10. REMEDIES
Summary
10.1 As discussed in Chapter 3, the remedies available under the Australian Constitution
and s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) in relation to constitutional judicial
review are similar in nature to those available under the Administrative Decisions (Judicial
Review) Act 1977 (Cth) (ADJR Act) for statutory judicial review. The primary difference is the
need to show a jurisdictional error to demonstrate an entitlement to the constitutional
remedies.

10.2 The Consultation Paper only raised a few issues regarding remedies in judicial review
proceedings. The first was whether it was appropriate for remedies only to issue where there
was a jurisdictional error. The Consultation Paper also canvassed a recommendation by the
Law Commission of England and Wales that damages should be available in judicial review
proceedings. The Council has concluded that remedies should issue in relation to certain
non-jurisdictional errors, and this is reflected in the Councils model for review discussed in
Chapter 4. The Council has not made a recommendation with respect to damages.

STATUTORY AND CONSTITUTIONAL REMEDIES

10.3 The question of whether remedies should only issue where a jurisdictional error has
been shown is central to the consideration of the ambit and model for review discussed in
Chapters 4 and 5. The submissions to the Council on remedies did not focus on the question
of whether remedies should only issue where there is a jurisdictional error. Rather,
submissions addressed more broadly the question of statutory remedies versus constitutional
writs.

10.4 Submissions broadly supported the current remedies in the ADJR Act, and their
expression.769 The Public Interest Advocacy Centre (PIAC) argued that the ADJR Act
simplifies the issue of remedies and removes the unhelpful common law distinction between
jurisdictional and non-jurisdictional error.770 The Department of Immigration and
Citizenship (DIAC) submitted that a statutory remedial scheme would assist clients by helping
them to understand the remedies that are available in judicial review.771 The Law Council of
Australia stated that the discretion given to the Court in s 16 to refuse to grant a remedy is
workable and desirable.772

10.5 Drs Peter Billings and Anthony Cassimatis suggested that there should be some
amendments to remedies. They supported codification of the discretionary grounds for

769 Law Council of Australia, Submission No 23 (1 July 2011) [116]; Department of Immigration and
Citizenship, Submission No 11 (1 July 2011) 8; Australian Crime Commission, Submission No 5
(6 July 2011) 10; Public Interest Advocacy Centre Ltd, Submission No 18 (14 July 2011) 9.
770 Public Interest Advocacy Centre Ltd, Submission No 18 (14 July 2011) 9.
771 Department of Immigration and Citizenship, Submission No 11 (1 July 2011) 8.
772 Law Council of Australia, Submission No 23 (1 July 2011) [115].

177
177
 Federal Judicial Review in Australia

denial [of] relief in judicial review proceedings, for example judicial review should only be
exercised as a remedy of last resort, after merits review options have been exhausted.773

10.6 Billings and Cassimatis argued that it was important for the Council to consider
introducing a statutory duty on courts conducting judicial review to consider alternative
judicial review remedies (with attendant powers to issue those remedies where appropriate)
before dismissing a judicial review application on jurisdictional grounds.774 They noted that

one significant mischief of the traditional judicial review remedies identified by

the Kerr and Ellicott Committees was the situation where an applicants choice of
one remedy led to dismissal of the claim on technical grounds that might have
been avoided had a different remedy have been sought.775

10.7 They argued that this mischief has not disappeared and more could be done to
avoid its occurrence.776 They point to rule 569 of the Uniform Civil Procedure Rules (Qld),
which applies in cases where an application has been made for statutory judicial review and
the court finds it has no jurisdiction to hear the matter under the Judicial Review Act 1991
(Qld), but could have heard the matter if an application had been made for judicial review in
the Supreme Courts inherent jurisdiction. Rule 569 allows the court to order the proceeding
to continue as if it had been started as an application for review. Billings and Cassimatis
noted that this rule could have been relied on in Griffith University v Tang,777 but was not, and as
such argued that it may be appropriate to formulate an equivalent rule in mandatory terms.778

10.8 The Council considers that the ADJR Act did address the issues raised by the
Commonwealth Administrative Review Committee (Kerr Committee) and the Committee of
Review of Prerogative Writ Procedures (Ellicott Committee) in terms of the flexibility of
remedies, but notes the problem raised by Billings and Cassimatis when alternative review
jurisdictions are available. The Council considers that its preferred recommendation would
address this issue, without the need for a provision similar to rule 569 of the Uniform Civil
Procedure Rules (Qld). The Council also supports the maintenance of clear remedies expressed
in plain language, which are not restricted to jurisdictional error.

DAMAGES
10.9 The 2008 consultation paper released by the Law Commission of England and
Wales (the Law Commission), Administrative Redress: Public Bodies and the Citizen,779 proposed the
creation of a damages remedy as an ancillary remedy to be claimed alongside the prerogative
writs available at common law, or for private law claims against public bodies. The Law
Commission considered that such a remedy would fill a gap in the current law, as damages


773 Peter Billings and Anthony Cassimatis, Submission No 6 (27 June 2011) 16.
774 Ibid.
775 Ibid.
776 Ibid.
777 221 CLR 99.
778 Peter Billings and Anthony Cassimatis, Submission No 6 (27 June 2011) 16.
779 Law Commission (UK) Administrative Redress: Public Bodies and the Citizen, Consultation Paper No 187 (2008).

178
178
 Chapter 10: Remedies

can only be claimed against a public body where there is a private law right to damages, where
there has been a breach of a European Union law or under the Human Rights Act 1998 (UK).

10.10 The Law Commission proposed, in relation to judicial review, that courts could
grant a claimant damages if the claimant could show that:
x the legal regime in which the public body acted was intended to confer a
benefit on individuals and the harm suffered by the individual was of a
similar nature to the benefit that the regime conferred;780
x the public body had committed a serious faultit fell far below the
standard expected in the circumstances;781 and
x the defendants conduct did in fact result in the damage complained of and
the damage is not, in law, too remote a consequence of the defendants
wrongdoing.782

10.11 The Law Commission suggested a number of factors that might indicate there had
been a serious fault, such as:
x the risk or likelihood of harm involved in the conduct of the public body;
x the seriousness of the harm caused;
x the knowledge of the public body, at the time that the harm occurred that
its conduct could cause harm, and whether it knew or should have known
about vulnerable potential victims;
x the cost and practicability of avoiding the harm;
x the social utility of the activity in which the public body was engaged when
it caused the harmthis would include factors such as preventing an undue
administrative burden on the public body;
x the extent and duration of departures from well-established good practice;
and
x the extent to which senior administrators had made possible, or facilitated,
the failure or failures in question.783

10.12 The Law Commission also asked for views on whether the discretionary nature of
the prerogative writs should be retained for the damages remedy. Some responses to the Law
Commissions consultation paper supported this position.


780 Law Commission (UK) Administrative Redress: Public Bodies and the Citizen, Consultation Paper No 187 (2008)
83.
781 Ibid 85.
782 Ibid 86.
783 Ibid 85.

179
179
 Federal Judicial Review in Australia

10.13 However, there was substantial opposition, particularly from government bodies, to
both the public law and private law aspects of the proposal to allow damages for serious
fault.784 The main criticisms of the proposal were that:
x monetary remedies were inconsistent with the nature of public law;785
x there was a risk of increased delays to judicial review proceedings;786 and
x providing for damages would place an increased financial burden on public
authorities.787

10.14 In its final report, the Law Commission noted that there was a lack of available data
on the compensation liability of public bodies to enable assessment of potential benefits from
the proposed reforms. The Law Commission considered that there was no evidence available
to support or refute criticisms of the proposal. Therefore, while the Law Commission
considered that the proposals had merit, it decided not to pursue them any further.

10.15 The Law Commission argued that in some cases damages were necessary to avoid
injustice to individuals, for example where a licence had been revoked invalidly and a person
had lost earnings as a result.788 The Law Commission considered that sometimes damages
were appropriate in the interests of justice in individual cases, and to improve government
service delivery.789

10.16 Damages in Australia, as in the United Kingdom, are available in a private law action
based on contractual relationships or tort action for negligence, breach of statutory duty or
misfeasance in public office.790 In Australia, the injustices which the Law Commission sought
to address may be compensated through other schemes that are not dependent upon a
finding of legal error in a decision making process. The Government has the discretion to
make compensation payments, either in the form of payments under the Compensation for
Detriment caused by Defective Administration scheme (CDDA) or act of grace payments,
to people adversely affected by government administration.791 These discretionary
compensation schemes are available where there may have been defective administration or
where government administration has inequitable consequences for a particular individual.
Compensation under these schemes is often granted where no other remedies are available.
As a result, discretionary compensation will not usually be available in conjunction with
judicial review remedies. The Law Commissions proposal sought to have damages available
as an ancillary remedy in judicial review proceedings.

10.17 A major concern with providing for the courts to grant damages as a judicial review
remedy allied to a finding of unlawful administrative action would be that the court either


784 Law Commission, Administrative Redress: Public Bodies and the Citizen, Report No 332 (2010) 2.
785 Ibid 89.
786 Ibid 10.
787 Ibid 1011.
788 Ibid 15.
789 Ibid 22.
790 See Chapter 2.
791 See Chapter 2.

180
180
 Chapter 10: Remedies

was, or would appear to be, deciding the correctness of the decision on the merits. In
Australian judicial review proceedings, a court can decide whether a decision maker has made
an error of law, but not what the correct decision should have been. The Law Commissions
criteria require assessments of the seriousness of harm caused to individuals and the causal
relationship between the decision of the government body and that harm. An assessment of
that kind could embrace an assessment of the merits of particular administrative action.

10.18 The Law Council of Australia discussed the issue of damages in judicial review at
length. They argued that s 16(d) of the ADJR Act is broad enough to allow courts to grant an
award of damages; however they noted the High Court in Park Oh Ho v Minister for Immigration
and Ethnic Affairs792 has not interpreted it in that way. They submitted that s 16 of the
ADJR Act should be amended to include the following:

If a decision, conduct, act or omission breaches one of the grounds of review in

this Act, and results from negligent performance or non-performance, and a
person suffers loss or damage as a direct result, then the Court may award
damages for any economic loss so caused.793

10.19 The Law Council argued, however, against an overarching remedy for damages:

It would be contrary to the development of orthodox principles to create an

overarching damages remedy which does not take account of the particular
statutory intention and, importantly, broader public policy reasons which tend
against imposing a general liability to damages where administrative action may be
taken in error (but not where there is a duty of care in negligence).794

10.20 The Law Council noted that Australian courts have consistently rejected the notion
of an administrative tort.795 In their submission, the Australian cases demonstrate that there is
appropriate relief from negligent administrative action when a duty of care can be made
out.796

10.21 The Law Council of Australia submitted that schemes, such as CDDA, ex gratia and
act of grace payments make, in effect, awards of damages in cases of defective administrative
decision making. Because of this, the Law Council argued that the schemes should be subject
to judicial review to avoid inconsistent application of discretionary principles flowing from
terms such as defective and detriment, although they expressed concern at the justiciability
of the CDDA given that it has its basis in moral rather than legal obligation.797

10.22 The Council notes that this proposal raises issues going beyond this report which
would require specific attention, and which may be appropriate for further consideration in
the future.


792 (1989) 167 CLR 637.
793 Law Council of Australia, Submission No 23 (1 July 2011) [120].
794 Ibid [138].
795 Ibid [123], citing New South Wales v Paige [2002] NSWCA 235; Bienke v Minister for Primary Industries and
Energy (1996) 135 ALR 128; Macksville & District Hospital v Mayze (1994) 125 ALR 151, 72425, 732.
796 Law Council of Australia, Submission No 23 (1 July 2011) [138].
797 Ibid [141].

181
181