SECRETARY
June 2011
Mr Colin Neave AM
President
Administrative Review Council
ARC Secretariat
Attorney General’s Department
3-5 National Circuit
BARTON ACT 2600
Dear Mr Neave
Thank you for your letter of 20 April 2011, inviting the comment on the Administrative Review
Council’s consultation paper on Judicial Review in Australia.
I support the work of the Administrative Review Council in undertaking this review and welcome
the opportunity to have input into the future direction of judicial review in Australia.
Information on the department’s experiences of judicial review and answers to some of the specific
questions raised in the issues paper are at Attachment A.
If you require further information, please contact Ms Catherine Smith, Governance Policy Section,
Corporate Services Division on 02 6272 5504 or at catherine.smith@daff.gov.au.
Once again, thank you for the opportunity to comment on your consultation paper.
Yours sincerely
Signed Conall O’Connell
18 Marcus Clarke Street Canberra City ACT GPO Box 858 Canberra ACT 2601
DEPARTMENT OF
ph +61 2 6272 4180 fax +61 6272 4906
AGRICULTURE,
FISHERIES
www.daff.gov.au
ABN 24 113 085 695
AND FORESTRY
ATTACHMENT A
The Department of Agriculture, Fisheries and Forestry (the department) has comments to make on
the following questions raised in the consultation paper:
Question 2
What are other examples of statutory judicial review? What are the appropriate
policy reasons for having a statutory appeal or review mechanism as opposed to relying on
general judicial review mechanisms? What characteristics should such a scheme have?
The department administers a number of pieces of legislation that contain internal review
mechanisms. These mechanisms allow a person affected by a decision to apply for merits review of
that decision (as opposed to judicial review). In addition, certain legislation administered by the
department permits a person affected by a decision to seek review of the decision in the
Administrative Appeals Tribunal.
Question 3
How should statutory judicial review cover subordinate legislation, particularly
where an instrument can be characterised as an administrative decision?
The department administers a number of pieces of legislation, such as the Export Control Act 1982,
the various Agricultural and Veterinary Chemical Products Acts, the Quarantine Proclamations and
the Fisheries Management Act 1991, which set out significant parts of their legislative schemes in
subordinate legislation.
Any changes to the statutory judicial review process to include decisions about subordinate
legislation in the decisions that can be reviewed under judicial review may have a significant impact
on the department and/or portfolio agencies and related industries. The ramifications of any
proposed changes would need to be considered closely on a case by case basis for each piece of
legislation.
It would seem the question is also directed towards the making of Regulations by the GovernorGeneral as well as other instruments like Orders by the Minister and Orders by the Secretary of the
Department of Agriculture, Fisheries and Forestry under, for example, the Australian Meat and
Live-stock Industry Act 1997. Depending upon any proposal that is put forward, the department may
have some concerns about the potential for judicial review to apply in this area as it is unclear how
a right to judicial review would interact with the scrutiny of legislation that is already undertaken by
Parliament (including the Senate Committee on Regulations and Ordnances (SCRO) and the
disallowance process).
Question 5
Should the ADJR Act be amended to include a statutory right to review decisions
made under executive schemes for which financial or other assistance is provided to individuals?
What examples are there of such schemes which are currently not subject to a statutory right of
review? What are the reasons for making them or not making them subject to statutory review?
The department administers a number of executive grant and exceptional circumstances schemes
which are not subject to a statutory right of judicial review. These schemes frequently contain at
least two tiers of internal review. If an applicant is not satisfied with the outcome of these reviews,
they are advised of their right to approach the Commonwealth Ombudsman or to apply for
discretionary compensation.
Some applicants do elect to have their matter considered under the discretionary compensation
mechanisms, in particular the act of grace scheme which, in itself, provides for a number of levels
of review.
It is the department’s view that there are currently sufficient review mechanisms available for
executive schemes administered by the department and that adding a statutory right of review for
these schemes would add an extra layer of red-tape without providing significant benefit to
applicants or agencies.
Question 16 One of the objectives of this examination of judicial review is to identify all
examples of legislation or subordinate legislation that include a specific right to reasons. Are
there examples of provisions giving a right to reasons which provide useful illustrations of
effective content, timing and form of reasons?
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), generally
speaking, gives a right to a statement of reasons to any person who is affected by a decision made
under legislation. There are decisions arising under legislation administered by the department
that already give rise to particular notification requirements, including the requirement to provide
reasons for the decision (which operate in addition to section 13 of the ADJR Act). Two examples
are section 29(4)(b) of the Fisheries Management Act 1991 and section 66AH(5)(a) of the
Quarantine Act 1908.
As a matter of good administrative law practice, virtually all decisions made should
be accompanied by reasons. There may, however, be situations, such as quarantine emergency
situations, where it is not possible to provide a long, detailed statement of reasons.
Any further statutory right to give reasons would need to be flexible to take account of differing
environments in which decisions are made. It is not clear whether a further statutory
right might apply to non-legislative decisions (that is, decisions made outside legislation but under
executive schemes) as it would seem to be redundant if it were to apply to legislative decisions,
given section 13 already exists.
Additional comments
The consultation paper draws on a number of previous recommendations and opinions put forward
by the Administrative Review Council that are of interest to the department.
One is the option of extending the right to judicial review under the ADJR Act to cover:
a. decisions of an administrative nature that are made under a non-statutory scheme or program
where funds appropriated by an Act of Parliament are being used;
b. statutory decisions made by the Governor-General; and
c. legislative actions of the executive.
In relation to (a) above, as the department administers (or co-administers) some grant programs,
such a change could increase the range of decisions made by the department that are subject
to judicial review. Any other non-statutory schemes it administers would also be affected.
In relation to (b) and (c) above, significant aspects of the legislation administered by the department
are contained in legislative instruments made under Acts of Parliament. A key example is the
Export Control Act 1982 and its numerous commodity-related orders. Extending the right to judicial
review to include statutory decisions of the Governor General and the legislative actions of the
executive could impose judicial review scrutiny over decisions made by the minister and the
secretary in making Orders and other legislative instruments. Currently, decisions of an
"administrative" character only may be reviewed under the ADJR Act.
A second is the option of reinstating the Schedule 2 exemptions to section 13 of the ADJR Act
which enables a statement of reasons to be requested. The exemptions currently in place that may
affect the department, if reinstated, include:
a. Remuneration Tribunal decisions and
b. decisions in connection with enforcing orders or judgments to recovery money owed.
While this would presumably affect the Remuneration Tribunal more than it would the department,
implementation of this recommendation may have a significant impact on the department due to the
number of Research and Development Corporations falling within the department's portfolio and
under the Primary Industries and Energy Research and Development Act 1989.
Further, as a number of areas of the department, such as the Australian Quarantine and Inspection
Service, operate on a cost-recovery basis, the requirement for a detailed statement of reasons for
debt recovery actions following judgment or order could also impact the department.