'AUSTRALIAN EXCEPTIONALISM' IN JUDICIAL REVIEW
Michael Taggart∗
The phrase 'Australian exceptionalism' is most often used these days in relation to
Australia's stand with the United States in the war against terror and the Australian
government's attitude to international human rights law.1 Australia is exceptional also
in being now the only English-speaking democracy without a judicially enforceable bill
of rights at the federal level.2 Although not unrelated, here I want to explore whether
the part of Australian public law that deals with judicial review of administrative
action is also 'exceptional'.3 I will identify the features that are commonly said to set
Australia apart from other common law jurisdictions and justify Australia taking a
different path in the elaboration of the principles of judicial review of administrative
action.
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∗
Alexander Turner Professor of Law, Faculty of Law, University of Auckland, New Zealand.
<[email protected]>. A shortened version of this paper was delivered as the 10th
annual Geoffrey Sawer Lecture at the Australian National Museum on 9 November 2007. It
retains something of the conversational tone of a delivered lecture. I thank Kim Rubenstein
and the Centre for International and Public Law at Australian National University for
inviting me. As far as I know any Australian administrative law, it is due to what I have
learnt from the writings of a large number of Australian legal scholars, too many to name. I
would be remiss, however, if I did not record long-standing intellectual debts to Mark
Aronson, Peter Bayne, Enid Campbell, Peter Cane, Robin Creyke, Matthew Groves, John
McMillan, Dennis Pearce and Cheryl Saunders. That does not mean any of them will
necessarily agree with what I say here. It would be truly exceptional if they did.
1
See, eg, Dianne Otto, 'From "Reluctance" to "Exceptionalism": The Australian Approach to
Domestic Implementation of Human Rights' (2001) 26(5) Alternative Law Journal 219. See
also in relation to the US, Michael Ignatieff (ed), American Exceptionalism and Human Rights
(2005). The phrase also crops up in Australian economic and labour market analyses. See
Geoffrey Brennan and Francis G Castles (eds), Australia Reshaped: 200 Years of Institutional
Transformation (2002).
2
Brian Galligan and F L Morton, 'Australian Exceptionalism: Rights Protection without a Bill
of Rights' in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting
Rights without a Bill of Rights: Institutional Performance and Reform in Australia (2006) 17; Nick
O'Neill, Simon Rice and Roger Douglas, Retreat from Injustice: Human Rights Law in Australia
(2nd ed, 2004) 1.
3
To some extent I am treading ground well covered by Peter Cane: see Peter Cane, 'The
Making of Australian Administrative Law' (2003) 24 Australian Bar Review 114. I have to
admit I chose my lecture topic in ignorance of this piece — which also explains the
omission of the institutional Festschrift from Michael Taggart (ed), An Index to Common Law
Festschriften: From the Beginning of the Genre up to 2005 (2006). At the end of the piece, Peter
Cane refers to 'Australian exceptionalism' in relation to judicial review: Cane, 133.
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This is a very large and complex topic and I will have to skip quickly and
selectively over the terrain; no doubt, this will entail a degree of superficiality and
caricature. I approach this task as a common law comparativist from a small place with
an interest in the intellectual history and development of Anglo-Commonwealth
administrative law. I acknowledge at the outset that the idea of a nation's
jurisprudence in any area of law being exceptional is problematic because it
presupposes there is a norm elsewhere against which it can be measured, compared
and judged. This is problematic for at least three reasons. First, a nation's public law is
a reflection of the distinct history and evolution of that society and this can make
comparative study of public law more challenging than in relation to private law.4
Secondly, in former colonies such as Australia and New Zealand, if the law of the
former imperial power — the United Kingdom — is taken as the norm or the
comparator then this can result in a form of 'recolonialisation' of the legal mind and
imagination.5 Thirdly, it might be thought to presuppose a unified and uniform
common law for the Commonwealth; something that if it ever existed in the
hegemonic heyday of Privy Council appeals no longer does.
The common law emanating from all the common law jurisdictions I will be
looking at — Australia, the UK, New Zealand and Canada6 — has 'persuasive'
authority in the other countries.7 So, notwithstanding the difficulties, it seems to me
useful to examine the ways Australian administrative law is out of step with some or
all of these other common law countries, and to identify the 'distinctive' features
(perhaps even exceptional features) that are said to explain that and to make a start to
see whether those explanations hold water.
I use the phrase 'administrative law' in the narrow sense of 'judicial review of
administrative action'. As everybody knows there is far more to administrative law
these days than litigation in the Courts. This is especially so in Australia, the home of
the so-called 'new Administrative Law' package of the 1970s — which at the federal
level ushered in the Administrative Appeals Tribunal system, the office of
Ombudsman, codified the grounds of review and reformed judicial review procedures
in the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'), established
the Federal Court (which has become the dominant administrative law court in
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4
See generally Cheryl Saunders, 'Apples, Oranges and Comparative Administrative Law'
[2006] Acta Juridica 423; Andrew Harding, 'Comparative Public Law: A Neglected
Discipline?' in Ian Edge (ed), Comparative Law in a Global Perspective: Essays in Celebration of
the Fiftieth Anniversary of the Founding of the SOAS Law Department (2000) 101; John Bell,
'Comparing Public Law' in Andrew Harding and Esin Örücü (eds), Comparative Law in the
21st Century (2002) 235; Edward Eberle, 'Comparative Public Law: a Time That Has Arrived'
in Ulrich Hübner and Werner F Ebke (eds), Festschrift für Großfeld zum 65.Geburtstag (1999)
175; David Nelken (ed), Comparing Legal Culture (1997).
5
I owe the term 'recolonialisation' to James Belich, Paradise Reforged: A History of New
Zealanders: From the 1880s to the Year 2000 (2001) 29.
6
I realise this concentration on the former imperial power and selected so-called 'white'
settler colonies is open to the charge of ignoring the contribution of the other former
colonies in Africa, the Mediterranean, West Indies and Asia. See Upendra Baxi, 'Book
Review' (2004) 14 Law and Politics 799, 804. All I can say is that space constraints preclude a
full review of the jurisprudence of courts from around the entire common law world.
7
See generally H Patrick Glenn, 'Persuasive Authority' (1987) 32 McGill Law Journal 261.
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'Australian Exceptionalism' in Judicial Review
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Australia), and a little later introduced freedom of information legislation.8 At that
time Australia led the common law world in its innovation in administrative law. It is
worth noting that this was the work of Parliament, not 'adventurous judges' in their
judicial capacity.9
Some argue that this growth in mechanisms for achieving administrative justice
outside the courts has rightly led the federal courts to take a restrained approach to
judicial review,10 recognising what Stanley de Smith famously said in the first edition
of his ground-breaking book Judicial Review of Administrative Action in 1959 that '[i]n the
broad context of the administrative process the role of judicial institutions is inevitably
sporadic and peripheral'.11 That may well be true, even today, but it does not mean
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8
The freedom of information legislation was not part of the original reform package shaped
by the Kerr, Ellicott and Bland Committee reports, but is sometimes seen as an inevitable
consequence of those reform proposals: see Lindsay Curtis, 'The Vision Splendid: A Time
for Re-Appraisal' in Robin Creyke and John McMillan (eds), The Kerr Vision of Australian
Administrative Law (1998) 36, 46. The establishment of the Administrative Review Council
was another feature of the reforms. To which picture some would add the creation of what
is now called the Commonwealth Human Rights and Equal Opportunities Commission in
1981: Robin Creyke, 'The Performance of Administrative Law in Protecting Rights' in
Campbell, Goldsworthy and Stone (eds), Protecting Rights without a Bill of Rights:
Institutional Performance and Reform in Australia (2006) 101, 109, 116–17.
9
Justice Michael Kirby, 'The AAT: Back to the Future' in John McMillan (ed), The AAT:
Twenty Years Forward (1996) 359, 362–3: John McMillan, Parliament and Administrative Law
(Research Paper No 13, Information & Research Services, Department of the Parliamentary
Library, Canberra, 2000–1). The rider 'in their judicial capacity' is necessary because Justices
Kerr and Mason were members of the most far-sighted of the three reform committees, the
Kerr Committee.
This is not to deny that enactment of the reform package was a close run thing and that
there was 'formidable opposition from both politicians and administrators to an
enlargement of review of administrative action by the judiciary'. Sir Anthony Mason,
'Judicial Review: A View from Constitutional and Other Perspectives' (2000) 28 Federal Law
Review 331, 333, 338.
10
See Chief Justice Murray Gleeson, 'Outcome, Process and the Rule of Law' (2006) 65(3)
Australian Journal of Public Administration 5, 12; G D S Taylor, 'May Judicial Review Become
a Backwater?' in Michael Taggart (ed), Judicial Review of Administrative Action in the 1980s:
Problems and Prospects (1986) 153. Cf Margaret Allars, 'Federal Courts and Federal
Tribunals: Pluralism and Democratic Values' in Brian Opeskin and Fiona Wheeler (eds),
The Australian Federal Judicial System (2000) 191, 212–13.
11
This observation appeared at the beginning of every edition Stanley de Smith was
responsible for and in the 4th edition edited by his former London School of Economics
colleague (now Justice) John Evans, but is heavily qualified in later editions. See S A de
Smith, Judicial Review of Administrative Action (1st ed, 1959) 3, immediately followed by: 'The
administrative process is far more than a succession of justiciable controversies'; (2nd ed,
1968) 3, followed by: 'The administrative process is not, and cannot be, a succession of
justiciable controversies'; (3rd ed, 1973) 3, changes to: 'Judicial review of administrative
action is inevitably sporadic and peripheral. The administrative process is not, and cannot
be, a succession of justiciable controversies'; (4th ed, 1980) 3. The 5th edition (edited by Sir
Harry Woolf and Jeffrey Jowell) is a fundamentally different book, and the passage was
demoted to page 19 and heavily qualified (5th ed, 1995) 19, [1–033]; a trend continued in the
latest edition: Harry Woolf, Jeffrey Jowell and Andrew Le Sueur, De Smith's Judicial Review
(6th ed, 2007) 5, [1–004]; See generally D J Galligan, 'Judicial Review and the Textbook
Writers' (1982) 2 Oxford Journal of Legal Studies 257.
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that what the judges say and do in the judicial review cases that get to court is not
important. Here I will focus of necessity on a few cases decided by the High Court of
Australia, because, from a comparative common law perspective, it is this court that
sets the tone of the law of judicial review in Australia, and its jurisprudence will be
most often looked at outside Australia. Moreover, the relatively recent recognition of a
single Australian common law declared ultimately by the High Court12 may mean that
the prospects for experimentalisation with the common law of judicial review at the
State and Territory level is rather limited.13
So what are the distinctive features of the Australian public law landscape that
might be thought singly or collectively to be distinctive or exceptional?
Australia is a federation, and a comparatively recently created one. The earlier
colonial constitutions with the rare exception for religious freedom in Tasmania did
not entrench or protect rights or civil liberties.14 The federal Constitution distributes
legislative, executive and judicial powers between federal and state levels. The
founders expressly considered adopting a Bill of Rights and consciously rejected it, and
there are very few guarantees protecting individual rights in the Constitution.15
Attempts to amend the Constitution have seldom succeeded, and all attempts to
entrench rights or liberties have failed miserably.16 As is well-known, in the 1990s the
High Court of Australia found an implied freedom of political communication in the
Constitution and implicit in the principle of representative democracy, but this
generated considerable and ongoing controversy.17 Hilary Charlesworth has summed
all this up as 'the Australian reluctance about rights'.18
The Constitution is generally construed as establishing a firm separation of powers
between the three branches of government, much stricter than in the US or Canada;19
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12
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 563: 'There is one common
law in Australia which is declared by this Court as the final court of appeal'. See further
Mark Leeming, 'Common Law within Three Federations' (2007) 18 Public Law Review 186,
188; Leslie Zines, 'The Vision and the Reality' in Peter Cane (ed), Centenary Essays of the
High Court of Australia (2004) 3, 12–14.
13
Bradley Selway, 'The Principle Behind Common Law Judicial Review of Administrative
Action — The Search Continues' (2002) 30 Federal Law Review 217, 233-4; Chief Justice
Spigelman, 'The Integrity Branch of Government' (2004) 78 Australian Law Journal 724, 733.
14
See Enid Campbell, 'Civil Rights and the Australian Constitutional Tradition' in Carl Beck
(ed), Law and Justice: Essays in Honour of Robert S. Rankin (1970) 295.
15
See Haig Patapan, 'The Dead Hand of the Founders? Original Intent and the Constitutional
Protection of Rights and Freedoms in Australia' (1997) 25 Federal Law Review 211; and the
snapshot in Jeffrey Goldsworthy, 'Australia: Devotion to Legalism' in Jeffrey Goldsworthy
(ed), Interpreting Constitutions: A Comparative Study (2006) 106, 108–9.
16
See, eg, Brian Galligan, 'Australia's Rejection of a Bill of Rights' (1990) 28 Journal of
Commonwealth and Comparative Politics 344; Paul Kildea, 'The Bill of Rights Debate in
Australian Political Culture' (2003) 9 Australian Journal of Human Rights 65, 67–9.
17
See, eg, H P Lee, 'The Implied Freedom of Political Communication' in H P Lee and George
Winterton (eds), Australian Constitutional Landmarks (2003) 391.
18
Hilary Charlesworth, 'The Australian Reluctance About Rights' in Philip Alston (ed),
Towards an Australian Bill of Rights (1994) 21.
19
Less often remarked upon is the fragility of the historical support for this view, and this is
especially remarkable in respect of those attracted by versions of originalism in
constitutional interpretation. See generally Fiona Wheeler, 'Original Intent and the Doctrine
of the Separation of Powers in Australia' (1996) 7 Public Law Review 96; Fiona Wheeler, 'The
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and especially rigid in separating and protecting judicial power.20 On the occasion of
the centenary of the High Court of Australia, Sir Anthony Mason observed that 'the
separation of powers has had a stronger influence on Australian public and
administrative law, especially judicial review, than it has on English, Canadian and
New Zealand administrative law'.21 The consequence is that separation of powers
(underpinned by the rule of law22) plays a bifurcated role in Australian public law. On
the constitutional law side, the High Court has 'enthusiastically enforced … the
separation of judicial power'23 as an implied constitutional power,24 striking down
legislation that intrudes upon the judicial power. But when it comes to administrative
law the price to be paid for that strength on the constitutional side is considerable
restraint; limiting the courts to enforcing the 'law' and drawing a sharp divide between
law, on one side, and 'policy' and 'the merits', on the other; a divide the courts say they
cannot and will not cross.
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Boilermakers Case' in H P Lee and George Winterton (eds), Australian Constitutional
Landmarks (2003) 160; Geoffrey Sawer, Australian Federalism in the Courts (1967) ch 9.
20
The point is often made that this is a gloss on the Constitution — now a very firmly
established one — rather than expressly mandated. Indeed, the importance of the
independence of the judiciary is deeply embedded in Diceyan constitutionalism. See
generally John Allison, 'The Separation of Powers in the Modern Period in England:
Constitutional Principle or Customary Practice' (2002) 16 Iuris Scripta Historica 90; now updated in J W F Allison, The English Historical Constitution: Continuity, Change and European
Effects (2007) ch 4. So the real difference between separation of powers in the UK and
Australia on this score may be that the Australian courts can invalidate legislation on the
basis of a strong conception of the judicial role, whereas British judges can only operate by
interpretative means in the UK but have a wider but less-well-recognised role (similar to
that of the Australian courts) under constitutional review sitting in the Privy Council on
appeals from former colonies with capital 'C' Constitutions. See Suratt v A-G (Trinidad and
Tobago) [2008] 2 WLR 262. Cf Keith Ewing, 'A Bill of Rights: Lessons from the Privy
Council' in W Finnie, Chris Himsworth and Neil Walker (eds), Edinburgh Essays in Public
Law (1991) 231.
21
Sir Anthony Mason, 'The Break with the Privy Council and the Internationalisation of the
Common Law' in Peter Cane (ed), Centenary Essays of the High Court of Australia (2004) 66,
77. Chief Justice Black of the Federal Court has also pointed out 'the constant presence of
Australia's Constitution — often unnoticed but, on occasion, stamping its own authority on
the development of this body of law': 'Foreword' to Matthew Groves and H P Lee (eds),
Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) vii.
22
In Australian Communist Party v Commonwealth (1951) 83 CLR 1 ('Communist Party Case'),
193, Sir Owen Dixon famously postulated that the rule of law was an 'assumption' implicit
in the Constitution. See also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 ('Plaintiff
S157'), 491 [27]–[31] (Gleeson CJ) ('the Australian Constitution is framed upon the
assumption of the rule of law'), 513, [103]–[104] (Gaudron, McHugh, Gummow, Kirby and
Hayne JJ). For further discussion of the Communist Party Case, see David Dyzenhaus, The
Constitution of Law: Legality in a Time of Emergency (2006) 72–87; George Winterton, 'The
Communist Party Case' in H P Lee and George Winterton (eds), Australian Constitutional
Landmarks (2003) 108.
23
Goldsworthy, 'Australia', above n 15, 106, 148.
24
See George Winterton, 'The Separation of Judicial Power as an Implied Bill of Rights' in
Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of
Professor Leslie Zines (1994) 185.
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The federal courts below the High Court were created by statute in 1976, and as a
consequence had no inherent supervisory jurisdiction — in other words, they had no
common law powers of judicial review.25 This fact and subsequent legislation have
made the law of judicial review at the federal level an extremely dense and complex
patchwork.26 This opacity is daunting to an outsider peeking into Australian judicial
review law.27 One result of this complexity is that there are gaps.28 It is, of course,
different for the State courts which have inherent supervisory jurisdiction, but they are
subject to appeal to and hence control by the High Court of Australia; the guardians of
a single Australian common law.
The bulk of the Federal Court's judicial review caseload has in recent years
concerned migration matters, and as that became unpopular with the government and
the Parliament tried to turn off the tap of judicial review the High Court of Australia's
constitutionally protected original jurisdiction to grant certain prerogative writs under
s 75(v) of the Constitution came into prominence. This brought into play a highly
complex and technical body of law surrounding those writs. As Peter Cane has
observed, this remedial focus and technicality sat very awkwardly with the tenets of
the 'new Administrative Law'.29 Moreover, immigration and refugee law is a highly
politically charged area, linked to foreign policy and the other 'exceptionalism' I
touched on at the beginning of this paper. It has undoubtedly skewed the High Court's
administrative law load30 and, I dare say, its jurisprudence, and generated a
complicated and sometimes tense relationship between the branches, and even within
the federal court structure itself.31
Lastly, there is the conservative turn of the High Court, reflected in the
appointments to that Court by the Howard government.32 There is no doubt it is a
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25
See generally James Crawford and Brian Opeskin, Australian Courts of Law (4th ed, 2004) 48,
151–4, 282–3.
26
Read Alan Robertson, 'The Administrative Law Jurisdiction of the Federal Court — Is the
AD(JR) Act Still Important?' (2003) 24 Australian Bar Review 89 and ask yourself how any
lawyer outside Australia can be expected to understand the Federal Court's administrative
law jurisdiction.
27
See Peter Cane and Leighton McDonald, Principles of Administrative Law: Legal Regulation of
Governance (2008) ch 2. The same was true of US federal administrative law until quite
recently, and is still true of state administrative laws in the US (which, unlike at the federal
level, has a common law basis). See Jack Beermann, 'The Reach of Administrative Law in
the United States' in Michael Taggart (ed), The Province of Administrative Law (1996) 171.
28
See Christos Mantziaris and Leighton McDonald, 'Federal Judicial Review Jurisdiction after
Griffith University v Tang' (2006) 17 Public Law Review 22.
29
For details, see Cane's excellent discussion: Cane, 'The Making of Australian
Administrative Law', above n 3, 116, 119–22, 131–4.
30
Justice Kirby noted the rise of immigration cases as the 'most distinctive phenomenon' of
the High Court's work since the mid-1990s: Justice Michael Kirby, 'Ten Years in the High
Court — Continuity and Change' (2005) 27 Australian Bar Review 4, 9.
31
See Justice Ronald Sackville, 'Judicial Review of Migration Decisions: An Institution in
Peril?' (2000) 23 University of New South Wales Law Journal 190.
32
See the statement of Tim Fischer (the then Deputy Prime Minister) in the wake of Wik
Peoples v Queensland (1996) 187 CLR 1, that the Federal government would make '[c]apital C
conservative' appointments to the High Court, quoted in Justice Michael Kirby, 'Judicial
Activism? A Riposte to the Counter-Revolution' (2004) 24 Australian Bar Review 219, 228.
See generally Enid Campbell and H P Lee, The Australian Judiciary (2001) 62; Goldsworthy,
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more conservative bench than the High Court was in the 1980s and early 1990s.33 But
once again it depends on the comparator. There are those who say (sometimes
approvingly, sometimes not) that that period was aberrational and that the High Court
has just reverted to its former conservative type.34
This is part of a deeper point that comparativists evoke by using the French word
mentalité,35 which I interpret as 'mind set'. Jeffrey Goldsworthy has summed it up as a
devotion to legalism, which those outside Australia might better recognise as legal
formalism. Formalism is a catch-all term: a 'shorthand for a number of different
ideas'36 including a highly technical approach to problems; the employment of formal,
conceptual and logical analysis, often related to literalism and sometimes originalism;
a belief that law is an inductive science of principles drawn from the cases, rather than
the application of broad, overarching principles to particular disputes;37 a
downplaying of the role of principle, policy, values and justice in adjudication; and in
extreme forms a denial of judicial law-making.38 And this is often unattractively
packaged at great length in what a former Chief Justice of Australia has described as
that 'dense, grinding judicial style … characteristic of [so many] High Court
judgments.'39 It appears from the outside that formalism has hung on in Australia,
even longer than in the UK, New Zealand and Canada. The reasons why are complex,
but it seems from what I have read that the dominating influence of a few law schools,
and strong bar cultures in Sydney and Melbourne have played a major part.40
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'Australia', above n 23, 158 ('After Wik … the government proceeded to fill a series of
vacancies with judges believed to subscribe to more traditional, legalistic methods').
33
Haig Patapan, 'High Court Review 2001: Politics, Legalism and the Gleeson Court' (2002)
37 Australian Journal of Political Science 241, 241–3; Cane, 'The Making of Australian
Administrative Law', above n 3, 130–1.
34
This theme is explored through interviews with judges in Jason L Pierce, Inside the Mason
Court Revolution: The High Court of Australia Transformed (2006) but cf David Robertson,
'Book Review' (2006) 6 Oxford University Commonwealth Law Journal 237. The same point is
sometimes made about the Warren Court in the US: David Luban, 'The Warren Court and
the Concept of a Right' (1999) 34 Harvard Civil Rights-Civil Liberties Law Review 7, 7.
35
Pierre Legrande, 'Against a European Civil Code' (1997) 60 Modern Law Review 44, 62.
36
Johan Steyn, 'Does Legal Formalism Hold Sway in England?' (1996) 49 Current Legal
Problems 43, 44.
37
On the distinction between top-down and bottom-up reasoning, see Justice Keith Mason,
'What Is Wrong with Top-Down Legal Reasoning?' (2004) 78 Australian Law Journal 574;
Stephen Gageler, 'The Underpinnings of Judicial Review of Administrative Action:
Common Law or Constitution?' (2000) 28 Federal Law Review 303.
38
Cane writes of 'a strong commitment to conceptualism and historicism on the part of
intellectually influential members of the Gleeson court': Cane, 'The Making of Australian
Administrative Law', above n 3, 134. See generally Goldsworthy, 'Australia', above n 23;
and in relation to the UK, P S Atiyah, The Pragmatism and Theory in English Law (1987).
39
Sir Anthony Mason, 'Justice of the High Court' in Timothy L H McCormack and Cheryl
Saunders (eds), Sir Ninian Stephen: A Tribute (2007) 3, 5.
40
See Andrew J Goldsmith, 'A Profile of the Federal Judiciary' in Brian Opeskin and Fiona
Wheeler (eds), The Australian Federal Judicial System (2000) 365, 380–3; Harold A J Ford,
'Recreating Australian Legal Education' in Charles Sampford and C A Bois (eds), Sir
Zelman Cowen: A Life in the Law (1997) 62 (Melbourne Law School in the 1950s and early
1960s); Francesca Dominello and Eddy Neumann, 'Background of Justices' in Tony
Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High
Court of Australia (2001) 48, 50; Colin Phegan and Patricia Loughlan (eds), The Sydney
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Moreover, the towering presence of Sir Owen Dixon has cast a longer shadow over the
Australian judiciary than any other jurist,41 and his expressed devotion to 'a strict and
complete legalism' is still much admired and emulated.42
Enough has been said to show that there can be much debate over any one, let alone
all, of these identified features. It is time to identify some of the doctrinal aspects in
which Australian judicial review law might be considered out of step.
Australian common law judicial review retains the concept of jurisdictional error
(including jurisdictional fact) and its corollary certiorari to quash non-jurisdictional
errors of law disclosed on the face of the record.43 Suffice it to say here this perpetuates
a complicated jurisprudence. In truth, 'jurisdictional error' is a 'conclusory label'44 that
can mask the degree of judicial discretion involved and obscure the reasons for
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Centenary Essays in Law: A Collection of Essays to Mark the Centenary of the Faculty of Law at the
University of Sydney (1991); Geoff Lindsay and Carol Webster (eds), No Mere Mouthpiece:
Servants of All, Yet of None (2002).
41
See, eg, Colin Howard, 'Sir Owen Dixon and the Constitution' (1973) 9 Melbourne University
Law Review 1, 3; Mita Bhattacharya and Russell Smyth, 'The Determinants of Judicial
Prestige and Influence: Some Empirical Evidence from the High Court of Australia' (2001)
30 Journal of Legal Studies 223, 241–2 (Sir Owen Dixon sits at the top of citation tables). Cf
David Ritter, 'The Myth of Sir Owen Dixon' (2005) 9 Australian Journal of Legal History 249;
Laurence W Maher, 'Owen Dixon: Concerning His Political Method' (2003) 6(2)
Constitutional Law and Policy Review 33; Dennis Rose, 'Sir Owen Dixon' (2003) 6(1)
Constitutional Law and Policy Review 18, 20. Sir Anthony Mason has pointed out also that the
continuing influence of Sir Owen Dixon's ideas of judicial method may be 'yet another
reason for the differentiation between the common law in Australia and the common law
in other jurisdictions': Sir Anthony Mason, 'The Break with the Privy Council and the
Internationalisation of the Common Law', above n 21, 80.
42
Sir Owen Dixon, 'Address Upon the Oath of Office in Sydney as Chief Justice of the High
Court of Australia on 21st April, 1952' in Justice Woinarski (ed), Jesting Pilate and Other
Papers and Addresses (1965) 245, 247. This is a large topic. See the much discussed paper by
Justice J D Heydon, 'Judicial Activism and the Death of the Rule of Law' (2003) 23
Australian Bar Review 110. See also Sir Daryl Dawson and Mark Nicholls, 'Sir Owen Dixon
and Judicial Method' (1986) 15 Melbourne University Law Review 543, 544; Justice Kenneth
Hayne, '"Concerning Legal Method" — Fifty Years On' (2006) 32 Monash University Law
Review 223. But Sir Owen Dixon, so often painted a legal literalist, staked out a common
law constitutionalist position but did not take it very far. See generally Michael Wait, 'The
Slumbering Sovereign: Sir Owen Dixon's Common Law Constitution Revisited' (2001) 29
Federal Law Review 57; cf Justice W M C Gummow, 'The Constitution: Ultimate Foundation
of Australian Law?' (2005) 79 Australian Law Journal 167. For a UK contribution, politely
disagreeing with Justice Heydon and perhaps Sir Owen Dixon (both of whom he cites), see
Lord Bingham of Cornhill, 'The Judges: Active or Passive?' (2006) 139 Proceedings of the
British Academy 55.
43
Craig v South Australia (1995) 184 CLR 163 ('Craig'); Public Service Association of South
Australia v Federated Clerks' Union of Australia (1991) 173 CLR 132. See generally Mark
Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd ed,
2004) 212–18; Robin Creyke and John McMillan, Control of Governmental Action: Text, Cases
and Commentary (2005) 790–4.
44
Mark Aronson, 'Jurisdictional Error without the Tears' in Matthew Groves and H P Lee
(eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 330, 333,
344. Aronson thinks 'error of law' is equally 'conclusory'. So it is, without more: that is
where deference theory comes in. We have been in conversation about this and disagreeing
for years, long may it continue.
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intervening or not in a particular case. In Craig, the High Court refused to follow the
UK and New Zealand courts in abandoning the concept of jurisdiction in favour of an
error of law standard of review.45 To an outsider this looks rather odd in the light of
the rejection of jurisdictional error in the codification of the grounds in the ADJR Act as
long ago as 1977 and its replacement with simple error of law.46 One can assume that
this statutory abolition of jurisdictional error in relation to most federal administrative
decision-making has not led to the sky falling in.
What this retention of jurisdictional error illustrates more broadly is the Australian
preference to work within existing historic or doctrinal categories.47 Take the reinvigoration of jurisdictional fact review; on one view this gives the judges much
greater ability to intervene in the administrative process … or not.48 Use of the historic
doctrinal façade continues to mask that judicial discretion. And, of course, this puts a
premium on expert knowledge: only the cognoscenti know the score. Retention of
jurisdictional error contributes, I think, to the often-Byzantine quality of much of the
Australian judicial and academic analysis. Moreover, it means Australian courts are
not speaking the new international language of judicial review and that sets its
jurisprudence apart, and over time may create something of a 'time warp' effect.
There are those that point to the retention of what used to be called the old
prerogative writs under s 75(v) of the Constitution — now rebranded as 'constitutional
writs'49 — as requiring retention of the concept of jurisdictional error,50 but this seems
unconvincing to me.51 The Constitution enshrined the remedies, not the grounds of
review.52 Moreover, this has complicated the treatment of privative clauses, making
reliance elsewhere on the landmark High Court case of Plaintiff S15753 so much more
difficult. Incidentally, I have long since given up trying to understand the Hickman test!
This doctrine, charitably described by Sir Anthony Mason as 'an Australian home-
_____________________________________________________________________________________
45
(1995) 184 CLR 163. See generally above n 43.
46
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(f).
47
This point is nicely made by Kristina Stern, 'Substantive Fairness in UK and Australian
Law' (2007) 29 Australian Bar Review 266, 267.
48
See generally Margaret Allars, 'Chevon in Australia: A Duplicitous Rejection?' (2002) 54
Administrative Law Review 569, 570; Mark Aronson, 'The Resurgence of Jurisdictional Facts'
(2001) 12 Public Law Review 17.
49
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. This terminology has 'risen
exponentially' since 2000: D F Jackson, 'Development of Judicial Review in Australia Over
the Last Ten Years: The Growth of the Constitutional Writs' (2004) 12 Australian Journal of
Administrative Law 22, 24. See also Walter Sofronoff, 'Constitutional Writs' (2007) 14
Australian Journal of Administrative Law 145.
50
See Re Minister for Immigraiton and Multicultural and Indigenous Affairs; Ex parte Lam (2003)
214 CLR 1, 24–5 [76]–[77] (McHugh and Gummow JJ); Jackson, above n 49, 27.
51
See also Aronson, 'Jurisdictional Error without the Tears', above n 44, 334–5.
52
Cane makes this point also but seems to think the historical baggage is less easily
dispensed with than I do: Cane, 'The Making of Australian Administrative Law', above n 3,
116.
53
(2003) 211 CLR 476. Section 75(v) rather mysteriously omits certiorari: no clear reason for
this is evident from federal convention debates. See generally Mary Crock and Edward
Santow, 'Privative Clauses and the Limits of the Law' in Matthew Groves and H P Lee
(eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 345.
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grown expedient',54 does not feature in the administrative law jurisprudence of any
other common law country. Ironically, in the light of what I am about to say about
deference in a moment, the inspiration for the Hickman doctrine has been traced to
Felix Frankfurter,55 a strong supporter of judicial restraint and judicial deference to
administrative decision-making.56
In City of Enfield v Development Assessment Commission,57 the High Court rejected the
so-called doctrine of deference, which in essence provides that where the interpretation
of a statute adopted by an administrative decision-maker is within a reasonable range
the Court should defer to the view of the Parliament's expert delegate rather than
impose what it thinks itself is the correct view. In rejecting deference the High Court of
Australia is at odds with the Supreme Court of Canada and the US Supreme Court, but
is in line with UK and New Zealand jurisprudence.58 Many Australians think that this
stance is dictated by the Constitution,59 but viewed in comparative perspective that
does not hold water.
As I said, UK and New Zealand judges have taken exactly the same approach as the
High Court of Australia.60 This approach is underpinned by three inter-related
notions: (1) that there is one right answer to questions of statutory interpretation; (2)
that the judges are the best qualified and placed to provide that answer; and (3) that
these questions of 'law' are separate and easily distinguishable from policy, discretion
_____________________________________________________________________________________
54
Sir Anthony Mason, 'The Foundations and Limitations of Judicial Review' (2001) 31 AIAL
Forum 1, 20. Elsewhere, Sir Anthony called the doctrine 'an Australian innovation': Sir
Anthony Mason, 'The Break with the Privy Council and the Internationalisation of the
Common Law', above n 21, 78. See also Sir Anthony Mason, 'The Analytical Foundations,
Scope and Comparative Analysis of the Judicial Review of Administrative Action' in
Geoffrey Lindell (ed), The Mason Papers: Selected Articles and Speeches by Sir Anthony Mason
AC, KBE (2007) 180, 187.
55
Ian Holloway, '"A Bona Fide Attempt": Chief Justice Sir Owen Dixon and the Policy of
Deference to Administrative Expertise in the High Court of Australia' (2002) 54
Administrative Law Review 687.
56
There is a lot written about Frankfurter's views on administrative law, but less on his
influence and connections outside the US. See Richard A Cosgrove, Our Lady the Common
Law: An Anglo-American Legal Community, 1870–1930 (1987) ch 8; Michael Taggart,
'Prolegomenon to an Intellectual History of Administrative Law in the Twentieth Century:
The Case of John Willis and Canadian Administrative Law' (2005) 43 Osgoode Hall Law
Journal 223.
57
(2000) 199 CLR 135 ('Enfield'). The case is taken to decide this even though it involved
jurisdictional fact rather than the interpretation of statutory text, which is a more common
context where issues of deference arise.
58
See Michael Taggart, 'The Contribution of Lord Cooke to Scope of Review Doctrine in
Administrative Law: A Comparative Common Law Perspective' in Paul Rishworth (ed),
The Struggle for Simplicity in Law: Essays for Lord Cooke of Thorndon (1997) 189, 203–4; Michael
C Tolley, 'Judicial Review of Administrative Interpretation of Statutes: Deference Doctrines
in Comparative Perspective' (2003) 31 Policy Studies Journal 31; Aronson, Dyer and Groves,
above n 43, 181–4; Paul P Craig, Administrative Law (5th ed, 2004) ch 15.
59
See, eg, Gleeson, above n 10, 12 ('Australian administrative law, for reasons related to our
Constitution, has not taken up the North American jurisprudence of deference'); Cane, 'The
Making of Australian Administrative Law', above n 3, 118–19 (difference due to
institutional design of separation-of-powers).
60
See Re Racal Communications Ltd [1981] AC 374, 382–3 (Lord Diplock); Bulk Gas Users Group
v A-G [1983] NZLR 129, 133 (Cooke J).
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and fact-finding.61 Each of these notions is controversial, and they have largely been
rejected in Canadian and United States administrative law. I am not arguing here that
the Australian courts should adopt the doctrine of deference, my point here is simply
that the Australian Constitution is not a conversation stopper. Simply citing the
'memorable words' in the venerable US Supreme Court decision of Marbury v
Madison62 — that '[i]t is, emphatically, the province and duty of the judicial department
to say what the law is' — is too simplistic.63 Like so much Australian constitutional talk
it is actually grounded in a more universal common law constitutionalism,64 which
owes much to the writings of A V Dicey.65
I want to move on now to judicial review for unreasonableness, known for more
than half a century around the common law world as Wednesbury unreasonableness.66
_____________________________________________________________________________________
61
In Australia, Peter Bayne pressed for acceptance of a deference doctrine in the 1990s. See,
eg, Peter Bane, 'The Court, the Parliament and the Government — Reflections on the Scope
of Judicial Review' (1991) 20 Federal Law Review 1, 32–40. Cf Mason, 'Judicial Review', above
n 9, 339–40.
62
Marbury v Madison, 1 Cranch 137, 177–8 (1803), cited in A-G (NSW) v Quin (1990) 170 CLR 1,
35–6 (Brennan J); Enfield (2000) 199 CLR 135, 153. See also Justice W M C Gummow, 'The
Permanent Legacy' (2000) 28 Federal Law Review 177, 180–1.
63
Stephen Gageler has emphasised the constitutional underpinnings of Sir Gerard Brennan's
approach to administrative and his reliance on Marshall CJ's dicta in Marbury v Madison:
Stephen Gageler, 'Sir Gerard Brennan and Some Themes in Judicial Review' in Robin
Creyke and Patrick Keyzer (eds), The Brennan Legacy: Blowing the Winds of Legal Orthodoxy
(2002) 62, 62–7. He sees the 'ultra vires' approach, exemplified by Sir Gerard, as now in the
ascendancy in the High Court: Stephen Gageler, 'Legitimate Expectation: Comment on the
Article by Sir Anthony Mason AC KBE' (2005) 12 Australian Journal of Administrative Law
111. Marbury v Madison, of course, has not prevented the US courts adopting a version of
the deference doctrine in their administrative law.
64
See Cheryl Saunders, 'Plaintiff S157/2002: A Case-Study in Common Law Constitutionalism'
(2005) 12 Australian Journal of Administrative Law 115; Dyzenhaus, The Constitution of Law,
above n 22, ch 2. Terms like constitutionalism are contestable, of course. In the Australian
setting, see Haig Patapan, 'The Forgotten Founding: Civics Education, the Common Law
and Liberal Constitutionalism in Australia' (2005) 14 Griffith Law Review 91.
65
A large amount has been written on Dicey and his views on administrative law, see: H W
Arthurs, 'Rethinking Administrative Law: A Slightly Dicey Business' (1979) 17 Osgoode Hall
Law Journal 1; Paul P Craig, Public Law and Democracy in the United Kingdom and the United
States of America (1990) ch 2; Martin Loughlin, Public Law and Political Theory (1992) ch 7;
David Sugarman, 'The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science'
(1983) 46 Modern Law Review 102; J Stapleton, 'Dicey and his Legacy' (1995) 16 History of
Political Thought 234; Lord Bingham of Cornhill, 'Dicey Revisited' [2002] Public Law 39.
66
Named after Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB
223, 229 (Lord Greene MR). For a contextualised treatment of the case and its significance,
see Michael Taggart, 'Reinventing Administrative Law' in Nicholas Bamforth and Peter
Leyland (eds), Public Law in a Multi-Layered Constitution (2003) 311. The vultures are circling
Wednesbury unreasonableness in the UK: see R (Association of British Civilian Internees: Far
East Region) v Secretary of State for Defence [2003] QB 1397, 1413 [34] ; H W R Wade and
Christopher Forsyth, Administrative Law (9th ed, 2004) 371 ('terminal decline'); Craig,
Administrative Law, above n 58, 628–35; R v Chief Constable of Sussex; Ex parte International
Trader's Ferry Ltd [1999] 2 AC 418, 452 (Lord Cooke of Thorndon); R (Daly) v Secretary of
State for the Home Department [2001] 2 AC 532 ('Daly'), 548–9 [32] (Lord Cooke of Thorndon);
Sir Stephen Sedley, 'The Sound of Silence: Constitutional Law Without a Constitution'
(1994) 110 Law Quarterly Review 270, 277–8.
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This ground was codified in the ADJR Act;67 and that may be significant — as the law
in the UK, Canada and New Zealand has moved on since the 1970s.68
Unreasonableness used to be seen as a residual, 'safety net' ground of review that
would catch outrageous cases not demonstrating error on any of the more specific
grounds of judicial review69 — such as misconstruction of statute or common law,
improper purpose, taking account of the irrelevant or ignoring the relevant, bad faith,
etc.70 But amid calls for more explicit articulation of the values underlying the
application of the unreasonableness doctrine,71 in the 1990s the UK courts developed
overtly a variegated approach to the intensity of Wednesbury review. This approach
became known as variable intensity unreasonableness review, and, in essence,
stipulated that the graver the impact of the decision upon the individual affected by it,
the more substantial the justification that will be required and must be shown.72
The Federal Court of Australia has steadfastly refused to recognise variable
intensity unreasonableness review on the ground that it is not supported by Australian
authority and trespasses on the merits.73 I will have something to say about the
legality/merits distinction later. It seems a fair inference from the cases that the Federal
Court has been scared off variable intensity unreasonableness by the prevalence of
'rights talk' in the UK cases and no doubt the judges are fearful of the High Court's
reaction to any enthusiasm in that direction, particularly in immigration cases.
_____________________________________________________________________________________
67
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(2)(g).
68
There is disagreement over whether the codification of grounds of review in the ADJR Act
has 'retarded' common law development. Cf Re Minister for Immigration and Multicultural
Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, 94 [157], 97 [166] (Kirby J) (who
believes it has) with Mark Aronson, 'Is the ADJR Act Hampering the Development of
Australian Administrative Law?' (2004) 15 Public Law Review 202, 214–16; John Griffiths,
'Commentary on Professor Aronson's Article "Is the ADJR Act Hampering the
Development of Australian Administrative Law?"' (2005) 12 Australian Journal of
Administrative Law 98 (who disagree). See generally Timothy H Jones, 'Judicial Review and
Codification' (2000) 20 Legal Studies 517.
69
See Aronson, Dyer and Groves, above n 43, 102; Greg Weeks, 'Litigating Questions of
Quality' (2007) 14 Australian Journal of Administrative Law 76; Andrew Le Sueur, 'The Rise
and Ruin of Unreasonableness' (2005) 10 Judicial Review 32, 32 ('a useful longstop to deal
with a residual category of patently bad decisions').
70
The list was well-established long before Lord Greene MR unintentionally codified it in
Wednesbury.
71
The clarion call came first from Jeffrey Jowell and Anthony Lester, 'Beyond Wednesbury:
Substantive Principles of Administrative Law' [1987] Public Law 368.
72
See generally Sir John Laws 'Wednesbury' in Christopher Forsyth and Ivan Hare (eds), The
Golden Metwand and the Crooked Cord: Public Law Essays in Honour of Sir William Wade QC
(1998) 185; R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840, 847-8
[18] (Laws LJ).
73
See SZADC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA
1497 (Unreported, Stone J, 16 December 2003) [23]–[24]; SHJB v Minister for Immigration and
Multicultural and Indigenous Affairs (2003) 134 FCR 43; STKB v Minister for Immigration and
Multicultural and Indigenous Affairs [2004] FCAFC 251 (Unreported, Ryan, Jacobson and
Lander JJ, 8 September 2004) [16]–[22]; Andary v Minister for Immigration and Multicultural
and Indigenous Affairs [2003] FCAFC 211 (Unreported, Spender, Cooper and Dowsett JJ, 28
August 2003). See Mason, 'Judicial Review', above n 9, 334, 343; Mason, 'The Break with the
Privy Council and the Internationalisation of the Common Law', above n 21, 78–9.
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'Australian Exceptionalism' in Judicial Review
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I will come back to this reluctance about rights talk in a moment, but it is important
to see that this approach is supported by a sharp distinction between questions of law
— meaning the correct interpretation of statutory text and common law rules — and
exercise of discretionary power. As regards the former, as I just noted, the Australian
courts insist on having the last word on 'correctness' (there is no deference: Marbury v
Madison and all that). As regards discretion, the courts could not defer more, in theory
at least. Within the four corners of the power the decision-maker is free to decide as he
or she likes. Once the decision-maker has applied the right legal test, the application of
that test and the weight given to the relevant factors are a matter solely for the
decision-maker and the court would not second-guess (or judge) under the guise of
judicial review questions of fact, policy, weight or otherwise intrude into the merits. To
use Ronald Dworkin's analogy, discretion is the hole in the middle of the doughnut
filled with policy and politics, and into which the courts will not enter.74
The difficulty is that the line between law and discretion is unstable, and has
broken down in important respects in recent years. The House of Lords endeavoured
to hold this line between interpretation and discretion in R v Secretary of State for the
Home Department; Ex parte Brind,75 and the High Court did likewise in Minister of State
for Immigration and Ethnic Affairs v Teoh,76 but in truth there is no bright line separating
law and discretion. The key has been to recognise that, both in interpreting particular
words in statutes and in divining the limits of broadly conferred discretionary powers,
lawyers and judges are involved in exactly the same interpretative process. The earlier
cases exemplified by Brind holding that words can be ambiguous, but discretions
cannot be, no longer convince the courts in the UK, Canada and New Zealand. This
has opened the door to the use in relation to exercises of discretionary power of
reinvigorated interpretative principles favouring compliance with common law rights
and compliance with international legal obligations. This trend has been hastened —
but I want to stress not caused by — an increasing number of challenges to the exercise
of discretionary power as inconsistent with domestic, regional and international
human rights instruments. The judges in these countries, as well as in Australia, have
affirmed the 'principle of legality' and the centrality of the 'rule of law'.77
It is obvious that administrative law to a significant degree is about protecting the
individual, and it is hardly a radical idea that the greater the impact a decision has on
the important interests of the individual the greater the scrutiny of the reasoning and
result. Some commentators think that without a bill of rights it would be difficult in
Australia to adopt the UK-style variable intensity unreasonableness review as this
would infringe parliamentary sovereignty and trespass on the merits.78 But those same
_____________________________________________________________________________________
74
See Ronald Dworkin, Taking Rights Seriously (1977) 31 ('Discretion, like the hole in a
doughnut, does not exist except as an area left open by a surrounding belt of restriction.').
75
[1991] 1 AC 696 ('Brind').
76
(1995) 183 CLR 273 ('Teoh').
77
R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539, 588; R v
Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115; R v Pora [2001] 2
NZLR 37, 50 [53], 73 [157]; Ngati Apa Ki Te Waipounamu Trust v R [2000] 2 NZLR 659, 675
[82]; Drew v A-G [2002] 1 NZLR 58; Daly [2001] 2 AC 532; Plaintiff S157 (2003) 211 CLR 476,
492-3 [29]–[33] (Gleeson CJ); Al-Kateb v Godwin (2004) 219 CLR 562 (Gleeson CJ and Kirby
J).
78
See John McMillan and Neil Williams, 'Administrative Law and Human Rights' in David
Kinley (ed), Human Rights in Australian Law: Principles, Practice and Potential (1998) 63, 88–9.
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commentators recognise that 'the human rights dimension of the case' will often be a
'significant premise' in the judicial decision-making even if not overtly identified or
relied upon.79 In other words, we must keep the fig leaf in place for fear of frightening
those who do not know better. I think the Australian courts are mistaken in refusing to
adopt variable intensity unreasonableness review. It is a pity that the doctrine got a
bad name in Australia because it became so quickly identified in the UK with overt
human rights protection à la the European Convention on Human Rights,80 and within a
decade led in the UK to the domestic adoption of both the Convention and the more
intrusive doctrine of proportionality, which I will mention later.
What is required to make variable intensity unreasonableness review work
optimally is a well-established 'culture of justification'.81 Australia has this in place at
the federal level and in some States and Territories with widely applicable statutory
duties to give reasoned decisions. This has been one of the success stories of the 'new
Administrative Law package'. The common law has lagged behind, however. Despite
the ubiquity of statutory reasons requirements in some parts of the federation,82 the
High Court of Australia infamously in Public Service Board of New South Wales v
Osmond83 refused to change the common law rule that reasons are not legally required
of administrative decision-makers.84 And this despite the laudable fact that judges in
Australia, quite exceptionally, had imposed on themselves a legally enforceable
requirement of reasoned elaboration for more than a century.85 The High Court in
_____________________________________________________________________________________
79
Ibid 89–90.
80
Convention for the Protection on Human Rights and Fundamental Freedoms, opened for
signature 4 November 1950, CETS No 005 (entered into force 3 September 1953). The classic
pre-Human Rights Act 1998 (UK) treatment is Murray Hunt, Using Human Rights Norms in
English Courts (1997).
81
The phase is from Etienne Mureinik, 'A Bridge to Where? Introducing the Interim Bill of
Rights' (1994) 10 South African Journal on Human Rights 31, 32, and was popularised by
David Dyzenhaus, 'Law as Justification: Etienne Mureinik's Conception of Legal Culture'
(1998) 13 South African Journal on Human Rights 11.
82
Aronson, Dyer and Groves, above n 43, 554–62; Creyke and McMillan, above n 43, 892–8;
Marilyn Pittard, 'Reasons for Administrative Decisions: Legal Framework and Reform' in
Matthew Groves and H P Lee (eds), Australian Administrative Law: Fundamentals, Principles
and Doctrines (2007) 172; Margaret Allars, 'Of Cocoons and Small 'c' Constitutionalism: The
Principle of Legality and an Australian Perspective on Baker' in David Dyzenhaus (ed), The
Unity of Public Law (2004) 307, 315–19.
83
(1986) 159 CLR 656 ('Osmond').
84
For a critique, see Michael Taggart, 'Osmond in the High Court of Australia: Missed
Opportunity' in Michael Taggart (ed), Judicial Review of Administrative Action in the 1980s:
Problems and Prospects (1986) 53; David St Leger Kelly, 'The Osmond Case: Common Law
and Statute Law' (1986) 60 Australian Law Journal 513; Ben Zipser, 'Revisiting Osmond: In
Search of a Duty to Give Reasons' (1998) 9 Public Law Review 3. 'In other common law
countries,' Kirby J (dissenting) observed recently, deliberately exempting Australia from
the observation, 'the law has moved in recent times, with general consistency, to insist on
the importance of the giving reasons for valid and just decisions, not only by judges but
also administrators': Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex
parte Palme (2003) 216 CLR 212, 229 [64].
85
See Michael Taggart, 'Should Canadian Judges Be Legally Required to Give Reasoned
Decisions in Civil Cases?' (1983) 33 University of Toronto Law Journal 1, 3–8; Beale v
Government Insurance Office of New South Wales (1997) 48 NSWLR 430, 441 (Meagher JA)
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Osmond thought the common law was past the age of child bearing in this regard, and
the matter should be left in the more context-sensitive hands of politicians and
legislative drafters.86 The Court has stuck to this line ever since, much to the chagrin of
Justice Kirby, who in his earlier life as President of the New South Wales Court of
Appeal was overturned in Osmond.87
The common law has not stood still elsewhere in the common law world. In 1999,
the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and
Immigration)88 recognised a generally applicable common law duty to give reasons on
administrative decision-makers, refusing to follow Osmond. Although the English and
New Zealand courts have yet to go as far as the Supreme Court of Canada in
recognising a generally applicable common law duty to give reasons on administrative
decision-makers, they have recognised an increasing number of exceptions to the rule,
and it seems only a matter of time before the exceptions swallow the hoary old rule
that reasons need not be given.89 This process has been accelerated by the adoption of
statutory bills of rights in the UK and New Zealand,90 but it is important to note that
the change is not dependent on doing so: the failure of administrative law in this
regard to live up to the rhetoric of the rule of law has been commented upon since at
least the 1930s.91 Notably, in a speech published last year Chief Justice Gleeson said it
would be 'dangerous for any modern government to disregard what some
commentators … have come to describe as the ethos or culture of justification which
pervades modern liberal democracies' and went on to say '[t]he development in the
_____________________________________________________________________________________
(common law duty on judge and statutory duty on administrators 'essentially serve the
same purpose').
86
Osmond (1986) 159 CLR 656, 669 (Gibbs CJ). See also Sir Anthony Mason, 'Judicial Review:
The Contribution of Sir Gerard Brennan' in Robin Creyke and Patrick Keyzer (eds), The
Brennan Legacy: Blowing the Winds of Legal Orthodoxy (2002) 38, 60. Cf Woolwich Equitable
Building Society v Inland Revenue Commissioners [1993] AC 70, 173 (Lord Goff).
87
See Justice Michael Kirby, 'Accountability and the Right to Reasons' in Michael Taggart
(ed), Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 36.
While awaiting vindication, Justice Kirby feels bound by Osmond: Re Minister for
Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S190 of 2002 (2002)
191 ALR 569, 575. See, however, the ingenuity displayed in Campbelltown City Council v
Vegan (2006) 67 NSWLR 372.
88
(1999) 174 DLR (4th) 193 ('Baker'). See Mary Liston, '"Alert, Alive and Sensitive": Baker, the
Duty to Give Reasons, and the Ethos of Justification in Canadian Public Law' in David
Dyzenhaus (ed), The Unity of Public Law (2004) 113.
89
See R v Secretary of State for the Home Department; Ex parte Doody [1994] 1 AC 531; Paul
Craig, 'The Common Law, Reasons and Administrative Justice' (1994) 53 Cambridge Law
Journal 282; David Toube, 'Requiring Reasons at Common Law' (1997) 2 Judicial Review 68;
Stefan v General Medical Council [1999] 1 WLR 1293, 1301; R (Wooder) v Feggetter [2003] QB
219; cf Dad v General Dental Council [2000] 1 WLR 1538, 1541–2.
90
See, eg, English v Emery Reimbold and Strick Ltd [2002] 3 All ER 385; Mousaka Inc v Golden
Seagull Maritime Inc [2002] 1 WLR 395; Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546, 567
(Elias CJ).
91
One of the recommendations of the Donoughmore Committee (UK) in 1932 was that
reasons should be given for quasi-judicial decisions: Committee on Ministers' Powers Report
(Her Majesty's Stationery Office, Cmd 4060, 1932) 76, 80, 100. The requirement in the US
Administrative Procedure Act of 1946, 5 USC § 500 (1946) requiring reasons was one of the
most admired features across the Atlantic. See Harry Street, 'Book Review' (1950) 59 Yale
Law Journal 590, 593.
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Australian community of a cultural expectation that those in authority are able and
willing to justify the exercise of power is one of the most important aspects of modern
public life'.92 Osmond does not sit well with that culture of justification,93 and perhaps
the 'cultural expectation' might yet be reflected in Australian common law.94
I want to move now to the topic of procedural legitimate expectation. One of the
most well-known, controversial and influential contributions of the High Court to
Anglo-Commonwealth administrative law is the decision in Minister of Immigration and
Ethnic Affairs v Teoh.95 In that case, the doctrine of procedural legitimate expectation
was used to give greater effect to international legal obligations in domestic Australian
law. This idea has caught on in the UK and particularly in Privy Council judgments on
appeals from the Carribean,96 and has been influential below the surface in the
Supreme Court of Canada;97 but so far has made little headway in New Zealand.98 Let
me raise my cloven hoof and say that I was critical of Teoh from the beginning and
believe there are formidable doctrinal and practical difficulties in using the doctrine of
legitimate expectation to achieve the desirable end of giving greater effect to
unincorporated international human rights treaties in domestic law.99
_____________________________________________________________________________________
92
Gleeson, 'Outcome, Process and the Rule of Law', above n 10, 12.
93
Sir Anthony Mason, 'Reply to David Dyzenhaus' in Cheryl Saunders and Katherine Le Roy
(eds), The Rule of Law (2003) 52, 54.
94
Peter Cane has said '[i]t seems unlikely, even in the current climate of judicial caution, that
the rule in Osmond could survive a direct onslaught totally unscathed': Cane, 'The Making
of Australian Administrative Law', above n 3, 129. See generally David Dyzenhaus and
Michael Taggart, 'Reasoned Decisions and Legal Theory' in Douglas Edlin (ed), Common
Law Theory (2007) 134.
95
(1995) 183 CLR 273 ('Teoh').
96
Ahmed v Secretary of State for the Home Department [1999] Imm AR 22, 36–7 ('wholly
convincing': Lord Woolf MR), 41 (his approach 'fully accord[ed]' with that in Teoh:
Hobhouse LJ); R v Uxbridge Magistrates' Court; Ex parte Adimi [2001] 3 QB 667, 686 (Simon
Brown LJ), 690–1 (Newman J); Thomas v Baptiste [2000] 2 AC 1, 32 (Privy Council, Trinidad
and Tobago - dissent); Higgs v Minister of National Security [2000] 2 AC 228, 241 (Privy
Council, The Bahamas); Fisher v Minister of Public Safety (No 2) [2000] 1 AC 434, 446–47, 454
(Privy Council, The Bahamas); Lewis v A-G (Jamaica) [2001] 2 AC 50, 83–5, cf 88–9 (Privy
Council, Jamaica); Naidike v A-G (Trinidad and Tobago) [2005] 1 AC 538, 558-60 [72]-[77]
(Baroness Hale of Richmond). The Privy Council has not yet applied the Teoh approach as
ratio in any case, but it appears to be slouching towards doing so.
97
Although Teoh was studiously avoided by the Supreme Court of Canada in Baker (1999) 174
DLR (4th) 193, arguably it played an influential role: David Dyzenhaus, Murray Hunt and
Michael Taggart, 'The Principle of Legality in Administrative Law: Internationalisation as
Constitutionalisation' (2001) 1 Oxford University Commonwealth Law Journal 5, 13–16.
98
An exception is Thomas J's part-concurring, part-dissenting judgment in New Zealand Maori
Council v A-G [1996] 3 NZLR 140, 184–5, founding an expectation on the Treaty of
Waitangi; cf Ngai Tahu Maori Trust Board v Director-General of Conservation [1995] 3 NZLR
553. For the current New Zealand approach, see Michael Taggart, 'Administrative Law'
[2003] New Zealand Law Review 99, 104–9; Claudia Geiringer, 'Tavita and All That:
Confronting the Confusion Surrounding Unincorporated Treaties and Administrative Law'
(2004) 21 New Zealand Universities Law Review 66.
99
See Michael Taggart, 'Legitimate Expectation and Treaties in the High Court of Australia'
(1996) 112 Law Quarterly Review 50. See also Hunt, above n 80, 242–7; Elizabeth Handsley,
'Legal Fictions and Confusion as Strategies for Protecting Human Rights: A Dissenting
View on Teoh's Case' (1997) 2 Newcastle Law Journal 56; Dyzenhaus, Hunt and Taggart,
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As is well known, the High Court in Re Minister for Immigration and Multicultural
and Indigenous Affairs; Ex parte Lam100 has done about as much as judges can by way of
obiter dicta in a case where the point was not argued to overrule Teoh. There is much to
be said about Lam and Teoh but there is nothing I can usefully add to the burgeoning
indigenous literature on the topic.101 Rather I want to recall a long since forgotten
episode in Australian administrative law at the dawn of the reception of procedural
legitimate expectation, which seems surprisingly relevant in the light of a recent High
Court decision.
In the late 1970s, Chief Justice Barwick objected to the doctrine of procedural
legitimate expectation. In a series of cases Sir Garfield Barwick opposed the extension
of natural justice to immigrants via the doctrine of procedural legitimate expectation
on the ground that the phrase 'legitimate expectation' was either oxymoronic or meant
no more than legal right. For him, the 'legitimate' part of the couplet could only mean
something sourced in positive law, in other words something 'lawful', and so coupling
this with expectation was just a confusing way of referring to a legal right: ergo natural
justice attached only to the interference with legal rights rather than expectations: so
immigrants lost out.102 This view carried the day in Salemi by virtue of the Chief
Justice's casting vote,103 but was shortly thereafter rejected by the rest of the Court in
Heatley v Tasmanian Racing & Gaming Commission,104 over the Chief Justice's continuing
dissent, and the doctrine found a secure place in Australian law.105 Importantly
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above n 97. Others were critical of both the reasoning and the ambition. The majority of
commentators, however, applauded both. Among the administrative lawyers Margaret
Allars took the lead: Margaret Allars, 'One Small Step for Legal Doctrine, One Giant Leap
Towards Integrity in Government: Teoh's Case and the Internationalisation of
Administrative Law' (1995) 17 Sydney Law Review 204; Margaret Allars, 'International Law
and Administrative Discretion' in B R Opeskin and D R Rothwell (eds), International Law
and Australian Federalism (1997) 232; Margaret Allars, 'Human Rights, UKASES and Merits
Review Tribunals: The Impact of Teoh's Case on the Administrative Appeals Tribunal in
Australia' in Michael Harris and Martin Partington (eds), Administrative Justice in the 21st
Century (1999) 337.
100 (2003) 214 CLR 1 ('Lam').
101 For a selection see Matthew Groves, 'Is Teoh's Case Still Good Law?' (2007) 14 Australian
Journal of Administrative Law 126; Bruce Dyer, 'Legitimate Expectations in Procedural
Fairness After Lam' in Matthew Groves (ed), Law and Government in Australia (2005) 184,
207; Alison Duxbury, 'The Impact and Significance of Teoh and Lam' in Matthew Groves
and H P Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines
(2007) 19; Sir Anthony Mason, 'Procedural Fairness: Its Development and Continuing Role
of Legitimate Expectation' (2005) 12 Australian Journal of Administrative Law 103; Wendy
Lacey, 'The Judicial Use of Unincorporated International Conventions in Administrative
Law: Back-Doors, Platitudes and Window-Dressing' in Hilary Charlesworth, Madelaine
Chiam, Devika Hovell and George Williams (eds), The Fluid State: International Law and
National Legal Systems (2005) 82.
102 Salemi v MacKellar (No 2) (1977) 137 CLR 396 ('Salemi'), 404. See also R v MacKellar; Ex parte
Ratu (1977) 137 CLR 461.
103 On the casting vote, see Michael Coper, 'Tied Vote' in Tony Blackshield, Michael Coper and
George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 671.
104 (1977) 137 CLR 487.
105 For a nice thumbnail sketch of a topic upon which much has been written, see Robin
Creyke, 'Legitimate Expectation' in Tony Blackshield, Michael Coper and George Williams
(eds), The Oxford Companion to the High Court of Australia (2001) 431. For chapter and verse,
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outside Australia, the Privy Council in an influential case on appeal from Hong Kong
called Attorney-General for Hong Kong v Shiu106 also rejected Chief Justice Barwick's
stance, and it disappeared from view.
But something eerily reminiscent of Sir Garfield Barwick's repudiated notion that
procedural fairness depends upon pre-existing right sourced in positive law has
resurfaced in Griffith University v Tang.107 Tang has been subject to relentless
critique.108 Ms Tang was in the midst of doctoral study at Griffith University when she
was kicked out of the programme and the University for allegedly fabricating research
results. She alleged that the University's disciplinary procedures had not been
followed and that as a consequence she had been denied procedural fairness.109 Her
legal advisors brought judicial review under the Queensland equivalent of the federal
ADJR Act.110 The University defended on the ground that the decision was not made
'under an enactment': the State courts found that it was. The High Court gave special
leave and reversed the courts below, dismissing her 'statutory' judicial review action.
Her action failed because the University's discipline procedures were set out in 'soft
law' policy rather than in statute or delegated legislation and consequently the relevant
decisions had not been made 'under an enactment'.111 The High Court said two criteria
had to be satisfied for a decision to be made 'under an enactment': the decision had to
be expressly or impliedly authorised by the enactment, and the decision itself had to
confer, alter or otherwise affect rights or obligations.112 Ms Tang failed to establish the
second limb.113 Any expectation that she might have had that the University would
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see Ian Holloway, Natural Justice and the High Court of Australia: A Study in Common Law
Constitutionalism (2002). The reason for the temporal qualification is that there has been
significant grumbling about the doctrine on the High Court over the years (see Creyke,
'Legitimate Expectation') and this has resurfaced in the recent case of Lam (2003) 214 CLR 1,
45-6 [140]–[141] (Callinan J).
106 [1983] 2 AC 629, 636.
107 (2005) 221 CLR 99 ('Tang').
108 See Daniel Stewart, 'Griffith University v Tang, "Under an Enactment" and Limiting Judicial
Review' (2005) 33 Federal Law Review 525; Graeme Hill, 'Griffith University v Tang:
Comparison with NEAT Domestic, and the Relevance of Constitutional Factors' (2005) 47
AIAL Forum 6; Melissa Gangemi, 'Griffith University v Tang: Review of University Decisions
"Under an Enactment"' (2005) 27 Sydney Law Review 567; Mantziaris and McDonald, above
n 28; Patty Kamvounias and Sally Varnham, 'Doctoral Dreams Destroyed: Does Griffith
University v Tang Spell the End of Judicial Review of Australian University Decisions?'
(2005) 10 Australia & New Zealand Journal of Law & Education 5; Anthony Cassimatis,
'Statutory Judicial Review and the Requirement of a Statutory Effect on Rights or
Obligations: "Decisions Under an Enactment"' (2006) 13 Australian Journal of Administrative
Law 169; Mark Aronson, 'Private Bodies, Public Power and Soft Law in the High Court'
(2007) 35 Federal Law Review 1.
109 She had other claims too — errors of law, deciding on no evidence and improper exercise
of power (Tang (2005) 221 CLR 99, 120 [53], 138 [116]) — but the procedural ones seemed
strongest.
110 There is some significance in the fact that she relied on s 4(a) of the Judicial Review Act 1991
(Qld) rather than s 4(b), but that need not detain us.
111 I find Mark Aronson's analysis on this issue compelling and adopt it: Aronson, 'Private
Bodies, Public Power and Soft Law in the High Court', above n 108.
112 Tang (2005) 221 CLR 99, 130-1 [89] (Gummow, Callinan and Heydon JJ).
113 Ibid 131 [91].
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follow its own disciplinary code did not create substantive rights 'under the general
law' nor did it arise under an enactment, but rather under the 'soft law' policy.114
This seems to me a great leap backwards at least to Barwick CJ in Salemi.115 In
essence, a 'right' sourced in positive law (that is, either the general law or statute)
becomes the trigger for the availability of statutory review under the ADJR Act and its
State equivalents. I am aware that Mark Aronson has argued, contrary to what many
other commentators and I have just said, that this 'right affection' requirement was not
intended to be taken literally and that it will not apply to statutory decision-making
but only in non-statutory decision-making settings.116 He may be right: but I am not so
sure — at any rate, why should it be so unclear?
But if I am right then the High Court's 'superadding' to the ADJR Act a requirement
that rights be affected under the State equivalent to the ADJR Act is reminiscent of
another much earlier 'wrong turn' in the twentieth century history of AngloAustralasian administrative law. I am referring to the dictum of the Australian-born
judge Atkin LJ117 in the R v Electricity Commissioners; Ex parte London Electricity Joint
Committee Co (1920) Ltd.118 He was taken to say that before natural justice could apply
and one could get the prerogative remedy of certiorari to quash for breach of natural
justice the decision-maker had to act quasi-judicially.119 It took forty years to root this
heresy out of administrative law. Let us hope that the 'super-added' requirement of
rights affection is repudiated more quickly in Australia. Fortunately, as far as the rest
of the common law world is concerned, this regression seems peculiarly indigenous to
Australia.
Furthermore, the plurality in Tang drew support for their approach from the
constitutional imperative under Ch III of the Commonwealth Constitution that there
must exist a 'matter'.120 Putting aside technicalities — of which, need I say, there are
plenty — surely at the core of a 'matter' is the notion of a real, justiciable dispute.121
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114 Ibid 131-2 [92], 111 [20] (Gleeson CJ).
115 (1977) 137 CLR 396. And perhaps in more ways than one: Barwick CJ was clearly in the
ultra vires camp. See below at n 143 and accompanying text, and Holloway, above n 105,
254-6.
116 Aronson, 'Private Bodies, Public Power and Soft Law in the High Court', above n 108, 14.
117 A B Schofield, Dictionary of Legal Biography 1845–1945 (1998) 17; Geoffrey Lewis, Lord Atkin
(1983) 1–3. His father, Robert Travers Atkin, was a Member of the Queensland Legislative
Assembly.
118 [1924] 1 KB 171, 205 ('Electricity Commissioners Case').
119 The misunderstanding is explained by Lord Reid in Ridge v Baldwin [1964] AC 40, 72, 74–6.
Sir Anthony Mason has described this 'famous judgment' as 'the centre piece' of
administrative law in the early 1960s and pointed out it was followed by the High Court of
Australia in Testro Bros Pty Ltd v Tait (1963) 109 CLR 353: Sir Anthony Mason,
'Administrative Law Reform: The Vision and the Reality' (2001) 8 Australian Journal of
Administrative Law 135, 135.
120 (2005) 221 CLR 99, 131 [90]. See also Lam (2003) 214 CLR 1, 24-5 [76]–[77].
121 Ironically, in the light of Tang, the Australian Founders eschewed the US terminology of
'case and controversy' in favour of 'matter' because they desired the widest possible ambit.
See Henry Burmester, 'Limitations on Federal Adjudication' in Brian Opeskin and Fiona
Wheeler (eds), The Australian Federal Judicial System (2000) 227, 230–1, citing J Quick and L E
Groom, The Judicial Power of the Commonwealth (1904) 27. For different reasons, but to much
the same end, Mark Aronson has expressed unease: Aronson, 'Private Bodies, Public Power
and Soft Law in the High Court', above n 108, 16–17, 22–3.
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That a majority of the High Court of Australia could think that such was absent in Tang
is 'breath taking'.122 This takes the 'constitutionalisation' of Australian administrative
law to a new level: and is an example of 'Australian exceptionalism' at work.
It beggars belief how a reform like the ADJR Act (and its State equivalents) which
was intended 'to simplify and clarify the grounds and remedies for judicial review,
thereby facilitating access to the courts and enabling the individual to challenge
administrative action which adversely affected his interests'123 can be interpreted to
frustrate that intention in Tang.124 You now have back many of the evils these reforms
were meant to eradicate!
Moreover, Tang was a potentially unjust decision and the majority of the Court
seemed heedless of that.125 The case was pleaded only on 'statutory' judicial review.
Common law judicial review and contractual issues were not pleaded.126 The majority
slammed the door shut on 'statutory' judicial review to remedy alleged procedural
unfairness without satisfying themselves or even adverting to whether Ms Tang would
have a satisfactory remedy in private law, by way of express or implied term to act
fairly or to follow misconduct procedures in any contract of matriculation with the
University. Nothing was said about the availability of 'common law' judicial review
either, nor about availability of access to the Ombudsman or any other grievancehandling body.127 In other words, for all we know (and for all the majority of the High
Court seemed to care) Ms Tang could well fall into a legal 'black hole' with no legal
remedy at all.128
Of course, the hope lies with the various State court jurisdictions that retain a broad
inherent supervisory jurisdiction as these are formally unaffected by super-added
requirements to the plain words of the federal statute and the three mirror-image State
equivalents.129 Several influential Australian commentators have read parts of Tang as
_____________________________________________________________________________________
122 Aronson, 'Private Bodies, Public Power and Soft Law in the High Court', above n 108, 23.
Graeme Hill thinks the 'matter' issue is a 'red herring': Hill, above n 108, 11.
123 Sir Anthony Mason, 'Administrative Review: The Experience of the First Twelve Years'
(1989) 18 Federal Law Review 122, 123.
124 I agree with Kirby J at (2005) 221 CLR 99, 133 [100].
125 This point is made also by Kamvounias and Varnham, above n 108, 10.
126 The majority avoided discussing the issue: (2005) 221 CLR 99, 105 [3] (Gleeson CJ), 114 [32]
(Gummow, Callinan and Heydon JJ). For a helpful speculation on why either side did not
raise the contract argument see Cassimatis, above n 108, 174–5.
127 Some of the commentaries state that complaint to the Queensland Ombudsman is an
alternative remedy: see, eg, Gangemi, above n 108, 575–6. The plurality, however, did note
the absence of a University Visitor, which in the older, 'established' universities exercise
some role in complaint resolution: Tang (2005) 221 CLR 99, 116 [40] (Gummow, Callinan
and Heydon JJ).
128 See Mantziaris and McDonald, above n 28, 44–5. The expression 'black hole' is most often
used these days in relation to Guantanamo Bay. See, eg, Johan Steyn, 'Guantanamo Bay:
The Legal Black Hole' (2004) 53 International and Comparative Law Quarterly 1.
129 The Administrative Decisions (Judicial Review) Act 1977 (Cth) has three State/Territory
counterparts: Administrative Decisions (Judicial Review) Act 1989 (ACT); Judicial Review Act
1991 (Qld); Judicial Review Act 2000 (Tas). Victoria has a statute but it differs in some
important respects from the Commonwealth model: Administrative Law Act 1978 (Vic). See
Aronson, Dyer and Groves, above n 43, 19–23. Nearly ten years ago, Lindsay Curtis started
to address what he called 'the comparative failure of the gospel of the new administrative
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representing the High Court judges' likely thinking on 'common law' judicial review at
the federal level as well.130 This, and the fact that the High Court majority was
heedless to injustice in Tang, must give one pause as to how far the State courts will be
allowed to do justice by way of 'common law' judicial review in the shadow of the
'single Australian common law' cast by the High Court.
Lying behind all of the case law and statutory exegesis in Tang are significant policy
choices, albeit largely unarticulated. Obviously, in Tang the Australian courts are
struggling to draw a line between public and private power. In his insightful and
highly critical essay on (inter alia) Tang, Mark Aronson described the 'outcome' or
'result' as 'entirely predictable…because if ADJR's restriction to statutory decisionmaking is to mean anything, then the odds are that it excludes coverage of
government's commercial powers so far as these are truly consensual.'131 Perhaps
commercialisation of universities has proceeded so far in Australia that readers here
were not shocked by the inference that a public university's relationship with a
doctoral student is a 'commercial' one or with the equation of a university to
government (so much for academic freedom!). But if one puts all that to one side, I can
understand (even if I do not agree with) the proposition that contracting by
government should not be colonised by judicial review if — and it is a crucial if —
there are adequate protections and remedies available as a matter of private law. But to
treat a public university as an essentially private body because it has simply opted to
put its disciplinary code in the form of 'soft law' policy rather than delegated
legislative form is distinctly odd. And, as Aronson says indignantly and rightly, to
characterise Ms Tang's 'relationship with her former university as merely consensual is
nothing short of breath-taking'.132
Although I cannot go into the detail, Tang is simply the latest in a long line of cases
where the judges have tried to exclude tendering and contract decision-making from
the ambit of the ADJR Act. The most well known case outside Australia is General
Newspapers Pty Ltd v Telstra Corporation,133 which put contracting decisions by
government-owned trading entities beyond 'statutory' judicial review and on the
private law side of the line.134 The courts obviously thought there was more to lose
than gain from doing so and that they were ill equipped to evaluate commercial
decision-making against public law norms. It was a mistake, as many commentators
pointed out at the time,135 but the courts did not listen. The courts in New Zealand
_____________________________________________________________________________________
law to take root' in other Australian State/Territory jurisdictions and overseas (Curtis,
above n 8, 52–3), and that remains an interesting but neglected topic.
130 Mantziaris and McDonald, above n 28, 32–6; Aronson, 'Private Bodies, Public Power and
Soft Law in the High Court', above n 108, 14–17.
131 Aronson, 'Private Bodies, Public Power and Soft Law in the High Court', above n 108, 12,
23.
132 Ibid.
133 (1993) 45 FCR 164.
134 Margaret Allars, 'Private Law but Public Power: Removing Administrative Law from
Government Business Enterprises' (1995) 6 Public Law Review 44, 56–68.
135 Peter Bayne and Margaret Allars blew the whistle early. See Peter Bayne, 'Administrative
Law and the New Managerialism in Public Administration' (1988) 62 Australian Law Journal
1040; Margaret Allars, 'Administrative Law, Government Contracts and the Level Playing
Field' (1989) 12 University of New South Wales Law Journal 114.
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went down this path as well until the Privy Council overruled them and left the door
of judicial review open in cases of egregious bad dealing.136
It is common place to observe that the governmental and administrative landscape
in place when the 'new administrative law package' was enacted has been
fundamentally changed by a succession of '-isations' — corporatisation, privatisation,
commercialisation, contractualisation, market liberalisation and so on. The Australian
courts, by and large, have failed to engage with the legal implications of these
phenomena.
That brings me to the High Court's decision in NEAT Domestic Trading Pty Ltd v
AWB Ltd.137 The background to that case was reform of the Wheat Marketing Board in
the late 1990s and the emasculation of the Board's role and the placing of effective
power to approve of wheat exports in the hands of a private company with strong
economic incentives not to approve of any other export applications. This power was
temporarily taken away from the company last year in the wake of the Cole Inquiry
into the 'kick-backs' paid to Saddam Hussein's regime in contravention of the UN oilfor-food sanctions program.138 But NEAT Domestic arose before that drama unfolded
and those extra-curial accountabilities were brought to bear. The issue in this case was
whether the exercise of the company's power to not approve of wheat export
applications was subject to judicial review under the ADJR Act. Leaving to one side the
technical detail, the majority of the High Court took an absolutist or binary approach
to the public/private law divide. These Justices held in the particular context that the
profit-maximising and self-regarding behaviour of this private corporation was totally
incompatible with the existence of any public law obligations to regard the public
interest, and hence refused to impose any.139 They did say they were speaking only to
the peculiar facts of the case and not to the important broader question of the
applicability of judicial review in wider contracted-out, corporatised or privatised
contexts.140 Perhaps nothing should be read into the fact that the majority did not even
cite the leading English case of R v Panel on Takeovers and Mergers; Ex parte Datafin plc141
— which has attracted a following in State courts142 — but there is certainly a sense in
which the High Court did not see through the institutional form to the reality of the
situation. Nor did they do so in Tang two years later.
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136 Mercury Energy Ltd v Electricity Corporation of New Zealand [1994] 2 NZLR 385. See generally
Janet McLean, 'Contracting in the Corporatised and Privatised Environment' (1996) 7 Public
Law Review 223; Michael Taggart, 'Corporatisation, Contracting and the Courts' [1994]
Public Law 351; Michael Taggart, 'State-Owned Enterprises and Social Responsibility: A
Contradiction in Terms?' [1993] New Zealand Recent Law Review 343.
137 (2003) 216 CLR 277 ('NEAT Domestic').
138 See Linda Courtenay Botterill, 'Doing it for the Growers in Iraq?: The AWB, Oil-for-Food
and the Cole Inquiry' (2007) 66 Australian Journal of Public Administration 4, 11–12; Aronson,
'Private Bodies, Public Power and Soft Law in the High Court', above n 108, 8–9.
139 NEAT Domestic (2003) 216 CLR 277, 297 [51], 299 [61], 300 [63].
140 Ibid 297 [50].
141 [1987] 1 QB 815 ('Datafin').
142 See the case law discussed by Colin Campbell, 'The Public/Private Distinction in
Australian Administrative Law' in Matthew Groves and H P Lee (eds), Australian
Administrative Law: Fundamentals, Principles and Doctrines (2007) 34; Daniel Stewart, 'NonStatutory Review of Private Decisions by Public Bodies' (2005) 47 AIAL Forum 17; Aronson,
Dyer and Groves, above n 43, 127–32.
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The judge whose work and philosophy is most often cited in support of such a
restrained approach to judicial review is Sir Gerard Brennan.143 A stalwart supporter
of the so-called 'ultra vires' basis of judicial review, Sir Gerard insisted that the
ultimate justification for review lies in statute and legislative intent. Although the 'ultra
vires' school has slugged it out with the so-called 'natural law' school (championed by
Sir Anthony Mason) inconclusively for twenty odd years,144 there is evidence in these
recent cases that the 'ultra vires' school is now in the ascendency in the High Court.145
Intriguingly, however, Sir Gerard in several post-retirement addresses has emphasised
the importance of an effective remedy in contracted out and devolved decision-making
settings and has approved of and sought to justify what has been called the
'functionalist' turn in the UK146 (and New Zealand) authorities.147 This approach can
be seen in the judgments of Gleeson CJ and Kirby J in NEAT Domestic.
There is not time to dwell on how other common law countries are grappling with
these issues — suffice to say progress is somewhat uneven — but it does seem to me
that in NEAT Domestic and Tang, majorities in the High Court of Australia have failed
to grapple with the changing nature of government.148 The privatisation phenomena,
which is the backdrop to the structural and regulatory changes played out in NEAT
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143 There is no space to refer to all the sources. See Sir Gerard Brennan, 'The Purpose and
Scope of Judicial Review' in Michael Taggart (ed), Judicial Review of Administrative Action in
the 1980s: Problems and Prospects (1986) 18; Belinda Baker and Stephen Gageler, 'Brennan,
(Francis) Gerard' in Tony Blackshield, Michael Coper and George Williams (eds), The
Oxford Companion to the High Court of Australia (2001) 66; the contributions to Creyke and
Keyzer, above n 63.
144 Most prominently in Kioa v West (1985) 159 CLR 550, 582 (Mason CJ), 609 (Brennan J), but
see the treatment in Holloway, above n 105, ch 7.
145 Gageler, 'Sir Gerard Brennan and Some Themes in Judicial Review', above n 63. This issue
has dominated the law review literature in the Northern hemisphere over the last ten years
or so. See the contributions to Christopher Forsyth (ed), Judicial Review and the Constitution
(2000): that book was meant to bring the debate to a head but simply stirred some of the
protagonists on to new heights of abstraction and vituperative. Bradley Selway rightly
pointed out the debate has been taken up in Australia (as it has in New Zealand) but
'perhaps not with the same vigour that it has been pursued in England': above n 13, 222.
See also Gageler, 'The Underpinnings of Judicial Review of Administrative Action', above
n 37. For my view of the debate, see Michael Taggart, 'Ultra Vires as Distraction' in
Christopher Forsyth (ed) Judicial Review and the Constitution (2000) 427.
146 See generally Peter Cane, 'Accountability and the Public/Private Distinction' in Nicholas
Bamforth and Peter Leyland (eds), Public Law in a Multi-Layered Constitution (2003) 247.
147 Sir Gerard Brennan, 'The Review of Commonwealth Administrative Power: Some Current
Issues' in Robin Creyke and Patrick Keyzer (eds), The Brennan Legacy: Blowing the Winds of
Legal Orthodoxy (2002) 9, 19–37; Sir Gerard Brennan, 'The Mechanics of Responsibility in
Government' (1999) 58(3) Australian Journal of Public Administration 3, 10. Sir Gerard
indicated also a path through the constitutional thicket of ss 75(iii) and 75(v) with their
unhelpful limitations to 'the Commonwealth' and 'officers of the Commonwealth'. Cf
Gleeson, 'Outcome, Process and the Rule of Law', above n 10, 7 ('Privatisation, and
outsourcing of functions, have placed many activities affecting the interests of citizens
outside the scope of the legislative scheme conceived of in the 1970s (cf NEAT…)').
148 See Aronson, 'Private Bodies, Public Power and Soft Law in the High Court', above n 108,
11–12. Cf Justice J J Spigelman, 'Foundations of Administrative Law: Toward General
Principles of Institutional Law' (1999) 58(1) Australian Journal of Public Administration 3, 7–
10.
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Domestic,149 and the move to 'soft law', exemplified in the university setting in Tang,
are interrelated and are two of the most pervasive and important phenomena in the
last 30 years.150 Contrary to what many people thought, the move to privatisation and
freer markets has produced more rules not less, and much more 'soft law'.151 The
evident failure of the High Court of Australia to see behind the form to the substance
and to grapple with these fundamentally important issues — what Mark Aronson
famously described more than a decade ago as 'the phenomenon of the mixed
administration'152 — is not just disappointing, it is dismaying.
I want to say something now about proportionality. I mentioned earlier the
development of variable intensity unreasonableness review and suggested that it is not
a radical idea, and deserves more serious consideration than it has yet received from
Australian courts. In the UK, however, variable intensity unreasonableness of the 1990s
quickly slid into proportionality review.153 In a nutshell, proportionality requires that
the administrative action must be rationally connected to stated objectives and impair
right(s) no more than is reasonably necessary in order to accomplish those objectives.
To cut a long story short, in the UK proportionality has eclipsed variable intensity
unreasonableness as a result of the incorporation of the European Convention on Human
Rights (1950) by the Human Rights Act 1998 (UK) and the European Court of Human
Rights’ holding that the application of what an English court thought was more intense
unreasonableness review (but actually was not154) did not satisfy the requirement of
an adequate remedy for the violation of the Convention.155
Proportionality in administrative law is 'a bridge too far' for Australian courts and
commentators. There is almost no support for it in Australia.156 I have much sympathy
_____________________________________________________________________________________
149 Botterill, above n 138.
150 The literature is elephantine, see the summation and references in Michael Taggart, 'The
Nature and Function of the State' in Peter Cane and Mark Tushnet (eds), The Oxford
Handbook of Legal Studies (2003) 101.
151 See Stephen K Vogel, Freer Markets, More Rules: Regulatory Reform in Advanced Industrial
Countries (1996); Martin Shapiro, Who Guards the Guardians? Judicial Control of Administration
(1988) 96; Peter Shuck, 'Law and Post-Privatization Regulatory Reform: Perspectives from
the US Experience' in L Manzetti (ed), Regulatory Policy in Latin America: Post-Privatization
Realities (2000) 25, 27, 30; Michael Taggart, 'From "Parliamentary Powers" to Privatization:
The Chequered History of Delegated Legislation in the Twentieth Century' (2005) 55
University of Toronto Law Journal 575.
152 Mark Aronson, 'A Public Lawyer's Responses to Privatisation and Outsourcing' in Michael
Taggart (ed) The Province of Administrative Law (1996) 40, 53.
153 Daly [2001] 2 AC 532.
154 The case is R v Ministry of Defence; Ex parte Smith [1996] QB 517. Other commentators share
my view that despite what the judges said they did not subject the policy to genuine
heightened scrutiny: Michael Fordham and Thomas de la Mare, 'Identifying Principles of
Proportionality' in Jeffrey Jowell and Jonathan Cooper (eds), Understanding Human Rights
Principles (2001) 27, 68–70.
155 Smith & Grady v United Kingdom (1997) 29 EHRR 493, [137]–[139]. The decision was
delivered on 27 September 1999. The Human Rights Act 1998 (UK) was passed in 1998 and
came into force on 2 October 2000. In the earlier case of Soering v UK (1989) 11 EHRR 439
the European Court of Human Rights held Wednesbury review satisfied art 13.
156 See, however, Susan Kneebone, 'A Commentary on Proportionality: Protection of Common
Law Rights or "Chipping Away at the Diceyan Edifice"' in Linda Pearson (ed),
Administrative Law: Setting the Pace or Being Left Behind? (1997) 145.
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with this stance for two reasons. First, by definition, proportionality review is much
closer to merits review than variable intensity unreasonableness review,157
notwithstanding British denials.158 Secondly, the proportionality methodology is best
powered by a list of enumerated rights otherwise it loses much of its much-admired
analytic and structuring qualities. It applies in the UK, Canada and New Zealand in
the context of bills or charters of rights, as it will inevitably in those Australian
jurisdictions with statutory bills of rights.159 No doubt, over time there may well be
spill over effects to the common law.
Proportionality is correctly seen as originating in continental European law,160 and
has come into UK administrative law on the tidal wave of 'Europeanisation'.161
Australian commentators have rightly pointed out the different conceptions of
constitutionalism in general162 and of administrative law in particular in continental
Europe.163 Obviously, the constitutional driver of European integration is absent in
Australia,164 New Zealand165 and Canada. Even in New Zealand, which has a
statutory Bill of Rights, and in Canada, with its entrenched Charter of Rights, neither
country's administrative law has yet adopted proportionality review by name outside
_____________________________________________________________________________________
157 Daly [2001] 2 AC 532, 547–8 [27] (Lord Steyn), citing the point well made earlier by David
Feldman, 'Proportionality and the Human Rights Act 1998' in Evelyn Ellis (ed), The Principle
of Proportionality in the Laws of Europe (1999) 117, 127–9.
158 Daly [2001] 2 AC 532, 548 [28] (Lord Steyn), citing Jeffrey Jowell, 'Beyond the Rule of Law:
Towards Constitutional Judicial Review' [2000] Public Law 671, 681.
159 See Human Rights Act 2004 (ACT); Victorian Charter of Rights and Freedoms 2006 (Vic). See
generally Priyanga Hettiarachi, 'The Sacred and the Profound: Judicial Review and Rights,
Proportionality and Deference to Executive Conduct' (2007) 29 Australian Bar Review 223.
160 Mason, 'Judicial Review', above n 9, 341–3; Margaret Allars, 'Proportionality, Tradition and
Constitutional Framework: Borrowing Foreign Legal Notions in Australian Public Law' in
Guenther Doeker-Mach and Klaus A Ziegert (eds), Law, Legal Culture and Politics in the
Twenty First Century (2004) 357; Robert Thomas, Legitimate Expectations and Proportionality in
Administrative Law (2000). The German influence has been dominant in the evolution of
proportionality. See generally Mahendra P Singh, German Administrative Law in Common
Law Perspective (2001) 160; Dieter Grimm, 'Proportionality in Canadian and German
Constitutional Jurisprudence' (2007) 57 University of Toronto Law Journal 383.
161 See Bruce v Cole (1998) 45 NSWLR 163, 185 (Spigelman CJ); Sir Anthony Mason, 'The
Tension between Legislative Supremacy and Judicial Review' (2003) 77 Australian Law
Journal 803, 809. See the sophisticated treatment in Chris Hilson, 'The Europeanization of
English Administrative Law: Judicial Review and Convergence' (2003) 9 European Public
Law 125.
162 Proportionality terminology is a feature of Australian constitutional law. See H P Lee,
'Proportionality in Australian Constitutional Adjudication' in Geoffrey Lindell (ed), Future
Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (1994)
126; Allars, 'Proportionality, Tradition and Constitutional Framework', above n 160.
163 Mason, 'Judicial Review', above n 9, 342.
164 Chief Justice Murray Gleeson, 'The Influence of the Privy Council on Australia' (2007) 29
Australian Bar Review 123, 133; Susan Kiefel, 'English, European and Australian Law:
Convergence or Divergence?' (2005) 79 Australian Law Journal 220, 231.
165 Jason Varuhas, 'Keeping Things in Proportion: The Judiciary, Executive Action and Human
Rights' (2006) 22 New Zealand Universities Law Review 300; Jason Varuhas, 'Powerco v
Commerce Commission: Developing Trends of Proportionality in New Zealand
Administrative Law' (2006) 4 New Zealand Journal of Public and International Law 339.
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the rights area.166 In those countries, as seems to be the case in Australia, at best a lack
of proportionality is accepted as an incident of Wednesbury unreasonableness.167
Australian judicial review is in the mainstream here. This is not exceptionalism, in the
sense I am using the term here.
The same thing might be said about the much-discussed doctrine of substantive
legitimate expectation, recognized by the English Court of Appeal in Coughlan's
Case.168 This is a highly controversial issue in every common law jurisdiction.169 Once
again it is seen as an idea coming from European administrative law. It has never taken
hold in Australia, and the High Court poured more cold water on it in Ex parte Lam.170
The Supreme Court of Canada has rejected it also.171 The New Zealand appellate
courts have yet to decide.172 It raises a question of legal principle and policy.173 It
_____________________________________________________________________________________
166 See Wolf v Minister of Immigration [2004] NZAR 414.
167 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 367 (Deane J); Fares Rural Meat &
Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation (1990) 96 ALR 153, 168
(Gummow J); Margaret Allars, Introduction to Australian Administrative Law (1990) [5.10];
Isaac v Minister of Consumer Affairs [1990] 2 NZLR 606, 636 (Tipping J); Institute of Chartered
Accountants of New Zealand v Bevan [2003] 1 NZLR 154; Wolf v Minister of Immigration [2004]
NZAR 414; Waikatere City Council v Lovelock [1997] 2 NZLR 385, 408 (Thomas J).
168 R v North and East Devon Health Authority; Ex parte Coughlan [2001] 1 QB 213; R v Secretary of
State for Education and Employment; Ex parte Begbie [2000] 1 WLR 1115. Søren Schønberg,
Legitimate Expectations in Administrative Law (2000); Craig, Administrative Law, above n 58,
639–86. For subsequent developments see: R (Bibi) v Newham London Borough Council [2002]
1 WLR 237; R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744; R
(A) v Secretary of State for the Home Department [2006] EWHC 526; R (Nadarajah) v Secretary of
State for the Home Department [2005] EWCA Civ 1363.
169 I am not going to consider the doctrine of substantive unfairness due to space constraints.
The UK and New Zealand recognise it, and Canada and Australia do not. In the Australian
context, compare Cameron Stewart, 'The Doctrine of Substantive Unfairness and the
Review of Substantive Legitimate Expectations' in Matthew Groves and H P Lee (eds),
Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 280 (against
adoption) with Stern, above n 47 (in favour).
170 See Attorney-General (NSW) v Quin, (1990) 170 CLR 1; Minister for Immigration, Local
Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Daihatsu Australia Pty Ltd v
Deputy Commissioner of Taxation (2000) 46 ATR 129; Lam (2003) 214 CLR 1, 23–4 [73], 24–5
[76]. See also Spigelman, above n 13.
171 Mount-Sinai Hospital Center v Quebec (Minister of Health and Social Services) [2001] 2 SCR 281.
Although in that case relief was given on a more technical ground that had the effect of
preventing the Minister from going back on his previously stated position, and it has been
argued that the Supreme Court adopted the UK approach in all but name. See Geneviève
Cartier, 'A "Mullanian" Approach to the Doctrine of Legitimate Expectations: Real
Questions and Promising Answers' in Grant Huscroft and Michael Taggart (eds), Inside and
Outside Canadian Administrative Law: Essays in Honour of David Mullan (2006) 185.
172 Brierley Investments Ltd v Bouzaid [1993] 3 NZLR 655; Attorney-General v Steelfort Engineering
Co Ltd (1999) 1 NZCC 61, 130. For the tangled law at High Court level, see: Tay v AttorneyGeneral [1992] 2 NZLR 693; Northern Roller Milling Co Ltd v Commerce Commission [1994] 2
NZLR 747; Lumber Specialties Ltd v Hodgson [2000] 2 NZLR 347, 59–64 [125]–[139]
(Hammond J); Challis v Destination Marlborough Trust Board Inc [2003] 2 NZLR 107 (the
Court of Appeal refused leave to appeal: CA 37/03, 8 December 2003); Staunton Investments
Ltd v Chief Executive Ministry of Fisheries [2004] NZAR 68; New Zealand Association for
Migration and Investments Inc v Attorney-General [2006] NZAR 45 (decided in 2003); Ch'elle
Properties (NZ) Ltd v Commissioner of Inland Revenue [2004] 3 NZLR 274.
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appears that in this respect it is English law that is 'exceptional' and out of step, and
Australia and Canada represent the 'norm'. But in rejecting substantive legitimate
expectation doctrine the Canadian court has not fallen back on their Constitution.
When the New Zealand courts finally decide this issue they will evaluate the law,
principle and policy in the time-honoured way. They do not have a written
constitution to fall back on! What is wrong, in my view, with some of the Australian
responses to substantive legitimate expectations (and many of the other issues
discussed here) is the claim of 'exceptionalism' — that is, that there is something about
the Australian Constitution or separation of powers that answers the question without
more. The late Justice Brad Selway said that the Constitution has made much, if not all,
of the legal developments in judicial review elsewhere 'fundamentally irrelevant to
Australian judges and lawyers' with 'the happy consequence', as he put it, that these
developments can be ignored.174
Bearing fully in mind the ever-present danger of recolonialisation, that I mentioned
at the outset of the paper, and the manifest importance of what Sir Anthony Mason has
called 'the Australianisation of our law',175 there is a tinge of jingoism in the grounding
of administrative law in the Constitution.176
A similar sort of argument stopper is the legality/merits dichotomy, which often
stops the argument at the point it should begin. In Attorney-General (NSW) v Quin,177
Brennan J said 'the duty and jurisdiction of the court [does not go beyond declaring
and enforcing] the law which determines the limits and governs the exercise of the
repository's powers'. He went on to say that 'the court has no jurisdiction simply to
cure administrative injustice or error' and 'to the extent that [the merits] can be
distinguished from legality, [they] are for the repository of the relevant power and,
subject to political control, for the repository alone'. This statement, more than any
other, is said to encapsulate modern Australian administrative law.178 But note that Sir
Gerard Brennan said to the extent that one can distinguish between law and merits.
_____________________________________________________________________________________
173 Of course, there is a large debate about the meaning of terms like principle and policy, and
the differences between them. This debate cannot be pursed here.
174 Selway, above n 13, 235, 237. I rather like Sir Anthony Mason's comment that 'the
Constitution seems to play a similar role in Australian administrative law to that dark cloud
that constantly hovers over the head of Joe Btfsplk in the American comic strip "Li'l
Abner"': Mason, 'Procedural Fairness', above n 101.
175 Sir Anthony Mason, 'The Evolving Role and Function of the High Court' in Brian Opeskin
and Fiona Wheeler, The Australian Federal Judicial System (2000) 95, 116. See also John
McMillan, 'The Academic Contribution to Australian Administrative Law' (2001) 8
Australian Journal of Administrative Law 214, 214, 216–17. I have advocated similarly in
respect of my own country, New Zealand/Aotearoa; which once in the colonial past was
part of Australia and still with an opening in the Commonwealth Constitution to become so
again. See Michael Taggart, 'The New Zealandness of New Zealand Public Law' (2004) 15
Public Law Review 81; Justice Michael Kirby and Philip Joseph, 'Trans-Tasman Relations —
Towards 2000 and Beyond' in Philip Joseph (ed), Essays on the Constitution (1995) 129.
176 See Gummow, 'The Constitution', above n 42.
177 (1990) 170 CLR 1, 35–6. See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang
(1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). There is no space
to refer to all the sources. See generally the contributions to Sir Gerard's Festschrift: Creyke
and Keyzer, above n 63.
178 Stephen Gageler, 'The Legitimate Scope of Judicial Review' (2001) 21 Australian Bar Review
279.
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Here is the rub: there is no bright-line distinction; they overlap and where the line is
drawn involves normative commitments and judicial discretion.179 There is nothing
new in this. Chief Justice Spigelman admitted the boundary between legality and
merits review is rather 'porous and ill-defined' but went on to assert that protection of
substantive legitimate expectations would 'obliterate' the distinction altogether.180 The
present Chief Justice of Australia put the same point in a different way. He said '[t]he
difference [between legality and the merits] is not always clear-cut; but neither is the
difference between night and day. Twilight does not invalidate the distinction between
night and day; and Wednesbury unreasonableness does not invalidate the difference
between full merits review and judicial review of administrative action.'181
As with so much administrative law debate, the fig leaf is adjusted and the least
dangerous branch continues to operate as if the various dichotomies — appeal/review,
legality/merits, process/substance, discretion/law, law/policy, fact/law — actually
decide particular cases. In reality, as insiders know, room remains for the values and
preferences of individual judges to play a part in the identification, application, and
evolution of administrative law principles and techniques in the infinite range of
decision-making settings. Reciting these mantras — perhaps even shibboleths —
diverts attention from the manipulable nature of the doctrines as applied.
As Mark Aronson, Bruce Dyer and Matthew Groves point out, 'most judicial review
judgments are long on the specific rules, but short to a fault on the guiding principles.'
They go on to point out that '[t]his might well be a distinguishing feature of Australia's
markedly incrementalist judicial methodology.'182 It does not have to be that way. One
of the most distinctive aspects of comparative administrative law research in recent
years has been the search for universally applicable or general principles of
administrative law.183 Of necessity these overarching principles have been at a
reasonably high level of abstraction. This process has been most evident in Europe
where much effort has gone into discovering shared general principles in
administrative law across the ever-expanding European Union.184 But this process is
_____________________________________________________________________________________
179 See Aronson, Dyer and Groves, above n 43, 165. For a very forceful view, see Peter Cane,
'Merits Review and Judicial Review — The AAT as Trojan Horse' (2000) 28 Federal Law
Review 213.
180 Spigelman, above n 13, 732–3.
181 Chief Justice Murray Gleeson, 'Judicial Legitimacy' (2000) 20 Australian Bar Review 4, 11
(citations omitted). See also Mason, 'Administrative Review', above n 123, 139 ('The
difference between merits review and judicial review, though perhaps not as great as some
people think, is nevertheless significant'); Pat Keane, 'Judicial Power and the Limits of
Judicial Control' in Peter Cane (ed), Centenary Essays of the High Court of Australia (2004) 295
('while the line may not always be a bright one, it is there').
182 See Aronson, Dyer and Groves, above n 43, 164.
183 Hanns Peter Nehl, 'Administrative Law' in Jan M Smits (ed), Elgar Encyclopedia of
Comparative Law (2006) 18, 23–4.
184 See Jürgen Schwarze, European Administrative Law (1992); Jürgen Schwarze (ed),
Administrative Law under European Influence: On the Convergence of the Administrative Laws of
the EU Member States (2nd ed, 2001); K H Ladeur (ed), The Europeanisation of Administrative
Law: Transforming National Decision-Making Procedures (2002); R Seerden and F Stroink (eds),
Administrative Law of the European Union, Its Member States and the United States: A
Comparative Analysis (2002). See generally John Bell, 'Comparative Administrative Law' in
Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative
Law (2006) 1259.
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also evident in domestic common law systems — the well known overlapping
principles articulated by Sir Robin Cooke of reasonableness, fairness and legality come
readily to mind;185 as does the similarly inspired trichotomy articulated by Lord
Diplock of illegality, irrationality and procedural impropriety.186 More recently still,
UK judges are identifying the overarching rationale of judicial review as the control of
abuse of power.187
This has been called 'top-down' reasoning, and many in Australia seem fearful of it
and think it foreign to the common law tradition. They believe such high level values
have to be filtered through particular grounds of review188 in order to provide
certainty, to constrain judicial discretion189 and so as not to rustle the fig leaves. But
surely there is value in both approaches.190 It would be a pity if the 'top-downers' and
the 'bottom-uppers' never connected. One advantage of the top-down approach is that
it prevents judges losing sight of what the courts are there for,191 and getting
disoriented and lost in the dense woods of doctrinal and conceptual analysis.
'Exceptionalism', self-proclaimed or otherwise, can slide into isolationalism.192 In
law, as in other aspects of life, isolationism can have many disadvantages: including
insularity, in-breeding masquerading as purity, an alternation between resignation at
being misunderstood by the rest of the world193 and an over-compensating superiority
_____________________________________________________________________________________
185 Robin Cooke, 'The Struggle for Simplicity in Administrative Law' in Michael Taggart (ed),
Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) ch 1; New
Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR
544, 522 (Cooke P).
186 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410.
187 See generally Sir Stephen Sedley, Freedom, Law and Justice (1999) ch 2. This has the
advantage (or disadvantage, depending on one's point of view) of slipping over the
public/private divide.
188 Lam (2003) 214 CLR 1, 23 [72] (McHugh and Gummow JJ); Thames Valley Electric Power
Board v NZFP Pulp & Paper Ltd [1994] 2 NZLR 641, 654 (McKay J), 654 (Fisher J). See also
Gummow, 'The Constitution', above n 42, 176–7.
189 See Brennan, 'The Purpose and Scope of Judicial Review', above n 143, 34.
190 As Judge Richard Posner asserts is the case: 'Legal Reasoning from the Top Down and
Bottom Up: The Question of Unenumerated Constitutional Rights' (1992) 59 University of
Chicago Law Review 433, 433, quoted and discussed in Mason, 'What Is Wrong with TopDown Legal Reasoning?', above n 37, 577.
191 It does seem bizarre to me that some Australian judges can declare that administrative law
is not about 'good administration' and that the Constitution positively prohibits them from
allowing any such idea to influence the development of judicial review. Lam (2003) 214
CLR 1, 11–12 [32] (Gleeson CJ). Note that Sir Anthony Mason preferred 'good
administration' to 'administrative efficiency' because it 'clearly takes account of the impact
of the decision on the interests of individuals': Sir Anthony Mason, 'Reflections on the
Development of Australian Administrative Law' in Robin Creyke and John McMillan (eds),
The Kerr Vision of Australian Administrative Law (1998) 122, 123.
192 Michael Ignatieff, 'Introduction: American Exceptionalism and Human Rights' in Michael
Ignatieff (ed), American Exceptionalism and Human Rights (2005) 1, 3–4, 8–11.
193 For a very clear articulation that Australian administrative law will not be as influential
around the common law world because of its distinctive features, see Sir Anthony Mason's
contribution to the Festschrift celebrating the centenary of the founding of the High Court of
Australia: Mason, 'The Break with the Privy Council and the Internationalisation of the
Common Law', above n 21.
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or smugness; none of this is likely to win friends or influence people.194 I recall a
speech given by Madam Justice Claire L'Heureux-Dubé of the Supreme Court of
Canada at a conference in 1996 to honour Chief Justice Rehnquist of the US Supreme
Court.195 She chided the US Supreme Court for its insularity and refusal to look to how
courts in other liberal democracies resolved similar or identical issues. She pointed out
that as a result the Rehnquist Court was less influential internationally than its
predecessors.196 Probably coincidentally, a decade later the US Supreme Court is
starting to look at law made elsewhere: but many voices are raised in protest.197 The
peculiarity of societal and constitutional evolution in America is said to make such
comparisons illegitimate. There is an echo of that around the distinctiveness of
Australian judicial review law, and the modern emphasis on its constitutional roots. Of
course, the High Court is much more open, and eager to gain inspiration from overseas
courts than the US Supreme Court;198 I am certainly not denying that or the
desirability of that. Nevertheless, I detect a reverberation of this strand of
exceptionalism. It would be a great pity for administrative lawyers throughout the
common law world if Australian exceptionalism became isolationism, and I venture to
think it would not be a good thing in the longer term for Australian administrative law
either.
_____________________________________________________________________________________
194 See Frank Michelman, 'Integrity-Anxiety?' in Michael Ignatieff (ed), American Exceptionalism
and Human Rights (2005) 240. Otto thinks exceptionalism is 'a claim to singular superiority
or uniqueness' that transcends simple isolationalism: above n 1, 219–20.
195 Claire L'Heureux-Dubé, 'The Importance of Dialogue: Globalization and the International
Impact of the Rehnquist Court' (1998) 34 Tulsa Law Journal 15, 23–6.
196 Ibid 27, 37.
197 See James Allan and Grant Huscroft, 'Constitutional Rights Coming Home to Roost? Rights
Internationalism in American Courts' (2006) 43 San Diego Law Review 1.
198 See generally Bruce Topperwein, 'Foreign Precedents' in Tony Blackshield, Michael Coper
and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 280.
But note the study by Brian Opeskin showing that there has been less citation of overseas
authority in constitutional law than in other areas: Brian Opeskin 'Australian
Constitutional Law in a Global Era' in Robert French, Geoffrey Lindell and Cheryl
Saunders (eds), Reflections on the Australian Constitution (2003) 171.