A common law principle

15.7     Access to the courts for the purpose of judicial review is an important common law right. Sir William Wade stated that ‘to exempt a public authority from the jurisdiction of the courts of law is, to that extent, to grant dictatorial power’.[6]

15.8     In Church of Scientology v Woodward, Brennan J said:

Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.[7]

15.9     In his Introduction to Australian Public Law, Professor David Clark gives a brief history of judicial review of administrative action:

Judicial review in the administrative law sense originated in the 17th century when various prerogative writs, so called because they issued in the name of the Crown, began to be issued against administrative bodies. These writs, such as certiorari, prohibition and mandamus originated in the 13th century, but were originally confined to review of the decisions of inferior courts … By the late 17th century the writs began to be used against administrative agencies such as the Commissioners of Sewers, and the Commissioners for Bridges and Highways. With the dramatic expansion of State functions in the 19th century and the emergence of innumerable statutory bodies, committees, commissions, and other administrative agencies, the way was open for the expansion of judicial review in this sense.

The power to judicially review what were once called inferior jurisdictions (lower courts and administrative agencies) arrived in Australia with the opening of the first Supreme Courts in Van Diemen’s Land and New South Wales in 1824 … The power to review by certiorari, prohibition and mandamus was, in origin, a common law power and was, therefore, a power of jurisdiction created by the courts through their judicial decisions.[8]

15.10  It is widely recognised that the right to judicial review is not absolute. Judicial review is available to test the legality of a decision, and not its merits—the courts are not authorised to ask whether a decision was a ‘good’ decision. It asks only whether the decision has been properly made, in accordance with the law.

15.11  At common law, the availability and scope of judicial review is a consequence of the judicial remedy sought. These remedies are the prerogative writs of habeas corpus,[9] quo warranto,[10] mandamus,[11] certiorari,[12] and prohibition,[13] as well as the equitable remedies of injunction and declaration. The standing rules relating to the availability of common law remedies and time limits which apply in relation to each of these differ.[14] While some of these requirements have relaxed over time,[15] access to judicial review at common law remains technical and complex. The Kerr Committee[16] recognised that the rules that apply to judicial review at common law were ‘both unwieldy and unnecessary’.[17] It noted that ‘a case can be lost or won on the basis of choice of remedy’.[18]

15.12  At common law, the following are subject to judicial review: a rule-maker’s power to make delegated legislation;[19] decisions of the Governor-General; recommendations and findings contained in coronial reports; Royal Commission reports; and the reports of other formal advisory bodies. Judicial review is also available in relation to decisions made in exercise of a prerogative or executive power, intermediate decisions, and some contractual decisions.[20]

Judicial review in Australia

15.13  In addition to the common law, s 75(v) of the Constitution provides for an ‘entrenched minimum provision’ of judicial review.[21] Section 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act) extends the original jurisdiction of the High Court of Australia (High Court) to the Federal Court of Australia (Federal Court).[22] Section 39B(1A)(c) vests the Federal Court with jurisdiction over ‘any matter arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter’.

15.14  In 1977, the ADJR Act was introduced as part of wide-ranging reforms to federal administrative law in Australia.[23] The Act seeks to simplify, codify and, in some cases, expand common law judicial review. It established: a single, simple procedure for review, which applies regardless of the grounds argued, or the remedy sought; codified the grounds for review; and established a right to reasons for a decision where a person has standing to seek review, with certain exceptions. However, limitations imposed on the ADJR Act have affected its capacity to operate as a simpler, more streamlined avenue for judicial review.[24]

15.15  This chapter discusses how access to the courts is protected from statutory encroachment; laws which restrict access to the courts; and when laws that restrict access to the courts may be justified. It is about judicial review, rather than merits review.[25] However, judicial review has been characterised as ‘inevitably sporadic and peripheral’.[26] The availability of merits review has been described as ‘in a way more important than judicial review because it can offer a complete answer, not available through the courts, to a person affected by a decision’.[27]