechanism by which judicial review might be sought: Australian Conservation Foundation v Commonwealth 19 at This latter point is particularly important because the right to seek injunctions against officers of the Commonwealth is entrenched in s 75(v) of the Constitution, and is available for non-jurisdictional error: see Federal Commissioner of Taxation v Futuris Corporation Ltd 20 at [47]. 19 (1980) 146 CLR (2008) 237 CLR 146 Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 13

15 69 This convergence, which broadly may be seen as desirable, is, however, arguably qualified by a line of authority to the effect that a "stranger" has standing to seek certiorari and prohibition: see, e.g., Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd 21 at (Gleeson CJ and McHugh J), 611 (Gaudron J), (Gummow J), (Kirby J) and 670 (Callinan J). It has been argued that references to "strangers" in the old case law was being used in a special sense, and that in fact there a few cases where those "strangers" would not have satisfied the "special interest" test in any event. Nonetheless, it seems clear that the High Court is using the notion of suits by "strangers" as equivalent to "pure public interest suits": see Aronson, Dyer & Groves 22 at pages It follows that prohibition and certiorari are probably available to complete strangers, but given relief is discretionary, an applicant without a "special interest" will find it harder to overcome the discretionary hurdle: Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd 23 at 263 (Gaudron, Gummow and Kirby JJ); Re McBain; Ex parte Australian Catholic Bishops Conference 24 at , 422 and 426 (McHugh J). 71 There is a clear attraction in the notion that there may be a single test for standing, irrespective of the avenue through which judicial review is sought. That said, the convergence described above may mean that there is little to be gained by changing the existing test for review under the ADJR Act. 72 Further, because of the entrenched availability of review under s 75(v) (and, arguably, s 75(iii)), narrowing the test in the ADJR Act would seem to lack utility. Should, however, the ADJR Act test be broadened? Three points might be made about this possibility. 73 First, underlying the rules for standing is a policy of preventing "meddlers" (i.e., persons with a "mere intellectual or emotional concern") from prosecuting judicial review applications. Leaving the special rules for prohibition and certiorari to one side, the current (and convergent) rules for constitutional writs, equitable relief and ADJR Act applications achieve this. 74 Secondly, if the standing rule under the ADJR Act was to be broadened, standing under that Act will then not align so closely with the standing rules for equitable relief or constitutional writs. Insofar as the remedies available under s 16 of the ADJR Act are similar, this divergence will lead to different standing rules applying to cases seeking essentially the same relief. 75 Thirdly, to ensure the purpose of standing requirements is met (i.e., to safeguard against meddlers) under any broader test for standing, it would probably be sensible to also qualify this by an express discretionary power allowing courts to decline to entertain proceedings where there is no "special interest". This would then align with the test for certiorari and prohibition. 21 (2000) 200 CLR Judicial Review of Administrative Action (4th ed, 2009) 23 (1998) 194 CLR (2002) 209 CLR 372 Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 14

16 76 Noting these matters, and given that the standing rules as presently framed to do not appear to give rise to significant problems and that there is broad convergence between the approach which applies to review under the ADJR Act and under the constitutional writs and injunctions under s 75(v) and the Judiciary Act, maintaining the status quo may be the sensible course. 77 One possibly worthwhile refinement to the standing test under the ADJR Act might be to introduce provisions along the lines of subsections 27(2) and (3) of the Administrative Appeals Tribunal Act The observations at [CP ] are noted, and the introduction of a general provision to this effect would obviate the need for provisions such as s487 of the Environmental Protection and Biodiversity Conservation Act 1999 which provide to similar effect in specific areas. On the other hand, this may lead to divergence with the standing rules for equitable and Constitutional relief. Judicial review and Reasons for decisions 78 As the Supreme Court of Canada has said: Reasons...foster better decision-making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Baker v Canada [1999] 2 SCR 817, at In addition, reasons allow a party to effectuate a right of judicial review or appeal, and allow a party to understand why a decision has been made. 80 A corollary of that second requirement, is that reasons should be sufficient to assure a party that their representations have been considered (as observed by the Canadian Federal Court of Appeal in Via Rail Canada v National Transportation Agency ) October 10, Questions 15, 16 and A right to reasons in the ADJR Act should be retained, and the current approach of a generalised right to reasons subject to exceptions should be retained. 82 There need be no inconsistency or tension between the ADJR Act reasons provision and the inclusion of reasons requirements within specific legislation, as Question 15 tends to assume. 83 It is agreed that the schedule 2 exceptions to the requirement to give reasons could safely be repealed (Consultation Paper and 4.125). Question Though the courts tend to emphasise that what is required by way of reasons varies depending on the nature of the decision and the decision-maker, there is no evidence that the requirements of section 13 of the ADJR Act are too legalistic in practice. 85 Though [CP 4.128] suggests that other statutory reasons provisions may be preferable, they tend to follow a similar formula. Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 15

17 86 However, the content of the requirement to give reasons could arguably be enhanced. 87 It is not unusual for a party to a decision to be left with a real doubt as to whether or not the arguments that were advanced on their behalf or evidence presented by them has been taken into account. For instance, in Reece v Webber 25, the Court stated that it would have been far preferable to refer specifically to critical evidence provided by Dr Reece, and to explain why they adhered to their own, contrary view in spite of it, but that this was not a requirement of the Act In Vegan, Justice Basten observed that, in the context of that legislation,...where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another (at [121]). 89 Consideration should be given to an additional requirement that reasons address the critical arguments, issues, and evidence raised by a party directly affected by the decision, or otherwise include some provision which allows parties to understand how their evidence and submissions have been dealt with. Question This question asks for views as to what consequences should follow a failure to comply with statutory duties to give reasons. 91 A failure to comply with a statutory reasons provision can amount to an error of law, which may justify setting aside the decision under the ADJR Act 27 (although it is much more difficult to argue that such a failure amounts to jurisdictional error under the general law). 92 Arguably, what should flow from a failure to comply with a duty to give reasons will depend upon the nature of the decision made, and the consequences should be left to the courts to determine as the nature of the case requires (which may be an order that compliant reasons be given, or may be that the decision is quashed as in Vegan [at [130]). 93 A powerful incentive for the provision of comprehensive reasons for decision is (or at least ought to be) that the failure to refer to particular evidence or issues can justify an inference that the decision-maker did not consider that material relevant, which may lead to the conclusion that a ground of review is made out. 28 Availability of Remedies in judicial review proceedings 94 The consultation paper asks at question 20 of the Discussion Questions, and at the question under [CP 4.135], about the potential restrictions on the availability 25 [2011] FCAFC (2006) 67 NSWLR Dornan v Riordan (1990) 24 FCR Eg Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 338 [35], 346 [69]. Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 16

18 of remedies under the Constitution and the Judiciary Act and whether those restrictions mean that a statutory remedy scheme is desirable and why. 95 There are clearly restrictions on the constitutional writs and they can be summarised as set out below under headings describing each remedy (including the restrictions on certiorari which, while not one of the named constitutional remedies, is nevertheless available as ancillary to the named writs). 96 As an important overall point, the statutory remedial scheme is arguably already in place: namely, s16 and related sections of the ADJR Act. Although the Courts have generally interpreted these reformed statutory remedies very broadly (albeit while maintaining an appropriate legality/merits distinction) any remaining limitations and restrictions that still apply to the ADJR Act remedies might better be removed or resolved by removing, or amending or providing exceptions, to the "decision of an administrative character" and "under an enactment" requirements of the ADJR Act as discussed above. Certiorari 97 As it is not one of the constitutional writs certiorari can be ousted by an appropriately worded privative clause. 98 It will only issue to a body having a legal authority to determine questions affecting rights, and a duty to act judicially (R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co 29 ) although a broad interpretation of "acting judicially" has developed so that certiorari has issued to administrative decision makers in some cases. 99 When it is sought to quash a decision which is non-jurisdictional, it has to be "on the face of the record". There are differences of view as to what constitutes "the record". 100 It is dependent on the availability of one of the other constitutional writs. 101 It is unlikely, for the reasons set out above, to issue to a private body exercising public power. Prohibition 102 Prohibition only lies in respect of acts to be done judicially (R v Wright; Ex parte Waterside Workers' Federation of Australia 30 ) and will only issue to restrain a want of, or excess of, jurisdiction. Mandamus 103 Mandamus will issue to compel the performance of a duty of a public nature and where there is no other legal remedy, but not so as to compel that performance in any particular way (R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott 31 ) 104 Private duties will not be enforced by mandamus. 29 [1924] 1 KB (1955) 93 CLR (1933) 50 CLR 228. Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 17

19 105 A clear demand must have been made before mandamus issues, so that the complained of refusal to exercise jurisdiction can be properly tested. Habeas Corpus 106 Three elements must be present before the writ of habeas corpus will issue: a detention by the person to whom the writ is addressed, unlawful detention of the person detained, and a legal right to release: see Minister for Immigration and Multicultural Affairs v Vadarlis 32. The detention must be actual, not apprehended. Injunction 107 Injunctions are a flexible and adaptable equitable remedy with both public and private law application, which can be made at either an interlocutory stage, or permanently. 108 There must be a legal or equitable right that has been, or is about to be, infringed. 109 An undertaking to pay damages for any loss incurred by the party subject to the injunction, should it ultimately be determined that the injunction should not have been granted, will be required. 110 An injunction is a coercive, and discretionary, remedy. Declaration 111 A declaration, by contrast, is not a coercive remedy, but does finally determine the issues between the parties and governments and officials will normally comply with declarations and act accordingly. 112 An applicant needs standing and a real, not hypothetical, issue for resolution (Ainsworth) and the making of a declaration must not be an exercise in futility. 113 A declaration is a very flexible remedy, capable of being adapted to the circumstances of the case, and there are no other restrictions or limitations on the making of a declaration. Remedies under the ADJR Act 114 Section 16 of the ADJR Act provides a range of remedies that mirror the effect of the constitutional writs, but which are broader and not as technical. 115 There is an overall discretion given to the Court in s16 which is workable and desirable. 116 The existing remedies do not require any amendment: the main limitation to their exercise are, as discussed above, the restrictions imposed on the overall application of the Act by the "administrative character" and "under an enactment" requirements. 117 Arguably s16(d) is broad enough to permit of an award of damages, but the High Court has not interpreted it to be so (Park Oh Ho v Minister for Immigration and Ethnic Affairs 33 ). 32 (2001) 183 ALR 1 33 (1989) 167 CLR 637 Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 18

20 118 On one view there may be merit in considering a specific remedy of damages in s 16: at present negligent acts or statements of officials leading to unlawful exercise, or non-exercise, of power can sound in damages, but other unlawful acts, potentially causing equivalent loss to the aggrieved person, sound only in the existing remedies of quashing, remittal, or declaration. 119 [CP 4.137] and following, refer to factors centered around the notion of "serious fault" that might give rise to damages as an administrative law remedy. 120 A remedy could be included in s16 in words to the following effect: "if a decision, conduct, act or omission breaches one of the grounds of review in this Act, and results from negligent performance or non-performance, and a person suffers loss or damage as a direct result, then the Court may award damages for any economic loss so caused". 121 However, there are arguments for resisting the expansion of the remedies to include damages. 122 The starting point is that government action is not exempt from tortious liability (see, for example, Mason J in Sutherland Shire Council v Heyman 34 at 458); and see also Crimmins v Stevedoring Industry Finance Committee 35 ). However, liability will only be found where a recognised head of tortious liability is established, whether negligence, breach of statutory duty, misfeasance etc. 123 The courts in Australia have consistently rejected the notion that an administrative tort might be developed: see, for example, New South Wales v Paige 36 ; Bienke v Minister for Primary Industries and Energy 37 (per Black CJ, Davies and Sackville JJ), upholding Gummow J at first instance in Bienke v Minister for Primary Industries and Energy 38. See also Macksville & District Hospital v Mayze 39 at 724-5, In Park Oh Ho v Minister the High Court stated:... it is relevant to mention that both declaratory and injunctive orders, as distinct from an order for damages, can readily be seen as appropriate remedies of judicial "review" of administrative decisions and actions. 125 A good discussion of why damages are not considered an appropriate remedy on judicial review can be found in the judgment of Spigelman CJ in Paige, at [172] and following: [172] Compensatory damages for administrative error are available only in very limited circumstances. There is considerable debate about the role of such a remedy. See generally Barton "Damages in Administrative Law" in Taggart (ed) Judicial Review of Administrative Action in the 1980's, 1986, p123; Campbell "Liability to Compensate for Denial of a 34 (1985) 157 CLR (1999) 200 CLR 1 36 [2002] NSWCA BC (1994) 125 ALR (1987) 10 NSWLR 708. Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 19

21 Right to a Fair Hearing" (1989) 15 Monash Uni Law Review 383; Allars "Tort & Equity Claims Against the State" in P D Finn (ed) Essays on Law & Government, vol 2, 1996, p49; Lachlan Roots "Damages for Wrongful Administrative Action: A Future Remedy Needed Now' (1995) 2 Aust J of Admin L 129; PP Craig "Compensation in Public Law" (1980) 96 LQR 413; PP Craig Administrative Law (3rd ed), 1994, Ch 17; De Smith Woolf & Jowell, Judicial Review of Administrative Action, London, (1995), Ch 19; Panetta "Damages for Wrongful Administrative Decisions" (1999) 6 Aust J of Admin L 163. [173] Proposals for the development of an administrative tort have been made from time to time, so far without success. The intrusion of the tort of negligence into the area of procedural irregularities in administrative decision-making could well overwhelm the traditional remedies of administrative law. [174] Perhaps the most significant characteristic of our system of administrative law is that, subject to special statutory regimes for merits review, the courts are concerned only with the legality of the decision-making process. The courts do not determine, either directly or indirectly, the substantive issue. Judicial review results, in the ordinary course, in the statutory decision-maker making the decision again. [175] The purpose of judicial review of administrative decisions is not compensatory. Its purposes include such objectives as upholding the rule of law and ensuring effective decision-making processes. (See, relevantly in relation to procedural fairness, Aronson and Dyer, Judicial Review of Administrative Action, (2nd ed) 2000 at ) The end result of proceedings for judicial review is not the exercise of a statutory function by the courts. Generally, the courts require the statutory function to be performed in accordance with the law by the person in whom the statutory function has been reposed. There are, however, circumstances in which the decision cannot be taken again. [176] An award of damages based on defective decisionmaking will often be explicable only on the basis that the decision ought to have been made in favour of the person who suffered damage. The effect of extending the law of tort to permit recovery of damages for errors subject to judicial review will therefore often be, in substance, to remove to the courts the determination of matters that a statute reposes in another. In my opinion, the courts should be very slow to extend the law of negligence to a new category that has such a consequence. (Cf Attorney-General v Prince & Gardner, supra, at 276.) [177] There is, in my opinion, a real issue of coherence with administrative law if the law were to recognise a duty of care in the conduct of investigations, the laying of charges and the hearing of disciplinary proceedings. Where a decision-making process can be done again, then that should enable, in many Law Council of Australia submission Judicial Review in Australia 1 July 2011 Page 20