ARC CONSULTATION PAPER ON REFORM OF THE ADJR ACT
Submission by Mark Aronson1
Introduction
This Consultation Paper (CP) ranges widely. It poses a large number of questions, inviting
its readers to rethink the entire gammut of judicial review, including its place in the broader
administrative law system of ombudsmen, merits appeals in tribunals, and court appeals
restricted to legal issues. In some respects, the Paper might be thought to lack focus simply
because it appears to have sought views on just about anything of relevance to the law and
procedure of judicial review. That, however, would be to under-estimate the Paper’s value.
Its questions are all thoughtful, highly principled, and very well-researched.
In addition, the CP has usefully collected and summarised the key reform proposals made
over many years by a range of commentators, professional associations and law reform
agencies (including the ARC itself). This will doubtless prompt many (myself included) to
rethink or refine some of our earlier law reform suggestions.
It would not be feasible within this brief response even to list all of the CP’s questions, let
alone to respond to them all in the detail which they deserve. I will discuss only some of the
questions, and even there, I will respond to what I identify as the CP's broad themes rather
than its detail.
Repeal of ADJR?
The CP's largest question is whether to repeal the ADJR Act entirely. The ARC had at least
two major reasons for asking that question.
First, ADJR’s judicial review scheme inevitably invites comparison with judicial review
pursuant to applications for the constitutional writs, because the High Court’s judicial
review powers are entrenched and jealously guarded. The net result is to make it impossible
to avoid at least some divergence between the statutory and constitutional judicial review
jurisdictions. The divergences at present are considerable. ADJR’s application procedures
are simpler than those of the High Court, its remedies are less complicated, and it contains a
right to reasons that has no constitutional equivalent. On the other hand, ADJR reaches only
to decision-making under statutes, and not even to all of those. It excludes coverage of
judicial decisions, subordinate legislation, and decisions of the Governor General.
Secondly, most federal judicial review matters consist of challenges to migration decisions,
and ADJR coverage of most of those became redundant in 20012 and was formally removed
in 2005.3 For the ARC, this later step raised the question as to whether ADJR might be
approaching its use-by date.
It is convenient to deal immediately with the ARC’s second reason for considering a
minimalist model of judicial review, because it is submitted that its assumptions are
factually inaccurate. The bulk of judicial review cases concerning migration do not in fact
1
2
3
Law Faculty, University of New South Wales.
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).
Migration Litigation Reform Act 2005 (Cth).
1
conform to a truly minimalist model whereby the High Court’s entrenched jurisdiction is
copied and pasted into the Federal Court and the Federal Magistrates Court. It is true that
those litigating migration matters usually lack access to an ADJR-style list of grounds of
review, and must fall back on challenges for jurisdictional error. Even so, it is obvious that
legal professionals seeking judicial review of migration decisions plead their grounds for the
most part along standard ADJR lines. It is also true that most of those adversely affected by
migration decisions cannot resort to ADJR’s right to demand reasons, but that is because the
Migration Act has its own provisions requiring the giving of reasons. Some of these are
replicas in substance of ADJR’s right to reasons,4 although the procedures necessarily
differ.5 A truly minimalist High Court model would have no support from a statutory right
to reasons.
The CP acknowledges the possibility of a truly minimalist position, under which the only
amendment consequent upon ADJR's repeal would be an Act that copied the High Court’s
jurisdiction and pasted it across into the Federal Court and the Federal Magistrates Court. It
is difficult to believe, however, that the ARC considers repeal to be a serious possibility.
Beneath the heading "A minimalist statutory scheme" the ARC suggested a number of
options that would bolt-on to a truly minimalist position.6 These options were the provision
of a statutory right to reasons, and either the abolition of any stated review grounds or a
broad-based and very short list of grounds modelled on the Canadian Act (see below).
The argument for true minimalism is unpersuasive. It is in fact no great burden living with at
least two schemes, namely, the constitutional minimum and a statutory alternative. In any
event, if two schemes are out of kilter, it is not obvious why the best solution should be to
race to the bottom, choosing at every point only those aspects that cannot be abolished. If
complexity were the only problem, it could be equally avoided if the race were to go in the
opposite direction, making it entirely unnecessary to resort to the High Court’s jurisdiction
(and its replicas).
It should hardly need to be added that some degree of complexity is a price worth paying for
a good statutory scheme of judicial review.
Reform of ADJR's grounds of review
The CP's discussion of ADJR's grounds of review is incomplete. In essence, it raises only
two options – repeal (an option that is part of the minimalist proposal discussed above), or a
shorter list stated (as in Canada) at a higher level of generality than obtains in the current
Act.
The repeal option would be the worst of all possible worlds. It would leave us with
"jurisdictional error" as it applies in the constitutional writ jurisdiction. There is currently
widespread angst and confusion within the profession over the term "jurisdictional error".
Judgments and commentators repeatedly profess their difficulty with it. Speaking
personally, I believe the angst to be greatly over-wrought and the confusion to be quite
4
5
6
eg, Migration Act 1958 (Cth), ss 352 and 418.
Some reasons statements come only after a merits appeal is lodged, and some (as in ss 368 and 430)
come with the decision itself.
CP p 109.
2
unnecessary,7 but I must acknowledge that they are facts of professional life. One should not
embrace a "reform" in the sure knowledge that it will increase professional perplexion.
The CP's other alternative is to copy the Canadian statement of grounds, which is as
follows:8
18.1(4)
The Federal Court may grant relief under subsection (3) if it is satisfied that the federal
board, commission or other tribunal
(a)
(b)
(c)
(d)
(e)
(f)
acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its
jurisdiction;
failed to observe a principle of natural justice, procedural fairness or other
procedure that it was required by law to observe;
erred in law in making a decision or an order, whether or not the error appears on
the face of the record;
based its decision or order on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it;
acted, or failed to act, by reason of fraud or perjured evidence; or
acted in any other way that was contrary to law.
Anyone who thinks that this is a simple, straight-forward statement of the grounds of review
should read Dunsmuir v New Brunswick [2008] 1 SCR 190. Canada has a history of trying
to simplify or clarify its grounds of review, and judging by the number of cases, articles and
seminars on Dunsmuir, those attempts will continue for some time to come.
Whatever faults there may be in ADJR's statement of grounds, they have this enormous
benefit – most administrative law practitioners are well-acquainted with them, and largely
confine themselves to arguing over their fine details. This is no time for starting afresh.
I think that the ARC's best option would be to explore ways of amending ADJR's existing
grounds of review. I have some initial suggestions (they are only tentative), and for the
reader's convenience, I will include them below within what is otherwise a reprint of s 5:
5 Applications for review of decisions
(1)
A person who is aggrieved by a decision to which this Act applies that is made after the
commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an
order of review in respect of the decision on any one or more of the following grounds:
(a)
(b)
that a breach of the rules of natural justice occurred in connection with the making of the
decision;
that procedures that were required by law to be observed in connection with the making of
the decision were not observed;
[This ground is far too wide. It extends, on a literal reading, to immaterial procedural
errors. It should be restricted to procedural errors that did affect or might have materially
affected the result.]
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8
M Aronson, "Jurisdictional Error Without the Tears", in M Groves and H P Lee (eds), Australian
Administrative Law (Cambridge UP, Melbourne, 2007) ch 21.
Federal Courts Act (RSC 1985, c F-7), s 18.1(4).
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(c)
(d)
(e)
(f)
(g)
(h)
(j)
(2)
that the person who purported to make the decision did not have jurisdiction to make the
decision;
that the decision was not authorized by the enactment in pursuance of which it was purported
to be made;
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;
that the decision involved an error of law, whether or not the error appears on the record of
the decision;
that the decision was induced or affected by fraud;
that there was no evidence or other material to justify the making of the decision;
that the decision was otherwise contrary to law.
The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a
reference to:
(a)
taking an irrelevant consideration into account in the exercise of a power;
[It might assist to reformulate this as "taking an irrelevant and forbidden consideration into
account in the exercise of a power"]
(b)
failing to take a relevant consideration into account in the exercise of a power;
[It might assist to reformulate this as "failing to take a relevant and mandatory
consideration into account in the exercise of a power"]
(c)
(d)
(e)
(f)
an exercise of a power for a purpose other than a purpose for which the power is conferred;
an exercise of a discretionary power in bad faith;
an exercise of a personal discretionary power at the direction or behest of another person;
an exercise of a discretionary power in accordance with a rule or policy without regard to the
merits of the particular case;
[It is standard practice, indeed desirable, for high volume decision-making to be structured
by non-binding rules or policies issued by the decision-making organisation. The FOI Act
recognises this by preventing agencies from using guidelines adversely to an individual if the
agency was in breach of the Act's requirement to publish the guidelines. There is a trickle of
Australian cases acknowledging the validity of decision-makers using guidelines as, in effect,
binding rules.9
In the UK, the House of Lords and its successor, the Supreme Court, have each recognised
that there are some situations in which published guidelines are needed. Sometimes the
reason is to achieve consistency and efficiency in high-volume decision-making institutions.
Sometimes it is to put flesh on statutory discretions that one would expect to be guided by
policy decisions that might vary over time and between governments. The House of Lords
actually ordered that guidelines be made and published, in order to comply with the rule of
law principle that law be not too uncertain.10 More recently, the Supreme Court said that the
government could not lawfully depart from the terms of its published guidelines.11
I therefore suggest that something along the following lines should replace s 5(2)(f):
"applying a rule or policy that invalidly purports to narrow the breadth or content
of an applicable discretionary power;"
9
10
11
M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (4th ed, 2009), [5.125][5.135].
R (Purdy) v DPP [2010] 1 AC 345.
Lumba (Congo) v Secretary of State for the Home Department [2011] 2 WLR 671.
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(g)
(h)
(j)
(3)
an exercise of a power that is so unreasonable that no reasonable person could have so
exercised the power;
an exercise of a power in such a way that the result of the exercise of the power is uncertain;
and
any other exercise of a power in a way that constitutes abuse of the power.
The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
[The interpretive difficulties inherent in this ground of review in ADJR are well-known.12
If neither paragraph (a) nor paragraph (b) of subsection 5(3) can begin to operate unless
one first establishes the absence of any evidence "to justify" the overall decision, then unless
it is reformed, the ground may as well be repealed because it adds nothing to "error of law".
It seems to me that there are two basic reform options other than repeal.
Option one (my own preference) would be to treat the "no evidence" ground in s 5(1)(h) as
established whenever either of the paragraphs in subsection 5(3) is established. If that option
were to be accepted, then the first line of sub-section (3) would read:
"The ground specified in paragraph (1)(h) shall be taken to be made out if
either:"
That would clarify the "no evidence" ground considerably, and (more importantly) give it
some real (and valuable) work to do. Naturally, s 6's grounds would need similar
amendments.
Option two would perhaps appeal to those who would see the first option as an unwarranted
permission to adduce fresh evidence, but who nevertheless see the merit in review for a
serious and material error of fact. Under this option, the wording of s 5(1)(h) would have to
be changed, from
"that there was no evidence or other material to justify the making of the decision"
to something like
"that the decision that the particular matter or particular fact to which paragraphs
(3)(a) or (b) refer was established or existed (respectively) was so unreasonable
that no reasonable decision-maker would have made it".]
(a)
(b)
the person who made the decision was required by law to reach that decision only if a
particular matter was established, and there was no evidence or other material (including
facts of which he or she was entitled to take notice) from which he or she could reasonably
be satisfied that the matter was established; or
the person who made the decision based the decision on the existence of a particular fact, and
that fact did not exist.
If the ARC is disposed to refining ADJR's review grounds, it might give some thought to
including the ground of "serious irrationality or illogicality". From a precarious beginning,13
12
Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; and
subsequent cases, discussed in M Aronson, B Dyer and M Groves, Judicial Review of Administrative
Action (4th ed, 2009), pp 261-265.
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this now seems to have established a toe-hold in the common law's grounds of review,14 and
it would be a pity if a pleader had to go outside ADJR in order to take advantage of this
common law ground.
Extending ADJR's Scope
I agree with the options discussed by the CP for extending ADJR coverage to vice-regal
decisions, to direct challenges to the validity of subordinate legislation, and to decisions
under funded schemes (modelled on the Queensland Act). I wish here to confine my
comments to one other extension discussed in the CP.
Administrative decision-making in the exercise of public power is often said to be the
principal focus of the law of judicial review. However, there is considerable uncertainty
about the reach of judicial review where such decisions are made not by government
officials, but by those in the private sector. Most people acknowledge the policy deficit in
restricting judicial review to decisions made by public officials, particularly at a time when
statutes commit a number of public functions to the private sector.
The problem is exacerbated by the fact that the focus switches from the decision-maker's
identity (public or private) to his or her function (public or private) in circumstances where
public officials engage in standard procurement exercises for the Commonwealth. In this
latter situation, it is the function that counts, even though the decision-maker is located in
the public sector.
There is some difficulty in identifying the problem, and an even greater difficulty in drafting
an acceptable solution.
The CP identifies two problems where, on reflection, I think there is only one big problem.
.
13
14
15
16
The CP treats the problem arising from NEAT Domestic15 as being that a private
sector body made a decision that statute treated as critical to the making of a
reviewable decision under an enactment by a government official. The CP then
notes the suggestion made by the Victorian Bar Council. As I understand it, that
suggestion was to extend ADJR coverage to decisions made by a private sector
body where statute provides that those decisions are necessary precursors of
decisions "made under an enactment" within the meaning of ADJR. In other
words, the suggestion would treat decisions as having been made under an
enactment if subsequent decisions under an enactment cannot be made without
them. My problem is that this extends ADJR too far. The Registrar of Trade
Marks, for example, is not allowed to register my competitor's trade mark in the
face of opposition from me on unanswerable grounds unless I choose to
withdraw my opposition.16 In those circumstances, the effect of the Victorian
Bar Council's suggested reform would be to extend ADJR to my refusal to
withdraw my opposition.
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2001 (2003) 198 ALR
59 at [34] and 37]; and Re Minister for Immigration and Multicultural Affairs v SGLB (2004) 207
ALR 12 at [38].
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277.
Trade Marks Act 1995 (Cth), s 68.
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.
The CP also identifies more generally the problem of private sector persons or
bodies performing public functions, as in Datafin,17 regardless of whether the
decision might have been treated as being made "under an enactment" if only it
had been made by a government official.
It seems to me that there is one problem, not two, although I agree that it can manifest in
different guises.
I return to the Victorian Bar Council's suggested way around NEAT Domestic. The
suggested reform would go too far, because it picks up the decision-making of private
persons or bodies who may legitimately pay no regard to the public interest. In my trade
mark example, I am allowed to maintain my opposition on purely selfish grounds. This, in
fact, was the nub of Gleeson CJ's judgment in NEAT Domestic – his Honour focused not on
whether the decision-maker inhabited the public or private sphere, but whether it was
allowed by law to be utterly self-regarding.
Datafin might be uncertain, but it recognises that private bodies sometimes exercise public
(or governmental) power. Datafin's progeny also recognise that government frequently
exercises private power.
In each case (NEAT Domestic and Datafin), the problem is the same – how to define public
power. And it is no way around that problem to use other terms, such as "governmental", or
"public function". Those terms pose the same definitional problem.
I should add that it is equally unacceptable to reframe the test as being whether natural
justice applies to the decision-making process (a test that the CP discusses at [4.25]-[4.27]).
That is unacceptable because a natural justice test would both under-reach and over-reach. It
would under-reach in cases where the decision-maker is clearly making a judicially
reviewable decision but at the same time, is not bound by the principles of natural justice.
Obvious examples come from decisions to issue arrest or search warrants, because those
decisions need not comply with the principles of natural justice. It would over-reach in cases
where sporting bodies or clubs or private associations are contractually bound to observe the
principles of natural justice. Judicial review procedures would not apply in such contractual
contexts.
In addition, the Victorian suggestion does nothing to explain why judicial review abstains
from covering government's procurement decisions.
It seems to me that the fundamental difference is between decision-making that must take
account of at least some aspects of the public interest, and decision-making that the law
permits to be made on the grounds purely of self-interest. If ADJR were to define public
power in those terms, then the scope of that Act could (and should) be extended to cover
decisions, conduct, acts or omissions in breach of Commonwealth law imposing restraints
on or requirements for the exercise of public power.
Mark Aronson
13 May 2011.
17
R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1987] 1 QB 815.
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