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Published online by Cambridge University Press: 05 May 2025
The Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) was part of a package of legislation, comprising also the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Ombudsman Act 1976 (Cth), and the Freedom of Information Act 1982 (Cth). That package has been variously described as putting Australia in the forefront of administrative law reform in the common law world and as the basis for a lawyer led recovery. Perhaps because it is a more technical measure, the ADJR Act has attracted less attention than other elements of the package. Nevertheless, it is a key element. Moreover, judicial review under the Act has raised some far reaching questions.
Revised version of a paper presented at the Conference “Ten Years of the Federal Administrative Decisions (Judicial Review) Act” in September 1990. The views expressed in this paper are my own. They do not purport to reflect the views of the Government or the Attorney-General's Department. At the same time I wish to acknowledge the assistance I have received from colleagues in the Attorney-General's Department.
1 P Walsh, “Equities and Inequities in Administrative Law” (1989) 58 Canberra Bulletin of Public Administration 29, 29.
2 W Cole, “The Public Sector - the Conflict Between Accountability and Efficiency” 1988 Giblin Memorial Lecture 16.
3 D Volker, “The Effect of Administrative Law Reforms on Primary Level Decision-making” (1989) 58 Canberra Bulletin of Public Administration 112, 114.
4 A Rose, “Judicial Review and Public Policy: A Comment” (1989) 58 Canberra Bulletin of Public Administration 75, 75.
5 Eg supra n 2.
6 Cabinet Handbook (1988, AGPS), para 6.17, Appendix E, pp 48, 50, 52.
7 Legislation Handbook (1988, AGPS) paras 7.11-7.12, 7.37.
8 Administrative Decisions (Judicial Review) Act 1977 (Cth), sub-ss 3(1), 3(2), 3(3).
9 Eg Evans V Friemann (1981) 3 ALD 326, 331.
10 (1985) 157 CLR 290.
11 Australian Broadcasting Tribunal V Bond (1990) 170 CLR 321, infra n 47.
12 R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170, FAI Insurances Ltd V Winneke (1982) 151 CLR 342.
13 Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: the Ambit of the Act, Report No 32, Chapter 5.
14 Peko Wallsend Ltd V Minister for Arts, Heritage and Environment (1986) 70 ALR 523, and on appeal, Minister for Arts, Heritage and Environment V Peko Wallsend Ltd (1987) 75 ALR 218.
15 Although the point has not been finally determined, statements in the High Court and the Federal Court suggest that, in exceptional circumstances, a Cabinet decision directly determinative of the rights of an individual might be amenable to judicial review - see South Australia V O’Shea (1987) 163 CLR 378, 387–388, 419–420; Minister for Arts, Heritage and Environment V Peko Wallsend Ltd (1987) 75 ALR 218, 224–226, 226–227, 247–249.
16 Supra n 13.
17 Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)(c), (f).
18 Kioa v West (1985) 159 CLR 551; see also (in the Federal Court) Capello V Minister for Immigration and Ethnic Affairs (1980) 2 ALD 1014, Piroglu V Minister for Immigration and Ethnic Affairs (1981) 4 ALD 323, Minister for Immigration and Ethnic Affairs V Haj-Ismail (1982) 40 ALR 341, 347.
19 (1977) 137 CLR 396.
20 (1985) 159 CLR 551.
21 Ibid per Gibbs CJ at 566–567, Mason J at 578, 585–586, Wilson J at 597, Deane J at 630–631.
22 (1990) 169 CLR 648.
23 (1990) 170 CLR 1.
24 Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(2)(a).
25 s 5(2)(b).
26 S 5(2)(c).
27 S 5(2)(d).
28 S 5(1)(h).
29 H Reps Deb 1977, Vol H105, 1394–1395 (28 April 1977).
30 (1981) 38 ALR 363.
31 Ibid 370–371; appeal to the Full Court of the Federal Court dismissed: (1982) 42 ALR 676.
32 (1986) 162 CLR 24.
33 Ibid 40–41.
34 (1986) 68 ALR 423; and on appeal (1986) 68 ALR 441.
35 ibid 440.
36 Ibid 438.
37 Minister for Immigration and Ethnic Affairs V Conyngham (1986) 68 ALR 441, 453.
38 News Release, Minister for Immigration and Ethnic Affairs, 20 July 1986, MPS 68/66.
39 (1989) 18 ALD 446 (Northrop J); and on appeal Commonwealth V Pharmacy Guild of Australia (1989) 91 ALR 65.
40 (1989) 18 ALD 446, 451.
41 (1989) 91 ALR 65, 86.
42 Ie, bearing in mind the windfall profits from the increase in the wholesale prices, the fact that the wage increases should have been offset by productivity gains, the expertise of the Tribunal, and its practice of determinations at regular intervals. See also J Barnes, ”Judicial Review of Fee-setting Bodies: Reflections on the Chemists’ Dispute” (1990) Aust Bus L Rev 254.
43 Eg Kelly V Coals (1981) 35 ALR 93; see also Swan Portland Cement Ltd V Comptroller-General of Customs (1989) 90 ALR 280.
44 The Administrative Decisions (Judicial Review) Bill 1986 had not been passed by the Senate before the dissolution of both Houses on 5 June 1987. Following the general elections, a new Bill in substantially the same ternis, the Administrative Decisions (Judicial Review) Bill 1987, was introduced.
45 Sen Deb 1987, Vol S 123, 1473–1477 (29 October 1987); P P No 144 of 1987, 46.
46 Sen Deb 1988, Vol S 126, 1721 (20 April 1988).
47 (1990) 170 CLR 321.
48 Ibid 336.
49 Ibid 365.
50 Ibid 365–369.
51 H Reps Deb 1977, Vol H105, 1395 (28 April 1977).
52 (1988) 81 ALR; and on appeal to the High Court (1989) 167 CLR 637,645.
53 Federal Court of Australia Act 1976 (Cth), ss 22, 23, 32; Tetron International V Luckman (1985) 8 ALD 243,247-250.
54 Sir Gerard Brennan, “Reflections” (1989) 58 Canberra Bulletin of Public Administration 32; Sir Anthony Mason, That Twentieth Century Growth Industry, Judicial or Tribunal Review” ibid 26.
55 Report of the Commonwealth Administrative Review Committee, P P No 144 of 1987, para 246.
56 Ie between 1 July 1988 and 26 September 1990.
57 See Family Law Act 1975 (Cth), s 22(2)(b). The Family Court deals with social issues such as custody of and access to children, division of matrimonial property, and maintenance.
58 Public Service Board of New South Wales V Osmond (1986) 159 CLR 656.
59 R v Secretary of Stale for Foreign and Commonwealth Affairs; ex parte Everett [1989] 2 WLR 224.
60 H Reps Deb 1977, Vol H105, 1395 (28 April 1977).
61 Administrative Review Council, Third Annual Report 1979, Appendix II.
62 ARC, Sixth Annual Report 1981–82 para 65.
63 ARC, Ninth Annual Report 1984–85 Appendix 6.
64 ARC, Twelfth Annual Report 1987–88 Appendix I.
65 ARC, Fourteenth Annual Report 1989–90 Appendix 4.
66 Id
67 ARC, Thirteenth Annual Report 1988–89, Appendix 5, Table 3.
68 ARC, Fourteenth Annual Report 1988–89 Appendix 4, Table 3.
69 ARC, Thirteenth Annual Report 1988–89 Appendix 5, Tables 1, 3.
70 See D Volker, supra n 3; Report of the Federal Court of Australia, 1989–90, Annexures 11 and 12; R Tornaste, “Administrative Law Reform, Who Benefits?” (1987) 12 Legal Service Bulletin 262.
71 Supra n 2, 15.
72 See Canberra Times, 23 July 1989, 24 July 1989, 25 July 1989.
73 Canberra Times, 2 August 1989.
74 ARC, Fourteenth Annual Report 1989–90 Appendix 4, Table 4.
75 ARC, Sixth Annual Report 1981–82 para 66.
76 ARC, Eleventh Annual Report 1986–87 Appendix 4, Table 5.
77 Report of the Commonwealth Administrative Review Committee P P No 144 of 1971, para 248.
78 (1981) 36 ALR 287.
79 Eg the Commonwealth Banks Restructuring Bill, which will give effect to the Government's decision regarding the Commonwealth Bank's acquisition of the State Bank of Victoria and the conversion of the Commonwealth Bank into a public company, removes judicial review under the ADJR Act but leaves unaffected A AT review in relation to personnel management decisions.
80 Department of Immigration, Local Government and Ethnic Affairs, Annual Report 1989–90, 25.
81 Cost figures have been provided to the writer by officers of the Department of Immigration, Local Government and Ethnic Affairs.
82 These figures were provided to the writer by the Registrar of the Federal Court of Australia.
83 P Walsh, “Equities and Inequities in Administrative Law” (1989) 58 Canberra Bulletin of Public Administration 29, 29.
84 Ibid 29, 32.
85 D Volker, “The Effect of Administrative Law Reforms on Primary Level Decision-making” (1989) 58 Canberra Bulletin of Public Administration 112, 112.
86 Sir Gerard Brennan, “Reflections” (1989) 58 Canberra Bulletin of Public Administration 32, 31