The Limits of Judicial Review of Executive Action—Some Comparisons between Australia and the United States
| Date | 01 June 2000 |
| Published date | 01 June 2000 |
| DOI | 10.22145/flr.28.2.9 |
| Subject Matter | Article |
THE LIMITS
OF
JUDICIAL REVIEW
OF
EXECUTIVE
ACTION-50ME
COMPARISONS
BETWEEN AUSTRALIA
AND
THE UNITED STATES
Justice RonaldSackville
INTRODUCTION
The
new
administrative
law
in
Australia dates from the implementation, over a
period
of
more
than
adecade,
of
the substance of the proposals
advanced
by
the Kerr
Committee
and
its successors
in
the early 1970s.1The
now
familiar legislation
swept
away
many
of the procedural obscurities associated
with
the prerogative writs,
codified
the
general principles governing judicial review of administrative action
and
provided
for
independent
merits review of administrative decisions.2These reforms
paved
the
way
for the emergence of
what
commentators
have
described as a
"distinctively Australian jurisprudence
in
public law".3
It
is
hardly
necessary to
say
that
Sir
Anthony
Mason played apivotal role
in
the
development
of
the
distinctive
jurisprudence,
both
through
his membership of the Kerr Committee
and
his
judgments
in
the leading administrative
law
cases of the 1980s
and
1990s.
Although remaining distinctive, Australian administrative
law
has nonetheless
undergone
considerable change since the implementation of
the
Kerr Committee
proposals.
In
particular, the permissible boundaries of judicial review
have
moved,
depending
on
the
emphasis (or lack of it) given
by
courts to
the
virtues of judicial
restraint. But
during
these movements
two
principles have
been
accepted, generally
without
challenge, as fundamental
in
determining
the
proper
scope of judicial review.
The
first is
that
courts exercising
powers
of judicial review
must
not
intrude
into the
"merits" of administrative decision-making or of executive policy making.
The
second
is
that
it
is for the courts
and
not
the executive to interpret
and
apply
the
law,
1
2
3
Commonwealth
Administrative Review Committee, Report (P P
No
144, 1971) (Kerr
Committee Report)
reprinted
in
RCreyke
and
JMcMillan (eds), The Making
of
Commonwealth
Administrative Law (19%). This
volume
includes
the
reports
of
the
Bland
Committee
(Final
Report
of
the Committee on Administrative Discretions (P P
No
316, 1973)
and
the
Ellicott
Committee
(Prerogative
Writ
Procedures: Report
of
Committee
of
Review (P P
No
56, 1973».
The
Administrative
Appeals
Tribunal Act 1975 (Cth) came into force
on
1July 1976;
Administrative
Decisions Oudicial Review) Act 1977 (Cth) (ADJR Act)
came
into force
on
1
October1980;
Freedom
of
Information Act1982 (Cth)
came
into force
on
1December 1982.
R
Creyke
and
JMcMillan, "Administrative
Law
Assumptions
...
Then
and
Now",
in
R
Creyke
and
JMcMillan (eds),
The
Kerr Vision
of
Australian Administrative
Law-At
the
Twenty-Five Year Mark (1998)
at
1.
316
Federal
Law
Review Volume
28
including
the
statutes governing the
power
of the executive. These can be
regarded
as
the
twin
pillars ofjudicial review of administrative action
in
Australia.
While
the
solidity of
the
twin
pillars is
not
often challenged, they
may
be
more
fragile
than
is usually assumed. The United States experience indicates
that
neither is
an
inevitable feature of administrative
law
in
afederal system, even
one
which accepts
the
doctrine
of
separation of powers.
It
may
be, therefore,
that
the
apparent
fundamentals of Australian administrative
law
are considerably less settled
than
orthodox doctrine
might
suggest.
ASSUMPTIONS UNDERLYING THE NEW ADMINISTRATIVE LAW
Despite
the
undeniable importance
of
the
work
of the Kerr Committee, its
work
(like
that
of
all reformers) has
not
escaped criticism. Some commentators have pointed
out
that
the
broad
vision
of
the Kerr Committee was
not
matched
by
asimilar
breadth
of
philosophy
about
the role of administrative law.4The
Kerr
Committee
Report
took as its
starting
point
that
the
"vast range
of
powers
and
discretions" capable of detrimentally
affecting
the
citizen required, as amatter of justice,
that
the individual
should
have
more
adequate
opportunities of challenging
an
adverse decision.5The Committee
did
not
think
it
"a matter
of
real debate"
that
there
was
"an established
need
for review of
administrative decisions".6 The Committee
opted
for asystem of administrative review
described
by
Professor Pearce as:
heavily
lawyer
oriented
and
heavily
rule
oriented...
very
much
the
sort
of
package
that
it
could
be
expected
that
acommittee
of
lawyers
would
produce?
In short,
the
Committee's proposals were designed
in
large measure to achieve
justice to individuals
who
were involved
in
disputes
with
public agencies, although
the
Committee recognised
that
this objective
had
to be balanced against
the
need
to
preserve
the
"efficiency
of
the
administrative process".8
The Kerr Committee
did
not
necessarily envisage fundamental changes in
the
role
played
by
courts
in
the
exercise of powers
of
judicial review. Both for constitutional
and
policy reasons,
it
accepted
that
the
proposed Commonwealth Superior
Court
or
Administrative Review
Court
should
be invested with asupervisoryjurisdiction only.9
But the Committee envisaged
that
judges
would
be heavily involved
in
merits review
(as
personae
designatae).
It
also envisaged
that
the simplification of procedures
governing judicial review
and
the codification of the
grounds
of review
would
not
merely reduce complexity,
but
encourage recourse to the courts
and
"facilitate" judicial
review of administrative decisions. While the judicial function
in
relation to
administrative decision-making
was
to remain supervisory, the stage
was
set for
greater intervention
by
the courts
in
order to protect individuals dissatisfied
with
decisions of public agencies.
4
5
6
7
8
9
Ibid
at
5.
Kerr
Committee
Report,
above n 1
at
para
11.
Ibid
at
para
10.
DPearce, "The
Fading
of
the Vision Splendid" (1989) 58 Canb Bull
of
Pub
Admin
15
at
18,
cited
in
RCreyke
and
JMcMillan, above n 3
at
9.
Kerr
Committee
Report,
above
n 1
at
para
12.
Ibid
at
para
247. See also
Chapter
4.
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