The Hardiman rule

In R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 the High Court held that tribunals should not participate actively in judicial review proceedings of their decisions. The High Court was concerned to preserve the perceived impartiality of tribunals, if the decision under review was remitted for its further consideration. In the thirty years since the Hardiman case, the rule for which that case is known has expanded in its scope and attracted an increasing number of exceptions. This article examines the purpose and scope of the Hardiman rule. It argues that the many exceptions to the Hardiman rule give the rule considerable flexibility. Where questions arise about the appropriate role that a tribunal or like body should assume in court proceedings involving one of its decisions, the most important factor appears to be whether there is an active contradictor.