VANESSA LI
ECONOMICS / LLB II
Judicial review is an important mechanism for setting boundaries on the exercise of executive power and ensuring that decision makers adhere to principles of procedural fairness. The appointment and conduct of a Royal Commission is one such exercise of executive power which can be subject to judicial oversight.
In Australia, the process for a plaintiff seeking judicial review of a Royal Commission has been significantly streamlined by the Administrative Decisions (Judicial Review) Act 1977, which codifies much of the common law governing judicial review.[1] The United Kingdom’s system of judicial review can be distinguished for the operation of the Human Rights Act 1998, which may incorporate human rights discourse into the review of Royal Commission decisions.[2] While New Zealand lacks a unifying statute setting out grounds for judicial review, its courts have developed a rich body of case law governing the review of ultimate Commission findings.[3]
How common are judicial reviews of Royal Commissions?
The announcement of a Royal Commission attracts widespread comment from many groups in Australian society, including industries and the media. However, the courts are a significant group in Australia’s decision-making landscape who typically remain silent. Despite the wide investigative and coercive powers granted to Royal Commissions, Australian courts are rarely asked to undertake review of the procedures or decisions of a Royal Commission.
The doctrine of the separation of powers may explain the rarity of judicial review, limiting the court’s ability to infringe upon executive power. As the Australian Law Reform Commission has observed, the Commission’s final report represents merely the opinion of the Commissioner and has no legal effect, reducing the scope for the courts’ involvement.[4] Additionally, judicial review of a pending Royal Commission has been criticised as increasing cost and delay.[5] In his final report for the Royal Commission into the Building and Construction Industry, Commissioner Cole acknowledged that litigation against a Royal Commission can “easily (derail) an investigation”.[6]
“...judicial review remains an important tool for safeguarding the interests of persons called to appear before a Commission and enforcing “the rule of law over executive action.[7]”
Despite these shortcomings, judicial review remains an important tool for safeguarding the interests of persons called to appear before a Commission and enforcing “the rule of law over executive action”.[7] Where a Royal Commissioner has formulated their ultimate findings without adhering to the principles of natural justice, judicial review may vindicate the reputations of wronged individuals.[8]
Perhaps most importantly, subjecting a Royal Commission to the scrutiny of judicial review ensures that decision-makers exercise their power within lawful limits. Since Royal Commissions are not bound by the rules of evidence or client legal privilege, judicial review remains an important check on the legality of executive action where the usual litigation procedural safeguards have been relaxed or removed.[9]
How can individuals access judicial review in Australia?
Judicial review generally refers to the capacity of the courts to provide remedies to people and organisations negatively impacted by unlawful government action.[10] The judiciary is only permitted to assess the legality of decisions and findings made in connection with the Royal Commission, rather than conduct merits-based review.[11]
Individuals or entities whose rights or interests are adversely affected by the decisions or procedures of a Royal Commission may seek judicial review through the High Court or Federal Court.
1. High Court of Australia
The High Court may engage in judicial review through the exercise of its original jurisdiction under the Australian Constitution.[12] Section 75(v) of the Constitution confers original jurisdiction with respect to all matters in which a writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth.[13] Since Royal Commissions are established under Letters Patent by the Governor-General and their powers are defined under the Royal Commissions Act 1902 (Cth), s 75(v) operates so that the decisions or conduct of any member of the Commission may be subject to judicial review through the High Court’s original jurisdiction.[14]
The prerogative writs and equitable remedies sought upon application for judicial review each serve different functions. The writ of mandamus has the effect of compelling the administrative decision-maker to perform a public duty that remains unperformed.[15] A prohibition has the effect of restraining an inferior court or decision-maker from exceeding their jurisdiction.[16] An injunction is a judicial order which restrains an officer of the Commonwealth from acting or compels the officer to take positive action.[17]
The High Court also has an inherent power to grant a declaration,[18] which is a binding adjudication by the Court of the parties’ rights and obligations at law.[19] Where a party seeks judicial review with respect to a Commission that has already produced its final report, a declaration that an error of law or fault of procedure has occurred is the only remedy that is practicably available.[20]
An application for judicial review with respect to a Royal Commission is rarely made under s 75(v) of the Constitution, with most plaintiffs bringing their claim under the Administrative Decisions (Judicial Review) Act 1977 for reasons explained below.
2. Federal Court of Australia
The Judiciary Act 1903 and the Administrative Decisions (Judicial Review) Act 1977 offer alternative pathways for aggrieved persons to access the Federal Court for review of decisions of a Royal Commission.
Review under the Judiciary Act
Section 39B(1) of the Judiciary Act 1903 (Cth) extends the jurisdiction of the Federal Court to correspond with the High Court’s original jurisdiction,[21] under s 75(v) of the Constitution.[22] Written in identical wording, s 39B(1) operates in the same manner as s 75(v) of the Constitution with respect to applications for the judicial review of Royal Commissions. Applicants under the Judiciary Act have the discretion to choose in which court to commence proceedings. In practice, most applications for judicial review commenced in the High Court are remitted to the Federal Court.[23]
Review under the Administrative Decisions (Judicial Review) Act
The Administrative Decisions (Judicial Review) Act (‘ADJR Act’) provides statutory grounds for the appeal against the decisions and conduct of an officer of the Commonwealth.[24] Section 5 of the AJDR Act sets out numerous grounds for review with respect to decisions,[25] while s 6 details grounds regarding the review of conduct relating to the making of decisions.[26] These grounds of review were generally drawn from existing common law principles.
The ADJR Act has proven to be the more popular route for parties seeking judicial review of Royal Commissions due to its clarity in codifying common law grounds for judicial review. The grounds of review set out in ss 5 and 6 of the ADJR Act include a breach of the rules of natural justice,[27] a failure to observe procedures required by law,[28] and that the officer did not have jurisdiction to make the decision.[29]
Grounds for judicial review
Common law grounds for judicial review, now largely contained within ss 5 and 6 of the ADJR Act, provide numerous options for the judicial review of administrative action, including Royal Commissions. Challenges in Australian courts have largely centred around the purported legality of the Commissioner’s conduct or decisions and their adherence to the rules of natural justice.
1. Legality
Sections 5 and 6 of the ADJR Act establish grounds for review relating to the legality of decisions and conduct under a Royal Commission.[30] This ground of judicial review may arise where a member of the Commission has made a decision or acted in a way which exceeds the scope or limits of the Royal Commission’s terms of reference.[31] A Royal Commission’s terms of reference are stated in the Letters Patent issued by the Governor-General and are important for defining the scope and limits of the Commission’s powers.
A number of such applications for judicial review arose with respect to decisions made by members of the Royal Commission into Aboriginal Deaths in Custody, established in 1987. In Eatts v Dawson, members of the NSW Police applied for judicial review seeking a prohibition to prevent the Royal Commissioner from inquiring into the death of a certain Aboriginal man.[32] NSW Police argued that the circumstances in which the deceased was held prior to his death did not fall within the meaning of “police custody” as stated in the Commission’s terms of reference.[33] On appeal, the High Court adopted a broader construction of “police custody” and held that the Commissioner was acting within his powers when inquiring into the deceased’s death.[34]
In Attorney-General (Commonwealth) v Queensland, the State of Queensland initiated proceedings in the Federal Court under the ADJR Act to object to the Commissioner’s determination that a deceased man was “Aboriginal” per its terms of reference.[35] On appeal, the High Court declined to interfere with the Commissioner’s ruling since the deceased was “non-trivially” of Aboriginal descent and the Commissioner made no error of law in coming to their determination.[36]
In addition, the Full Court of the Federal Court in Ross v Costigan (No 2) stated that the Commissioner may investigate whatever they believe, in good faith, will assist in their inquiry.[37] The High Court’s choice to adopt a broad interpretation of a Royal Commission’s terms of reference and the flexibility extended to bona fide decisions support the ALRC’s observation that the courts are generally reluctant to interfere with the conduct of a Royal Commission.[38]
2. Breach of natural justice
The notion of natural justice, often referred to as the obligation of procedural fairness, is a foundational notion for the control of executive action. Sections 5(1)(a) and 6(1)(a) of the ADJR Act establishes grounds of review where a breach of the rules of natural justice has occurred. The Federal Court has acknowledged that the rules of natural justice and procedural fairness impose obligations on a Royal Commission.[39]
Within the context of a Royal Commission, the requirement to accord procedural fairness imposes a duty to ensure that any person whose rights or interests are sufficiently affected by an adverse finding be given an opportunity to adduce additional material that might deter the Commissioner from making that finding.[40] Additionally, the Commissioner cannot be committed to a conclusion which is already formed and incapable of alteration, despite any alternative evidence or arguments.[41]
Ferguson v Cole concerned the Royal Commission into the Building and Construction Industry, in which the applicants were advised that the Commissioner wished to make findings of fact against them and were provided with a date by which to present submissions in reply.[42] The Commissioner then presented a draft report containing these allegedly adverse findings to the Governor-General prior to the due date for the applicants’ submissions. The applicants alleged that they were not provided with an opportunity for reply and that the report evidenced bias on the part of the Commissioner.[43]
The Court held that the prior hearing rule did not apply because the applicants, individually and as a class, were not sufficiently affected in a personal or political way by the report so as to give rise to a duty upon the Commissioner to provide an opportunity for reply.[44] Additionally, the Court held that the Commissioner expressed the findings of fact in the draft report with considerable generality in such a way that did not constitute bias.[45]
United Kingdom
Although the history of public inquiries in the United Kingdom extends back into the 11th century, Royal Commissions have fallen in popularity in the past ten years in favour of other forms of public inquiry, such as permanent statutory commissions. Section 31 of the Senior Courts Act 1981 provides that an application for judicial review may be made to the High Court where the applicant has a “sufficient interest” in the nature of the matters, persons and bodies involved and all circumstances of the case.[46]
“Arguably, the Human Rights Act 1998 operates to provide stronger protection of individuals who are adversely impacted by the conduct of a Royal Commission. ”
Section 31 is considerably more general than s 5 of the ADJR Act, being more analogous to s 75(v) of the Constitution or s 39B of the Judiciary Act. The UK does not have a statute like the ADJR Act that clearly sets out grounds for judicial review. Common law grounds for review include a jurisdictional error of law[47] and a failure to give fair notice and an opportunity to be heard.[48]
The UK’s approach to judicial review also differs from that of Australia due to the operation of the Human Rights Act 1998.[49] The Act provides that the courts’ interpretation of the law and the actions taken by officers of the Crown must accord with the European Convention on Human Rights. The rights-centric approach in the UK contrasts with the absence of a Bill of Rights in Australia.
In the context of Royal Commissions, judicial review guided by bills of rights or human rights statutes has been praised as strengthening protections on procedural fairness.[50] Arguably, the Human Rights Act 1998 operates to provide stronger protection of individuals who are adversely impacted by the conduct of a Royal Commission.
New Zealand
The New Zealand High Court has a well-established ability to review Royal Commissions.[51] While the ADJR Act in Australia provides grounds that establish an application for judicial review, New Zealand does not have a statute setting out grounds for judicial review. Applicants must rely on case law principles to establish a ground of review.
Prior challenges warranting judicial review largely correspond to the grounds set out in Australia’s ADJR Act. For example, the New Zealand High Court has faced a challenge regarding allegations of bias and breach of natural justice, which is analogous to breach of the natural justice provision in s 5(1)(a) of the ADJR Act.[52] Additionally, challenges in New Zealand regarding the validity and scope of a Commission’s terms of reference correspond to s 5(1)(c)-(d) of the ADJR Act regarding a Commissioner’s decision-making authority and jurisdiction.[53]
New Zealand also has a rich body of case law relating to the judicial review with respect to the ultimate findings of a Royal Commissioner, a challenge which has not yet occurred in Australia. In Air New Zealand v Mahon, the Privy Council held that the Commissioner’s ultimate findings, which condemned the airline for engaging in ‘an orchestrated litany of lies’, represented a breach of natural justice since the airline was not notified of the risk of an adverse finding and given an opportunity to reply.[54] The Privy Council stated that natural justice requires that a Commissioner’s findings be based upon material that logically indicates the existence of facts in support of those findings.[55]
Notably, Mason CJ, as his Honour was, in Australian Broadcasting Tribunal v Bond noted that the High Court of Australia “has not so far…accepted” the Privy Council’s view that a logical basis must be shown for administrative decisions.[56] His Honour’s view suggests that Australian courts will accept a lower standard of natural justice which does not necessarily require a Commissioner to present a logical basis for their findings.
Additionally, the New Zealand Court of Appeal in Peters v Davison confirmed that Commission reports could be subject to judicial review,[57] which the New Zealand Law Reform Commission has noted applies to Royal Commission reports.[58] The Court of Appeal justified their decision by stating that there is a private and public interest in ensuring that condemnation of an individual or entity in a Commission report is made on a proper legal basis.[59] This body of case law arguably strengthens the protection of individuals whose interests are adversely affected by the contents of a final Commission report.
Conclusion
A comparison between judicial review in Australia, New Zealand and the UK highlights the strengths and weaknesses in Australia’s current model of Royal Commission oversight. The ADJR Act, favoured by most Australian plaintiffs seeking judicial review of Royal Commission conduct, succeeds in setting out clear grounds of review while maintaining flexibility for the courts to apply and develop case law principles.
However, arguably deficient in the judicial review of Australian Royal Commissions is the consideration of human rights, especially when compared with the United Kingdom’s system of judicial review. A greater movement towards human rights discourse in judicial review may strengthen the existing common law protections for individuals who interact with a Royal Commission and complement principles of natural justice.
[1] Administrative Decisions (Judicial Review) Act 1977 (Cth).
[2] Human Rights Act 1998 (UK).
[3] New Zealand Law Reform Commission, A New Inquiries Act (Report No 102, May 2008) 59 (‘NZLRC Report’).
[4] Australian Law Reform Commission, Making Inquiries (Report No 111, October 2009) 357.
[5] NZLRC Report 59.
[6] Royal Commission into the Building and Construction Industry (Final Report, March 2003) vol 2, 81.
[7] Church of Scientology v Woodward (1982) 154 CLR 25, 70 (Brennan J).
[8] Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1981) 152 CLR 25, 107 (Murphy J).
[9] Law Council of Australia, Submission No 9 to Australian Law Reform Commission, Making Inquiries (19 May 2009) 2.
[10] Administrative Review Council, The Scope of Judicial Review (Report No 47, May 2006) 1.
[11] Annetts v McCann (1990) 170 CLR 596 (Brennan J) as cited in Australian Law Reform Commission, Making Inquiries (Report No 111, October 2009).
[12] Australian Constitution s 75(v).
[13] Australian Constitution s 75(v).
[14] Royal Commissions Act 1902 (Cth).
[15] R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 3.
[16] Re McBain; Ex parte Australia Catholic Bishops Conference (2002) 209 CLR 372, 422 (McHugh J).
[17] Matthew Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014) 168.
[18] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581.
[19] Administrative Review Council, Federal Judicial Review in Australia (Report No 50, September 2012) 49.
[20] NZLRC Report, 158.
[21] Judiciary Act 1903 (Cth) s 39B(1).
[22] Australian Constitution s 75(v).
[23] Enid Campbell, ‘The accrued jurisdiction of the Federal Court in administrative law matters’ (1998) 17 Australian Bar Review 127, 129.
[24] Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’).
[25] Ibid s 5.
[26] Ibid s 6.
[27] ADJR Act s 5(1)(a).
[28] Ibid s 5(1)(b).
[29] Ibid s 5(1)(c).
[30] Ibid ss 5(1)(c)-(e), 6(1)(c)-(e).
[31] Lockwood v Commonwealth (1954) 90 CLR 177, 184.
[32] (1990) 21 FCR 166 (‘Eatts v Dawson’).
[33] Ibid 170 (Morling and Gummow JJ).
[34] Ibid 180.
[35] (1990) 94 ALR 515.
[36] Ibid 516 (Spender J).
[37] Ross v Costigan (No 2) (1982) 41 ALR 337.
[38] Australian Law Reform Commission, Making Inquiries (Report No 111, October 2009) 357.
[39] Ferguson v Cole (2002) 121 FCR 402, [34] (Branson J), (‘Ferguson v Cole’).
[40] Annetts v McCann 599 as cited in Ferguson v Cole [34].
[41] Minister for Immigration and Multicultural Affairs v Jia Legeng (2002) 205 CLR 507, 532 (Gleeson CJ and Gummow J).
[42] Ferguson v Cole (2002) 121 FCR 402.
[43] Ibid 413 (Branson J).
[44] Ibid 420.
[45] Ibid 421.
[46] Senior Courts Act 1981 (UK) s 31.
[47] R(A) v Croydon London Borough Council [2009] 1 WLR 2557.
[48] Ridge v Baldwin [1964] AC 40.
[49] Human Rights Act 1998 (UK).
[50] Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (Report No 129, December 2015) 138.
[51] NZLRC Report, 156.
[52] Re Royal Commission on Thomas Case [1982] 1 NZLR 252.
[53] Cock v Attorney-General (1909) 28 NZLR 405.
[54] [1984] AC 808, 809 (‘Air New Zealand’).
[55] Air New Zealand 821.
[56] (1990) 170 CLR 321, 357 (Mason J).
[57] [1999] 2 NZLR 164 (‘Peters v Davison’).
[58] NZLRC Report 157.
[59] Peters v Davison 553.