Should We Follow the Gospel of the Administrative Decisions (Judicial Review) Act 1977 (CTH)?

Article excerpt

[The Administrative Decisions (Judicial Review Act) 1977 (Cth) marked a radical reform of judicial review of administrative action in Australia. The Act introduced a statutory procedure for judicial review which was designed to provide a better alternative to judicial review at common law. The Act simplified the procedure for judicial review applications, codified the grounds of review and introduced important new rights such as the right to reasons for decisions amenable to review under the Act. In the first decade or so of its operation, the Act became the primary vehicle for judicial review at the federal level It also served as a model for reform for several states and territories, which enacted judicial review statutes that were based closely on the federal statute. This article examines why the influence of the Act has faltered in recent years. It concludes that some parts of the Act should be radically reformed, so that statutory judicial review at the federal level may. once again provide the simple and attractive avenues of review that were its original purpose.]

CONTENTS

I    Introduction
II   The Structure and Operation of the ADJR Act
III  The Scope of the ADJR Act
        A The Jurisdictional Formula of the ADJR Act
             1 'Decisions' and 'Conduct'
             2 'Administrative Character'
             3 'Under an Enactment'
        B Reforming the Jurisdictional Formula of the ADJR Act
        C The Exclusion of Vice-Regal Decisions from the ADJR Act
        D Other Exclusions from the ADJR Act--Schedule 1
        E A Possible State Innovation to the Scope of the ADJR Act Model
IV   The Codified Grounds of Review under the ADJR Act
V    Should the ADJR Act Have an Express Statutory Purpose or Guiding
     Principle?
VI   The Remedial Powers Granted by the ADJR Act
VII  State and Territory Versions of the ADJR Act and the Value of
     Uniformity
VIII Should Judicial Review Be Codified?
IX   Concluding Observations

1 INTRODUCTION

The enactment of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act') was an important milestone in the evolution of Australian administrative law. The ADJR Act was a central part of a series of sweeping reforms to administrative law at the federal level and a remarkable reform in its own right. The ADJR Act was the first Australian attempt to codify both the law and much of the procedure of judicial review in Australia. The Act introduced a unified and single test for standing and a right to reasons for decisions, codified the grounds of judicial review and contained a simple provision governing remedies. This new statutory avenue of judicial review provided a vastly simpler alternative to judicial review at common law and was for many years regarded as a great success.

One measure of the success of the ADJR Act was the influence it exerted over the law of the states and territories. A version of the Act was adopted without substantial modifications in the Australian Capital Territory, Queensland and Tasmania. (1) But the spread of the ADJR Act faltered. The introduction of ADJR Act-style legislation was proposed but ultimately rejected in Victoria in 1999 (2) and Western Australia in 2002. (3) The adoption of any form of judicial review statute has never been publicly advocated by the governments or law reform agencies of New South Wales, South Australia or the Northern Territory. (4)

On the 25th anniversary of the report (5) that led to the introduction of the reforms to administrative law, including the ADJR Act, Lindsay Curtis noted the 'comparative failure of the gospel of the new administrative law to take root in other jurisdictions.' (6) That comment implied that the ADJR Act was a desirable reform that has since lost its sheen, though it shed little light on the reasons why that might be the case. This article examines the operation of the ADJR Act and considers whether a statute of the same nature should be adopted in those Australian jurisdictions that do not have a judicial review statute. …