15.1 Access to the courts to challenge administrative action is an important common law right. Judicial review of administrative action is about setting the boundaries of government power. It is about ensuring government officials obey the law and act within their prescribed powers.
15.2 This chapter discusses access to the courts to challenge administrative action or decision making. It is about judicial review, rather than merits review by administrators or tribunals. It does not focus on judicial review of primary legislation on constitutional grounds or judicial review of lower court decisions by way of appeal or prerogative writ.
15.3 At common law, superior courts of record have an inherent jurisdiction to conduct judicial review. In the 1970s, the government introduced the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) as part of wide-ranging reforms to federal administrative law in Australia. The Act seeks to simplify, codify, and in some cases, expand common law judicial review. However, limitations imposed on the ADJR Act have affected its capacity to operate as a simpler, more streamlined avenue for judicial review.
15.4 A number of stakeholders submitted that limits on access to the ADJR Act in the form of the list of decisions exempted from review under the Act should be considered as part of this Inquiry. While consideration has been given to this issue, it is important to note that under s 39B(1A)(c) of the Judiciary Act 1901 (Cth) (Judiciary Act) a person still has access to the courts to review a decision exempted under sch 1 of the ADJR Act. Accordingly, this chapter does not focus on decisions exempted from review under the ADJR Act.
15.5 This chapter is focused on privative clauses, which are ‘essentially a legislative attempt to limit or exclude judicial intervention in a certain field’. However, statutory attempts to oust the jurisdiction of the court have largely failed. Section 75(v) of the Constitution protects access to the courts, as it includes an ‘entrenched minimum provision of judicial review’. Further, the principle of legality operates to protect access to the courts by construing privative clauses so narrowly that they have little to no effect.
15.6 The Australian Government should consider a review of privative clauses in Commonwealth laws. Where the underlying policy rationale is considered warranted, the Australian Government should explore whether alternative solutions, which do not restrict access to the courts, and are more targeted and effective in addressing the underlying policy issue, may be implemented.
‘The position and constitution of the judicature could not be considered accidental to the institution of federalism: for upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which government power might be exercised and upon that the whole system was constructed’: R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 276 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).
‘The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them’: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476,  (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
Not every administrative decision is subject to judicial review. Administrative action which does not affect an individual’s liberties, vested rights or legitimate expectations is not subject to judicial review. Similarly, policy decisions of government are not subject to judicial review.
Simon Young, ‘Privative Clauses: Politics, Legality and the Constitutional Dimension’, in Matthew Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014) 277.
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, .