A common law principle

18.1       Judicial review is about setting the boundaries of government power.^[1] It is about ensuring government officials obey the law and act within their prescribed powers.^[2] Access to the courts for the purpose of judicial review is an important common law right. Sir William Wade stated that ‘to exempt a public authority from the jurisdiction of the courts of law is, to that extent, to grant dictatorial power’.^[3]

18.2       In his Introduction to Australian Public Law, David Clark gives a brief history of judicial review of administrative action:

Judicial review in the administrative law sense originated in the 17th century when various prerogative writs, so called because they issued in the name of the Crown, began to be issued against administrative bodies. These writs, such as certiorari, prohibition and mandamus originated in the 13th century, but were originally confined to review of the decisions of inferior courts… By the late 17th century the writs began to be used against administrative agencies such as the Commissioners of Sewers, and the Commissioners for Bridges and Highways. With the dramatic expansion of State functions in the 19th century and the emergence of innumerable statutory bodies, committees, commissions, and other administrative agencies, the way was open for the expansion of judicial review in this sense.

The power to judicially review what were once called inferior jurisdictions (lower courts and administrative agencies) arrived in Australia with the opening of the first Supreme Courts in Van Diemen’s Land and New South Wales in 1824… The power to review by certiorari, prohibition and mandamus was, in origin, a common law power and was, therefore, a power of jurisdiction created by the courts through their judicial decisions.^[4]

18.3       In Church of Scientology v Woodward, Brennan J said:

Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.^[5]

18.4       In Australia, an ‘entrenched minimum provision of judicial review’^[6] by the High Court is conferred under s 75 of the Constitution (discussed below) and s 39B of the Judiciary Act 1903 (Cth), which extends the constitutional jurisdiction to the Federal Court. The framework for judicial review also spans a number of legislative schemes. The primary statutory source of judicial review is the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), which contains broader grounds for review, and is more accessible than constitutional review. Additionally, some judicial review schemes are contained in specific statutes, and regulate review of decisions made under those statutes—for example, in the areas of migration and taxation.

18.5       However, as noted further below, statutes sometimes provide that certain administrative or judicial decisions may not be reviewed by courts. A privative clause—also known as an ouster clause—is a statutory provision that attempts to restrict access to the courts for judicial review of administrative decisions. They are ‘essentially a legislative attempt to limit or exclude judicial intervention in a certain field’.^[7] Additionally, judicial review of some decisions may be excluded from the operation of statutory schemes such as the ADJR Act.

18.6       This chapter discusses how access to the courts is protected from statutory encroachment; laws which restrict access to the courts; and when laws that restrict access to the courts may be justified. It is about judicial review, rather than merits review.^[8]