Reputation, Power and Fairness: A Review of the Impact of Judicial Review upon Investigative Tribunals
| DOI | 10.22145/flr.24.2.2 |
| Author | Margaret Allars |
| Published date | 01 June 1996 |
| Date | 01 June 1996 |
| Subject Matter | Article |
REPUTATION, POWER
AND
FAIRNESS: AREVIEW OF THE
IMPACT OF JUDICIAL REVIEW
UPON
INVESTIGATIVE
TRIBUNALS
Margaret Allars*
INTRODUCTION
We
live
in
times of escalating activity of investigative tribunals uncovering corruption,
crime, discrimination
and
violations of public service discipline. Investigation
by
agencies of the executive branch of government has become
an
industry, aform of
regulation
and
policy-making which ranges well beyond the occasional royal
commission.1This has
been
matched
by
an
escalating concern of civil libertarians
and
courts regarding the
damage
which investigative tribunals
may
do
to those
who
are
investigated
or
named
in
their proceedings. There is aquestion
whether
the expressed
concern of the courts, the protection of reputation, is
warranted
in
the light of the
accountability of such tribunals
by
means of judicial review.2The degree to
which
investigative tribunals cause damage to individuals
in
a
manner
which infringes their
fundamental
rights is constantly amatter of controversy. The degree of success
achieved
by
the tribunals
in
pursuing
their statutory objectives is also often a
matter
of
controversy.
This
paper
attempts to provide a
broad
contemporary picture of the extent to
which
judicial review
has
demonstrated
that
investigative tribunals
have
acted
in
excess of
their
powers
or
in
an
unfair manner. Of course, the rate of success of judicial review
actions provides little indication of the actual incidence of
unlawful
activity
by
investigative tribunals. However, it promises abalanced response to the facile
and
inaccurate assumption
that
atribunal which is less successful
than
it
would
hope
to
be
in
achieving its statutory objectives
must
be
acting
in
excess of
power
or unfairly. The
paper
proceeds
on
the basis that, subject to informed criticism, the courts are the
best
judges of excess of
power
and
unfairness as those concepts are
understood
in
administrative
law
and
hence are best able to provide aconcept of the rule of
law
which
accords
with
broad-based community perceptions. However, account is also
*
1
2
Associate Professor, Faculty of Law, The University ofSydney.
SPrasser, "Royal Commissions
and
Public Inquiries: Scope
and
Uses"
in
PWeller (ed),
Royal
Commissions
and
the
Making of
Public
Policy
(1994)
1.
See generally RSackville, "Royal Commissions
in
Australia:
What
Price Truth?" (1984) 60
Current Affairs Bulletin
3;
RScott, "Procedure at Inquiries -The
Duty
to
be
Fair" (1995) 111
LQR 596; GCrooke, "Reputation: Does it Matter
and
Can
Administrative
Law
Protect It?"
(paper
presented
to Administrative
Law
Forum
1996: Setting
the
Pace
or
Being
Left
Behind?,
Sydney, 11-12 April 1996).
236
Federal
Law
Review
Volume
24
taken
of
the
fact
that
the social
and
political issues
at
the
heart
of these controversies
are
normally
presented
to a
judge
exercising judicial review
in
the context of
an
adversarial
contest
between
an
individual
and
ahighly
bureaucratised
organisation
armed
with
drastic coercive powers. The
judge
inevitably takes notice of
the
fact
that
the
tribunal's
power
to attach apejorative label is exercised
in
acontext of
the
largely
unregulated
power
of
media
organisations to
present
their
own
versions of
the
nature
and
significance of
that
label
and
to neglect to give attention to
any
change
in
circumstances indicating
that
the
label is
not
merited. It is
understandable
that
the
immediate
interests of the plaintiff
tend
to loom large
in
such
acontest,
whilst
asilent,
innominate
and
vulnerable public
whose
interests are
intended
to
be
protected
by
the
establishment
and
empowerment
of
the
tribunal,
remain
unrepresented.
These concerns
tend
to
be
reflected
in
the concept of reputation,
which
is a
recurring
theme
in
the
case-law discussed
in
this
paper.
The powerfulness of judicial
review
as
a
means
of securing
the
accountability of investigative tribunals is
explored
through
an
examination,
in
Part
2,
of the test of justiciability of
the
decisions of
investigative tribunals, of
the
role of
such
tribunals as parties to judicial
review
in
Part
3, of excess of
power
or
jurisdiction
in
Part
4, of
abuse
of
power
in
Part
5, of
procedural
fairness
in
Part
6
and
of remedies
in
judicial review
in
Part
7.
LIMITING
THE
SCOPE
OF
JUDICIAL REVIEW
At
the
federal level
the
Administrative Decisions (Judicial Review) Act 1977 (Cth)
(ADJR Act) is of
primary
importance as
the
statute
under
which
review is generally
sought
of
the
decisions of investigative tribunals. Judicial review of decisions of
investifative
tribunals is infrequently
sought
in
the original jurisdiction of
the
High
Court. This Part, therefore, focuses
upon
the
test of justiciability
under
the
ADJR Act,
which
determines
the
extent to
which
judicial review is available
throughout
the
investigative process.4Attention is also given to the position
in
Queensland
where,
since
the
Fitzgerald Royal Commission, a
new
investigative tribunal,
the
Criminal
Justice
Commission
(CJC),
has
been
established; its proceedings are reviewable
under
a
new
statute,
the
Judicial Review Act 1991 (Qld).
In
some
other
States,
privative
clauses
3
4
Commonwealth
Constitution, s75(v). For
an
example
of
an
application for a
declaration
in
respect
of
state
administrative action,
semble
under
the
Judiciary Act 1903 (Cth), s30(a)
(interpretation
of
the
Constitution), see
Easton
vGriffiths (1995)
69
ALJR 669.
It is
to
be
noted
that
under
s10(2)(b)
of
the
ADJR Act
the
Federal
Court
may
decline to
exercise jurisdiction
in
respect
of
justiciable administrative action if
another
avenue
of
review
by
a
court
has
been
exercised
or
adequate
provision
exists
by
which
the
person
is
entitled
to
seek
review
by
a
court
or
tribunal. This
usually
affects adjudicative
tribunals
rather
than
investigative tribunals. For cases
where
the
exercise of
the
discretion
has
been
considered
in
relation to investigative tribunals, see
Bragg
v
Secretary,
Department of
Employment,
Education
and
Training (1995) 38 ALD
251
(discretion exercised,
requiring
applicant
to utilise
appeal
to Disciplinary
Appeal
Committee);
Re
Excel
Finance
Corp
Ltd
(rec
and
mgr
apptd);
Worthley v
England
(1994) 34 ALD
85
at
96-7 (not
appropriate
to exercise
discretion
where
judicial review
sought
of
authorisation
under
s597
of
the
Corporations
Law
since issues
in
judicial review
are
not
identical
with
those
in
proceedings for
review
of
registrar's
order).
Cf
Whelan
vAustralian
Securities
Commission
(1993) 33 ALD 53 (challenge
to
authorisation
under
s597
of
the
Corporations
Law
appropriately
made
in
court
in
which
proceedings
relating to examination are taken,
rather
than
judicial review).
1996 Reputation,
Power
and
Fairness
237
appear
to
be
enjoying a
renewed
effectiveness
in
ousting
judicial
review of
investigative tribunals,
an
area which will
not
be
examined further.
Justiciability
under
the
ADJR Act:
the
impact
of
Bond's case
In
1990 the
High
Court
decision
in
Australian
Broadcasting
Tribunal v
Bond
6
(Bond)
introduced
arestrictive interpretation of the expression "decision"
in
the
test of
justiciability
under
the ADJR Act. Henceforth, activities of afederal investigative
tribunal
were
not
justiciable unless they were final
or
operative
and
determinative,
rather
than
astep along the
way
to afinal decision.7There is little
doubt
that
the
intention of the
High
Court
was
to place a
brake
upon
the enthusiastic use of
the
ADJR
Act
to
disrupt
the processes of investigative tribunals
and
other
government
agencies.
This so-called "abuse" of the ADJR Act is well illustrated
by
the plethora of judicial
review
litigation
which
delayed
the Australian Broadcasting Tribunal's
inquiry
during
the
1980s into
whether
Bond's companies
were
fit
and
proper
persons to
hold
commercialbroadcasting licences.
However,
despite its frequent application
by
the Federal Court,
Bond
has
had
only a
modest
impact
in
restricting the scope for ADJR Act review of investigative tribunals.
In
a
handful
of decisions, administrative action of investigative tribunals
has
been
held
not
justiciable
by
reason of the test
in
Bond.
An
opinion expressed
in
aletter
by
an
officer of the Australian Taxation Office that lease
payments
in
a
thoroughbred
horse-
breeding
business
were
of acapital
nature
and, therefore,
not
deductible
has
been
held
to
be
not
ajusticiable "decision".8 Aletter sent
by
the Sex Discrimination Commissioner
to
the
Minister for Education
in
the
Northern
Territory advising
that
she
intended
to
investigate
and
attempt
to conciliate acomplaint regarding aselection process
has
been
held
not
to
be
ajusticiable "decision"
under
the ADJR Act.9This
was
merely
astep
along
the
way
to the final
or
operative decision as to
whether
a
breach
of
the
Sex
5
6
7
8
9
The
test
in
Rv
Hickman;
Ex
parte
Fox
and
Clinton (1945) 70 CLR 598,
which
had
formerly
been
invoked
in
the
context
of
the constitutionally
entrenched
judicial review jurisdiction
of
the
High
Court,
appears
to
be
enjoying a
renewed
and
expanded
use
so as
to
give
some
protection
to
decisions
which
involve ajurisdictional error.
In
South
Australia,
see
The
Aboriginal
Legal
Rights Movement
Inc
vState of South Australia (Supreme
Court
of
South
Australia, 7September 1995, unreported),
where
Matheson
J
held
that
s 9
of
the
Royal
Commissions
Act 1917
(SA)
was
aprivative clause
which
effectively
precluded
judicial
review for jurisdictional error. Asimilar conclusion as to
the
effect
of
s 9
had
been
reached
in
Australian
Broadcasting
Corp
v
Samuel
Jacobs
QC,
Royal
Commission
into
the
State
Bank
of
South Australia (1991) 56 SASR 274.
In
New
South
Wales, see Darling
Casino
Ltd vNew South
Wales
Casino
Control
Authority (New South Wales
Court
of
Appeal, Kirby P, Powell
and
Cole JJA, 8
November
1995,
unreported)
where,
applying
Deputy
Commissioner
ofTaxation v
Richard
Walter Pty
Ltd
(1995) 183 CLR 168,
the
New
South
Wales
Court
of
Appeal
held
that
the
Casino
Control
Authority
was
protected from judicial review
by
a
privative
clause.
The
High
Court
has
reserved its decision
in
the
appeal
from
this decision.
Cf
Botany Council v
The
Ombudsman, (1995) 37 NSWLR 351,
where
the
New
South Wales
Court
of
Appeal
preferred
to
put
to
one
side
the
submission of
the
Ombudsman
that
review
was
ousted
by
s35A
of
the
Ombudsman
Act 1974 (NSW),
and
moved
directly
to
the
conclusion
that
the
Ombudsman
had
acted
within
jurisdiction.
(1990) 170 CLR 321.
Ibid
at
337.
Pegasus
Leasing
Ltd
v
Federal
Commissioner
of
Taxation
(1991) 32 FCR 158.
Harris
v
Bryce
(1993) 113 ALR 726
at
733.
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