Laws that restrict access to the courts

18.13   Restrictions on access to the courts arise in many forms. A common method of restricting access to the courts is to exclude a decision from review under the ADJR Act,^[21] or restrict judicial review according to procedures under a particular legislative framework.^[22]The most controversial method of restricting access to the courts is the inclusion of a privative or ouster clause which purports to significantly restrict or exclude judicial review.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

18.14   The Law Council of Australia submitted that decisions excluded from review under sch 1 of the ADJR Act should be examined, and the justification for their exclusion critically considered.^[23] The Institute of Public Affairs noted that a large number of acts are excluded from review under the ADJR Act.^[24]

18.15   It can be argued that the removal of statutory avenues of review is not a restriction in the true sense, because it simply removes an avenue of review that exists only because the federal Parliament created it. However, the ADJR Act was part of a broader scheme to increase the rights of citizens to obtain information, lodge complaints and commence legal proceedings against government decisions.^[25] The ADJR Act served the valuable function of providing a simpler alternative to the technical form of judicial review entrenched in the Constitution. While removing ADJR Act review may not exclude judicial review, it excludes a simpler and more accessible form of review.

18.16   Such restrictions on access to the courts arise in Commonwealth laws relating to a wide range of areas, including commercial and corporate regulation, workplace relations regulation, migration law, and counter-terrorism and national security legislation. Some examples are considered below.^[26] The discussion is organised by subject matter. In 2012 the Administrative Review Council (ARC) 2012 into federal judicial review. The discussion in this chapter is informed by the ARC’s report.

Foreign ownership

18.17   Decisions under the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) and div 1 of pt 7.4 of the Corporations Act 2001 (Cth) (Corporations Act)relating to foreign ownership are excluded from review under the ADJR Act.^[27]

18.18   Excluding decisions under FATA from judicial review under the ADJR Act was sought to be justified on the basis that determining whether an acquisition is in the national interest is exclusively the domain of government policy.^[28] An additional justification provided was that proceedings for judicial review might result in public disclosure of classified and commercially confidential material.^[29]

18.19   The ARC concluded that, while the national interest is not sufficient grounds to justify restricting access to the courts, the potential disclosure of classified and commercially confidential information justifies such a restriction, on the basis that:

The most compelling reason for an exemption, in the Council’s view, is the potential broad impacts on the national economy if applicants become less willing to share information due to a perceived likelihood of information being disclosed in ADJR Act proceedings.^[30]

18.20   By contrast, the ARC recommended that decisions relating to limits on share ownership under div 1 of pt 7.4 of the Corporations Act be subject to review under the ADJR Act. It stated that excluding review on the basis that these decisions consider the national interest cannot be supported, as a number of other categories of decisions which take into account the national interest are currently subject to review under the ADJR Act.^[31]

18.21   Similarly, the ARC recommended that review should be available under the ADJR Act for decisions giving effect to the government’s foreign investment policy under the Banking (Foreign Exchange) Regulations 1959 (Cth). Some examples of such decisions relate to foreign currency exchanges, transfer of money outside Australia and proceeds of exports. The ARC concluded that restricting access to courts in relation to these decisions was not justified because a review under the ADJR Act would consider the legality of the decision, rather than the underlying policy.^[32]

Financial regulation

18.22   The Securities Exchange Guarantee Corporation (SEGC) is a company limited by guarantee, whose sole member is ASX Limited. It is the trustee of the National Guarantee Fund (NGF). Part 7.5 of the Corporations Act authorises the SEGC to make decisions about the NGF, including in relation to the imposition of levies on market operators and participants, and making operating rules about the NGF.^[33]

18.23   These decisions cannot be reviewed under the ADJR Act.^[34] Claimants dissatisfied by decisions of the SEGC may seek a review under s 888H of the Corporations Act. The review mechanism under this provision is broader than that available under the ADJR Act, allowing the court to consider the merits of the decision.^[35]

18.24   The Treasurer advanced a number of justifications for restricting judicial review, including the commercial nature of the decisions, the availability of ministerial disallowance and scrutiny and the existence of review mechanisms under the Corporations Act.

18.25   The ARC stated that the commercial nature of a decision is not a rationale for restricting access to the courts, and ministerial disallowance and scrutiny are not a substitute for judicial review.^[36] However, it concluded that s 888H of the Corporations Act provides for an efficient and effective review mechanism, and thus, the exclusion in sch 1 does not unjustifiably restrict access to the courts.^[37]

Workplace relations

18.26   Decisions under key pieces of workplace relations legislation^[38] are exempt from review under the ADJR Act.^[39] These exemptions have been in place, in various guises, since the ADJR Act came into force.

18.27   The ARC, in its 2012 review, concluded that excluding decisions by Fair Work Australia from judicial review under the ADJR Act is justified on the basis that these decisions affect the national economy, and are effectively legislative in character. They determine future rights and conduct, and are of general application.^[40] The ADJR Act, it must be recalled, applies to ‘administrative’ decisions. While the courts have not devised a single or simple definition of that term, it has long been accepted that administrative decisions typically—though not always—affect one person to a much greater degree than other people. By contrast, legislative decisions or actions normally have general or very wide application. The restriction of review under the ADJR Act to administrative decisions reflects the focus of that Act on improving the rights of individuals to question decisions which affect them. The exclusion of decisions by Fair Work Australia from the ADJR Act reflects this longstanding focus of the ADJR Act.

18.28   By contrast, the ARC recommended that decisions of the Fair Work Ombudsman and the Fair Work Building Industry Inspectorate should be subject to review under the ADJR Act. The powers of both bodies are similar to the powers of many regulatory bodies whose decisions are subject to review under the ADJR Act. The ARC did not accept that the exclusion was justified on the basis that review under the ADJR Act would fragment enforcement proceedings. It noted that no other enforcement agencies are exempt from review on this basis, and further, the functions and powers of both bodies are regulatory and administrative in nature.^[41] This conclusion may be justified by the fact that such decisions are typically ones that affect individuals. It follows that making such decisions amenable to review under the ADJR Act aligns with its purpose, which is to increase the ability of citizens to challenge decisions which affect them.

Counter-terrorism and national security legislation

18.29   Several stakeholders raised concerns about restrictions on access to the courts in counter-terrorism and national security legislation. Australian Lawyers for Human Rights submitted that restrictions on judicial review arising from the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) are not justified.^[42] The Law Council of Australia submitted that judicial review under the ADJR Act of the validity of a preventative detention order should not be excluded.^[43]

18.30   Decisions under the following legislation are excluded from review under the ADJR Act:

• Intelligence Services Act 2001 (Cth);

• Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act);

• Inspector-General of Intelligence and Security Act 1986 (Cth) (IGIS Act);

• Telecommunications (Interception and Access) Act 1979 (Cth);

• Telecommunications Act 1997 (Cth)—ss 58A, 581(3), and cl 57A and 72A of sch 3A;

• Criminal Code^[44]—s 104.2 and div 105;

• Australian Passports Act 2005 (Cth)—ss 22A and 24A; and

• Foreign Passports (Law Enforcement and Security) Act 2005 (Cth)—ss 15 and 16A.^[45]

18.31   The ARC recommended that a number of security exemptions under the ADJR Act should be reviewed or removed. In particular, it recommended reviewing the blanket exemption for all ASIO decisions, and removing exemptions under the IGIS Act, and div 105 of the Criminal Code.^[46] These, and other restrictions on access to the courts arising in counter-terrorism and national security legislation are discussed below.

Criminal Code

18.32   In making its recommendation that div 105 of the Criminal Code should be subject to review under the ADJR Act, the ARC noted that, unlike interim control orders (which it recommended should not be excluded from review under the ADJR Act), there is no court involvement in the making of a preventative detention order. Further, ‘as a general principle, administrative decisions made in relation to criminal investigation processes where proceedings have not yet commenced are not excluded from review’.^[47]

18.33   Additionally, the Council of Australian Governments (COAG) and the Independent National Security Legislation Monitor (INSLM) both recommended that div 105 of the Criminal Code be repealed.^[48]

18.34   COAG adopted the ARC’s recommendation that s 104.2 of the Criminal Code be excluded from review under the ADJR Act.^[49] It noted that the final decision to impose an interim control order is made by a court, relying on a chain of decisions which require each decision maker to consider the decisions of previous decision makers.^[50] The INSLM, on the other hand, recommended that div 104 as a whole be repealed, stating that interim control orders are not necessary.^[51]

ASIO decisions

18.35   Generally, the ARC considered that the need to protect sensitive security information was an appropriate justification for excluding review under the ADJR Act.^[52] However, it stated that while the need to protect sensitive security information justifies exempting some decisions under the ASIO Act, the current exemption should be reviewed, as it excludes all decisions under the ASIO Act.^[53]

Foreign fighters

18.36   Amendments to sch 1 of the ADJR Act under the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) exclude from review under the ADJR Act, decisions to suspend or require the surrender of a passport for 14 days where the Director-General of Security suspects, on reasonable grounds, that a person ‘may leave Australia to engage in conduct that might prejudice the security of Australia or a foreign country’.^[54] The Explanatory Memorandum noted that the exclusion is necessary ‘as judicial review under the [ADJR] Act may compromise the operations of security agencies and defeat the national security purpose of the new mechanisms’.^[55] Suspension is limited to a 14 day period, and further, the exclusion from review implements recommendations made by the INSLM.^[56]

18.37   The Inspector-General of Intelligence and Security submitted to the Intelligence Committee’s review of this Bill that

limited access to review rights is not unreasonable where the suspension is for 14 days and there is opportunity for merits review of any subsequent cancellation decision.^[57]

18.38   The Parliamentary Joint Committee on Human Rights (Human Rights Committee), in concluding initially that the statement of compatibility did not demonstrate that the cancellation powers were proportionate, noted that the exclusion from review under the ADJR Act ‘could potentially compound the limitation on the right to freedom of movement’.^[58]

18.39   This may be an issue on which reasonable minds differ. While some level of oversight and review may be desirable for all decisions, most would accept that limits can be justified in some cases. A notable aspect of the 14 day period under this legislation is that it is of limited duration and it is coupled with a right of merits review. The availability of merits review provides a reason for courts to refuse relief in judicial review on discretionary grounds.^[59]

Migration law

18.40   The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Resolving the Asylum Legacy Caseload Act)introduced pt 8A into the Maritime Powers Act 2013 (Cth (Maritime Powers Act), which among other things, empowers the Minister to

• give a direction requiring that an officer exercise a power in a specified manner, or in specific circumstances or classes of circumstances;^[60]

• make a determination that a vessel or class of vessels may be used to place, restrain, remove or detain a person to take them to the destination;^[61] and

• make a determination authorising the exercise of powers in relation to a foreign vessel outside territorial waters, relating to detaining, or taking a vessel to a destination, or the treatment of persons while doing so.^[62]

18.41   These decisions are excluded from review under sch 1 of the ADJR Act.^[63] The Explanatory Memorandum states that the Bill seeks to deter ‘the making of unmeritorious claims as a means to delay an applicant’s departure from Australia, [and support] a more timely removal from Australia of those who do not engage Australia’s protection obligations’.^[64]

18.42   The Explanatory Memorandum further stated that the exclusion seeks to ‘ensure that decisions relating to operational matters cannot be inappropriately subject to the provisions of the … Judiciary Act 1903 (Cth), or the ADJR Act’.^[65]

18.43   The statement of compatibility stated:

The exclusion of judicial review under the ADJR Act is limited to circumstances in which, in the Government’s view, review by lower courts and on broader grounds would be inappropriate in respect of complex and highly sensitive operational matters. People who are affected by these measures will still have a judicial pathway through the constitutional writs and as such will continue to be able to challenge the lawfulness of their detention in accordance with Article 9(4) [of the ICCPR].^[66]

18.44   The Refugee Advice and Casework Service has stated that there should be

extreme caution in relation to legislation that proposes to allow the prolonged detention of any person in the absence of Parliamentary or judicial oversight.^[67]

18.45   The Department of Immigration and Border Protection submitted that

limited new powers are provided to the Minister personally to ensure that the executive has appropriate oversight of matters significant to Australia’s sovereignty, national security and overarching national interests.^[68]

18.46   The Legal and Constitutional Affairs Committee recommended that the Bill be passed, including the restrictions on judicial review. The Committee stated:

The government believes that legislative change is required to clear that backlog and the committee agrees. It is for that reason that the committee recommends that the Bill be passed.^[69]

18.47   By contrast, both the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee)^[70] and the Human Rights Committee^[71] had serious reservations about restrictions on judicial review introduced by the Resolving the Asylum Legacy Caseload Act.

18.48   The Minister for Immigration and Border Protection, in his response to questions from the Scrutiny of Bills Committee, stated that given that the ministerial directions are made in the national interest, and are likely to involve complex and sensitive operational matters, ‘it is more appropriate that any judicial review be undertaken using a constitutional remedy, instead of under the [ADJR Act]’.^[72]

18.49   It is unclear why such decisions should be amenable to one form of judicial review, rather than another. In the absence of a rationale for this view, the Scrutiny of Bills Committee stated that it was ‘concerned that the leading and more accessible ADJR Act regime is not being utilised, which also has the effect of fragmenting the Commonwealth approach to judicial review’.^[73]

18.50   The Human Rights Committee stated that it is

concerned that the proposed statutory framework would limit judicial review, and, in particular, the ability of individuals to seek judicial review of executive decisions that may be inconsistent with [the] stated intention to comply with Australia’s non-refoulement obligations.^[74]

Separate statutory schemes

18.51   Part IVC of the Taxation Administration Act 1953 (Cth) established a comprehensive system of internal and external merits review, as well as rights of appeal of taxation decisions in the Federal Court. This was adopted to facilitate ‘a quick and efficient mechanism for review of numerous decisions’.^[75] Additionally, the separate regime allows an affected person to seek review of a decision, while preserving the Commissioner of Taxation’s ability to seek recovery of debts relating to the decision.^[76]

18.52   Migration decisions, strictly speaking, do not fall under a separate statutory scheme. Instead, pt 8 of the Migration Act 1958 (Cth) (Migration Act) incorporates constitutional review by conferring jurisdiction on the Federal Circuit Court, and the Federal Court.

18.53   In 2001, s 494AA was inserted into the Migration Act, excluding judicial review (except under the Constitution) of matters relating to the entry, processing and detention of asylum seekers arriving by boat, who landed at an ‘excised offshore place’. The Explanatory Memorandum noted that this bar on proceedings sought to ‘limit the potential for future abuse of legal proceedings’.^[77] The Scrutiny of Bills Committee did not accept this justification, stating that ‘such provisions are contrary to the principles and traditions of our judicial system which see judicial review and due process as fundamental rights’.^[78]

18.54   In 2013, the bar on legal proceedings under s 494AA was extended to any asylum seeker who arrived by boat at any place on or after 1 June 2013. This was a response to the Report of the Expert Panel on Asylum Seekers,^[79] and sought to ensure that ‘all arrivals in Australia by irregular maritime means will have the same legal status regardless of where they arrive’.^[80]

18.55   Similar restrictions apply in relation to transitory persons.^[81] Additionally, such a person cannot challenge, other than under the Constitution, any actions taken to bring them to Australia,^[82] including for example the safety of vessels used for such transportation, or the use of reasonable and necessary force.^[83]

18.56   Both statutory schemes include privative clauses. These are discussed in the next section.

Privative clauses

18.57   The classic example of restrictions on access to the courts arises where statutes restrict access to the courts by providing that certain administrative or judicial decisions may not be reviewed by courts. A privative clause—also known as an ouster clause—is a statutory provision that attempts to restrict access to the courts for judicial review of administrative decisions. They are ‘essentially a legislative attempt to limit or exclude judicial intervention in a certain field’.^[84]

18.58   Some examples of privative clauses include those which make orders, awards or other determinations final, clauses forbidding courts from granting remedies traditionally used in judicial review, no invalidity or conclusive evidence provisions, self-executing decisions—that is, a decision where the ‘decision’ follow automatically—and clauses prescribing time limits.^[85]

18.59   Generally, clauses which prescribe time limits for bringing an action, or stipulate an alternative procedure to judicial review to challenge decisions have generally been accepted by courts, as they still provide for judicial oversight.^[86] Privative clauses which attempt to ‘restrict or exclude judicial review entirely will not be successful’.^[87]

18.60   The key argument against such privative clauses arises from the foundation of a free and democratic society protected by the rule of law. The right of judicial review entrenched in the Constitution embodies a broader notion that review of government decisions by independent courts is a valuable protection to citizens and an important form of oversight of administrative decision making. It promotes the rule of law by ensuring government power cannot operate without restriction, and improves the quality of government by enabling courts to better explain legislation (through their interpretive role) and decision makers (by findings that can explain when decision makers have fallen into legal error). To remove or significantly restrict judicial oversight allows governmental power without restriction, and is at odds with Australia’s constitutional and Westminster traditions.

General corporate regulation

18.61   The Australian Securities and Investments Commission (ASIC) submitted that ss 1274(7A) and 659B of the Corporations Act are examples of provisions which restrict access to the courts.^[88]

18.62   Section 1274(7A) provides that a certificate of registration is conclusive evidence that the company is duly registered on the specified date, without recourse to judicial review which might invalidate the registration. ASIC submitted that this restriction was justified because the potential harm from setting aside the decision as a result of a review outweighs the public interest in the proper exercise of the power.^[89]

18.63   Section 659B precludes persons other than ASIC or certain officers or government agencies from seeking judicial review, other than under s 75(v) of the Constitution, in relation to a takeover bid until the bid is complete. However, the Takeovers Panel may decide whether there has been unacceptable conduct and conduct merits review of ASIC decisions while the bid is ongoing. ASIC submitted that the potential harm from delays arising from a review process outweigh the public interest in the proper exercise of a power.^[90]

Taxation

18.64   The Tax Institute submitted that ss 175 and 177 of the Income Tax Assessment Act 1936 (Cth) (ITAA)—as conclusive evidence provisions—restrict access to the courts.^[91] Under s 175, the validity of an assessment by the Commissioner of Taxation is not affected by non-compliance with provisions with the ITAA. Under s 177, the production of a notice of assessment is conclusive evidence of the due making of the assessment, and reviews of the assessment are only available under pt IVC of the Taxation Administration Act 1953 (Cth). The High Court in Commissioner of Taxation v Futuris Corporation Limited held that the effect of s 175 of the ITAA is that relief under s 75(v) of the Constitution is available only if the assessment did not amount to a true assessment, because it is provisional, or not in good faith.^[92]

18.65   The ARC considered that the ‘no invalidity’ clause was justified, noting that ‘[t]he use of “no invalidity” clauses has ensured that, where appropriate, applicants are directed through the comprehensive merits review and appeal avenues in the taxation legislation’.^[93] These avenues can lead affected people to the courts, though in the guise of statutory appeal, rather than judicial review. Once the full nature of these alternate rights is understood, the underlying point of the ARC may be that the de facto limitations imposed by ‘no invalidity clauses’ in the ITAA are ones of form rather than substance.

Migration Act 1958 (Cth)

18.66   Restrictions on access to the courts under the Migration Act began in 1992, with limits imposed on grounds for review and stricter time limits to bring an application for review.^[94] A mandatory requirement to seek merits review before accessing judicial review was also introduced.^[95]

18.67   In 2001, s 474 of the Migration Act was inserted by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), seeking to oust the jurisdiction of the courts. It states that a privative clause decision

must not be challenged, appealed against, reviewed, quashed or called in question in any court, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.^[96]

18.68   The High Court, in Plaintiff S157 v Commonwealth read down this provision, stating that it does not apply to any decision involving jurisdictional error.^[97] In Re Refugee Tribunal, ex parte Aala, the High Court held that a jurisdictional error arises when a decision maker ‘makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do’.^[98]The High Court gave an expansive interpretation to the notion of jurisdictional error in this and later decisions, which means that the scope of decisions that may be infected with jurisdictional error—and thus not protected by a privative clause—is now very wide; so wide that it may be that a privative clause offers no real protection against any legal error.

18.69   One of the key rationales advanced for seeking to restrict access to the courts is that the volume and cost of litigation in the migration context is too high, and litigants seek to abuse the system to delay their removal from Australia.^[99]

18.70   The large volume of litigation may also be due to the limited availability of lawyers to assist applicants and the complexity of migration litigation.^[100]

18.71   The Minister for Immigration and Multicultural Affairs, in supporting the claim that much migration litigation represented an attempt to prolong an applicant’s stay in Australia, stated that

it is hard not to conclude that there is a substantial number of applicants who are using the legal process primarily in order to extend their stay in Australia, especially given that just less than half of all applicants withdraw from legal proceedings before hearing.^[101]

18.72   The ALRC stated that high rates of withdrawal are the norm in all areas of litigation.^[102] It stated that ‘mischief is not indicated by leaving at the door of the court’.^[103]

18.73   Further, based on evidence given by the Federal Court, that 72.3% of migration cases were disposed of within nine months,^[104] the Legal and Constitutional Affairs Committee stated that ‘it also appears that the amount of time to be gained from drawing out appeals to the courts may not always be extended’.^[105]

18.74   While the Legal and Constitutional Affairs Committee ultimately supported the use of a privative clause,^[106] it also recommended that the Government consider, as a matter of high priority, other avenues to address issues raised during hearings, including relating to the availability of assistance, and abuse of process.^[107] It also concluded that case management measures were the solution to dealing with abuse of process issues.^[108]

18.75   The ARC, in its consideration of the ‘separate statutory scheme’ for review of migration decisions, concluded that case management measures and assistance to applicants are more appropriate measure—than excluding judicial review— to reduce the volume and cost of litigation in the context of migration proceedings.^[109]

Other issues

18.76   Stakeholders submitted that narrow standing provisions are not justified, noting that it may be difficult for representative organisations to demonstrate that they have standing to bring a claim.^[110]

18.77   Standing does not constitute a restriction on access to the courts. It determines whether a person or organisation can commence or participate in legal proceedings. However, standing was considered by the ARC in its 2012 report on judicial review, and it recommended that a standing test be adopted, modelled on s 27(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act),^[111] to provide greater clarity on when representative organisations have standing to bring an application for review.^[112] It rejected adopting an open standing test, a test supported by a number of submissions to this ALRC inquiry.^[113]

18.78   By contrast, the ALRC in its 1996 report into standing in public interest litigation, recommended the adoption of open standing, allowing any person to commence and maintain public law proceedings, unless:

• the relevant legislation clearly excludes the class of persons of which the applicant is one; or

• it would not be in the public interest in all the circumstances, because it unreasonably interferes with a person with a private interest’s ability to act differently.^[114]

18.79   The ARC noted the ALRC’s recommendations that open standing be adopted,^[115] but it concluded that some restrictions on standing provide a means for ‘managing unmeritorious applications’, and that reviews under the ADJR Act relate to decisions made in a particular case.^[116] Further, the ARC noted that the Government has not taken up the ALRC’s recommendation to adopt an open standing test.^[117]

18.80   Since the ARC’s review, the rules of standing have been significantly relaxed in the United Kingdom. The Supreme Court of the United Kingdom noted that the traditional standing rules did not always serve the rule of law, because government officials and their agencies could make unlawful decisions without necessarily affecting a particular person (which is traditionally required for a person to have standing to commence an application for judicial review). The Court reasoned that the need to maintain the rule of law meant that what should be regarded as a sufficient interest to support standing could vary.^[118] This more relaxed approach to standing was confirmed by the United Kingdom in 2012, when it held there could be cases where ‘any individual, simply as a citizen, will have sufficient interest to bring a public authority’s violation of the law to the attention of the court’.^[119]

18.81   PIAC submitted that the threat of an adverse costs order is a practical restriction on access to the courts.^[120] The ALRC has previously stated:

liberalising the laws of standing and intervention will be of limited value if commencing or participating in litigation is too expensive. On the other hand, increasing the range of potential litigants may lead to extra demands for legal aid and other forms of assistance. Accordingly, any changes to the laws of standing and intervention must be developed as part of the package of reforms for improving the accessibility and effectiveness of the legal system.^[121]