27 April 2011

Judicial Review

The Administrative Review Council (ARC) has released a 101 page discussion paper on Judicial Review in Australia [PDF], for comment by 24 June 2011. (Black marks, to A-G's, btw, for a 223 character URL ... hardly consistent with the stated commitment to accessibility.)

The Council comments that over thirty years have passed since the commencement of the Administrative Decisions (Judicial Review) Act 1977 (Cth), so that it is timely to examine federal judicial review and assess whether the existing system for judicial review of administrative decisions meets current needs.

Matters relevant to the ARC inquiry include -
• the divergence of legal principle between constitutional judicial review and judicial review under the ADJR Act

• the differing jurisdiction of the three federal courts in judicial review matters

• the development of legal principle in all judicial review jurisdictions, including the alignment of state and federal judicial review

• the increase in both legislation and the volume of decisions made by government

• the privatisation of government functions through a variety of mechanisms

• changes in the way that decisions are made, in particular the use of technology to automate decision making, and

• the use of hybrid mechanisms which combine features of administrative decision making with decisions of a legislative character.
The paper indicates that the Council will consider -
• developments in the law of both statutory and constitutional judicial review

• changes in the broader system of government administration

• statistical data about judicial review applications under the current system

• comparisons with other jurisdictions, and

• views of stakeholders.
The paper has five parts.

The first identifies the background to the inquiry, summarises past reports dealing with judicial review, and notes the ARC's aims regarding the future direction of judicial review, including -
• the need for statutory review mechanisms, both general and specific, in light of the fact that constitutional judicial review is entrenched and cannot be excluded by legislation

• the ambit and provisions of a general statutory review scheme, if the Council considers such a scheme to be desirable, and

• general principles that should to apply to any statutory review scheme, and guidance as to whether and when specific statutory review mechanisms are appropriate.
The second part describes the Australian administrative law system in Australia and its development, covering changes to government since the 1970s that justify reconsideration of the system and foundational administrative law principles. The third part deals with "the complex mechanics of the current system of judicial review — the constitutional sources of review, the ADJR Act and other statutory sources of review", including a statistical overview.

The fourth part identifies the key issues, with overlapping sources for judicial review potentially creating uncertainty for users of the system. It examines and makes recommendations regarding six elements of judicial review —
• the ambit or scope of judicial review - the range of decisions and decision makers that are subject to judicial review, and those that might be included under an expanded regime

• the grounds of review - a comparison of the grounds available under the common law and statutory models and questions about the best approach to ensuring that there is clarity around the grounds of review

• remedies - a comparison of the remedies available under the common law and statutory models and whether any additional remedies are required.

• standing - the purpose and effect of standing requirements in judicial review proceedings and when a broader standing test should be available for judicial review

• reasons - should be an obligation to provide reasons for a decision and what that obligation should entail

• court procedures - the role of the courts in the judicial review process and whether the streamlining processes which have been introduced into migration litigation might be introduced more broadly
The paper also discusses 'additional statutory review mechanisms', ie the role of specific statutory review provisions operating in particular decision making jurisdictions and in appeals from Administrative Appeals Tribunal decisions. "These mechanisms add another layer to the multiple avenues of review, and their role could be reconsidered as part of the development of a new general statutory review scheme."

The final part of the paper considers models for implementing reforms to judicial review, comparing other jurisdictions and outlining possible models for reform in Australia.