Conclusions

18.86   There is a strong presumption that the Parliament does not intend to restrict access to the courts, unless it does so by explicit statement or necessary implication. This presumption applies in relation to attempts to restrict or exclude judicial review of administrative action. Additionally, s 75(v) of the Constitution guarantees an‘entrenched minimum provision of judicial review’.^[127] However, the ADJR Act, and other legislation provide for judicial review that is more accessible and broader in ambit than review available under s 75(v) of the Constitution or s 39B of the Judiciary Act. Thus, while access to the courts cannot be excluded, limits can be, and are, placed on access to the courts.

18.87   In 2012, the ARC completed a major review of federal judicial review. It recommended that the following limits on judicial review under sch 1 of the ADJR Act should be removed:

• decisions under div 1, pt 7.4 of the Corporations Act, and decisions giving effect to the government’s foreign investment policy under the Banking (Foreign Exchange) Regulations 1959 (Cth) on the basis that it is not a sufficient justification to exclude review because the decision considers the national interest;

• decisions of the Fair Work Ombudsman and Fair Work Building Industry Inspectorate, on the basis that the decisions of these bodies are similar to decisions made by a number of other regulatory bodies, whose decisions are subject to review under the ADJR Act;

• the findings of the Inspector-General of Intelligence and Security, on the basis that the findings of an accountability body ought to be subject to review; and

• decisions under div 105 of the Criminal Code, on the basis that there is no court involvement in the making of preventative detention orders.

18.88   Further, the ARC recommended that the blanket exemption for all ASIO decisions be reviewed.

18.89   The ALRC considers that the Government should further consider these recommendations.

18.90   In relation to the ARC’s recommendations relating to reviews of counter-terrorism and national security laws, such a task would fall within the role of the INSLM, who reviews the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation on an ongoing basis.

18.91   An area of particular concern—as evidenced by parliamentary committee materials, submissions and other commentary—relates to limits on access to the courts in migration legislation. The key justification advanced for these limits is that they seek to reduce the volume and cost of litigation, and prevent abuse of process by applicants. The ARC and the Legal and Constitutional Affairs Committee both stated that case management measures and assistance for applicants were a more appropriate measure to achieve these goals.

18.92   Schedule 1 para (pa) of the ADJR Act excludes judicial review of the exercise of a number of ministerial powers of direction and determination under the Maritime Powers Act. This has been justified on the basis that highly complex and sensitive operational issues should not be subject to judicial review. The Government may consider reviewing this restriction on access to the courts, particularly in light of criticism by both rights scrutiny committees of the Parliament—the Scrutiny of Bills Committee and the Human Rights Committee.

18.93   Finally, the Government should give further consideration to the ALRC’s recommendation to introduce open standing in public law proceedings, included in its 1996 report on standing in public law proceedings. In the alternative, the Government should give further consideration to the ARC’s recommendation that a provision modelled on s 27(2) of the AAT Act be introduced to clearly give representative organisations standing to make an application for judicial review under the ADJR Act.