Legislative Reform of Judicial Review of Commonwealth Administrative Action
| Date | 01 March 1978 |
| Published date | 01 March 1978 |
| DOI | 10.1177/0067205X7800900103 |
| Subject Matter | Article |
LEGISLATIVE REFORM
OF
JUDICIAL REVIEW
OF
COMMONWEALTH ADMINISTRATIVE ACTION
By
JOHN
GRIFPITHS·
Over the last three years the Commonwealth has enacted four
statutes with the aim 0/ overcoming some 0/ the deficiencies which
exist at common law in the reviewing 0/ administrative action.
These are the Administrative Appeals Tribunal
Act
1975 (Cth),
the Administrative Appeals Tribunal
Amendment
Act
1977
(eth),
the Ombudsman
Act
1976 (Cth) and the Administrative Decisions
(Judicial Review)
Act
1977
(eth).
This article examines in detail
the Administrative Decisions (Judicial Review)
Act
1977 (Cth) in
order to determine whether the common law rights and remedies
have been improved.
"It
is
at
last being recognised", stated Professor Harry Whitmore in
1972,
"that
there
is
need to reform the antiquated and costly apparatus
of administrative law
that
we
inherited from England".1 He was, of
course, referring to the findings of the Administrative Review Com-
mittee which had been appointed in October of 1968, primarily to
consider the scheme by which the courts had traditionally exercised
supervisory control of administrative action in reviewing the legality of
acts done by the Executive and its officials.
In
its Report presented to
Parliament in August 1971,2 the Committee recommended
that
wide-
ranging reforms be implemented to simplify and improve the existing
scheme of judicial review. The Committee was also
at
pains to
emphasise that:
it
is
neither correct
nor
practicable to examine in isolation judicial
review in the traditional sense; it must be seen and examined in
the total context of review of administrative decisions. The
adequacy of any system of judicial review can be assessed and
judged only in the light of such other provision for administrative
review as does,
or
should, exist at the same time.3
Hence the Kerr Committee's recommendations were not limited simply
to reforming judicial review, but went further
to
include important
proposals for setting
up
an Administrative Review Tribunalto reconsider
*B.A., LL.B. (A.N.U.), LL.M. (Harv.).
1Whitmore, "Administrative Law in the Commonwealth: Some Proposals
fo,r
Reform" (1972) SF.L. Rev. 7.
2Report
of
the Commonwealth Administrative Review Committee (the "Kerr
.Committee"), Parliamentary Paper No.
144
of
1971. (Hereinafter referred
to
as
the Kerr Committee Report.)
3Id.
para.
6.
See
also paras.
5,
12.
Throughout its Report, the Kerr Committee
uses "review"
in
anontechnical sense to denote all forms of revising administrative
action. Strictly speaking, "review" refers to the process
of
examining the legality
of adecision as distinct from hearing an appeal on the merits
of
adecision: see
generally, Wade, Administrative Law (3rd ed. 1971) S3-55.
42
1978] Legislative Reform
of
Judicial Review
43
certain Commonwealth decisions on their merits, aGeneral Counsel
for Grievances to investigate complaints of maladministration, and an
Administrative Review Council to oversee certain aspects of the new
scheme of Commonwealth administrative law.4
Almost adecade after the Kerr Committee was established, and only
after further examination by another two committees who presented
an additional three reports5has the Government acted to reform
Commonwealth administrative law, and
we
are now witnessing the
gradual emergence of asystem of review of Commonwealth adminis-
trative action with the enactment
of
the Administrative Appeals
Tribunal
Act
1975
(Cth),
the Ombudsman Act 1976
(Cth),
the
Administrative Appeals Tribunal Amendment Act 1977
(Cth),
and
the Administrative Decisions (Judicial Review) Act 1977 (Cth).6 The
Acts have been heralded in some quarters
as
providing apanacea for
the deficiencies which were unquestionably present in the pre-existing
scheme of Commonwealth administrative review which involved, in the
main, resorting to common law principles of judicial review, or, in some
instances, appealing to the relevant Minister or specialised tribunal to
reconsider adecision on its merits. One parliamentarian asserted that:
In
the near future, when the legislation
is
passed, Australia will
be in the forefront of democratic countries in regard to adminis-
trative appeals or review.7
Senator Missen welcomed the Administrative Appeals Tribunal Amend-
ment and Administrative Decisions (Judicial Review) Bills as measures
which help
to bring us out of the jungle of administrative law and help to put
alittle civilisation into that area.
It
[sic] provides for people who
have an administrative decision and want to appeal against it some
idea of where to
go
and what they should do; it [sic] puts some
simplicity into the law that
is
applicable to the situation. That
simplicity, of course, involves less cost and less trouble for the
person who wants to appeal.s
4Kerr Committee Report, paras. 389-390.
5Interim Report
of
the Committee
on
Administrative Discretions (the "Bland
Committee"), Parliamentary Paper No.
53
of
1973; Final Report
of
the Comm!ttee
on
Administrative Discretions, Parliamentary Paper No. 316
of
1973; Report
of
the Committee of Review
of
Prerogative Writ Procedures (the "Ellicott
CQm-
mittee"), Par!iamentary Paper No. 56 of 1973. (Hereinafter referred
to
as the
Ellicott Committee Report).
6
At
least two other important pieces
of
legislation relating
to
freedom
of
information and standard procedures for Commonwealth adjudicative tribunals
are in the Parliamentary pipeline and are expected
to
be enacted soon: see state-
ment by the Attorney-General in Commonwealth
of
Australia, H.R. Deb. 1977,
No.8,
1396.
7Id. 1624
(Mr
Neil).
8
S.
Deb. 1977, No. 11, 1608.
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