Principle (i): Availability of independent review

Overview

Senate standing order 23(3)(i) requires the committee to scrutinise each instrument as to whether it unduly excludes, limits or fails to provide for the independent review of decisions affecting rights, liberties, obligations or interests. Under this principle, the committee will typically be concerned with instruments which:

  • exclude, limit or fail to provide for independent merits review; or
  • exclude or limit judicial review, such as by containing a no-invalidity clause.

Availability of independent merits review

Where an instrument empowers a decision-maker to make discretionary decisions which have the capacity to affect a person's rights, liberties, obligations or interests, those decisions should ordinarily be subject to independent merits review.

Accordingly, the explanatory statement to any instrument including such powers should provide:

  • whether independent merits review is available;
  • if merits review has not been made available, the characteristics of the relevant decisions which justify their exclusion by reference to the Administrative Review Council's guide What decisions should be subject to merit review?; and
  • if merits review of a decision under the instrument is expressly precluded by the enabling legislation, a description of additional safeguards in relation to the relevant decisions, such as special training for decision-makers, guidance for decision-makers in exercising their discretion, and the availability of other forms of external review such as by the Ombudsman.

The committee considers that the following factors alone will not constitute a sufficient justification for excluding independent merits review where there are no other relevant justifications or safeguards:

  • the enabling legislation does not provide for merits review under the Administrative Appeals Tribunal Act 1975 (AAT Act);
  • the relevant decisions are not made 'under an enactment';
  • the availability of judicial review or natural justice in relation to the decision; and
  • the availability of internal review (for example, review by a departmental officer) or review by the Ombudsman.

The committee's concerns under this principle will be heightened where independent merits review is not available in relation to provisions that provide for automated decision-making, as this may fetter the exercise of discretionary power. This issue is discussed further in the guideline on principle (c).

Availability of judicial review

The exclusion or limitation of judicial review of administrative action removes a fundamental right for a person affected by the decision to challenge it in court. Such limitations are sometimes created by no invalidity clauses, which provide that an act or decision will not be legally invalid even if it breaches certain statutory requirements. Such clauses potentially restrict an applicant's capacity to seek meaningful judicial review of the relevant act or decision. Accordingly, where an instrument excludes or limits the availability of judicial review for a decision, the explanatory statement to the instrument should explain:

  • the nature and scope of the exclusion or limitation, such as a no-invalidity clause; and
  • why the exclusion or limitation is necessary and appropriate, noting the serious consequences it will have for a person affected by the decision; and
  • the nature and scope of any relevant safeguards in the absence of judicial review.

Explanatory statement checklist

The following checklist summarises the types of information which should be included in an explanatory statement.

Availability of independent merits review

Where an instrument empowers a decision-maker to make discretionary decisions with the capacity to affect rights, liberties, obligations or interests, the explanatory statement should explain:

  • whether independent merits review is available;
  • if merits review has not been made  available, the characteristics of the relevant decisions which justify their exclusion, by reference to the Administrative Review Council's guide What decisions should be subject to merit review?; and
  • if merits review of a decision under the instrument is expressly precluded by the enabling legislation, a description of additional safeguards in relation to the relevant decisions, such as special training for decision-makers, guidance for decision-makers in exercising their discretion, and the availability of other forms of external review such as by the Ombudsman.
Availability of judicial review

Where an instrument excludes or limits the availability of judicial review for a decision, the explanatory statement should explain:

  • the nature and scope of the exclusion or limitation, such as a no-invalidity clause;
  • why the exclusion or limitation is necessary and appropriate, noting the serious consequences it will have for a person affected by the decision; and
  • the nature and scope of any relevant safeguards in the absence of judicial review.

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