Substantive grounds of judicial review: What can Measuring Accountability tell us? Measuring Accountability in Public Governance Regimes book forum

Dr Anna Olijnyk provides the second post in our book forum on Ellen Rock’s Measuring Accountability in Public Governance Regimes. To see all posts, please click here.

Anna Olijnyk

12.12.2022

Ellen Rock pulls off an impressive feat in Measuring Accountability in Public Governance Regimes (‘Measuring Accountability’). The book’s two central insights are, on the one hand, usually overlooked in administrative law scholarship and, on the other, so convincing as to elicit a reaction of ‘yes, of course!’ Rock points out, first, that claims of ‘too much’ or ‘not enough’ accountability make little sense without a normative benchmark of the ideal amount of accountability. Secondly, she argues the existence of an accountability deficit or overload must be assessed at a systemic level, rather than by focusing on single accountability mechanisms in isolation.

In this post, I explore how these insights might shed light on the (non)development of novel grounds of judicial review addressing serious forms of administrative injustice (‘substantive grounds of review’) in Australia.

Domestic and comparative context

In other jurisdictions – notably the UK – a range of grounds of judicial review invites the court to examine the substance of administrative decisions. These grounds include substantive unfairness and proportionality. But in Australia, these grounds have struggled to find a foothold. Proportionality is a ground of review for delegated legislation, and may be an indicator of unreasonableness, but is not a stand-alone ground of review for administrative decisions (despite occasional hints to the contrary).  Nor have subsequent courts taken up Kirby J’s invitation to develop the ground of ‘serious administrative injustice’. When the Administrative Review Council examinedthe system of federal judicial review in Australia in 2012, it did not recommend the adoption of new grounds of review, observing (at [7.51]) ‘that both “proportionality” and “serious administrative injustice” are grounds than raise issues about the line between merits and judicial review, and that other avenues are open to people who have suffered from serious maladministration to make complaints or seek compensation’.

As those remarks indicate, these novel grounds of review are often dismissed in Australia because they blur the line between merits review and judicial review. Several commentators – including Michael Taggart in his influential piece on ‘Australian Exceptionalism’ – have observed that this raises the possibility of breaching the separation of powers enshrined in the Australian Constitution, particularly the principle that federal courts can only exercise judicial power.

I think this concern is overstated. It is well accepted that conditions of procedural fairness and reasonableness attach to most statutory powers by implication. Similarly, the common law could develop a principle that an administrative power conferred by statute is generally subject to an implied condition that the power be exercised in a proportionate and substantively fair manner. If (and it’s a big ‘if’) the common law developed in this way, judicial review of an administrative decision on the grounds of proportionality or substantive unfairness would require a court to determine whether the decision-maker had complied with the conditions on which the statute conferred the power. Determining whether an administrative decision has been made lawfully is a quintessentially judicial function. It therefore seems unlikely that substantive grounds of review would breach the Boilermakers principle (and, therefore, a breach of the constitutional principles that bind State courts is even less likely).

The real objection to substantive grounds of review in Australia may lie outside the Constitution. There is a strong argument that courts are not institutionally suited to assessing the quality of an administrative decision, as opposed to the processes that led to that decision or the accuracy of the decision-maker’s understanding of the legislation.

This is not the place, however, to develop that argument. Instead, I want to consider what Rock’s framework for measuring accountability might tell us about the appropriateness of courts considering substantive grounds of review. Is the absence of these grounds an example of an ‘accountability deficit’? Or, on the other hand, would the expansion of the grounds of review create an ‘accountability overload’?

Accountability for what?

In her book, Rock acknowledges that one of the most difficult tasks in setting an accountability benchmark is to ascertain for what governments should be held accountable. As with other elements of accountability, the answer will be different depending on which rationale for accountability is in question.

In her hypothetical benchmark (at p 122), Rock settles on decision-makers being accountable for ‘unlawful exercise of power’ under the ‘control’ rationale, and for ‘unlawful exercise of power causing harm’ under the ‘redress’ rationale. If statutory powers are subject to an implied condition that they be exercised in a proportionate and substantively fair manner, these grounds operate just like any other kind of unlawfulness.

But for our purposes, this begs the question: what should be unlawful? Should the grounds of review in Australia expand to cover the substance of decisions? This is a large question and one Rock necessarily leaves open. Measuring Accountability emphatically declines to offer definitive answers to the questions it identifies (who should be accountable, to whom, for what, via what procedures and with what consequences). One of the book’s achievements is to highlight the formidable scale of any such inquiry.

What would happen, though, if we accept that governments should be accountable – in some way – for decisions that are disproportionate, substantively unfair, or just bad? Can Measuring Accountability tell us anything about whether it follows that these matters should be the subject of grounds of review?

Accountability as a system

Using three case studies in which multiple accountability mechanisms were engaged in the same controversy, Rock demonstrates the importance of assessing the accountability system as a whole. Instead of asking whether one accountability mechanism – say, judicial review – provides a satisfactory degree of accountability, it is more productive to ask whether the range of available accountability mechanisms meet the accountability benchmark.

This frame of reference opens up new insights about the appropriateness of substantive grounds of review.

For example, the ‘deterrence’ rationale of accountability calls for a dialogue with primary decision makers with a view to improving the quality of future decisions. This rationale seems relevant when evaluating accountability for the substance of administrative decisions. Judicial review, with its limited but coercive remedies and legalistic forms, is a blunt instrument for this kind of dialogue. Other accountability mechanisms, such as Ombudsmen or informal complaints will serve the deterrence rationale more effectively.

Meanwhile, the ‘transparency’ rationale calls for the exposure of government action to public scrutiny, to engage with the democratic process. Judicial review, as Rock points out in her discussion of open justice, is highly transparent. But other mechanisms might be just as effective for exposing poor quality decision making: a free press, freedom of information, and proactive publishing of government decisions. When assessing how the system overall meets the transparency rationale, judicial review on substantive grounds might be an ‘accountability overload’.

Space does not permit a full exploration of how the system of accountability mechanisms hold governments to account for substantively poor decisions. But already, we begin to see how a rough and ready implementation of Rock’s framework can yield insights about the desirable direction of administrative law.

Dr Anna Olijnyk is a Senior Lecturer and Director of the Public Law and Policy Research Unit at the University of Adelaide. Her research spans constitutional, administrative, and procedural law, with a particular interest in the role of courts in relation to other institutions of government and to the community.

Suggested citation: Anna Olijnyk, ‘Substantive grounds of judicial review: What can Measuring Accountability tell us? Measuring Accountability in Public Governance Regimes book forum’ on AUSPUBLAW (12 December 2022) <https://auspublaw.org/blog/2022/12/substantive-grounds-of-judicial-review-what-can-measuring-accountability-tell-us-measuring-accountability-in-public-governance-regimes-book-forum/>