The Administrative Review Council recommends legislative change to turn back the tide of section 39B actions.

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The Administrative Review Council recommends legislative change to turn back the tide of section 39B actions.

Posted 10/10/2012 by Monica Biddington

The Administrative Review Council (the ARC) is established to ‘ensure that the administrative decision-making processes of the Commonwealth Government are correct according to law and accord with administrative law values, by working with all relevant interests — political, bureaucratic and community based’.
On 24 September 2012, the ARC launched its 50th report, Federal Judicial Review in Australia.

Judicial review provides an important avenue of appeal for those affected by government decision making. It is a central feature of Australia's administrative law system. There are a number of ways a party might challenge a government decision; namely, under section 75(v) of the Constitution, section 39B of the Judiciary Act 1903 (Cth) and under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The ARC undertook an inquiry of its own motion in accordance with its statutory functions under section 51 of the Administrative Appeals Tribunal Act 1975. Wide consultation in 2011 led the ARC to make two key conclusions about federal judicial review in Australia:

  1.  It is undesirable that there is a different ambit for ‘constitutional review’ under the Constitution and the Judiciary Act and ‘statutory judicial review’ under the ADJR Act.
  2.  The ADJR Act continues to play an important role by improving the accessibility of judicial review, as a clear statement of the Parliament’s commitment to be legally accountable for its decisions by guiding administrative decision makers.
The Australian Information Commissioner Professor John McMillan AO, who is a member of the ARC, says that the ADJR Act has been overtaken by section 39B applications and the ARC seeks to restore the ADJR Act as a pillar of judicial review. The Report notes that ‘unless some legislative adjustment is made to the Federal Court’s jurisdiction, the likely result in the Council’s view is that the ADJR Act will dwindle in importance and become marginalised.’ This is because there are fewer limitations on the right to commence proceedings under section 39B of the Judiciary Act than under the ADJR Act. The ARC also notes that experienced practitioners use the section 39B action as a matter of convenience, particularly regarding decisions under the Migration Act 1958, where the principles of judicial review are applied by the High Court, Federal Court and the Federal Magistrates Court (soon to be renamed the Federal Circuit Court).
Key recommendations of the ARC include that:

  • a new section be added to the ADJR Act to allow an application to be made under the ADJR Act where a person would otherwise be able to initiate proceedings in the High Court under section 75(v) of the Constitution.
  • there should be another schedule added to the ADJR Act, which can be amended by regulation, which should list other reports and recommendations that are decisions to which the Act applies.
  • decisions to commence civil penalty proceedings should be exempt from the ADJR Act on the basis that judicial review could fragment legal proceedings.
  •  in relation to standing, the ARC considered that the standing of representative organisations is unclear and so recommended allowing applications for review ‘if the decision relates to a matter included in the objects or purposes of the organisation or association’.
These are significant recommendations to this complex area of law that the Government will consider over the coming months. If the Government was to adopt the recommendations, the administrative law landscape would change markedly but would be more robust, more efficient and procedurally simpler.

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