The ADJR Act

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This article is a topic within the subject Administrative Law.

Contents

Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [2.4.1-15]; [2.4.27-47].

Introduction

[1]The ADJR Act is a source of defining the scope of action to be included or excluded in judicial review and the jurisdiction of any court vested with the function of reviewing that executive action. The legislation is interpreted against a backdrop of other public policy law considerations concerning the legitimate scope of judicial review.

The ADJR Act confers jurisdiction on the 'Federal Court and Federal Magistrates Court to undertake review of ‘a decision to which this Act applies’ (s 5) and ‘conduct for the purpose of making a decision to which this Act applies’ (s 6). These terms are elaborated upon in s 3:

3.(1) In this Act, unless the contrary intention appears...
"decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1.*
(2) In this Act, a reference to the making of a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order, award or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing;
and a reference to a failure to make a decision shall be construed accordingly.
(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.

(The reference to Schedule 1 is to categories of decision that are excluded from review under the Act; examples include decisions made by security intelligence bodies, by Commonwealth/state ministerial councils, or to do with foreign investment approval, taxation assessment, industrial arbitration, defence force discipline or criminal prosecution.)

“Decision” and “conduct”

[2] Summarising what was written above, a decision/conduct is reviewable if it is administrative in nature and under an enactment. The question what constitutes a 'decision' (s 5) and what constitutes 'conduct' is addressed in the following case:

Australian Broadcasting Tribunal v Bond[3]

Facts: Mr Bond and the companies challenging an inquiry into fitness to hold a broadcasting licence, attempted to stall the administrative process by challenging every step of the process as a ‘decision’ or ‘conduct’.
Issue: Restrictive interpretation.
Held: The High Court held that the actions were not reviewable as decisions or conduct. The terms ‘decision’ and ‘conduct’ should be read restrictively. ‘Decision’ refers to administrative activity that is substantive and final or operative and ‘conduct’ refers to administrative activity preceding a decision that reveals a flawed procedural processes, as opposed to substantive issues.

The idea that an omission or failure to exercise a power constitutes a decision was put forth in the following case:

Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health[4]

Facts: The Right to Life Association wrote to the secretary objecting that clinical trials being conducted on an ‘abortion drug’ were contrary to state law. The secretary wrote back that he would not use his statutory power to stop the trial. The court held that the secretary’s letter did give rise to a reviewable ‘decision’ under the ADJR Act (although the association did not have standing to challenge the decision).
Issue: What constitutes a decision?
Held: The court held that what constitutes a decision will vary from case to case but in this situation, the reaching of a conclusion after considering matters of public interest which had been brought to the secretary’s attention, constituted a decision. There was a ‘final and ultimate decision not to give the direction.’

“Decision... of an administrative character”

[5]At an early stage, the Federal Court rejected arguments that there were special categories of executive activity that were not appropriately classed as ‘administrative’. The approach has been to define the term in the context of the legislative, executive and judicial dichotomy. If the action is not legislative or judicial it can be classed as administrative by deduction.

  • The categories frequently overlap and characterisation of any action takes colour from the context in which it is exercised.

Federal Airports Corporation v Aerolineas Argentinas[6]

Facts: The FAC made a determination under a statute to impose a landing charge for large aircraft landing at major city airports. The Full Federal Court held that the determination of the FAC was administrative in character.
Issue: Administrative versus legislative distinction. Particular versus general.
Held: “A legislative act is the creation and promulgation of a general rule without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy of expediency or administrative.”
  • Legislation determines the content of a rule and the executive applies it.

Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee[7]

Facts: The Committee had a power under the Therapeutic Goods Act to decide which drugs could be sold without a prescription. Roche challenged a decision to classify the drug it manufactured as one requiring a prescription. The court held that the decision was legislative in character and not reviewable.
Issue: Legislative versus administrative.
Held: Matters which can be regarded as relevant to the distinction include:
- Whether the decisions determined rules of general application or whether there was an application of rules to particular cases
- Whether there was Parliamentary control of the decision
- Whether there was public notification of the making of the regulation
- Whether there has been public consultation and the extent of any such consultation
- Whether there were broad policy considerations imposed
- Whether the regulation could be varied
- Whether the power was of executive variation or control
- Whether provision exists for merits review
The decision was also one which determined the future lawfulness of conduct.

ADJR Act cases holding that a determination was legislative rather than administrative in character have commonly emphasised the general nature of the determination. Other cases have warned that the generality or particularity of a decision is by itself an unsafe guide as to whether it is legislative or administrative.

“Decision... made... under an enactment”

[8]This restriction excludes review of non-statutory decisions such as those made under executive or prerogative power and under contracts to which a government is a party.

1) What is an enactment?

The ADJR Act s 3(1) defines an enactment as a Commonwealth Act and “an instrument (including rules, regulations or by-laws) made under such an Act”. It includes subordinate legislation. And ‘instrument’ is apt to include documents of an administrative as well as legislative character. To qualify as an instrument, the document must be of such a kind that it has the capacity to affect legal rights and obligations.

2) When is a decision ‘under’ that enactment?

‘Under’ means in pursuance of or under the authority of. It requires a link between the decision to be reviewed and a power conferred by an enactment to make that decision.

Griffith University v Tang[9]

Facts: A postgraduate student challenged the decision of a committee at her university, to exclude her from PhD candidacy on grounds of academic misconduct. The High Court held that the action should be dismissed on the basis that the decision was not under an enactment (the Griffith University Act).
Issue: Under an enactment.
Held: The University Council is empowered to make university statutes under the Act but there were no such statutes relevant to the appeal. It had established an Academic Committee which had made policies and these had been applied by a sub-committee. “The crux of the issue in each case is whether the enactment has played a relevant part in affected or effecting rights or obligations.”


End

This is the end of this topic. Click here to go back to the main subject page for Administrative Law.

References

Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. Textbook, pp 76-77.
  2. Textbook, pp 77-87.
  3. (1990) 170 CLR 321.
  4. (1995) 56 FCR 50.
  5. Textbook, pp 77-87.
  6. (1997) 76 FCR 582.
  7. (2007) 163 FCR 451.
  8. Textbook, pp 99-107.
  9. (2005) 221 CLR 99.
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