ADMINISTRATIVE
REVIEW COUNCIL
REPORT TO THE
ATTORNEY-GENERAL
REVIEW OF THE ADMINISTRATIVE
DECISIONS (JUDICIAL REVIEW)
ACT 1977 – STAGE ONE
Report No. 26
® Commonwealth of Australia 1986
ISSN 0815-3795
ISBN 0 644 05307 0
Typeset in Australia by Creative Typographics, Hobart
Printed in Australia by Pirle Printers Sales Pty Ltd, Fyshwick, A.C.T. 2609
ii
ADMINISTRATIVE REVIEW COUNCIL
G.P.O. Box 9955
Canberra, A.C.T. 2601
13 August 1986
Dear Attorney-General,
I have pleasure in submitting to you herewith a report by the Administrative Review
Council on Review of the Administrative Decisions (Judicial Review) Act 1977 - Stage One.
Yours sincerely,
E. J. L. Tucker
Chairman
The Hon. Lionel Bowen, M.P.
Attorney-General
Parliament House
Canberra, A.C.T. 2600
iii
The members of the Administrative Review Council at the date of the Council’s adoption of
this report were as follows:
Mr E. J. L. Tucker (Chairman)
The Hon. Mr Justice J. D. Davies
Mr G. K. Kolts, O.B.E., Q.C.
The Hon. Xavier Connor, A.O., Q.C.
Mr A. J. Ayers, A.O.
Mr P. Brazil
Mr J. H. P. Disney
Mr P. J. Flood
Mr W. E. Impey
Mr J. F. Muir
The Hon. Mr Justice P. R. Munro
Mr A. D. Rose
Dr C. A. Saunders
The members of the Committee responsible for oversighting the AD(JR) Act project at the
date of the Council’s adoption of this report were as follows:
Dr C. A. Saunders (Chair)
The Hon. Mr Justice J. D. Davies
The Hon. Xavier Connor, A.O., Q.C.
Mr L. J. Curtis, A.M.
Mr J. H. P. Disney
Mr G. K. Kolts, O.B.E., Q.C.
The Hon. Mr Justice P. R. Munro
Mr E. J. L. Tucker
The Council expresses its gratitude to the members of its secretariat, both past and present,
and its consultants on this project for the assistance given by them in preparing this report.
In particular, it wishes to thank its previous Director of Research and present consultant on
the AD(JR) Act project, Dr John Griffiths, now of Dawson Waldron, Solicitors (Sydney), its
other consultant on the project, Professor J. E. Richardson, A.O., its present Director of
Research, Mr Denis O’Brien, and its present Principal Project Officer, Mr Ron Fraser.
iv
CONTENTS
Paragraph
Page
Summary
Recommendations
Introduction
Council’s review of the AD(JR) Act
Structure of the report
1
5
1
3
4
4
4
Chapter 1: Alleged abuses of the Act
What is an ‘abuse’ of the AD(JR) Act?
Examination of areas of concern
Broadcasting
Trade practices
Migration
Taxation
Customs
Committal proceedings
Commonwealth prosecution decisions
Extradition proceedings
6
10
11
15
17
21
25
28
31
34
6
6
7
7
8
8
10
11
12
12
13
Chapter 2: The need for reform
37
15
42
44
48
49
16
16
16
17
18
68
69
23
23
75
80
85
89
90
91
92
93
25
26
27
29
29
29
30
30
95
99
31
32
Chapter 3: Proposals for reform
Objectives of the AD(JR) Act
Overlapping remedies
Abuse and delay: options for reform
Requirement of leave
Extending and clarifying the Federal Court’s powers to28
refuse an application
Existing powers of the Federal Court
Provisions modelled on Victorian Administrative
Law Act
Formulation of the Court’s discretion
Review of interlocutory decisions
Rules of court
Power to stay an application
Existence of other avenues of review
Exercise of discretion at outset of proceedings
Appeals
Exclusion of particular classes of decision from AD(JR)
Act review
Other proposed changes
Appendix: Consultations
34
v
SUMMARY
1.
This report constitutes the first stage of a major examination of the operation of the
Administrative Decisions (Judicial Review) Act 1977. The project was commenced in June 1983.
On three separate occasions during 1985 the Council advised the government on various
proposals to exempt particular classes of decisions from review under the AD(JR) Act. The
present report is being transmitted to provide advice to the government in relation to current
claims that the Act is being abused in some areas and to calls for appropriate action to be
taken to prevent such abuses occurring. In the preparation of this report the Council has
been assisted by those organisations which, and individuals who, responded to the
discussion paper circulated by the Council in mid-January 1986. (paras 1-4)
2.
The purpose of the Act was to provide a relatively simple means of obtaining judicial
review of administrative action. The Act purports to strike a balance between, on the one
hand, the need to provide individuals with a means by which they may effectively obtain
judicial review of the legality of public administrative action and, on the other hand, the
need to protect public authorities from unwarranted action. The fundamental issue is
whether experience of the Act’s operation has demonstrated that, in the course of achieving
its primary aims, the Act has left public authorities open to unwarranted litigation. (para 6)
3.
It would be highly undesirable if the Act were being used unduly to frustrate or
impede legitimate administrative action in an attempt to obtain mere tactical advantage.
However, in the Council’s view an increase in the number of judicial review cases, whether
generally or under specific legislation, does not of itself indicate that the Act is being abused.
Again, an abuse of the Act is not indicated by the mere fact that an application for an order
of review has been refused. Even unsuccessful proceedings under the Act may involve real
questions, whether of fact or law or both, which justifiably require adjudication and
determination by a court. (paras 6-8)
4.
In the Council’s view it is generally only correct to describe as abuses of the Act those
proceedings which are designed to delay or frustrate Commonwealth administration (in a
broad sense) merely in order to gain a tactical advantage rather than to establish a genuine
legal right or interest (para 9). The Council has found little evidence of such abuses
(paras 10-36). However, it considers that the possibility of using the Act for the purposes of
delay exists in relation to the conduct of ongoing proceedings of tribunals such as the
Australian Broadcasting Tribunal and in an area such as taxation (para. 38).
5.
A further difficulty which the Council perceives is in relation to problems of
overlapping remedies, both in general terms and in terms of legislation which provides
specific avenues for judicial review of, or appeal against, administrative action. The issue of
overlapping remedies arises in relation to many areas of Commonwealth administration and
the Council believes that a detailed study of the statutory provisions in those areas is
required to determine whether such provisions are appropriate and warranted where
AD(JR) Act review also applies. This matter will be further considered in the next stage of
the Council’s review of the AD(JR) Act. The Council also intends to examine at that time the
relationship between review by the Federal Court under section 39B of the Judiciary Act 1903
and review by that Court under the AD(JR) Act. (paras 44-6)
1
6.
However, the Council makes one recommendation now relating to overlapping
remedies, and that is that the Federal Court’s (and, in certain circumstances, any other
court’s) discretion to stay, or to refuse to grant, an application for review of a decision etc
should be capable, of being exercised at any stage of the proceedings and should be exercised
at the outset of proceedings wherever appropriate (paras 47 and 92 and
recommendation 1(5)).
7.
In the light of the Council’s conclusion that there is a possibility that the procedures
established by the Act may be used for purposes of delay, at least in relation to certain areas
of administration such as broadcasting and taxation, the report discusses several options for
reform. It examines in detail arguments for and against a requirement of leave and the
Council concludes that the reasons advanced for the adoption of a leave requirement are not
persuasive (paras 48-67). However, after considering the Federal Court’s existing powers
(paras 69-74), and the desirability or otherwise of amendments based on the Victorian
Administrative Law Act (paras 75-9), the Council recommends the amendment of the Act to
extend and clarify the Federal Court’s powers to stay, or to refuse to grant, an application
under the AD(JR) Act (paras 80-94). In particular the Council recommends that the Court’s
powers be defined more clearly in the Act by providing for:
 specific formulation of the Federal Court’s general discretion to stay or to refuse to grant
an application (paras 83-4 and recommendation 1(1));
 making special provision in relation to interlocutory decisions made in the course of
proceedings before another court, tribunal, authority or person, or a failure to make a
decision in the course of such proceedings, designed to assist the Federal Court in the
exercise of its discretion to stay or refuse to grant an application by specifying the
interests it should take into account, including the consequences of delay in such
proceedings (paras 85-88 and recommendation 1(4)(a));
 specific reference to the Federal Court’s powers to stay, or to refuse to grant an
application, under one or more relevant rules of the Federal Court Rules (para. 89 and
recommendation 1(4)(b));
 retention of the Federal Court’s, or any other court’s, existing powers to dismiss or stay
an application instituted otherwise than under the Act where an application has been
made under the Act (recommendation 1(2));
 retention of the Federal Court’s power to stay or dismiss an application made under the
Act where an alternative avenue of judicial review has been utilised or there is adequate
provision for review of a decision under a law other than the Act and the Court is
satisfied that, in all the circumstances of the case, it would be reasonable for the applicant
to seek such review (recommendation 1(3)); and
 exercise of the Court’s discretion to stay, or to refuse to grant, an application at any stage
of the proceedings and at the outset wherever appropriate (para. 92 and
recommendation 1(5)).
8.
Apart from decisions taken in the course of committal proceedings involving
Commonwealth offences (a matter on which the Council has already made a
recommendation to the government), the Council does not support the exclusion from
review under the AD(JR) Act of the particular classes of decisions in relation to which
concern about abuse of the Act has been expressed. (paras 95-8)
2
RECOMMENDATIONS
Powers of the Federal Court to stay, or to refuse to grant, an application for review
1.
(1)
The Administrative Decisions (Judicial Review) Act 1977 (‘the Act’) should provide that:
The Federal Court may, in its discretion, stay, or refuse tog rant, an application made
to it under section 5, 6 or 7 for a review of a decision, of conduct engaged in for the
purpose of making a decision, or of a failure to make a decision, where the Federal
Court is of the opinion that it is inappropriate, or inappropriate at that time, either to
hear and determine or to grant the application as the case may be.
(2)
In a proceeding instituted otherwise than under the Act, the Federal Court or any
other court may, in its discretion, stay, or refuse to grant, an application for a review
of a decision, of conduct engaged in for the purpose of making a decision, or of a
failure to make a decision, for the reason that an application has been made to the
Federal Court under section 5, 6 or 7 in respect of that decision, conduct or failure.
(3)
The Federal Court may, in its discretion, stay, or refuse to grant, an application made
to it under section 5, 6 or 7 for a review of a decision, of conduct engaged in for the
purpose of making a decision, or of a failure to make a decision (a) where the Federal Court is satisfied that the applicant has sought a review by the
Federal Court or by another court of that decision, conduct or failure otherwise than
under the Act; or
(b) where the Federal Court is satisfied that adequate provision is made by any law other
than the Act under which the applicant is entitled to seek a review by the Federal
Court, by another court or by another tribunal, authority or person, of that decision,
conduct or failure, and that, in all the circumstances of the case, it would be
reasonable, or would have been reasonable, for the applicant to seek that review.
(4)
Without limiting the discretion referred to in clause (1), the Federal Court may
exercise its discretion to stay, or to refuse to grant, an application (a) in a case where the application is made in respect of a decision made or to be made in
the course of proceedings before another court, tribunal, authority or person or where
the application is made in respect of a failure to make a decision in the course of such
proceedings, where the Federal Court is satisfied that (i)
those proceedings will conclude in a final decision that will be subject to review
by the Federal Court under the Act or by another court; and
(ii)
in all the circumstances, the balance of convenience, including the interests of
the applicant, the respondent or any other person, the public interest and the
consequences of delay in those proceedings, so requires; or
(b) where the Federal Court is satisfied that, in all the circumstances, a decision to stay, or
to refuse to grant, the application is justified under one or more relevant rules of the
Federal Court Rules.
(5)
The Federal Court’s discretion to stay, or to refuse to grant, an application for review
is capable of being exercised at any stage of the proceedings and should be exercised
at the outset of proceedings wherever appropriate.
2.
The Federal Court of Australia Act 1976 should be amended to provide that, except in
relation to a final judgment made in pursuance of recommendation 1(4)(b), an appeal should
not be brought from an order made in pursuance of recommendations 1(1)-1(4) unless the
Federal Court or a judge gives leave to appeal.
3
INTRODUCTION
Council’s review of the AD(JR) Act
1.
Following receipt of a request in June 1983 from the then Attorney-General, the
Council commenced work on a major project reviewing the operation of the Administrative
Decisions (Judicial Review) Act 1977 (‘AD(JR) Act’). An issues paper prepared by the Council’s
secretariat in relation to this project was circulated to interested groups and persons in
July 1984. Public seminars were held in Canberra, Sydney and Melbourne in July and
August 1984 to discuss the issues paper. Since then the Council has received many
submissions relating to its project from government agencies and private individuals and
organisations.
2.
On three separate occasions during 1985 the Council advised the government on
various proposals to exempt particular classes of decisions from review under the AD(JR)
Act. The nature of that advice is summarised below. (paras 28-36)
3.
The Council is continuing with its AD(JR) Act project but has thought it desirable to
transmit separate advice to the government in relation to current claims that the Act is being
abused in some areas and to calls for appropriate action to be taken to prevent such abuses
occurring. Among the matters about which concern has been expressed are the existence in
certain jurisdictions of overlapping remedies and the alleged abuse of AD(JR) Act processes
for ends which are perceived as illegitimate, such as to delay and frustrate Commonwealth
administration. At its meeting on 5-6 December 1985, the Council arranged for the early
preparation of a report to the Attorney-General on the question of the need to amend the
AD(JR) Act to deal with alleged abuses of that Act in certain areas of Commonwealth
administration. This report deals with that question. It constitutes Stage One of the
Council’s review of the AD(JR) Act.
4.
In order to assist in the preparation of a report on this stage of the project, a
discussion paper was prepared by the Council’s secretariat and distributed to interested
groups and persons. The Council is grateful to all those groups and persons who accepted
the invitation to comment on the matters raised in the discussion paper. A list of those who
commented appears in the Appendix. Some submissions raised issues relating to the
operation of the AD(JR) Act which went beyond the scope of the matters dealt with in the
discussion paper and are outside the ambit of this report. Those broader issues will be dealt
with by the Council in the remaining stages of the review of the AD(JR) Act. (see paras 1-3)
Structure of the report
5.
The report is divided into three chapters. Chapter 1 deals with the question of
alleged abuses of the AD(JR) Act, and refers to the areas of Commonwealth administration in
which those abuses have been said particularly to have arisen. Chapter 2 briefly examines
the general need for reform as it emerges from discussion of the alleged abuses and from the
submissions made to the Council in response to the discussion paper referred to in
paragraph 4. Chapter 3 examines in detail certain proposals for reform of the AD(JR) Act
including: a suggestion that there be a requirement for leave to be granted by the Federal
Court before an application for review under the AD(JR) Act could be made (paras 49-67);
extending and clarifying the Federal Court’s powers to refuse an application (paras 68-94);
4
and exclusion of particular classes of decision from AD(JR) Act review (paras 95-8). It
recommends amendments to the Act by which the Federal Court’s powers can be extended
and clarified to enable it to stay or refuse to grant applications in appropriate cases. In view
of the complex questions which require examination and discussion the Council proposes to
deal with most aspects of the issue of overlapping remedies in a later stage of this project,
but it makes a recommendation concerning the timing of the exercise of the Federal Court’s
(or, in certain circumstances, any other court’s) powers to stay or to refuse to grant an
application for review of a decision, conduct engaged in for the purpose of making a
decision, or a failure to make a decision (paras 44-7 and 92 and recommendation 1(5)).
5
CHAPTER 1
ALLEGED ABUSES OF THE ACT
What is an ‘abuse’ of the AD(JR) Act?
6.
The purpose of the Act was to provide a relatively simple means of obtaining judicial
review of administrative action. The Council considers it most important not to describe too
readily as ‘abuses’ of the Act proceedings which are of the kind which the Act itself was
designed to enable to be brought before the Federal Court. The Act purports to strike a
balance between, on the one hand, the need to provide individuals with a means by which
they may effectively obtain judicial review of the legality of public administrative action and,
on the other hand, the need to protect public authorities from unwarranted litigation. The
fundamental issue is whether experience of the Act’s operation has demonstrated that, in the
course of achieving its primary aims, the Act has left public authorities open to unwarranted
litigation. It would be highly undesirable if the Act were being used unduly to frustrate or
impede legitimate administrative action in an attempt to obtain mere tactical advantage.
7.
Since the AD(JR) Act was designed to make judicial review more accessible, it can
scarcely be maintained that it is being abused merely because there has been an increase in
the number of judicial review cases. In particular, high usage of the Act to challenge
decisions made under specific legislation does not of itself indicate that the Act is being
abused. In some areas where high usage has occurred the legislation under which the
relevant decisions are taken is extremely complex and decisions taken under it are inherently
liable to be the subject of challenge. The appropriate remedy in such cases, if remedy is
needed, is reform of the substantive legislation. In some areas new legislation raises difficult
questions for decision, resulting in an upsurge in the number of AD(JR) Act challenges,
followed frequently by a slackening off once the Federal Court’s approach to the legislation
begins to emerge. Moreover, in some of the major areas of AD(JR) Act litigation, for example
taxation and migration, the large number of decisions in those areas which are not currently
reviewable on the merits by the Administrative Appeals Tribunal (‘the AAT’) or a specialist
tribunal goes some of the way, at least, to explain the high volume of applications under the
AD(JR) Act.
8.
Again, an abuse of the Act is not indicated by the mere fact that an application for an
order of review has been refused. Even unsuccessful proceedings under the Act may involve
real questions, whether of factor law or both, which justifiably require adjudication and
determination by a court and in relation to which it is reasonable to make an application
under the Act. Nor is it necessarily an abuse of the Act for proceedings under it to have the
consequence of delaying some other proceedings which are already in train. Much
obviously depends on the surrounding circumstances.
9.
It appears to the Council that many of the allegations about ‘abuses’ of the Act have
been exaggerated. In some areas what appear to have been abuses have been remedied by
action of the Federal Court itself. In the Council’s view it is generally only correct to describe
as abuses of the Act those proceedings which are designed to delay or frustrate
Commonwealth administration (in a broad sense) merely in order to gain a tactical
advantage rather than to establish a genuine legal right or interest. However, it may not
always be easy or possible in practice to identify such cases.
6
Examination of areas of concern
10.
Concern about abuse of the Act has been raised primarily in relation to the following
areas of Commonwealth administration:
 broadcasting
 trade practices
 migration
 taxation
 customs
 committal proceedings
 prosecution decisions
 extradition proceedings.
Each of these areas is now dealt with briefly.
BROADCASTING
11.
In its Annual Report for 1984-85, the Australian Broadcasting Tribunal (‘ABT’) stated
(p. xii):
The effect of the new Commonwealth administrative law has been to make the process of
inquiry and decision-making by the Tribunal more elaborate and formal. The
interactions, ramifications and applications of the provisions of the Broadcasting and
Television Act now applying are a fertile source for litigation Tribunal actions and
decisions are frequently challenged in court by those with the economic resources to do
so. The result is inevitable concentration of the Tribunal’s scarce public resources on a
small number of issues and inquiries. Inquiries must be conducted, and reports and
other documents must be written, in a manner and form that creates a suitable record for
judicial and other review. Whatever the policy objectives of the current scheme, in
practical reality the Tribunal no longer has the flexibility to direct its resources to the
areas which it would judge to be the most critically important to broadcasters and the
community.
The Tribunal’s concern about some aspects of the AD(JR) Act is illustrated by its
experience with its inquiry into the grant of a third commercial television licence for
Perth. The hearing, which involves three Tribunal members, commenced in December
1984 and is likely to continue into 1986. A significant cause of delay and expense in the
inquiry has been the use of the AD(JR) Act as a means of obtaining judicial review of
decisions made by the Tribunal during the course of the inquiry and before its
completion (interlocutory decisions). Since the beginning of this year, eleven actions
arising in the course of the inquiry have been decided by the Federal Court. In general,
the Perth inquiry litigation indicates the need to consider appropriate limits on the use of
the AD(JR) Act in interlocutory proceedings.
12.
Details of litigation arising from the ABT’s Perth inquiry up until 1 August 1985 were
provided to the Council by the Acting Secretary of the ABT in a ‘staff addendum’
dated 5 1985 which September supplemented an earlier submission on the AD(JR) Act
project from the Tribunal dated 18 October 1984. The addendum covered many of the points
raised in the Tribunal’s Annual Report and went on to suggest that one option for reform
would be to introduce into the AD(JR) Act ‘a presumption that interlocutory relief should
not be granted unless a final decision, once taken, could not be reversed at all, or could only
be reversed with substantial detriment to the applicant for interlocutory relief’.
7
13.
Since the staff addendum to the ABT’s submission was prepared, further litigation
has occurred in respect of the Perth inquiry involving two separate applications for AD(JR)
Act review challenging the ABT’s rulings on confidentiality of documents and cross
examinations of witnesses respectively. Furthermore, three appeals have been heard during
this period, including an application for special leave to appeal to the High Court, all of
which have been unsuccessful. The Council is also aware that the AD(JR) Act has been used
on several occasions recently to challenge ABT rulings and decisions in inquiries other than
the Perth inquiry.
14.
Many of the submissions made to the Council which have referred to the
broadcasting area have expressed the view that it is not surprising that the AD(JR) Act has
been employed frequently in relation to hearings conducted by the ABT. The legislation and
procedures under which the ABT operates, and the tasks which the ABT is called upon to
perform, are complex in the extreme, and there are considerable financial interests involved.
Within the framework of the Broadcasting Act, the ABT is expected to make decisions in the
public interest which also have a major impact on competing private interests. Its decision
making function operates in an area which has been highly regulated. The more one
regulates, the more one creates the opportunity for review. The Council accepts that, while
the ABT continues to play a role as important and sensitive as it now does under the existing
legislation, there will continue to be challenges to the ABT’s decisions on both procedural
and substantive matters. Perhaps the coming into force of amending legislation which
effects major changes in the procedures of the ABT will result in some decline in the number
of AD(JR) Act applications concerning interlocutory decisions of the ABT, but the Council
would not expect such litigation to disappear altogether. (See the Broadcasting and Television
Legislation Amendment Act 1985 and the Australian Broadcasting Tribunal (Inquiries)
Regulations 1986.) In view of the concern which has been expressed as to the possibilities for
abuse of the Act in relation to interlocutory decisions of the ABT, particularly so far as delay
is concerned, the Council considers later whether it would be desirable to reinforce the
powers of the Federal Court to decline to deal with applications for review of such decisions.
This matter is discussed in paragraphs 85-8.
TRADE PRACTICES
15.
In a submission dated 20 September 1984 prepared by the Office of the Trade
Practices Commission (‘TPC’) in relation to the Council’s review of the AD(JR) Act, the office
said that it was particularly concerned at the following:
 problems created by the fact that the TPC’s actions and decisions were subject to two
separate avenues of challenge - the jurisdiction of the Federal Court under section 163A
of the Trade Practices Act 1974 to grant declaratory or prerogative relief in relation to acts
done under the Act, and the Federal Court’s jurisdiction under the AD(JR) Act;
 use of the AD(JR) Act to delay investigations of proceedings as well as its use by third
parties to delay crucial and expensive litigation.
16.
The Council has noted that during the period October l980 to December 1983 there
were nine Federal Court decisions involving AD(JR) Act review of TPC decisions and that no
applications for review under the Act appear to have been lodged during the period
1 January 1984 to 11 June 1986 in respect of actions or decisions of the TPC. The Council has
also noted that to date there have been no simultaneous challenges of TPC decisions
pursuant to both section 163A of the Trade Practices Act and the AD(JR) Act. The question
of overlapping remedies is discussed below at paragraphs 44-7.
8
MIGRATION
17.
Extensive use has been made of the AD(JR) Act to challenge migration decisions.
During 1985, for example, a total of 73 applications for review were lodged with the Court in
relation to decisions taken pursuant to the Migration Act 1958, which constitutes some 30% of
all applications for review lodged in that period under the AD(JR) Act. The progressive total
for 1986 as at 11 June was 47, which constitutes 39% of the applications for review lodged in
that period. (See Table 1(a) below.) According to the Department of Immigration and Ethnic
Affairs’ Annual Report, Review 1985, applicants were successful in 25% of the decisions
handed down by the Federal Court in relation to migration decisions during the financial
year 1984-85. The figures in Table 1(b) have been supplied by the Department for the period
1 July 1985 to 8 January 1986.
Table 1(a): AD(JR) Act
Applications for review of migration decisions: Number of applications expressed as a
percentage of all applications for review 1 January 1982 to 11 June 1986
Year
1982
1983
1984
1985
1 Jan. to
11 June 1986
Migration applications 26
33
36
73
47
Total applications
118
164
224
237
119
Percentage
22
20
16
31
39
Source: Federal Court of Australia
Table 1(b): AD(JR) Act
Applications for review of migration decisions 1 July 1985 to 8 January 1986: Outcomes
Number of Applications:
Deportation orders (s.18)
31*
Permanent residence only (s.6(2))
10
S.36A custody
2
S.39 custody
1
Full Court appeals
3
Total
47
* In most of these cases the decision to refuse permanent resident and/or refugee status was also
considered.
Outcome of finalised applications:
Withdrawn
Interim stay refused – deported
Application dismissed
Application upheld
Outstanding applications:
Stay granted in deportation cases
Permanent resident cases (no stay required)
Total
8
13
3
3
11
9
47
Source: Department of Immigration and Ethnic Affairs
18.
The department also commented that the decision of the High Court in Minister for
Immigration and Ethnic Affairs v Mayer (1985) 61 ALR 609, to the effect that a determination of
the Minister that a person has the status of a refugee is a decision taken under paragraph
6A(1)(c) of the Migration Act is expected to add further to the volume of litigation involving
the department. The department has also indicated, however, that it intends seeking the
removal from the Migration Act of that paragraph.
9
19.
The department pointed to its particular concerns with the delay which maybe
caused by review proceedings under the AD(JR) Act, especially in relation to deportation
decisions, and decisions taken under sections 36 and 36A relating to custody and return of
stowaways and those who it is reasonably believed would become prohibited non-citizens if
they were to enter Australia. It expressed a desire for expedited AD(JR) Act hearings in
migration matters by such methods as outlining in the Act strict time limits for the taking of
interlocutory steps in proceedings. The department also requested that consideration be
given to requiring security for costs to be imposed automatically in migration cases because
of the likelihood that the applicant, if unsuccessful, would be required to leave Australia,
thus making it impossible inmost cases to recover costs. The department did not see its
major concerns being assisted by means of any of the four options canvassed in the
discussion paper. (see para 48)
20.
The Council draws attention to the fact that it recently transmitted a report to the
Attorney-General on Review of Migration Decisions (Report No. 25, AGPS, 1986) in the course
of which it recommended that provision be made for review on the merits of most classes of
decisions taken under the Migration Act. The classes of decisions in respect of which review
on the merits is recommended include decisions that currently attract almost all the
applications under the AD(JR) Act in the migration field (ss.6(2), 6A and 18 of the Migration
Act). Although the conclusion should not be too readily drawn that provision for review on
the merits will put an end to AD(JR) Act applications in the migration field, the Council
considers that its recommendations in Report No. 25 should at least lead to a substantial
diminution in the number of those applications. In this connection, it is noteworthy that
there appear to have been no AD(JR) Act applications involving section 12 of the Migration
Act (‘criminal deportations’). Decisions under section 12 have been reviewable by the AAT
since the coming into force of the AAT Act in 1976. It appears to the Council that the
relatively large number of applications under the AD(JR) Act in the migration field are the
result of the virtual absence of any other mechanism under which aggrieved persons may
have their cases heard.
TAXATION
21.
In a detailed submission prepared in response to the secretariat’s discussion paper
the Commissioner of Taxation (‘the Commissioner’) claimed that the AD(JR) Act was being
used in a significant number of cases primarily out of a desire to delay and frustrate the
Commissioner’s administration of tax legislation, particularly with regard to actions taken by
the Australian Taxation Office (‘ATO’) to recover tax, and with regard to decisions refusing
an extension of time to pay tax. In support of this contention, the ATO drew attention to use
of the Act in cases such as Manners v Deputy Federal Commissioner of Taxation and Terrule v
Deputy Federal Commissioner of Taxation (reports of some aspects of these cases appear in 85
ATC 173, 85 ATC 4290 and 85 ATC 4294).
22.
The Council has noted that the ATO’s submission raised several wider matters
relating to the operation and use of the AD(JR) Act which fall outside the scope of this report
but which the Council proposes to take into account in its general review of the Act.
23.
The Council notes that the use of the AD(JR) Act in income tax matters has fluctuated.
The figures since the start of 1982 for applications under the Act in the income tax field and
for total applications in all fields are as follows:
10
Table 2: AD(JR) Act
Applications for review of Income Tax decisions: Number of applications expressed as a
percentage of all applications for review 1 January 1982 to 11 June 1986
Year
1982
1983
1984
1985 1 Jan. to 11 June 1986
Income tax applications
5
25
42
31
34
Total applications
118
164
224
237
119
Percentage
4
15
19
13
29
Source: Federal Court of Australia
11
24.
The Council notes that several applications in the taxation field have been dismissed
by the Court as being in the nature of ‘fishing expeditions’ and, under the existing Federal
Court Rules (see paras 69-70 below), as failing to reveal a reasonable cause of-action or as
being frivolous, vexatious or an abuse of the process of the Court. For example, see the
decisions in Eighth Oupan Pty Ltd v Deputy Commissioner of Taxation (1986) 86 ATC4309 (Full
Court of the Federal Court); Gray v Deputy Commissioner of Taxation (1985) 85 ATC 4690
(where Mr Justice Northrop criticised the ‘scattergun approach’); and Sixth Ravini Pty Ltd v
Deputy Commissioner of Taxation (1985) 85 ATC 4307. The Court thus appears to be alert to
the possibilities of abuse and to be ready to employ its existing powers to prevent abuse
occurring. Nevertheless, some of the cases in the taxation area would appear to suggest the
possibility of use of the Act for purposes only of delay.
CUSTOMS
25.
In a detailed submission to the Council in response to the discussion paper, the
Australian Customs Service (‘ACS’) expressed its concern about several aspects of the
operation of the AD(JR) Act which it stated were creating problems. Those problems relate
primarily to overlapping judicial remedies which are available in respect of many customs
decisions and to delays in customs administration occasioned by AD(JR) Act proceedings.
The overlapping remedies relate to remedies available under the Customs Act 1901 and the
common law as well as under the AD(JR) Act. It may be noted, however, that the decision of
the Full Court of the Federal Court in Pearce v Button (1986) 65 ALR 83 is directly relevant to
the concern expressed by ACS as to the erosion of existing remedies for recovery of seized
goods because of the availability of the alternative avenue of applying for an order under the
AD(JR) Act. It was held in Pearce v Button, contrary to the view which had been expressed in
some earlier cases, that, on a review under the AD(JR) Act of a decision to seize goods, there
was no power pursuant to section 16(1)(c) of the Act to determine the question of forfeiture
of imported goods. The effect of the decision is that the question of forfeiture will continue
to fall for determination in the traditional venue, namely, the State courts.
26.
The ACS also stated in its submission that it was of the opinion that the AD(JR) Act
provided an inappropriate method of reviewing many customs decisions and that the Act
was being used largely because of the absence of a more appropriate right of review on the
merits. This observation raises issues which are beyond the scope of this report, but the
Council draws attention to the fact that it has proposed to the government that the AAT’s
existing jurisdiction to review decisions under the Customs Act 1901 and various customs
regulations be significantly extended (see Report No. 23, Review of Customs and Excise
Decisions: Stage Two [AGPS, 1985]). That report is currently being considered by the
government.
27.
The number of applications in the customs field and the percentage which they
constitute of all AD(JR) applications since 1982 are shown in Table 3. Applications
concerning customs legislation reached a high level in 1984 and 1985 but the trend is not
continuing at present. It is not possible, however, to make confident predictions as to the
future level of customs applications under AD(JR) Act. The following table sets out the
number and percentage of such applications for the period 1 January 1982 to 11 June 1986.
12
Table 3: AD(JR) Act
Applications for review of customs decisions: Number of applications for review 1
January 1982 to 11 June 1986
Year
1982
1983
1984
1985
1 Jan. to
11 June 1986
Customs applications
9
6
35
38
5
Total applications
118
164
224
237
119
Percentage
8
4
16
16
4
Source: Federal Court of Australia
Note: Figures include anti-dumping applications
COMMITTAL PROCEEDINGS
28.
In May 1985, the Attorney-General wrote to the Council seeking its urgent advice on
a proposal to exclude decisions taken by magistrates in committal proceedings for
Commonwealth offences from review under the AD(JR) Act. In requesting the Council’s
advice, the Attorney-General referred to the concern of the Director of Public Prosecutions at
the ‘large number of challenges being made to committal proceedings’ by use of the AD(JR)
Act, ‘most of which (were) without any merit at all’ and which were ‘proving to be quite
disruptive to the ordinary course of committal proceedings’. The Council’s advice to the
Attorney-General on this matter was transmitted on 4 July 1985 and is summarised in the
Council’s Ninth Annual Report (paras 115-122). In brief, the Council concluded that decisions
of magistrates in committal proceedings should be removed from the ambit of the AD(JR)
Act but that the Act should be appropriately amended to ensure that the jurisdiction of State
Courts to review such decisions was not ousted by the operation of section 9 of the AD(JR)
Act.
29.
The Council was advised in a submission from the Attorney-General’s Department to
the Council dated 5 March 1986 that the Attorney-General has not acted on the Council’s
advice primarily because he considers that the rights of review available before State courts
in relation to committal proceedings are not equivalent to those which are available under
the AD(JR) Act and that, therefore, individuals would be deprived of existing rights if
decisions of magistrates in committal proceedings were to be removed from the ambit of the
Act. The Attorney-General’s Department drew attention to the majority decision of the New
South Wales Court of Appeal in Wentworth v Rogers [1984] 2 NSWLR 422. In that case the
Court of Appeal held that, despite the views expressed by the then Acting Chief Justice,
Sir Harry Gibbs, and Mr Justice Mason, in Sankey v Whitlam (1978) 142 CLR 1, as to the
availability of prerogative relief by way of prohibition or certiorari directed to committal
proceedings, a decision of a magistrate whether a defendant should be discharged or
committed for trial is not amenable to correction by the New South Wales Supreme Court in
the exercise of its power to grant such prerogative relief.
30.
The Council is aware that there is conflicting authority on the question whether State
Supreme Courts can issue prerogative writs in respect of committal proceedings. Grounds
for suggesting that they can do so may be argued to exist as a result of the High Court’s
decision in R v Murphy (1985) 59 ALJR 682 in which, at 686-7, committal proceedings are
analysed by the Court in a way that is consistent with the analysis of Mr Justice Mason in
Sankey v Whitlam (1978) 142 CLR 1, at 83-4.
13
COMMONWEALTH PROSECUTION DECISIONS
31.
On 25 June 1985 the Secretary to the Attorney-General’s Department wrote to the
Council requesting its urgent advice on a proposal by the Director of Public Prosecutions
(‘DPP’) to exclude from review under the AD(JR) Act decisions taken in connection with the
Territory laws. In a submission to the Council dated July 1985 from the office of the DPP, the
proposal to exclude prosecution decisions from AD(JR) Act review was supported on several
grounds, including the following:
 Although at that time the office had been involved in only two AD(JR) Act proceedings
in relation to prosecution decisions, the office apprehended that there was a developing
trend to use the Act in this area and it feared that the Act would be used even more
extensively in the future to challenge pre-committal decisions if committal proceedings
were excluded from the Act’s ambit as the Council had proposed in its earlier advice.
 Past experience had demonstrated how the Act could be used to delay, hamper and
harass the due administration of criminal justice.
32.
The Council’s advice on the DPP’s proposal was transmitted to the Attorney-General
on 5 September 1985. In summary, the Council advised that prosecution decisions should
remain subject to review under the AD(JR) Act but use of the Act to challenge such decisions
should be closely monitored. Moreover, although the Council concluded that experience to
that date with the operation of the Act in this area did not justify the introduction of a
requirement of leave, it suggested that consideration might need to be given to the
possibility of introducing a requirement of leave if experience revealed that the Act was
being abused. Finally, the Council advised that if a leave requirement were introduced in
these circumstances and proved ineffective, then consideration would need to be given to a
total or partial exclusion of prosecution decisions from the Act’s ambit.
33.
The Council’s secretariat was advised by the DPP’s office during the preparation of
the discussion paper preceding this report that, although it was not in a position in the time
available to collect statistics regarding use of the AD(JR) Act to challenge Commonwealth
prosecution decisions since the office made its submission to the Council in July 1985, the
concerns it expressed in that submission remained. Subsequently, in a written submission to
the Council responding to the discussion paper the office stated its view that, in so far as
committal proceedings and prosecution decisions are concerned, the only solution is to
exclude those classes of decision from review under the AD(JR) Act.
EXTRADITION PROCEEDINGS
34.
On 30 August 1985 the Secretary to the Attorney-General’s Department wrote to the
Council seeking its urgent advice on a proposal to exclude from review under the AD(JR)
Act decisions taken in the course of extradition proceedings. In his letter, the Secretary drew
the Council’s attention to the fact that, in two extradition cases handled by his department,
fugitives had simultaneously sought habeas corpus in a State Supreme Court and judicial
review in the Federal Court under the AD(JR) Act and that, as a result, at the date of his letter
a period of more than two years had elapsed since the first extradition proceedings. It is
noted that this matter was only finalised when, after granting special decision of the Full
Court of the Federal Court in relation to those extradition proceedings. The Secretary also
attached to his letter a working paper prepared by officers of his department which
identified some practical problems arising as a result of the superimposing of judicial review
under the AD(JR) Act on statutory review procedures established by extradition legislation.
35.
The Council’s advice on this matter was transmitted to the Attorney-General on
1 October 1985. In brief, the Council’s view was that no case had been made out at that time
14
to warrant exclusion of extradition decisions from AD(JR) Act review but that use of the Act
in this area should be closely monitored and, if necessary, consideration should be given to
introducing into the Act a requirement of leave to deal with proceedings being brought
under the Act with the primary intention of delaying the execution of an extradition order or
any problems arising from an overlap in judicial remedies in this area.
36.
The Council’s secretariat was advised by the Attorney-General’s Department in the
course of preparing the discussion paper preceding this report that no further applications
for AD(JR) Act review of extradition decisions had been lodged with the Federal Court since
August 1985 when the Council’s urgent advice on this topic was originally sought.
15
CHAPTER 2
THE NEED FOR REFORM
37.
On the basis of the above discussion of alleged abuses of the AD(JR) Act the Council
has concluded that some problems appear to exist which require it to consider whether there
is a need for amendment of the Act. It does not see any need for sweeping reforms emerging
from the areas discussed above.
38.
The Council has identified two main areas of difficulty in relation to the operation of
the AD(JR) Act. The first is the possibility of unwarranted delay occurring in the conduct of
ongoing proceedings of tribunals such as the Australian Broadcasting Tribunal, and the
possibility of using the procedures established by the Act for purposes of delay in an area
such as taxation. The Council considers that the possibility of use of the Act in this way is
sufficiently real for it to consider whether the existing powers of the Federal Court in relation
to unwarranted applications are adequate or require some degree of reinforcement. These
powers are examined in paragraphs 69-71. The discussion paper circulated by the Council
invited comments on the adequacy of the existing powers of the court to deal with problems
of abuse and delay, and some of the views expressed in response to that invitation are
referred to below in connection with an examination of the possible options for reform
(paras 72-4). Generally speaking, opinions were equally divided on the issue whether or not
the existing powers of the Federal Court were adequate.
39.
The second area of difficulty which the Council perceives is in relation to problems of
overlapping remedies, both in general terms and in terms of legislation which provides
specific avenues for judicial review of, or appeal against, administrative action. This matter
is discussed further below. (paras 44-7)
40.
The Council has taken all the submissions it received into account in formulating its
advice to the government on this matter and it does not consider that it is appropriate or
necessary for it to summarise all those submissions. It believes, however, that the following
extract taken from the submission of the Solicitor-General of Australia is generally
representative of the view that existing powers are inadequate:
It is not my experience that any of the provisions which deal with the abuse of court
processes (as summarised in paragraph 26 of your Discussion Paper) are in any practical
sense of any assistance in resolving satisfactorily the substantial issue as to whether or
not the unmitigated operation of the Administrative Decisions (Judicial Review) Act is
appropriate in all matters of administrative review. Such provisions are intended to deal
with vexatious litigants. They are not very effective even in this limited application, and
certainly do not provide any effective sanction or limitation in the sort of situations which
I understand are the problem areas addressed by the Council in its Paper.
41.
Typical of the submissions received which expressed a contrary viewpoint was the
joint submission from the Federation of Australian Commercial Television Stations and the
Federation of Australian Radio Broadcasters which stated that, in the experience of those
organisations, the problems of overlapping judicial remedies, abuse and delay were ‘met by
existing provisions of the AD(JR) Act and the Rules of the Federal Court’. Submissions from
a number of legal professional bodies, in particular the Law Institute of Victoria, the Law
Society of Western Australia and the Queensland Law Society, generally supported the
16
adequacy of existing powers. The Law Society of the A.C.T., however, supported calls for
reform.
17
CHAPTER 3
PROPOSALS FOR REFORM
Objectives of the AD(JR) Act
42.
In examining the reforms which would be appropriate to meet the difficulties
identified by the Council, the Council has borne in mind the original objectives of the AD(JR)
Act. The passage of the AD(JR) Act was intended to rationalise and modernise judicial
review of administrative action and to remove many of the technical and procedural barriers
to review. It was also intended to centralise in the Federal Court the judicial review of
Commonwealth administrative actions. The Act was intended as the primary vehicle for
attaining judicial review of Commonwealth administrative decisions. These objectives are
evident in the following extract from the then Attorney-General’s Second Reading Speech on
the Bill (House of Representatives, Hansard, 28 April 1977, p. 1394):
The present law relating to the review by the courts of administrative decisions is in a
most unsatisfactory state ... The law in this area is clearly in need of reform - indeed, it
could be said to be medieval - and simplification to be put into statutory form. What the
present Bill seeks to do is to establish a single simple form of proceedings in the Federal
Court of Australia for judicial review of Commonwealth administrative actions as an
alternative to the present cumbersome and technical procedures for review by way of
prerogative writ, or the present actions for a declaration or injunction.
43.
As mentioned above (para. 6), the question is whether the Act has struck the correct
balance between the need to provide individuals with a means by which they may effectively
obtain judicial review of the legality of public administrative action and the need to protect
public authorities from unwarranted litigation.
Overlapping remedies
44.
The Council has noted the availability of existing provisions and powers which are
designed to deal with problems of overlapping remedies. The problem of overlapping
remedies has been raised with the Council in relation to review of areas of Commonwealth
administration dealing with extradition, trade practices, customs and decisions made under
patents, trade marks and designs legislation. The Council has noted that the AD(JR) Act
currently contains provisions which are relevant to this issue. Not only does the Act confer a
discretion on any court to refuse to grant an application for review in proceedings brought
other than under the AD(JR) Act if an application for review has previously been made to the
Federal Court under that Act (s.10 (2)(a) of the Act), but it also confers a discretion on the
Federal Court to refuse to grant an application for review brought under the Act if either the
applicant has previously sought judicial review under some other procedure, or the Court
considers that an adequate alternative administrative review remedy is available to the
applicant (s.10 (2)(b)). It is noted, moreover, that the Full Court of the Federal Court held in
Woss v Dacobsen (1985) 60 ALR 313 that it would in many cases be appropriate to consider at
the outset of proceedings, before the hearing of the substantive application, the question
whether the Federal Court should exercise its discretion to refuse an application for review
lodged under the Act because of the existence of an adequate alternative remedy (see
especially Mr Justice Spender at 334). This would minimise any delay in the Court
determining whether or not the circumstances of a particular case are appropriate for the
18
exercise of the discretion. There are, however, some judicial suggestions tending the other
way.
45.
Several submissions received by the Council have raised and discussed the question
of overlapping judicial remedies and use of the AD(JR) Act in place of other review
procedures. The Council considers that the issues raised by the submissions to the Council
are complex and go beyond the questions with which this report is immediately concerned.
The issue of overlapping remedies arises in relation to many areas of Commonwealth
administration and the Council believes that a detailed study of those areas is required to
identify instances where provision is made for a statutory right of review of particular
aspects of Commonwealth administration by a court, including a court of a State, and to
determine whether such provisions are appropriate and warranted where AD(JR) Act review
is also available. A separate aspect of the question of overlapping remedies relates to the fact
that many areas of Commonwealth administration are subject to review by the Federal Court
under section 396 of the Judiciary Act 1903 as well as to judicial review by that Court under
the provisions of the AD(JR) Act. The relationship between these two procedures for
obtaining judicial review in the Federal Court is one of the issues which the Council will be
considering in its general review of the operation of the AD(JR) Act, as was foreshadowed in
the 1984 issues paper.
46.
For these reasons, the Council proposes to deal with all aspects of the issue of
overlapping judicial review remedies as part of that general review. The Council also
intends, as part of that general review, to examine the desirability of extending the
provisions of section 10(2)(a) to encompass not only the situation where proceedings have
been commenced both otherwise than under the AD(JR) Act and under that Act, but also the
situation where they have been commenced otherwise than under the Act and an application
could be, or could have been, made under the AD(JR) Act.
47.
There is one aspect of the matter, however, which the Council considers should be
dealt with in this report. It relates to the existing provisions of the AD(JR) Act which
empower the Federal Court in its discretion to refuse to grant an application for review
under that Act if the applicant has either sought review by some other procedure in the
Federal Court or in some other court, or the Federal Court considers that an adequate
alternative remedy is available to the applicant (see s.10(2)(b) of the Act). On the basis of the
approach suggested by the Full Court of the Federal Court in Woss v Jacobsen (para. 44
above), the Council considers that the Federal Court’s discretion under this provision should
be exercised at the outset of proceedings as far as circumstances permit. It is obviously
desirable that, where the issue of the operation of section 10 is raised, the Court should
consider the question of the exercise of its discretion to refuse relief as early as possible in the
proceedings in order to avoid unnecessary delay, inconvenience and expense for the parties
involved. In these circumstances, the Council has concluded that the AD(JR) Act should be
amended so as to provide that, wherever appropriate, the question of the exercise of
discretion under section 10(2)(b) should be exercised at the outset of proceedings. The
Council also considers that this rationale applies equally to the exercise of the power to
refuse an application for review under section 10(2)(a) in proceedings instituted otherwise
than under the AD(JR) Act where an application has also been made under section 5, 6 or 7
of the AD(JR) Act. The Council’s recommendation 1(5) is designed to deal with this matter.
(see also para 92)
19
Abuse and delay: options for reform
48.
It is the Council’s view that a case has been made out which warrants consideration
of the need to recommend limited reform (see paras 37-41). Four options for reform were
raised in the discussion paper comprising:
 inserting in the Act a requirement of leave;
 extending and clarifying the Federal Court’s powers to refuse an application for review;
 restricting review of interlocutory decisions;
 excluding particular classes of decision from AD(JR) Act review.
Comments were invited on each of these options and on any other options for reform that
might be suggested. The options set out above are now discussed in more detail and for
reasons given below the Council recommends that a variation of the second option be
adopted to extend and clarify the Federal Court’s powers to refuse (and to stay) applications
(paras 68-94). The question of restricting review of interlocutory decisions is dealt with as
part of the discussion of the second option. (paras 85-88)
REQUIREMENT OF LEAVE
49.
This option would involve amending the Act so as to require an applicant for review
to seek and obtain the leave or permission of the Federal Court before making an application
for review. Such a requirement could apply to all applications for review under the Actor be
restricted either to particular classes of decisions (e.g. migration decisions or decisions of the
Australian Broadcasting Tribunal) or to particular types of decisions (e.g. interlocutory
decisions).
50.
It is noted that a requirement of leave currently exists in Britain. Section 31(3) of the
Supreme Court Act 1981 (U.K.) provides:
No application for judicial review shall be made unless the leave of the High Court has
been obtained in accordance with rules of court; and the court shall not grant leave to
make such an application unless it considers that the applicant has a sufficient interest in
the matter to which the application relates.
51.
Order 53 of the Rules of the Supreme Court detail the procedures governing
applications for leave in Britain and the features are described in the following extract from
an article by Louis Blom-Cooper, Q.C. in [1982] Public Law 250, at 258:
Order 53 now provides that every application shall go initially before a single judge with
a simplified documentation of a brief notice containing a statement of, inter alia, the relief
sought (it is even enough simply to ask for judicial review without specifying the precise
remedy sought) and the grounds upon which it is sought, together with an affidavit
verifying the facts relied on in the notice. The applicant may indicate in his notice that he
desires an oral hearing: otherwise the application will be determined privately before the
single judge on the papers alone and a handwritten copy of the judge’s order is sent to
the applicant. If the applicant is dissatisfied with the judge’s order, he can renew his
application within 10days by applying to be heard by a single judge in open court. If the
application in a criminal matter is rejected without a hearing, the applicant is permitted
to renew his application and be heard by a two-judge Divisional Court. Unless the court
directs otherwise in civil matters, the appeal will be heard by a single judge sitting in
open court. The single judge may order that the proposed respondent should be notified
of the application and be invited to attend on the oral hearing and, if necessary, to argue
against the application. The oral ex pane application may be treated as the application
for judicial review itself, thus substantially truncating the time and cost of the whole
procedure ... If the appeal to the single judge is refused after an oral hearing, there is no
20
right of appeal to the Divisional Court, but there is the right of appeal to the Court of
Appeal.
52.
Order 53 substantially implements the advice of the English Law Commission in its
Report No. 73, Cmnd. 6407 (1976). The Law Commission regarded the obligation to obtain
leave which then applied to the prerogative orders as an expeditious method of sifting out
cases with no chance of success at relatively little cost to the applicant and at no cost to the
prospective respondent where the application is heard ex parte. The Law Commission
recommended that a requirement of leave should attach to the proposed single application
for review and should apply not only to the prerogative remedies but also to declarations
and injunctions which were not previously subject to a leave requirement. Even though the
Law Commission did not intend that the single application for review would supersede
actions for a declaration or injunction commenced by writ or originating summons which
were not subject to a requirement of leave, the House of Lords has since held in O’Reilly v
Mackman [1982] 3 All ER 1124 that, with some narrow exceptions, the application for review
procedure under order 53 is the exclusive procedure for obtaining judicial review of public
administrative action in Britain. In reaching this conclusion, the House of Lords placed
heavy emphasis on the importance of those aspects of the new procedure, including the
requirement of leave, which were designed to protect public authorities against claims which
it was not in the public interest for courts of justice to entertain. Lord Diplock saw the
requirement of leave as one of the safeguards imposed in the public interest against
groundless, unmeritorious or tardy attacks on the validity of decisions made by public
authorities in the field of public law. In a previous case Lord Diplock had commented that
without such a requirement the time of the Court might be wasted by busybodies with
misguided or trivial complaints of administrative error (R v IRC, Ex parte National Federation
of Self-employed and Small Businesses Ltd [1982] AC 617, 642-3).
53.
The Council does not have detailed statistics relating to the operation of the
application for leave procedure in Britain. The Council was advised in 1984 that
approximately 30% of applications for leave were refused at first instance and an unknown
percentage of those refusals were reversed on appeal.
54.
A requirement of leave procedure is not a novel concept in Australian administrative
law. A comparable requirement currently operates in relation to the Federal Court’s
jurisdiction under section 39B of the Judiciary Act 1903 to grant prohibition or mandamus
against a Commonwealth officer. Order 54A of the Federal Court Rules provides that an
application for a writ of mandamus or prohibition may be made ex parte and shall be
supported by affidavit. The court or judge has a discretion to grant an order absolute in the
first instance ‘in a case in which it appears necessary for the advancement of justice’ but the
Rules contemplate that the normal practice will be for an order nisi to be sought, involving
an application to the Federal Court or a judge for an order calling on the proposed
respondent to show cause why relief should not be given. In effect, this amounts to a
requirement of leave because an order nisi will not be granted if a prima facie case is not
made out. In practice the hearing at which the order nisi is sought is often used as a
directions hearing and interlocutory orders may be made governing the conduct of the
proceedings. The court’s control over the proceedings is therefore established at an early
stage but there would appear to be no practical advantage over AD(JR) Act proceedings in
this respect since the Form of Application for an Order of Review under that Act requires
that a date for a directions hearing be fixed by the Federal Court Registry upon lodgment of
an application for review and orders as to the conduct of the proceedings can be made at
such a hearing.
21
55.
An order nisi procedure also applies to the High Court’s original jurisdiction under
section 75(v) of the Constitution in so far as that court’s jurisdiction to grant mandamus or
prohibition against a Commonwealth officer is concerned. A similar procedure applies in
Victoria under that State’s Administrative Law Act 1978 which covers not only the prerogative
remedies but also applications for a declaration or injunction in relation to decisions falling
within the ambit of that Act.
56.
It is apparent, however, that the absence of a requirement of leave from the AD(JR)
Act was quite deliberate. The Kerr Committee did not discuss the issue explicitly, but it is
implicit in that committee’s report that it did not favour such a requirement. The committee
recommended that the ‘form of procedure for judicial review should be a simple originating
summons in a form prescribed by the Act establishing the Court’ (Parliamentary Paper,
No. 144, 1977, para. 254), and it proposed:
that the Court should be specifically empowered to dismiss summarily a summons for
review at any time after lodgment. This provision is intended to deal with the completely
worthless, or delaying summons for review. We would expect the power to be used
according to judicial discretion, for example in the case of the vexatious litigant or where
no grounds are made out. (ibid., para 264)
57.
The question whether there should be a requirement of leave in any reformed judicial
review procedure was squarely addressed by the Ellicott Committee in the following terms:
Under the present procedures for the granting of prerogative writs the usual course is for
the applicant to apply in the first instance for an order nisi and a number of applications
which are obviously doomed to failure are refused at this stage. We have given
consideration to whether an applicant for review should be required to obtain leave of a
judge of the court before commencing proceedings. Although this would, no doubt, have
the effect of preventing some frivolous proceedings, the committee is inclined against it
in view of the fact that a judge may not always be readily available to the applicant to
deal with an application for leave, and because the necessity for application for leave
would add to the expense of proceedings. (Parliamentary Paper No. 56, 1973, para. 45)
58.
In overseas jurisdictions where there is currently a single application for review
procedure, such as in Ontario, New Zealand, and British Columbia, there is no requirement
of leave and it is noted that such a requirement was recently opposed by the Institute of Law
Research and Reform in Alberta in its Report No. 40 entitled Judicial Review of Administrative
Action - Application for Judicial Review (March 1984, para. 12.5). In opposing a leave
requirement, the Institute stated that in its opinion ‘the disadvantage of an extra step in all
applications would outweigh the saving in some’. A leave requirement has also been
rejected by the Law Reform Commission of Western Australia in its Report on Judicial Review
of Administrative Decisions: Procedural Aspects and the Right to Reasons (January 1986).
59.
It is also noted that in New South Wales judicial review proceedings can be
commenced by the same procedures as apply to ordinary civil actions and that there is no
requirement of leave. The New South Wales Supreme Court has power to grant relief by
way of certiorari, prohibition or mandamus in proceedings commenced by way of summons,
and proceedings seeking relief by way of declaration or injunction may be commenced either
by a summons or by a statement of claim (see Supreme Court Act 1970-80 (N.S.W.), ss.66 and
75 and Rules of the Supreme Court 1970-80 (N.S.W.), Pt 4, rr.1 and 3). Weekly directions
hearings are conducted by judges of the Administrative Law Division of the N.S.W. Supreme
Court to ensure that actions proceed promptly and that public authorities are not kept in
suspense for an unreasonable length of time as to the validity of their decisions. As far as the
22
Council is aware, these provisions have operated effectively to protect public authorities in
New South Wales from unwarranted litigation and no significant problems have arisen in
relation to them.
60.
The requirement of leave in Britain has been subjected to a deal of criticism. In an
article in (1976) 92 Law Quarterly Review 334, at 336-7, Professor H. W. R. Wade opposed the
requirement on the grounds that:
... in principle it seems wrong that there should be any brake on actions against public
authorities which does not apply to actions generally. But the Law Commission make out
a case, based on studies of the Divisional Court made in Bedford College, London, that
the present requirement of leave provides a particularly rapid and cheap method of
disposing of about a third of all applications. They have nothing to say, however, about
the Constitutional principle.
61.
Other commentators have also commented on the difficulty of justifying in principle
why there should be a requirement of leave in public law cases but not in private law
litigation (see, for example, P.P. Craig, Administrative Law [1983], at 506-8). The Council has
also noted that in its submission the Media Law Association of Australia stated that it was its
understanding that the abolition of a requirement of leave in the United Kingdom was about
to be proposed by the Justice-All Souls Committee of Review of Administrative Law in the
United Kingdom.
62.
Whether a leave requirement should be introduced into the AD(JR) Act was one of
the matters raised in the issues paper referred to in paragraph 1 above. Of the submissions
received by the Council following distribution of the issues paper, none unreservedly
supported the notion of a requirement of leave and several expressed strong opposition to
such a requirement. The Victorian Law Institute opposed a leave requirement on the
grounds that it would add to the complexity of judicial review procedures and would
produce greater expense and delay. The Institute suggested that such a requirement would
operate against the interests of the underprivileged and generally needy. (In a submission to
the Council dated 26 May 1986, the Administrative Law Committee of the Institute reiterated
its opposition to a leave requirement.) Similarly, the Department of Veterans’ Affairs in its
submission on the 1984 issues paper opposed a requirement of leave on the grounds that it
could lead to ‘more protracted legal proceedings’, but the department favoured the
strengthening of the Rules of the Federal Court to ensure that an application must proceed
with due expedition. The Administrative Law Committee of the Law Council of Australia
was also opposed to a requirement of leave on the grounds that, in its opinion, adequate
powers were available to the Federal Court to deal with problems of abuse and the
Committee drew particular attention to the powers of the Federal Court with regard to the
awarding of costs. Finally, the Trade Practices Commission, which had highlighted in its
submission the problems it had experienced with regard to AD(JR) Act litigation (see
para. 15), stated that although it recognised that there was ‘some merit’ in the suggestion that
a leave requirement should be inserted in the Act, it took the view that a leave requirement
may inhibit people using legislation which is a safeguard against abuse of their rights’. The
Commission suggested that one solution would be for the Federal Court to take a harder line
in controlling judicial review proceedings and to dispose of challenges quickly to avoid
delay.
63.
Responses to the 1986 discussion paper also revealed little support for the
introduction of a leave requirement. Most submissions which addressed the matter were
opposed to the introduction of a leave requirement, on grounds such as:
23
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A leave requirement would reduce the accessibility of review under the Act, and could
serve to discourage the bringing of bona fide and legitimate applications for review.
A leave requirement could itself be exploited to create further delays of the kind which it
was designed to avoid, for example as a result of appeals against refusal is to grant leave.
A leave requirement would be of little assistance in regard to unwarranted delays, since
many applications brought for this purpose involve an arguable case.
Where leave was refused, the procedure would lead to little saving of time or expense;
conversely, where a case is arguable, the fewer the steps between the filing of the original
application and a hearing on the merits of the claim, the less will be the cost and delay.
Existing powers and procedures were adequate to deal with the alleged abuses, or could
be rendered so more appropriately than by a leave requirement.
Wealthy applicants have the resources not to be deterred by the introduction of a leave
requirement and would if necessary seek review under alternative avenues of review
such as section 39B of the Judiciary Act.
There are difficulties in practice and in principle in distinguishing (as happens in Britain)
between public and private law matters in the context of justifying a requirement of
leave.
64.
Strong support for the introduction of a leave requirement came from the SolicitorGeneral of Australia, Dr G. Griffith. In his opinion:
 The existing provisions designed to deal with abuse of the processes of the Federal Court
(see para. 46 above) are not of great practical assistance, even in relation to the vexatious
litigant situations with which they are intended to deal and do not provide any effective
sanction or limitation in the kinds of situations which had been addressed by the Council
in the discussion paper.
 A distinction may soundly be drawn between public law proceedings and other civil
litigation in relation to leave.
Dr Griffith stated that he favoured the introduction of a leave requirement generally in this
area (partly in the light of the effective working of the leave requirement in Britain) and that
he believed that a case had been sufficiently made out for a leave requirement in each of the
areas of: broadcasting and migration decisions, committal proceedings, prosecution
decisions, extradition proceedings, and (in view of the existence of other procedures for
review) trade practices decisions. In his view the introduction of a leave requirement in
relation to these areas in the first instance would enable an assessment to be made of the
effectiveness of the procedure with a view to its later extension or removal depending on the
assessment made.
65.
The Council has taken note of the working of the review system in Britain under
order 53 of the Rules of the Supreme Court, but has formed the view that, even apart from
the criticisms which have been made of the procedures established under that order (see
paras 60-1), experience under those procedures is not directly relevant to proceedings under
the AD(JR) Act. AD(JR) Act procedures have developed in a different way from those
provided by order 53, where the requirement for leave is part of a total approach designed,
among other things, to contribute to certainty in administrative decision making, to prevent
‘groundless, unmeritorious or tardy attacks’ on administrative decisions, and to prevent the
Court’s time being ‘wasted by busybodies with misguided or trivial complaints of
administrative error’ (see para. 52 above). All these objects may, in the view of the Council,
be achieved under existing provisions of the AD(JR) Act and the Federal Court Rules or by
minor amendments to them (see paras 68-94).
24
66.
In the light of the submissions received by it, the Council is not convinced that there
are persuasive reasons for the adoption of a leave requirement in relation to applications
under the AD(JR) Act. The Council is confirmed in its view that there are sound reasons of
both principle and pragmatism for not recommending a leave requirement. First, a leave
requirement might have the effect of derogating from the primacy of the AD(JR) Act in the
judicial review of Commonwealth administrative action. It might have this effect because
the procedural limitation would detract from the present simplicity of an application under
the Act. Secondly, it is difficult to justify a leave requirement in public law cases when no
such requirement exists in other civil litigation. Thirdly, the existing powers of the Federal
Court under statute and the Federal Court Rules are arguably adequate to deal with most
significant problems of abuse and delay which may arise with regard to particular areas of
Commonwealth administration. Fourthly, the introduction of a leave requirement would
add to the expense and complexity of litigation in those areas to the disadvantage of
applicants with legitimate causes of action. Finally, it is far from clear that a leave
requirement would operate to avoid delays in litigation. For one thing, the establishment by
means of litigation of the manner in which the leave requirement would be interpreted by
the Court would itself be expensive in terms of time and public money. Again, unless there
was no right of appeal from a refusal to grant leave, it might be expected that applicants with
extensive resources, who were sufficiently determined to commence review proceedings in
the first place, would exercise whatever rights of appeal were available to them if they were
refused leave. An obvious solution to this problem would be to deny a right of appeal
against a refusal to grant leave but this seems draconian and contrary to basic principles of
justice. Another option would be to provide a right of appeal but only with the leave of the
Court or a judge, as currently applies to appeals from an interlocutory judgment of the
Federal Court (see s.24 (1A) of the Federal Court of Australia Act 1976), but such a limitation on
access to an appeal court is difficult to justify where the original application for review is
itself the subject of a leave requirement.
67.
The Council has determined for the above reasons that it is not desirable to introduce
a leave requirement in relation to applications for review brought under the AD(JR) Act.
EXTENDING AND CLARIFYING THE FEDERAL COURT’S POWERS TO REFUSE AN
APPLICATION
66.
In the discussion paper the question was raised whether, if it were considered that
existing law and practice were inadequate to deal with problems of abuse and delay under
the AD(JR) Act, it might be desirable to strengthen the Federal Court’s powers to refuse an
application at an early stage in proceedings where the Court considered that such a refusal
was justified in the circumstances because the matter involved was trivial or the applicant
would suffer no great injustice if the application were refused even though a prima facie case
for relief might exist. Paragraphs 69-74 examine the existing powers of the Federal Court,
while paragraphs 75-94 examine possible ways in which those powers could be extended
and clarified by amendment of the Act.
Existing powers of the Federal Court
69.
The Council has noted that the Federal Court Rules provide some protection to a
respondent who considers that an applicant for review is abusing the court’s processes.
Specific reference should be made in this context to those rules which provide that:
 The Federal Court may at any stage of the proceeding order that the whole or any part of
a pleading be struck out where the pleading:
discloses no reasonable cause of action or defence or other case appropriate to the
nature of the pleading;
25
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has a tendency to cause prejudice, embarrassment or delay in the proceeding;
is otherwise an abuse of the process of the Court. (O. 11, r. 16)
The Court may order the stay or dismissal of any proceedings where it appears to the
Court that:
(in relation to the AD(JR) Act) no reasonable basis for the application is disclosed;
the proceeding is frivolous or vexatious; or
the proceeding is an abuse of the process of the Court. (O. 20, r. 2, and O. 54, r. 6)
The respondent may object to the competency of an application for review under the
AD(JR) Act (O. 54, r. 4), and the Court is empowered to determine any such objection to
competency prior to the hearing of the substantive application for review. (O. 54, r. 5).
The Court may declare a person to be a vexatious litigant if that person ‘habitually and
persistently and without any reasonable ground institutes a vexatious proceeding in the
Court’. (O. 21)
An application for review must state a date for a directions hearing and the Court is
empowered to make orders at such a hearing with respect to such matters as the place,
time and mode of the hearing of the substantive application and the Court may also
order a party to take particular steps in the proceedings. (O. 10)
In awarding costs the Court may take into account the conduct of the applicant and
specific provision is made for the Court to disallow any costs which have been incurred
improperly, unreasonably or negligently. (O. 62, r. 6)
70.
These provisions provide the Federal Court with some powers to control the conduct
of proceedings and to guard against abuse. A respondent who considers that proceedings
are not being pursued by an applicant at an appropriate speed, or that proceedings are
otherwise an abuse of the Court’s processes, is entitled to apply to the Court for an
appropriate order. It should also be noted that the 28 day time limit for lodging an
application for review (see s.11 of the AD(JR) Act) itself provides some protection for public
authorities against being left in suspense for an unreasonable period as to the legal validity
of their decisions. This time limit can, of course, be extended by the Court in its discretion,
but an applicant is required to show cause why the discretion should be exercised favourably
(see, for example, Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305).
71.
Finally, it is relevant that the mere commencement of judicial review proceedings
under the Act does not have the effect of staying the implementation of a decision. An
applicant for review can seek a stay order, as often occurs in relation to deportation
decisions, but whether the Federal Court will grant such an order depends on the principles
formulated and applied by the Court. In many cases the Court has made a decision on the
basis of whether or not there is a serious question to be tried, an approach similar to that
applied in relation to the granting of interlocutory injunctive relief. However, some
members of the Federal Court have recently expressed views to the effect that the Court
needs to be satisfied that reasons or circumstances exist which make it just that a stay order
be made, or that a stay order should depend on principles of procedural fairness or natural
justice rather than the principles appropriate to interlocutory injunctions. (See in particular
Videto v Minister for Immigration and Ethnic Affairs (1985) 8 ALN N237, and Li Guang Yo v
Minister for Immigration and Ethnic Affairs (unreported, 14 March 1986).) Whatever approach
to this question prevails, the Court’s consideration of an application for a stay order operates
as a de facto requirement of leave.
72.
The matters which have led to this report suggest that the existing powers of the
Federal Court, despite their wide range, have not proved to be sufficiently effective in
dealing with problems of abuse and delay. Some submissions received by the Council have
26
suggested that this is because the existing powers are inadequate. Other submissions argued
that those powers are adequate but that they have been under-utilised. The Department of
Foreign Affairs, for example, argued in its submission that ‘the existing rules allowing
vexatious or unmeritorious proceedings to be dismissed have been largely untested by
agencies’.
73.
On a related point the Media Law Association of Australia was critical of the
Australian Broadcasting Tribunal in particular for its failure to play a more active role in
judicial review proceedings to prevent abuse and delay in those proceedings. It was stated
in the Association’s submission that:
The Tribunal seems to have adopted a timid and passive role in this regard which may
stem from an unduly and restrictive reading by the Tribunal of the High Court’s decision
in Re Australian Broadcasting Tribunal ex parte Hardiman (1980) 29 ALR 280. The Tribunal
could play a more active role in judicial review proceedings without jeopardising its
status as an independent agency and the Association believes such a role could have an
important bearing on the attitude of Federal Court Judges in exercising the powers
available to them to deal with abuse and delaying tactics.
74.
The suggestion was made in some submissions that at times the Federal Court
seemed reluctant to exercise its powers to deal with abuse and delay. For example, the Trade
Practices Commission stated in its submission:
It is the Commission’s experience to date that when faced with such aggressive
commercial litigation, the Courts do not appear to be prepared to exercise their discretion
to refuse applications, for review under AD(JR) of matters.
Provisions modelled on Victorian Administrative Law Act
75.
The discussion paper noted that sections 4(1) and 4(2) of the Victorian Administrative
Law Act 1978, provide:
4. (1)
An application for review shall be made ex pane not later than thirty days after
the giving of notification of the decision or the reasons therefor (whichever is the later)
supported by evidence on affidavit showing a prima facie case for relief under section 7.
(2)
The Court or Judge, notwithstanding that a prima facie case for relief is
disclosed, may refuse any such application if satisfied that no matter of substantial
importance is involved or that in all the circumstances such refusal would impose no
substantial injustice upon the applicant.
76.
An application for review under the Victorian Act is made in a two stage process
similar to that which applies under an order nisi procedure (see E. Kyrou, Victorian
Administrative Law, paras 3010-11). The discretion under section 4(2) could be exercised at
either stage of the review process. The provision has not been the subject of extensive
judicial comment in Victoria and its precise scope remains somewhat uncertain but reported
cases in that jurisdiction indicate that the ambit of the provision goes beyond merely
preserving the rule at common law that relief may be refused in the court’s discretion if it
considers that an adequate alternative remedy is available to the applicant (see Trevor Boiler
Engineering Co. Pty Ltd v Morley [1983] 1 VR 716, at 724). It might also be assumed that, since
there would be no point in conferring such a power if its scope was merely co-extensive with
a court’s normal powers to deal with vexatious or frivolous litigation, the power is wider in
its ambit than those powers. Reference to the words of Mr Justice Dixon in Dey v Victorian
Railway Commissioners (1948-49) 78 CLR 62, at 91 provides support for that view. His Honour
expressed the following opinion in relation to the inherent discretion of the Supreme Court
of Victoria:
27
But once it appears that there is a real question to be determined whether of fact or law
and that the rights of the parties depend upon it, then it is not competent to dismiss the
action as frivolous and vexatious and an abuse of process.
By contrast, section 4(2) empowers a court or a judge to refuse relief despite the existence of a
prima facie case.
77.
The discussion paper advanced the view that there would be advantage in inserting
in the AD(JR) Act a provision modelled on section 4(2) of the Victorian Act. Such an
amendment, it suggested, would not attract the objections which apply to introducing a
requirement of leave. Moreover, it was said, a discretion in the Federal Court to refuse relief
where an application is groundless or not of substantial importance could be a desirable
supplement to existing provisions and powers dealing with time limits for instituting
proceedings and the Court’s discretion to control proceedings under its jurisdiction.
78.
Opinions expressed in submissions to the Council were about equally divided on
whether there would be merit in introducing a provision modelled on section 4(2) of the
Victorian Administrative Law Act. Several of those who commented expressed reservations
concerning the wording of the sub-section, considering that terms such as ‘substantial
importance’ and ‘substantial injustice’ were unclear. Several submissions strongly supported
the suggestion that the approach of the Court in Woss v Jacobsen to questions of alternative
remedies (see para. 47 above) should be included in the Act itself. The Trade Practices
Commission, while agreeing that an extension of the power of the Court to refuse
applications might assist the effective operation of the AD(JR) Act in some areas, expressed
the view that in the trade practices area it would only be of use ‘if the Court (was) prepared
to take a tougher stand on actions used merely as delaying tactics’. Mr Justice Wilcox drew
attention, on the other hand, to the practice of the Federal Court of holding urgent hearings
where the administrative inconvenience of delay made that course desirable.
79.
After consideration of those varying views, and of the Federal Court’s existing
powers, the Council has reached the conclusion that it is unnecessary, at least at this stage of
the operation of the Act, to propose the inclusion in the AD(JR) Act of provisions modelled
on those of section 4(2) of the Victorian Administrative Law Act. The Council is of the view
that the Court’s existing discretion to refuse to grant an application for review is wide
enough to enable it to deal with most cases where the subject matter of the application is
trivial or where no real injustice would be suffered by the applicant if no order of review
were made. Moreover, to spell out the discretion in the way the Victorian Act does might, in
the absence of a provision such as appears in that Act for an ex parte ‘leave’ requirement,
encourage some respondents as a matter of course to advance an argument for refusal, or
stay, of an application. If that were to happen, the aim of the Act to make judicial review
more accessible, and without excessive expense, could be put at risk. The Council therefore
prefers the approach set out in paragraphs 80-94.
Formulation of the Court’s discretion
80.
Orders of review under the AD(JR) Act are discretionary. This was emphasised by
the Full Court of the Federal Court in Lamb v Moss (1983) 49 ALR 533. The existence of the
discretion was implied by the Court in that case from the terms of the AD(JR) Act as it is not
made explicit in the legislation that such a discretion exists. If it is desired to make provision
in the legislation concerning the point at which the discretion may be (or should be)
exercised (see para. 47 above), or to make special provision in relation to interlocutory
decisions (see paras 85-8 below), it will be necessary as a matter of drafting for the legislation
28
to refer specifically to the Court’s discretion. The question is what form that reference
should take.
81.
In Lamb v Moss (above), which was concerned with review of a decision in the course
of committal proceedings, the Full Court of the Federal Court said that there was ‘no
limitation, implied or otherwise, which restricts the class of decision which may be reviewed
to decisions which finally determine rights or obligations or which may be said to have an
ultimate and operative effect’ (at 556). The Court acknowledged that, to some, the giving of
a wide meaning to ‘decision’ in the Act might cause concern about undue delay in the proper
administration of government. However, in response to those who might express such
concern, the Court said:
To those who have the concerns which we have mentioned we would say that it should
not be overlooked that we have earlier concluded that this court has conferred upon it a
wide discretion to grant or refuse relief in a particular case. It is in the exercise of that
discretion that the court will exercise control over the circumstances in which and the
stage at which judicial review will be embarked upon.
In the exercise of its discretion, the Court in that case refused to make an order of review.
Where decisions in committal proceedings are sought to be reviewed, several decisions since
Lamb v Moss have affirmed that the power of the court to make an order of review should be
exercised only in most exceptional circumstances, e.g. Young v Quin (1984) 56 ALR 168; Clyne
v Scott (1983) 52 ALR 405. On the other hand, in some cases the Court has been prepared to
intervene, such as where it appeared to be in the public interest to do so. (See for example
Shepherd v Griffiths (1985) 60 ALR 176; Tahmindiis v Brown (1985) 60 ALR 120.) In Seymour v
Attorney-General (1984) 57 ALR 68 Mr Justice Jenkinson articulated the principle in relation to
the proper exercise of discretion as follows:
Against the interest of the appellant in the result of the committal proceeding and in the
conduct of the proceeding according to law must be weighed the public interest in the
expeditious resolution of accusations of crime. (p.71)
82.
Questions of the Court’s discretion have also arisen in other areas. For example, the
Court has refused to grant an application in a case whereto have done so would have been
largely ineffectual (Excell v Harris (1983) 51 ALR 137). Likewise, the Court has said that it
will exercise its discretion to refuse to grant an application in cases where third parties
would be deprived of rights or entitlements if the application were to be granted
(Chamberlain v Banks, Full Court of the Federal Court, unreported, 8 November 1985). Again,
the Court has exercised its discretion not to interfere in proceedings at an interlocutory stage
where a suitable remedy was available at the conclusion of the proceedings (Morton v Radford
(1985) 61 ALR 414 - proceedings of a Medical Services Committee of Inquiry).
83.
It would not be practicable to set down all the grounds on which the Federal Court
could exercise its discretion to refuse relief. Nor would it be wise to attempt to do so, as the
specification would be quite likely to omit some grounds that, in a particular case, the Court
may consider to be significant. Furthermore, in a particular case, some factors may appear
more significant to the Court than others. An example of a case where many factors were
taken into account in refusing relief is Visy Board v Attorney-General (1983) 51 ALR 705, at
712-13 (affirmed on appeal in Visy Board v Attorney-General (1984) 53 ALR 283). In general,
the scope of the discretion is as wide as that possessed by the courts at common law:
...it would be strange indeed if this court, in administering an Act plainly intended to
provide comprehensively for an improved system for judicial review of administrative
action, were not to have the same wide discretion to grant or refuse relief as do courts
29
dealing with applications for the traditional common law or equitable remedies. (Lamb v
Moss (1983) 49 ALR 533, at 550.)
84.
Accordingly, the recommendation made by the Council relating to the power of the
Federal Court to deal with applications for review does not attempt to specify all the
grounds on which the court’s discretion to refuse relief might be exercised. Rather,
recommendation 1(1) takes the form of a general provision corresponding to the Court’s
present wide discretion, followed in turn by provisions which set out specifically some of the
circumstances in which the Court may consider exercising that jurisdiction (including those
relating to alternative remedies which are already included in the Act).
Review of interlocutory decisions
85.
A further matter which the Council has considered is whether there is a need for
reform of the Act to reinforce the powers of the Federal Court in relation to applications for
review which relate to interlocutory decisions. As noted in paragraph 8, the ABT has
suggested that one option for reform would be to insert in the AD(JR) Act a presumption
that relief should not be granted with respect to an interlocutory decision unless a final
decision, once taken, could not be reversed at all, or could only be reversed with substantial
detriment to the applicant. Mr P. Brazil, Secretary to the Commonwealth Attorney-General’s
Department, made a different suggestion concerning interlocutory decisions. He suggested
that, in exercising its discretion to reject applications for judicial review, the Federal Court
should be required to take account of the desirability of avoiding interference with the due
and orderly conduct of proceedings in cases where a review or appeal is available at the
termination of those proceedings.
86.
Clearly, a reform such as that suggested by the ABT, if implemented, would not
provide a solution to the problems which have allegedly arisen in other areas of
Commonwealth administration as a consequence of use of the AD(JR) Act to obtain review
of final or ultimate decisions. In any event, the rigidity of a presumption along the lines of
that advocated by the ABT would not be desirable. Such a presumption would have the
effect of reducing the flexibility of the Federal Court which the Council considers should
operate in this area. However, the Council sees merit in the suggestion made by Mr Brazil
that the question whether or not review of an interlocutory decision is involved should be a
question to which the Court has regard in determining whether or not to grant an
application for review.
87.
In the opinion of the Council the Federal Court has demonstrated, in cases such as
Lamb v Moss (above, para. 80), that it will exercise with restraint its power to intervene in
proceedings at an interlocutory stage and the Council has noted that the need for restraint in
reviewing interlocutory rulings of the ABT was recently expressly acknowledged by the
Federal Court in TVW Enterprises Limited v Australian Broadcasting Tribunal (1986) 64
ALR 279, at 283. A similar approach is evident in the following words of Mr Justice
Woodward in Broken Hill Proprietary Company Limited v National Companies and Securities
Commission & Ors (5 June 1986). That was a case in which an application had been made for
an interlocutory injunction in relation to a decision concerning the right to cross-examination
of a witness in the course of a hearing by the National Companies and Securities
Commission. In deciding not to interfere with the Commission’s rulings his Honour said:I would conclude by saying that the Court should be slow to intervene in a purely
procedural decision made by an administrative tribunal in the course of a long and
complex inquiry. This is particularly so in cases where the tribunal has been given, by
statute, a wide discretion as to how it should conduct its inquiries, subject only to a
30
requirement to observe principles of natural justice. Where the tribunal has not denied
any rights, but can only be alleged to have given some participant a right to which it was
not clearly entitled the Court should be even more reluctant to intervene.
88.
Nonetheless, the Council considers that reinforcement of the Federal Court’s existing
powers to deal with applications for review which relate to interlocutory decisions made in
the course of proceedings by way of hearing and determination by any body to whose
decisions the Act applies would help prevent uses of the Act for purposes only of delay or
tactical advantage. Recommendation 1(4(a) therefore seeks to provide for the situation
where application is made to the Federal Court under the AD(JR) Act during the course of
proceedings before another court, tribunal, authority, or person. In such a case the
recommendation provides that the Court may exercise its discretion to refuse relief where it
is satisfied that those other proceedings will conclude in a final decision which would be
subject to review by the Federal Court under the Act, or another Act, or by another court,
and in all the circumstances the balance of convenience, including the interests of the
applicant, the respondent or any other person, the public interest and the consequences of
delay in those proceedings, so requires. Such a provision would, in relation to proceedings
before another court, tribunal, etc, direct the attention of respondents and the Federal Court
to the possible interests of third parties and to the possible public interest in the Court not
intervening in such ongoing proceedings. Conversely, if the issue before the Court would
completely dispose of the proceedings sought to be reviewed, then it would be in the public
interest to have the matter determined at that stage. The question of delay, identified by the
Council above as a problem in certain cases (para. 37) is specifically referred to.
Rules of court
89.
The grounds on which a discretion to refuse an application under the AD(JR) Act
could be exercised should also, in the Council’s view, draw attention to the fact that the
Federal Court’s inherent and implied discretion to refuse an application for review on
various grounds provides the foundation for specific grounds for refusal spelled out in the
Federal Court Rules. The intention of making specific reference to those rules of court in the
legislation is to draw their provisions to the attention of respondents. A suggested
legislative provision is set out in recommendation 1(4)(b).
Power to stay an application
90.
The Council recommends below that the Federal Court be given statutory power to
stay proceedings concerning an application for review in appropriate cases
(recommendation 1). Order 20, rule 2, as amended by order 54, rule 6, of the present Federal
Court Rules provides that the Federal Court may, among other things, order that a
proceeding be stayed where it appears to the Court that no reasonable basis for the
application is disclosed, the proceeding is frivolous or vexatious, or the proceeding is an
abuse of the process of the Court. (There may be some limitation as to the stage of the
proceedings at which the Court may exercise this power.) Mr Justice Toohey has expressed
the view that in seeking a stay a respondent is not confined to the grounds in the rules of
court and that a stay may be granted under the Court’s general power to control its own
proceedings (Muller v Fencoti (1981) 37 ALR 310 at 315). The power has been used on
occasion by courts to stay proceedings so that they may be litigated in another forum, but
there are other circumstances in which the courts will grant a stay. As a matter of prudence
the Council considers it advisable to include the power to grant a stay in relation to all the
circumstances comprehended in the recommendation, but there may be several such
circumstances in which the exercise of such a power would be inappropriate. The Council
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considers that it can be left to the Court to determine the appropriate occasions for exercise
of the power.
Existence of other avenues of review
91.
For the sake of completeness, recommendation 1(3) restates the existing provisions of
the AD(JR) Act concerning alternative avenues of review (see para. 44 above). The Council
has also recommended one change to the existing provisions. Recommendation (3)(b)
recommends an addition to the present section 10(2)(b)(ii) of the AD(JR) Act, which gives the
Federal Court a discretion to refuse an application where it is satisfied that adequate
provision is made by any law other than the Act under which the applicant is entitled to seek
a review by the Court, by another court or by another tribunal, authority or person, of a
decision, of conduct engaged in for the purpose of making a decision or of a failure to make a
decision. The addition proposed by the Council would provide that the Federal Court must
also be satisfied in all the circumstances of the case that it would be reasonable, or would
have been reasonable, for the applicant to seek the review. The Council is concerned that the
mere existence of an alternative avenue of review should not preclude an applicant from
obtaining relief under the AD(JR) Act unless it is reasonable, or would have been reasonable,
in the circumstances of the case for the applicant to make use of that alternative. The
proposed addition to the existing section 10(2)(b)(ii) is modelled on section 6(3) of the
Ombudsman Act 1976.
Exercise of discretion at outset of proceedings
92.
The Council considers that it should be made clear that the Federal Court’s power to
refuse or stay an application for review is capable of being exercised in appropriate
circumstances at the outset of the proceedings. The Council believes that such an
amendment would serve to emphasise to applicants and respondents alike that the powers
and procedures of the Court are adequate to deal with attempts to employ AD(JR) Act
processes where their use is not justified. As mentioned in paragraph 45, the Council
considers that the question of the exercise of discretion by the Federal Court under sections
10(2)(a) and 10(2)(b) of the Act should be considered at the outset of proceedings wherever
appropriate. The exercise of discretion as early as possible in the proceedings should avoid
unnecessary delay, inconvenience or expense for the parties involved. In the
recommendation made in this report the amendment proposed by the Council relating to the
time at which the Court may exercise its discretion is directed at the exercise of discretion
under the present sections 10(2)(a) and 10(2)(b) and at the exercise of discretion on other
grounds. It has been found convenient as a result for the recommendation to restate the
provisions of sections 10(2)(a) and 10(2)(b) (recommendations 1(2) and 1(3)). The Council
does not, however, express any view as to the appropriate location in the Act of the
amendments proposed.
Appeals
93.
The Council has also considered what rights of appeal, if any, should apply to the
exercise of the Court’s proposed discretion to refuse or stay an application for review on the
suggested grounds. It has concluded that such decisions should be amenable to review by
the Full Court of the Federal Court but, with one exception which is discussed below, only
after leave has been obtained from the Court or a judge, as currently applies to appeals from
an interlocutory judgment of a Federal Court Judge (see para. 66). The Council believes that
this restriction is justified in order to minimise the problems of abuse and delay which are
the primary reasons for proposing the amendment to the AD(JR) Act.
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94.
The exception referred to in the previous paragraph relates to rights of appeal in
relation to judgments arising out of provisions of the Federal Court Rules. Those judgments
may be either interlocutory judgments or final judgments. Where a final judgment arises out
of the provisions of the rules of court, there is no current requirement of leave in the bringing
of an appeal from the judgment. On the other hand, leave is required in order to bring
appeals from interlocutory judgments of the Federal Court, including interlocutory
judgments on matters arising under rules of court (see s.24(1A) of the Federal Court of
Australia Act 1976). The Council does not propose any amendment to this position.
Accordingly, the Council does not recommend that leave should be required to bring an
appeal from a final, as opposed to an interlocutory, judgment refusing to grant an
application for review on the grounds that such a refusal is justified under one or more rules
of court.
Recommendations: Powers of the Federal Court to stay, or to refuse to grant, an
application for review
1.
The Administrative Decisions (Judicial Review) Act 1977 (‘the Act’) should provide that:
(1) The Federal Court may, in its discretion, stay, or refuse to grant, an application made
to it under section 5, 6 or 7 for a review of a decision, of conduct engaged in for the
purpose of making a decision, or of a failure to make a decision, where the Federal
Court is of the opinion that it is inappropriate, or inappropriate at that time, either to
hear and determine or to grant the application as the case may be.
(2) In a proceeding instituted otherwise than under the Act, the Federal Court or any
other court may, in its discretion, stay, or refuse to grant, an application for a review
of a decision, of conduct engaged in for the purpose of making a decision, or of a
failure to make a decision, for the reason that an application has been made to the
Federal Court under section 5, 6 or 7 in respect of that decision, conduct or failure.
(3) The Federal Court may, in its discretion, stay, or refuse to grant, an application made
to it under section 5, 6 or 7 for a review of a decision, of conduct engaged in for the
purpose of making a decision, or of a failure to make a decision (a) where the Federal Court is satisfied that the applicant has sought a review by the
Federal Court or by another court of that decision, conduct or failure otherwise
than under the Act; or
(b) where the Federal Court is satisfied that adequate provision is made by any law
other than the Act under which the applicant is entitled to seek a review by the
Federal Court, by another court or by another tribunal, authority or person, of
that decision, conduct or failure, and that, in all the circumstances of the case, it
would be reasonable, or would have been reasonable, for the applicant to seek
that review.
(4) Without limiting the discretion referred to in clause (1), the Federal Court may
exercise its discretion to stay, or to refuse to grant, an application (a) in a case where the application is made in respect of a decision made or to be
made in the course of proceedings before another court, tribunal, authority or
person or where the application is made in respect of a failure to make a decision
in the course of such proceedings, where the Federal Court is satisfied that (i) those proceedings will conclude in a final decision that will be subject to review
by the Federal Court under the Act or another Act, or by another court; and
(ii) in all the circumstances, the balance of convenience, including the interests of
the applicant, the respondent or any other person, the public interest, and the
consequences of delay in those proceedings, so requires; or
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(b)
where the Federal Court is satisfied that, in all the circumstances, a decision to
stay, or to refuse to grant the application is justified under one or more relevant
rules of the Federal Court Rules.
(5) The Federal Court’s discretion to stay, or to refuse to grant, an application for review
is capable of being exercised at any stage of the proceedings and should be exercised
at the outset of proceedings wherever appropriate.
2.
The Federal Court of Australia Act 1976 should be amended to provide that, except in
relation to a final judgment made in pursuance of recommendation 1(4)(b), an appeal should
not be brought from an order made in pursuance of recommendations 1(1)-1(4) unless the
Federal Court or a judge gives leave to appeal.
EXCLUSION OF PARTICULAR CLASSES OF DECISIONS FROM AD(JR) ACT REVIEW
95.
Another option for reform would be to exclude from review under the AD(JR) Act
one or more of the above mentioned classes of decisions in relation to which problems have
allegedly arisen as a result of AD(JR) Act litigation. With the exception of decisions taken in
the course of committal proceedings involving Commonwealth offences, this option is
opposed for the reasons set out in paragraphs 96-7.
96.
As mentioned above (para. 28), on the question of committal proceedings involving
Commonwealth offences, the Council has advised the government that such decisions
should be excluded from AD(JR) Act review, but only on condition that the jurisdiction of
State courts to review such decisions is revived. The Council has considered the views of the
Attorney-General’s Department on this matter (see para. 29). The Council has concluded
nonetheless that its earlier advice was correct, resting as it did on the fact that the
Commonwealth has chosen to entrust the administration of its criminal law to the States and
on the view that any reluctance by the Supreme Courts of individual States to make use of
the prerogative writs to review committal decisions should, on the basis of High Court
authority, be able to be overcome by an application for declaratory relief. Reference may be
made to the words of the then Acting Chief Justice, Sir Harry Gibbs in Sankey v Whitlam
(1978) 142 CLR 1 at 22, where he said:
However, I am, with respect, unable to agree that it is involved in this decision [ ie Ex
parte Cousens; Re Blacket (1946) 47 SR (NSW) 145] that the Supreme Court has no power to
make a declaration which will affect the conduct of committal proceedings. The two
sorts of relief are governed by different principles, and if the decision of a magistrate is
immune from review by means of the prerogative writs it does not follow that a
declaration cannot be made in relation to the subject matter of the proceedings - so much
is recognised in the judgment of Walsh J. in Forster v Jododex Aust. Pty. Ltd. ((1972) 127
CLR 421, at 428). (See also Mr Justice Mason at 84.)
97.
In relation to prosecution and extradition decisions, the Council has already advised
the government that it is opposed to exclusion of such decisions from AD(JR) Act review and
the Council is not aware of any developments since that advice was transmitted which
would warrant it reconsidering its earlier views on these matters (see paras 31-6). In essence,
the Council’s views were that it was desirable in principle that decisions made in the exercise
of statutory powers should be amenable to judicial review; that there was no point in
excluding decisions from review under the AD(JR) Act if they continued to be reviewable by
the High Court and/or the Federal Court under traditional judicial review procedures; and
that it was important that the primacy of the AD(JR) Act as a means of reviewing
Commonwealth administrative action should be maintained. This reasoning would also
apply in principle to any proposal to exclude from AD(JR) Act review decisions taken in
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areas such as migration, broadcasting, trade practices and taxation. It should be emphasised,
however, that both the Australian Broadcasting Tribunal and the Trade Practices
Commission stated in their respective submissions to the Council relating to its review of the
AD(JR) Act that they were not seeking total or partial exclusion of their decisions from
AD(JR) Act review.
98.
However, the Commissioner of Taxation has contended that decisions relation to the
recovery of taxation should be excluded from review under the AD(JR) Act, and has
expressed the view that the existence of sections 39B and 44(2A) of the Judiciary Act is not
relevant since it is ‘the ease of AD(JR) Act action which renders it such a ready vehicle for
delaying the payment of tax’. The Council believes, however, that the availability of other
remedies in an area where such large financial amounts are at stake would lead to the
utilisation of every available avenue of review, and that this could lead to even greater
delays, inconvenience and expense on the part of the Commissioner. As part of its general
project reviewing the operation of the AD(JR) Act (see paras 1-3), the Council will shortly be
examining the principles underlying the exclusions contained in Schedule 1 to the AD(JR)
Act, but at this stage it does not support the inclusion in that Schedule of decisions
concerning the recovery of tax.
OTHER PROPOSED CHANGES
99.
The Council intends to address in its principal report on the operation of the AD(JR)
Act most of the incidental suggestions for reform of the AD(JR) Act or associated procedures
which have been made in submissions to the Council in relation to the subject matter of this
report (see paras 1-3). The Council believes that the concern of the Department of
Immigration and Ethnic Affairs about delays can be met by the Federal Court itself
streamlining its procedures for dealing urgently with particular kinds of applications, and it
notes the suggestion of Mr Justice Wilcox that such matters could be raised by
Commonwealth agencies with the Chief Judge of the Federal Court.
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100.
Finally, on a matter also raised by the Department of Immigration and Ethnic Affairs,
the Council does not favour making special provision for taking security for costs in
migration cases. The Council appreciates that it will often be impossible for the department
to recover the costs of proceedings under the AD(JR) Act because of the subsequent
deportation or voluntary departure of the applicant, but it believes that to require the giving
of security for costs in all migration cases would be tantamount to denying access to the
courts to many of those who may have a good case along with those who do not. Finally, the
Council considers that the giving of security for costs is a matter best left to the discretion of
the Federal Court and it believes that adequate provision exists in this regard under the
Federal Court Rules (see O.28) and the Federal Court Act (see s.56 concerning security for
costs on appeal).
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APPENDIX: CONSULTATIONS
The following is a list of individuals, agencies and organisations who or which commented
on the Council’s discussion paper ‘Some Aspects of the Operation of the Administrative
Decisions (Judicial Review) Act 1977 circulated in mid-January 1986. Comments ranged from
the very brief to detailed submissions.
Aboriginal Development Commission
ACT Schools Authority
Dr M. Aronson, Faculty of Law, University of New South Wales
Attorney-General’s Department
Australian Broadcasting Corporation
Australian Broadcasting Tribunal
Australian Customs Service
Australian Federal Police
Professor E. Campbell, Faculty of Law, Monash University
Commissioner of Patents
Commissioner of Taxation
Department of Aboriginal Affairs
Department of Aviation
Department of Community Services
Department of Defence
Department of Education
Department of Finance
Department of Foreign Affairs
Department of Local Government and Administrative Services
Department of Social Security
Department of Special Minister of State
Department of Territories
Department of Veterans’ Affairs
Director of Public Prosecutions
Federation of Australian
Commercial Television Stations
Federation of Australian Radio Broadcasters
Professor J. Goldring, School of Law, Macquarie University
Dr G. Griffith, Q.C. (Solicitor-General of Australia)
Department of Health Air Vice Marshal J.C. Jordan, A.O. (Acting Commonwealth Ombudsman)
Law Institute of Victoria, Administrative Law Committee
Law Society of the A.C.T. and Mr R. B. Topfer
Law Society of Queensland
Law Society of South Australia
Law Society of Western Australia
Mr W. S. Martin (member of Administrative Law Committee of the Law Society of Western Australia)
Media Law Association of Australasia
National Crime Authority
Northern Lands Council
Professor D. C. Pearce, Faculty of Law, Australian National University
Mr R. R. S. Tracey
Trade Practices Commission
The Honourable Mr Justice M. R. Wilcox
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