This is the fourth in a special series of posts on the 50th anniversary of the Kerr Report, examining whether Australian administrative law is still fit for purpose. To see other posts in this series, click here.

BY THOMAS LIU

The 50th anniversary of the reforms recommended by the Kerr Committee provides a valuable opportunity to reflect on the bigger picture of judicial review and administrative law. The understated but important practical objectives and tools of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) help that enquiry.

This post considers some of the innovations and lessons from the ADJR Act by looking at a couple of quiet achievers which came out of that reform. By focusing on two particular aspects of the ADJR Act concerning remedies in the broader context of the Kerr Committee reforms, a simple but significant theme emerges – that administrative law is undoubtedly about ensuring government accountability through judicial review, but it is also about making government administration work better in practical ways. The current emphasis on judicial review under s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth), which has resulted from the growing use of privative clauses, tends to focus on the minimum safeguard for ensuring executive accountability. This can sometimes obscure the importance of the practical functions and concerns of administrative law. 

The Kerr Report and the ADJR Act

In Jadwan Pty Ltd v Secretary, Department of Health & Aged Care (2003) 145 FCR 1, Kenny J summarised the history of the ADJR Act relevantly as follows (at [69]):

The AD(JR) Act, which came into force on 1 October 1980, was introduced to simplify the law relating to the judicial review of decisions made under Commonwealth enactments. As the Administrative Review Council (“the ARC”) observed in its 32nd report :

The AD(JR) Act was developed and put in place in the Commonwealth as a response to the perceived need for reform. The Act resulted from the recommendations of the Commonwealth Administrative Review Committee (‘the Kerr Committee’) which presented its report to the government in August 1971. In its report the Kerr Committee recommended wide ranging reforms to simplify and improve the scheme of judicial review which then applied in the Commonwealth area.

The Kerr Report described the broader context for its recommendations (at [15]) in the following way:

In recent times in Australia, as in other countries, there has been a considerable expansion in the range of activities regulated, and in the volume and range of services provided, by government and statutory authorities for the benefit of the public. This expansion has been accompanied, as it must be, by a substantial increase in the power and discretions conferred by statute on Ministers of the Crown, officers of the administration and statutory authorities. The exercise of these powers and discretions involves the making of a vast range of decisions and recommendations which affect the individual citizen in many aspects of his daily life.

What emerges from this context is that the Kerr Committee was not only concerned with simplifying and improving judicial review by, for example, providing grounds of judicial review in the ADJR Act that are “substantially declaratory of the common law”, and doing away with the distinction between jurisdictional and non-jurisdictional error. The proposed reforms were also concerned with creating a framework that functioned to make government decision-making and administration work better and more efficiently in modern life. And in advancing these objectives, the Committee was “mindful that it is essential to achieve a balance between the desirability of achieving justice to the individual and the preservation of the efficiency of the administrative process” (Kerr Report at [12]).

The ADJR Act advances these essentially practical objectives in pragmatic and flexible ways – particularly in the remedies available to a person affected by an administrative decision.

Judicial review under s 75(v) of the Constitution and s 39B of the Judiciary Act

Most judicial review cases these days look quite different to what the ADJR Act set out to create. This is because, as Sir Anthony Mason (who was a member of the Kerr Committee) observed:

One development the Kerr Committee did not foresee was the extensive use of privative clauses later made by the Federal Parliament. This development has had the effect of endowing s. 75(v) of the Constitution with greater importance than it would otherwise have had. We now have a dual system of federal judicial review consisting of review under the ADJR Act and review under s. 39B of the Judiciary Act 1903 (Cth) and s. 75(v). In addition, we have renewed emphasis on jurisdictional complexities because privative clauses cannot protect an administrative decision from review on the ground of jurisdictional error.

Sir Anthony Mason’s reference to the unforeseen use of ‘privative clauses’ describes a type of statutory provision which seeks to oust (or substantially limit) the jurisdiction of a court to review government action taken under a particular piece of legislation.

As an ordinary Act of Parliament, the ADJR Act can be overridden or amended by further legislation. Parliament can, and often does, specify in legislation that the ADJR Act does not apply to particular decisions or whole Acts, by listing exempt Acts in Schedule 1 to the ADJR Act. In contrast, Parliament cannot oust or limit the High Court’s judicial review jurisdiction entrenched in the Constitution.

Section 75(v) of the Constitution is the main (but not only) provision which entrenches the High Court’s jurisdiction to review Commonwealth administrative action. In Smethurst v Commissioner of Police [2020] HCA 14, Gordon J summarised the current view of s 75(v) as follows (at [170]):

Section 75(v) of the Constitution exists to make constitutionally certain that this Court has jurisdiction to restrain officers of the Commonwealth from exceeding federal power. As Gaudron, McHugh, Gummow, Kirby and Hayne JJ said in Plaintiff S157/2002 v The Commonwealth, s 75(v) introduces into the Constitution “an entrenched minimum provision of judicial review” and “[t]he reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth 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”. The “evident constitutional purpose” of s 75(v) is “that relief should be available to restrain excess of federal power and to enforce performance of federal public duties”. (Emphasis omitted.)

Chief Justice Gleeson described s 75(v) as securing “a basic element of the rule of law”. It has also been described as having an “accountability function” – although this latter description has its critics.  

The consequence of these developments, and the enduring role of s 75(v) and s 39B of the Judiciary Act, is that the Federal Court and the High Court “have examined more frequently than before the common law principles of judicial review of administrative action”. The same is true of the Federal Circuit Court, which by virtue of s 476(1) of the Migration Act 1958 (Cth) “has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”.

These developments reflect Sir Anthony Mason’s observation that “[w]e now have a dual system of federal judicial review”, with one system generating a “renewed emphasis on jurisdictional complexities”. As Kenny J pointed out in Jadwan, however, “the High Court has progressively simplified and rationalised the common law principles of judicial review of administrative action” with the result “that today many of the common law principles resemble the statutory regime set out in the AD(JR) Act”. In other words, the judicial review regimes under s 75(v) and under the ADJR Act have diverged in some ways (especially as to the scope of jurisdiction) and developed together in others (particularly on the ‘grounds’ of review).

Nonetheless, this “dual system” has practical consequences. An analysis of the practical differences is useful for understanding why the ADJR Act does more than simply provide a framework for ensuring executive accountability through judicial review, and why that might be valuable.

Practical differences between the ADJR Act and judicial review pursuant to s 75(v) and s 39B

Again, Kenny J’s summary of the developments in this area in Jadwan is useful, particularly the following observation (at [79]):

Further, in relation to remedies, there remain some significant differences between the AD(JR) Act and the common law. One of these differences is relevant to the disposition of the present appeal. In particular, the remedies available under s 16 of the AD(JR) Act are broader and more flexible than those available at common law. (Emphasis added.)

The discussion below looks at two particular remedies under s 16 and s 15 of the ADJR Act. These examples illustrate the flexibility and practicality of remedies under the ADJR Act compared to judicial review pursuant to s 75(v).

The power to quash a decision

The central innovation in the ADJR Act with respect to remedies is probably the power in s 16(1)(a) to make “an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies”. The courts have emphasised that this provides a broader remedial power, with fewer technical limits, compared with the corresponding common law remedy of certiorari.

In Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253, the Full Court of the Federal Court observed that:

[t]he provision of such an option provides greater flexibility than is available with a writ of certiorari, which quashes a decision ab initio … The processes of the Court when granting relief under the Administrative Decisions (Judicial Review) Act are very wide and considerations going to the date as at which an order is to take effect quite naturally fit the general scheme. [at 256].

And, at 257, the Court said that “[i]t is for the Court, having regard to all relevant circumstances, to select amongst the alternatives the date which will best do justice as between the parties and any other affected persons”.

A relatively recent example of these principles in action appears in Stambe v Minister for Health (No 2) (2019) 270 FCR 217. This was a case which, as Mortimer J observed (at [81]), concerned “precisely the kind of modification to the general law for which s 16 was intended” even though “the error is one which would be characterised at common law as going to the jurisdiction of the Minister”. The issue before Mortimer J was when the order quashing a decision concerning an approval given to a pharmacy should take effect. This question arose in circumstances where a pharmacy had been operating for over a year and expended considerable money to start its operations, but the decision to approve an aspect of its operation was found to have been affected by legal error. However, immediately setting aside the approval decision would inconvenience not only the affected pharmacy but the public as well, which relied on the pharmacy to fulfil prescriptions. Pursuant to s 16(1)(a) of the ADJR Act, Mortimer J made “orders which will give all parties a two month period to make appropriate arrangements before the substantive aspects of the Court’s orders take effect” (at [100]).

The attraction of a flexible and practical power such as that in s 16(1)(a) of the ADJR Act was recently reflected in the Report of the Independent Review of Administrative Law in the United Kingdom, conducted by a panel of experts and chaired by Lord Faulks QC. The panel’s only recommendation (at [3.49]) on the issue of judicial review remedies was to amend the Senior Courts Act 1981 (UK) “to give the courts the option of making a suspended quashing order”.

Power to make a suspension order

Another, related, example of a practical innovation in the ADJR Act is the power under s 15(1)(a) to “suspend the operation of the decision”. In Azaria Family Day Care Pty Ltd v Secretary, Department of Education and Training [2018] FCA 1640, Wheelahan J ordered the suspension of a decision to cancel the applicant’s approval to administer a child care subsidy under s 15(1)(a). In doing so, he said (at [50]):

I reject the idea that the respondent’s decision to cancel the applicant’s provider approval is not now amenable to an order under s 15(1)(a) of the ADJR Act to suspend its operation on the ground that it became effective on 17 October 2018… Section 15 of the ADJR Act is a remedial provision which can be given a beneficial construction. The analysis of Sundberg J in Riverside Nursing Care Pty Ltd v Bishop at [28] gives s 15 of the ADJR Act a construction which is harmonious with powers of the Court under s 16 of the ADJR Act to give final relief, and gives s 15 an interpretation which augments and furthers the purpose of the Act which can be inferred from its operative provisions, such as s 16.

As with s 16(1)(a), the power to suspend a decision under s 15(1)(a) allowed the Court to take into account prejudice to the party affected by the administrative action as well as to third parties. In particular, Wheelahan J accepted (at [39]) that “if an order suspending the operation of the decision is not made, then the continued operation of the applicant’s business will be jeopardised”. His Honour found that:

[t]here would be a reasonable prospect that as a consequence the applicant would suffer loss of custom, which might affect the viability of the business in the sector in which it operates, namely providing child care services to migrant families with working parents. I also accept that there are third parties such as employees of the applicant, educators engaged by the applicant, and families who use the services provided by the applicant who might be affected or inconvenienced.

What the practical differences reveal

The types of remedies discussed above rarely feature in judicial review under s 75(v) or s 39B, particularly if the application is to challenge a decision made under the Migration Act. But what this brief look at the practical differences and lasting merits of the ADJR Act reveals is that the accountability lens through which administrative law is often looked at, particularly in the context of s 75(v) and s 39B, is incomplete. Judicial review is undoubtedly concerned with ensuring accountability of government action. However, the ADJR Act shows that judicial review can also be about making things work better in practice.

Reflecting on the 50th anniversary of the Kerr Committee reforms provides an opportunity to acknowledge this aspect of the enduring wisdom of the Committee’s work – that a system of administrative law should balance the interests of individuals and government, and that it should be pragmatic, practical, and flexible in doing so.

Thomas Liu is a barrister in Sydney.

Suggested citation: Thomas Liu ‘The Administrative Decisions (Judicial Review) Act 1977 and what it says about judicial review and administrative law’ on AUSPUBLAW (18 June 2021) <https://auspublaw.org/2021/06/the-administrative-decisions-judicial-review-act-1977-and-what-it-says-about-judicial-review-and-administrative-law/>