Judges often describe their courts as an arm of government. The very arrangement of the Constitution provides some justification for this claim, and it furthermore guarantees a role to the High Court in the review of administrative action. The discharge of this role manifests another dimension of the governmental role of the courts: what they do by way of review has a direct and sometimes profound effect on the business of politics and the administration of government. This is perceived by the judges, who are often at pains to distinguish their role from that of the executive. It is also understood by the politicians, who often criticise the judges for overstepping the mark. All this is not of course solely or even primarily a consequence of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), but in some respects the Act has thrown into sharper relief the tension between judges and politicians which flows from the exercise of judicial review.

Administrative law folklore in Australia concentrated for so long on the amusing British cases that portrayed courts as unpredictable and interventionist. Colourful examples included Roberts v Hopwood, which saw the proposal of the Poplar Borough Council to pay equal wages to men and women overturned as an eccentric and feminist exercise in socialistic philanthropy; Prescott v Birmingham Corporation, which displayed the same judicial aversion to a Council proposal to provide free bus transport to elderly pensioners; and Padfield v Minister of Agriculture, which disparaged a naively expressed but politically understandable Ministerial decision not to conduct an enquiry into inefficiencies in a milk marketing scheme.

The Australian reality, it was often overlooked, was usually more predictable and less interventionist. A predominant theme was the pertinence of judicial restraint in penetrating the exercise of a broad administrative discretion. Accordingly, some of the foundation cases of Australian administrative law reached conclusions which, by contemporary standards, seem astonishing.

Procedure is at the heart of administrative law, just as it is at the heart of public administration. The development of administrative law is rooted historically in questions of the availability of remedies, and the related question of standing. Delivering the Second Reading Speech for the Administrative Decisions (Judicial Review) Bill 1977 in the House of Representatives, Mr Ellicott QC said -

The present law relating to the review by the courts of administrative decisions is in a most unsatisfactory state. A great deal has been written about the shortcomings of the present procedures and it is not, I think, necessary for me to elaborate on these deficiencies in the present context. The law in this area is clearly in need of reform - indeed, it could be said to be medieval - and simplification and to be put into statutory form. What the present Bill seeks to do is to establish a single simple form of proceeding in the Federal Court of Australia for judicial review of Commonwealth administrative actions as an alternative to the present cumbersome and technical procedures for review by way of prerogative writ, or the present actions for a declaration or injunction.

There are five recent decisions of the High Court of Australia, four of which were given in matters which had arisen under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the Act”), and all of which have a significance for the operation of the Act, as well as for public law generally. They are Park Oh Ho v Minister for Immigration and Ethnic Affairs, Chan fee Kin v Minister for Immigration and Ethnic Affairs, Attorney-General (NSW) v Quin, Haoucher v Minister for Immigration and Ethnic Affairs and Australian Broadcasting Tribunal v Bond. The primary concern of this paper is to consider some aspects of their significance for the operation of the Act.

The Australian Taxation Office (“ATO”) currently employs in excess of 18,000 staff engaged in collecting all the main taxes and charges imposed by Parliament (except customs, excise duties and departure taxes). For the year ended 30 June 1990, the ATO collected $75.96 billion in Commonwealth revenue. Through its National Office, sixteen Branch Offices and eighteen Regional Offices, the ATO received over 11 million income tax returns, issued over 8 million tax assessments, conducted over 25,000 audits and answered over 4 million taxpayer enquiries and requests for advisings during that year. These figures show that the work of the ATO is very much a matter of mass decision making.

It is not surprising, therefore, that the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) has had an effect on taxation administration. However, the perspective of the ATO is that the ADJR Act has had a substantial impact on some areas of that administration and little or no impact on others.

I was asked to address the impact of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in the field of broadcasting. That is not the title of this paper, as I frankly doubt that the availability of review under the ADJR Act has made that much difference in this area.

This is not to say, of course, that there have not been important challenges to administrative decisions in this field, with significant consequences, both for those of us working in the area and for administrative law in general. I remain to be convinced, however, that similar challenges would not have occurred, or that there would have been that many less applications for review, if parties to proceedings before the Australian Broadcasting Tribunal (“ABT”) had been left to their remedies under the general law.

This paper considers the impact of the Administrative Decisions (Judicial Review) Act 1977 (eth) (“the Act”) in the area of personnel management in the Australian Public Service (the“APS”). It is written from the perspective of a lawyer, rather than that of a public administrator.

The paper is in four parts, dealing with: the place of personnel management in the “new administrative law”; developments in the area of review of personnel decisions since the Act came into force; the reasons for these developments, and the extent to which they may be attributed to different aspects of the Act; and assessment of the changes that have occurred.