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 Report 26

Review of Administrative Decisions (Judicial Review) Act 1977: Stage 1, 1986

Summary of the report

The report was transmitted to the Government on 13 August 1986, and was tabled in the Parliament on 25 November 1986.

This report constituted the first stage of a major examination of the operation of the Administrative Decisions (Judicial Review) Act 1977 ('AD(JR) Act'). It provided advice in relation to claims that the AD(JR) Act was being abused in some areas. The fundamental issue was whether experience of the operation of the Act had demonstrated that, in the course of achieving its primary aims, it had left public authorities open to unwarranted litigation.

The Council did not consider that increased use of the legislation generally, or under specific legislation, or, the mere fact of applications for an order of review being refused, indicated that the AD(JR) Act was being abused. The Council found little evidence of the AD(JR) Act being used to delay or frustrate Commonwealth administration, merely to gain a tactical advantage rather than to establish a genuine legal right or interest. The Council recommended amendments to the AD(JR) Act, by which the Federal Court's powers could be extended and clarified to enable it to stay or to refuse to grant applications for review in appropriate cases.

Response to the report

The Administrative Decisions (Judicial Review) Amendment Bill 1987 went further than the Council had proposed in dealing with the powers of the Federal Court to refuse or stay applications for review. Following concerns about the Bill expressed in a report of the Legal and Constitutional Affairs Committee of the Senate, the Bill was defeated in the Senate on 20 April 1988. A substantial number of the Council's recommendations in this report were subsumed into a later report - Report No. 32. In view of this, the Attorney-General indicated that the Government would not pursue implementation of this report.