Summary

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.^[1] It is about ensuring government officials obey the law and act within their prescribed powers.^[2]

15.2     This chapter discusses access to the courts to challenge administrative action or decision making.^[3] 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’.^[4] 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’.^[5] 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.