Introduction
In Australia, at the federal, State and Territory levels, legislative steps have been taken to enhance the efficacy of judicial review over administrative action. The purpose of statutory codification of judicial review was twofold: first, to enhance access to justice for individuals aggrieved by government action or inaction; and, second, to promote, and affirm the importance of, legal accountability for public administration. This was to be achieved by, inter alia:
Simplifying the procedures for accessing the courts and applying for judicial review;
Codifying the common law grounds for review; and
Providing for a right to written reasons in respect of certain administrative decisions.
This chapter examines whether legislative codification has been ‘worth it’, in view of the rationale underpinning it. Put another way, has codification constrained, or hampered, the law of judicial review in Australia?
Chapter 1 has assessed the role that the Kerr and Ellicott committees played leading up to the enactment of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’). The ADJR Act was ‘an important milestone in the evolution of Australian administrative law’. It was the irst attempt in Australia ‘to codify both the law and much of the procedure of judicial review’. The ADJR Act has been judicially described as ‘one of the most important Australian legal reforms of the last century’. Groves has observed that ‘during the irst decade after its enactment, the ADJR Act was the leading avenue of judicial review and clearly exerted great inluence over Australian administrative law’. This assessment is supported by the Administrative Review Council (‘ARC’) in a report issued in 1989. In that report, the ARC set out statistics regarding judicial review applications federally under the ADJR Act but also via s 39B of the Judiciary Act 1903 (Cth) which corresponds to the High Court’s jurisdiction under s 75 of the Commonwealth Constitution (see Figure 9.1). The preponderance of ADJR Act applications is striking.