Dear Mr Hastings

  Thank you for your letter of 28 July 1998 concerning judicial review of Government action in Australia and parliamentary privilege. I was interested to learn of the review of parliamentary privilege currently being conducted by the Joint Committee. I understand that you have already been in contact with the Clerk of the House of Representatives and that the Clerk has provided you with some information on the Parliamentary Privileges Act 1987 and related case law.

  I note that the Joint Committee is interested in the extent to which Australian courts use parliamentary proceedings in judicial review of Government action and policy. In particular, you ask to what extent applicants for judicial review are able, in practice, to criticise in court a Minister's reasons for a decision given in Parliament or use parliamentary material as evidence that the Minister misdirected himself or acted for an unauthorised purpose. Your letter indicates that practice in the United Kingdom is that announcements on virtually all major Government decision on policy are made to Parliament and that the courts often need to take account of what is contained in Hansard when considering ministeral decisions.

  This issue does arise from time to time in Australian courts although, for the reasons I indicate below, it is not perhaps as significant here as it appears to be in the United Kingdom.

  As a background comment, I note that Australian courts have no jurisdiction to review Government policy. Any need by a court to ascertain or consider Government policy would be in the context of examining the legal validity of a particular Government decision or action. This context could arise, for example, where the basis of a challenge to a decision was that the decision was made in accordance with a policy without regard to the merits of the particular case, or that the decision was made in bad faith or for an improper purpose. Even in this context Australian courts are generally, and are certainly at the Federal level, precluded from examining the policy or administrative mertis of a particular Government decision or action. This constraint has been affirmed by the High Court of Australia in the case of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

  For the sake of completeness I menton that there are, however, various administrative tribunals in Australia which have power to examine the administrative merits of Government decisions or action. An example of such a tribunal at the Federal level is the Administrative Appeals Tribunal established by the Administrative Appeals Tribunal Act 1975 (the AAT Act).

  I also note that my response is essentially limited to the position regarding the Federal Parliament in Australia, to which the Parliamentary Privileges Act relates, although I am not aware of any significant difference in relation to the various State parliaments.

  Against this background, I now address the issues that you have raised.

  Following passage of the Parliamentary Privileges Act in 1987, Justice French of the Federal Court considered the use of parliamentary proceedings in judicial review of administrative action in the case of Hamsher v Swift (1992) 33 FCR 545. I enclose a copy of the decision for your information (not printed). In that case the applicants sought to use a statement made by a Minister in the Parliament as evidence that a certain decision had been made by the Minister. Justice French expressed the clear view that subsection 16(3) of the Act prohibited the use of the Ministerial statement in this way because it would amount to drawing an inference from proceedings in Parliament. The effect of the Parliamentary Privileges Act is that statements made by a Minister in the Federal Parliament will not be admissible in court or tribunal proceedings for the purpose of challenging a Government decision or action. Justice French noted, however, that the applicants could rely on certain extra parliamentary statements made on behalf of the Minister to support their challenge.

  Given the rules and process of administrative decision making in Australia, it is unlikely that an applicant for judicial review would suffer from being unable to rely on privileged parliamentary material to challenge a decision, including a decision made by a Minister. At the Federal level section 13 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) requires that decision makers provide a written statement of the reasons for a decision on request. Such statements frequently provide the basis for challenging an administrative decision. Section 28 of the AAT Act contains a similar provision. Where section 13 does not apply, or is considered by a court to be inadequate, a court could adopt other measures such as ordering discovery of documents held by the Minister or his or her Department, subpoenaing such documents, or permitting cross-examination of the decision maker. In addition, Freedom of Information legislation might be available to obtain access to relevant Ministerial or Department documents.

  In Australia, more general policy statements are often announced in Parliament. The practice of Ministers, and of Departments, however, is to also make such policies widely available to the public in the form of media releases, pamphlets, handbooks and so on. Indeed, section 9 of the Federal Freedom of Information Act 1982 requires departments to make available for inspection and purchase by members of the public documents that are used by the agency and its officers in making decisions and recommendations. This includes manuals, rules, guidelines, practices and precedents. For example, while section 499 of the Migration Act 1958 requires that the Minister table any general policy directions, such as the Government's Criminal Deportation Policy, in Parliament, the Policy is also published in an adjunct to the Departmental Procedures Advice Manual and is available for inspection and purchase at regional offices of the Department of Immigration and Multicultural Affairs. Because of this, it is generally not necessary to rely on parliamentary proceedings to establish the content of such policies. This is one of the reasons that the Act has not proved inhibiting to judicial review of administrative action.

  I trust this information is helpful and I would be pleased to offer the Committee any further assistance it may require. I would also be very grateful to receive a copy of the Committee's report in due course as this is clearly a matter of continuing interest.

Daryl Williams

4 November 1998