Page 2116 - Week 07 - Thursday, 16 May 2013
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of other laws made by this place. The legislature makes the laws and we trust the executive to execute them correctly. A legislator should not support an arrangement where there is no remedy for a failure by the executive to apply a law correctly.
In the ACT, judicial review of administrative decisions and administrative action occurs under the Administrative Decisions (Judicial Review) Act, or the AD(JR). Put simply, we rely on the AD(JR) Act to ensure probity in government decision making. The act is an adapted replica of the commonwealth AD(JR) Act that is now more than 30 years old. The act was an ordinance of the commonwealth government put in place to take effect on the first day of self-government. Of course, since that time, there has been an expediential growth in the number of executive decisions made each year and yet this is the first and only major reform to the operation of the act that has occurred since self-government.
The current reality is that by operation of the “person aggrieved” test set out in the act, it is possible that, while a decision made in the exercise of a power given by this place may, in fact, be beyond the jurisdiction of the decision maker and therefore unlawful, it will remain in place and enforced simply because there is no-one able to make an application for judicial review.
Jurisdictional, justiciability and arguable case requirements already act as a filter on matters before the courts. Standing limitations unnecessarily supplement these requirements at the expense of government accountability.
The bill I am presenting is relatively straightforward. However the impacts of the changes will be significant. In Onus v Alcoa of Australia Ltd, Justice Brennan warned that to deny standing may be to deny to an important category of modern public statutory duties an effective procedure for curial enforcement. Since that case in 1981 the role of the executive and administrative decision making has grown enormously, and the importance of this reform has only increased.
Public law is different from private law; standing rules that developed in the private law context should not be applied to public law. They come from a time where there was reliance on the Attorney-General’s fiat, and the Attorney-General was not a member of cabinet and fulfilled a very different role to that of today. Because all members of the public have an interest in the government acting properly and according to law, any member of the public should be able to call the government to account for its administrative actions.
Last year the Administrative Review Council undertook a review into judicial review in Australia. The submissions to that review show a clear view across academics, public interest groups as well as statutory office holders that access to judicial law should be expanded. The submission from the Commonwealth Ombudsman stated:
… the Ombudsman supports measures to make government more accountable and transparent in its decision making. In this respect, proposals that are put forward to extend the rights of the public to have decisions judicially reviewed as opposed to restricting a person’s rights would be considered favourably by this office.
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