A Wavy Line in the Sand: Bond and Jurisdictional Issues in Judicial and Administrative Review
| Author | Graeme Hill,Robin Creyke |
| Published date | 01 March 1998 |
| Date | 01 March 1998 |
| DOI | http://doi.org/10.22145/flr.26.1.2 |
| Subject Matter | Article |
AWAVY LINE
IN
THE SAND:
BOND
AND
JURISDICTIONAL ISSUES
IN
JUDICIAL
AND
ADMINISTRATIVE REVIEW
Robin
Creyke*
and
Graeme
Hill**
I
INTRODUCTION
Executive accountability is the central concern of administrative
law
and
accountability,
in
administrative
law
terms, is achieved principally
by
asystem
of
judicial
and
tribunal review of administrative decision-making. The ease
with
which
citizens
can
approach
courts
and
tribunals for review of
government
action, therefore,
becomes
an
accountability issue.
In
turn,
that
raises the question of the tests for
standing
and
any
other jurisdictional gateways to review. This article is
not
concerned
with
issues of
standing
and
whether
a
person
is "aggrieved"l. However,
it
will discuss
the jurisdictional tests
which
must
be
satisfied
in
order
to obtain review
by
the Federal
Court
(generally referred to as "judicial review")
and
the
Commonwealth
Administrative Appeals Tribunal (AAT/Tribunal) (generally referred to as
"administrative review"). The statutory tests are designed to determine the
point
in the
decision-making process
at
which judicial
and
administrative review is permissible.
The
underlying
hypothesis is
that
the jurisdictional tests
have
been
devised to strike a
balance
between
protecting the rights of individuals affected
by
government
decisions
while preserving efficient administration.
For the Federal administration, the jurisdictional
hurdles
are
found
in
the
Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act)
and
in
the
Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The ADJR Act requires
an
applicant to
show
that
review is being
sought
of a"decision of
an
administrative
character
made
...
under
an
enactment", or of apreliminary "report
or
recommendation",2
or
of "conduct
engaged
in for the
purpose
of
making
adecision".3
The AAT, the highest administrative review body,
can
exercise administrative review
1
2
3
LLB
(Hons) (UWA), LLM (ANU). Robin Creyke is a
senior
lecturer
in
law
at
the
Law
Faculty,
Australian
National
University.
BA
LLB
(Hons) (ANU).
Graeme
Hill
has
worked
in
the
Office
of
General
Counsel,
Commonwealth
Attorney-General's
Department
and
is
presently
an
associate to Justice
Haynes,
High
Court
of
Australia.
ADJR Act, ss 3(4), 5,
6.
ADJR Act, ss 3(1), (3),5.
ADJR Act, s6(1).
16
Federal
Law
Review
Volume
26
over a"decision" which is
made
"under
an
enactment".4 The meaning given to these
expressions largely determines the scope of the jurisdiction conferred
by
these
two
Acts,
the
principal avenues for review
in
the federal system.
Authoritative guidance
on
the
interpretation of those
ex~ressions
was
provided
by
the
High
Court
in
Australian
Broadcasting
Tribunal
v
Bond.
That
decision has
had
a
profound
impact
on
the
judicial
and
administrative review jurisdictions of
the
Federal
Court
and
the AAT respectively.
In
Bond,
the
High
Court
examined the
meaning
of
both
"decision"
and
"conduct"
in
the ADJR Act. Since "decision" is defined
in
similar
terms
in
the
AAT Act,6 the
Bond
ruling is relevant to the administrative review
jurisdiction also. However, the AAT lacks the complementary jurisdictional
entry
points
that
are
available
under
the ADJR Act, namely, the definition of "conduct"
and
the extension of the definition
of
"decision" to include preliminary reports
or
recommendations required
by
statute. The implication of
that
difference will
be
considered
in
the final
part
of this article. The central focus of this article is the
difficulties which
have
arisen from applying the
Bond
interpretation of "decision"
and
"conduct". These difficulties
suggest
that
the meaning of those terms
may
need
to be
revisited.
The
road
to
Bond
The ADJR Act
was
designed primarily to simplify the procedures for
reviewin~
government
action,7 procedures which were so complex as to obstructjudicial review.
The
purpose
of the Act
was
to "establish asingle simple form ... for judicial review of
Commonwealth
administrative actions".9 Nevertheless,
with
some exceptions,10 the
4
5
6
7
8
9
10
AAT Act,
ss
3(1), (3), 25(4).
(1990) 170 CLR 321.
ADJR Act, s3(1), (2); AAT Act,
ss
3(3), 25.
Second
Reading
Speech
by
the
Attorney-General (Mr Ellicott), HReps Deb 1977,
No
105
at
1394.
The
Attorney-General
commented
that
existing administrative
law
procedures
"could
be
said
to
be
medieval":
ibid
at
1395.
Ibid
at
1394.
There
were
two
principal
statutory
extensions
of
the
common
law: areviewable decision
was
deemed
to
include
preliminary
or
preparatory
reports
or
recommendations
required
by
statute
before adecision is
made
(ADJR Act, s3(3),
but
see also s3(2)
and
(5»;
and
review
was
generally
not
dependent
on
who
exercised
the
power
(Commonwealth
Administrative Review Committee: Report,
August
1971,
Parliamentary
Paper
No
144 (Kerr
Committee
Report)
para
265). Consistent
with
the
common
law
position
at
the
time, s3(1)
expressly excludes decisions of
the
Governor-General,
an
exclusion
now
overtaken
by
the
common
law
(Re
Toohey;
Ex
parte
Northern Land Council (1981) 151 CLR 170; FAI Insurances
vWinneke (1982) 151 CLR 342; Council
of
Civil Service Unions vMinister for
the
Civil Service
[1985] 1
AC
374; Minister for Arts Heritage and
the
Environment v Peko-Wallsend Ltd (1987) 75
ALR 218;
Macrae
vAttorney-Generalfor New South Wales (1987) 9NSWLR 268).
The
extent
of
the
exclusion of vice-regal decisions is
now
uncertain
and
the
Administrative
Review
Council (ARC)
has
recommended
that
the
exclusion be
removed
(ARC
Report
No
32
Review
of
the
Administrative Decisions
(Judicial
Review) Act:
The
Ambit
of
the
Act
(1989)
recommendation
2
at
p
x).
At
the
same
time,
statutory
exemptions
were
introduced
in
Schedule
1,
partly
in
response to
recommendations
of
the
Ellicott Committee
that
certain
decisions
of
Ministers
be
excluded
(Prerogative Writ
Procedures
Report
of
Committee
of
Review
Parliamentary
Papers
No
56 (Ellicott Committee Report)
paras
22, 27, 31, 32, 50-51).
The
1998 A
Wavy
Line
in
the Sand
17
ADJR Act
was
intended
to reflect the existing
common
law
position. Hence, the
jurisdictional requirements
were
deliberately left
undefined
in
order
to reflect
emerging
changes
in
the
common
law
and
to continue to attract
new
areas of
jurisdiction. 11
Most
early interpreters of the Act
were
sensitive to these goals
and
those
who
challenged
government
action
were
generally
not
defeated
by
preliminary
jurisdictional questions.12
This initial
approach
to the interpretation of the jurisdictional tests
was
exemplified
by
the
decision of the Full
Court
of the Federal
Court
in
Lamb
v
Moss.13
After acareful
analysis of the issues the
Court
concluded that:
there
is
no
limitation,
implied
or
otherwise,
which
restricts
the
class
of
decisions
which
may
be
reviewed
to decisions
which
finally
determine
rights
or
obligations
or
which
may
be
said
to
have
an
ultimate
and
operative effect.
Such
aconclusion, is,
in
our
o~inion,
in
accordance
with
the
plain
legislative
intention
revealed
by
the
words
of
the
Act. 4
The
Court
suggested
that
any
problems arising from this generous
reading
of the
legislation could be
handled
by
the liberal exercise of its discretion to control
premature
proceedings
and
by
accepting
that
in criminal processes, like committal
proceedings,
the
discretion
should
be exercised only
in
exceptional circumstances.15
The
Lamb
v
Moss
approach
meant
that
an
opinion, or
an
intermediate determination
other
than
those covered
in
the ADJR Act s
3(3),16
could
be
subject to judicial review.17
However,
there
were
other views. So, for example,
in
Riordan
v
Parole
Board
of
the
ACT18
and
in
Roberts
vGarrett
19
the Federal
Court
had
concluded
that
interim decisions
were
not
subject to review
under
the ADJR Act because they
did
not
amount
to a
"decision".
The
advantage
of the
Lamb
v
Moss
interpretation is that, absent other jurisdictional
stumbling
blocks, the
Court
is able to consider the substantive
dispute
and
resolve the
matter
without
becoming
enmeshed
in
technical questions of justiciability.20 The
corresponding
disadvantage,
at
least for the government, is
that
executive action
at
an
early
stage
may
be
exposed to judicial review. Such challenges
may
hinder
and
prolong
11
12
13
14
15
16
17
18
19
20
ARC
recommended
that
the
exclusions
in
Schedule 1of
the
ADJR Act
be
largely
removed
(ARC
Report
No
32,
recommendations
3-12
at
pp
x-xi);
other
commentators
have
gone
further
and
recommended
complete excision of these
statutory
exclusions
on
the
ground
that
the
decisions
are
reviewable
in
any
event
at
common
law
(D CPearce, Commonwealth
Administrative Law (1986)
para
323).
Cf
Bond (1990) 170 CLR 321
at
335
per
Mason
CJ.
The
Full
Court
of
the
Federal
Court
in
Lamb vMoss (1983) 49 ALR 533
noted
at
550:
"Notwithstanding
the
particularity
with
which
those
grounds
[in
the
ADJR Act]
are
stated,
no
narrow
or
restricted
view
of
the
operation
of
the
Act is
warranted.
Its
broad
purpose
was
to
invest
this
court
with
jurisdiction to
supervise
administrative
action
in
the
Commonwealth
sphere
in
all its
aspects."
For
example, Lamb vMoss (1983) 49 ALR 533.
(1983) 49 ALR 533.
Ibid
at
556.
Ibid
at
546-551.
Discussed
below
at
Preliminary reports or recommendations.
ARC Report,
above
n
10
para
386.
(1981) 34 ALR 322.
(1982) 40 ALR 311.
ARC Report,
above
n10
para
387.
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