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Thursday, 26 February 1987
Page: 843


Mr SPENDER(5.39) —The Administrative Decisions (Judicial Review) Amendment Bill is a Bill to amend the Administrative Decisions (Judicial Review) Act of 1977. That very innovative piece of legislation, as it has been described by the Attorney-General (Mr Lionel Bowen) in his second reading speech, was introduced by Mr Ellicott, who was then the Attorney-General in the Fraser Government. It is worth going back to his second reading speech to describe generally, and in the words he used, what was intended. He said:

The present law relating to the review by the courts of administrative decisions is in a most unsatisfactory state. A great deal has been written about the shortcomings of the present procedures and it is not, I think, necessary for me to elaborate on these deficiencies in the present context. The law in this area is clearly in need of reform-indeed, it could be said to be medieval-and simplification and to be put into statutory form. What the present Bill seeks to do is to establish a single simple form of proceeding in the Federal Court of Australia for judicial review of Commonwealth administrative actions as an alternative to the present cumbersome and technical procedures for review by way of prerogative writ, or the present actions for a declaration or injunction.

When referring to the functions of the Federal Court, he also said this:

The only question for the Court will be whether the action is lawful, in the sense that it is within the power conferred on the relevant Minister or official or body that prescribed procedures have been followed and that general rules of law, such as conformity to the principles of natural justice, have been observed. The court will not be able to substitute its own decision for that of the person or body whose action is challenged in the court. It will be empowered to enjoin action or to quash a decision it finds unlawful and to direct action to be taken in accordance with the law. It will also be able to compel action by a person or body who has not acted, but who ought to have done so.

Mr Justice Brennan, who was then the Chairman of the Administrative Review Council, in his foreword to the first annual report of that Council, referring to the Administrative Appeals Tribunal Act 1975 and generally to the operation of the review process, pointed to `the dynamics of administrative decision making'. Referring to remedies which are now open, he pointed to the fact that the citizen is `enabled to challenge, and challenge effectively, administrative action which affects his interests'.

The review process available under the Act, specifically under sections 5, 6 and 7, is extremely wide. I do not intend to take up the time of the House by going to the detail of those sections. I simply give some indication of their width by referring to the generality of review which is open under those sections. Under section 5, a `person . . . may apply to the Court for an order of review in respect of the decision on any one or more of' the grounds listed in that section, and a large number of grounds are listed in that section. Under section 6:

Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies-

the Act applies to a wide range of decision making processes-

a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on any one or more-

of the grounds enumerated in that section, which, again, are extremely wide. Again, review provisions are provided for in section 7 to deal with failure to make a decision.

I take up one point in particular; that is, the rights commonly known as the rights of natural justice, which have been developed through the processes of the court, and which apply to cases which come within the Act. The width of the principle-that is, the width of the right to have a case reviewed because one claims that one has been denied natural justice-is now very considerable. This cannot be better stated than in the words of the present Chief Justice of the High Court of Australia. He said:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.

He went on:

The reference to `right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

I say here that it is obvious how wide that statement of `right or interest' is. He went on:

The reference to `legitimate expectation' makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest . . . The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention.

The purposes of this Bill are set out in the explanatory memorandum and were stated by the Attorney-General when he introduced the Bill. That was some time ago, of course. The Opposition supports the Bill and I think that the purposes may be stated very simply in terms of the explanatory memorandum:

to strengthen the provisions in the Act under which the Federal Court . . . has a discretion to refuse to grant an application for review where provision is made by another law for review of the relevant decision by a tribunal, authority or person; to discourage the disruption of administrative proceedings, by narrowing the scope for resort to the Act during the course of those proceedings, where legislative provision exists for the review of the decision complained of at the conclusion of those proceedings; to make specific provision in relation to the Court's general discretion under the Act to refuse to grant an application.

The Attorney-General, in his second reading speech, referred in particular to cases which arose under the review provisions as they apply to the Australian Broadcasting Tribunal. He pointed out that in respect of the Tribunal's hearings into the granting of a third commercial television licence for Perth 16 cases were decided by the Federal Court under that Act. The effect of this litigation, he said, was to delay the decision of the Tribunal on the third licence by some 12 months. I think most honourable members would agree that 16 applications arising in the course of a contest over who would get a television licence is an abuse of what we would think to be the proper rights of review. If cases like that arise, surely they must be curtailed. Where real problems arise, they can, I think, be dealt with under the streamlining provisions which the Attorney-General has introduced with this Bill.

By way of illustration of the case load of the court, let me point out that the 1986 report of the Administrative Review Council, in its table of applications to the Federal Court of Australia for an order of review, shows that at the commencement of the 1985-86 period 128 cases were pending. There were 264 received in that year. Forty of the applications were granted, 102 were refused, 97 were withdrawn and a total of 239 were finalised. At the conclusion of that 1985-86 year there were 153 applications to be heard by the Federal Court.

That, of course, does not determine the Federal Court's review processes. There are also applications which may go up to the Federal Court relating to matters such as committal proceedings and, whilst there appear to be no reliable statistics kept on those matters, from inquiries that I have made from the Attorney-General's Department it seems that in the last eight months at least six such cases have gone up to the Federal Court. In committal proceedings there should certainly be a right at the end of the proceedings to test the validity of the committal order. But it is as a general rule in the interests of the administration of justice that committal proceedings should be heard, and should be heard to their finality, before any review process is allowed to be brought to bear on it; otherwise, very obviously, the proceedings can be interrupted for a considerable time, and that is not in the interests of the proper administration of justice, which must be fair to the defendant and, as well, fair to those who have to present cases, and fair to the public, which has an interest in criminal cases being brought on and being determined as speedily as possible.

The proposals before the House, as I said, are supported. They rationalise the existing structure of the Act. The spirit of the Act is maintained and adequate revenues are maintained. The Opposition commends the Bill to the House and wishes it a speedy passage through the Senate.