Conflicting Positions on The Role of Judicial Review in Maintaining Accountability

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1. Question

    

   Assessment criteria

    

   • Demonstrated understanding of the question and relevant law.

    

   • Depth of analysis; discussion should demonstrate a close familiarity with relevant commentary and case law. It should also demonstrate your ability to evaluate evidence and the validity of arguments and to make a reasoned choice between arguments, while taking into account objections and alternative viewpoints.

    

   • Coherence of assignment structure, including: an appropriate balance between narrative and analysis, the separation of issues, points made in a clear and linked order, no irrelevance or repetition, and argument well supported by reference to relevant commentary and case law.

    

   • Seriously engage with the argumentand points of contention raised in by the commentator. Reference to case law may also be necessary

    

   • The assignment should be written in grammatical plain English, follow the guidelines set out below regarding word limits and format, and be referenced according to standard legal citation criteria as per the AGLC4(Melbourne University Law Review Association, Australian Guide to Legal Citation 4th edn, 2018)
   • Provide a list of references.

    

   Word limit and format

    

   • The assignment is subject to a 1800 word limit. This limit does not include footnotes, provided those footnotes are used for referencing only and do not include any substantive material.

    

   • The paper must be double spaced and typed in a 12 point font, allowing a standard 2.5cm margin on both the left and right sides and at the top and bottom of the page.

    

   ESSAY QUESTION

   Bannister et al discuss the function of judicial review in maintaining accountability in the Introduction to their text. They observe,

   While judicial review is sometimes attacked as ‘undemocratic’, there are strong defences of the judiciary’s role in reviewing government action. In recent years high-profile asylum seeker cases decided by the High Court have exemplified fundamentally different views on the role of judicial review in contemporary Australia. What, for some commentators, is ‘court clogging litigation’ for others is a cause for celebration of the ‘rule of law’.*

   Identify and critically evaluate the conflicting positions on the role played by judicial review in maintaining accountability.

    

   Bannister, J, A. Olyjnyk & S. McDonald, Government Accountability: Australian Administrative Law (2^nd edn), pp.15-16.

    

   Expectations regarding analysis of the case and academic commentary in your essay

   • You are expected to engage in serious analysis of commentary beyond the lecture notes and text book readings.
   • Start by reading the relevant parts of Chapter 1 in Bannister et al, Government Accountabilityas well as the case law and commentary referred to in their discussion. You will then need to take your research further to seek out relevant commentary as well as case law to develop your discussion.
   • You must seriously ‘engage’ with the relevant commentary. Engaging means more than using the commentary as a source of information or facts, it requires you to consider the argument and analysis of commentators, and explain how their analysis supports or differs from your own reading of the case?
   • Relevant commentary includestexts, journal articles etc such as, Federal Law Review, Australian Journal of Administrative Law, Public Law Review; AIAL Forum publications..

    

    

    

    

    

   CLASS NOTE to aid.

    

    

   PART 1

   The ‘rule of law’

   • Official power should be exercised according to law, not arbitrarily
   • The power of government is limited by the ‘rule of law’

   Judicial review

   • One of the ways the ‘rule of law’ is protected in common law countries such as Australia is by giving the judicial arm of government (the courts) the power to scrutinise the actions and decisions of the executive arm of government.
   • This process is called ‘judicial review’.
   • Only certain courts may exercise judicial review: the High Court; the Federal Court and Federal Magistrates Court (Cth matters); and State Supreme Courts (state matters).

    

   Judicial v merits review

   When undertaking judicial review of an administrative decision the courts consider only whether the decision making process was sound (lawful).  The court does not consider the merits of the decision under review.

    

   Example:

   We conducted a merits review of the decision denying Reachout a licence to operate an Alternate Family Dispute Resolution Service.

   Question:

   What aspects of the decision/decision making process was the AAT entitled to review?

   If the same decision were the subject of judicial review, what matters would be the focus of the court’s review?

   Elements necessary to initiate judicial review

   • The disputed decision must be justiciable– reviewable by a court.
   • The court must havejurisdiction to review the decision.
   • The applicant must have standing– they must be the appropriate person to bring the dispute to the court for review.
   • The applicant must meet the requirements to be eligible for a specific remedy– set a decision aside (certiorari); prohibit an exercise of power (prohibition or injunction); order for the exercise of a public duty (mandamus); declaration of the law.
   • An applicant must be able to establish a ground of review– that is prove that the decision maker’s decision is unlawful in some way.

   Political neutrality, the separation of powers and the limits of judicial review

   • The legitimacy of judicial review depends upon the courts maintaining a politically neutral status.
   • It is because of this need to maintain distance between the executive and judicial arm of government that the courts do not have the power to exercise merits review.
   • The separation of powers requires that the courts are distanced from questions of the desirability, or merits, of government decision making.
   • The court does nothave the power to ‘stand in the shoes of the original decision maker’ and make a fresh decision on the basis of all the relevant facts and circumstances of the case.
   • The process of judicial review is only initiated if a person affected by the decision seeks review.  The court does not have the power to initiate judicial review of its own motion.

   “Courts do not have a mandate to seek out interesting and important questions of law, and decide them irrespective of the desire of the parties to litigate. Whatever may be seen as the precise role of judges in making or declaring the law, it is limited in one vital, and salutary, respect: it can only be exercised in the course of deciding cases that are brought for judicial decision.”

   Gleeson CJ Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, 390.

   The judicial review process considers only the decision making process

   The role of the court is confined to determining whether the decision maker conformed to the rules and principles of administrative law which require that:

   o    the decision maker be impartial

   o    the decision maker does not exceed his/her power

   o    the decision making process is rational and founded on probative evidence

   o    he/she makes the decision on the basis of relevant facts

   o    the decision making process allows a person, whose rights and interests are affected by the decision, the opportunity to be heard, particularly in relation to matters which are adverse or prejudicial

   What the court can do if it finds the decision is invalid/illegal

   • The court may declare actions and decisions taken by government legally invalid, if it finds government has exercised its decision making power improperly.
   • The court cannotsubstitute a decision of its own for the decision being reviewed.
   • If the court declares a decision legally invalid then the decision must be taken again.  The original decision maker will have to make the decision again on its merits, adopting an improved and lawful decision-making process.

   Scheme of judicial review

   • The superior courts have an inherent common law power to exercise judicial review. To initiate review it is necessary to issue a ‘prerogative writ’.
   • At the Commonwealth level, and in some states, the process of seeking judicial review has been codified with the objective of making the process simpler, eg. The Administrative Decisions (Judicial Review) Act 1977(Cth) (ADJR Act) codified the grounds of review and simplified the remedial aspect of review, although it made the jurisdictional requirements of judicial review more complicated.
   • The introduction of the AD(JR)Act and similar state legislation (in Tas, ACT and Qld) does not take away the inherent common law power of the superior courts to undertake judicial review of administrative decision making.

    

    

   Commonwealth review

   The High Court – constitutional writs

   • The Commonwealth Constitutions 75 (v) guarantees the High Court’s original jurisdiction* to review decisions where a writ of mandamus (compelling the performance of a duty), prohibition (preventing an exercise of power or jurisdiction) or an injunction (restraining unlawful action) is sought against an ‘officer of the commonwealth’.

   *The High Court is also the highest appellate court from the Federal Court and supreme courts in administrative law matters.

   • The Court’s s 75(v) jurisdiction

   ‘… is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them.’

   Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 [quoted in C&McM 2.2.33 (3^rd edn); 2.2.40 (4^th edn)].

   • Ancillary Constitutional powers s75(iii) and s76(1) also allow the High Court to issue a writ of certiorari (setting aside a decision) and a declaration (of the limit of a specific power).

   s 32 Judiciary Act (1903) provides that the High Court has power to grant remedies beyond those named in s 75(v).

   Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 – affirmed the High Court may grant certiorari (set aside the decision) if one of the named s 75(v) writs is sought, even though s 75(v) does not mention certiorari.

   The Federal Court

   • s 39B Judiciary Act 1903(Cth) confers a jurisdiction on the Federal Court equivalent to the High Court’s jurisdiction under s 75(v), including its ancillary jurisdiction to grant certiorari and declaration.
   • The Federal Court effectively has ‘jurisdiction to undertake judicial review of most, but not necessarily all, commonwealth administrative action.’ [C&McM 2.2.26 (3^rdedn); 2.2.31 (4^th edn)]
   • There are various technical and legislative restrictions on Federal Court jurisdiction, which for the purposes of this class we do not need to be concerned with. [see C&McM 2.2.13-26 (3^rdedn); 2.2.30-31 (4^th edn)]

   Federal Magistrates Court

   • Federal Magistrates Court jurisdiction conferred by Federal Magistrates Act 1999(Cth) to determine less complex commonwealth administrative law matters.
   • The FMC can undertake review under the ADJR Act, it can review Migration Act decisions of Tribunals, appeals from AAT to Federal Court can be transferred to FMC.
   • FMC does notshare the Federal Court’s jurisdiction under s39B Judiciary Act.
   • Intended that the FMC deal with less complex matters expeditiously, with limited formality and consequentially with less expense. The FMC readily employs alternative dispute resolution – mediation, conciliation and arbitration.

    

   PART 2

   Justiciability - limits of judicial review

   • Not all administrative decision making is open to judicial review.  Parliament may insert a ‘privative clause’ into a statute with the intention of ousting judicial review, eg Migration Act. [See discussion in C&McM (4^thedn) 2.2.24-29] Courts often read down privative clauses in order to limit their scope to prevent judicial review (week 13).
   • Common law principles ofjusticiability may also determine whether a decision is reviewable by a court.  The common law limits are determined by judicial conceptions – judges’ ideas – of the proper relationship between the judicial arm of government and the executive/administrative arm of government.
   • Former Chief Justice Sir Gerard Brennan has argued:

   “The courts have neither the capacity nor the procedures appropriate to review policy … the Courts do not have the resources or the techniques for assessing the worth of policy, and they might be quite mistaken about the effect of exempting a particular case from the application of a policy.  On the other hand, the balancing of individual and community interest is the stuff of the political branches of government.”

   ‘The Purpose and Scope of Judicial Review’ in Taggart, M. (ed.) (1986) Judicial Review of Administrative Action in the 1980sp. 20.

    

   What makes a matter justiciable?

    

   Justiciability is determined by the subject matter of decision, not whether it falls within a certain category of decisions.

   Creyke and McMillan [2.3.5  (3^rd edn); 2.3.6 (4^th edn)] summarise the basis for determining whether a matter is ‘justiciable’:

   “The exercise of judicial power is restricted to cases that require a determination of legal rights and interests of, or claims by, an individual. …a judicial ruling must have a direct and immediate consequence for the legal rights or interest of a party.”

   The focus of the courts in determining justiciability will be on the subject matter of the decision (see below).

    

   Indicia of non-justiciability

   • Political subject matter

   Generally if the issue is a political one, which the courts consider inappropriate for judicial comment or a matter that is better determined by ‘political considerations’ rather than ‘legal standards’, then the issue will be non-justiciable.

    

   The types of matters that have been deemed non-justiciable include:

   • Treaty making; Dissolution of parliament; National security
   • Defence; International relations

    

   Source of the power

   For a long time decisions were deemed not justiciable if they were an exercise of prerogative power (this is no longer the case).

    

   The ‘prerogative’ is a residual form of power exercisable by the crown alone. Prerogative power has no statutory source but is recognised by common law.

    

   Some examples of prerogative power in action:

   The source of the executive’s authority to grant honours, to extend mercy of pardons to convicted criminals; the source of power to conduct international relations and enter into a treaty; allows the Attorney General power to enter a nolle prosequi, or grant a fiat to a citizen to bring a relator action.

    

   The fact that the power is prerogative no longer protects that decision from judicial review.

    

   à          “I see no reason why simply because a decision–making power is derived from the common law not a statutory source it should for that reason only be immune from judicial review.”

   (Lord Diplock, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410)

    

   • Status of the decision maker

   Decisions taken by senior members/institutions of the executive such as the Governor-General or other vice regal officers, Executive Council or Cabinet were also treated as non-justiciable.

   These offices were associated closely with the crown, and it was considered that by virtue of their rank and role they should enjoy a similar immunity from judicial review (this is no longer the case).

   The maxim the “the king can do no wrong” has been declared to have no place in modern government.

   à          “Appropriate as it is that this principle should apply to personal acts of the Sovereign, it is at least questionable whether it should apply to acts affecting the rights of the citizen.”

   (R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981) 151 CLR 170, 220 per Mason J).

    

   In Toohey’s case Mason J observed, as a matter of practice, it is not the Crown, but an ever-expanding executive, which makes decisions affecting individual rights.  The executive decision making process is fallible and should be subject to review if necessary

   Minister for Arts Heritage and the Environment v Peko Wallsend Ltd (1987) 15 FCR 274

   Decision made by the Federal Cabinet exercising prerogative power to nominate Stage 2 of Kakadu National Park on the World Heritage Register. Cabinet’s decision was in pursuance of Australia’s treaty obligations under the World Heritage Convention.

   Peko had mining interests in the Park and claimed a procedural fairness right to be heard regarding the decision.

   The application for judicial review raised justiciability issues:

    

   Status of the decision maker:

   Court split on whether Cabinet decisions justiciable (Bowen CJ no, Sheppard J didn’t decide, Wilcox J potentially)– Cabinet is a multi-member decision–making body that conducts confidential deliberations; role of Cabinet is essentially to frame the policy of government in the public interest, it must weigh and define policy options; must make decisions taken in the public interest may also have implications for private interests; sanctions against Cabinet are generally political.

   The source of the power

   ‘Courts should accept responsibility for reviewing decisions of ministers or the Governor-General in Council notwithstanding the decision is carried out in pursuance of a power derived … from the common law or the prerogative’ Bowen CJ (278)

   Subject matter of the decision

   à          ‘the whole subject matter of the decision involved complex policy questions relating to the environment, the rights of Aboriginals, mining and the impact on Australia’s economic position of allowing or not allowing mining as well as matters of private interest… in conjunction with its relationship to the terms of the Convention placed the decision beyond review.’ Bowen CJ (277-8)

   Held:  It was the subject matter of the decision -polycentric political considerations - which meant that it was non-justiciable.

   No procedural fairness obligation owed to Peko despite possible future disadvantage.

   Current judicial attitude to non-justiciability

   • The courts have acknowledged that the doctrine of ministerial responsibility does not always adequately protect individual citizens interests (hence the need for judicial scrutiny).
   • Creyke and McMillan [2.3.6 (3^rdedn) 2.3.7 (4^th edn)] note that:

   à          “the boundaries of justiciablity move over time, usually along a path of expanding the range of government decisions that are subjected to judicial scrutiny.”

   • High-level executive decisions and prerogative power decisions are now, theoretically, potentially justiciable. Although, the subject matter of those decisions may be so political that they are deemed non-justiciable.
   • Decisions of the Governor-General and other vice-regal officers exercising statutory power are now amenable to judicial review, as to purpose (Toohey’scase), or natural justice (FAI Insurances v Winneke; South Australia v O’Shea)
   • Decisions of Cabinet and Governor in Council, even in the exercise of prerogative power, are now amenable to judicial review(South Australia v O’Shea; Minister for Arts Heritage and the Environment v Peko-Wallsend Ltd).

    

   PART 3

   Jurisdiction - ADJR Act Review

   For the Federal Court or Federal Magistrates Court to have jurisdiction to undertake review under the ADJR Act:

   1. there must be (a) a decisionor (b) conduct or (c) a failure to decide; and
   2. the applicant must be a person aggrieved; and
   3. the decision must be of an administrative character; and
   4. the decision must be made under a Commonwealth enactment; and
   5. it cannot be a decision specifically excluded from review (decision of the Governor General or of any of the classes listed in Sch 1 or in the Regulations to the ADJR Act).

    

   ADJR Act – what is a decision?

    

   Three broad classes of decision

   -        s 5 - decision which has been made

   -        s 6 – conduct engaged in for the purpose of making a decision

   -        s 7 - failure to make a decision

   s 5 - Decision which has been made

   Prior to ABT v Bond (1990) ‘decision’ was interpreted broadly to facilitate the remedial character and purpose of the Act (Lamb v Moss (1983);Evans v Friemann (1981) )

   Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 337

   The High Court decided a ‘decision’ for ADJR Act purposes has the following attributes:

   -        required or authorised by the statute

   -        character or quality of finality

   -        must be of a substantive nature

   Where provision is made in a statute for the making of a report or recommendation, that report or recommendation is a ‘decision’ for ADJR Act purposes.  BUT a conclusion reached as a step in a course of reasoning is NOT reviewable.

   The decision should be final and operative – a conclusion reached as a step along the way to reaching the ultimate decision is not a ‘decision’ (unless that interim finding is specifically provided for by the statute).

    

   Court’s rationale in ABT v Bond

   In determining what sort of action amounted to a ‘decision’ the Court balanced the following two factors:

   The AD(JR) Act intended to allow convenient and effective means of review v’s

   It is not in the public interest to overly impair the efficiency of government through excessive litigation

    

   The Court in Bond’s case resolved the policy conflict by giving the term ‘decision’ a narrow definition.

   à          ‘The rationale underlying [Bond’s case] is that parliament could not have intended the Judicial Review Act to be a vehicle for judicial review of every decision of a decision maker under a Commonwealth enactment. Some decisions will have real impact upon a person’s rights, privileges or obligations; some will have no such impact, whilst others are mere stepping stones which lead ultimately to the making of a decision which does affect eth person’s position …’

   Edelsten v Health Insurance Commission (1990) 27 FCR 56, 68 per Northrop and Lockhart JJ

   s 6 – Conduct engaged in for the purpose of making a decision

   • Action of a procedural nature taken for the purpose of making a final decision
   • Examples: refusing an adjournment at a hearing (ABT v Bond(1990) 170 CLR 321); waiving time limits in a hearing (Century Metals and Mining NL v Yeomans (1988) 85 ALR 29); communication of a decision (Shepherd v Griffiths (1985) 7 FCR 44); the summoning of a witness by a Royal Commission (Ross v Costigan (1982) 41 ALR 319)
   • s 6 challenge to decision making conduct must be made before ultimate decision is made (once the ultimate decision is taken any ‘conduct’ would be reviewable under s 5) Minister for Imm and Multicultural Affairs v Ozmanian (1996) 71 FCR 1.

   s 7 - Failure to make a decision

    

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