Hostname: page-component-745bb68f8f-g4j75 Total loading time: 0 Render date: 2025-01-30T22:53:45.755Z Has data issue: false hasContentIssue false
  • English
  • Français

Legislative Reform of Judicial Review of Commonwealth Administrative Action

Published online by Cambridge University Press:  24 January 2025

John Griffiths
Get access Rights & Permissions [Opens in a new window]

Abstract

Over the last three years the Commonwealth has enacted four statutes with the aim of overcoming some of the deficiencies which exist at common law in the reviewing of administrative action. These are the Administrative Appeals Tribunal Act 1975 (Cth), the Administrative Appeals Tribunal Amendment Act 1977 (Cth), the Ombudsman Act 1976 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). This article examines in detail the Administrative Decisions (Judicial Review) Act 1977 (Cth) in order to determine whether the common law rights and remedies have been improved.

Type
Research Article
Information
Federal Law Review , Volume 9 , Issue 1 , March 1978 , pp. 42 - 70
Copyright
Copyright © 1978 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Whitmore, “Administrative Law in the Commonwealth: Some Proposals for Reform” (1972) 5 FL. Rev. 7.

2 Report of the Commonwealth Administrative Review Committee (the “Kerr.Committee”), Parliamentary Paper No. 144 of 1971. (Hereinafter referred to as the Kerr Committee Report.)

3 Id. para. 6. See also paras. 5, 12. Throughout its Report, the Kerr Committee uses “review” in a nontechnical sense to denote all forms of revising administrative action. Strictly speaking, “review” refers to the process of examining the legality of a decision as distinct from hearing an appeal on the merits of a decision: see generally, Wade, Administrative Law (3rd ed. 1971) 53-55.

4 Kerr Committee Report, paras. 389-390.

5 Interim Report of the Committee on Administrative Discretions (the “Bland Committee”), Parliamentary Paper No. 53 of 1973; Final Report of the Committee on Administrative Discretions, Parliamentary Paper No. 316 of 1973; Report of the Committee of Review of Prerogative Writ Procedures (the “Ellicott Committee”), Parliamentary Paper No. 56 of 1973. (Hereinafter referred to as the Ellicott Committee Report).

6 At least two other important pieces of legislation relating to freedom of information and standard procedures for Commonwealth adjudicative tribunals are in the Parliamentary pipeline and are expected to be enacted soon: see statement by the Attorney-General in Commonwealth of Australia, H.R. Deb. 1977, No. 8, 1396.

7 Id. 1624 (Mr Neil).

8 S. Deb. 1977, No. 11, 1608.

9 Hereinafter referred to as the Judicial Review Act.

10 See generally, de Smith, Judicial Review of Administrative Action (3rd ed. 1973) 64-68, 182-186; and see Kerr Committee Report para. 253 and Ellicott Committee Report para. 31.

11 On the analytical distinction between legislative and administrative acts, see generally, de Smith id. 60-64.

12 Decisions made under such instruments are challengeable in accordance with section 3(1).

13 On the analytical distinctions between judicial, quasi-judicial and administrative acts, see generally de Smith, op. cit. 64-77.

14 This distinction has been drawn in relation to the concept of “administrative action” arising under the Ombudsman Act 1973 (Vic.): see especially Glenister v. Dillon [1976] V.R. 550, 557-558, 563-564.

15 Ellicott Committee Report, para. 26.

16 Id. paras. 23 and 27; Kerr Committee Report, para. 265.

17 Ellicott Committee Report, para. 22.

18 See generally de Smith, op. cit. 253-255; Markesinis, “The Royal Prerogative Revisited” (1973) 32 Cambridge Law Journal 287.

19 For example, Mutual Acceptance Ltd v. Commonwealth [1972-1973] A.L.R. 1338.

20 Kerr Committee Report, para. 265; Ellicott Committee Report, para. 32. For the limited extent to which such decisions may be challenged at common law, see generally Hogg, “Judicial Review of Action by the Crown Representative” (1969) 43 A.L.J. 215.

21 Acts Interpretation Act 1901, s. 16A (Cth).

22 See generally, de Smith, op. cit. 19.

23 Federal Court of Australia Act 1976, s. 19 (Cth).

24 The High Court has original jurisdiction where prohibition, mandamus and injunction are invoked against any officer of the Commonwealth: section 75 ( v) of the Constitution. It would appear that the High Court's original jurisdiction would include the other remedies of judicial review, but the law regarding the High Court's jurisdiction to issue the prerogative orders, in particular, is far from certain: see generally Katz, “Aspects of the High Court's Jurisdiction to Grant Prerogative Writs Under s. 75(iii) and s. 75(v) of the Constitution” (1976) 5 University of Tasmania Law Review 188.

25 Commenting on the proposition that the High Court should be the only court with supervisory powers to review Commonwealth administrative action, the Kerr Committee said: “First, many administrative decisions relate to matters in which the amount involved or the importance of the question raised would not warrant proceedings in the High Court; secondly, proceedings in that Court would in many cases be more costly than those in lesser jurisdictions; thirdly, ... we regard it as undesirable to add to the already heavy burden imposed on the High Court ... “ Kerr Committee Report, para. 241; and see Ellicott Committee Report, para. 47.

26 Ellicott, “The Exercise of Federal Jurisdiction-A Revision of the Federal Judicial Structure” (1977) 1 Criminal Law Journal 2, 8.

27 Kerr Committee Report, paras. 44, 49, 51-52.

28 Id. para. 254.

29 (1976) 92 L.Q.R. 337.

30 [1972] 2 All E.R. 589, 595. See also R. v. Paddington Valuation Officer; ex parte Peachey Corporation Ltd 1966] 1 Q.B. 380; Gregory v. Camden London Borough Council [1966] 1 W.L.R. 899. The English Law Commission has acknowledged the recent trend to develop a uniform requirement or standing for the prerogative remedies: see Remedies in Administrative Law Cmnd 6407 (1976) para. 13.

31 [1976] 3 All E.R. 184, 191-192. In similar vein, the English Law Commission recently recommended that applicants for judicial review should “have such interest as the court considers sufficient”: supra n. 30, para. 48. The anomalous doctrine that a court has no discretion to deny prohibition to a stranger where there is a patent defect of jurisdiction would provide, in theory, a remedy to a stranger when the Judicial Review Act would require that that applicant be a person aggrieved: see London Corporation v. Cox [1867] L.R. 2 H.L. 239; Benjafield and Whitmore, Principles of Australian Administrative Law (4th ed. 1971) 209. It should be noted, however, that the authority of that doctrine is somewhat suspect: see Yardley, “Prohibition and Mandamus and the Problem of Locus Standi” (1957) 73 L.Q.R. 534; Thio, “Locus Standi in Relation to Prohibition” [1965] Public Law 88; de Smith, op. cit. 367-368. On the question whether certiorari is available to a stranger, see Yardley, “Certiorari and the Problem of Standing” (1955) 71 L.Q.R. 388; de Smith, op. cit. 368-372.

32 [1977] 3 W.L.R. 300. The requirement that an applicant be a “person aggrieved” would appear to be easier to satisfy than the traditional requirements of standing for the remedies of injunction and declaration as reasserted in this decision.

33 [1974] W.A.R. 101.

34 The Commission has been requested to investigate and report upon “the standing of persons to sue in Federal and other courts whilst exercising Federal jurisdiction or in courts exercising jurisdiction under any law of any Territory; and class actions in such courts”.

35 E.g., Ex parte Sidebotham. In re Sidebotham (1880) 14 Ch. D. 458; Buxton v. Minister of Housing and Local Government [1961] 1 Q.B. 278; Phillips v. Berkshire C.C. [1967] 2 Q.B. 991. See generally, Wade, op. cit. 148-149; de Smith, op. cit. 364-367.

36 Attorney-General of the Gambia v. N'Jie [1961] A.C. 617, 634 (P.C.). This interpretation has been expressly applied in at least two recent Australian decisions: R. v. Town and Country Planning Commissioner; ex parte Scott [1970] Tas. S.R. 154, 181-182 per Burbury C.J., and National Trust of Australia (Victoria) v. Australian Temperance and General Mutual Life Association Society Ltd [1976] V.R. 592, 604-605.

37 De Smith, op. cit. 365-366; Benjafield and Whitmore, op. cit. 209-210.

38 Kerr Committee Report, para. 306.

39 In a recent decision in the Supreme Court of South Australia in which a narrow interpretation of “person aggrieved” was taken, Wells J. emphasised the importance of the particular statutory context: Byrne v. The District Council of Noarlunga [1970] S.A.S.R. 523, 531.

40 Supra n. 34.

41 R. v. Kirby; ex parte Boilermakers' Society of Australia (1956) 94 C.L.R. 254 (H.C.), (1957) 95 C.L.R. 529 (P.C.): Kerr Committee Report, paras. 59-73. The continuing authority of the Boilermakers' case has recently been questioned: R. v. loske; ex parte Australian Building Construction Employees and Builders Labourers' Federation (1974) 2 A.L.R. 447, 449-450 per Barwick C.J., 459 per Mason J.

42 Kerr Committee Report, para. 247.

43 Id. para. 248.

44 Judicial Review Act, ss. 5 and 6.

45 Supra nn. 1, 13.

46 Ellicott Committee Report, para. 40.

47 Id. para. 43.

48 Id. para. 18.

49 Id. para. 19.

50 H.R. Deb. 1977, No. 8, 1396.

51 Salemi v. Minister for Immigration and Ethnic Affairs (No. 2) (1977) 14 A.L.R. 1. See also R. v. Minister for Immigration and Ethnic Affairs; ex parte Batu (1977) 14 A.L.R. 317.

52 See generally, de Smith, op. cit. 141-151; Benjafield and Whitmore, op. cit. 135-145.

53 E.g., Re H.K. (An Infant) [1967] 2 Q.B. 617; Re Pergamon Press [1971] Ch. 388; Pearlberg v. Varty [1972] 1 W.L.R. 534 (P.C.); Maxwell v. Department of Trade and Industry [1974] Q.B. 523; Salemi v. Minister for Immigration and Ethnic Affairs (No. 2) supra n. 51, per Stephen and Jacobs JJ. (dissenting); Perre Bros v. Citrus Organisation Committee (1975) 10 S.A.S.R. 555; and see generally Mullan, “Fairness: The New Natural Justice?” (1975) 25 University of Toronto Law Review 281.

54 See generally Taylor, “Natural Justice-The Modern Synthesis” (1975) 1 Monash University Law Review 258.

55 See generally (1976] Annual Survey of Commonwealth Law 86.

56 Salemi v. Minister for Immigration and Ethnic Affairs (No. 2) supra n. 51, 18 per Gibbs J., cf. Barwick C.J. at p. 4; Selvarajan v. Race Relations Board [1976] 1 All E.R. 12; and see generally, Foulkes, Introduction to Administrative Law (3rd ed. 1972) 146-147.

57 Pearlberg v. Varty supra n. 53; Bates v. 1iLord Hailsham of St. Marylebone [1972] 1 W.L.R. 1373; Dunlop v. Woollhara Municipal Council [1975] 2 N.S.W.L.R. 446.

58 Selvarajan v. Race Relations Board supra n. 56.

59 As proposed by the Commonwealth Government to apply to Commonwealth adjudicative tribunals; supra n. 6.

60 E.g., Furnell v. Whangeri High Schools Board [1973] A.C. 660 (P.C.); and see generally the useful discussion by Burbury C.J. in R. v. Town and Country Planning Commissioner; ex parte Scott supra n. 36, 173-181.

61 R. v. Paterson; ex parte Purves (1937) 43 A.L.R. 144.

62 Salemi v. Minister for Immigration and Ethnic Affairs (No. 2) supra n. 51; R. v. Governor of Pentonville Prison; ex parte Azam [1973] 2 All E.R. 741, 750 per Lord Denning M.R.; R. v. Secretary of State for Home Affairs; ex parte Hosenball [1977] 1 W.L.R. 766.

63 E.g., Pearlberg v. Varty supra n. 53.

64 For some detailed discussion see supra pp. 44-45.

65 See generally, de Smith, Judicial Review of Administrative Action (3rd ed. 1973) 59-64.

66 See generally, Benjafield and Whitmore, op. cit. 90-99.

67 See generally, id. 163; de Smith, op. cit. 122-126.

68 Id. 122.

69 Judicial Review Act, s. 5(2)(j).

70 Id. s. 5(2) (a)-(d). See generally, de Smith, op. cit. 283-303; Benjaficld and Whitmore, op. cit. 165-172.

71 See generally, Wade, op. cit. 80-84.

72 For a comprehensive analysis of the position at common law, see Taylor, “Judicial Review of Improper Purposes and Irrelevant Considerations” (1976) 35 Cambridge Law Journal 272.

73 See Wade, Administrative Law (3rd ed. 1971) 174.

74 See generally, de Smith, op. cit. 273-277. Benjafield and Whitmore, op. cit. 174.

75 R. v. Stepney Corporation [1902] 1 K.B. 317 and Buttle v. Buttle [1953] W.L.R. 1217.

76 (1965) 113 C.L.R. 177; see also Salemi's case supra n. 51, 6 per Barwick C.J.

77 [1971] A.C. 610.

78 Id. 625 per Lord . Reid, with whom their other Lordships agreed. See also Sagnata Investments Ltd v. Norwich Corporation [1971] 2 All E.R. 1441, 1447 where Lord Denning M.R. said: “The applicant is entitled to put forward reasons urging that the policy should be changed, or saying that in any case it should not apply to him.”

79 E.g., Green v. Daniels (1977) 13 A.L.R. 1 (noted in (1977) 51 A.L.J. 227); Marks v. President, Councillors and Ratepayers of the Shire of Swan Hill [1974] V.R. 896; R. v. Birmingham Licensing Committee; ex parte Kennedy [1972] 1 All E.R. 739; Cumings v. Birkenhead Corporation [1971] 2 All E.R. 881. And see [1975] Annual Survey of Commonwealth Law 96; Hartley and Griffith, Government and Law (1975) 344.

80 Sagnata Investments Ltd v. Norwich Corporation supra n. 78, 1447 per Lord Denning M.R.; Cumings v. Birkenhead Corporation supra n. 79, 885 per Lord Denning M.R.

81 H. Lavender & Sons Ltd v. Minister of Housing and Local Government [1970] 3 All E.R. 871, 879; Stringer v. Minister of Housing and Local Government [1971] 1 All E.R. 65, 79-80; Cumings v. Birkenhead Corporation supra n. 79, 885-886.

82 Judicial Review Act, s. 5(2) (j), and sees. 5(1) (j).

83 See generally, Willis, “Delegatus Non Potest Delegare” (1943) 21 Canadian Bar Review 257; de Smith, op. cit. 263-272; Benjafield and Whitmore, op. cit. 163-164.

84 Although the courts have relaxed this principle in regard to some statutory powers vested in Ministers (see, for example, Carltona Ltd v. Commissioner of Works [1943] 2 All E.R. 560), there is reason to believe that, in some circumstances, the courts will insist that the Minister personally exercise a particular statutory power; see de Smith, op. cit. 272 and [1976] Annual Survey of Common-wealth Law 81.

85 It was held in Birkdale District Electric Supply Co. v. Southport Corporation [1926] AC. 355, 364 that “if a person or public body is entrusted by the Legislature with certain powers and duties expressly or impliedly for public purposes, those persons or bodies cannot divest themselves of these powers and duties. They cannot enter into any contract or take any action incompatible with the due exercise of their powers or duties”. See generally, Hartley and Griffith, op. cit. 342; de Smith, op. cit. 277-279; Wade, op. cit. 67-68.

86 The scope of the estoppel doctrine in administrative law has been discussed in several recent Australian and English decisions: see, for example, Wyong Shire Council v. Associated Minerals Consolidated Ltd [1972] 1 N.S.W.L.R. 114, 141-142; Re Liverpool Taxi Fleet Operators' Association [1972] 2 All E.R. 589; Norfolk County Council v. Secretary of State for the Environment [1973] 3 All E.R. 673; Lever Finance Ltd v. Westminster (City) London Borough Council [1971] 1 Q.B. 222; Laker Airways Ltd v. Department of Trade [1977] 2 W.L.R. 234; see generally, de Smith, op. cit. 88-91.

87 Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223, 233-234.

88 Id. 230. The Master of the Rolls said: “... to prove a case of that kind would require something overwhelming”.

89 Warringah Brick and Pipe Works Pty Ltd v. Blacktown Municipal Council [1971] 1 N.S.W.L.R. 21; Protean Holdings Ltd v. Environment Protection Authority [1977] V.R. 51; Fawcett Properties Ltd v. Buckingham County Council [1961] AC. 636 (H.L.); Mixnam's Properties Ltd v. Chertsey Urban District Council [1965] AC. 735 (P.C.).

90 See generally, de Smith, op. cit. 310-311.

91 [1958] 1 Q.B. 554, 572.

92 Allen Commercial Constructions Pty Ltd v. North Sydney Municipal Council (1970) 123 C.L.R. 490, 499 per Walsh J. See also 271 William Street Pty Ltd v. City of Melbourne [1975] V.R. 156, 161-163 per Harris J.; Parramatta City Council v. Kriticos [1971] 1 N.S.W.L.R. 140.

93 Protean Holdings Ltd v. Environment Protection Authority supra n. 89.

94 Id. 59.

95 Useful discussions can also be found in P & C Cantarella Pty Ltd v. Egg Marketing Board for the State of New South Wales [1973] 2 N.S.W.L.R. 366, 380-381 per Mahoney J., and In re an Appeal from the Credit Tribunal by John Martin and Co. Ltd (1974) 8 S.A.S.R. 237, 242-243 per Bray C.J.

96 Kerr Committee Report, para. 31(vii) (emphasis added). See generally, Television Corporation Ltd v. The Commonwealth (1963) 109 C.L.R. 59, 68-73 per Kitto J.; Fawcett Properties Ltd v. Buckingham County Council supra n. 89; Mixnam's Properties Ltd v. Chertsey Urban District Council supra n. 89; de Smith, op. cit. 312-313; Benjafield and Whitmore, Principles of Australian Administrative law (4th ed.1971) 175.

97 See generally, de Smith, op. cit. 81-122; Benjafield and Whitmore, op. cit. 176-186.

98 R. v. Northumberland Compensation Appeal Tribunal; ex parte Shaw [1952] 1 K.B. 338; see generally, Benjafield and Whitmore, op. cit. 204-208.

99 [1969] 2 W.L.R. 163; see generally, Smillie, “Jurisdictional Review of Abuse of Discretionary Power” (1969) 47 Canadian Bar Review 623.

1 Id. 638-639.

2 See de Smith, op. cit. 106.

3 Id. 464; Benjafield and Whitmore, op. cit. 238-240.

4 Judicial Review Act, s.13(1). See infra pp. 62-64.

5 Clause 13 (6) of the Judicial Review Bill purported to effect this result, but the provision was poorly drafted and was deleted at the Committee stage of the Bill.

6 See generally, Benjafield and Whitmore, op. cit. 206-207 and the cases discussed therein.

7 See generally, Wade, op. cit. 93-94.

8 See generally, Whitmore, “O! That Way Madness Lies: Judicial Review for Error of Law” (1967) 2 F.L. Rev. 159; de Smith, op. cit. 111-122; Kerr Committee Report, para. 36.

9 Id. para. 36(v). The Kerr Committee made no reference to the fact that, in England at any rate, no evidence may sometimes be regarded as a jurisdictional error; nor was mention made of the fact that Australian courts have generally been reluctant to review for no evidence under either rubric: see Tracey, “Absence or Insufficiency of Evidence and Jurisdictional Error “ (1976) 50 A.L.J. 568.

10 Whitmore, supra p. 42, nn. 1, 13. On the United States position, see Jaffe, Judicial Control of Administrative Action (1965) 595-623.

11 Ellicott Committee Report, paras. 41-43.

12 See generally, Wade, op. cit. 101-102; Tracey, op. cit. 570-573.

13 See generally, Smillie, “The Problem of Official Notice: Reliance by Administrative Tribunals on the Personal Knowledge of Their Members” [1975] Public Law 64; de Smith, op. cit. 148-150.

14 De Smith, op. cit. 27, 120-122.

15 Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1976] 3 W.L.R. 641.

16 Commonwealth of Australia, H.R. Deb. 1977, No. 8, 1395.

17 Discussed supra pp. 56, 58-59.

18 Kerr Committee Report, para. 266; Ellicott Committee Report, paras. 34-35.

19 See also infra pp. 65-67.

20 Arguably, the furnishing, albeit voluntarily, of substantially inadequate reasons amounts to an error of law: Re Poyser and Mills' Arbitration [1964] 2 Q.B. 467. But see de Smith, op. cit. 117, n. 22.

21 Judicial Review Act, s. 13(5).

22 Id. s. 14(2).

23 Kerr Committee Report, paras. 266, 343-344; Ellicott Committee Report, paras. 34-36.

24 The Kerr Committee referred to a category of “any document containing an official secret within the meaning of Part VII of the Crimes Act 1914-1966”, as well as to an openended and nebulous class comprising “any document disclosure of which might be injurious to the public interest”: Kerr Committee Report, para. 344(b)(ii) and (iv). The Ellicott Committee did not go quite so far; however that Committee did advance the view that the public interest would generally dictate non-disclosure ''where matters of security, relationships with other countries, defence and questions of high government policy are involved”: Ellicott Committee Report, para. 36.

25 Judicial Review Act, s. 14(4).

26 For an excellent analysis of the current law on this subject, see Pearce, “The Courts and Government Information” (1976) 50 A.L.J. 513.

27 Conway v. Rimmer [1968] A.C. 910, 952 per Lord Reid; Attorney-General v. Jonathan Cape Ltd [1975] 3 W.L.R. 606; and Lanyon Pty Ltd v. Commonwealth of Australia (1974) 129 C.L.R. 650, 653 per Menzies J.

28 In contrast to the Federal Court's power under s. 14(4) of the Judicial Review Act to order discovery of certified information, under s. 46 of the Administrative Appeals Tribunal Act 1975, t)le Federal Court, like the Administrative Appeals Tribunal itself, cannot order disclosure of any document which has been certified by the Attorney-General for any of the reasons referred to in ss. 28(2)(a) or 36(1)(a) or (b) of that Act.

29 By virtue of s. 10(1) (b) of the Act, the Ombudsman may not refuse to investigate a complaint on the ground that, in accordance with s. 6(3) of the Ombudsman Act 1976 (Cth), the complainant could reasonably have sought an order of review under the Judicial Review Act. This provision does not affect the Ombudsman's discretion to decline to investigate a matter of administration where relief is reasonably available in any court or tribunal otherwise than under the Judicial Review Act.

30 Judicial Review Act, ss. 10(2) (a) and (b).

31 Id. s. 11(3).

32 Discussed supra p. 46.

33 The information in the nature of a quo warranto to challenge the usurpation of a public office is by no means obsolete; see Ex parte R.. (ex rel. Warringah Shire Council); Re Barnett [1967] 2 N.S.W.R. 746.

34 Supra pp. 42-43.

35 It is, of course, still open for a person aggrieved by Commonwealth administrative action to have recourse to his Member of Parliament or, where applicable, to pursue any internal procedures for appeal.

36 Administrative Appeals Tribunal Act 1975, s. 25 (Cth). For a more detailed commentary on the Act, see Taylor, “Administrative Appeals Tribunal Act 1975 (Cth)” (1976) 3 Monash University Law Review 69.

37 Administrative Appeals Tribunal Act 1975, s. 27 (Cth).

38 Id. s. 28.

39 These three grounds are identical to those which appear in s. 14(1) of the Judicial Review Act, discussed supra p. 64.

40 Administrative Appeals Tribunal Act 1975, s. 36(2), (3) and (4) (Cth), and see supra n. 27. Section 37 of the Act obliges the decision-maker to make available to the Tribunal all relevant documents in his possession.

41 Id. ss. 33 and 34.

42 Id. s. 43.

43 Id. s. 7.

44 Id. ss. 44 and 45 respectively. And see Federal Court of Australia (Consequential Provisions) Act 1976 s. 4(2), (Cth).

45 H.R. Deb. 1977, No. 8, 1392. Disputes relating to Customs' classifications have figured prominently in the few appeals decided by the Tribunal.

46 Id. The provisions of the Administrative Appeals Tribunal Amendment Act 1977 are largely procedural in character relating to increasing the number of ways in which the Tribunal may be constituted, creating a new grade of senior non-presidential members, facilitating the transfer of the jurisdiction of existing appeal bodies to the Tribunal, and providing for the charging of fees to deter “frivolous appeals”.

47 The Bland Committee was strongly opposed to establishing external review procedures of social security and welfare decisions: Bland Committee Final Report, supra p. 43, n. 5, paras. 45-73.

48 Administrative Appeals Tribunal Act, ss. 47-58.

49 Id, s. 49.

50 Id. s. 51.

51 Refer statements by the Commonwealth Attorney-General in H.R. Deb. 1977, No. 8, 1392, 1395.

52 Ombudsman Act 1976, s. 5, (Cth).

53 Id. ss. 5(2)(a), 3(7) and 5(3) respectively.

54 Id. ss. 16, 17.

55 Id. s. 15.

56 Discussed supra pp. 62-64, 66. It is interesting to note that those grounds include communications at a Ministerial level, the disclosure of which would prejudice Commonwealth-State relations, and the separate ground relating to deliberations of the Northern Territory Executive Council, neither of which appears in the apposite sections of the Administrative Appeals Tribunal or Judicial Review Acts. On the other hand, the general ground embracing the common law principles of “Crown privilege” is absent from the Ombudsman Act but is present in both other Acts.

57 In its report on Appeals in Administration in 1973, the New South Wales Law Reform Commission stated: “... the substantive law, though still complex and technical, is rapidly changing and developing. It is not, in our view, an opportune time to modify, restate or codify the substantive law. Indeed, legislative intervention at this stage may deny the courts in New South Wales the benefit of [common law] developments ... “: Report of the Law Reform Commission on Appeals in Administration (1973) L.R.C. No. 16, para. 166. Advice in substantially similar terms was tendered by Professor Wade to the Ellicott Committee: Ellicott Committee Report, para. 41.

58 [1976] 2 W.L.R. 291.

59 [1976] 3 W.L.R. 641.

60 [1977] 2 W.L.R. 234.

61 [1975] 2 N.S.W.L.R. 446.

62 Supra n. 59, 665.