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Tuesday, 17 March 1987
Page: 777

Senator TATE (Special Minister of State)(4.11) —I move:

That the Bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows-

This Bill makes some fine-tuning amendments to the Administrative Decisions (Judicial Review) Act 1977. As many honourable members will no doubt know, this Act, which came into operation on 1 October 1980, codified and modernised the ancient prerogative writ remedies under which the lawfulness of government decision making could be challenged. The Act streamlined the procedures under which citizens could challenge, on legal grounds, administrative decisions and it did away with technicalities that applied under the old remedies. This innovative legislation has thus been in operation for some six years and it is now an appropriate time to be examining the Act to see where improvements can be made.

A particular concern has been the use made of the Act in the course of administrative proceedings before some other tribunal in circumstances where the particular decision can be challenged at the conclusion of those administrative proceedings. Recourse to the Federal Court under the Act in the course of the administrative proceeding, rather than assisting in the despatch of business of that tribunal, can have quite the opposite effect. It can frustrate and delay the proper decision making processes of the tribunal. We are all aware of the events which surrounded the hearings of the Australian Broadcasting Tribunal into the granting of a third commercial television licence for Perth in which, in the course of these proceedings, 16 cases were decided by the Federal Court under the Act. The effect of all this litigation was to delay the decision of the Tribunal on the third licence for some 12 months.

The Bill will facilitate the efficient operation of administrative tribunals, authorities and persons by minimising the disruption caused by the making of applications under the Act in the course of proceedings. Clause 2 of the Bill provides that where an application for review is lodged in relation to a decision made by a tribunal, authority or person during those proceedings and a review of that decision is available at the conclusion of those proceedings, and it is desirable to avoid interference with those proceedings, the court shall refuse to grant the application unless the court is satisfied that it is in the interests of justice for the application to be granted.

Another area of concern is where overlapping remedies are available. For example, in Public Service discipline matters, a person is able to appeal to a Public Service disciplinary appeal body, which can review the whole case. The person can also test the lawfulness but not the merits of the decision under the Act. The Act at present gives the Court a general discretion to refuse an application where there is another remedy available. The Government considers that some strengthening of this provision is desirable.

The Bill does not remove any existing rights of review, but seeks to rationalise those instances where there exist overlapping remedies by encouraging applicants, where review is provided for under some other law, to avail themselves of that alternative review before seeking review under the Act. Review by means other than by recourse to the Act is often a more cost and time effective means of obtaining proper review of an administrative decision.

Clause 2 of the Bill therefore amends section 10 of the Act by inserting a new paragraph 10 (2) (c). That paragraph provides that where an application for review is lodged with the Federal Court under the Act, and provision is made by any law other than the Act under which the applicant is entitled to seek a review of that decision otherwise than by a court, the court shall refuse to grant the application unless it is satisfied that it is in the interests of justice for the Court to grant the application. This latter qualification recognises that there may be cases where the Court should hear the application, notwithstanding the existence of an alternative remedy.

The Bill also makes express provision for the Court to refuse to grant an application for review, or to stay an application where it considers it inappropriate to grant the application or continue the proceedings. This gives statutory expression to the Court's present wide discretion to refuse relief and in addition makes it clear that this discretion extends to enabling the Court to stay proceedings in appropriate cases.

The Bill is intended to ensure these powers conferred on the Court are exercised in such a way that costs and delays are kept to a minimum and to this end the Bill provides that these powers be exercised at the earliest appropriate stage in the course of proceedings.

Whilst the revenue implications of these proposals are not quantifiable, the measure should result in fewer hearings under the Act, and thus will have an impact on the Court's work load. By minimising the disruption to hearings it should also aid the efficiency of tribunals. This will result in revenue savings.

I commend the Bill to the Senate.

Debate (on motion by Senator Kilgariff) adjourned.