June 2011

Mr Colin Neave AM

President

Administrative Review Council

ARC Secretariat

Attorney General’s Department

3-5 National Circuit

BARTON ACT 2600

Dear Mr Neave

Thank you for your letter of 20 April 2011, inviting the comment on the Administrative Review Council’s consultation paper on Judicial Review in Australia.

I support the work of the Administrative Review Council in undertaking this review and welcome the opportunity to have input into the future direction of judicial review in Australia.

Information on the department’s experiences of judicial review and answers to some of the specific questions raised in the issues paper are at Attachment A.

If you require further information, please contact Ms Catherine Smith, Governance Policy Section, Corporate Services Division on 0262725504 or at .

Once again, thank you for the opportunity to comment on your consultation paper.

Yours sincerely

SignedConall O’Connell

ATTACHMENT A

The Department of Agriculture, Fisheries and Forestry (the department) has comments to make on the following questions raised in the consultation paper:

Question 2What are other examples of statutory judicial review? What are the appropriate policy reasons for having a statutory appeal or review mechanism as opposed to relying on general judicial review mechanisms? What characteristics should such a scheme have?

The department administers a number of pieces of legislation that contain internal review mechanisms. These mechanisms allow a person affected by a decision to apply for merits review of that decision (as opposed to judicial review).In addition, certain legislation administered by the department permits a person affected by a decision to seek review of the decision in the Administrative Appeals Tribunal.

Question 3How should statutory judicial review cover subordinate legislation, particularly where an instrument can be characterised as an administrative decision?

The department administers a number of pieces of legislation, such as the Export Control Act 1982, the various Agricultural and Veterinary Chemical Products Acts, the Quarantine Proclamationsand the Fisheries Management Act 1991, which set out significant parts oftheirlegislative schemesin subordinate legislation.

Any changes to the statutory judicial review process to include decisions about subordinate legislation in the decisions that can be reviewed under judicial review may have a significant impact onthe department and/or portfolio agencies and related industries. The ramifications of any proposed changes would need to be considered closely on a case by case basis for each piece of legislation.

It would seem the question is also directed towards the making of Regulations by the Governor-General as well as other instruments like Orders by the Minister and Orders by the Secretary of the Department of Agriculture, Fisheries and Forestry under, for example, the Australian Meat and Live-stock Industry Act 1997. Depending upon any proposal that is put forward, the department may have some concerns about the potential for judicial review to apply in this area as it is unclear how a right to judicial review would interact with the scrutiny of legislation that is already undertaken by Parliament (including the Senate Committee on Regulations and Ordnances (SCRO) and the disallowance process).

Question 5 Should the ADJR Act be amended to include a statutory right to review decisions made under executive schemes for which financial or other assistance is provided to individuals? What examples are there of such schemes which are currently not subject to a statutory right of review? What are the reasons for making them or not making them subject to statutory review?

The department administers a number of executive grant and exceptional circumstances schemes which are not subject to a statutory right of judicial review. These schemes frequently contain at least two tiers of internal review. If an applicant is not satisfied with the outcome of these reviews, they are advised of their right to approach the Commonwealth Ombudsman or to apply for discretionary compensation.

Some applicants do elect to have their matter considered under the discretionary compensation mechanisms, in particular the act of grace scheme which, in itself, provides for a number of levels of review.

It is the department’s view that there are currently sufficient review mechanisms available for executive schemes administered by the department and that adding a statutory right of review for these schemes would add an extra layer of red-tape without providing significant benefit to applicants or agencies.

Question 16One of the objectives of this examination of judicial review is to identify all examples of legislation or subordinate legislation that include a specific right to reasons. Are there examples of provisions giving a right to reasons which provide useful illustrations of effective content, timing and form of reasons?

Section 13 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), generally speaking, gives a right to a statement of reasons to any person who is affected by a decision made under legislation. There are decisions arising under legislation administered by the department thatalreadygive rise to particular notification requirements, including the requirement to provide reasonsfor the decision (which operate in addition to section 13 of the ADJR Act). Two examples are section 29(4)(b) of the Fisheries Management Act 1991 and section 66AH(5)(a) of the Quarantine Act 1908.

As a matter of good administrative law practice,virtually all decisionsmade should beaccompanied by reasons. There may, however, be situations, such as quarantine emergency situations, where it is not possible to provide a long, detailed statement of reasons.

Anyfurther statutory right to give reasons would need to be flexible to take account ofdiffering environments in which decisions are made. It is not clear whetherafurther statutory rightmightapply to non-legislative decisions (that is, decisions made outside legislation but under executive schemes) as it would seem to be redundant if it were to apply to legislative decisions, given section 13 already exists.

Additional comments

The consultation paper draws on a number of previous recommendations and opinions put forward by the Administrative Review Council that are of interest to the department.

One is the option of extending the right to judicial review under the ADJR Act to cover:

  1. decisions of an administrative nature that are made under a non-statutory scheme or program where funds appropriated by an Act of Parliament are being used;
  2. statutory decisions made by the Governor-General; and
  3. legislative actions of the executive.

In relation to (a) above, as the department administers (or co-administers) some grant programs, such a change could increase the range of decisions made by the department that are subject tojudicialreview.Any other non-statutory schemes it administers would also be affected.

In relation to (b) and (c) above, significant aspects of the legislation administered by the department are contained in legislative instruments made under Acts of Parliament. A key example is the Export Control Act 1982 and its numerous commodity-related orders. Extending the right to judicial review to include statutory decisions of the Governor General and the legislative actions of the executive could impose judicial review scrutiny over decisions made by the ministerand the secretary in making Orders and other legislative instruments. Currently, decisions of an "administrative" characteronly may be reviewed under the ADJR Act.

A second is the option of reinstating the Schedule 2 exemptions to section 13 of the ADJR Act which enables a statement of reasons to be requested. The exemptions currently in place that may affect the department, if reinstated,include:

  1. Remuneration Tribunal decisions and
  2. decisions in connection with enforcing orders or judgments to recovery money owed.

While this would presumably affect the Remuneration Tribunal more than it would the department, implementation of this recommendation may have a significant impact on the department due to the number of Research and Development Corporations falling within the department's portfolio and under the Primary Industries and Energy Research and Development Act 1989.

Further, as a number of areas of the department, such as the Australian Quarantine and Inspection Service, operate on a cost-recovery basis, the requirement fora detailedstatement of reasons for debt recovery actions following judgment or order could also impact the department.