Administrative Justice: Beyond the Courtroom Door

• Jurisdiction: South Africa
• Citation: 2006 Acta Juridica 257
• Pages: 257-287
• Author: Robin Creyke
• Date: 15 August 2019
• Published date: 15 August 2019

Administrative Justice: Beyond the

Courtroom Door

ROBIN CREYKE*

Australian National University

The right to complain about government is at the heart of administrative

justice. Australia has set up a framework of measures to implement that

ideal, many of the elements of which have been in operation for over a

quarter of a century. This paper explores the success or otherwise of this

system to see which elements have been most effective in achieving that

goal.

I AUSTRALIAN ADMINISTRATIVE LAW SYSTEM

Beginning in the 1970s Australia embarked on an ambitious programme

to introduce a comprehensive, integrated, accessible system to control

government action, largely by giving citizens rights of review. That

programme was spearheaded at the federal level by reforms proposed

initially by the Commonwealth Administrative Review Committee Report

1

(the Kerr Committee report), which proposed a radical package of

measures. These included jurisdiction by way of judicial review for the

Federal Court (immediately below the High Court of Australia, at the

apex of the Australian legal system); a statutory codif‌ication of the

grounds of judicial review together with a simplif‌ied process for seeking

judicial review, and a right to reasons; a tribunal authorized to review

decisions on the merits across the whole of government; an investigative

agency or ombudsman; a body to monitor and advise on the framework

and operation of the system; an information disclosure regime for public

documents subject to specif‌ied exemptions; and a statute dealing with the

procedures of administrative tribunals.

In implementing most of the proposals, the Federal Court of Australia

was given judicial review jurisdiction over all decisions made under

federal legislation, except for decisions made by the Governor-General,

* Alumni Chair of Administrative Law, ANU College of Law, Australian National

University.

1

Commonwealth, Administrative Review Committee Report (1971) Commonwealth

Administrative Review Committee Report 1971 Parliamentary Paper No 144 of 1971, AGPS,

Canberra (‘Kerr Committee Report’). Ref‌inements to the initial blueprint were provided by

three subsequent reports: Interim Report of the Committee on Administrative Discretions,

Parliamentary Paper No 53 of 1973, AGPS, Canberra, 1973 (‘Bland Committee Interim

Report’); the Final Report of the Committee on Administrative Discretions, Parliamentary Paper No

316 of 1973 (‘Bland Committee Final Report’); and the Prerogative Writ Procedures: Report of

Committee of Review, Parliamentary Paper No 56 of 1973 (‘Ellicott Committee Report’).

257

2006 Acta Juridica 257

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and certain decisions relating to security, defence, taxation, industrial

relations, the criminal justice process and certain statutory authorities.

2

The grounds of judicial review were def‌ined in sections 5 and 6 of the

Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The

ADJR Act also provided for a simplif‌ied means of applying for judicial

review – an order for review in section 16 – and a right to reasons for

administrative decisions was provided in section 13. A general jurisdic-

tion merit review tribunal, the Commonwealth Administrative Appeals

Tribunal, was established in 1976,

3

provision was made for an Adminis-

trative Review Council, the monitoring body,

4

and an ombudsman

off‌ice was set up, shorn of the advocacy function suggested by the Kerr

Committee report.

5

No uniform procedure Act has ever emerged.

The aspiration was to ‘establish machinery which [provided] for a

more comprehensive review of administrative decisions’.

6

In particular, it

was seen that the system should provide for ‘review by tribunals other

than the courts as one of its essential elements’

7

since ‘[t]he basic fault of

the entire [existing] structure [was] . . . that review cannot as a general

rule . . . be obtained ‘‘on the merits’’ – and this is usually what the

aggrieved citizen is seeking’.

8

Subsequent developments saw the introduction of federal freedom of

information legislation to provide access to public documents,

9

comple-

mented by national privacy legislation to protect the acquisition, storage,

use and disclosure of personal information by government.

10

Other

elements which have since emerged are a Human Rights and Equal

Opportunity Commission to handle complaints of discrimination or

breach of human rights; rights to internal review of decisions, usually by

an off‌icer at a senior level within an agency; codes of conduct and service

charters; in some jurisdictions, statutory codif‌ication of ethical principles

for public administration; and whistleblower protection legislation.

Although these developments were largely pioneered at the federal

level, they have progressively been adopted or adapted by the Australian

States and Territories. Every State and Territory has an ombudsman,

11

all

2

Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) s 3(1), Sch 1.

3

Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).

4

AAT Act, Part V.

5

Ombudsman Act 1976 (Cth).

6

Kerr Committee Report [12].

7

Kerr Committee Report [7].

8

Kerr Committee Report [58].

9

Freedom of Information Act 1982 (Cth).

10

Privacy Act 1988 (Cth).

11

Ombudsman Act 1989 (ACT); Ombudsman Act 1974 (NSW); Ombudsman (Northern

Territory) Act (NT); Ombudsman Act 2001 (Qld); Ombudsman Act 1972 (SA); Ombudsman Act

1978 (Tas); Ombudsman Act 1973 (Vic);Parliamentary Commissioner Act 1971 (WA).

258 COMPARING ADMINISTRATIVE JUSTICE ACROSS THE COMMONWEALTH

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