Today’s Australia Judicial reforms can be followed back to a time the Commonwealth administration’s reclaims regarding all executive laws which took place in the latter stages of the 1970s. These reforms heralded the setting up of the Australian Federal Court, the office of the Ombudsman as well as the Administrative Appeals Tribunal. Most importantly, they majorly entailed enacting the Administrative Decisions of the Judicial Review Act 1977.1 After more than forty years later, this seemed to be the opportune moment to review and revise the appropriateness and relevance of the current laws as a way of adjusting to the changing times as well as the future.
The reforms to the administrative laws of the 1970s formed the most significant influence on juridical revision that has taken place in the past. However, they do not form the only important influence. Another critical issue is the influence of the High Court and especially its influence regarding perquisite writs which are today referred as constitutional or juridical writs. The apparent law change is colligated with an idea that the law court exhibits a full-fledged separation of powers based on the doctrines of the law. As a result, we can’t afford to downplay the fact that changes and developments are guided and informed by apparent social and cultural changes that emanate from the ever growing importance of the decisions made by the government on its citizens.2
To some degree, this reflects how the government intrudes into private issues despite the fact that not all intrusions are bad or negative. It stems from the intent to safeguard public interest via regulating activities that might be dangerous and harmful to citizens. It also goes as far as raising revenue reallocation and redistributing national wealth by means of social security. Even though it is beneficial to citizens, it exerts influence on the fiscal and individual affairs of all Australians.
The ever-growing significance of the executive decision-making process on its citizens which has inescapably resulted in the fledging of the judicature, the government as well as the mechanisms for subsequent scrutiny of the made decisions. To some degree, the judicature has been offering responses to the pressures and the resulting government activity that enacts them.
The history of juridical review and subsequent reform of administrative laws can be traced back to the traditional exclusive judicial mandamus’ writs, certiorari, as well as proscription. The juridical documents originated of the majestic privilege over specific subjects. It was given by the Rex's or Queens’s Bench section from the Imperial Courts in the system. Its utilization got nearly linked with privileges of the crown and the rightfulness; specifically preventing those rights from being encroached. For instance, Mandamus obligated people to perform public responsibilities, prohibition barred any conduct that was out of the jurisdiction while certiorari invalidated previous conduct for which there were no jurisdictions addressing it.3
The High Court of Australia
According to the Commonwealth Constitution section 75(v); authorizes legal power concerning High Court of Australia where the judicial mandamus’ writs, proscription sought against Commonwealth’s officers. Close to approximately 100 years, the juridical documents called -the perquisite writs-up to when High Court- Gummow JJ and Gaudron - explained the perspective in the Tribunal for Refuge Review that; having the powers separated, resulted in the judicial writs as guaranteed by the Constitution to be basically different to the exclusive writs that were often linked with administrative powers and discretion of the Crown. Henceforward, they are supposed to be referred to as the constitutional writs.Apparently, the change in terminology failed to be effected. Nevertheless, it did change or shift the scenarios on which the writs could be applicable. For example, for the case of prohibition, the grounds were a jurisdictional error. The cardinal jurisdiction authorized by the High Court as written in section 75-v in giving constitutional and perquisite writs is exemplified by section 75-iii legal power which prescribes that an individual who is being sued or suing in position of the British Commonwealth, that is automatically its party. Consequently, according to the Judicial System Act 1901 (Cth), section 33 extends the authority and discretion of the High Court to rule out public law redresses. 5
Even though the boundaries limiting the issuance of the lawful writs continues to be applicable, two critical dimensions have facilitated accessibility of common law juridical reexamination to greatly widen. Firstly, the enlargement is sufficient to be termed as a jurisdictional error. For a while, this has been a slipping concept. Consequently, it has been demoted least to say to a secondary position in the Britain. Seemingly the High Court has categorically ducked coming clear on the content of jurisdictional error, even though it has recognized that there are numerous difficulties when dissociating jurisdictional error from non-jurisdictional error.6Also, a jurisdictional error pops up if the individual making decisions does that outside the confines of the function and the discretion authorized by him or her or they also do something that is out of the discretion constitutionally.
Secondly, is the availability of the alternative redresses that have different restrictions. For example, declaration and enjoinment form the important exemplifications. For instance, the High Court has declared that the Queensland Criminal Justice Commission has greatly come short of honoring the requisites of adjective justice in case mandamus being incorrect and certiorari telling the truth.7In a stark contradiction to section 75(v), that confers legal authority while specifically referring to the redresses, section 75(iii) confabulates legal power with particular reference to matter in question. In the case of the High Court having jurisdiction as confabulated in section 75-iii, which is unlimited only to redresses uncommitted. As a result, the law court has the discretion to guarantee certiorari. The Court is powerful to accord certiorari, just as in section 75(v), even though the redress will only be accorded when helping a remedy, like a prohibition, that Court has the discretion to the accord. In this case, the court can accord cease and desist directives as well as make declarations. 8
In the recent past, the High Court has been grounded against the intrusion of the merits of making decisions. Therefore curial reexamination is limited to the error or inconsistence of law. Consequently, the High Court exhibits a superficial perspective of what suffices for jurisdictional error. It is mostly bound to go astray into what amounts to reexamination. This forms the grounds unreasonableness stemming from the ruling of Lord Greene MR in the case of Wednesbury Corporation versus Associated Provincial Picture Houses Ltd. Also, the Court has previously trashed proportionality as a way of substantiating error of law. For instance, this is not the case in Britain where unreasonableness is substantiated by a wide range of proportionality. Subsequently, making the latter consideration to duly prevail. Even though the High Court is inflexible in constraining law reexamination to the inconsistence of law emanates in the separation of powers, to a great extent its unwillingness can be associated with the significant degree of merits reexamination that is currently in place of Commonwealth level, Australia, and also via the Tribunal Administrative Appeals.9
As a consequence, while the Australian High Court can possibly remain negative and opposed to correcting the mistakes in the meritoriousness of determination, this is extremely rare that an error in interpreting the will take place in the absence of a remedy. Hence, the jurisdictional fault remains the basis for constitutional review. This is significant due to the fact that as the primary grounds for the issuance of constitutional writs, how it operates can never be overlooked by the legislature assembly due to the doctrine of separation of powers. Therefore, for the landmark ruling of The Commonwealth versus Plaintiff S157, the court conclusively ruled that an otherwise legitimate privative clause could not by any means intercept the court’s discretion and jurisdiction to give constitutional writs.10
The lingering qualm for determining the link with High Courts established authority to issue constitutional writs regarding the jurisdictional fault is conterminous with a law error. An impact of the rulings of the High Court will tackle respective concern. All through, there is no important room of fault for the law that is exclusive of jurisdictional error has surfaced. However, with time, the two may be co-extensive because as of now this can be found in Britain. I feel that it is very unlikely that the High Court realize something it can refer to as an inconsistency in the error of law without identifying its redress.11
On the face of its jurisdictional error, is arrived at basing on the error or inconsistency in the law. However, the bone of contention is regarding its narrowness of the error. Consequently, the High Court’s suits on juridical error happen to suit on fault or inconsistency of law. The common rules are applicable in incidences where executive action is not permissible or where the decision making individual comprehends the permission. They call for a fair hearing that is the impartial determinant as well as just litigation.12
The decision-maker is also called for to follow up on substantially important issues while avoiding and ignoring critical issues. The activity should involve applications, realistic, discretion and authority. Otherwise, depictions on the common law’s requisites lean towards being items of powers that are generalized. It forms the basis for the for the High Court’s need for the judicial review as of today.13
Australia’s Federal Court
On the face of it, comprehending judicial review regarding the High Court prompts one to strive and understand the judicial review of the common law as regards to the Australia’s Federal Court. Firstly, section 39-B (i) as pertaining to the Judiciary’s Act, re-ordains section 75(v) of the Federal Court’s Constitution. Also, Section 39-B (1A) confabulates legal power and discretion on the Federal Court regarding matters that arise under the rules legislated by parliament. Apparently, the jurisdiction of the common law regarding the Federal Court is duly extensive just like the authority of High Court. There are qualms regarding the judicial review for common law applications in the Federal Court. It is regarding if has there been the law inconsistencies by the executive decisiveness-making organs.14
Administrative Decisions Act- Judicial Review
Other than its discretion and jurisdiction to the common law, as a statutory juridical, the Federal Court undertakes judicial reexamination in line with the AD (JR) Act. There is a significant impact on the development of the juridical revisions like common law reexamination stemming from its discretion.15To this effect, the AD (JR) Act effected the following:
Most significantly, the availability of basis of reexamination has often proved to be of no help unless the decision maker reasons on the basis of exposure to the prevailing circumstances. Actually, the basis for revision explained above is easily palpable as they restate the prevailing common law. For example, the West versus Kioa, Mason J observed that -the statutory grounds of reexamination as articulated in sections 5(1) are totally not new since they effectively offer a summarized reflection of the basis of which executive decisions are vulnerable to being challenged by common law. For this reason, in the case mentioned above, the court interpreted the procedural justice basis in section 5 like prescribed in the common constabulary.17
The increased presence to judicial rights revision at common constabulary, along with review privileges and statutory rights, has inescapably led to making decisions that make the two equal. Apparently, this is duly consistent with the Kioa vs West precedent ruling. In addition, the suitability of the affirmation of basis in the AD (JR) Act has inclined to exert determination in the grounds of the common law.
Therefore whatever inclination to cripple the basis of reappraisal has to some degree been opposed by the fact that there exist the separate common law grounds, that are able to come up with and as a consequence of the ruling in section 5-1-j, which affirms – this sort of decision is otherwise contrary and inconsistence with the law.
However, it is slightly possible that the inflexible statutory affirmation that forms the basis, compounded by them being interpreted as retelling the common law, has oftentimes resulted in some degree of limitations in the development of the primary grounds for review be it in the common law, as well as beneath section five. The apparent unwillingness of Australia’s court system to adopt the need proportionality as the basis, while it is strongly based on the doctrine of the separation of powers and its relevant considerations, its apparent unwillingness to immerse into the world of merits, could be partly as a result of the existence of the basis for rationality, and seemingly lack of whatever conception that addresses proportionality in section five.18
The dividends of AD (JR) Act revision are hence unqualified. With the same in mind, it appears that gains are heavier than the damages. Despite the fact that it is untidy to harbor complemental reasons for judicial review that will involve a court, which will examine two propositions in any case.19In application, this doesn’t add value to resources like time and the incurred cost but in future, it could. Justice cannot be guaranteed in a system where one platform will result in a redress while the other one will not even if the courts uphold the rule in each litigated scenario.
Also, the AD (JR) Act’s review shortcomings have stemmed from the shortcoming critique to –any determination related to an executive quality arrived at within the confines of an enactment. As a result, some decisions are outwardly excluded despite them not affecting the reexamination of the common law.
The resulting benefits could be; AD (JR) Act projects light over the executive decision-making process. Apparently, it could be a big mistake to presume that the bad side provided by the Act to its subsequent covering to judicial proceeding in the Court. Also, the act has a great influence the on initial step of decision-making since it forms the basis for primary decision-makers to follow. In this responsibility, due to its basic characterization of the basis and reasons for review, it is obliged to exert an important impact. This advantage should be extended to counsels who offer advice to clients due to the fact that it offers basic grounds for the advice. Therefore it is easy to say that without the developments in the AD’s Act it would have been inconceivable to think changes in the administrative law.20
Also, the AD (JR) Act puts in place obligations that provide reasons that facilitate the interpretation and application of the judicial reforms just like in the AD (JR) Act reassessment. Apparently, the AD (JR) Act has come up with its independent law whose application lives regular. However, there is a controversy since applicants have formed a habit of framing their propositions alternatively under section 39B even though it breeds less real problems. Just like a negative dimension of the alternative claims, since justice can be guaranteed.21
These acts give more power in the redresses which can be allowed than the common law does. Particularly, erroneous determinations could be invalidated. However, the shortcomings stemming from the diversity of the jurisdiction are linked with little AD’s Act existence but, with the legal requisite that it should be coexistent with the common jurisprudence juridical critique. It acts as a critical element in protecting the court system’s role in the supervision of the executive decision-making process. Thus, to find a long term solution there needs to be the reforms to the common law for specific cases the statutory fails to provide a remedy as well as those that the legislation process limits juridical review be it by privative clause or not.22
In conclusion, any juridical reforms in this area are bound by the common law review. For a number of years, the Supreme Court of New South Wales has come up with judicial review jurisprudence to the common law.23 For instance, the most important precedent in the recent past that called for the need for juridical reforms is the Kirk v Industrial Court where the High Court ruled that as outlined by the constitution while recognizing the presence of the court which has supervisory discretion over administrative power. Such discretion is definitive of the courts when provided for in the law and could probably be intercepted by subsequent law making. There should be rectifications regarding the link between the two jurisdictions since the AD (JR) Act review seemingly has outlived its functionality with due consideration of the important and robust changes in the common law.24
23Fong, C., Chiang, S., & Australian Law Librarians' Group. (1986). Australian legal periodicals and loose-leaf services abbreviations. Sydney: Australian Law Librarians' Group.
24Vrachnas, J. (2006). Migration and refugee law in Australia: Commentary and materials. Cambridge: Cambridge University Press.
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19Crock, M. E., & Myer Foundation. (2012). Seeking asylum alone: A study of Australian law, policy and practice regarding unaccompanied and separated children. Annandale, N.S.W: Themis Press.
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21Top of Form
International Congress of Comparative Law, & Tay, A. E.-S. (2012). Australian law and legal thinking between the decades: A collection of 33 Australian reports to the XIIIth International Congress of Comparative Law presented in McGill University Montreal on 18-24 August 1990. Sydney, NSW, Australia: University of Sydney. Bottom of Form
22Haigh, R. A., Lee, P. Y., & Deakin University. (2013). Researching Australian law. North Ryde, NSW: LBC Information Services.
23Fong, C., Chiang, S., & Australian Law Librarians' Group. (2014). Australian legal periodicals and loose-leaf services abbreviations. Sydney: Australian Law Librarians' Group.
24Vrachnas, J. (2012). Migration and refugee law in Australia: Commentary and materials. Cambridge: Cambridge University Press.