R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 stands for the proposition that, other than in exceptional cases, a tribunal should not take an active role in judicial review proceedings challenging its decisions. Once thought to be limited to quasi-judicial tribunals exercising adjudicatory functions between parties, more recently the Hardiman principle has been extended to tribunals and other decision-makers exercising regulatory or administrative functions. And, contrary to previous assumptions, there is now authority to the effect that the rule applies also to proceedings before merits review tribunals. This article examines these developments and the difficulties they pose for government decision-makers and lawyers. The author questions whether the underlying rationale for the Hardiman principle, a concern that court-like tribunals maintain the appearance of impartiality, is applicable in the context of decision-makers exercising more traditional administrative functions or regulatory agencies charged with promoting and implementing the objects of their enabling legislation. The author argues that there are cogent reasons for permitting such decision-makers to take a more active role in proceedings challenging their decisions, especially with respect to matters that relate to the decision-maker's jurisdiction, powers and procedures.
