SECTION 2. ACCOUNTABILITY MECHANISMS – PROBLEMS & OPPORTUNITIES FOR REFORM
11. JUDICIAL REVIEW AND ADMINISTRATIVE LAW
The Administrative Law reforms of the 1970s constituted one of the best governance and accountability reforms that were not the consequence of a prior scandal. They involved: the requirement that citizens could demand statements of reasons for actions that adversely affected them: Freedom of Information (FOI); , and a separate ‘Merits Review’ that allowed an independent member of the Administrative Appeals Tribunal (AAT) to put themselves in the position of the decision maker and make new decision. At the same time, judicial review was strengthened and simplified with an extension of standing, simplification of procedure, standardisation of remedies and a reversal of the then 30 year attempt by governments and legislatures to reduce the opportunity for judicial review. Judicial review allowed challenges to governmental decisions based on breaches of procedural fairness and faulty reasoning (such as taking into account irrelevant considerations or improper purposes, failing to take into account relevant considerations and certain kinds of ‘unreasonableness’). This was made much easier by the required disclosure of reasons and access to documents under FOI. The, new Federal Court provided a lot more judges who could perform that judicial review. Judicial review strengthened the Rule of Law by ensuring that officials only used the powers entrusted to them for the purposes they were entrusted. If they failed to take into account relevant considerations, took notice of irrelevant considerations, or pursued improper purposes, the court could find that their actions were void. The AAT would put itself in the place of the decision maker and naturally take into account relevant considerations and proper purposes.
Unfortunately, much of this has gone backwards with the Federal Court being stripped of many of its review powers so that in many areas, the only recourse is to the High Court. This trend must be reversed with a return of full judicial review functions to the Federal Court. All limits must be re-examined and justified before scrutiny of bills committees in both houses.
Given the threat of climate change, judicial review of key ministerial decisions that affect greenhouse emissions should be extended with international climate agreements being recognized as particularly “relevant considerations”. Given the concern about pork barrelling, ministerial decisions should be subject to judicial review under section 71 of the Public Governance, Performance and Accountability Act 2013 which bars a Minister from approving proposed expenditures unless the Minister is satisfied, after making reasonable inquiries, that the expenditure would be a proper use.
More generally, given the importance of international law and the Rule of Law in international affairs, legislation should make it very clear that treaties Australia has signed and international law in general, are highly relevant considerations for the exercise of entrusted power and both elected and appointed officials should be subject to judicial review for a failure to do so. Even if the Australian government that signed the treaty had not intended to honour it, this is not something that they would readily plead in court.[i] And it is not something any court should entertain. Officials and courts should also consider the deliberations of international bodies, especially international courts
[i] This would build on Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 High Court of Australia
Judicial Review of Administrative Actions: The trend to strip the Federal Court of many review powers must be reversed with a return of full judicial review functions and all limits re-examined and justified before scrutiny of bills committees.
International Law and judicial review: Legislation should clarify that treaties Australia has signed and international law in general are highly relevant considerations for the exercise of entrusted power and both elected and appointed officials should be subject to judicial review for a failure to do so.