Introduction Summary of Recommendations Division of Report	1-6 7-9 10
Part I – The Content and Effect of the Act The Character of the Act The Changes made by the Act The Furnishing of Statements of Reasons Introduction The Content of Reasons The Possibility of Amending s.13 Obligation is Personal Confidential Information In Statements of Reasons Discovery in Proceedings under the Act Review of s.14 Certificates Decisions Subject to the Act Standing	11-45 11-13 14-19 20-31 20-25 26-28 29-30 31 32-43 33-40 41-42 43 44 45
Part II – General Principles Relating to Exclusion Act to Apply Widely Bases of Exclusion founded upon Act’s Changes to the Law Effect of Exclusion on other Judicial Bodies Testing the Floodgates Decisions involving Large Elements of Policy Adequate Alternative Avenues of Review Decisions in Urgent or Emergency Contexts Inter-governmental Bodies Powers Exercised by State Officials Consultative and Advisory Authorities and Authorities not dealing Directly with the Public	46-61 46 47 48 49 50-51 52-55 56-58 59 60 61
Part III – Decisions under Enactments Administered by Departments which have advised that they seek no Exclusions Part IV – Decisions under Enactments administered by Departments which have not provided Advice as to Exclusions	62 63-66
Part V – Classes of Decisions suggested for Exclusion by Several Departments Commercially Competitive Statutory Authorities The Administration of Justice Employment Decisions other than those relating to Conciliation and Arbitration Decisions administered by the Public Service Board	67-125 68-73 74-80 81-123 82-122
Decisions under the Public Service Act not directly affecting Individuals General Management Arbitral Processes Decisions directly related to Individuals Recruitment and Appointment Promotion and Promotion Appeals Discipline Re-integration Appointment of First Division and Statutory Officers Sundry Legislation Conclusion Employment Decisions not regulated by the Public Service Board Decisions relating to Conciliation and Arbitration	87-99 87-94 95-99 100-121 100-103 104-114 115-117 118 119-120 121 122 123 124-125
Part VI – Decisions under Enactments Administered by Departments which have advised that they seek Exclusions Department of Administrative Services Attorney-General’s Department Department of Business and Consumer Affairs Department of the Capital Territory Department of Defence Department of Education Department of Environment, Housing and Community Development Department of Finance Department of Foreign Affairs Department of Health Department of Home Affairs Department of Immigration and Ethnic Affairs Department of Post and Telecommunications Department of the Prime Minister and Cabinet Public Service Board Department of Science Department of Trade and Resources Department of Transport Department of the Treasury	12-227 127-132 133-138 139-142 143-148 149-150 150A-150B 151-152 153-154 155-158 159-162 163-168 169-179 180-186 187-190 191-206 207-208 209-216 216A-219 220-230
Part VII – Final Observations Northern Territory Summary of Recommendations Future Action	231-233 231 232 233

Attachment 1

Attachment 2

Amdt.1 10/11/78

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ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) REGULATIONS

1. By letter dated 28 April 1977 the then Attorney-General, the Honourable R.J. Ellicott, Q.C., M.P., forwarded to the Administrative Review Council a copy of the Administrative Decisions (Judicial Review) Bill and sought its advice "as to the classes of decisions, if any, that the Council thinks ought to be excluded from the scope of the Bill by regulation". That Bill has since been enacted as the Administrative Decisions (Judicial Review) Act 1977 (hereinafter called "the Act") but has not yet been proclaimed pending the determination of exclusions from the Act.

2. The Council appointed a Sub-Committee (consisting of Sir. Clarrie Harders, O.B.E., (Convenor),the Honour-able Mr Justice M.D. Kirby, Mr R.V. Cyles, Q.C., and Mr D.L. Linehan) to report on the reference. The Sub-Committee met on eleven occasions and in the course of its meetings held discussions with representatives of the following organisations:

Australian National Airlines Commission
Australian Shipping Commission
Australian Taxation Office
Commonwealth Banking Corporation
Department of the Capital Territory
Department of Immigration and Ethnic' Affairs
Department of Social Security
Department of the Treasury
Public Service Board
Administrative and Clerical Officers Association
Council of Australian Government Employees Organisations
Council of Professional Associations

The Sub-Committee also held discussions with Professor Freda Hawkins, the Honourable A.J. Grassby, Commissioner for Community Relations, and Mr Alan Neaves, Crown Solicitor. In addition, officers of the Council's Secretariat held discussions with the Commonwealth Serum Laboratories, the Department of Business and Consumer Affairs, and the Department of Transport.

3. The deliberations of the Council have been based upon responses to a letter from Sir Clarrie Harders to all departmental heads which set out the effect of the Act and sought proposals for exclusions from the Act. In reply to this letter a large number of submissions was received. The Council has not considered exclusion of any class of decisions unless either a department has sought its exclusion, or it falls within one of the general classes of decision considered in Part V of this report.

4. Departmental submissions for exclusion of decisions from the operation of the Act were most frequently based upon one or more of the following grounds:

• the burden of giving reasons;
• the possibility of being obliged to disclose confidential information in a statement of reasons;
• the suggested undesirability of the Act being applied to decisions of statutory authorities in competition with private enterprise; and
• the suggested undesirability of the Act being applied to decisions related to the administration of justice.

A number of other grounds were advanced by Departments in support of submissions that a class of decisions be excluded.

5. This report will outline all the submissions made by Departments, and the reasons for the Council's several recommendations.

6. The Council's recommendations correspond in part with the proposals of the Committee on Prerogative Writ Procedures (the "Ellicott Committee") which recommended the reform of judicial review procedures. The Ellicott Committee proposed (at paragraphs 27 and 30 of its Report) that consideration should be given to excluding from the legislation which it recommended, classes of decisions in the following areas:

• defence
• national security
• relations with other countries
• criminal investigation
• employment in the Public Service

CLASSES OF DECISIONS RECOMMENDED FOR EXCLUSION

7. The Council recommends the exclusion of the following classes of decisions:

(a) Decisions related to disciplinary proceedings within the Australian Defence Force (see paragraphs 149-150);

(b) All decisions under the Australian Security Intelligence Organisation Act 1956 and all decisions under the Telephonic Communications (Interception) Act 1960 (see paragraphs 135 - 138);

(c) All decisions under the Consular Privileges and Immunities Act 1972, the Diplomatic Privileges and Immunities Act 1967, and the International Organisations (Privileges and Immunities) Act 1963 (see paragraphs 155 - 156);

(d) Decisions under Passport Regulations 7,11 and 12 in so far as they are taken on the direction of foreign governments (see paragraphs 157 - 158);

(e) Decisions under paragraphs 8(1)(b) and 8(3)(b) of the Migration Act 1958, (which relate to diplomatic and consular officials and their families) (see paragraphs 169 - 170);

(f) Decisions related to the administration of criminal justice (including the investigation and prosecution of persons for any offence against a law of the Commonwealth) other than:

(i) Appointments of investigators and inspectors under statutory powers (for example under the Companies Ordinance of the Australian Capital Territory);

(ii) The issue of search warrants, and of analogous warrants under the Customs Act and other legislation;

(iii) Decisions to require the production of documents, the giving of information and the summoning of persons as witnesses (see paragraphs 74 - 80);

(g) For a period of 12 months only from the commencement of the operation of the Act, decisions under the Public Service Act 1922 relating to promotions and promotion appeals and analogous decisions of statutory authorities (see paragraphs 104-114, 180, 187, 226);

(h) Decisions of the Commonwealth Grants Commission relating to the allocation of funds (see paragraphs 127-128);

(i) Decisions under sections 32 and 364 of the Audit Act 1901 and section 3 of the Appropriation Acts (Nos. 1 and 2) (see paragraphs 153-154);

(j) The making of assessments and decisions affecting assessments for income, estate, gift, and sales taxes (see paragraphs 222-223);

(k) Tentatively, decisions of the Conciliation and Arbitration Commission (but not decisions of Industrial Registrars or Deputy Industrial Registrars), the Public Service Arbitrator or a Deputy Public Service Arbitrator, the Coal Industry Tribunal and the Flight Crew Officers Industrial Tribunal. (See paragraphs 124-125);

(1) All decisions of the Advisory Council for Inter-Government relations. (See paragraphs 189-190).

8. Although some departments or statutory authorities who would seek exemption from the operation of the Act may wish to make submissions at some future time, it is recommended that the proclamation of the Act should not be delayed because of that possibility. If any departmental submission should be received subsequent to this report, it is recommended that it be referred to Council for its recommendation and that no exclusion should be made pending Council's further recommendation.

9. It is recommended that no classes of decisions other than those referred to in paragraph 7 should be excluded from the Act.

10. This report is divided into seven parts:

Part I The content and effect of the Act

Part II General principles relating to exclusion

Part III Decisions under enactments administered by Departments which advised that they seek no exclusions

Part IV Decisions under enactments administered by Departments which have not provided advice as to exclusions

Part V Classes of decisions suggested for exclusion by several Departments

Part VI Decisions under enactments administered by Departments which have advised that they seek exclusions

Part VII Final Observations

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PART I - THE CONTENT AND EFFECT OF THE ACT

THE CHARACTER OF THE ACT

11. The Administrative Decisions (Judicial Review) Act 1977 was foreshadowed by the recommendations of the Commonwealth Administrative Review Committee (the Kerr Committee) and the Ellicott Committee. Pursuant to the Act, the Federal Court of Australia is invested with the power of judicial review of Commonwealth administrative decisions within the ambit provided by the Act. The Court, the Administrative Appeals Tribunal, and the Commonwealth Ombudsman are all instruments of the new administrative review system. Unlike the Acts establishing the Tribunal and Ombudsman, the Act does not create a new form of review but merely simplifies, codifies, reforms, and makes more effective the existing judicial review of Commonwealth administrative action. Judicial review is concerned solely with the lawfulness of administrative action. Unlike review by the Administrative Appeals Tribunal, it does not permit a substitution of the Court's view of the merits for that of the primary decision-maker. Unlike the Ombudsman, a court engaged in judicial review is not concerned with maladministration unless it involves unlawfulness. Judicial Review under the Act is thus different from the review effected by either the Administrative Appeals Tribunal or the Ombudsman.

12. The Act achieves real improvements in the effectiveness and efficiency of judicial review. It is important to ensure that the resolution of the central issue of a review proceeding is reached quickly and simply and with the minimum of intrusion of a side issues or technicalities. The investing of a jurisdiction to review administrative decisions in one Court, granting a single remedy and following a uniform procedure is an advantageous reform. The Act goes further than this and, by eschewing the preservation of the several prerogative writs, it avoids the difficulties encountered overseas by engrafting a new, single procedure upon the old remedies (see the Canadian experience). This is a significant advance which would itself have been a sufficient justification for the Act.

13. There are, however, other provisions of the Act which promote the desiderata of speed, simplicity, and the minimum intrusion of side issues or technicalities. The obligation to provide reasons on request, supplemented by the general availability of discovery and interrogatories with leave of the Court, enables the real issues to be ascertained at an early stage. The real issues might otherwise be obscured, and cases might be determined minor and side issues. The Act avoids the unhelpful technicalities of common law judicial review. In particular, by including a general ground of error of law (whether or not that error appears on the record of the decision and by specifying the situations in which a decision is unlawful for lack of evidence to justify it, the Act enables the direct issue of unlawfulness to be posed and determined simply and directly.) The furnishing of reasons is both an aid to the remedy of error, and an assurance of sound administration.

THE CHANGES MADE BY THE ACT

14. In respect of decisions subject to it, the Act makes the following significant changes to judicial review. It:

• creates a simple and flexible procedure for judicial review in a uniformly available forum

• sets out the grounds of review, including the situations in which the absence of evidence to support' a decision will constitute a ground of review

• removes the common law rule that a remedy may be obtained for error of law within jurisdiction only where the error appears on the face of the record of the decision - for which error only the writ of certiorari (or possibly declaration) is available

• is intended to apply irrespective of any provisions in pre-existing legislation which sought to limit the courts powers to review administrative decisions (see the Explanatory Memorandum to the Bill, paragraph 17)

• creates a general right for persons adversely affected by a decision to be provided upon request with a statement of reasons for the decision. This may be exercised independently of any application for an Order of Review, or it may be exercised as an adjunct to review proceedings.

15. At common law there is a variety of remedies for unlawful administrative decisions. While many elements are common to several remedies, there is no uniformity in availability, grounds, or procedures. The Kerr Committee described the law of judicial review prior to the Act as a "complex pattern of rules as to appropriate courts, principles and remedies" (Commonwealth Administrative Review Committee Report – 1971, Parliamentary Paper NO. 144; paragraph 58).

16. The Act creates a uniform procedure which is sufficiently flexible to meet the differing requirements of particular cases. It establishes a general Order of Review which may include orders fulfilling the same functions as all of the separate orders available at common law. The Federal Court is given jurisdiction to review all decisions to which the Act applies. The Act does not affect judicial review in the original jurisdiction of the High Court (which is provided for by section 75. of the Constitution and cannot be excluded by legislation) or the Territory Supreme Courts. The jurisdiction of State Supreme Courts to review the conduct or decisions of officers of the Commonwealth (other than by way of Habeas Corpus) is removed by the Act.

17. In setting out the grounds of review, the Act may perform an educative role by informing lawyers of the law of judicial review. Definition of the precise breadth of the grounds of review (particularly the "no-evidence" ground) must await the determination of the Federal Court. In making its recommendations, the Council has assumed that the Act achieves the aim of the Government as stated in the Second Reading Speech on the Bill, by the Attorney-General, namely, that the Act does not provide review on the merits but concerns only whether the "action is lawful" (Commonwealth, Parliamentary Debates, House of Representatives, 28 April 1977, p. 1394).

18. At common law the remedy of certiorari (and possibly declaration) is available for errors of law within jurisdiction only if the error appears on the record of the decision. This is a significant restriction on the availability of the remedy. It also creates uncertainty as there can be doubt as to which documents constitute the record. There is no such restriction on the grant of an Order of Review in respect of decisions subject to the Act.

19. The eight provisions in Commonwealth Acts which seek to restrict the courts' power to review administrative action (privative clauses) are identified in Attachment 2 to this report. They are of limited effect in so far as review by the High Court is concerned where the High Court's jurisdiction arises under section 75(v) of the Constitution because this constitutional jurisdiction cannot be excluded by Act of Parliament. In any other proceedings before the High Court, it has been held that such provisions prevent judicial review of any "bona fide" attempt to exercise authority in a matter relating to the subject with which the legislation deals and capable reasonably of being referred to the power possessed by the decision-maker (see R v Hickman, ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR. 598, 615).

THE FURNISHING OF STATEMENTS OF REASONS UNDER SECTION 13

20. The creation of a general right to a statement of reasons is a most significant change. The absence of a right to reasons has generally hampered judicial review and made it difficult to detect and review unlawful administrative action. The duty to furnish a statement of reasons will also assist in improving the quality of decision-making, which is a major object of external administrative review-.

21. It must be expected that the operation of the Act, and section 13 in particular, will have an impact upon the administration of departments and the operations of Government. Indeed, one aim of the Act is to cause administrators to identify to themselves the reasons which motivate their decisions. This impact and the burdens associated with furnishing statements of reasons were of concern to the Council when it made its recommendations to the Attorney-General on the Bill for this Act. Whilst the Council welcomed the legislation, the Council pointed out in its advice to the Attorney of 16 April 1977 that the burden of providing reasons for decisions may be substantial in some areas of the Public Service and the introduction of the section would immediately create those additional burdens.

22. Parliament passed the section after Council's advice to the Attorney-General of the additional administrative burden which would be imposed by section 13. No new circumstance has been demonstrated since the Act was passed which would warrant a departure from Parliament's decision.

23. It must be accepted that, in cases where there is now no obligation to give reasons and reasons are not usually given, section 13 will result in some increase in work (although perhaps not to the extent predicted by some departments). This increase in work will occur in two ways. First, a sufficient record must be made of the decision at the time it is given to enable a statement fulfilling the requirements of section 13 to be given later if requested. Second, the actual writing of the reasons will take time. The extent of the extra workload in any area of decision-making will depend on a number of circumstances,including the complexity of the subject matter, the volume of decisions and the number of requests made.

24. Departments may be able to adopt procedures to minimise the additional workload, and perhaps thereby increase the efficiency of decision-making processes. For instance, it may be appropriate that a pro forma document noting the facts, evidence, and the reasons which led to a decision should be filled out at the time the decision is made and entered on the relevant file. Since reasons need only be stated upon request (which request could be made up to twenty-eight days later, or longer when no written notification of the decision is given to the applicant for the statement) changes of practice may be necessary to enable the facts, evidence, and reasons to be made clear on the file so that a statement of reasons may be prepared rapidly.

25. Several Departments have submitted strongly that the administrative burden of furnishing statements of reasons justifies the exclusion of certain classes of decision. In the light of these submissions, the Council has considered the purpose and content of the obligation to state reasons.

The Purpose and Content of Statements of Reasons

26. In considering the appropriate content of a statement of reasons the function of the statement is relevant. As the Administrative Appeals Tribunal pointed out in Re Palmer and Minister for the Capital Territory - a decision of Fisher J., Messrs Hall and Woodley of 9. August 1978 at p.15, the function of such a statement is to ensure that the citizen is sufficiently informed to determine whether he wishes to take the matter further, and if. so the most appropriate avenue for pursuing the matter. The citizen has a variety of avenues through which he may pursue his grievance - including the making of representations to the responsible Minister, a complaint to the Ombudsman, or the commencement of proceedings in a court. It is important that he be sufficiently informed to enable him to choose the most appropriate avenue. The English Courts have taken this approach in interpreting the more general terminology used in section 12 of the Tribunals and Inquiries Act 1971 (U.K.).

27. The following observations of the Administrative Appeals Tribunal in Palmer^’s case at page 15 are relevant to the obligation to state reasons imposed by the Act:

"By requiring the decision-maker to give not only the reasons for his decision but additionally a statement of the findings on material questions of fact referring to the evidence or other material on which those findings were based, Parliament certainly intended that the citizen should be fully informed. These further requirements will be satisfied by a statement setting out the findings of fact, together with a reference to "the evidence or other material" o~ which the findings were based. It is important to note that neither s.28 nor s.37' [of the Administrative Appeals Tribunal Act] requires that the relevant evidence or other material' be set out. in the' statement, only that it be referred to".

28. It should be noted that in 1977 sections 28 and 37 of the Administrative Appeals Tribunal Act were amended to make the obligations to state reasons imposed by those sections more stringent, by requiring a statement referring to the evidence or other material on which the findings on material questions of fact were based (see Palmer^’s case, at pp. 13-14). The statutory formulation used in those sections as amended, was adopted for the Judicial Review Act.

The Possibility of Amending Section 13

29. The possibility that the obligation to furnish a statement of reasons should arise only where an application for an Order of Review has been lodged was considered. This possibility is rejected as being contrary to the basic premise that a statement of reasons is essential for an individual to judge whether and if so on what grounds he should issue proceedings. Such a change would also undermine the right to a statement of reasons which was described in the Attorney-General's Second Reading Speech on the Bill as "one of the principal elements" of the legislation (Commonwealth, Parliamentary Debates, House of Representatives, 28 April 1977, p.1395). Additionally, to require an application for an Order of Review would have the effect of imposing substantial expense on any person seeking a statement of reasons, since there is a $100.00 lodgment fee on applications for Orders of Review and lodgment would almost always require legal advice.

30. The suggestion that the obligation under section 13 should be separated from other aspects of the Act was considered. This could take the form of repealing the section and enacting a separate Act on reasons for decisions, or of permitting regulations to be made under section 19 excluding the operation of section 13 alone. For the first two reasons advanced in the preceding paragraph, such a change would not be desirable. The duty to give reasons is an important element of a reformed judicial review process, and without statements of reasons the other reforms sought to be achieved by the Act may lose some effect.

Obligation is Personal

31. However, whilst section 17 of the Act makes provision for cases where the person holding the office of the decision-maker no longer holds that office, no provision is made for situations where the decision-maker is not available temporarily, due to illness, leave, or absence overseas. This is important, since the obligation to give reasons imposed by sub-section 13(2) and the right to apply to the Court under sub-section 13(3) for an order that the person making the request was not entitled to do so, attach personally to the decision-maker. This is unsatisfactory, and it is recommended that this be considered in any future revision of the Act.

CONFIDENTIAL INFORMATION

32. In many areas of government, particularly those relating to commercial matters, decisions are made on. the basis of or in the light of information supplied, either voluntarily or pursuant to legislative requirement, upon a confidential basis. A number of departments have submitted that it would be most undesirable for them to be required to disclose this information either when giving a statement of reasons pursuant to section 13 (which arises even though proceedings have not been commenced), or when complying with orders requiring them to produce documents on discovery or answer interrogatories in the course of proceedings under the Act.

Statements of Reasons

33. Here, there is a possibility of revealing confidential information by referring to the evidence founding the material facts, or by stating the material facts upon which the decision is based.

34. Section 14 provides that a decision-maker is exempted from the obligation to provide any information concerning a specified matter in a statement of reasons where the Attorney-General certifies that disclosure of that information would be contrary to the public interest:

(a) by reason that it would prejudice the security, defence or international relations of Australia;

(b) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; or

(c) for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed.

Of these categories, the third category has the widest application, and could potentially resolve the difficulties foreshadowed by the Departments.

35. A reason which can form the basis of a claim of privilege in judicial proceedings is that disclosure of the information would be contrary to the public interest. The fact that information was supplied on a confidential basis does not necessarily make its disclosure contrary to the public interest, although it may be an important factor in reaching that conclusion. In a recent case Lord Cross said:

"Confidentiality is not a separate head of privilege but it may be a very material consideration to bear in mind when privilege is claimed on the ground of public interest. What the court has to do is to weigh on the one hand the considerations which suggest that it is in the public interest that the documents in question should be disclosed and on the other hand those which suggest that it is in the public interest that they should not be disclosed and to balance one against the other". (Alfred Crompton Amusement Machines Ltd v Commissioners of Customs and Excise [1974] A.C. 405 at 433-4).

36. The interests against disclosure turn upon the public interest in the proper administration of the legislation in the course of which the relevant information was provided. It is in the public interest that proper administration of the legislation is not endangered. Thus, it would not be in the public interest if "knowledge that the [administrator] cannot keep such information secret may be harmful to the efficient working of the Act" (Crompton, above, at 434). In evaluating this question, the public interest in the continued effective operation of government and the interests of the third parties who provided the information will be considered, as was done in a very recent case where confidential personal references were held to be privileged, (Nasse v Science Research Council, English Court of Appeal, "The Times" 26 July 1978).

37. The Council regards the Attorney-General, as the first law officer of the Crown, as the most appropriate person to strike the balance of competing interests. He will be able to take a wide range of factors into account including briefings of officers experienced in the relevant areas of administration, and the views of the third party who provided the information. In particular, he will be able to bring to his decision a detailed knowledge of the workings of government and the possible effect on the future flow of information.

38. Where judicial proceedings are in progress, the public interest in the effective administration of justice will be a very significant factor in favour of disclosure, and will not lightly be outweighed.

"A high degree of public interest is involved in the effective administration of justice. That a party should be denied relief or should suffer punishment or judgment for lack of evidence when that evidence is in existence is certainly contrary to the public interest" (Hazeltine Research Inc. v. Zenith Radio Corporation (1965) 7 F.L.R. 339 at 341 per Smithers J.).

The party seeking disclosure has an analogous though narrower and personal interest. In judicial proceedings, if the balance of interests is equal, the material will be held privileged (Crompton, above, at 434).

39. However, under section 14, Court proceedings are not involved. Accordingly, the factors relevant to the public interest in this context may differ from those relevant to the public interest where the issue is whether evidence should be placed before a Court in order to enable it to determine contested proceedings before it. Where the reasons are provided independently of any litigation, the interest set out by Smithers J. is weaker than it is in the course of proceedings. The interest in maintaining privilege is, on the other hand, not diminished.

40. From these observations, the Council takes the view that the powers provided by section 14 are an adequate safeguard in relation to the obligation to provide a statement of reasons, and does not therefore recommend that there be any exclusions on this ground. Nevertheless, the operation of the Act in this area should be monitored closely, and changes could be made to deal with any problems which may emerge.

Discovery in Proceedings under the Act

41. Discovery is the process whereby parties to litigation may obtain the right to inspect all relevant, unprivileged documents in the possession of other parties to the proceedings. Submissions for exemption have been made by departments on the ground of the difficulties which could flow from various classes of documents being subjected to discovery in the course of proceedings under the Act. Discovery in proceedings under the Act is no wider than discovery in any other proceedings. Sub-section 14(4) of the Act expressly states that the general powers of the Court with respect to discovery are not altered by the Act. The Act does not, therefore, effect any change in the general law relating to privilege. Further, it is undesirable to consider the question of privilege in the public interest in judicial review proceedings in isolation from privilege in the public interest generally. It is noted that this general topic has been referred to an Inter-Departmental Committee for consideration.

42. The Act may change the law relating to discovery in one respect. Although discovery is available in some judicial proceedings where relief is sought against public officials (e.g. in originating proceedings for declarations and injunctions) the availability of discovery was restricted when the application was merely for the issue of a prerogative writ. In proceedings under the Act, an application for discovery may be made (see Rules of the Federal Court of Australia, Order 4A rule 8), regardless of the terms in which the remedy is sought. This may result in a widening of the availability of discovery, and the Council regards that as desirable.

Review of Section 14 Certificate

43. In the Council's view, the present state of section 14 is unsatisfactory; in that no specific provision is made for review on the merits of the grant of the Attorney-General's certificate. If it is not dealt with immediately, this matter should be considered in the context of possible amendments to the Act after experience has been gained of its practical operation.

DECISIONS SUBJECT TO THE ACT

44. The Act is expressed to apply to decisions "of an administrative character made… under an enactment" (sub-section 3(1)). The width of this phrase requires detailed judicial elaboration. In order to consider which classes of decisions should be excluded from the Act, the Council has had to make an assumption as to the width of the phrase. The Council has proceeded upon the basis that the Court will give a wide construction to the phrase, that is, that the phrase may extend to the actions of statutory bodies and departments taken in reliance upon legislative authority, other than actions which are exercises of the judicial power of the Commonwealth or which constitute the making of legislation. If, as might be the case, the phrase were given a narrower construction by the Court, then some applications for exemption from the provisions of the Act would be unnecessary.

STANDING

45. Only persons who are aggrieved by a decision have standing to apply for an Order of Review or a statement of reasons. "Person aggrieved" is defined by sub-section (3) to include persons whose interests are adversely affected by a decision. This substantially represents the common law rules of standing, although those rules vary among the various procedures. The Act does not therefore significantly increase the dimension of standing to seek judicial review (though it is noted that the appropriate width of standing falls within the Law Reform Commission's current reference on Access to the Courts).

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PART II - GENERAL PRINCIPLES RELATING TO EXCLUSION

ACT TO APPLY WIDELY

46. The Act is expressed to apply generally. Every "decision of an administrative character made under an enactment" (other than a decision of the Governor-General) is subject to review under the Act unless it is expressly excluded by regulations. In contrast, a decision may be reviewed by the Administrative Appeals Tribunal only if a power of review has been conferred expressly. Thus, the Act applies widely and it would seem that cogent reasons are required to justify excluding a class of decisions from the beneficial operation of the Act.

BASES OF EXCLUSION FOUNDED UPON ACT'S CHANGES TO THE LAW

47. Unlike the Administrative Appeals Tribunal Act 1975 and the Ombudsman Act 1976, the Act does not introduce a new form of administrative review. As set out in paragraphs 14-19 the Act modifies existing judicial review. All the classes of decisions falling within the Act have hitherto been reviewable by the High Court of Australia, and State and Territory Supreme Courts. Hence, the principle of basic application is that if a class of decisions is to be excluded from this Act, the reasons for exclusion must be based upon propositions which clearly establish the undesirability of applying the Act to that class. by reason of the operation of one or more of the significant alterations which this Act makes to the law of judicial review (see paragraphs 14-19).

EFFECT OF EXCLUSION ON OTHER JUDICIAL REMEDIES

48. Sub-section 9(1) of the Act takes away from State Supreme Courts their present power to grant judicial review remedies with respect to Commonwealth officers save that they may grant the writ of Habeas Corpus. An exclusion of a class of decisions does not restore to State Supreme Courts the remedies taken away by sub-section 9(1). Thus, exclusion means that the only forum for judicial review of those decisions will be the High Court of Australia or (in the limited situations in which they are available) the Supreme Courts of the Territories. In his Second Reading Speech on the Bill, the then Attorney expressed the expectation that there would be need to resort to the processes of the High Court only in special circumstances (Commonwealth, Parliamentary Debates, House of Representatives, 28 April 1977, p.1396). The Kerr Committee took the view that original jurisdiction in judicial review should in practice be exercised by a court other than the High Court (Report of the Commonwealth Administrative Review Committee (1971) -paragraph 241). These views have been taken into account in determining appropriate exclusions from the Act. In particular, by restricting judicial review to the High Court (and in some cases, Territory Supreme Courts) exclusion may make physical access to judicial review more difficult and involve applicants in additional expense

TESTING THE FLOODGATES

49. Some Departments have suggested that the Act will precipitate a flood of applications for review, leading to delays. This flood may not in practice eventuate, and, if it does, an exclusion may be made quickly, although there may be difficulties in taking away a right which has been frequently availed of. If there is initial exclusion, there can be no experience upon the basis of which it may be determined whether the exclusion was in fact necessary. The justification for exclusion can never be tested in these circumstances, and it might be extremely difficult to remove an exclusion in such circumstances. In any event, if a high volume of litigation eventuates, this may be seen to be evidence that operation of the Act has a salutory effect in checking unlawfulness which may not otherwise be exposed. Where on the other hand, the Act is most unlikely to be invoked with respect to a class of decisions, the exclusion is not recommended unless any application under the Act would be unacceptable.

DECISIONS INVOLVING LARGE ELEMENTS OF POLICY

50. Some Departments have submitted that there should be exclusion of classes of decisions which involve large elements of policy. The reason for exclusion is said to be that in such classes of decisions application of the Act would permit the Federal Court to review Government policy. The reason advanced misconceives the operation and effect of the Act. Review under the Act extends only to the lawfulness of decisions (see paragraph 17). The Court is not concerned with Government policy except to the extent to which it produces unlawful administrative decisions. In this respect the powers of the Federal Court under the Act are no different from those of the High Court.

51. Accordingly, the presence of large elements of policy in the making of a class of decisions is not a ground for exclusion from the Act. This argument does not relate to any significant change in judicial review effected by the Act (see paragraph 47).

ADEQUATE ALTERNATIVE AVENUES OF REVIEW

52. Some Departments have submitted that the existence of adequate alternative avenues of review is relevant to determining whether classes of decisions should be excluded from the Act. Review under the Act relates only to lawfulness,whereas alternative remedies suggested as adequate (such as appeals to the Administrative Appeals Tribunal) generally relate to the merits of the decision in question. While an individual may regard review on the merits as more desirable than judicial review in most situations, there will be cases in which judicial review is preferable.

53. The argument based on alternative remedies must also be considered in the light of paragraph 12(2)(b) of the Act which authorises the Court to refuse a remedy where there exists an adequate alternative remedy. The Federal Court may be expected to use this power to ensure that its jurisdiction does not cut across other review processes more appropriate in the circumstances.

54. Judicial review by the Federal Court is part of a comprehensive administrative review structure which includes the Administrative Appeals Tribunal and the Ombudsman. There can be an overlapping of jurisdiction of the three review bodies in some areas. But this is an integral part of the structure (see, for instance, paragraph 10(1)(b) of the Act which recognises parallel jurisdiction of the Federal Court and the Ombudsman), and the three avenues of review can operate consistently. Accordingly, the existence or non-existence of review by the Tribunal or Ombudsman is neutral in any argument based on alternative remedies, and does not justify any exclusion from the Act.

55. Judicial review is a basic remedy in administrative review, for it is the primary means of ensuring that administrative action is subject to the rule of law. Hence, the existence of an alternative remedy is not itself a substitute for judicial review. Generally speaking an alternative remedy becomes relevant only where there are other principles which support exclusion from the Act and where the alternative remedy could properly be regarded as compensating for the consequences of exclusion.

THE NEED TO MAKE DECISIONS IN URGENT OR EMERGENCY CONTEXTS

56. Certain departments have suggested that some classes of decisions, which are often made in urgent or emergency contexts, should be excluded. A typical example of decision-making in an emergency context is where food is alleged to be a health hazard. The characteristic of these decisions is that delay in making the decision or taking action to implement the decision may destroy the value and purpose of the decision itself.

57. Interlocutory injunctions preventing the making or implementation of these decisions are extremely rare and the attitude of the courts has been to hold that justice may be done, where necessary, by remedies available subsequent to the making or implementing of such a decision. The Act does not alter the rules relating to interlocutory injunctions and a request for a statement of reasons or an application for an Order of Review does not operate as a stay which prevents the making or implementing of a decision. Nor would a request for reasons lead to a delay of implementing a decision in practice since the reasons need not be given for 14 days and on occasions where a decision must be implemented quickly, it is quite proper for the decision-maker to act before giving a statement of reasons. The Act does not, therefore, alter the law or approach to be taken with respect to these classes of decisions.

58. The urgent or emergency context in which some classes of decisions are made is not a ground for exclusion since the significant changes made by the Act do not alter the law or practice with respect to the decisions.

INTER-GOVERNMENTAL AUTHORITIES

59. It has been submitted that authorities established jointly by Commonwealth and State Governments (e.g. the Joint Coal Board) or Commonwealth and foreign Governments (e.g. the Anglo-Australian Telescope Board) should not be subject to the Act. The decisions of these authorities are subject to the Act only where the relevant decisions are made under a Commonwealth enactment. Such decisions of these authorities are currently subject to judicial review and exclusion from the Act would not exempt them from judicial review, but merely restrict the forum of review to the High Court or, in limited cases, the Supreme Courts of the Territories. Such a restriction is not appropriate. Further the changes made by the Act do not render review under the Act any less desirable than review at common law. Accordingly, the inter-governmental nature of an authority is not a basis for excluding its decisions from the Act.

POWERS EXERCISED BY STATE OFFICIALS

60. Decisions made by State government officials under powers conferred by Commonwealth law fall within the terms of the Act. Pursuant to section 9, exercises of those powers cannot be reviewed by State courts. The content and availability of a right to seek review of a decision made pursuant to a Commonwealth enactment should be uniform throughout Australia. The incidental fact that decisions are made by State officials exercising Commonwealth powers is not a ground for excluding those decisions from the Act.

CONSULTATIVE AND ADVISORY AUTHORITIES AND AUTHORITIES NOT DEALING DIRECTLY WITH THE PUBLIC

61. Some departments have suggested that bodies which do not deal directly with the public, or act in a consultative or advisory capacity are inappropriate to be subject to judicial review under the Act. Where authorities do not make decisions affecting a person's interests, then no person would have standing to make an application under the Act. Where a consultative or advisory authority does not make decisions of an administrative character its decisions will not fall within the terms of the Act. The Act only applies to recommendatory bodies if an enactment provides for the making of a report or recommendation before a decision is made. In so far as these authorities both fall within the terms of the Act and their decisions affect the interests of members of the public, then there should be an avenue of judicial review and none of the changes effected by the Act makes judicial review under the Act any less desirable than judicial review by the High Court. Therefore, the fact that authorities exercise powers of a consultative or advisory nature, or do not deal directly with the public does not form a basis for exclusion from the Act.

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PART III - DECISIONS UNDER ENACTMENTS ADMINISTERED BY DEPARTMENTS WHICH HAVE ADVISED THAT THEY SEEK NO EXCLUSIONS

62. Departments within this class are:

Department of Aboriginal Affairs
Department of Construction
Department of-Industry and Commerce
Department of Primary Industry
Department of Social Security
Department of Special Trade Representative
Department of Veterans' Affairs

No recommendation is made for the exclusion of decisions or classes of decisions made under enactments administered by those Departments or authorities for which the Ministers of those Departments are responsible. The Council has relied on Departmental advice and has not given consideration to the exclusion of these decisions (see paragraph 3).

(Amdt. 1 10/11/78)

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PART IV - DECISIONS UNDER ENACTMENTS ADMINISTERED BY DEPARTMENTS WHICH HAVE NOT PROVIDED ADVICE AS TO EXCLUSIONS

63. The Minister for Employment and Industrial Relations has referred the question of exclusion of decisions under the conciliation and arbitration legislation to the National Labour Consultative Council. The Departmental submission will await the advice of that Council. However,the Council makes a tentative recommendation (see paragraphs 124-125). Mr Justice Kirby takes no part in the recommendation in so far as it relates to the Conciliation and Arbitration Commission - see paragraph 125).

64. No communication has been received from the Department of National Development, although the Council has been advised that officers of the Department have held discussions with officers of the Attorney-General's Department on the subject.

(Next paragraph is 66)

66. The Council makes no recommendation for the exclusion of any of the decisions falling within the ambit of paragraph 64: but recommends that any departmental submission received subsequent to this Report should be referred to Council for its recommendation and that no exclusions should be made pending Council's further recommendation.

(Amdt. 1 10/11/78)

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PART V - CLASSES OF DECISIONS SUGGESTED FOR EXCLUSION BY SEVERAL DEPARTMENTS

67. Four classes of decisions have been submitted for exclusion by several departments. These are:

(a) decisions made by statutory authorities in competition with private enterprise;
(b) decisions related to the administration of justice;
(c) employment decisions (other than those relating to conciliation and arbitration);
(d) decisions relating to conciliation and arbitration.

Each of these will be considered in general terms.

COMMERCIALLY COMPETITIVE STATUTORY AUTHORITIES

68. There must be jurisdiction in a court to review the lawfulness of decisions by these statutory authorities. If the High Court now has and will have that jurisdiction, the Act affects the decisions of these authorities in the same way as it affects the decisions of the departments of government. If the High Court does not have that jurisdiction, it is essential to vest it in the Federal Court consequent upon its being divested from the Supreme Courts of the States (s.9).

69. The following statutory authorities have been suggested for exclusion on the ground that they are commercially competitive:

Australian Industry Development Corporation,
Australian National Airlines Commission,
Australian National Railways Commission,
Australian Shipping Commission,
Canberra Commercial Development Authority,
Commonwealth Banking Corporation (and constituent Banks),
Commonwealth Serum Laboratories,
Health Insurance Commission (under s. 8A of its Act)
Housing Loans Insurance Corporation,
Reserve Bank of Australia.

70. The Commonwealth Banking Corporation and its constituent Banks, the Australian National Airlines Commission and the Australian Shipping Commission have been excluded from the operation of the Ombudsman Act. This is not a significant precedent for the following reasons:

(a) the nature of the Ombudsman's functions are so different from the functions of judicial review that there is no proper analogy;
(b) the Ombudsman Act introduced an entirely novel form of review, whereas the Act simply modifies an existing form of review;
(c) the jurisdiction of the Ombudsman is presently under review by the Council as a result of the 59th Report to the Senate.

Amdt 2 15/12/78

Standing Committee on Regulations and Ordinances which took the view that these authorities should be subject to the Ombudsman with respect to their administrative as distinct from their commercial activities.

71. The submissions that the statutory authorities be excluded from the Act advanced the following arguments:

(a) subjecting the authorities to the Act places them at a disadvantage as against their competitors;
(b) information disclosed in statements of reasons for decisions could be made available to competitors, or publicised to the detriment of the authority;
(c) competitors could utilise review proceedings under the Act deliberately to delay and hamper the activities of the authority. In many commercial situations, prompt and definite action is essential. Review proceedings could create delay and uncertainty;
(d) the structure of the authorities, the need for them to have regard to commercial considerations and their separation from government, distinguishes their decisions from decisions taken by central government, for which the Act is primarily designed;
(e). a person is not affected by a decision of an authority to the same extent that he is affected by a decision of government since a dissatisfied customer of an authority can obtain similar services from another source;

(f) as a matter of commercial practice, reasons for decisions are given on request in the majority of cases. However, there are some instances where the giving of reasons would be inappropriate, and the authorities would not wish to be compelled to give reasons in all cases;

(g) it is vital that the authorities be seen to be at arm's length from the Government in order that they can compete effectively. This is particularly significant in relation to the international operations of the Australian Shipping Commission and, to a lesser extent, the Commonwealth Banking Corporation where commercial partners appear concerned at the possibility of the Government obtaining confidential information from the authorities;

(h) it is the policy of the Parliament to place these authorities on all fours with private enterprise - as evidenced recently when the authorities were made subject to the Trade Practices Act.

72. The main arguments against exclusion which were put to the Council are:

(a) the authorities are Commonwealth instrumentalities. They are created by, and operate under Commonwealth law. They should, therefore, be subject to judicial review in the same way as other Commonwealth bodies. (See also paragraph 68);

(b) the authorities are not on all fours with their competitors. In some instances they enjoy advantages not enjoyed by their competitors (e.g. access to loan funds). They are not subject to the usual kind of shareholder discipline;

(c) confidential commercial information need not necessarily be disclosed in statements of reasons under the Act (see paragraphs 32-40);

(d) in many instances a person has no real freedom of choice and must deal, or continue to deal, with the authority;

(e) the extent to which the authorities are seen by outsiders to be related to government will not be affected by their inclusion or exclusion under the Act.

73. The Council is unanimously of the view that authorities which cannot truly be said to be commercially competitive should not be excluded. However, members are divided in their opinions as to whether truly commercially competitive authorities should be excluded. The Council, by a narrow majority, recommends against such an exclusion. The minority, are in turn divided as to the extent of the exclusion which they would recommend, some members being of the view that only decisions in areas of competitive activity should be excluded while others being of the view that if an authority could on the whole be regarded as competitive, all its decisions should be excluded.

DECISIONS RELATED TO THE ADMINISTRATION OF JUSTICE

74. The Attorney-General's Department is the Department primarily involved in making decisions related to the administration of justice. However, various other Departments do have functions relating to the investigation and prosecution of offences (e.g. Business and Consumer Affairs - customs law enforcement).

75. The most significant areas of decision-making in the investigation and trial of criminal offences may be categorised broadly as follows:

(a) Investigation. Decisions taken in this area are:

(i) to commence an investigation;
(ii) to interview a witness or informant;
(iii) to appoint investigators and inspectors under statutory powers - for example, under the Companies Ordinance of the Australian Capital Territory;
(iv) to issue search warrants and analogous warrants under the Customs Act and other legislation; and
(v) to require the production of documents, the giving of information and to summon persons as witnesses

(b) Arrest. Decisions may be made to arrest a suspect with or without a warrant;

(c) Decision to Prosecute. In some areas, the formal consent of a Minister or departmental head is required before a prosecution can be launched, although in general this decision is non-statutory. In the normal course of events the decision to prosecute will lead to an application for a summons or a warrant, followed by a committal proceeding or summary trial. There is also statutory provision for the Attorney-General to file an indictment;

(d) Bail Applications. Decisions relating to bail are made both by courts and non-judicial officers. There are established judicial avenues for appeal against a decision to refuse bail;

(e) Summary Trial. The case is heard to its conclusion by a magistrate;

(f) Committal Proceedings. The magistrate has to determine whether the accused has a case to answer. In the course of this inquiry, other questions relating to jurisdiction and whether the information discloses an offence known to the law, may need to be resolved;

(g) Decision to File a Nolle Prosegui. The Attorney-General has statutory power to apply to the court to have proceedings on indictment terminated;

(h) Trial on Indictment. The case is heard to its conclusion by a judge and jury;

(j) Appeal. The appeal is heard and determined by an appellate court;

(k) Parole. Release on Parole is ordered by the Governor-General on the recommendation of a Minister.

76. There is doubt as to the extent to which these decisions will be held by the Federal Court to be "of an administrative character" and therefore subject to the Act. If the approach of the Victorian Supreme Court in determining the jurisdiction of the Victorian Ombudsman is followed, it would seem that most, if not all, of these decisions will not be subject to the Act. For the purposes of this report, however, it will be assumed that all decisions other than decisions in the course of a summary trial, a trial on indictment or appeal would be subject to the Act unless excluded (see paragraph 44).

77. The arguments advanced to the Council in favour of excluding this area, are:

(a) the Act may be utilised to hamper and frustrate the -proper investigation and prosecution of offences;
(b) the obligation to give reasons may necessitate the premature disclosure of information to the prejudice of an investigation;
(c) there are adequate existing safeguards established to strike the right balance between the law enforcement agencies and the citizen - a balance which should not be disturbed by an Act which is not directed at criminal investigation;
(d) it is inappropriate to subject law enforcement officers who are engaged in criminal investigation and prosecution to the obligations of the Act, particularly the obligation to give reasons; and
(e) most of the decisions lead to the matter being brought before a court and there are extensive appellate processes.

78. The arguments advanced to the Council against excluding this area, are:

(a) The availability of the rights created by the Act will not unduly increase the opportunities to hamper the due investigation and prosecution of offences since:

(i) the grounds of review under the Act are substantially the same as those which exist at common law; and
(ii) the Attorney-General has sufficient power under s.14 of the Act to prevent the premature disclosure of information by the issue of a certificate.

(b) The fact that most of the decisions under discussion lead to a matter being brought before a court and the further fact that there are extensive avenues of appeal within the court system, do not justify exclusion. First, appeals are not available in respect of all relevant decisions and in respect of those decisions which are appealable, the Federal Court can be expected properly to exercise its discretion under sub-paragraph 10(2)(b)(ii) of the Act to refuse relief. Secondly, the fact that the relevant decisions may be preliminary to a judicial decision at a trial is irrelevant, since the preliminary decisions of themselves can cause great harm to individuals over and above the harm that may be done by the trial process. That harm will not be eradicated by an eventual acquittal. The recognition of the potentially harmful effect which such preliminary decisions can have is already found in sub-section 3(3) of the Act, which assimilates reports and recommendations to the decisions made consequent upon them.

(c) Concern about the subjection of courts to the Act is misplaced, since courts do not make decisions "of an administrative character". So far as decisions made by justices are concerned, if it is suggested that their status renders it inappropriate for them to be subject to the Act, the suggestion is unconvincing. Furthermore, with specific reference to the obligation to give reasons under s.13 of the Act, it cannot be said that this is an inappropriate obligation to be placed on justices. At least in recent times they have undertaken such an obligation and it is desirable that they should continue to do so. Reasoned justice is a well established feature of the administration of justice in Australia.

(d) The relevant decisions are of the kind which the courts have traditionally been -loathe to intervene in. Yet there are compelling reasons why courts should not deny themselves the power to do so in appropriate cases. These reasons are discussed in Davis 'Discretionary Justice' 1969, Ch. VII. The Federal Court should be trusted to decide for itself the extent to which judicial review in this area is or is not appropriate. Exclusion of the decisions will prevent the Federal Court from following the lead which is even now being given in other British Commonwealth Courts, notably in New Zealand.

79. The members of Council are divided in their views on the exclusion of decisions in this area. The Council, by a majority, recommends that all the classes of decisions set out in paragraph 75 of this Report, other than categories (a)(iii), (iv) and (v), be excluded. That is, the Council recommends that all decisions related to the administration of criminal justice (including the investigation and prosecution of person for any offence against a law of Commonwealth) other than:

(a) appointments of investigators and inspectors under statutory powers - for example, under the Companies Ordinance of the Australian Capital Territory;

(b) the issue of search warrants and analogous warrants under other legislation;

(c) decisions to require the production of documents, the giving of information and the summoning of persons as witnesses;

be excluded.

80. Two members of the Council would not recommend any exclusions in this area, and all members of the Council are of the view that the discretion to prosecute should be considered with a view to possible reforms. Possible reforms include specification of the criteria for the exercise of the discretion, limitation of persons who may exercise the discretion, or the introduction of some avenue for review of the exercise of the discretion.

EMPLOYMENT DECISIONS OTHER THAN THOSE RELATING TO CONCILIATION AND ARBITRATION

81. Decisions in this area may be sub-divided into two classes: (1) decisions administered by the Public Service Board and (2) other decisions.

Decisions administered by the Public Service Board

82. Decisions taken under the Public Service Act may be categorised as follows:

(a) Decisions not directly relating to particular individuals

(i) General management,
(ii) Arbitral processes.

(b) Decisions directly relating to particular individuals

(i) Recruitment and appointment,
(ii) Promotion and promotion appeal,
(iii) Discipline,
(iv) Re-integration,
(v) Appointment of 1st Division and Statutory officers,
(vi) Decisions under sundry legislation.

83. Before considering these categories detail, certain general observations which have been made by the Public Service Board concerning these classes of decisions should be noted. The first is that public servants have adequate alternative remedies in the form of appeal on the merits. Secondly, it is suggested that the additional benefits granted by the Act would be outweighed by the administrative problems involved in applying the Act, largely (the Board's third observation) the burden of providing statements of reasons. Fourthly, the Board observed that there had been very little judicial review litigation in the past and that this is consistent with the Board's belief that by and large, current review processes are accepted as fair and equitable by staff and management alike.

84. The existence of alternative remedies is not itself a sufficient ground for exclusion (see paragraphs 52-55). The administrative burden of the Act has been considered in formulating these recommendations. As to statements of reasons, see paragraphs 20-31. The absence of judicial review litigation in the past does not of itself suggest that the Act should not apply.

85. There is an argument that public servants already have considerable advantages over private sector employees in the regulation of their employment and that this Act would further widen these differences. It has been argued further that the Act is intended to regulate the citizens' avenues of review of administrative decisions - not internal Public Service review processes. The contrary argument is that public servants as citizens are entitled to the benefit of rights conferred on the public generally, and that this Act is intended to regulate the review of the exercise of all statutory powers and discretions.

86. The Council has had the benefit of consultation with relevant union councils which were of opinion that in principle there should be no exclusions from the Act in the employment area. The Council of Australian Government Employees Organisations was, however, of opinion that, given the plans for revised grievance and other procedures, it is appropriate to exclude decisions as to appointment, promotion and promotion appeals for a. specified limited time.

(a) Decisions under the Public Service Act not directly affecting individuals

(i) General Management

87. This class of decisions covers a very wide range and includes such matters as determinations of age limits, appropriate qualifications, the creation, abolition and classification of positions, etc.

88. In addition to the administrative burden of giving reasons (see paragraph 83) submissions made by the Board in support of the exclusion of this area are threefold: the inappropriateness bf individuals being able to seek reasons, that the absence of an existing appeal right is based on the inappropriateness of review, and that these decisions are part of the Board's function of overall management and so are inappropriate for review.

89. In relation to the giving of reasons, a person is only entitled to reasons under the Act if he can establish that his interests are affected by the decision. In some cases there may be no individual who could satisfy this requirement but, where there is a person whose interests are affected, he should be entitled to a statement of reasons.

90. Secondly, the Board submitted that the absence of an existing appeal right is based on the inappropriateness of review of these determinations. In relation to the appropriateness of review, there is a distinction between review on the merits and review on the grounds of illegality. Whilst it may well be that a review on the merits is inappropriate in relation to this class of decisions it does not therefore follow that judicial review of an allegedly unlawful determination is inappropriate. Here, review of lawfulness is appropriate, and the appropriateness of review on the merits is irrelevant.

91. Thirdly, the Board submitted that these decisions fall within its function of overall management of the Public Service. In performing this function, the Board must have regard to the duties imposed by section 17 of the Public Service Act, namely, to devise means for effecting economies and promoting efficiency in the management and working of departments, and generally to oversee the economical and efficient working of the Public Service.

92. In carrying out these functions the Board has regard to Government policy. This is particularly significant in times of economic restraint where decisions relate to the structure and organisation of particular departments, they are often arrived at after lengthy negotiation with the relevant departmental head. These considerations arise in particular when the Board is formulating its recommendations to the Governor-General under section 29 of the Public Service Act, concerning creation, classification and abolition of offices.

93. General management determinations may well have a very significant impact on an individual (e.g., the specification of particular qualifications for a post, or a particular age limit). The Board accepts that there should not be exclusion of decisions applying these determinations to individuals, but there is no merit in distinguishing between general determinations and the application of those determinations to individuals since the impact on the individual is likely to be similar in both cases.

94. Members of the Council were divided in their opinion as to exclusions in this area. Some members took the view that as a matter of general principle the Act should not apply to Public Service employment decisions. Other members were of opinion that decisions under section 29 of the Public Service Act could be distinguished from other decisions in this area on the ground that the obligation to state reasons is inappropriate for decisions under section 29 and that in many cases the relevant considerations would not be justiciable. However, a majority was of the view that Public Service employment decisions should not be excluded generally, and on that basis a majority was of the view that decisions under section 29 could not properly be distinguished. The Council recommends that there be no exclusions in this area.

(ii) Arbitral Processes

95. This category relates to decisions of the Board itself, as distinct from decisions of separate arbitral bodies established by statute such as the Conciliation and Arbitration Commission and the Public Service Arbitrator. The Council has made a tentative recommendation relating to these separate arbitral bodies (see paragraphs 124-125).

96. The Board itself has functions relating to determination of wages and conditions of service. Under sections 8A and 8B of the Public Service Act, for instance, the Board determines the terms and conditions of employment of exempt officers and officers serving overseas. The Board has submitted that these determinations are analogous to the determinations of the formal arbitration bodies and should be treated in the same way.

97. This analogy is not accepted for two reasons. First, the Board's determinations are not made after an adversary-style hearing before an impartial adjudicator and, secondly, they are not generally made against the background of an industrial dispute.

98. The Board also engages in negotiation processes with staff associations and enters into "agreements" with these associations outside the formal arbitration processes. The right to obtain statements of reasons would not undermine the existing balance in these negotiations, which has been developed with the support of both the Board and the employee organisations.

99. It is recommended that there be no exclusions in this area.

(b) Decisions directly relating to individuals

(i) Recruitment and appointment

100. The Board's reasons for seeking exclusion of this area were that the right to complain to the Ombudsman is an adequate remedy, and the possible workload involved in providing statements of reasons would be too onerous.

101. In relation to the first reason the existence of review by the Ombudsman is neutral in determining whether an area should be excluded (see paragraph 54).

102. In relation to the second reason, it is noted that although there are 50,000 applicants for appointment each year, this is one area where a pro forma for reasons might be used to advantage (see paragraph 24). The Ombudsman's office has advised that it estimates that complaints against the Public Service Board in respect of decisions taken in this area did not exceed 4 or 5 in the Ombudsman's first 12 months of operation. This tends to indicate that the Board's fears as to workload may not materialise.

103. It is recommended that there be no exclusions in this area.

(ii) Promotion and promotion appeals

104. It is in this class of decisions that the burden of providing statements of reasons will be at its greatest. There are several tens of thousands of officers who fail each year in their applications for promotion. Since public servants are likely to be well aware of their rights under the Act, it may be anticipated that a very large number of requests for statements of reasons may be sought. Further, the entire promotion process involves a multiplicity of decisions and decision-makers, and therefore the Act would create the potential to seek statements of reasons at various stages of the process. Thus, decisions relating to the advertisement of a position, the persons to be considered for the promotion, the persons to be interviewed, etc., could be subject to requests for reasons.

105. It is argued by the Public Service Board that the burden 6f providing reasons will be very considerable. However, this burden may not be so great as may be thought since it must be seen against the background of existing practice and the Board's policy of encouraging better selection processes. In particular, it is noted that:

(a) the recording of material setting out reasons for the decision of a selection committee is understood to be a common practice which is actively encouraged by the Board;

(b) where an appeal is lodged the department concerned must prepare a statement of reasons for its recommending the appointment made;

(c) it is the Board's policy to have department’s counsel unsuccessful applicants as to the reasons for their failure to be promoted;

(d) when promotion appeal committees make recommendations to the Board their practice is to provide reasons in support of their recommendations; and

(e) when promotion appeal committees determine appeals, the reasons supporting their decisions should be ascertainable.

106. The promotion decision cannot be considered in isolation from the existence of a right of appeal therefrom. This right of appeal may be argued to be either an internal remedy which, as a matter of policy, public servants should be required to avail themselves of prior to seeking redress from the Federal Court, or, as an adequate alternative remedy justifying exclusion of the promotion decision from the Act.

107. An obligation to exhaust internal remedies in every case prior to using the Acts' processes is not desirable because in many situations the object of applying to the Court is to prevent the internal process progressing further. The right to a statement of the reasons, and grounds (f) and (h) of the Act are of importance in relation to promotion decisions. Also, it may sometimes be the case that an individual. is best served by applying to the Court after the promotion decision but prior to any appeal process being undertaken, so that if the decision is set aside the selection may be re-made by a differently constituted committee which may provide the individual with a fairer decision.

108. The promotion appeal process may also be argued to be an adequate alternative remedy (see paragraphs 52-55). The right of appeal extends not only to unsuccessful applicants but also to non-applicants, and the appeal process is of a character halfway between re-selection without giving weight to the original decision and an appeal in which the original decision must be shown to be wrong. Determination of the adequacy of the promotion appeal process as an alternative remedy turns on whether a person aggrieved for one of the grounds set out in section 5 of the Act is sufficiently protected by the appeal process to justify exclusion of the promotion decision from the Act. There exists at present no right in an unsuccessful applicant to a statement of the reasons for the promotion decision. Some grounds of review are such that, appeal will not cure the alleged defect in the promotion decision or produce a sufficiently fair final decision. Accordingly, the appeal process does not constitute an adequate alternative remedy.

109. The Board was concerned at the possibility of review under the Act being used at various stages to stop or at least slow down the promotion process. This could be most unsatisfactory in a multi-appeal situation. The powers of the Court with respect to abuse of its process should be adequate to prevent this occurring.

110. The Board also expressed concern that litigation could have a very significant effect on present processes. For example, if an applicant not short-listed was able to convince the Federal Court that he had been denied natural justice, officers concerned with promotion may react by interviewing a much higher proportion of applicants, which would generally slow down the process.

111. It is understood that officers of the Board have commenced discussions with officers of the Attorney-General's Department with a view to the preparation of' a suitable pro forma for statements of reasons by promotion appeal committees. A tentative pro forma has already been prepared. Alterations may be required, some with a view to administrative practice, and others, no doubt, in line with decisions of the Federal Court concerning section 13 of the Act. The Board is also experimenting with various forms and methods of recording the reasons of promotion appeals committees, and will be in a better position adequately to deal with an obligation to provide reasons as a result of these experiments.

112. The Council of Australian Government Employees Organisations has suggested that the Act be phased into this area over a period of time - that is, there be a temporary exclusion on the clear understanding that changes are to be made in procedures in order to enable the Act to be implemented at some definite time in the future.

113. As a matter of principle, this area should not be excluded permanently from the operation of the Act. However, considering that the Board has already moved in the direction of changing its procedures and that this is the area most likely to increase the workload and where the speed of decision-making may be significantly affected, a cautious approach along the lines suggested by CAGEO is appropriate.

114. Accordingly, it is recommended that all decisions under the Public Service Act relating to promotions and promotion appeals be excluded from the operation of the Act for a period of 12 months from the commencement of the Act.

(iii) Discipline

115. Representatives of the Board have conceded that in this area their submission for exclusion is at its weakest. They accepted that there should be an obligation to state reasons in this area, and a Bill imposing such an obligation is currently before the Parliament. It was suggested by the Board's representatives that this Bill, if enacted, would provide an adequate remedy in this area when coupled with general rights of appeal under Public Service Regulations 6 and 33.

116. As a general principle, the recommendations in this Report are not based in legislation which is not yet enacted. It seems clear that the rights of appeal provided under the Public Service Regulations are not an adequate substitute for judicial review, since review of the Board's decision is by the Board itself, and must await conclusion of the initial proceedings (that is, there is no mechanism for terminating unlawful proceedings).

117. It is recommended that there should be no exclusion of disciplinary decisions from the Act. Disciplinary powers are important powers which affect individuals seriously; and the; rights of individuals to seek judicial review of these decisions should not be reduced. The provisions of the Act are particularly valuable in this context.

(iv) Re-integration

118. Decisions in this class are very closely related to decisions to appoint, or recruit staff. They differ, however, from that class because the usual grievance of an individual relates to the application of rights under various pieces of legislation other than the Public Service Act. There may be an appeal right pursuant to the general rights conferred by regulations 6 or 33 of the Public Service Regulations but this is not an adequate alternative remedy for reasons set out in paragraph 116 above. Also, there, are likely to be fewer decisions made in this class than in the appointment or promotion areas. Accordingly, the burden of providing reasons in this class of decisions is not seen to be excessive. It is unlikely that there will be many applications for Orders of Review made with respect to this class of decisions. At common law the courts will not order that an individual be employed in a specific position and there is nothing in the Act to suggest that the Federal Court would take a different view. It is recommended that this class of decisions should not be excluded from the Act.

(v) Appointment of First Division and Statutory Officers

119. The Board's argument for exclusion in this area is basically that appointments at this level are not made exclusively on merit but on the basis of various sensitive and diverse considerations, so that it is inappropriate for decisions at this political level to be subject to review or to the obligation to state reasons.

120. The Act will not apply to appointments made by the Governor-General. But in respect of those appointments or recommendations to which the Act does apply distinctions between appointments and recommendations at this level and appointments generally are not such as to justify exclusion from the Act. In these cases, there is no basis for denying a person aggrieved by a decision in this area the right to seek a statement of reasons in the unlikely event that he would wish to do so.

(vi) Sundry legislation

121. Decisions under various other pieces of legislation administered by the Board (e.g., Officers' Rights Declaration Act, maternity leave legislation, long service leave legislation, etc) - have not been examined by the Board with a view to exclusion. It would not seem that there are any special considerations relating to decisions under this legislation which would justify distinguishing them from decisions taken under the Public Service Act. It is recommended that there be no exclusions in this area.

122. It is recommended that there be no exclusion of decisions in the Public Service employment area other than decisions relating to promotions and promotion appeals, which are recommended to be excluded for a period of 12 months from the commencement of the Act only.

Employment Decisions not Regulated by the Public Service Board.

123. The Public Service Board does not have sole responsibility for the employment of persons for Commonwealth Government purposes. There is a considerable number of statutory authorities which have varying degrees of autonomy with respect to recruitment, appointment, promotion and discipline. Some of the authorities (notably the larger authorities) have evolved review systems which are very similar to those used by the Public Service Board, but there is still a significant number of authorities which do not have adequate appeal or review processes. It is recommended that employment decisions made by those authorities which do not have adequate appeal or review processes should not be excluded from the Act. However,where the authority does have promotion appeal processes analogous to those existing under the Public Service Act it is recommended that the authority should have the option of excluding its promotion and promotion appeal processes from the Act for the first 12 months of the Act's operation.

DECISIONS RELATING TO CONCILIATION AND ARBITRATION

124. The Minister for Employment and Industrial Relations has referred the question of the exclusion of this class of decisions to the National Labour Consultative Council. The Council has not received any submissions prior to making this report. However, Council makes a tentative recommendation for exclusion of the decisions of the Conciliation and Arbitration Commission itself (i.e. not Industrial Registrars or Deputy Industrial Registrars), the Public Service Arbitrator or a Deputy Public Service Arbitrator, the Coal Industry Tribunal, and the Flight Crew Officers Industrial Tribunal. This view derives in part from the historical development of the role of the High Court in judicial review of decisions of the Commission and analogous bodies.

125. Mr Justice Kirby took the view that he should not participate in the formulation of a recommendation in this area because he is a member of the Conciliation and Arbitration Commission and accordingly he took no part in the Council's deliberations.

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PART VI - DECISIONS UNDER ENACTMENTS ADMINISTERED BY DEPARTMENTS WHICH HAVE ADVISED THAT THEY SEEK EXCLUSIONS

126. This part consists of an analysis by Departments of classes of decisions in respect of which exclusions have been sought, a summary of the reasons advanced in support of exclusion, and the Council's recommendations in relation thereto. The list is presented in tabular form in Attachment 1. It should be noted that the reasons listed are those advanced by the Departments and their inclusion in the list does not necessarily indicate Council acceptance of the validity of the arguments advanced.

DEPARTMENT OF ADMINISTRATIVE SERVICES

127. Decisions. All decisions of the Commonwealth Grants Commission.

Reasons:

(a) Commission is in a special position in the Federal structure involving the allocation of grants;

(b) because of this position, judicial review of the Commission’s decisions should only take place in the High Court; and

(c) it is not desirable for States to be able to challenge the recommendations or findings of the Commission in the Federal Court.

128. Recommendation. The Council recommends the exclusion of decisions relating to the allocation of funds. The Commission is in a very special position in the Commonwealth/State financial structure, standing between the Commonwealth and State and Local Governments in making recommendations concerning State Grants. Because of this, the Commission's decisions are appropriate to be reviewed only by the High Court of Australia. It is recommended that there be no exclusion of decisions of the Commission not involving the allocation of funds (e.g., a decision as to which local authority is to represent a region).

129. Decisions. All decisions of the Remuneration Tribunal.

Reasons:

(a) Act would place the Tribunal in an invidious position as salary fixing body;
(b) the Tribunal has been excluded from the Ombudsman Act and its decisions are not subject to review by the Administrative Appeals Tribunal;
(c) the Tribunal deals with sensitive material concerning very senior persons;
(d) the giving of reason for decisions would be extremely difficult and would be an impediment to decision-making;
(e) the status of the Tribunal; requires the Chairman to be a judge of a State Supreme Court;
(f) the Tribunal reports to Parliament which has a right of disallowance of a Tribunal decision;
(g) the Tribunal is analogous to conciliation and arbitration agencies; and
(h) the High Court is the only appropriate review body.

129A. Recommendation. No exclusion.

(a) difficulty in providing reasons for decisions is not sufficient for reason for exclusion;
(b) the possibility of Parliamentary disallowance on the merits is irrelevant to the obligation to conform to statutory requirements in discharging a statutory function;
(c) the tentative exclusion of conciliation and arbitration agencies are based on historical and industrial considerations appropriate only to the Conciliation and Arbitration Commission;
(d) the status of the person with whose salaries the Tribunal is concerned is not relevant to the provision of judicial review to require conformity to relevant statutory requirements; and
(e) the ACT Supreme Court, as well as the High Court, would appear to have judicial review jurisdiction in respect of the Tribunal. There is no feature of the Federal Court which makes it the inappropriate Court to exercise the jurisdiction to review. The Chairman of the Remuneration Tribunal is a judge of the Supreme Court of Queensland; in some original Federal jurisdictions, the Federal Court exercises an appellate jurisdiction from that court.

130. Decisions. All decisions of the Academic Salaries Tribunal. As certain arguments for exclusion of the Academic Salaries Tribunal are similar to those in relation to the Remuneration Tribunal as set out in paragraph 129, those arguments are noted below with reference to that paragraph.

Reasons:

(a) see 129(a)
(b) see 129(b)

(c) the status of the Tribunal as presently constituted, i.e. as a Deputy President of the Conciliation and Arbitration Commission
(d) see 129(f)
(e) see 129(g)
(f) it is desirable the Tribunal conduct an informal and free method of inquiry which could not be achieved under pressures of possible orders for review.

130A. Recommendation. No exclusion.

Mr Justice Kirby took no part in Council's consideration on this matter.

(a) see 130(b)
(b) see 130(c)

(a) there is no requirement that the Tribunal should consist of a judge, and the status of the present Chairman is by statute equivalent to the status of a Judge of the Federal Court.
(b) the fewer the procedural guarantees in an informal inquiry, the greater is the need for review.

Prosecution of persons for any offence against a law of the Commonwealth) other than:

i) Appointments of investigators and inspectors under statutory powers (for example under the Companies Ordinance of the Australian Capital Territory).
ii) The issue of search warrants and analogous warrants under the Customs Act and other legislation.
iii) Decisions to require the production of documents, the giving of information and the summoning of persons as witnesses. (See paragraphs 79-85).

Decisions: All decisions under the Australian Security Intelligence Organisation Act 1956, and the Telephonic Communications (Interception) Act 1960.

Reasons: The decisions involve national security.

Recommendation. Recommend exclusion. The Ellicott Committee recommended that decisions relating to national security should be considered for exclusion. Act confers a wide discretion in security matters on Director-General. Apart from decisions relating to employment in ASIO, the Act does not provide for the reviewing of decisions that directly affect the rights or interests of any person.

The Government has announced its intention to introduce legislation to establish a security appeals tribunal. Whatever may be the case with other statutory employment, decisions relating to employment in ASIO are not appropriate for judicial review, assuming that the Administrative Decisions (Judicial Review) Act is applicable.

137. Unlike the ASIO Act, decisions under the Telephonic Communications (Interception) Act may directly affect the interests of individuals. Nevertheless interception may only take place on a warrant issued on grounds of national security. It may be expected that any request for reasons for a decision to issue a warrant, assuming that the existence of such a decision became known, could be covered by a certificate under section 14 of the Administrative Decisions (Judicial Review) Act. Likewise, on application for judicial review it may be expected that privilege would be claimed in respect of any information sought concerning the issue of a warrant.

138. It is noted that it has been the inviolable practice of all Attorneys-General not to admit or deny that a warrant has been issued in any particular case. It would not be good administration to appear to give a right when, in fact, the exercise of that right will be blocked in all cases. Further, a grant of a certificate under section 14 may raise a presumption that a phone is being tapped.

DEPARTMENT OF BUSINESS AND CONSUMER AFFAIRS

139. Decisions. Under the following provisions:

Customs Act 1901

s.184 Commander or officer in charge of any ship or aircraft in His Majesty's service or in the service of the Commonwealth or Customs may fire at a ship or aircraft to compel her to land.

s.185 Officer may board ship, etc., examine passengers and require answers to

& questions.

s.195

s.186 Officer may open packages.

s.187 & Officer may board, search and secure any ship, boat or aircraft.

s.189 -

s.190

s.195 - Officer of Customs or police may detain and search a suspected person, 197A vehicles or carriages carrying petrol, etc.

s.199 Collector of Customs may issue Customs Warrant.

s.200 - Officer having Customs Warrant may search premises.

s.201

s.203 - Officer may seize and secure goods and exercise powers in relation to

209 goods seized.

s.210 - Officer may arrest persons suspected of smuggling.

212

s.214 - Collector may require production of and impound documents, require

218 further proof of proper entry, require translation of invoices or take samples.

Trade Practices Act 1974

s.155 Commission may issue notice requiring production of documents or furnishing of evidence.

s.164(4) Prosecutions not be brought except with Minister's consent.

s.156 Member of Commission may inspect.

Bankruptcy Act 1966

s.12 The Inspector-General shall make such inquiries as the Minister directs.

Companies Ordinance 1962

s.169(2) Minister may appoint inspectors to investigate affairs of companies.

s.169(4) Minister may cause inspector's report to be printed and published.

s.169(6) Minister may cause prosecution to be instituted or bring proceedings if it appears from inspector's report that a person is guilty of an offence.

Reasons:

(a) They are decisions in the conduct of investigations or enforcement of legislation, and
(b) statements of reasons for those decisions would be likely to reveal confidential information or information prejudicial to conduct of the investigation or enforcement.

140. Recommendation. The Council does not recommend any exclusions on the ground of the possible disclosure of confidential information (see paragraphs 32-43). By a majority, the Council does recommend the exclusion of all classes of decisions analogous to those recommended for exclusion in the administration of justice generally (see paragraphs 71-77). On this basis, of the statutory provisions suggested to the Council above, the following are recommended for exclusion:

Customs Act - Sections 184, 210-212

Trade Practices Act - Section 163(4)

Companies Ordinance - Section 169(6)

141. Decisions. Under the following provisions:

Trade Practices Act 1974

s.29 Minister may give directions to Trade Practices Commission.

s.163(4) Prosecutions not to be brought except with the Minister's consent.

Companies Ordinance 1962

s.169(6) Minister may cause prosecution to be instituted or bring proceedings if it appears from inspector's report that person is guilty of an offence.

Prices Justification Act 1973

s.7A Minister may appoint persons to be associate members of the Tribunal.

s.17 Minister may require Tribunal to enquire into and report on matter.

Industries Assistance Commission Act 1973

s.23 Power of Minister to refer matters to the Commission.

Cl.9 Amendment proposed for Industries Assistance Commission Act 1977 empowers the Minister to withdraw or amend reference.

s.26 Minister may request an enquiry by Temporary Assistance Authority.

s.30 Minister may take action for the purposes of prohibition or restriction of imports.

Customs Act 1901

s.271 Minister may make by-laws.

Bankruptcy Act 1966

s.12 The Inspector-General shall make such enquiries as the Minister directs.

Reasons:

(a) They involve issues of policy rather than being administrative decisions, and
(b) statements of reasons for these decisions would be likely to reveal confidential information.

142. Recommendation. Except for those decisions falling within the exclusions recommended for the administration of justice, (i.e., Trade Practices Act section 163(4), Companies Ordinance section 169(6)) no exclusion. As to policy decisions, see paragraphs 50-51, as to confidential information see paragraphs 32-42.

DEPARTMENT OF THE CAPITAL TERRITORY

143. Decisions. By the Chief Officer under the Fire Brigade Ordinance 1957 s.7 to take decisions at and immediately after a fire to protect life and property and to control and extinguish the fire.

Reasons:

(a) decisions are taken in crisis and danger and so cannot be compared with normal processes of decision-making; and

(b) the grounds of review and remedies are inappropriate in the context of quick action.

144. Recommendation. No exclusion. Reference is made to paragraphs 56-58 (urgent or emergency decisions). The nature of the discretions is such that detailed judicial review is unlikely and that many of the remedies would not be of value to an applicant. Apart from seeking reasons, individuals are unlikely to use the Act but will seek damages in the event of complaints about the conduct of officers.

145. Decisions. By the Police Commissioner under Police (Disciplinary Provisions) Ordinance 1972 sub-section 45(5) re-appointing officers previously dismissed.

Reasons: It is for the Commissioner himself to ensure that the highest standards are maintained in the Force and re-appointees must have Commissioner's confidence; it would not be acceptable for Court to order re-appointment.

146. Recommendation. No exclusion. To some extent this class of decisions is considered as part of the general area of employment decisions (paragraphs 81-123). The submission is based upon the likelihood of the Court forcing the Commissioner to accept an individual as a member of the force. While there are a number of instances when dismissal from a force has been held void so that a person remains in law a member of the force, there appears to be none in which an order has been made requiring that a person who is not at the time a member of the force be appointed. Common law remedies do not extend to compelling a particular exercise of a discretionary power and there is nothing in the Act to suggest that the powers of the Court under s.16 are more extensive in this respect.

147. Decisions. All decisions of the Canberra Commercial Development Authority.

Reasons: C.C.D.A. is a statutory authority in competition with private enterprise.

148. Recommendation. No exclusion. See paragraphs 68-73.

DEPARTMENT OF DEFENCE

149. Decisions. Decisions related to disciplinary proceedings within the Australian Defence Forces.

Reasons: A commanding officer is responsible for the maintenance of discipline within his command. Discipline and morale are inter-related and a unit lacking in either discipline or morale cannot function as an effective fighting unit. At present there is a complex system of checks and balances regulating discipline and morale within each arm of the Defence Force. The introduction of an external system of review would change the balance of these Systems, to the detriment of the efficiency of the Force.

150. Recommendation. Exclusion recommended. The Act would have a detrimental effect on the command relationship which is most important in the operations of a disciplined force.

DEPARTMENT OF EDUCATION

150A. Decisions. All decisions of the Australian National University.

Reasons:

(a) submission of the ANU to the Act would be to its disadvantage compared with other universities;
(b) submission to the Act is inconsistent with academic freedom;

Amdt. 1 10/11/78

(c) it was probably not the Government's intention that ANU should be subject to the Act.

150B. Recommendation. No exclusion. As to reason (a) other universities besides the ANU are statutory authorities and are subject to judicial review according to the law of the various States. The fact that the law of judicial review varies from jurisdiction to jurisdiction is not a basis for exclusion. As to reason (b) courts act merely in enforcement of the law, granting a remedy where there has been an unlawful action. Judicial review is consistent with academic freedom. As to reason (c) the Act contains no expression of legislative intention to exclude decisions taken under the various legislative provisions governing the ANU.

DEPARTMENT OF ENVIRONMENT HOUSING AND COMMUNITY DEVELOPMENT

151. Decisions. All decisions of the Australian Housing Insurance Corporation.

Reasons: In competition with private enterprise.

152. Recommendation. No exclusion. See paragraphs 68-73.

Amdt. 1 10/11/78

DEPARTMENT OF FINANCE

153. Decisions. Audit Act 1901 - s.32 concerning withdrawal of moneys in accordance with appropriation - s.36A concerning expenditure over and above that appropriated. Appropriation Acts (Nos. 1 and 2) - s.3 authorising the Treasurer to issue money from Consolidated Revenue.

Reasons: These decisions are internal to the Government and should not be reviewable.

154. Recommendation. Exclusion recommended.

These provisions relate to the internal financial arrangements within government and should therefore be excluded from the Act.

DEPARTMENT OF FOREIGN AFFAIRS

155. Decisions. All decisions under the Consular Privileges and Immunities Act 1972, the Diplomatic Privileges and Immunities Act 1967, and the International Organisations (Privileges and Immunities) Act 1963.

Reasons:

(a) decisions under these Acts relate to Australia's relations with foreign countries and international organisations and disputes in these areas should not be resolved by way of court action;

(b) decisions under these Acts do not affect ordinary Australians, - in nearly all cases the relevant personnel would be foreign nationals;

(c) judicial review- should not be facilitated by use of the Act; and

(d) the first two Acts are based on reciprocity and application of the Act may be inconsistent with reciprocity.

156. Recommendation. Exclusion recommended.

Reason (a) is accepted.

157. Decisions. Passport Regulations - rr.7,11 and 12 in so far as decisions are based on directions of foreign governments.

Reasons: These regulations relate to "British passports" which include both Australian passports and passports of Commonwealth Nations. In respect of non-Australian passports, powers are exercised on behalf of foreign governments.

158. Recommendation. Exclusion recommended. These regulations are simply facultative and are probably unnecessary. Where Australian officers are subject to the direction of foreign governments, it is inappropriate that their decisions be subject to the Act.

DEPARTMENT OF HEALTH

159. Decisions. Quarantine Act 1908:

s.12A that Minister may take action not otherwise authorised by the Act in emergency situations.

s.13A appointment by Minister of places as temporary quarantine stations.

s.35 power of quarantine officers to order persons into quarantine.

s.35A power of quarantine officers to order ships into quarantine.

s.48 power of quarantine officers to order destruction of goods where they cannot be effectively disinfected.

s.68 power of quarantine officers to seize, forfeit, and dispose of unlawfully imported goods.

s.68A power of quarantine officer to destroy animals not intended for import but not properly dealt with by masters of vessels.

Quarantine (Plant) Regulations - regulations 34A power of quarantine officers to enter and search premises.

Reasons: These decisions are often taken in emergency situations where prompt action is required to prevent the spread of disease; application of the Act may hamper prompt action.

160. Recommendation. No exclusion. See paragraphs 56-58.

160A. Decisions. Decisions of the Health Insurance Commission pursuant to its functions under section 8A of the Health Insurance Commission Act 1973.

Reason: The Commission, when conducting the operations of Medibank Private is in commercial competition.

160B. Recommendation. No exclusion. See paragraphs 68-73.

Amdt. 2 15/12/78

161. Decisions. All decisions under the Commonwealth Serum Laboratories Act 1961.

Reasons: The Laboratories are commercially competitive.

162. Recommendation. No exclusion. See paragraphs 68-73.

DEPARTMENT OF HOME AFFAIRS

163. Decisions. Christmas Island Industrial Relations Ordinance 1976 - all decisions of the arbitrator.

Reasons:

(a) Arbitrator has the same protection and immunity as a Judge of the Supreme Court; and
(b) his functions may be judicial and not administrative and so should not come within the Act.

164. Recommendation. No exclusion. Neither of the reasons advance is a proper basis for exclusion. It would further appear that the Arbitrator should not be considered as part of the general area of conciliation and arbitration since there is no appeal from his decisions, and there is no relevant existing privative clause.

165. Decisions. Archives Bill - a certificate establishing conclusively that records are those of the Governor-General, Cabinet or Executive Council. Decisions establishing conclusively that records are exempt records. Decisions on special accelerated release.

Reasons: Not advanced, but proposal made that much would depend on exclusion of the decisions under the Freedom of Information Bill, when enacted.

166. Recommendation. The Council notes that the Archives Bill has been presented to the Parliament) but is of opinion that any recommendation in this area should be made in conjunction with the recommendations relating to the Freedom of Information Bill and should await the passage of legislation.

167. Decisions. All those of the Australia Council.

Reasons: Decisions by the Council are subjective and it would be inappropriate to provide reasons.

168. Recommendation. No exclusion. The exclusion sought is on the basis of the content of statements of reasons. Even though the Australia Council takes a wide range of factors into account in exercising its discretion, the grounds upon which it makes it decisions should be capable of explanation in a statement of reasons. Experience in the operation of the Act should enable the Australia Council to develop a framework for such statements.

DEPARTMENT OF IMMIGRATION AND ETHNIC AFFAIRS

169. Decisions. Decisions under section 8 of the Migration Act relating- to diplomatic and consular representatives.

Reasons: Often these decisions-will be diplomatically sensitive and may be based on representations from foreign governments.

170. Recommendation. Recommend exclusion. These decisions are not made on migration considerations but are based on foreign relations considerations and the same principles apply as in decisions in the diplomatic accreditation area (see paragraphs 153-154).

171. Decisions. Decisions under sections 7, 8 (other than those referred to above), 16 and 18 of the Migration Act - i.e. decisions relating to cancellation, extension and the conditions of entry permits, exemption of persons from entry permit requirements, endorsement of entry permits in special cases, and deportation of prohibited immigrants.

Reasons:

(a) the burden of giving reasons would be substantial;
(b) decisions may be based on confidential information, which may have to be disclosed in proceedings under the Act;
(c) there is a danger that organised systems would be developed whereby rights of review would be abused to delay deportation until community ties (e.g. spouses, children) had been acquired to the extent that deportation would not be feasible. Canadian experience was submitted to support this proposition;
(d) review may involve the investigation of decisions made overseas, or information obtained from an overseas source;
(e) non-Australians have no right to the benefits bestowed by the Act.

172. Recommendation. No exclusion.

As to reasons (a) and (b), see paragraphs 20-42. As to reason (c) the Federal Court should be able to develop procedures to deal with this class of cases as expeditiously as possible, particularly if a pattern of frivolous or unmeritorious cases emerges. It does not accept the Canadian experience as wholly analogous, since the Appeal Board system referred to involved universal review on the merits which, coupled with the absence of a visa requirement and the permission of change of status within Canada, resulted in the problem mentioned. Judicial review of all immigration decisions continues to be available in Canada. Reason (d) does not create insuperable problems, and reason (e) is rejected in principle.

173. However, the strong motivation of individuals aggrieved by decisions in this area cannot be overlooked. The administrative burden of providing reasons in this area may therefore be particularly significant and the workload implications will need to be kept under constant review. Similarly, should a pattern of abuse emerge, speedy consideration should be given to exclusion.

174. Decisions. Decisions under section 6 of the Migration Act, i.e., grant of entry permits. In practice these decisions are made at the point of entry, on the basis of visas issued overseas or re-entry visas issued before the person left Australia. Approximately 250 persons are refused entry each year, either because they do not have a visa, or because of information which has come to light since the visa was issued.

Reasons: In addition to the reasons advanced above in relation to decisions under section 7, 8, 16, and 18, the following submissions arise from the fact that decisions are taken at the point of entry:

(a) there is a need to process arriving passengers quickly;
(b) officers at the point of entry are not organisationally able to act so as to ensure compliance with all the requirements of the Act.

175. Recommendation. No exclusion. The members of Council are divided in their views although the majority recommends against exclusion. The majority takes the view that reviewable decisions in this area are not so numerous as to create the organisational problems envisaged by the Department. As a matter of practice, where any query arises the person is taken to one side and interviewed so that the general processing of passengers is not interrupted. It is not essential to place the person on the same plane in which he arrived, since the airlines have agreements whereby a different airline will provide carriage and the airline of arrival pays. The Act does not provide that implementation of a decision is to be stayed until reasons are given, and reasons can be given up to 14 days after the decision. In any event, the written record of interview provides the material from which a written statement of reasons could be given immediately.

176. There is no chance of a person escaping into the community, since a court would not order the grant of an entry permit on an interlocutory basis, but would merely restrain removal from the country (see R v MacKellar, ex parte Han Tin, High Court of Australia, November 1977, unreported). Accordingly, the person is a prohibited immigrant and can be detained in a detention centre or prison, or released subject to conditions. Further, in cases where a visa has been issued, refusing entry constitutes an interference with a legitimate expectation in reliance upon which a person may have expended a large amount of money in travelling to Australia. There is nothing in the Act which renders review under the Act less appropriate than the review currently available in the High Court.

177. Two members of the Council took the view that decisions under section 6 should be excluded on the ground that the Act was intended to deal with relations between the administration and Australian residents and not persons outside Australia. Their view is that this is in accordance with the established principle of international law that a person had no legal right to enter another country.

178. Decisions. Citizenship Act - section 14 - grant of citizenship.

Reasons: Citizenship may be refused on security grounds.

179. Recommendation. No exclusion. The vast majority of citizenship applications do not have security implications. It may also be noted that the Department earlier recognised, in the course of its evidence to the Bland Committee, that review in this area was most desirable. Hence, a general exclusion on security grounds would not be justified, and the availability of a certificate under section 14 will generally be an adequate safeguard in cases where security is involved.

DEPARTMENT OF POST AND TELECOMMUNICATIONS

180. Decisions. Decisions by Australia Post and other Commissions in the employment area relating to promotion, etc.

Reasons: such decisions should be treated in the same manner as similar decisions under the Public Service Board.

181. Recommendation. No exclusion, other than a temporary exclusion for promotion and promotion appeal decisions. See paragraphs 104-114.

182. Decisions. Postal Services Act 1975 - s.7 decisions to make its services available throughout Australia for all who reasonably require them.

Reasons: that section expressly says that it gives rise to no legal duty and that provision may be overridden by the Judicial Review Act s.4. This would be undesirable.

183. Recommendation. No exclusion. Section 4 of the Act will not affect s.7, and in any event s.7 is not so phrased that a duty enforceable in law could arise.

184. Decisions. Australian Broadcasting Commission - program decisions, decisions under the Broadcasting and Television Act 1942 s.59 (taking measures conducive to the full development of suitable broadcasting and television programs), s.116 (determination of the extent and manner of broadcasting and televising political matters) and s.66 (decisions on broadcasting and televising news items).

Reasons:

(a) these powers are not suited to judicial review since they refer to the Commissioners' opinion which cannot properly be overruled;
(b) the considerations on which these decisions are based (e.g. taste, balance, economy, availability) are not apt to judicial review;
(c) experience with complaints to the Ombudsman suggests that the Act would be used to challenge decisions such as the selection of a particular invention for showing on "The Inventors" and this would not be desirable or appropriate to be brought before the Federal Court; and
(d) the grounds of review are inappropriate to these decisions and it is difficult to conceive of persons having standing in programming decisions.

185. Recommendation. Reasons (a) and (b) are not grounds for exclusion since they lead rather to an expectation that review of these decisions would be extremely limited and unlikely to involve an interference with the Commission's opinion except in the clearest case of an abuse of power. With respect to reason (c), the Council does not foresee a large number of applications for Orders of Review, for many of the complaints would not warrant litigation. Further; the remedies provided by the Act codify the existing judicial review remedies so that, if those remedies were deemed inappropriate by prospective applicants in the past they will be deemed no less inappropriate under the Act. While many persons who may wish to complain about the Commission's actions will not have standing, some will have standing and the issue of exclusion can only be based on the proposition that some persons will be sufficiently affected by these decisions. Reason (d), does not therefore, justify exclusion.

186. The Council has, however, considered one matter not raised by the Commission, namely, the incidence of requests for statements of reasons for the decisions sought to be excluded. Such requests may be made in volume. The Commission makes the point that the decisions sought to be excluded are ones of opinion and may relate to such amorphous concepts as taste. For this reason, any statements of reasons sought would be of limited content and would not be difficult to furnish. Nevertheless, the volume of requests is unpredictable and may, if very large, impose a major burden on or interfere undesirably with the activities of the Commission. If these results eventuate the present recommendation that there be no exclusion of these decisions from the Act could be considered.

DEPARTMENT OF THE PRIME MINISTER AND CABINET

187. Decisions. Employment decisions taken by Parliamentary Presiding Officers.

Reasons: These decisions are analogous to those taken by the Public Service Board.

188. No exclusion, other than a temporary exclusion of promotion and promotion appeal decisions (see paragraphs 104-144).

189. Decisions. All decisions of the Advisory Council for Inter-government Relations.

Reasons:

(a) it is imperative that the Advisory Council not be unified with any particular Government.

190. Recommendation. Recommend Exclusion. The Advisory Council's function is to make recommendations on inter-government co-operation between the various spheres of government in Australia - that is, Federal Government, State Government and Local Government, and in this respect it performs functions analogous to those performed by the Grants Commission. As such, it deals only with the relationships inter se the organs of government. In performing this function it is essential that it not be identified to a greater extent with any one sphere of government, and for this reason the staff of the Council are not employed under the Public Service Act. Whilst there may be some doubt as to whether the recommendations of the Advisory Council are "decisions" for the purposes of the Act, to leave the Advisory Council possibly subject to the Act might create the impression that it is more closely linked with the Commonwealth Government, and thereby jeopardise its independence. It is appropriate that an organisation of this kind only be subject to judicial review, if any be necessary, in the High Court, which stands at the apex of both Commonwealth and State judicial systems.

PUBLIC SERVICE BOARD

191. Decisions. Decisions under the Public Service Act not directly affecting public servants, for example:

• determinations, approvals, etc., under sections 35 and 39;
• opinions under section 37 and 40 re special etc., qualifications;
• opinions re training requirements, etc. under section 41;
• determinations of age limits under section 42;
• determinations re the time in which qualifications must have been obtained and the manner of ascertaining the order of offers of appointment under section 43;
• approval of selection tests under section 44;
• determinations, arrangements, etc., re examinations under section 43;
• content of notices under section 46;
• determinations under section 47E relating to recognition of prior service;
• determinations under section 81ZV re conditions of employment of persons transferred to the Service under Division 9F;
• determinations, opinions, etc., under Part VII of the Public Service Regulations relating to the registration of persons for temporary employment;
• issue by the Board of a notice under section 50(1A)(b), and approval or disapproval of the filling of such an office;
• determinations by permanent heads, under section 50(4A), that 'efficiency' should include aptitude etc.; for higher duties;

decisions by the Board, under section 50(11), to cancel provisional promotions;

• determinations by the Board, under section 50A, relating to the 'revival' of provisional promotions lapsing on abolition of a Department;
• determinations under section 53 as to qualifications required for promotion/transfer to particular offices (and re examinations relating to such qualifications);
• determinations under section 53A re transfers/promotions in order of passing examinations;
• determinations under section 53B re promotion of officers completing training courses;
• decisions under section 20 that there are excess numbers of officers at particular classifications;
• reports, recommendations and decisions under section 29 relating to the creation, abolition and re-classification of offices;
• determinations of terms and conditions by the Board under section 8A (and recommendations to the Governor-General);
• determinations under section 8B of the terms and conditions of employment of staff serving overseas;
• determinations of the Board under section 32 relating to conditions of advancement;
• authorisation by the Board of public holidays under section 76;
• determinations etc., under sections 77-81 relating to reciprocal services of Commonwealth and State, officers; and
• declarations by Ministers under section 84 relating to transfer of staff to the NTPS.

The above list is intended as indicative rather than comprehensive: other relevant decision-making powers in the Public Service Act might be identified if the matter is examined in the detail that would be necessary for the purposes of regulations under the Act.

Reasons: See paragraph 88.

192. Recommendation. No exclusion. See paragraphs 89-94.

193. Decisions. Decisions of the Public Service Board relating to public service arbitral processes including determinations of terms and conditions of employment, negotiations and agreements with staff organisations prior to formal external arbitral processes.

Reasons: See paragraph 96.

194. Recommendation. No exclusion - see paragraphs 97-99.

195. Decisions. All decisions relating to recruitment and appointment.

Reasons: See paragraph 100.

196. Recommendation. No exclusion - see paragraphs 101-103.

197. Decisions. All decisions relating to promotions and promotion appeals.

Reasons: See paragraph 104.

198. Recommendation. Recommend exclusion limited to a period of 12 months from the commencement of operation of the Act - see paragraphs 105-114.

199. Decisions. All decisions relating to discipline.

Reasons: See paragraph 115.

200. Recommendation. No exclusion - see paragraphs 116-117.

201. Decisions. All decisions relating to reintegration of employees.

Reasons: See paragraph 18.

202. Recommendation. No exclusion - see paragraph 118.

203. Decisions. All decisions relating to the appointment of First Division and Statutory Officers.

Reasons: See paragraph 119.

204. Recommendation. No exclusion. – see paragraph 120.

205. Decisions. Decisions under sundry other public service legislation – e.g. Officers Rights Declaration Act, Maternity Leave (Commonwealth Employees) Act etc.

Reasons: See paragraph 121.

206. Recommendation. No exclusion. – see paragraph 121.

DEPARTMENT OF SCIENCE

207. Decisions. Anglo-Australian Telescope Agreement Act 1970 – all decisions.

Reasons:

(a) the Board may not come under the Act as it is an international organisation; and
(b) it is an 'inter-governmental body'.

208. Recommendation. No exclusion. If reason (a) is correct then there is no need for exclusion. Reason (b) does not justify exclusion (see paragraph 59).

DEPARTMENT OF TRADE AND RESOURCES

209. Decisions. Regulations under the Customs Act administered by the Department.

Reasons: Proceedings or reasons under the Act may result in revelation of confidential information.

210. Recommendation. No exclusion. See paragraphs 32-43.

211. Decisions. All by proposed Australian Uranium Marketing Authority (not yet enacted).

Reasons: The unique nature of this function and area of operation.

212. Recommendation. No recommendation as there is no existing enactment.

213. Decisions. Trade Commissioners Act 1933 -decisions relating to employment.

Reasons: Should be treated in the same way as decisions under the Public Service Act.

214. Recommendation. No exclusion. This is considered as part of the general area of employment decisions (paragraphs 82-122).

215. Decision. Coal Industry Act 1946 -all decisions of the Joint Coal Board.

Reasons:

(a) inter-governmental organisation, and

(b) some functions are performed under Commonwealth legislation and some under the New South Wales Act so jurisdiction with respect to any action would be doubtful.

216. Recommendation. No exclusion. As to its inter-governmental character, reference is made to paragraph 59. The second reason advanced is a problem for the Court in relation to any application.

DEPARTMENT OF TRANSPORT

216A. Decisions. Decisions relating to aviation safety standards.

Reason: these are often based upon confidential information.

216B. Recommendation. No exclusion. Reference is made to paragraphs 32-43.

216C. Decisions. Decisions affecting payments to states and local authorities under States Grants legislation and the aerodrome local ownership scheme.

Reason: not stated but reference is made to the fact that funds under the aerodrome scheme do not permit all projects to be carried out.

217. Recommendation. No exclusion. Reference is made to paragraph 128 concerning the Commonwealth Grants Commission. Decisions of the Department are in a different class from those of the Commission because the Commission occupies a special place in Federal-State relations. The reasons for excluding the Commission do not, therefore, apply. These decisions do not involve the allocation of funds among States but the approval of projects and the allocation of a fund among approved projects within States. There is no reason apparent to justify exempting such decisions. These decisions are analogous with those of the Australia Council (see paragraph 168). It would also appear that decisions under the aerodrome scheme are not decisions made under an enactment in terms of the Act.

Amdt. 1 10/11/78

218. Decisions. All decisions of the Australian Shipping Commission, the Australian National Airlines Commission, and the Australian National Railways Commission.

Reasons: See paragraph 68.

219. Recommendation. No exclusion - see paragraphs 70-75.

DEPARTMENT OF THE TREASURY

220. Foreign Takeovers Act 1975 - all decisions.

Reasons: Classified or commercially confidential material may have to be revealed in proceedings or statements of reasons.

221. Recommendation. No exclusion. Reference is made to paragraphs 32-41.

222. Decisions. The making of assessments and decisions affecting assessments for income, estate, gift and sales taxes.

Amdt. 1 10/11/78

Reasons:

(a) adequate alternative remedies are available;
(b) processes under the Act are to some extent inconsistent and in conflict with relevant provisions of tax laws;
(c) the Act may not apply to assessments themselves;
(d) grounds of review and remedies are not appropriate in this area;
(e) the duty to give reasons effects a change in onus of proof;
(f) proceedings under the Act would be a fertile ground for abuse by taxpayers;
(g) sales tax law is not apt at present to be subject to judicial review under the Act and review would produce uncertainty; and
(h) the burden of providing reasons in a mass jurisdiction.

223. Recommendation. Exclusion recommended. There is a long established and well developed system of judicial review of taxation decisions, involving State and Territory Supreme Courts (although not with respect to sales tax) the Federal Court (with respect to Income. tax only) and ultimately the High Court, in the appellate structure. These courts have power to substitute their assessment for that of the Commissioner, which is not a power available to the Federal Court under the Act.

Under the existing law, tax becomes payable immediately upon the issue of the assessment and the obligation to pay is not deferred pending appeal. Accordingly, there could be strong incentive to challenge the validity of the assessment under the Act, thereby circumventing the existing appellate processes and possibly deferring payment of tax.

224. However, the comments of the High Court relating to the desirability of taxpayers being provided with statements of reasons for the assessment are noted, (see Gins Pty Ltd v Federal Commissioner of Taxation [1969] HCA 5; (1969) 119 C.L.R. 365; Bailey v Federal Commissioner of Taxation [1977] HCA 11; (1977) 7 A.T.R. 251). It is recommended that consideration be given to the inclusion of a statutory obligation to provide such a statement in the relevant taxation legislation.

225. Decisions. Aspects of the Reserve Bank's powers in commercially competitive areas.

Reasons: Bank is in competition with private enterprise.

226. Recommendation. No exclusion - see paragraphs 68-73.

227. Decisions. All decisions of the Commonwealth Banking Group.

Reasons:

(a) in employment areas decisions of the Banks should be treated in the same way as those of the Public Service Board;
(b) in other areas the Bank is in competition with private enterprise; and
(c) it is important to the Bank to show that it is not part of government in order for it to be seen as a proper competitor.

228. Recommendation. No exclusion – other than the temporary exclusion of promotion and promotion appeal decisions. See paragraphs 68-73 and 123.

229. Decisions. All decisions of the Australian Industry Development Corporation.

Reasons: As for the Commonwealth Banking Group.

230. Recommendation. No exclusion – see paragraphs 68-73 and 123.

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PART VII - FINAL OBSERVATIONS

NORTHERN TERRITORY

231. Legislation has been passed leading to self-government in the Northern Territory. The Administrative Decisions (Judicial Review) Amendment Act 1978 removes from the ambit of the Act decisions and classes of decisions relating to matters within the self-governing -powers of the Northern Territory Legislative Assembly. The Council has not, therefore, made recommendations with respect to those areas.

SUMMARY OF RECOMMENDATIONS

232. Specific recommendations have been made throughout the body of this report. For convenience the decisions which are recommended for exclusion under the regulations are set out in paragraph 7 of this Report. Decisions suggested to the Council for exclusion, but which are not recommended for exclusion, can be identified from the Table presented as Attachment 1.

FUTURE ACTION

233. Consideration of appropriate exclusions from the Act and the reconsideration of classes of decisions initially excluded is a continuing process. It will be necessary to examine the operation of the Act from time to time and determine whether experience indicates that further exclusions should be made or exclusions already made be reversed. Additionally, as new legislation is passed it will be necessary to consider whether decisions under the legislation should be excluded from the Act. For the purposes of these recommendations legislation not at present enacted has not been considered. It is recommended that where a department sponsoring new legislation seeks exclusion from the Administrative Decisions (Judicial Review) Act, the advice of Council should be sought on the proposed exclusions.

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ATTACHMENT 1

DEPARTMENT	SUGGESTED EXCLUSIONS	RECOMMENDATIONS
Aboriginal Affairs (see paragraph 62)	Nil	No recommendation
Administrative Services (see paragraphs 127-132)	Commonwealth Grants Commission Academic Salaries Tribunal and Remuneration Tribunal Christmas Island Phosphate Commission & British Phosphate Commissioners	Exclusion of decisions relating to allocation of funds No exclusion No exclusion No exclusion
Attorney-General’s Department (see paragraphs 74-80; 133-138)	Decisions related to the administration of justice All decisions under the Australian Security Intelligence Organisation Act and the Telephonic Communications (Interception) Act	Exclusion of all decisions other than decisions listed in paragraph 80. Exclude
Business and Consumer Affairs (see paragraphs 139-142)	Decisions related to the prosecution and investigation of offences Policy decisions	Similar exclusions to those for the administration of justice generally No exclusions
Capital Territory (see paragraphs 143-148)	Decisions under section 7 of the Fire Brigade Ordinance Decisions under sub-section 45(5) of the Police (Disciplinary Provisions) Ordinance	No exclusion No exclusion
Capital Territory (see paragraphs 143-148) (continued)	Decisions of the Canberra Commercial Development Authority	No exclusion
Construction (see paragraph 62)	Nil	No recommendation
Defence (see paragraphs 149-150)	Decisions relating to the enforcement of service discipline	Exclusion
Education (see paragraphs 150A-150B)	Decisions of the Australian National University	No exclusion
Employment and Industrial Relations (see paragraphs 63, 124-125)	Submission awaited	No recommendation
Environment, Housing and Community Development (see paragraphs 151-152)	All decisions of the Australian Housing Insurance Corporation	No exclusion
Finance (see paragraphs 153-154)	Decisions under section 32 and 36A of the Audit Act, section 3 of the Appropriation Acts (Nos. 1 and 2)	Exclusion
Foreign Affairs (see paragraphs 155-158)	Decisions under the Diplomatic Privileges and Immunities Act, Consular Privileges and Immunities Act and International Organisations (Privileges and Immunities) Act Decisions under regulations 7, 11 and 12 of the Passport Regulations, on the direction of foreign governments	Exclusion Exclusion
Health (see paragraphs 159-162)	Decisions under sections 12A, 13A, 35, 35A, 48, 68, and 68A of the Quarantine Act and regulation 34A of the Quarantine (Plant) Regulations Decisions under section 8A of the Health Insurance Commission Act Commonwealth Serum Laboratories Commission	No exclusion No exclusion No exclusion
Home Affairs (see paragraphs 163-168) (Amdt. 3 15/12/78)	Australian Archives All decisions of the Christmas Island Arbitrator Decisions of the Australia Council	No recommendation No exclusion No exclusion
Immigration and Ethnic Affairs (see paragraphs 169-179)	Decisions taken pursuant to sections 6, 7, 8, 16 and 18 of the Migration Act, and section 14 of the Citizenship Act	No exclusion other than decisions under section 8 relating to Diplomatic and Consular Representatives
Industry and Commerce (see paragraphs 62)	Nil	No recommendation
National Development (see paragraphs 64)	No reply received	No recommendation
Post and Telecommunications (see paragraphs 180-186)	Employment decisions of the Postal Commission, Telecommunications Commission, Australian Broadcasting Commission and Overseas Telecommunications Commission	Recommended exclusion of those decisions analogous to those recommended for exclusion under the Public Service Act
Post and Telecommunications (see paragraphs 180-186) continued	Decisions pursuant to section 7 of the Postal Services Act Decisions of the Australian Broadcasting Commission	No exclusion No exclusion
Prime Minister and Cabinet (see paragraphs 187-190)	Employment decisions of the Parliamentary Presiding Officers Advisory Council for Inter-Governmental Relations Decisions of the Public Service Board, which do not directly affect public servants as individuals, relating to public service arbitral processes, recruitment and appointment processes, promotions and promotion appeals, First Division and Statutory Office appointments, disciplinary processes, re-integration decisions and decisions under sundry legislation	Recommend exclusion of those decisions analogous to those recommended for exclusion under the Public Service Act Exclusion No exclusion other than decisions relating to promotions and promotion appeals decisions (for 12 months only)
Productivity (see paragraphs 62)	Nil	No recommendation
Science (see paragraphs 207-208)	Decisions under the Anglo-Australian Telescope Agreement Act 1970	No exclusion
Social Security (see paragraphs 62)	Nil	No recommendation
Special Trade Representative (see paragraphs 62)	Nil	No recommendation
Trade and Resources (see paragraphs 209-216)	Decisions under the Customs Regulations Decisions under the Australian Uranium Marketing Authority Decisions of the Joint Coal Board	No exclusion No recommendation No exclusion
Transport (see paragraphs 216A-219)	Decisions of the Australian Shipping Commission, Australian National Airlines Commission, and Australian National Railways Commission Aviation standards decisions Allocation of funds under States Grants legislation and the aerodrome local ownership scheme	No exclusion No exclusion No exclusion
Treasury (see paragraphs 220-229)	Decisions affecting the making of assessments under income tax, estate duty, gift duty, and sales tax legislation Decisions of the Reserve Bank of Australia, Commonwealth Banking Corporation and its constituent Banks, and Australian Industry Development Corporation relating to the commercially competitive functions of those organisations	Exclusion No exclusion, other than temporary exclusion of decisions analogous to those recommended for temporary exclusion under the Public Service Act
Veterans Affairs (see paragraphs 62)	Nil	No recommendation

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ATTACHMENT 2

Privative Clauses in Commonwealth Acts

1. Coal Industry Act 1946 – section 44

2. Conciliation and Arbitration Act 1944 – section 60

3. Courts-Martial Appeals Act 1955 – section 30

4. Customs Act 1901 – section 119

5. Navigation Act 1912 – section 325

6. Re-establishment and Employment Act 1945 – section 28

7. Public Service Arbitration Act 1920 – section 20

8. Stevedoring Industry Act 1956 – section 22

Printed by C.J. Thompson, Commonwealth Government Printer, Canberra

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