Page 5014 - Week 16 - Tuesday, 26 November 1991
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legalistic style, no doubt meant to impress some members and have them think that there is somehow some benefit in this proposal, he quoted, I think, from the very text that I am now holding - Flick's book on administrative law - some statements about the purpose of judicial review.
Of course, one fundamental point about the Administrative Decisions (Judicial Review) Act, at the Federal level and also as it is applied to the Territory, is that it is not about merit review; it is about review of the legality of the decision making process. Flick says, at page 172:
The Federal Court is thus not entrusted with the duty or power to conduct a review on the merits of administrative decisions and must be vigilant to ensure that it does not, under the guise of reviewing administrative decisions on questions of law, trespass in fields of administrative decision-making in relation to which it possesses neither mandate nor special qualification ...
A Federal Court authority is there cited, and I will not bother citing the case. What Mr Collaery is proposing is this strange new test that it is unlawful to appropriate money in these two programs unless the appropriation between government and non-government is in a manner which ensures a fair and reasonable allocation, which is essentially a political decision; and then he proposes to provide judicial review on that decision. Nothing could be more to the point of this warning by Flick - and he is a noted author on this matter - citing again from the Federal Court, that the courts should be wary of trespassing, under the guise of judicial review, into areas in which they possess "neither mandate nor special qualification".
Surely, no member of this Assembly would say that the courts have mandate or special qualification to decide what is the fair and reasonable allocation of funding as between government and non-government schools.
Mr Collaery: That is a merit review. Is that a merit review or a judicial review?
MR CONNOLLY: Mr Speaker, it is hard to understand what Mr Collaery proposes on any given day. He then went on to a diatribe about reasonableness. He said that the courts are well and truly able to make decisions on reasonableness and that this would provide for a reasonableness ground of appeal. Certainly, unreasonableness is one of the grounds of review under the Administrative Decisions (Judicial Review) Act. But it is very rare for decisions to be held on the basis of unreasonableness. In order to have a finding by a court that an administrative decision is bad because of unreasonableness, it is necessary for the court to reach a conclusion that no sensible authority could reasonably reach a particular decision.
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