Judicial Attitudes to Judicial Review: A Comparative Examination of Justifications Offered for Restricting the Scope of Judicial Review in Australia, Canada and England

Article excerpt

[Legislative reform of judicial review in Canada and Australia has encountered unexpected difficulties. Judicial attitudes appear to have been a factor in this. These attitudes, however, defy simple, classification according to realist, functional or 'green light' critiques of judicial values. The history of legislative reform in Ontario and Australia appears far more complex. Other factors. particularly the precision (or otherwise) of the drafting of the legislative provisions, appear far more significant. Experiences in both Ontario and Australia also point to the continuing vitality of the traditional common law and equitable remedies. Judicial attitudes to judicial review appear to be an important source of this continuing vitality.]

CONTENTS
I   Introduction
    II Statutory Reform of Judicial Review in Canada and Australia
       A Ontario
       B Australia
       C Case Study: Judicial Review of Government Tendering Decisions
       D Concluding Observations on the Interpretation of the ADJR Act
         and Related Legislation
         1 Broader Policy Issues
         2 Practical Considerations Arising from the Drafting of the
           ADJR Act
III Judicial Attitudes to Declaratory Relief--Australia and England
IV  Conclusions

I INTRODUCTION

Referring to academic commentary (1) on statutory reforms to judicial review remedies in Ontario in the 1970s, Professor Carol Harlow noted an apparent

   tendency to revert to the legalistic practice of deciding cases
   with important implications for the substantive law of judicial
   review, on technical, procedural points. The effect has been that
   an Act [Ontario's Judicial Review Procedure Act, SO 1971, c 48]
   intended for the simplification of administrative law procedures
   has been used to restrict and complicate the law of judicial review
   ... (2)

Contrast this assessment of the effectiveness of attempted statutory reforms to judicial review in Canada with Professor Michael Taggart's recent assessment of the High Court of Australia's decision in Griffith University v Tang ('Tang'): (3)

   It beggars belief how a reform like the [Administrative Decisions
   (Judicial Review) Act 1977 (Cth)] (and its State equivalents) which
   was intended 'to simplify and clarify the grounds and [the]
   remedies for judicial review, thereby facilitating access to the
   courts and enabling the individual to challenge administrative
   action which adversely affected his interests' can be interpreted
   to frustrate that intention in Tang. You now have back many of the
   evils these reforms were meant to eradicate! (4)

Even if one does not agree with every point of criticism offered by Professor Taggart, (5) I think it must be conceded that the High Court's interpretations of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act') and the Queensland Judicial Review Act 1991 (Qld) (which was itself largely inspired by the Commonwealth Act) in cases such as Tang, NEAT Domestic Trading Pty Ltd v AWB Ltd ('NEAT') (6) and Australian Broadcasting Tribunal v Bond (7) stand in sharp contrast to the optimistic tone of the reports of the Kerr (8) and Ellicott (9) Committees that recommended the reforms to administrative law that these Acts were designed to implement.

Notwithstanding the negative assessment referred to by Professor Harlow, the legislation in Ontario is now counted as a successful exercise in reforming administrative law in Canada. (10) The restrictive position taken by judges in early cases addressing the scope and operation of Ontario's judicial review legislation has been reversed in subsequent cases. This article will examine possible reasons for the initially restrictive attitudes of judges in Ontario towards the statutory reforms in that Province and the subsequent change in approach, It will compare and contrast the possible reasons for restrictive interpretations given by the High Court of Australia to the Australian legislation. …