Administrative Decisions (Judical Review) Regulations (Amendment) 1993 No. 155
EXPLANATORY STATEMENT
STATUTORY RULES 1993 No. 155
Issued by the Authority of the Attorney-General
Administrative Decisions (Judicial Review) Act 1977
Administrative Decisions (Judical Review) Regulations (Amendment)
Section 20 of the Administrative Decisions (Judicial Review) Act 1977 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed by regulations or necessary or convenient to be prescribed by regulations for carrying out or giving effect to the Act.
Subsection 19(1) of the Act provides that the regulations may declare a class or classes of decisions to be decisions that are not subject to judicial review by the Court under the Act.
The Territory Law Reform Act 1992 provides for the application, as Commonwealth laws, of Western Australian State laws in the Indian Ocean Territories of Christmas Island and Cocos (Keeling) Islands (the Territories). Arrangements between the Commonwealth and Western Australia provide for much of the administration of the legal regime for the Territories to be performed by Western Australian officials and agencies. It has been agreed between the Commonwealth and the State of Western Australia that decisions made by Western Australian officers under State laws, as applied in the Territories, will be excluded from judicial review under the Act.
The amendment to the regulations declares decisions made by Western Australian officers under Western Australian State laws as applied in the Territories not to be subject to judicial review under the Act.
Details of the regulations are as follows:
Regulation 1 is formal.
Regulation 2 adds a new paragraph, namely paragraph (g), to regulation 3 of the Administrative Decisions (Judicial Review) Regulations. Regulation 3 sets out the various classes of decisions that are not subject to judicial review and paragraph (g) adds a new class of such decisions.
Paragraph (g) defines this new exempt class by reference, in subparagraph (g)(i), to section 8A of the Christmas Island Act 1958 and by reference, in subparagraph (g)(ii), to section 8A of the Cocos (Keeling) Islands Act 1955.
Subparagraphs (iii) to (xiii) inclusive define exceptions to this new exempt class by reference to decisions which can be made only by Commonwealth officials, persons or authorities and not by State officials, persons or authorities.
Overview
The Administrative Decisions (Judicial Review) Regulations (Amendment) 1993 No. 155 were enacted to amend the Administrative Decisions (Judicial Review) Regulations under the Administrative Decisions (Judicial Review) Act 1977. This legislative amendment addresses the need to exclude certain decisions made by Western Australian officers under Western Australian State laws, as applied in the Indian Ocean Territories of Christmas Island and Cocos (Keeling) Islands, from the scope of judicial review under the Act. This exclusion was agreed upon between the Commonwealth and the State of Western Australia to facilitate the administration of the legal regime for the Territories by Western Australian officials and agencies.
These regulations were issued by the authority of the Attorney-General and aim to align with the overarching policy objective of ensuring the effective and efficient administration of the Territories' legal regime. The amendment introduces a new class of decisions, exempt from judicial review, by adding a new paragraph (g) to regulation 3 of the Administrative Decisions (Judicial Review) Regulations. This new paragraph specifies the decisions made by Western Australian officers under the relevant State laws, while also outlining exceptions for decisions that can only be made by Commonwealth officials, persons, or authorities.
Scope and Application
The Administrative Decisions (Judicial Review) Regulations (Amendment) 1993 No. 155, issued under the authority of the Attorney-General, amend the existing regulations to align with the specific legal arrangements governing the Indian Ocean Territories of Christmas Island and Cocos (Keeling) Islands. The amendment applies to decisions made by Western Australian officers pursuant to Western Australian State laws as applied in the Territories, specifically exempting these decisions from judicial review under the Administrative Decisions (Judicial Review) Act 1977. This exclusion is predicated on agreements between the Commonwealth and the State of Western Australia, which delegate the administration of the legal regime for the Territories to Western Australian officials and agencies. The amendment incorporates a new paragraph (g) into regulation 3 of the Administrative Decisions (Judicial Review) Regulations, thereby establishing a new class of decisions not subject to judicial review. This new class is defined with reference to specific sections of the Christmas Island Act 1958 and the Cocos (Keeling) Islands Act 1955, with certain exceptions outlined in the regulation.
Key Provisions
The Administrative Decisions (Judicial Review) Regulations (Amendment) 1993 No. 155 (the Regulations) primarily focuses on exempting certain decisions from judicial review under the Administrative Decisions (Judicial Review) Act 1977 (the Act). Specifically, regulation 2 adds a new paragraph (g) to regulation 3 of the original Administrative Decisions (Judicial Review) Regulations. This new paragraph introduces an additional class of decisions that are not subject to judicial review under the Act, namely decisions made by Western Australian officers under Western Australian State laws as applied in the Indian Ocean Territories of Christmas Island and Cocos (Keeling) Islands (the Territories). This amendment aligns with the provisions of the Territory Law Reform Act 1992, which incorporates Western Australian State laws in the Territories, and the agreement between the Commonwealth and Western Australia that decisions made by Western Australian officers under these laws should be excluded from judicial review under the Act.
The obligations imposed by the Regulations on the parties and entities it governs primarily concern the exemption of certain decisions from judicial review. By adding paragraph (g) to regulation 3, the Regulations effectively shield decisions made by Western Australian officers under Western Australian State laws as applied in the Territories from judicial review under the Act. This means that such decisions are not subject to scrutiny or review by the Court, except in cases explicitly allowed by subparagraphs (iii) to (xiii) of paragraph (g). These subparagraphs define exceptions for decisions that can be made only by Commonwealth officials, persons, or authorities and not by State officials, persons, or authorities. The Regulations ensure that only decisions within the scope of subparagraphs (iii) to (xiii) are reviewable under the Act, while other decisions made by Western Australian officers under State laws in the Territories remain exempt.
The Regulations do not explicitly state any offences, penalties, or consequences for breach. However, by excluding certain decisions from judicial review, the Regulations establish a framework within which these decisions operate without the possibility of judicial scrutiny, except where exceptions apply. The primary consequence of this exemption is the limitation on the ability of individuals or entities to challenge the validity or legality of decisions made by Western Australian officers under State laws in the Territories. This limitation is intended to uphold the agreement between the Commonwealth and Western Australia regarding the administration of the legal regime in the Territories. While the Regulations themselves do not impose penalties for breach, any action taken in contravention of the agreed framework could potentially lead to legal challenges or disputes under other applicable laws.