Allsop, Justice James --- "The Control of the Executive by the Courts" (FCA) [2002] FedJSchol 17
The Control Of The Executive
By The
Courts
Paper delivered at the Australian National University on 1 November 2002 by Justice James Allsop of the Federal Court of Australia
Introduction
- I
am grateful to be invited to deliver this paper, and to be given the opportunity
of viewing matters from a somewhat wider perspective
than one is usually
afforded.
- The
title of the paper suggests, at once, a scope of subject matter unable to be
covered in a paper such as this. It is necessary,
therefore, to confine
discussion to specific topics or themes, which I hope will be of interest.
- What
I have sought to do is, first, give a reminder as to the reach of the topic
– that is the multi-contextual role of the
courts in dealing with the
executive. Courts “control” or influence not merely by undertaking
judicial review of administrative
action, but by the exercise of judicial power
in resolving disputes involving, for instance, contracts, torts and restitution.
Secondly,
I have sought to expose some of the interrelated questions underlying
the relationship between judicial and executive power and the
place of
parliamentary authority within that relationship. These questions: the basis
of judicial intervention, the role of the
courts, the constitutional context
thereof, the rule of law and justiciability – concern not only the two
arms of government
which frequently meet in court in the resolution of
individual disputes (the courts and the executive), but also Parliament itself.
This is generally so for an uncontroversial reason: often the dispute concerns
the ascertainment of the will of Parliament in the
words of a statute. However
these questions can raise more profound and difficult questions than statutory
construction and interpretation.
- For
instance, presently before the High
Court[1] is the debate
about the interpretation, function and constitutional validity of s 474 of
the Migration Act
1958 (Cth), a so-called “privative clause”[2]. The debate before the High Court has raised some resounding questions: Is there a limit to Parliament’s power to clothe the executive with lawful authority in relation to a given task? If so, what is that limit? Or, to pose a distinct, but related, question: What is the extent of Parliament’s lawful authority to remove a subject of executive action from judicial scrutiny?
- I
will return to these questions in due course, in their context. However, it is
appropriate for me to say the following at the outset.
In canvassing these
questions I do not seek to be controversial. Rather, with the benefit of the
opportunity to view matters with
a somewhat broader perspective than is
available in the day-to-day deciding of cases, it is appropriate, I think, to
raise such fundamental
issues, which are presently presenting themselves for
consideration. There is an almost innate (and generally healthy) tendency
of
practising lawyers in Australia to eschew theory, in favour of the practical
application of common sense. However, from time
to time, questions arise which
require for their resolution the assistance of legal theory. It is unnecessary
to delay to debate
the validity of the first sentence of chapter 1 of Professor
Friedmann’s Legal
Theory[3]. However,
it is well to remind oneself of the need to expose the postulates or assumptions
by reference to which, and with the assistance
of which, the resolutions to such
questions are reached.
- I
have not sought to express any answers to any hard questions. It would be
inappropriate and presumptuous to do so, in particular
in the absence of
argument. Also, in large part, if not wholly, these questions are ultimately
for the High Court. (Though, perhaps,
by the last sentence, some would say
that, with the assistance of a suppressed premiss, I have already answered one
hard question.)
- The
nature of the discussion ranges over the role and position of the courts,
executives and parliaments at both Commonwealth and
State levels. At times,
specific express consideration needs to be given to one or the other. I have
not always differentiated
the different constitutional positions of each polity.
I apologise in advance.
The Nature and Identification of Executive Power
- It
goes without saying that at all times the executive must act according to
law[4]. To the extent
that the courts themselves are the institutions in society identifying,
interpreting and, at times
enforcing[5] the law,
they can be said to control the executive, insofar as that role affects the
exercise of executive power.
- One
point at which this control can manifest itself is the identification of the
existence and nature, of the executive, which task
may entail identification of
the boundaries of executive power.
- Executive
power can simply be seen as power, other than legislative and judicial,
conferred by law[6].
This commences the discussion with a given framework of analysis as a premiss
– the tripartite division of governmental authority
upon which, in
important respects, the Australian Constitution and system of government is
founded[7].
- Executive
power derives from the Constitution, from statute, and from the prerogative of
the Crown. The vesting of all executive power in the
Sovereign[8], leads to
the exercise of almost all executive power by the executive government,
through a minister responsible to
Parliament[9].
- Part
of the executive power owes its legitimacy to the prerogative of the
Crown[10]. To say as
much identifies the need, at times, to recognise the difficulty and vagueness of
the enquiry as to the nature of that
prerogative (involving sometimes arcane
historical
enquiry[11]); it also
reminds one that the extent of that prerogative and its claimed foundation of
natural and divine
law[12] were the
subject matter of sectional and constitutional struggles in England from the
early thirteenth century. However, the executive,
certainly at least the
Commonwealth executive, has, apart from statute, a modern source of its
authority: the Constitution, especially s
61[13], which is to be
interwoven with the residue of the exercise of regal power. The expressions
that one sometimes sees that it is to
the Constitution (and in particular s 61)
that one looks to identify the executive power of the Commonwealth, and not to
the Royal
prerogative[14], do
not, it seems to me, make historical enquiry necessarily irrelevant. That
constitutional context is vital, but it will not necessarily
make irrelevant the
ascertainment of an historical prerogative, at least as at 1901. Of course, any
historical prerogative will
need to be placed into the framework of the
constitutional compact as it has evolved. In ascertaining the nature of that
compact
and the place in it of executive power which had its origins in the
prerogative an understanding of history is essential to understand
the present,
and not to bedevil the
future[15].
- The
historical source of the prerogative in the regal person brought not only
authority to act, but also attributes or characteristics
special to the
Crown’s position. These inherent attributes of the Crown, subject to
statutory destruction or modification,
are recognised, delineated and enforced
by the courts.
- Whilst
the extent of the prerogative is less than
clear[16] some
categorisation and delineation is possible. Dr Evatt, in Ch III of his
work[17], divided the
prerogative into (a) a right on the part of the Sovereign to do
certain acts without statutory authority, for example declare war and peace,
coin money, seize property of a subject in time of war,
incorporate by royal
charter, issue letters patent in respect of inventions, pardon offenders and
confer honours, (b) immunities and privileges arising from the regal
position, for example the priority of payment over other creditors, immunity
from suit and costs (absent, of
course, statutory intervention), and (c)
property rights, for example the right to escheat, to mines, to treasure
trove, foreshores and the sea bed. The role of the courts in dealing with
these
immunities and the proprietorial prerogative can be seen in A-G for New South
Wales v Butterworth & Co (Australia)
Ltd[18], Federal
Commissioner of Taxation v Official Liquidator of EO Farley
Ltd[19], New South
Wales v The
Commonwealth[20]
and the body of law dealing with “the shield of the Crown” and
its relationship with statutory
interpretation[21].
- In
addition to the powers to act referred to in Dr Evatt’s first category
referred to above, deriving from the special person
or position of the
Sovereign, there are what might be termed “governmental powers”.
Maitland enumerated these in 1888
as
follows:[22]
- (a) powers relating to the Constitution, assembling and dissolving of Parliament, and of assenting to statutes,
- (b) powers relating to foreign affairs, to peace and war,
- (c) powers of appointing and dismissing officers, civil and military, executive and judicial,
- (d) powers relating to the collection and expenditure of the revenue,
- (e) powers relating to military and naval forces,
- (f) powers connected with the administration of justice,
- (g) powers connected with the maintenance of order,
- (h) powers connected with social and economic affairs, such as public health, education, trade, etc, and
- (i) powers
connected with religion and the national church.
- A
similar extraction of powers can be made under s 61 and attributed to the
Sovereign: for example, defence of government institutions and
property[23], defence
of the realm, declarations of war and peace, requisitioning land and goods for
the defence forces,
emergency[24] and
border control or
protection[25].
- Over
the years, a number of these powers, for example the executive power to make
treaties, have developed, and their changing nature
and acceptance can be seen
in the attitude of the courts, as political and constitutional changes occurred.
In 1916 the question
of war and peace was for the Imperial
Sovereign[26], by 1951
the Commonwealth Solicitor-General could advise to the opposite
effect[27]; by 1983
the High Court had expressed the foreign affairs and treaty making powers of the
executive in wide
terms[28] consistent
with Australia’s position in the community of nations.
- An
issue being put forward in some cases in the Federal Court in recent times
reflects the interwoven relationship, between the prerogative
analysed from an
historical perspective and the executive drawn from the modern fabric and
structure of the Constitution, to be found in the task of identifying the
content and limits of the executive power in s 61 of the Constitution. In
Teoh[29]
Gaudron J, whilst in agreement with Mason CJ and Deane J as to the status of the
relevant international
Convention[30] in
Australian law (and thus its effect on the rules of natural justice), also
grounded her decision on the proposition that the best
interests of a child who
was an Australian citizen were obligatory considerations for a decision-maker to
take into account at common
law if the decision could adversely affect the child
and his or her
interests[31].
According to her Honour, such were relevant considerations in the sense
described in
Peko-Wallsend[32],
that is, mandated by law to be taken into account. Gaudron J called in aid of
that conclusion the notion of parens
patriae[33], as an
aspect of the historical prerogative, and the bilateral obligations of citizen
and state in a modern “civilized democratic
society”[34],
as an aspect of the modern constitutional compact. It would seem that if
such an obligation at law is to be found to exist (subject to any contrary
statute), it is an aspect of the
content of the executive power under s 61 of
the Constitution, as an immanent circumscription of the executive power (at
least insofar as the Commonwealth executive is concerned), and so is a
question
involving the interpretation of the
Constitution[35].
- The
lack of clarity in the delineation of the prerogative power highlights the role
of the courts in enquiring into the existence,
and extent, of any claimed
prerogative[36]. At
the same time, the course of constitutional and political development
from and after the First World
War[37] and the
recognition of the development of Australian sovereignty, with the concomitant
recognition of executive power, without the role of the courts, should
not be ignored.
- Although
the courts have the jurisdiction to decide on the existence and limits of the
prerogative, the question of the review of
its exercise, and the ability and
willingness of the courts to undertake that task are different matters, with
which I deal
below[38].
- The
relationship between the prerogative and statute reflects, of course, the
constitutional supremacy of
Parliament[39]. The
nature of that relationship has been recently the subject of attention by the
Full Court of the Federal Court in Ruddock v
Vadarlis[40]. The
judgments in that case reveal the historically based enquiry and the modern
constitutional enquiry, both of which are part
of an examination of the
existence, and limits, of executive power, and its affectation by statute. The
subject was also dealt with
by the House of Lords, Court of Appeal and the Privy
Council in a number of
cases[41], by the High
Court in 1935 in R v Bradley and
Lee[42], and in
1974 and 1975 in Barton v The
Commonwealth[43]
and Johnson v
Kent[44], by the
New Zealand Court of Appeal in
1950[45] and
1955[46] and, after
very full (and reported) argument, by Long Innes CJ in Eq in New South Wales in
1938[47].
- The
principles governing that interaction were dealt with in Ruddock v Vadarlis.
The circumstances of Ruddock v Vadarlis are well known. The action
of the Commonwealth executive in preventing the persons on board the MV Tampa
from landing in Australia
were not the subject of any particular statutory
authorisation. A prerogative power, or more accurately, executive power under s
61 was relied upon.
- The first question, leaving to one side the effect of the Migration Act, was whether there was executive power, absent statute, to support the acts done. Black CJ first examined the matter from an historical perspective. His Honour concluded (at [29]) that it was, at best, doubtful whether the asserted prerogative continued to exist. He proceeded on the basis that its existence was uncertain. Section 61 of the Constitution was not seen as a source of any firmer authority. French J (with whom Beaumont J agreed) expressed a stronger view about the prerogative (leaving aside the effect of the statute). He referred to the “gate-keeping function”. His Honour was stronger than Black CJ in his expression of the power, in particular as incident of the sovereignty of Australia. He said:[48]
In my opinion, the executive power of the Commonwealth, absent statutory extinguishment or abridgement, would extend to a power to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion. This does not involve any conclusion about whether the executive would, in the absence of statutory authority, have a power to expel non-citizens other than as an incident of the power to exclude. The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australia community, from entering.
[emphasis added]
- This difference in view as to the robustness of the power, contributed to the difference in view reached by Black CJ and French J as to whether the Migration Act had driven the prerogative from the field. There was a degree of agreement on the enunciation of legal principle as to the relationship between the statute and the prerogative or executive power. Where a statute expressly or by necessary intendment purports to regulate an area of activity of a prerogative or executive power or right, the statute governs: AG v De Keyser’s Royal Hotel[49]. This is an aspect of the supremacy of Parliament. French J emphasised, however[50], that the executive power, under s 61 of the Constitution, should not be seen as a species of prerogative – that is as a relic having survived history, waiting to be obliterated by parliamentary will. Rather, it is a part of the constitutional fabric in ch II. This perspective led to an emphasis by French J on the need for clarity in the displacement of the prerogative. His Honour referred to Barwick CJ in Barton v The Commonwealth who said:[51]
the rule that the prerogative of the Crown is not displaced except by a clear and unambiguous provision is extremely strong.
- Their
Honours disagreed as to the construction of the Migration Act. Black CJ
was of the view that the statute covered the intended field; French J was of the
view that there was not an express or
necessarily implied intention to displace
the executive. Relevant to the view of Black CJ that there was a displacement
was the
perceived weakness of the very existence of the
prerogative[52].
- Another recent case, in the United Kingdom, dealing with the relationship of Parliament, legislation and the executive was R v Secretary of State; Ex parte Fire Brigades Union[53]. (It is also relevant as to the question of justiciability and the role of the courts, with which I deal below.) A fault-based criminal compensation scheme had been set up and administered under the prerogative since 1964. In 1988, it was substantially embodied in statutory form, being enacted to take effect “on such day as the Secretary of State may... appoint”. No such appointment was made. In December 1993 a White Paper was published on the topic, giving details of a proposed tariff (non-fault) based scheme to be run on an ex gratia basis exercising the prerogative power. The White Paper drew attention to the advantages of this course. The following is recorded in the judgment about the advantages:[54]
The White Paper gave details of a proposed tariff scheme under which awards would be based upon a tariff according to the injuries received without any separate or additional payments being made for loss of earnings or other past or future expenses. The White Paper drew attention to the rise in the number of awards and cost of the old scheme and concluded that the new scheme would be more readily understood and enable claimants to receive their compensation more quickly and in a more straightforward matter. It also pointed out that the cost of administration should come down and that claimants should receive a better service.
- The
apparent policy (political and administrative) considerations are manifest.
- The
White Paper also gave notice of a decision of the government to seek repeal of
the statute. Parliament subsequently voted moneys
in appropriation to
administer the proposed scheme.
- This
conduct of the government was successfully challenged in both the Court of
Appeal and the House of Lords, by majority in
both[55]. It was held
to be an abuse of power.
- In
the House of Lords their Lordships agreed that the statute, not being put into
effect, did not displace the executive. However,
the majority held that to
exercise the prerogative in a manner contrary to an unrepealed statute was in
effect to frustrate the will
of Parliament. The powerful dissenting judgments
of Hobhouse LJ (in the Court of Appeal), and Lord Keith of Kinkell and Lord
Mustill
stressed the ability of Parliament to remedy any offence to Parliament
and the lack of role for the courts in the matter.
- The
notion of the prerogative In Australia must, of course, be fitted within, and
conform to, the federal compact. The need to identify
the legitimate extent of
Commonwealth and State executive power in the federal polity gives rise again to
the role of the courts
in identifying and delimiting executive power.
- Section
51 of the Constitution defines the legitimate area of the exercise of
legislative power by the Commonwealth
Parliament[56]. No
division of executive power between the Commonwealth and the States is made
expressly in the text of the Constitution. The courts have recognised a similar
division of executive authority by reference to the division of legislative
power[57]. After
early views that s 61 was limited to execution and maintenance of the
Constitution and the laws of the
Commonwealth[58], it
is now accepted that s 61 confers on the Commonwealth all the prerogative powers
of the Crown except those that are necessarily exercisable by the States under
the allocation of responsibilities made by the Constitution and those derived
otherwise from the Constitution
itself[59]. The
implication of parliamentary authority arising from the status of the
Commonwealth as a nation leads to the implication of
like executive authority.
- The
purpose of this paper is not to explore the limits of Commonwealth or State
executive power, but rather to highlight the role
of the courts in
“controlling” the executive, at this point, by identifying its
limits. The role of the courts has been
important in identifying and setting
limits to various kinds of executive action: for example, the need for statutory
authority and
appropriation for contracts entered by the executive outside
ordinary administrative
conduct[60], the
control of discretionary expenditure of public
funds[61] and the
power to request extradition of someone from a country absent an extradition
treaty[62].
- The
federal nature of the polity may require the answering of a question as to
whether only one or both of the Commonwealth or the
States are possessed of an
aspect of executive
authority[63]; and,
consequently, whose parliament is authorised to destroy, replace or otherwise
affect the executive
power[64]. For
example, the executive power as to defence and war is for the
Commonwealth[65], as
is the executive power concerning external
affairs[66]. The
affectation of executive power legitimately within the sphere of one polity by
legislation of another might attract the implied
prohibition enunciated by Dixon
J in the Melbourne Corporation
Case[67].
Litigation Controlling or Affecting How the Executive Acts
- The
role of the courts in “controlling” the executive may also be
examined from at least two other perspectives. First,
the courts have a
supervisory role of “judicial review” in relation to acts and
decisions of the executive – essentially
to restrain the unlawful or
unauthorised exercise of power. Secondly, the courts enforce rights and
obligations between the executive
and the person in contract, tort, restitution
and other areas of private
law[68].
- Before
dealing briefly with the second of those perspectives, it is worth noting, at
this point, that the question of the justiciability
of a matter, which is
discussed below[69],
is not limited to the question of judicial review of executive action. It is a
subject which can pervade more widely the examination
of executive conduct and
it consequences.
Private Law Control or Influence
- The
subject of the executive’s power to contract is, as I have said, a topic
in itself. It is sufficient to say at this point
that, save for contracts
between governments not intended to create legal
regulations[70], but
rather political relations, the courts will decide the rights and obligations of
the executive.
- In
the law of torts, important constraints, of a practical nature, are placed on
the executive by the courts and the law. Intentional
abuse of power may sound
in damages[71]. More
importantly, perhaps, is the control, or affecting, of governmental
decision-making by the imposition of liability in damages
for conduct or
omission to act which is otherwise in good faith, and indeed within power. The
(almost imperial) march of the law
of negligence has had a particularly strongly
felt effect on public administration, perhaps more particularly at State
level[72]. The mere
fact that an exercise of power or the absence of an exercise of a power is
lawful and
authorised[73] by the
governing statute or aspect of the prerogative, does not answer the question as
to whether there exists, nevertheless, a liability
in damages for the negligent
exercise or non-exercise of the power.
- In
a series of cases[74]
the High Court has discussed the role played not only by the governing statute
in identifying the powers, duties and responsibilities
of a public authority,
but also by the elements of control over the safety of the person, property and
economic well-being of the
plaintiff, and of the vulnerability of the plaintiff,
to impose a duty of care on a public authority in the way powers are exercised
or not exercised. In some circumstances, that may transform a power into a
duty, if liability is to be avoided.
- I
deal with “justiciability”
later[75]. However,
at the level of practical litigation, and every-day human affairs, there is
something to be said for the proposition that,
in some cases, the open-ended
enquiry into matters relevant to why an authority did or did not act (and so to
questions of the formation
and breach of a duty of care) including relationship,
proximity, control, responsibility, feasible available alternatives, funding
and
policy choices for the use of available scarce funds, puts the courts in the
position of assessing decisions which might be said
to be peculiarly for the
executive[76].
- With
the growth of restitution, both as an area of
study[77] and as the
foundation of claims for recovery of
money[78], the
executive has become exposed to claims for repayment of moneys exacted without
lawful authority[79],
with interest[80].
Supervisory Jurisdiction – Judicial Review
- Whilst
recognising the important role now played by judicial review of administrative
action in the exercise of jurisdiction conferred
by statute, and the difference,
which may be necessary to recognise, between the position of State courts and
federal courts, it
is essential to appreciate the common law and constitutional
framework of the role of the courts in judicial review.
- Judicial
review at common law is concerned with the legality of the exercise of power or
its purported
exercise[81]. The
essential warrant for the exercise of judicial power in respect of
administrative action is to declare and enforce the law
affecting the extent and
exercise of power[82].
This involves ensuring that executive action does not exceed constitutional
warrant, or the limits of statutory or prerogative authority;
and the duty
of the court extends to the review of executive action otherwise not
in conformity with the
law[83]. It is the
limits of the authority, and the legality of the exercise of the authority,
which the High Court has firmly held is the
basis, and the only basis, for
judicial
intervention[84].
Nevertheless, the march land separating legal and factual questions sees a
constant struggle of evolving legal theory. For instance,
the law of legitimate
expectations has evolved over but 30 years to a point where, at least in England
and Hong Kong, it has absorbed
and synthesised the law of estoppel into the
public law questions of procedural fairness and compulsorily relevant
considerations: Ng Sin Tung v Director of
Immigration[85]
adopting the English law on substantive legitimate expectation. A familiarity
with the task of pleading the relevant facts in an
estoppel by representation
case, or conventional estoppel case, leads to an appreciation of the inroad into
factual matters raised
by this legal question.
- In
Enfield[86] the
High Court rejected the proposition that the courts should defer to tribunals or
administrators in the statement of the law,
in particular the construction of
statutes with which the tribunal or administrator has a particular familiarity
or expertise. This
was a rejection of what is referred to in the United States
as the “Chevron
doctrine”[87].
In Canada, for many years, the Supreme Court maintained the view expressed by
the High Court in
Enfield[88].
Then a change came about reflecting a view comprehending deference in legal
questions[89].
- Accepting
that the courts are the repository for the identification and enforcement of the
law, one needs, of course, to ascertain
the law, and to understand the
circumstances in which the courts will intervene.
“Common law” review
- Leaving
aside the
statutory[90]
jurisdictional basis for exercising judicial review, the structure of the
methods for curial intervention in Australia appears to
be as follows.
- There would appear to be a division in analysis between, on the one hand, administrators and tribunals, and, on the other hand, inferior or statutory courts. The division reveals itself in the scope of the notion of “jurisdiction”. In respect of administrators and tribunals, in the absence of a contrary intent in the relevant legislation[91], an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law[92]. In that context, the well-known statement in Craig as to administrative jurisdictional error was made[93]:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
- The
error is jurisdictional because the authority is to act or decide according to
law. This is to be contrasted with the position
of courts whose authority or
jurisdiction is to hear and
adjudicate[94], within
which jurisdictional activity there is authority to decide questions of law and
fact. Correction is available for these
errors within jurisdiction by the
appeal process, or the non-jurisdictional scope of certiorari for error
on the face of the
record[95].
- A
reading of
Craig[96] might
have led one to conclude that, in relation to administrative tribunals and
decision-makers, Australian law was conformable with
the approach of the House
of Lords in Anisinimic Ltd v Foreign Compensation
Commission[97],
and that, in relation to administrative tribunals and decision-makers, the
distinction between jurisdictional and non-jurisdictional
error of law had been
eliminated; and that to decide otherwise than according to law was an error
going to
jurisdiction[98].
- However, that would appear not to be the case. In Coal & Allied[99] Gleeson CJ, Gummow J and Hayne J in dealing with the Australian Industrial Relations Commission[100] limited the scope of jurisdictional error as follows[101]:
There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council[102], it “misunder[stood] the nature of [its] jurisdiction... or ‘misconceive[d] its duty’[103] or ‘[failed] to apply itself to the question which [s 45 of the Act] prescribes’[104] ... or ‘[misunderstood] the nature of the opinion which it [was] to form’[105]”. The Full Bench did none of those things.
- That this seems to be a narrower formulation than Craig was reinforced by the following paragraph[106] in their Honours’ reasons:
In his reasons for decision, Giudice J proceeded on the basis that the Full Bench could intervene only if there was error on the part of Boulton J. In this his Honour was correct. Giudice J held that there was error on the part of Boulton J. If he was wrong in that view (a matter upon which it is unnecessary to express an opinion), that was an error within jurisdiction not an error in respect of which relief could be granted by way or prohibition or mandamus under s 75(v) of the Constitution.
- This
apparently narrower formulation than in Craig may be explained by a
narrower jurisdictional analysis for some tribunals, such as the
“court-like” AIRC and their status
as quasi-judicial tribunals
equivalent to courts, or it may be a general recognition of the need to examine
decisions of all tribunals
and decision-makers as to jurisdictional and
non-jurisdictional error in their particular statutory context.
- The
former view may well have the effect of reintroducing the
“administrative”, “quasi-judicial” and
“judicial”
categorisations and the distinction between jurisdiction
and ultra
vires[107]. The
latter is probably the better
view[108].
- The
decision whether an error is jurisdictional or non-jurisdictional often gives
rise to differences of
opinion[109]. Of
course any relevant statute will be vital in any consideration of this question.
The emphasised words in Craig in [47] above should be recognised. Within
the confines of constitutional
limitations[110],
arising, in particular, from the separation of judicial and executive
powers[111], the
statute will assist in the task of understanding whether an error in approach is
to be seen as one within or outside its jurisdiction.
After all,
“jurisdiction” of a tribunal or administrator is no more and no less
than his, her or its authority to
act[112] – the
authorisation, if it comes from statute, should be assessed by reference to that
statute[113].
- The
nature, function and responsibilities of the administrative agency (whether a
decision-maker or a tribunal) will generally be
found in the relevant statute.
The nature, function and responsibilities of the tribunal may reveal it to be
charged with the tasks
of answering legal questions as part of its deliberative
and adjudicative tasks (even if it does not purport to exercise judicial
power).
If so, that may lend weight to a characterisation as
“quasi-judicial”, but, more importantly, it may lead to
the
conclusion that, as a matter of the intention of Parliament, a tribunal with
those attributes is to be taken as having (like
the AIRC in Coal &
Allied) the authority to decide some legal issues (and err in that task).
This same conclusion might not be reached about a delegate of
a minister charged
with making a decision of a similar kind. From the two different statutory
regimes one might well find different
conditions, and a different statutory
intention, governing the exercise of the
power[114]. In
Returned & Services League of Australia (Victoria Branch) Inc v Liquor
Licencing
Commission[115],
Phillips JA (with whom Charles and Buchanan JJA agreed) saw the distinction
between courts, on the one hand, and tribunals and decision-makers,
on the
other, as not finally presumptive of the enquiry, but of assistance in the
process of statutory interpretation in ascertaining
what authority had been
committed to the decision-maker, tribunal or
court[116].
- The
criteria for distinguishing between jurisdictional and non-jurisdiction error of
law and the place of the character of the decision-maker
in that assessment,
perhaps, awaits authoritative exposition. Although, as I have said, to the
extent that the decision is made
pursuant to statute, the close examination of
the statute in order to ascertain the nature of the authority to make the
decision
and the nature and extent of any conditions on the exercise of the
authority and the intended consequence of failure to meet such
conditions is
essential, and the first, and probably controlling enquiry.
- Also,
it can be safely said that the enquiry is not purely a temporal one. The
authority which must be conformed with is to act or
decide; it is not an
analysis of whether he, she or it was doing the task which it had authority to
embark on, unless the statue
so identified the nature of the authority.
- Sometimes
said to be of assistance in distinguishing between jurisdictional and
non-jurisdictional error is the assessment whether
the error made is the very
issue for decision, and if not, its proximity to the very issue for
decision[117]. The
closer the error to the very question for decision, the more likely it is to be
within jurisdiction – as an error doing
the very task committed.
- This
discussion perhaps highlights one of the clear advantages of the use of
statutory foundations of jurisdiction such as the Administrative Decisions
(Judicial Review) Act 1977 (Cth) (the AD(JR) Act) – legal error leads
to review. It also highlights the clear fault-line of errors of law and errors
of
fact. Of course, some factual matters, including states of mind or
satisfactions can be
jurisdictional[118].
Also, factual matters may raise legal questions and betray legal error. The
nature of fact finding might betray an error of approach
of the kind described
in Craig or Coal & Allied. There may be an entire absence of
evidence to support the
finding[119] or the
decision may be “Wednesbury unreasonable”. But generally,
fact finding and weighing of material and policy are the tasks of the
administrator.
- Whilst
the High Court was adamant in Enfield that there was no deference to the
executive on questions of law, in dealing with factual questions made necessary
by the existence
of a jurisdictional fact, the High Court made equally clear
that there would be great weight attached to the fact finding of a specialised
tribunal[120]. The
Court recognised that even in jurisdictional enquiries a significant degree of
deference to appropriate decision-makers may
be accorded in respect of fact
finding. This may be relevant to other contexts where the question whether a
legal requirement or
standard has been met involves, in part, a factual
question. For example, if the procedures of a specialised tribunal are thrown
into question in a natural justice case, it may be that the satisfaction of the
legal standard comes down to whether, in the circumstances,
the person was given
a fair opportunity to meet the allegations. If the Tribunal is dealing with a
specialised field, for example,
medicine, legal practice, science, it may be
that the persons best equipped to judge “fairness” are the people on
the
tribunal, who have that specific expertise.
- The
above is, of course, an inadequate discussion of all aspects of relief under the
prerogative (or constitutional) writs of prohibition,
mandamus and certiorari.
Its purpose is to seek to expose the continuing essential role of
jurisdictional error and its distinction
from non-jurisdictional error as the
foundation for those
writs[121].
- The
role of the injunction and declaration must be considered in the context of
these underlying issues. The injunction is a remedy
available at common
law[122] and in
equity[123], it is a
remedy constitutionally provided
for[124] and
statutorily provided
for[125].
- Equitable
relief in the form of the injunction and declaration has played, and is playing,
an important part in the development of
public
law[126]. In
particular, it is useful in ameliorating the effects of technicalities involved
in the prerogative
writs[127].
- Equitable
intervention is not tied to the foundations of relief of the prerogative writs.
Important to the issue of such relief will
be the question of standing. I do
not propose to analyse this in detail. Suffice it to say that, in the federal
sphere, standing
is limited by, and to a significant degree subsumed within, the
concept of
matter[128].
However, standing in relation to the constitutional or prerogative writs is very
wide[129].
- Leaving
standing to one side, what is the relevance of the distinction between
jurisdictional and non-jurisdictional error in the
award of these remedies? To
the extent that the
“equity”[130]
involves some alleged maladministration and breach of the law, it must be
remembered that the two remedies do different things.
An injunction orders
someone to do or to refrain from doing something. A declaration tells parties,
in a binding way, what the law
is or that something has, or has not, in the
circumstances, a particular status.
- If
an error of law is propounded as the “equity”, it will be necessary
to assess whether there was, or is, authority to
do that which was done or is
proposed and which is the subject of the injunction. If there was, or is, such
authority, that is,
if the error was not jurisdictional, and especially if the
authority comes from statute, by what “equity” does the court
order
that what is authorised not be done? It is difficult to see in these
circumstances any basis for injunctive relief.
- Nevertheless, a declaration may lie whether or not a prerogative writ would lie[131]. Also, declarations have long been given as the sole relief, and modern superior court enabling statutes generally provide for this. Declaratory relief should be all that is needed against the Crown. As the Privy Council said in 1915:
It is the duty of the Crown and of every branch of the Executive to abide by and obey the law. If there is any difficulty in ascertaining it the Courts are open to the Crown to sue, and it is the duty of the Executive in cases of doubt to ascertain the law, in order to obey it, not to disregard it[132].
- If a declaration were granted and there was the threat of the executive continuing with the conduct, in the face of the statement of the law (albeit covering non-jurisdictional error) an issue would arise as to review of the decision to persist with the conduct as an abuse of power, recognising the obligation of the executive to obey the law. As Griffith CJ said in Melbourne Steamship & Co v Moorehead[133] (in the context of the conduct of litigation):
the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary,
- In
cases where declaratory relief alone is claimed, the Federal Court would obtain
jurisdiction in respect of a federal matter by
par 39B(1A)(c) of the
Judiciary Act and, via the notion of “associated” in s 32 of
the Federal Court of Australia Act, jurisdiction under s 75(iii) if the
Commonwealth is sued.
- Paragraph 39B(1A)(c) is in the following terms:
(1A) The original jurisdiction of the Federal Court of Australia also included jurisdiction in any matter:
...
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
- The
significance of the introduction of this provision in 1997 has escaped many
people. The meaning of “arising under”
is wide. It does not merely
mean a cause of action provided by statute or a directly disputed federal issue
(although these are
obviously included). It includes a claim for common law or
equitable relief in respect of, or over, a right which owes its existence
to
federal law. This is a matter arising under federal
law[134]. In LNC
Industries v
BMW[135]
the property over which the parties were fighting comprised import quotas.
The fight was about contractual and equitable rights and
obligations. The
subject matter was a bundle of rights owing their existence to federal law.
- The joint reasons of the High Court in LNC Industries v BMW also approved of what Dixon J had said in Federal Capital Commission v Laristan Building and Investment Co Pty Ltd[136]. Dixon J was dealing with Territory jurisdiction, but part of what he said related directly to the notion of “arising under” a law of the Parliament. Dixon J said:
...It may well be that all claims of right arising under the law in force in the Territory come within this description, because they arise indirectly as the result of the Seat of Government Acceptance Act 1909 (see sec 6), and the Seat of Government (Administration) Act 1910 (see secs 4 to 7 and 12). But it is at least clear that a claim to a right conferred by or under ordinances made by the Governor-General in Council under sec 12 of the Seat of Government (Administration) Act is a matter arising under an enactment of the Parliament.
[emphasis added]
- So,
there, Territory ordinances and claims to rights under Territory ordinances
arose under the Commonwealth Act providing for those
ordinances.
- In
an administrative law context this may widen the reach of the Federal Court
beyond “officers of the Commonwealth” under
s 39B(1), if a decision
is made to cause a matter to “arise under” a law of the
Parliament.
- In
Greiner v The Independent Commission Against
Corruption[137]
the New South Wales Court of Appeal, whilst declining to issue prerogative
writs, made declarations that the determination was wrong
in law.
- A
contrary view as to the availability of the declaration was taken in Punton v
Minister of Pensions and National Insurance (No
2)[138] (which
has been followed in England and Australia) to the effect that declaratory
relief should not be given if the error be
non-jurisdictional[139].
Statutory Review
- The
AD(JR) Act has been a template for similar legislation in the Australian Capital
Territory[140],
Queensland[141] and
Tasmania[142]. The
Victorian Act[143],
is somewhat more
limited[144]. The
AD(JR) Act is the template for legislation recommended by the Law Reform
Commission of Western
Australia[145].
- Not
to be forgotten are the various provisions in State Supreme Court
Acts[146] which deal
with mandatory orders. I will deal only with New South Wales, and only briefly.
Section 69 of the Supreme Court Act 1970 (NSW) (SCA) recognises the
existence of the prerogative writs:
- Proceedings in lieu of writs
(1) Where formerly:
(a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or
(b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course,
then, after the commencement of this Act:
(c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but
(d) shall not issue any such writ, and
(e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and
(f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.
(2) Subject to the rules, this section does not apply to:
(a) the writ of habeas corpus ad subjiciendum,
(b) any writ of execution for the enforcement of a judgment or order of the Court, or
(c) any writ in aid of any such writ of execution.
(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.
(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.
(5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.
- The
SCA also deals with ouster from office in the nature of quo warranto (s
70) and habeas corpus (s 71). But there is also s 65, which reads:
- Order to fulfil duty
(1) The Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested.
(2) The Court may, on terms, make an interlocutory order under subsection (1) in any case where it appears to the Court just or convenient so to do.
(3) The powers of the Court under this section are in addition to any other powers of the Court.
- Section
65 has been seen as the successor to s 165 of the Common Law Procedure Act
1899 (NSW) where “duty” meant public duty or quasi-public duty.
It was intended to be free of any technicalities of the prerogative
writs. The
reach of the section has not been decided authoritatively and, in the light of
the regular expression by the High Court
that grants of jurisdiction to courts
should not be restricted or read down by reference to factors not present in the
words of the
statute[147], it may
yet see some modern development.
- The
overwhelming advantage of the statutory mechanisms for review such as the AD(JR)
Act is the lack of technicality in application.
The irrelevance of the
jurisdictional and non-jurisdictional distinction is an example. Also, there is
no need to identify “the
record” in certiorari. However, it would,
I think, be a mistake to underestimate the living nature of the common law
remedies
and their utility in supplementing and complementing statutory based
schemes.
- The
statutory schemes generally identify the “administrative” character
of the decision and its being made “under
an enactment”. Those
matters do not, in terms, constrain the issue of constitutional or prerogative
writs. There must be,
in the federal sphere, an “officer of the
Commonwealth”[148];
not so at State level. Thus, to the extent that decisions or acts are made or
done by bodies such as the Takeovers
Panel[149] which are
seen to be beyond the conception of an officer of the Commonwealth and which do
not make decisions “under an enactment”
it will be important to
allow the common law to subsist and
develop[150].
- Also,
the limitation of statutory review to “administrative” decisions
“under enactment”, leaves the not unimportant
review of prerogative
power or non–statutory executive power to the constitutional and
prerogative writs and injunctions and
declarations.
- The
remedial alternatives under provisions such as s 16 of the AD(JR) Act are wide
and flexible. However, the flexibility and malleability
of injunctive relief
should not be overlooked. Injunctions can always be issued conditionally and
appropriately moulded.
85. One issue of possible difference which can arise is a useful, and often used, aspect of relief under s 16 of the AD(JR) Act. In Northern NSW FM Pty Limited v Australian Broadcasting Tribunal[151] the Full Court of the Federal Court gave the discretion in par 16(1)(b)[152] content to permit a direction that a particular person not deal with the matter on remitter, even though the circumstances were not such as to show apparent bias[153]. It is not plain that, absent such a provision, the court can likewise restrain someone from dealing with the matter on remitter, short of proof of apprehended bias[154]. However, it may be that the kinds of considerations underlying decisions concerning the disclosure of credible, relevant and significant material even if it is disavowed as the basis for the decision[155] may provide a foundation for such an order. It may be that, as part of the judicial function, and in order to maintain confidence in the utility of judicial review, there is an equity to restrain further conduct of someone short of apparent bias being shown.
- There
may well be a greater flexibility in the act or decision able to be reviewed at
common law, to the extent that the decision
can be seen as preliminary or by way
of recommendation, but nonetheless attracting
certiorari[156],
as long as legal rights will ultimately be
affected[157],
rather than being limited to the conception of “decision” and
“conduct” in the AD(JR) Act as discussed in
Bond[158].
What is the Lawful Authority of the Executive?
- The
demand that the executive conform with the law is, on its face, uncontroversial.
As, generally, is the proposition that it is
for the courts to tell the
executive when it has gone beyond its lawful warrant or when it is threatening
to do so.
- But
what is the law? Obviously, first and foremost is the
Constitution[159]
and the Constitutions of the
States[160].
Secondly, and equally obviously, there are statutes of the parliaments of the
Commonwealth, States and Territories, passed within
constitutional
authorisation. Thirdly, there is delegated legislation validly falling within
the authorisation of parliaments.
Fourthly, there is the general law.
- In
most circumstances, the authority of Parliament to pass legislation within an
available head of power is unquestioned. Equally
unquestioned is the authority
of courts to pass upon the constitutional validity of laws if properly brought
before
them[161].
- Broadly
speaking, as discussed earlier, the availability of relief either by recourse to
a constitutional writ (if s 75(v) is invoked), a prerogative writ or an
injunction depends upon the executive agent going beyond authorisation; if the
act is clothed
with parliamentary authority, or falls within the legitimate
scope of the prerogative, it will not be able to be prevented and it
cannot be
said not to have been
done[162].
- Are
there identifiable limits to the power of parliaments to authorise their
executives to act? It may be that an entirely different
analysis attends the
question of State, as opposed to Commonwealth, parliamentary
power[163].
- First,
the Commonwealth Parliament’s authority is constrained by the
Constitution. There are limitations of subject matter in s 51, as expanded by
reference to the matters discussed
earlier[164]. Such
limitation on subject matter is a sufficient foundation for the proposition that
Parliament has no power to confer an entirely
unconstrained
discretion[165]. An
entirely unconstrained discretion would, by its intended lack of limitation,
flow beyond the power authorising the legislation.
Thus, leaving aside the
defence power in wartime or true
emergency[166], the
opinion of Parliament or the executive that the law or act is within power, or
relates to a head of power, cannot be decisive
and cannot be the constitutional
foundation of the law or
act[167].
- Secondly,
the Commonwealth Parliament has no power to confer authority on the executive to
exercise the judicial power of the Commonwealth.
94. Thirdly, there would seem to be from R v Hickman; Ex parte Fox and Clinton[168] and the High Court cases thereafter[169], a limitation that the executive must make an attempt in good faith to exercise the power. Thus, it is probable that the Parliament cannot authorise an exercise of executive power in bad faith[170].
- Fourthly,
and really related to the first limitation, there is a requirement that the
authority be exercised in a manner relating
to the subject with which the
legislation deals and a requirement that the decision be reasonably capable of
being referred to the
power possessed by the
decision-maker[171].
- Fifthly,
and again perhaps as part of the first limitation, the conferral of authority
must not be contrary to any other prohibition
or restriction within the
Constitution.
- Dixon
J in Hickman and Murray was ostensibly engaging in a process of
statutory construction, part of which involved the reading down of what
otherwise would
have been plain words directed, not to the authority of the
executive, but to the authority of the court to review the exercise of
power[172]. The
latter would have been bad by reason of s
75(v)[173]. A
process of statutory construction and reconciliation of the whole of the Act in
question was engaged in, in effect to mark out
what Dixon J saw as the available
limits of power. Thus, provisions of the kind in Hickman and Proctor
can be seen as widening the authority of the executive, not cutting back the
authority or jurisdiction of the
courts[174].
- Are
there any further limits? Is honest incompetence producing a decision wrong in
law (absent the privative clause), being a product
of answering the wrong
question (absent the privative clause), taking into account considerations
expressly forbidden by statute
(absent the privative clause), ignoring
considerations expressly required by statute to be considered (absent the
privative clause),
being arbitrary and capricious and devoid of connection with
any evidence or probative material, lawful, as long as it is made bona
fide? It is, I would suggest, bad administration. Also, all these
deficiencies may be factors that lead a court to conclude that the
decision-maker was not bona fide. But, in a sense, the more egregious
the decision, perhaps the greater the likelihood of the inference of
incompetence, rather than
bad faith.
- Also,
if as a matter of statutory construction, that is construing the so-called
privative clause with the rest of the Act, there
can be found, despite the
clause in question, a provision of the Act which cannot be breached –
“inviolable” or
“structural” – then the clause
will not cure such a breach.
- Unnecessary
detritus in the debate is caused by the question of statutory interpretation of
the formula of words before Dixon J in
Hickman and which has come to be
employed[175], by
argument over the sometimes different linguistic formulae used to describe the
process of analysis – “validation”
as opposed to
“authorisation”, and by debating whether Dixon J in Hickman
was entitled, on the authorities, to do precisely what he did. Leave aside
these matters. A more important question seems to me
to be: can Parliament
pass an Act to clothe the executive with authority to make any error whatsoever
as long as there is a bona fide attempt to deal with a subject matter
admittedly within a constitutional head of power and as long as there is a
sufficient connection
with a lawful legislative power as referred to at [95]
above?
- Within
or underlying the text and fabric of the Constitution, there are presumptions or
assumptions of a basal kind, the existence and effect of which become apparent
only in the working through
of difficult contextual problems. It is in the
interplay of these constitutional assumptions (which can, perhaps, be seen as
externalities,
or, as the foundation of the text) with the creation of a federal
polity embodying representative democracy and responsible government
and in the
text of the compact that one must find such a limitation, if it is to exist,
upon Parliament’s power.
- Before
returning to the Australian context, it is worth reflecting upon the debate that
has taken place in other places, in recent
times, about the role of the Courts
and the power of Parliament, in legal systems similar to
ours[176].
- In
the United Kingdom, in 1995, Lord Woolf said that courts could refuse to
recognise and give effect to legislation which sought
to undermine the rule of
law by removing or substantially impairing the powers of judicial review of the
Courts[177].
- In 1995 Laws J invoked a species of natural law as a limitation on parliamentary sovereignty[178]:
The democratic credentials of an elected government cannot justify its enjoyment of a right to abolish fundamental freedoms ... The need for higher order law is dictated by the logic of the very notion of a government under law ... the doctrine of Parliamentary sovereignty cannot be vouched by Parliamentary legislation; a higher-order law confers it and must of necessity limit it.
- In
the same article, Laws J identified sovereignty not in Parliament alone, but in
the framework of fundamental principles, including
democracy and respect of
human rights, which is the Constitution.
- In
1995 Sedley LJ wrote of the Diceyan doctrine of the sovereignty of Parliament
giving way to “a bi-polar sovereignty of the
Crown in Parliament and the
Crown in its Courts to each of which the Crown’s Ministers are
answerable – politically to Parliament, legally to the
Courts[179].”
- Sir
Robin Cooke expressed not dissimilar views in New Zealand, twenty years ago:
that a free democracy requires judicial limitation
on the power of Parliament.
Some rights are so fundamental as to be incapable of parliamentary
destruction[180].
- These expressions hark back to a pre-Glorious Revolution view of the supremacy of natural law[181]:
“when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.” [182]
“even an act of parliament made against natural equity ... is void in itself; for jura natural surt inmutabilia, and they are leges legum.”[183]
- In
contrast, other distinguished English judges and writers have spoken in the
clearest Diceyan terms of the democratic supremacy
of
parliament[184].
- This
discourse is, to a degree, timeless. The questioning as to whether right is
right by nature, or only by enactment and convention,
takes us back to the fifth
century BC, at
least[185].
- The
Australian orthodoxy for many years was that the express absence of a bill of
rights in the Constitution was by reason of a choice, and flowed from the
placement of faith in a Parliament
supreme[186].
However, some implied constitutional guarantees have been
identified[187].
- In
the context of the Australian Constitution, the “bi-polarity” of
sovereignty and the answerability of the executive to Parliament and the courts
referred to by
Sedley LJ above may, perhaps, be said to be found within the very
text of the Constitution in the enshrinement in the High Court of the mechanisms
of control within s 75(iii) and
(v)[188]. Of
course, the constitutional grant of a remedy may say nothing as to the power of
Parliament to decree the substantive law within
which the executive is free to
operate[189].
- Relevant
to this discussion may also be the constitutional conception of a court and the
related conception of judicial power. The
latter has been oft discussed; the
former less so. In Residual Assco Group Ltd v
Spalvins[190]
in the resolution of post-Wakim issues, Kirby J dealt with the question
as to whether orders of the Federal Court made without jurisdiction were
nullities[191]. He
said that they were not. This flowed not just from the calling of the Federal
Court a superior court of record in the Federal Court of Australia Act 1976
(Cth), but also from s 71 of the Constitution. The
“courts” under s 71, at least superior courts, were to have the
attendant characteristics of such courts in England, and the United States in a
federal
context under Art III of the United States Constitution. The conception
included the authority to decide its own jurisdiction, and, even if wrong,
orders of such a court were valid until
set aside.
- The
High Court had the issue before it again in Re
Macks[192] .
Gleeson CJ[193]
said the orders made without jurisdiction were not nullities, relying on ss 71,
77 and 51(xxxix) of the Constitution. Gaudron
J[194] after
referring to ss 71, 76(ii) and 77(i), said that it was “incidental to [the
judicial power of the Commonwealth] for a federal court to decide whether or not
it
has jurisdiction in a matter and to make a binding determination in that
regard.” This was, of course, subject to relief under
s 75(v). McHugh
J[195] was of the
view that the orders were nullities. Gummow
J[196] said that by
reason of ss 71, 77(i) and, especially 51(xxxix), Parliament had power to endow
the Federal Court with the characteristics of a superior court of record
as
understood in 1900. Kirby
J[197] remained of
the view that he had expressed in Residual Assco. Hayne and Callinan
JJ[198] did not find
the authority in Parliament to provide for the effect of orders made without
jurisdiction in the power to create courts under s 71. Rather they saw
the authority flowing from the full content of the Federal Court of Australia
Act and the Judiciary Act and the assertion of jurisdiction there
under until set aside.
- This
discussion may seem less that directly connected with the present
problem. But to the extent that some of these reasons look to s 71 and the
notion of the powers or attributes
of a court by reason of its conception as a
court, they may underpin the notion that ss 75(iii) and (v) were meant to have
substantive
effect, not merely remedial status.
- It
remains to be seen whether the clear and express answerability of the executive
to the High Court in terms of the legality of its
conduct says anything about
the authority of Parliament to define the scope of the executive’s
authority to act, according
to law.
- If
Parliament can authorise a decision of the character referred to at [98] above,
the practical extent of the ability of the Commonwealth Parliament to do
so will probably vary from topic to topic. In any given, topic the
constitutional
constraints of the available head of power may throw up
constitutional questions, whether of a factual or legal nature, which cannot
be
withdrawn from the
courts[199].
Nevertheless, for a Court to be placed in the position of declaring a decision
lawful which has the characteristics described above
may, perhaps, raise
questions about the conception of a court within the constitutional compact, the
nature and content of the rule
of law on which the Constitution is
founded[200] and
the ultimate singularity of political answerability of Parliament to the people
of Australia.
- To
a significant degree, the equanimity with which such attempts to insulate
decision-making from judicial scrutiny are taken by commentators
depends on the
context of the attempt. In circumstances of dire emergency or national
security, judgments affecting the very existence
of the federal compact itself
may arise. This may not be limited to the application of the defence power
proper. This raises the
question of the relationship of this issue with
justiciability and
deference[201].
Courts have shown a willingness to recognise real deference in the area of
national security in which executive power may, to a
degree, be seen as the
appropriate governmental response. Notions of deference merge into
justiciability[202].
A real difference would be obvious between powers concerned with national
security being exercised dishonestly for personal malice
or corruptly, on the
one hand, and being exercised in a way able to be described as incompetently, on
the other. The former may
well raise justiciable issues, in the deciding of
which a court would be in no way disadvantaged or embarrassed. The latter may
be more difficult to engage in, and form a judgment about, given the subject
matter, as long as honesty of approach is not in
issue[203].
- In
other contexts, where specialist tribunals of trusted calibre and expertise
conduct their affairs in areas of decision-making in
a quasi-judicial matter,
though not exercising the judicial power of the Commonwealth, trust and
experience may allay the fear of
narrow judicial
review[204].
- Ultimately,
the Diceyan view of ultimate parliamentary supremacy rests on deep and abiding
trust and faith in the protection of parliamentary power and the role of
the courts. This alliance of power, and the ultimate sovereignty of Parliament,
could be seen
as necessary when the parties invoking higher law in justification
of the subordination of parliamentary sovereignty and domestic
positive law were
(until the sixteenth century) a foreign spiritual ruler, and (until the end of
the seventeenth century) a domestic
temporal ruler, both calling upon the higher
laws of natural and divine order in legitimation of their respective positions
of supremacy.
During the seventeenth century there was also the brief
experience of pious militarism. We have moved on. Though, an abiding faith
in
the democratic process should not be seen as other than fundamental. Yet, to
say as much is not to juxtapose Parliament (as
democratic) with the courts (as
undemocratic). The courts (State and federal) are an integral part of the
democratic framework of
the Constitution embodying responsible government and
representative democracy.
- It is not inappropriate to be reminded, at this point, of the conclusion of Professors Friedmann and Benjafield to their chapter on “The Rule of Law and the Citizen” in Principles of Australian Administrative Law (2nd Ed) written in 1962:
The criticisms and analyses set out above indicate that it is harmful to, if not destructive of, the notion of the rule of law to treat it as a legal principle. It is, at most, a political principle or a theory of government. As such, it has had immense influence in the past and will doubtless continue to lead those who live in democratic communities to resist harsh and oppressive, capricious and arbitrary exercises of governmental power. But it is suggested that the influence of “the rule of law” is enhanced, rather than diminished, by recognising that it is a way of life, dependent upon intelligent and responsible use of governmental power, rather than a legal principle capable of precise application. Writing in the early nineteenth century de Tocqueville epitomised the situation: “In the United States and in England there seems to be more liberty in the customs than in the laws of the people. In Switzerland there seems to be more liberty in the laws than in the customs of the country.”[205]
- Nevertheless,
it might be said that there may come a point at which to grant access to the
courts to review the legality of an act by the executive, when the only
effective substantive requirement be bona fides (translating, in a
litigious forum, to proof of dishonesty of mental process), is to engage in an
exercise seen as other than “judicial”
review[206]. If the
litigant comes to a court, he or she may expect the court to have within its
power the authority to pass upon what most
people would consider to be
illegalities of the kind described at [98] above, at least in respect of subject
matters which do not
bespeak a lack of judicial capacity to
assess[207]. To be
told that these things are authorised by law (at least by a section which in
terms is directed to the court’s jurisdiction
or power and not, on its
face, to the authorisation of the executive) and that the decision will only be
found to be unlawful if
it can be proved that the decision-maker approached the
task lacking “bona fides”, might lead to questioning of what
the
court is actually doing.
- It
may be one thing not to give a statutory court jurisdiction. Responsibility for
the lack of an avenue of review is clear. It
may be another to grant
“full” jurisdiction to a court to review the legality of a decision,
but in circumstances where
there the executive has the widest of authorisations
and the notion of “legality” has had drained from it many of the
elements that might be expected to inhere in the concept.
- In
large part, a response such as this flows from a tendency to equate law with
predictable non-arbitrary rule based organisation
of society, not with wide
virtually unchallengeable discretion without a framework of compulsorily
applicable requirements.
- The
struggles in the development of the parliamentary system before, and after, 1688
were dominated by the struggle for parliamentary
control over, and judicial
independence from, unconstrained, capricious, arbitrary and personal exercise of
prerogative power.
- Jurisprudentially,
there is the world of difference between, on the one hand, a Sovereign claiming
right and power from divine or
higher law and acting from caprice in stripping
someone of a licence to sell goods and awarding the licence to a court favourite
and, on the other hand, a duly authorised executive acting honestly, but
arbitrarily and capriciously in stripping someone of a licence
to sell goods and
awarding it to a competitor in apparent breach of the governing statute
(if one were to view the matter absent the privative
clause)[208]. The
former acts without (post 1688) lawful authority, the latter acts, if bona
fide, with full parliamentary authority in the presence of a “Hickman
clause”. The erstwhile vendor may not see the difference,
if it were
pointed out to him or her.
- In
these circumstances, the Parliament is certainly accountable to the electorate.
However, it is perhaps not entirely fanciful to
say that there is a subtle
danger of undermining the authority of the courts, by the device of expansion of
executive authority.
The court becomes unable to declare as unlawful conduct
which can be expected by a citizen to be wrong. Courts, which purport
independently
to uphold the rule of
law[209] and which
take up a given act of the executive to be assessed and tested, but which find
to be lawful and authorised an act of the
kind described earlier, may begin to
lose respect as a constitutional conception exercising judicial power. This
conception of what
a court is, and from it what a court (to be a court) must be
able to do, may be embedded within Ch III, especially from ss 71 and 75(iii) and
(v).
- To
the extent that this form of constitutional limitation on the power of
Parliament might be said to be derived otherwise than from
Ch III, as an
incident of “fundamental” rights somehow informing the Constitution
and otherwise than from its text and structure, that would seem to have been
dealt a significant blow by Durham Holdings Pty Limited v New South
Wales[210].
- Apart
from any other difficulty, the identification of the limit of Parliament’s
power is not easy to draft. Is it to be expressed
in Wednesbury
unreasonableness terms or some variant thereof? The legitimate question as to
whether the currency of Wednesbury has become, over time, somewhat
debased, may give pause for thought as to the nature of any limit on
Parliament’s authority
by an entrenched constitutional circumscription
based on a test so capable of different results, depending upon the identity and
disposition of the judge in
question[211].
Wednesbury is not a discretion, but it is one of those areas in respect
of which minds often differ. Should such a test or a linguistic variant
thereof
be “constitutionalised”? What has been referred to as a
“super-Wednesbury
test”[212]
can, perhaps, be seen as a test not unlike that set out in
Hickman[213].
- It
may be that if the legitimacy of authorisation of the executive to the width
expressed in Hickman is re-affirmed, that Parliament should, at least, be
required to express that in transparent language. This is not a present
criticism.
The language used in s 474 of the Migration Act and other
privative clauses has been construed by the High Court on many occasions.
Parliament sought to use a well-known “coded”
body of words.
However, if the executive is to be authorised to make an honest attempt at
exercising a power with liberty to make
such mistakes as happen to occur,
however fundamental, that is to transform the process into a discretion with
non-compulsory guidelines.
There is something to be said for the proposition
that this should be clear and transparent and not effected by the use of a
linguistic
formula with an accretion of meaning drawn from successive curial
glosses. If a decision could thus be seen to be, in truth, the
exercise of a
wide discretion, the appropriateness and legality of that course could, perhaps,
be better assessed. For instance,
if decisions became in that sense
discretionary by reference to guidelines, departure from which was authorised,
one could see more
clearly, for instance, whether the authorisation fell within
a head of power; and if it did, whether the legislation conformed with
any
obligations that Australia may have under a relevant treaty to enact legislation
of a certain kind.
- The
connective requirements in Hickman and
Murray[214]
reflect the inability of the Parliament to clothe the executive with authority,
beyond the relevant source of power. The limitations
of the usual kind upon the
formation of a relevant opinion or satisfaction – that it not be arbitrary
or capricious –
are generally said to be derived from the presumed
intention of
parliament[215].
However, it may be that an entirely erroneous or disconnected decision will not
be protected by a “Hickman” clause,
not because of the presence of
arbitrariness or caprice per se, but because such a decision cannot be
seen to be a decision having a reasonable connection with the source of power.
A decision so
erroneous and disconnected may not be seen to be an attempt at the
power, even though bona fide. Any limitation on Parliament’s power
may come, not from some imposition or implication of a fundamental right, but by
the
necessity to have decisions objectively capable of a reasonable and
non-arbitrary connection with a head of power in the context
of, at least, the
High Court (if not all Ch III federal
courts[216]) having
a duty to ensure that reasonable, non-arbitrary connection between the head of
power and the act or decision. This way of
examining the question may provide a
flexible connection with the head of power in question and the issues of
justiciability and
deference, to which I now turn.
Justiciability
- The
notion of “justiciability” is used in a number of contexts and in
different senses which include an absence of jurisdiction,
circumstances where,
though possessing jurisdiction, the court chooses not to exercise it or part of
it and circumstances in which
the court can otherwise resolve the case without
dealing with the
issue[217]. The
question can arise in contexts not limited to the exercise of domestic executive
power.
- The
non-justiciability of certain questions has long been recognised. Courts will
not try an action which would require them to pronounce,
directly or indirectly,
on rights on immovable property situate
abroad[218]. There
exists the doctrine of sovereign immunity which prevents or impedes actions
concerning ownership, possession or control of
property by a foreign
state[219]. There
is also the general rule that courts will not entertain cases requiring the
ascertainment or interpretation of transactions
or obligations between foreign
sovereign states or involving the questioning of the effectiveness of foreign
legislation or involving
challenge to the legality of acts of the executive
government outside the
country[220].
- In the domestic context, until 1981, the orthodox view in Australia was that the exercise of the prerogative was not reviewable[221]. In Duncan v Theodore[222] Isaacs J and Powers J rejected the proposition that mala fides could be imputed to the King or his representatives. The Privy Council on appeal said[223]:
The question is one not of property or of prerogative in the sense of the word in which it signifies the power of the Crown apart from statutory authority, but is one of Ministerial administration, and this is confided to the discretion in the present instance of the same set of Ministers under both Acts. With the exercise of that discretion no Court of law can interfere so long as no provision enacted by the Legislature is infringed. The Ministers are responsible for the exercise of their functions to the Crown and to Parliament only, and cannot be controlled by any outside authority, so long as they do nothing that is illegal.
[emphasis added]
- Isaacs J in James v Cowan[224] also said that the act of the Governor or a Minister was immune from attack on the grounds of bad faith. On the other hand, Dr Evatt argued[225] that the courts could examine such a question; but, as Zines points out[226], Evatt J, as a judge, was more cautious in his expression of the matter in Victoria Stevedoring and General Contracting Co v Degran[227]. Dixon J, in the Communist Party case[228], was clear and uncompromising in his view:
Two things appear to me to be clear about this. The first is that it leaves to the opinion of the Governor-General in Council every element involved in the application of the proposition. Thus it would be for the Governor-General in Council to judge of the reach and application of the ideas expressed by the phrases “security and defence of the Commonwealth”, “execution of the Constitution”, “maintenance of the Constitution”, “execution of the laws of the Commonwealth”, “maintenance of the laws of the Commonwealth” and “prejudicial to”. In the second place the expression by the Governor-General in Council of the result in a properly framed declaration is conclusive. In the case of the Governor-General in Council it is not possible to go behind such an executive act done in due form of law and impugn its validity upon the ground that the decision upon which it is founded has been reached improperly, whether because extraneous considerations were taken into account or because there was some misconception of the meaning or application, as a court would view it, of the statutory description of the matters of which the Governor-General in Council should be satisfied or because of some other supposed miscarriage. The prerogative writs do not lie to the Governor-General. The good faith of any of his acts as representative of the Crown cannot be questioned in a court of law (Duncan v Theodore [1917] HCA 38; (1917) 23 CLR 510, at p 544: cf (1919) A.C. 696, at p 706.) An order, proclamation or declaration of the Governor-General in Council is the formal legal act which gives effect to the advice tendered to the Crown by the Ministers of the Crown. The counsels of the Crown are secret and an inquiry into the grounds upon which the advice tendered proceeds may not be made for the purpose of invalidating the act formally done in the name of the Crown by the Governor-General in Council. It matters not whether the attempt to invalidate an order, proclamation or other executive act is made collaterally or directly. One purpose of vesting the discretionary power in the Governor-General is to ensure that its exercise is not open to attack on such grounds...
[emphasis added]
- A
body of authority developed in conformity with these views to the effect that
acts of the Crown and its representatives, whether
acting under a statute or
pursuant to the prerogative, were not
examinable[229]. As
Zines pointed
out[230] by the
early 1980s powers given to ministers of the Crown, by statute, were reviewable,
but decisions of a Crown representative,
who could only act on the advice of a
responsible minister were not, even if acting pursuant to statute.
- The
element of importance to Dixon J in the Communist Party case (highlighted
in [135] above), as to secrecy of communications with the Crown, was dealt with
in Conway v
Rimmer[231] and
Sankey v
Whitlam[232].
The question of Crown privilege in disclosure of documents was held to be a
justiciable question for the courts, balancing public
policy and the proper
administration of
justice[233]. Prior
to this point, the secrecy of Crown documents was an aspect of the prerogative
(by way of immunity) of the
Crown[234]. A
fundamental pillar of the immunity of decisions of the Crown and its
representatives was thereby removed.
- Thus,
until the 1980’s there was, in large part, no call for the development of
principles of “justiciability” in
relation to judicial review of
acts of the Crown and its representatives. All were free from review.
- Then,
in 1981, the High Court in R v Toohey; Ex parte Northern Land
Council[235]
made clear that the courts can examine the exercise of power granted by a
statute whether to a representative of the Crown or a minister,
at least in the
award of declaratory relief. Mason J (with whom Wilson J agreed) extended his
comments to the exercise of the prerogative
power, thought recognising that some
elements of the prerogative were not susceptible to judicial
review[236]. The
matter was taken further in FAI Insurance v
Winnecke,[237]
where it was held that the Victorian
Governor[238], or
the Minister[239]
were obliged to accord the complainant natural justice. Each of R v
Toohey and FAI concerned the exercise of power by the Crown pursuant
to a statute. However, as Mason
J[240] pointed out,
there could be no rational distinction between the exercise of statutory and
prerogative executive power, only between
some powers as less appropriate for
review than others because of their nature.
- Shortly
thereafter in England in 1985, the House of Lords in Council of Civil Service
Unions v Minister for the Civil
Service[241]
held that the exercise of prerogative power by the Prime Minister pursuant
to an Order in Council signed by the Queen, was reviewable
for a failure to
accord natural justice. Three of their
Lordships[242] were
prepared to deal with the matter on the basis of judicial review of prerogative
power. However, it was made clear that some
exercise of prerogative power would
be immune, or only reviewable in certain respects, by reason of
“justiciability”.
- The
notion of justiciability had thus replaced the identity of the decision-maker
for the purposes of assessing review. The question
as to whether a question is
justiciable is itself a justiciable issue to be decided by the courts.
Professor Wade expressed the
view that this process of stripping part of the
prerogative of its protection from judicial review merely exposed what was,
properly
understood, the real and more limited notion of the true prerogative,
which had been inappropriately expanded by
Dicey[243].
- Nevertheless, the courts in England and Australia were faced with the task of fashioning what was, and what was not, reviewable, and in what circumstances. Examples were given in CCSU of what would not be justiciable. Lord Roskill[244] gave the following list:
Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another.
- Lord Diplock[245] described susceptibility of an act of the executive to legal review as dependent upon a test referable to the affectation of rights:
“To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either: (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either
(i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance form the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn...”
- These two approaches reflect related, but distinct, aspects of the problem, which can be further illuminated by reference to the United States “doctrine of the political question.”[246] In its earliest, and perhaps classic, formulation it was an express recognition that within the text of the United States Constitution there were matters not for the Supreme Court. This was not prudent abstention, but constitutional mandate. Marshall CJ in Marbury v Madison said as much:
“Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”[247]
- These matters were not part of the judicial power. Marshall CJ described the guiding factors in their determination as the political subject matter, respecting the nation and not individual rights[248]. The redolence with Lord Diplock’s framing of the question can be seen. Marshall CJ said[249]:
“The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.”
- Related to this approach based upon the text of the Constitution and the inherent nature of the judicial function was a broader approach based on prudent abstention (as opposed to a recognition of constitutional incompetence). As it developed, in addition to the guidance provided by the matters referred to by Marshall CJ referred to above, notions such as the appropriateness of the judicial process of dealing with the matter and the existence or not of legal standards by which to judge the question came forward[250]. These questions began to be referable not merely to the question of the existence of judicial power, but also the exercise of discretion[251]. Frankfurter J put the matter (by way of jurisdiction or competence) in Colgrove v Green broadly as follow:
We are of opinion that the appellants ask of this Court what is beyond its competence to grant. This is one of those demands on judicial power which cannot be met by verbal fencing about “jurisdiction.” It must be resolved by considerations on the basis of which this Court, from time to time, has refused to intervene in controversies. It has refused to do so because due regard for the effective working of our Government revealed this issue to be of a peculiarly political nature and therefore not meet for judicial determination.
...
To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket.
- In 1962, in Baker v Carr[252], Brennan J engaged in a detailed discussion of justiciability. He recognised a degree of lack of coherence in the subject matter[253]:
...the attributes of the doctrine ...in various settings, diverge, combine, appear, and disappear in seeming disorderliness.
- Brennan J dealt with foreign relations[254], date of duration of hostilities[255], validity of enactment[256], the status of Indian tribes[257] and the republican form of government[258]. Dealing with the matter generally, Brennan J listed six elements, any of which, if inextricably linked with the matter, would lead to non-justiciability[259]:
...a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need or unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
[emphasis added]
- In dealing with foreign relations, Brennan J reflected an approach very much requiring the specific analysis of the controversy in question and the issues raised by it, before a an assessment of justiciability could be made[260]:
“There are sweeping statements to the effect that all questions touching foreign relations are political questions [Oetjon v Central Leather Co 246 US 297, 302]. Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single voiced statement of the Government’s views. Yet it is error to support that every case or controversy which touches foreign relations lies beyond cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.”
[emphasis added]
- It
is beyond this paper to examine the development of United States law in more
detail or the current approach of the United States
Supreme Court in this area.
It suffices to say that in Bush v Palm Beach County Canvassing
Bd[261] and
Bush v
Gore[262] the
Court engaged in issues well into what Frankfurter J might have described as the
“political
thicket”[263].
-
However, the elements identified by Brennan J in [148] above, and the emphasis
by Marshall CJ on the need for rights as the constitutional
foundation for the
exercise of judicial power, are valuable tools of analysis which recur in the
examination of the topic.
- The
notion of justiciability is broad and multi-faceted. A difference in approach
may be required depending on the nature, or basis,
of review sought. For
instance, one can readily see different considerations applying to a decision by
Cabinet or a minister involving
considerations of foreign affairs and even
national security, depending upon whether the complaint was a denial of natural
justice
or Wednesbury unreasonableness, even if the conclusion in both
respects is that the decision is not reviewable.
- Before
examining some of the major examples of the notion of non-justiciability it
should be noted at this point that the universe
of discourse is not limited to
the judicial review of the exercise of domestic prerogative power. The issue
arises in enforcement
of contracts or disputes about property matters or alleged
torts which involve foreign or domestic political considerations or matters
of
sovereignty or local questions peculiarly the reserve of the executive by
reference to their nature or their history or custom.
- The
issue was dealt with in the United Kingdom in relation to exercising
jurisdiction in connection with international relations.
Buttes Gas and Oil
Co v
Hammer[264]
concerned a suit for slander in which matters were raised in the defence
which concerned a dispute over oil concessions in the Gulf
involving rival
companies. The cross-claim illuminated the problem. The
defendants/cross-claimants alleged a conspiracy between
the plaintiff and the
ruler of Sharjah to cheat and defraud them of oil concessions which they had a
right to. The issues on these
pleadings arguably required the ascertainment of
foreign rights and the legitimacy of, and circumstances surrounding, acts of
sovereign
governments in relation to those rights. Lord Wilberforce stated, as
a general principle, not of discretion, but inherent in the
very nature of the
judicial process, that the courts will not adjudicate upon the transactions of
sovereign
states[265].
Importantly, Lord Wilberforce relied on the United States doctrine of “act
of state” non-justiciability in Underhill v
Hernandez[266],
Oetjen v Central Leather
Co[267] and
Banco Nacional de Cuba v
Sabbatino[268].
He referred[269]
to the lack of “judicial or manageable standards” by reference to
which to judge the issues, in that the review would
involve examining a
settlement reached after diplomacy and the use, and threat, of force.
- More
recently, Lord Nicholls in R v Bow Street Magistrates; Ex parte
Pinochet[270]
stated the principles concerning act of state non-justiciability with
somewhat less sweeping certainty. He said that it was a principle
of domestic,
not international law, and of uncertain application. He noted the narrowing in
the United States of the doctrine from
the refusal to consider “acts of
government of another country in its own
territory”[271]
to the refusal to deal with the case if it requires a decision on the legality
of sovereign acts of foreign
states[272].
- Even
more recently, Buttes was considered and distinguished by the House of
Lords in Kuwait Airways Corporation v Iraqui Airways
Co[273]. There,
in a case for damages for conversion of aeroplanes which had been taken by Iraq
from Kuwait after the invasion in 1990, the
House of Lords refused to accede to
the submission that the alleged illegality and wrongfulness of the Iraqi conduct
(the assessment
of which was said would include an examination of the Iraqi laws
ratifying the conduct being said to be sovereign domestic acts of
state by Iraq)
made the subject matter one which could not be passed upon by the courts in the
United Kingdom because there were
raised matters of international law and the
sovereign acts of a foreign state. Lord Nicholls
said[274] that in
“appropriate circumstances” it is legitimate for a Court to have
regard to the content of international law in
deciding whether to recognise a
foreign law. This was so if there was a clear (and, by the time of the hearing,
acknowledged) breach
of international law. The standard in such a case was
“clear and manageable”. Lord
Steyn[275] described
the above submission as an “austere and unworkable” interpretation
of Buttes. Lord Steyn also made reference to the existence of
“judicial and manageable standards” by which to judge the
issues.
- Before turning to the Australian position, it is worth contrasting with these cases how the House of Lords has recently dealt with the cognate issue of domestic subject matter raising questions of justiciability or at least deference. The House of Lords has expressed the recognition of the acute position of responsibility to the public of the minister responsible to Parliament in matters of early release of prisoners[276]. However, this has not prevented curial control of the decisions in this area on the basis that they were akin to the undertaking of a sentencing function[277]. The House of Lords has also recently given generous scope to the extent of judicial deference to executive decisions in the area of national security. In R v DPP; Ex parte Kebilene & Ors[278] Lord Hope of Craighead recognised and utilised the notion of the “discretionary area of judgment”. The case concerned the decision to prosecute in relation to the Prevention of Terrorism (Temporary Provisions) Act 1989 (UK). In an important paragraph, his Lordship said[279]:
In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. This point is well made at p. 74, para 3.21 of Human Rights Law and Practice (1999), of which Lord Lester of Herne Hill and Mr Pannick are the general editors, where the area in which these choices may arise is conveniently and appropriately described as the “discretionary area of judgment.” It will be easier of such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection. But even where the right is the stated in terms which are unqualified the courts will need to bear in mind the jurisprudence of the European Court which recognises that due account should be taken of the special nature of terrorist crime and the threat which it poses to a democratic society: Murray v United Kingdom [1994] ECHR 39; (1994) 19 E.H.R.R 193, 222, para 47.
- Secretary of State v Rehman[280] concerned a challenge to a deportation order which had been made based on the view that the person’s presence was a risk to national security. Lord Steyn[281] made clear the deference to the factual judgment of the executive in this area; though he sounded a warning as to the need for the courts, where necessary, to address the legitimacy and necessity of conduct in a democratic society[282]. Whilst weight and deference were recognised, non-justiciability was not[283]. Lord Hoffmann[284] dealt with the underlying notion of separation of powers and in that context powerfully expressed the deference to the executive in an area so closely related to foreign policy. He added a postscript to his speech written after 11 September 2001:
“I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters, It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.”
- In
Australia, the question of the act of state doctrine reflected in the rule in
Moçambique has recently been the subject of reservation by the
High Court “for future consideration in an appropriate
case”[285].
However, the High Court has employed the notion of “manageable
standards” in connection with the assessment of the
enforcement of the
interests of a foreign
government[286]. In
Horta v The
Commonwealth[287]
the question of justiciability in an action for declaration as to the
invalidity of the Timor Gap Treaty and domestic legislation to put it
into effect was unnecessary to decide.
- The
question of justiciability and its relationship with the reviewability of action
by the executive was dealt with by the Full Court
of the Federal Court in
Minister for Arts Heritage and Environment v Peko-Wallsend
Ltd[288]. There
the Court accepted the Commonwealth’s argument that the claim for judicial
review, primarily on the ground of a denial
of natural
justice[289], of the
decision of the executive (Cabinet) to nominate Stage II of Kakadu National Park
for listing under the World Heritage Convention
was not reviewable. The
potential consequence to the claimant was the loss of the ability to mine in the
area, though the decision
did not immediately and directly affect the
claimant’s rights.
- The Court[290] recognised, unequivocally, the amenability of ministers and the Governor-General in Council to judicial review – whether making decisions under statute or the prerogative[291]. Bowen CJ refused to accept that the decision was taken under the treaty-making power of the Commonwealth or that it was a decision taken in accordance with an obligation binding under international law under the relevant Convention. Nevertheless, these matters were relevant as context to a view taken that[292]:
[T]he decision involved complex policy questions relating to the environment, the rights of Aborigines, mining and the impact on Australia’s economic position of allowing or not allowing mining as well as matters affecting private interests such as those of the respondents to this appeal. It appears to me that the subject-matter of the decision in conjunction with its relationship to the terms of the Convention placed by the decision beyond review by the court.
[emphasis added]
- Bowen CJ also considered the role and position of Cabinet in this context. His Honour referred to it being “inappropriate” for the Court to intervene. Bowen CJ said[293]:
It is to Cabinet that the highest decisions of policy affecting Australia are brought. Often the questions arising involve intense conflict of interests or of opinion in the community. In Cabinet these conflicts have to be resolved. Decisions have to be taken in the public interest, notwithstanding that the lives, interests and rights of some individual citizens may be adversely affected by the decision.
This is not to say that Cabinet should decide matters without considering all relevant material. But there are recognised channels for communicating arguments or submissions. Each Minister has the support and advice of a department of State. Representations may be made to the relevant department or in appropriate cases to the Minister. Every citizen has access to a local Member of Parliament or a Senator in the particular State, who can assist in the advancement of the individual citizen’s point of view. The prospect of Cabinet itself, even by delegation, having to accord a hearing to individuals who may be adversely affected by its decisions, is a daunting one. It could bring the proceedings of Cabinet to a grinding halt.
After a decision of Cabinet is made it may require for its implementation an Act of the Parliament or a decision of a particular Minister or of the Governor-General in Council. There is generally further scope for submissions or representations at some stage even after a Cabinet decision and always scope for political action.
In the present case it would, in my view, be inappropriate for this Court to intervene to set aside a Cabinet decision involving such complex policy considerations as does the decision of 16 September 1986, even if the privative interest of the respondents was thought to have been inadequately considered. The matter appears to my mind to lie in the political arena.
- Sheppard J expressed real concern about Cabinet decisions being reviewable, and distinguished them from acts or decisions of Minister or the Crown. He said[294]:
...The way in which Cabinet operates as described in the authorities and texts to which I have referred would pose difficulties for a court in endeavouring to determine whether a decision was arrived at in accordance with law. The decision-making process does not readily lend itself to this type of review or investigation. Furthermore, there seem to me to be public policy reasons which make it quite undesirable that a court should embark on such an exercise.
I should emphasise that the question is not whether the Cabinet is bound to act according to law; it is whether its decisions are amendable to the supervisory jurisdiction of the court. In other words, are its decisions justiciable? In my opinion, the Cabinet being essentially a political organisation not specifically referred to in the Constitution and not usually referred to in any statute, there is much to be said for the view that the sanctions which bind it to act in accordance with the law and in a rational manner are political ones with the consequence that it would be inappropriate for the court to interfere with what it does.
- Wilcox
J posited two elements to the enquiry: first, what his Honour referred to as
Lord Diplock’s “formulation of
justiciability”[295],
and, secondly, whether there was some feature, such as national security or a
relationship to international relations, which would
make judicial review
“inappropriate”[296].
The test of “justiciability” of Lord Diplock was almost a
requirement of standing. See [143] above. It also was not
dissimilar to the
emphasis on rights placed by Marshall CJ (see [144] and [145] above).
- Wilcox J found that Peko failed both limbs of the analysis. As to the second limb, Wilcox J said[297]:
[P]assing to the second aspect of reviewability, although the decision had possible municipal legal significance, the decision primarily involved Australia’s international relations. Issues arising out of international relations have widely been regarded as non-justiciable: see Buttes Gas and Oil Co v Hammer (No 2) [1982] AC 888 at 937-938; Gerhardy v Brown [1985] HCA 11; (1985) 57 ALR 472; 59 ALJR 311 at 341; Ex parte Molyneaux [1986] 1 WLR 331 at 336; Chicago & Southern Air Lines Inc v Waterman Steamship Corp [1948] USSC 46; (1948) 333 US 103 at 111. In particular the courts have disclaimed the entitlement to adjudicate upon decisions by the Executive concerning the exercise of its treaty-making power.
- The
approaches of Bowen CJ and Wilcox J were different. Bowen CJ had a wider group
of connecting features making up the reasons for
non-justiciability; Wilcox J,
in the application of the second limb of his approach, characterised the
decision as connected with
the external affairs power and so inappropriate for
review. However, each took a broad view as to the features which could affect
or determine the relevant questions.
- In South Australia v O’Shea[298] the justiciability of Cabinet decisions arose once again. The Governor-in-Council, contrary to the recommendations of the Parole Board, but, as it must have been, in conformity with a Cabinet decision, refused to release Mr O’Shea on licence. Mason CJ[299] rejected the proposition that Cabinet could never be obliged to act fairly. He said[300]
But in some instances Cabinet is called upon to decide questions which are much more closely related to justice to the individual than with political, social and economical concerns. The fact that Cabinet ordinarily directs its attention to concerns of this kind is not a reason for denying the existence of a duty to act fairly in a matter which turns not on such concerns, but on considerations peculiar to the individual.
- Mason CJ also referred to the secrecy of cabinet discussions. This was recognised as affecting how any duty might manifest itself and what the courts could legitimately do. He said[301]:
It could scarcely be supposed that a court could require Cabinet to give particulars to an interested person of its possible objections to his application or submission so that he might meet them or that a court could pronounce a decision invalid because Cabinet had not given such particulars. Nor would a court ordinarily require the Minister to disclose his submission to Cabinet, because to do so would compel disclosure of material considered by Cabinet. But I can find no persuasive reason why the courts should not, in an appropriate case, require as an incident of natural justice or the exercise of a duty to act fairly that there be placed before Cabinet by the responsible Minister the written submissions of the individual affected by the decision to be made or an accurate summary of such submissions. Such a requirement could not amount to an intrusion into Cabinet’s control of its own proceedings and it would in all probability conform to existing practice. If at some later stage it were to appear that the Parliament was entrusting the Governor in Council with the making of decisions affecting individuals so as to avoid the need to act fairly the court might be compelled to go further, but at this stage such a course is not warranted.
[emphasis added]
- Gummow
J examined the question of justiciability in Re Ditfort; Ex parte Deputy
Commissioner of
Taxation[302].
The case concerned a bankrupt who sought the annulment of his sequestration
on the ground that his extradition to Australia from Germany
had been effected
by false or misleading statements by the Australian Government to the German
Government. It was alleged that this
question was non-justiciable. Gummow J
noted Peko, and then cited the passage from the judgment of Brennan J in
the United States Supreme Court in Baker v
Carr[303]
referred to in [149] above which identified a more particular and less
sweeping approach to that exhibited in Peko.
- Gummow J, after pointing out that the question of non-justiciability may refer to distinct legal principles, including the question of the evidential conclusiveness of certificates by the executive in matters peculiarly its concern[304], cautioned against the application of approaches based on analysing the prerogative in the United Kingdom, rather than the content of s 61 of the Constitution. He also stressed the relationship between the claimed rights of the parties and the existence of a “matter” under Ch III. This analysis is closely related to standing[305]. For example, a breach of Australia’s international obligations of itself will not be a matter justiciable at the suit of a private citizen[306]. However, where a party has standing to complain about the acts of the executive Gummow J said that the matter should be analysed by reference to whether the court was being asked to undertake a function which was[307]:
“ an extension of the court’s true function [ie judicial] into a domain that does not belong to it, namely the consideration of undertakings and obligations depending entirely on political sanctions.”
[emphasis added]
- This
perhaps takes one back to the notion that the issue, at least the primary issue,
is one not of discretion, but one inherent in
the nature of the judicial
process[308].
- This
would seem to be a narrower characterisation than that of either Bowen CJ or
Wilcox J in Peko, resting on the entirety of the matter as
political[309], such
as to deny the dispute in its context the character of a
“matter”.
- However,
Gummow J also suggested a role for discretion involved in the grant of equitable
relief in the public law injunction and
declaration[310].
To the extent that the constitutional or prerogative writes are discretionary,
similar considerations may arise there. This should
be seen as distinct from
the more problematic course of deciding not to exercise jurisdiction if there is
a “matter”
presented for
disposition[311].
- This
analysis provides a two-stage framework for analysis, as did the approach of
Wilcox J in Peko, but, for federal judicial review, it provides a
framework conformable with the Constitution and the exercise of federal
jurisdiction. It is not appropriate merely to state that some questions are not
“justiciable”.
Rather one asks whether there was a
“matter” in respect of which the claimant had standing. There will
be no such matter
if the dispute is about an entirely political question; but
there will be if there is an allegation of exceeding the authority conferred
by
s 61. If there is a matter, bound up with that will be the question of
standing. Even if all these aspects are present so as to engage
the judicial
power of the Commonwealth, considerations of the kind mentioned by Bowen CJ and
Wilcox J in Peko and Brennan J in Baker v Carr may affect the
discretion to grant the relief.
- If
I may respectfully suggest, the impact or relevance of these questions of
political or international questions, at least in the
exercise of federal
jurisdiction, should be approached in the way suggested by Gummow J and, I would
have thought, differentially
by reference to the particular issues raised and
the relief sought. For instance, there may be a world of difference as to
whether
there is a matter for which the applicant has standing or in respect of
which relief should be given between a claim that a decision
of the executive
was made without according someone natural justice and a claim that the decision
was perverse or Wednesbury unreasonable. The latter might well be a real
intrusion into entirely political questions, which the former may not be.
Equally,
the existence or not of a real threat to property or rights (depending
on their character) to ground quia timet relief may transform
circumstances into a matter. If there were no threat from a decision of Cabinet
to affect immediately an otherwise
recognisable and justiciable right of a
party, an application to restrain Cabinet from making a decision without
according natural
justice may be seen as no more than an attempt to interfere in
the process of an elected government making policy – and so
not a matter
under ch III of the Constitution, and a subject in respect of which there would
be no standing of the party concerned.
- The
process of assessment as to what is justiciable is partly intuitive, and
certainly value laden. It is also partly historical.
This is shown by the
prerogative of mercy The grant of
mercy[312] and
pardon were aspects of the historical prerogative. However, are they to be
viewed today as affecting the rights of a prisoner
and on a basis similar to the
English early release case, especially if it is alleged that the decision has
been activated by an
improper purpose? Or is the notion of mercy different from
the sentencing function, as being personal and something to which
“rights”
do not adhere? The distinction perhaps raises the question
whether in modern times the singular right to act on such personal conceptions
as mercy is not now to be seen as an exercise of political power within the
legal framework of sentencing and the administration
of justice. The argument
to the contrary is strong. Just as the Sovereign in Council had this power, so
the leaders of a democratic
nation or polity should have it as an act of
political will based on considerations within the breast of the leaders of the
polity.
This is what Greig J was referring to in Burt v Governor
General[313]
when he referred to the “unique extra-legal, extra-judicial and
extraordinary
power”[314].
I will return to this shortly.
- In
Everett[315]
the decision to refuse a passport was held to be reviewable, lacking any
“policy” element. Taylor LJ referred to “high
policy”[316]
and illustrated the phrase by reference to making treaties, making law,
dissolving Parliament, mobilising the armed forces, not granting
or refusing
passports.
- The
judgmental nature of the enquiry is perhaps illustrated by the manner of
disposition of a number of English cases dealing with
the prerogative on
treaties and mercy since the courts began to view the prerogative as more open
to review. In Blackburn v
A-G[317] the
Court of Appeal had little difficulty in refusing to question the treaty making
power in circumstances where a declaration was
sought that the signature to the
Treaty of Rome would be unlawful as a surrender of sovereignty. In Ex parte
Molyneaux[318] a
challenge to the implementation of the Anglo Irish Agreement of 1985 was dealt
with by Taylor J (ex tempore) on the basis of the lack of merit in the
arguments put forward (though it should be said, in short order) that there was
a fetter
placed on the Secretary of State and that there was a conflict with a
provision of the Anglo-Irish Acts of Union. Though Taylor
J did say that it was
not the function of the courts to enquire into the exercise of the prerogative
in entering into such an agreement
on the choice of method of implementation,
Hadfield[319] has
taken from the manner of disposition on the merits a greater willingness of the
courts to look at the merits of arguments which
previously would have been
clearly protected. I doubt this. The matter was despatched ex tempore
and the lack of reference to Blackburn is probably a function of brutal
despatch, rather than considered omission. Also, it does not seem to have been
cited in argument.
In Ex parte
Rees-Mogg[320]
judicial review of the decision of the Foreign Secretary to sign the
Maastricht Treaty was sought by a member of the House of Lords
with an interest
in constitutional affairs. The arguments were, relevantly, that by execution of
the Treaty domestic law in the
United Kingdom had been altered, without the
intervention of Parliament, and that by signing the Treaty part of the Royal
prerogative
was being transferred to Community institutions without
parliamentary authority. The arguments were dealt with on their merits,
but in
the context of the recognition of Blackburn which had recently been
affirmed in the House of Lords in J H Rayner (Mincing Lane) Ltd v Department
of Trade[321].
- Greater debate has taken place in relation to pardons and mercy. The grant or pardon is not a judicial act in the sense that it leaves the conviction untouched[322]. The pardon remitts the consequences of the crime. It is an extension of “grace and mercy”[323]. In 1971, in Hanratty[324], Lord Denning had said this prerogative was unreviewable. In 1994, in Bentley[325], a Divisional Court engaged in a species of judicial review. Bentley was hanged in 1953, aged 19. A policeman had been shot by his 16 year old accomplice while both were engaged in a criminal enterprise. He was convicted of murder. The jury recommended mercy. Despite widespread protests and contrary advice of civil servants, Bentley was hanged. His sister campaigned for 40 years for a posthumous pardon for him. The Home Secretary refused the pardon on the basis of a policy, long in place, that free pardons should only be issued in cases of moral and technical innocence. The statement of Lord Roskill in CCSU[326] that the prerogative of mercy was not reviewable was put to one side as obiter. Hanratty was put to one side as pre-CCSU and not concerned with the notion of justiciability used in CCSU. The Court relied on the comments of the New Zealand Court of Appeal in Burt[327] that the power was not beyond judicial reach. Cooke P, Gault and McKay JJ there said[328]:
There is nothing heterodox in asserting, as counsel for the appellant do, that the rule of law requires that challenge shall be permitted in so far as issues arise of a kind with which the courts are competent to deal. ... In the end the issue must turn on weighing the competing considerations, a number of which we have stated. Probably it cannot be said that any one answer is necessarily right; it is more a matter of a value or conceptual judgment as to the place in the law and the effectiveness or otherwise of the prerogative of mercy at the present day. In attempting such a judgment it must be right to exclude any lingering thought that the prerogative of mercy is no more than an arbitrary monarchical right of grace and favour. As developed it has become an integral element in the criminal justice system. A constitutional safeguard against mistakes.
- The
English Divisional Court accepted this. What was to be examined was whether the
nature and subject matter of the decision was
amenable to the judicial
process[329]. It
was a question of the nature of the complaint and what was known about the
decision. Thus, it was concluded that some aspects of the prerogative of
mercy were amenable to the judicial process. The development of what aspects
and to what degree was
left to future cases. The court clearly considered that
the policy of successive Home Secretaries failed to deal with all aspects
of the
available mercy. Other types of pardons, other than a “free” pardon
could have been considered. In a sense,
the “jurisdiction”
available to the Home Secretary had not been fully exercised. Recognising the
delicacy of the matter,
the court refused to make orders or declarations, but
“invited” the Home Secretary to look at the matter again, expressing
its views as to the merits fairly strongly. This reticence to grant relief may
betray a lingering intuitive recognition of the nature
of the power, not mere
courtesy.
- Later, in 1996, the Privy Council [330] in Reckley[331] held that the exercise of mercy (in respect of a capital crime) under the constitution of the Bahamas was not subject to judicial review. The Privy Council applied de Freitas v Benny[332] where Lord Diplock said, amongst other things, in delivering the judgment of the Privy Council[333]:
At common law this has always been a matter which lies solely in the discretion of the Sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion. Mercy is not the subject of legal rights. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy. In tendering his advice to the Sovereign the Home Secretary is doing something that is often cited as the exemplar of a purely discretionary act as contrasted with the exercise of quasi-judicial function.
- Bentley
and Burt were put aside as not concerned with capital punishment and
“no assistance was derived from them”.
Doody[334]
was distinguished as dealing effectively with rights of the prisoner in the
sentencing regime.
- Thus,
there is plainly room for debate as to what is justiciable or what should form
the basis of any exercise of discretion not to
grant
relief[335].
Political considerations, policy, high policy, or foreign relations,
consideration of matters for which the courts have no judicial
means of
assessment, the degree to which rights of a party whether as to custody or human
rights or other are affected, the context
in which the matter arises and the
relief sought will all play a part in what is probably best described in most
circumstances, absent
rules such as act of state, as a value judgment.
The Relationship Between Justiciability and the Clothing of the Executive With Wide Authority
- There
is also an important connection between these questions of justiciabilty,
deference and discretion and any debate about the
legitimacy of the clothing of
the executive with very wide authority.
- The High Court in Enfield has recognised the deference due to at least some kinds of executive fact finding. Relevant to the assessment of the appropriateness and extent of such deference was “the field in which the tribunal operates”[336]. The perceived “legitimacy” of Parliament allowing the executive to form an opinion about a matter as free as possible from judicial supervision will be likely to be greater the closer the subject matter of the opinion comes to an area within which the courts lack manageable standards to judge the issue, or which by tradition and custom are seen to be the exclusive domain of the Crown or the executive. Further, the context in which the “matter” arises is, it seems to me, vital. Professor McMillan has argued[337] that in the Tampa case the nature of the action of the executive, its setting and timing, the difficulty of fashioning a remedy and the plaintiffs’ position made it a non-justiciable dispute. It seems to me the primary difficulty with that proposition is that the primary claim sought was a writ in the nature of habeas corpus[338], in relation to people within Australian territorial waters. The issue was raised on appeal on the question of costs where Black CJ and French J said[339]:
The Commonwealth, it was said, was exercising an aspect of executive power central to Australia’s sovereignty as a nation. The litigation was “... therefore an interference with an exercise of executive power analogous to a non-justiciable ‘Act of State’”. The proposition begs the question that the proceedings raised. That question concerned the extent of executive power and whether there was a restraint on the liberty of individuals which was authorised by the power. It is not an interference with the exercise of executive power to determine whether it exists in relation to the subject matter to which it is applied and whether what is done is within its scope. Even in the United Kingdom, unencumbered by a written constitution, the threshold question whether an act is done under prerogative power is justiciable. See Re Ditfort; Ex parte DCT (1988) 19 FCR 347; 83 ALR 265 per Gummow J at FCR 368-9 ...
- The
question might be different, however, if the restraint or action was being
undertaken outside Australian territory or territorial
waters[340].
- Also, one of the arguments underlying the opposition to the widening of executive power in the manner discussed earlier, is based on the inability of the executive to found its exercise of power on its own opinion of a necessarily existing constitutional fact. Thus, as Fullagar J said in the Communist Party case[341]:
power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.
- To the extent that the jurisdictional fact is a constitutional fact or a fact upon which the lawful operation of legislation depends, its existence cannot be removed from judicial review. Dixon CJ, McTiernan and Webb JJ in Hughes and Vale Pty Limited v New South Wales (No 2)[342]:
[U]nder the rigid federal Constitution of the Commonwealth a provision is not valid if it would operate to withdraw form the courts of law, and so ultimately from this Court, the decision of any question as to the consistency of a statute or an executive act with the Constitution. So far as facts are concerned, the point is covered by the succinct statement of Williams J: “it is clear to my mind that it is the duty of the Court in every constitutional case to be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation.”: Australian Communist Party v Commonwealth[343]. It is unnecessary to add that the correctness of the legal basis upon which the operation of the legislation depends likewise must be for the determination of the Court. If legislation is framed so that its consistency with s 92 would depend upon the opinion of an administrative officer as to fact or law it cannot be upheld.
- However,
if a decision maker has in fact decided that the “lighthouse”
exists, the courts may be constrained in the constitutional
and jurisdictional
review of that factual issue by reference to the deference referred to in
Enfield or, by the difficulty of finding manageable standards upon which
to decide the question, or by questions of the evidential effect
of statements
by the executive of a certain
kind[344], such as
statements by the executive as to matters of status of foreign
powers[345], or
statements that the interests of Australia would be or not be served by a
certain
course[346].
- The
place within this area of constitutional or jurisdictional fact finding for
questions of deference and non-justiciability was
touched on in Queensland v
The
Commonwealth[347].
The remarks there reinforce the importance of the competent authority of the
executive to judge such questions as “outstanding
universal cultural
value.” In such factual areas embodying matters of opinion and degree, it
may be that the existence of
the constitutional or jurisdictional fact will be
assessed not by the making of a curial judgment on the question, but by
assessing
whether it was reasonably open for such a finding to be
made[348].
- This
relationship between the subject matter at hand and the existence or degree of
judicial review can be seen in R v Secretary of State; Ex parte
Nottinghamshire County
Council[349]
where judicial review was sought as to the report of the Secretary of State,
laid before and approved by, the House of Commons, setting
guidelines for public
expenditure by local authorities. Lord Scarman saw the issue as political and
non-justiciable, but did leave
room in an exceptional case for judicial review
– if a prima facie case of bad faith, or an improper motive, or the
decision was so absurd that he must have taken leave of his senses. This can be
seen in the context of the judgment as more
attenuated than
Wednesbury[350],
and comes close to Hickman.
- The implicit place of a given legal theory in the debate not only as to the width of available power to the executive, but also as to the notions of non-justiciability can be seen in the comments by TRS Allan[351] on Reckley and related issues. In speaking of the prerogative of mercy he said[352]:
Now, the exercise by ministers of unfettered power in their relations with the private citizen is radically inconsistent with constitutional principle: the notion of a purely administrative or discretionary act that determines a citizen’s fate, without recourse to legal safeguards, is a flagrant contradiction of the rule of law. The principle of equality that forbids unjustified discrimination between persons is absolute; and the denial of enforceable rights of procedural fairness and due process therefore leaves the prerogative of mercy open to abuse without any constitutional justification. No proper exercise of a valid legal power, whether in a person’s favour or against him, can accurately be called a ‘departure from the law’: there is no distinction between leniency in the present context and any other case in which a person’s treatment is subject to ministerial discretion. If the constitution grants the prisoner recourse to the executive to relieve him of the ordinary consequences of a criminal conviction, he is entitled to precisely the same quality of impartial consideration and treatment as would be accorded any other citizen in similar circumstances. The criteria for the grant or denial of a pardon must be as capable of justification, in terms of the general interest, as those which govern the allocation or distribution of any other public benefit or good: it cannot be denied on arbitrary or capricious grounds. Thr prisoner must therefore be treated fairly in accordance with those criteria, an obligation whose fulfilment would normally be assisted by considering his representations, enabling him to make his case for clemency.
...
No one, even if convicted of serious crimes, should in any circumstances be subject to the unfettered discretion of a public official, or be dependent on grace or favour, bestowed on idiosyncratic grounds, and vulnerable to personal antagonism or caprice. The prerogative of mercy is wrongly so called: there is only prerogative of justice, exercised by, or under the close supervision of, the Queen’s courts.
...
Where the most important interests of the citizen are at stake, the executive should be required to meet the highest standards of fairness and rationality. To treat a decision about the execution of a prisoner as a matter of unfettered discretion is a betrayal of the rule of law in a context where its demands are especially onerous. It is quite mistaken to seek to identify a field of executive power whose nature makes it unsuited to judicial review: the correct approach is always to examine the requirements of equality and procedural fairness, as they apply in the context of the decision-making process in question. Where important issues of public policy arise for which the ‘political’ branches must take responsibility, the courts must be careful to ensure that the requirements of fairness do not operate to deprive ministers or officials of their legitimate freedom of decision and action. The proper balance between individual right and public interest can only be determined, however, by analysis and argument: it cannot be obtained by wielding the blunt tool of ‘justiciability’, or designating heads of governmental power as inherently ‘political’.
- The
emboldened passages exemplify the standards against which these assertions are
made. Whilst dealt with elsewhere in his work,
the contents of the phrases such
as “the rule of law”, “unjustified discrimination”,
“procedural fairness
and due process” and the balance of the
paragraph have within them the elements of the justiciability of every act of
the executive
affecting persons in a way demanding equality, predictability,
rationality and fairness. If the law mandates such an approach in
all
circumstances the source of that approach must be found within the fabric of
the Constitution. The task is not one of assertion, but textual constitutional
analysis, assisted by the exposure and application of any relevant
legal
postulate against which to assess and interpret that text.
- The development of the law in this area poses important questions as to method and approach. The answers to questions as to whether there are aspects of a dispute which take it outside the concept of a “matter” or which are such as to otherwise require an exercise of a judicial discretion not to award relief are not likely to be arrived at entirely by the application of syllogistic logic. The element of will and choice inherent in the determination of such questions is apparent from the subject matter involved. That this is so makes it all the more important, it seems to me, that the approach to the resolution of the questions be informed by the recognition that analysis should be shorn of assertion and the recognition that the exercising of control over some executive functions may (perhaps inevitably when recognised rights are affected) draw the judicial arm close to, if not into, the political process.[*]
[1] In Plaintiff S157 of 2002 v The Commonwealth of Australia and In re the Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 heard 3 and 4 September 2002 and reserved.
[2] I leave to one side what might be a debate as to whether the phrase “privative clause” is a misnomer in this context. Subsection 474(1) is in the following terms:
A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
[3] “All systematic thinking about legal theory is linked at one end with philosophy and, at the other end, with political theory.”
[4] Eastern Trust Company v McKenzie Mann & Co Limited [1915] AC 750, 759 (P.C.)
[5] As to the enforcement of court orders and the role of the executive in aid thereof, see New South Wales v Commonwealth [1932] HCA 7; (1932) 46 CLR 155, 185. (Like the Pope (now) the courts have no divisions.)
[6] See Renfree The Executive Power of the Commonwealth of Australia (Legal Books, 1984). As to the lack of an accepted definition, see Davis v The Commonwealth [1988] HCA 63; (1988) 166 CLR 79, 92-3 and 107 and M Sunkin and S Payne The Nature of the Crown: A Legal and Political Analysis (Oxford 1999) pp 78-87.
[7] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Limited [1970] HCA 8; (1970) 123 CLR 361, 389-97 per Windeyer J.
[8] Evatt The Royal Prerogative (Law Book Co, 1987) p 7; s 61 of the Constitution see n. 13
[9] See Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, 494 at [70] and [71]; Ryder v Foley [1906] HCA 61; (1906) 4 CLR 422, 432-33; see the instructions to various State governors referred to in Hogg “Judicial Review of Action by the Crown Representative” (1969) 43 ALJ 215; and see the Australia Act 1986 (Cth) and The Australia Act 1986 (UK)
[10] Dicey defined the prerogative as “the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown.”; and see [141] and ftnt 243, below.
[11] See generally Evatt op.cit. n. 8 pp 7-17
[12] See E Kantorowicz The King’s Two Bodies; A Study in Mediaeval Political Theology (Princeton 1981) and especially Chs III and IV; JN Figgis The Divine Right of Kings (Harper 1965); and Holdsworth A History of English Law (3rd Ed) Vol 4 pp 18-9, 192-9; (2nd Ed) vol 6 pp 11-31, 203-301
[13] Section 61 is in the following terms:
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
[14] For example, Re Ditfort; Ex parte DCT (1988) 19 FCR 347, 369 (per Gummow J); Ruddock v Vadarlis [2001] FCA 1329; (2001) 183 ALR 1, 48 [179] per French J.
[15] “Today we study the day before yesterday, in order that yesterday may not paralyse today, and that today may not paralyse tomorrow.” Maitland Collected Papers vol (iii) pp 438-9; cited in Shannon Roman Law in the Modern World (Rothman 1993 Ed) vol 1 p11; and see Sunkin and Payne op.cit. n. 6 pp 101 ff
[16] Burmah Oil Company (Burma Trading) Ltd v Lord Advocate [1964] UKHL 6; [1965] AC 75, 99-100 (per Lord Reid); and Davis v The Commonwealth, supra at 92-3 and 107
[17] Evatt op. cit. n. 8 pp 29-31
[18] [1938] NSWStRp 9; (1938) 38 SR (NSW) 195, dealing with the Crown prerogative of copyright in State Acts of Parliament.
[19] [1940] HCA 13; (1940) 63 CLR 278, dealing with Crown priority over other creditors.
[20] (The Seas and Submerged Lands case) [1975] HCA 58; (1975) 135 CLR 337, dealing with ownership of, and sovereignty over, the sea bed.
[21] See generally Hogg Liability of the Crown (2nd Ed) pp 210 ff, and such cases as Townsville Hospitals Board v Townsville City Council [1982] HCA 48; (1982) 149 CLR 282; and Superannuation Fund Investment Trust v Commissioner of Stamps [1979] HCA 34; (1979) 145 CLR 330; and the related, but distinct, questions as to the meaning of State and Commonwealth for the purposes of the Constitution and the Judiciary Act 1903 (Cth), as to which see State Bank of NSW v Commonwealth Savings Bank [1986] HCA 62; (1986) 161 CLR 639 and DCT v State Bank of NSW [1992] HCA 6; (1992) 174 CLR 219.
[22] As set out in Renfree op. cit. n.6 p 395. Of course, many of these topics have been the subject of statute.
[23] R v Kidman [1915] HCA 58; (1915) 20 CLR 425, 440-45; Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 188, In re Neagle [1890] USSC 136; 135 US 1 (1885) and Renfree op. cit.n. 6 pp 457-61
[24] As to all of which see Renfree op. cit. n. 6 pp 466-69.
[25] Ruddock v Vadarlis [2001] FCA 1329; (2001) 183 ALR 1
[26] Farey v Burvett [1916] HCA 36; (1916) 21 CLR 433, 452
[27] Zines Commentary on Evatt op. cit. n. 8 p C6
[28] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168; Commonwealth v Tasmania (The Tasmanian Dams Case) [1983] HCA 21; (1983) 158 CLR 1
[29] Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273
[30] The Convention on the Rights of the Child which was ratified by Australia in 1990 and entered into force for Australia on 16 January 1991.
[31] Teoh, supra at 304; Mason CJ and Deane J did not deal with the point as it had not been the subject of argument: Teoh, supra at 292.
[32] Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 182 CLR 24, 39-42
[33] As to parens patriae doctrine, see Beverley's Case [1598] EngR 5; (1603) 4 Co Rep 123b; 76 ER 1118; Fitz-Herbert's Natura Brevium (9th Ed) 1794 [232]; Chitty Treatise on the Prerogatives of the Crown 1820 p 155; Seymour 'Parens Patriae and Wardship Powers: Their Nature and Origin' (1994) 14 Oxford Journal of Legal Studies 159; Carter 'The Origins of the Doctrine of Parens Patriae' (1978) 27 Emory Law Journal 195; Abramowicz 'English Child Custody Law, 1660-1839: The Origins of Judicial Intervention in Paternal Custody' (1999) 99 Columbia Law Review 1344; Eve, by her Guardian ad litem, Fitzpatrick v Mrs E 1986 CanLII 36 (SCC); [1986] 2 SCR 388, 407-417 per La Forest J; Secretary, Department of Health and Community Services (NT) v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218; Wellesley v Duke of Beaufort [1827] EngR 268; (1827) 2 Russ 1; 38 ER 236 and on appeal Wellesley v Wellesley (1828) I Bligh NS 124; [1827] EngR 268; 4 ER 1078; In re X (a Minor) [1975] Fam 47, 51, 57, 60; Pomeroy A Treatise on Equity Jurisprudence (5th Ed) (1994 Reprint) Vol 4 pp 869 ff
[34] Gaudron J imposed the obligation not only on the government (the executive) but also the courts.
[35] See Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281 at [113] to [115]; and cf Re Ditfort, supra at 369.
[36] See Renfree op.cit. n. 6 pp 395-400
[37] Zines op.cit. n. 27 pp C4 - C6
[38] See [132] ff below
[39] As to this, see [87] ff below
[40] [2001] FCA 1329; (2001) 183 ALR 1
[41] See in particular A-G v De Keyser’s Royal Hotel Ltd [1920] UKHL 1; [1920] A.C. 508; Théberge v Laudry (1876) 2 App Cas 102, 106; Woolley v A-G of Victoria (1877) 2 App Cas 163, 167-168; The Odessa [1916] 1 AC 145, 162; Jamieson v Downie [1923] AC 691, 694; R v Secretary of State; Ex parte Northumbria Police Authority [1989] 1 QB 26; R v Secretary of State; Ex parte Fire Brigade Union [1995] UKHL 3; [1995] 2 AC 513; and see generally Sunkin and Payne op. cit. n. 6 pp 106 ff
[42] [1935] HCA 72; (1935) 54 CLR 12
[43] [1974] HCA 20; (1974) 131 CLR 477; and see Goldring “The Impact of Statutes on the Royal Prerogative” (1974) 48 ALJ 434
[44] [1975] HCA 4; (1975) 132 CLR 164
[45] Deynzer v Campbell [1950] NZLR 790, 824-25;
[46] Simpson v Attorney-General [1955] NZLR 271
[47] A-G for New South Wales v Butterworth and Co (Australia) Ltd [1938] NSWStRp 9; (1938) 38 SR (NSW) 195.
[48] 183 ALR at 52 [193]
[50] citing Gummow J in Re Ditfort, supra at 369
[51] [1974] HCA 20; (1974) 131 CLR 477 at 488; see also French J 183 ALR at 49 [184]
[52] See, in particular, 183 ALR at [64].
[53] [1995] UKHL 3; [1995] 2 AC 513
[54] ibid at 547
[55] 2:1 in the Court of Appeal; 3:2 in the House of Lords
[56] Though, extended by the power able to be deduced from the establishment and nature of the Commonwealth as a polity: Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 187-88; Davis v The Commonwealth, supra at 93.
[57] Bonanza Creek Gold Mining Co Ltd v R [1916] 1 AC 566, 587; and Davis v The Commonwealth, supra at 93; but see the different opinions expressed in Victoria v The Commonwealth (The Australian Assistance Plan Case) [1975] HCA 52; (1975) 134 CLR 338 as to the executive power of spending moneys appropriated by Parliament.
[58] Renfree op. cit. n. 6 pp 410 ff
[59] Davis v The Commonwealth, supra at 93
[60] The Commonwealth v Colonial Combing, Spinning and Weaving Co (The Wooltops case) [1922] HCA 62; (1922) 31 CLR 421. The extent of the executive power to contract, whether derived from the prerogative, or otherwise from the Constitution, is a topic in itself. See generally JDB Mitchell The Contracts of Public Authorities (1954): P W Hogg Liability of the Crown (2nd Ed) pp 159-177.
[61] Brown v West (1990) 169 CLR 195
[62] Barton v The Commonwealth [1974] HCA 20; (1974) 131 CLR 477
[63] Davis v Commonwealth, supra at 93-4
[64] See for example JJ Doyle “1947 Revisited the Immunity of the Commonwealth from State Law” in Lindell (ed) Future Directions in Australian Constitutional Law pp 47-72
[65] Joseph v The Colonial Treasurer [1918] ArgusLawRp 47; (1918) 25 CLR 32
[66] Seas and Submerged Lands Act case [1975] HCA 58; (1975) 135 CLR 337.
[67] [1947] HCA 26; (1947) 74 CLR 31, 79-81; but see Barwick CJ in Victoria v Commonwealth [1971] HCA 16; (1975) 122 CLR 353, 380-83; Commonwealth v Cigamatic Pty Ltd [1962] HCA 40; (1962) 108 CLR 372; and Re Residential Tenancies Tribunal of New South Wales; Ex parte the Defence Housing Authority (1997) 190 CLR 410.
[68] I leave crime to one side.
[69] See [132] ff below
[70] South Australia v The Commonwealth [1962] HCA 10; (1962) 108 CLR 130; and cf State Bank of New South Wales v Commonwealth Savings Bank of Australia (1985) 60 ALR 73
[71] Northern Territory v Mengel (1995) 185 CLR 307; Three Rivers DC v Bank of England (No 3) [2000] UKHL 33; [2000] 3 All ER 1; Sanders v Snell (1998) 198 CLR 329
[72] See generally Brennan “Liability in Negligence of Public Authorities: The Divergent Views” in Donoghue v Stevenson and the Modern Law of Negligence – the Paisley Papers at pp 79-115; Allars “Tort and Equity Claims Against the State” in PD Finn (Ed) Essays on Law and Government (Vol 2) pp 49-100, esp pp 52-86.
[73] Otherwise than in the sense that the specific conduct in the specific circumstance was directly authorised by statute.
[74] See, in particular: Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424; Northern Territory v Mengel (1995) 185 CLR 307, 352-53 and 359-60; Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330; Romeo v Conservation Commission (1998) 192 CLR 431; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1; and Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
[75] See [132] ff below
[76] See Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, 527 and 538 per Gleeson CJ (in dissent).
[77] By way of selection: Goff and Jones Restitution (5th Ed); Mason and Carter Restitution Law in Australia; Birks An Introduction to the Law of Restitution; Zimmermann The Law of Obligations; Jackman Varieties of Restitution; Grantham and Rickett Enrichment and Restitution; Burrows The Law of Restitution; Jaffey The Nature and Scope of Restitution; Beatson The Use and Abuse of Unjust Enrichment; and Finn (Ed) Essays on Restitution
[78] Pavey & Matthews Pty Limited v Paul [1987] HCA 5; (1987) 162 CLR 221, 256-57; Australian & New Zealand Banking Group Limited v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662, 673; and David Securities Pty Limited v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353, 375
[79] Woolwich Equitable Building Society v IRC [1993] AC 70; Commissioner of State Revenue v Royal Insurance Australia Ltd [1994] HCA 61; (1994) 182 CLR 51; and see generally K. Mason “Money Claims By and Against the State” in Finn (Ed) Essays on Law and Government Vol 2 at pp 101 ff.
[80] State Bank of NSW v FCT (1995) 132 ALR 653
[81] A-G for New South Wales v Quin (1990) 170 CLR 1, 26
[82] Quin at 35
[83] Quin at 35-36; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73]
[84] Quin at 35-7
[85] [2002] 1 HKLRD 561 (Final Court of Appeal, which included Sir Anthony Mason)
[86] Corporation of the City of Enfield v Development Assistance Commission [2000] HCA 5; (2000) 199 CLR 135
[87] From Chevron USA Inc v Natural Res Def Council, Inc [1984] USSC 140; 467 US 837 (1984) which held that subject to statute, courts should accord deference to reasonable administrative interpretation by agencies of ambiguous statutory provisions.
[88] Port Arthur Shipbuilding Co v Arthurs [1969] SCR 85; Metropolitan Life Insurance Co v International Union of Operating Engineers Local 796 [1969] INSC 127; [1970] SCR 425; and Bell v Ontario Human Rights Commission [1971] SCR 756
[89] Canadian Union of Public Employees Local 963 v New Brunswick Liquor Corporation [1979] 2 SCR 227; and see L’Heureux-Dubé “The ‘Ebb’ and ‘Flow’ of Administrative Law on the ‘General Question of Law’” in M Taggart (Ed) The Province of Administrative Law.
[90] By which I mean statutes such as the Administrative Decisions (Judicial Review) Act 1977 (Cth). I leave aside the source of the power of the courts – whether common law or statutory: see Kneebone “What is the Basis of Judicial Review?” (2001) 12 PLR 95
[91] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 – a qualification important for the discussion at [87] ff below.
[92] Craig, supra at 179
[93] Craig, supra at 179. This “list” is not exhaustive: Yusuf, supra at 21 [82].
[94] Though sometimes expressed as “authority to decide”: Jackson v Sterling Industries [1987] HCA 23; (1987) 162 CLR 612, 627, this needs to be seen in the light of the importance of non-colourable assertion of claims that the matter is within the court’s authority to deal with. The task is adjudication and decision, not just decision.
[95] Craig, supra at 179-80
[96] especially 184 CLR at 176-80
[97] [1968] UKHL 6; [1969] 2 AC 147
[98] Finn Vol 3 Aust. J. of Admin Law 179, though cf Allars 24 Fed L R 235, 250; and see Allars “Chevron in Australia: A Duplicitous Rejection?” (2002) Admin L.R 569, 572-73; cf Eshugbayi v Nigeria [1931] UKPC 37; [1931] AC 662, 670
[99] Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194, 208-9
[100] A tribunal, by orthodox jurisprudence by reference to Ch III and the judicial power of the Commonwealth; but one which would plainly be characterised as quasi-judicial.
[101] Coal and Allied, supra at 208-9
[102] [1947] NSWStRp 24; (1947) 47 SR (NSW) 416 at 420
[103] referring to R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243
[104] referring to R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243
[105] referring to R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 432.
[106] Coal & Allied, supra at 209; to be contrasted with the view of Kirby J at 226-30
[107] As to which, see generally the discussion in Enright Federal Administrative Law (2001) p 377.
[108] CFMEU v AIRC [1999] FCA 847; (1999) 164 ALR 73 at [63] to [71] (Full Court); and see Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 9; (1999) 198 CLR 334 at [145]; though for a contrary view see Edwards v Giudice [1999] FCA 1386.
[109] As in Craig itself, since Kirby J at [80] did see in the Act a contemplation that some errors of law would be within jurisdiction; and see the examples of dissents as to this question given by Kirby J in Craig at ftn 184: R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 at 373 per Mason J; at 383 per Deane J; at 392 per Dawson J; Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393 at 398; [1987] HCA 27; 72 ALR 1 at 11 per Brennan J; at 399 and 23 per Deane J; Public Service Association (SA) v Federated Clerks’ Union [1991] HCA 33; (1991) 173 CLR 132 at 152-153 per Deane J; at 165-165 per McHugh J
[110] At least within the federal sphere, though Kable is relevant here.
[111] See Craig, supra at 179
[112] The “sphere” within which there exists a privilege to bind even though some error or irregularity has occurred: Rubenstein Jurisdiction and Illegality (1965) at p 18.
[113] See in this context Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; and cf Nakkuda Ali v Jayaratne [1951] AC 66, 75.
[114] cf R v Gray; Ex parte Marsh [1985] HCA 67; (1981) 157 CLR 351, 371 per Brennan J.
[115] [1999] VSCA 37; [1999] 2 VR 203 at [27]
[116] Other courts have made sharper, more categoric use of the curial/administrative distinction: see Aronson and Dyer Judicial Review of Administrative Action (2nd Ed) p 172 ftnt 109 and cases there cited.
[117] See Aronson and Dyer op. cit. p 169; and Dalgety Wine Estates Pty Limited v Rizzon [1979] HCA 41; (1979) 141 CLR 552, 574-75; but of course, as Aronson and Dyer themselves point out, this was the case in Anisiminic itself.
[118] See generally Eshetu v Minister for Immigration [1999] HCA 21; (1999) 197 CLR 611.
[119] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-56; and see Minister v Rajamanikham [2002] HCA 32.
[120] See Enfield, supra at 154-56; and see Allars “Chevron in Australia: a Duplicitous Rejection?” pp 585-87
[121] With the exception of course of certiorari for non-jurisdictional error of law, on the face of the record, as to which see generally: Shawe and Gwynne “Certiorari and Error on the Face of the Record” (1997) 71 ALJ 356
[122] Meagher, Gummmow and Lehane Equity: Doctrines and Remedies (3rd Ed) 1992 pp 539-41
[123] Meagher et al op. cit. pp 531 ff
[124] s 75(v) of the Constitution, Meagher et al op. cit. pp 621-22
[125] s 39B(1) of the Judiciary Act; Meagher et al op. cit. pp 622 ff
[126] Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) HCA 49; (1998) 194 CLR 247; Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] HCA 11; (2000) 200 CLR 591, 611
[127] Bateman’s Bay, supra at 257; Enfield, supra at 157-58
[128] Bateman’s Bay , supra at 202; Truth About Motorways, supra at 611
[129] Bateman’s Bay, supra at 263, 270
[130] See the use of the expression in this context in Bateman’s Bay, supra at 257 [25].
[131] For example, Aimsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564.
[132] Eastern Trust Company v McKenzie Mann & Co Limited supra at 759; and see also P & C Cantarella v Egg Marketing Board [1973] 2 NSWLR, 383-4 (per Mahoney J, as he then was, sitting at first instance)
[133] [1912] HCA 69; (1912) 15 CLR 333, 342
[134] LNC Industries Ltd v BMW (Aust) Ltd [1983] HCA 31; (1983) 151 CLR 575
[135] [1983] HCA 31; (1983) 151 CLR 575
[136] [1929] HCA 36; (1929) 42 CLR 582, 585-6
[139] See generally Aronson and Dyer op. cit. pp 651-52
[140] Administrative Decisions (Judicial Review) Act 1989
[141] Judicial Review Act 1891 (Qld)
[142] Judicial Review Act (Tas)
[143] Administrative Law Act 1978 (Vic)
[144] See Aronson and Dyer op. cit. pp 20-22
[145] Discussion Paper Project No 95 see p 27
[146] See Supreme Court Act 1935 (SA), s 29; Supreme Court and Civil Procedure Act 1932 (Tas), s 11; Supreme Court Act 1995 (Qld) , s 246; Supreme Court Act 1970 (NSW), s 65
[147] CDJ v VAJ (1998) 197 CLR 172, 201; Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404, 421; PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301, 313 and 316; Knight v FP Special Assets Ltd (1992) 174 CLR 178, 185, 202-3 and 205; FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, 283-84 and 290; David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265, 275-76; Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114, 136-37; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 81; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 56-7; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 586-87; Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184, 201; Commonwealth v SCI Operations Pty Ltd [1998] HCA 20; (1998) 192 CLR 285, 301; Eastman v R (2000) 203 CLR 1 at [81]; Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270 at [17]; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591, 605 at [30]; and Gerlach v Clifton Bricks Pty Ltd (2002) 188 ALR 353, 357 at [14].
[148] S 75(v) and s 39B(1); subject to the above comments on par 39B(1A)(c)
[149] See R v Panel on Takeovers and Mergers; Ex parte Datafin plc [1986] EWCA Civ 8; [1987] QB 815
[150] See P Craig “Public Power and Control over Private Power” in M Taggart The Province of Administrative Law pp 196-216; Forbes v NSW Trotting Club Ltd [1979] HCA 27; (1979) 143 CLR 242; C Harlow “‘Public’ and ‘Private’ Law: Definition without Distinction” (1980) MLR 241 K Mason “The Rule of Law” in Finn (Ed) Essays on Law and Government Vol 1 p 125
[151] (1990) 26 FCR 39, 43,
[152] “an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit” ...(emphasis added)
[153] As to apparent bias in an administrative context see Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352; Webb v R [1994] HCA 30; (1994) 181 CLR 41; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70; Ebner v Official Trustee in Bankruptcy ([2000] HCA 63; 2000) 205 CLR 337; and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [95] to [105] and [177] to [187];
[154] Eaton v Overland [2001] FCA 1834
[155] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 629; Roderick v AOTC [1992] FCA 596; (1992) 39 FCR 134, 145; Johns v Release on Licence Board (1987) 9 NSWLR 103; Bromby v Offenders’ Review Board (1990) 51A Crim R 249, 269, 277; Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550, 552; and NIB Health Funds v PHIAC [2002] FCA 40; (2002) 115 FCR 561, 83-86
[156] Hot Holdings Pty Limited v Creasy [1996] HCA 44; (1996) 185 CLR 149
[157] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
[158] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 341-342
[159] Covering clause 5 of the Constitution:
This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.
[160] As to which see s 106 of the Constitution.
[161] S 76(ii) of the Constitution and ss 30, 39 and 39B of the Judiciary Act 1903 (Cth)
[162] There may be a consequence in damages, nevertheless: see [38] above.
[163] See generally Durham Holdings Pty Limited v New South Wales (2001) 205 CLR 399.
[164] see [17] above.
[165] See the Communist Party case 258-61 per Fullagar J; Shrimpton v The Commonwealth [1945] HCA 4; (1945) 69 CLR 613, 629-30 per Dixon J; see Gerlach v Clifton Bricks (2002) 188 ALR 353, 371 per Kirby and Callinan JJ; and even in the context of the defence power: Dawson v The Commonwealth [1946] HCA 41; (1946) 73 CLR 157
[166] Which, within limits, are based on purpose.
[167] Communist Party case at 258
[168] [1945] HCA 53; (1945) 70 CLR 598, in particular 614-18; and see Colonial Bank of Australasia v Willan [1874] UKLawRpPC 8; (1874) LR 5 PC 417, 442.
[169] In particular R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387; see the review of these cases by the Full Court of the Federal Court in NAAV & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; and for a reconciliation of the judgments therein see Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108, (per Sackville J) and approved in NABM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294 and NAAQ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 300. An application for special leave in NAAV has been filed.
[170] The content of bona fides in this context involves an ‘honest’ attempt to deal with the subject matter: Murray, supra at 400 per Dixon J, see also Daihatsu Australia v FCT [2001] FCA 588; (2001) 184 ALR 576 at [36]
[171] R v Murray; Ex parte Proctor, supra; and NAAV supra.
[172] The words used in Hickman, which have been utilised in s 474 of the Migration Act and other legislation were: “the decision of a Local Reference Board shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever.”
[173] To the extent that the court was the High Court.
[174] See NAAV, supra
[175] See subs 474(1) above.
[176] See generally Goldsworthy The Sovereignty of Parliament (Oxford, 1999) Ch 1; and see Lord Bingham of Cornhill “The Old Despotism” (1999) 33 Israel L.R. 169
[177] Woolf “Droit Public – English Style” [1995] P.L 57, 67-71
[178] Laws “Law and Democracy” [1995] P.L 72, 81-93
[179] Sedley “Human Rights: a Twenty-First Century Agenda” [1995] P.L 386
[180] New Zealand Drivers Association v New Zealand Road Carriers [1982] 1 NZLR 374, 390; Fraser v State Services Commission [1984] 1 NZLR 116, 121; Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, 398; Te Runangao Wharekauri Dekohu Inn v A-G [1992] NZCA 503; [1993] 2 NZLR 301; Cooke “Fundamentals” (1988) NZLR 158
[181] Though see Goldsworthy op. cit. n.176 for a discussion as to whether this view of pre-1688 recognition of the limitations on Parliament is valid.
[182] Coke CJ in Bonham’s Case (1610) Co Rep 113b
[183] Hobart CJ in Day v Savadge (1614) Hob 85, 97
[184] Lord Wright in Liversidge v Anderson [1941] UKHL 1; [1942] AC 206, 260-61; Lord Reid in Pickin v British Railway Board [1974] UKHL 1; [1974] AC 765, 782; and in Madzimbamuto v Lardner – not – Burke [1968] UKPC 2; [1969] AC 645, 723; Lord Templeman in R v Secretary of State for The Environment; Ex parte Nottinghamshire CC [1985] UKHL 8; [1986] 1 AC 240, 265; Willes J in Lee v Bude & Toorington Railway [1871] UKLawRpCP 50; (1871) LR 6 CP 576, 582. Lord Irvine of Lairg “Judges and Decision – Makers: The Theory and Practice of Wednesbury Review” [1996] P. L 59, 60-62, 75-78; and see Forsyth “Of Figleaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review” (1996) 55 CLJ 122; and see Goldsworthy op. cit.
[185] Pound An Introduction to the Philosophy of Law (Yale Rep 1982) p l; Stone The Province and Function of Law (1950) ch VIII; Friedmann Legal Theory chs 7 to 14
[186] Dixon Jesting Pilate p 102; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129, 151-52; see also the detailed discussion of the issue of the supremacy of Parliament in BLF v Minister for Industrial Relations (1986) 7 NSWLR 372 esp Street CJ and Kirby P.
[187] Australian Capital Television Pty Limited v The Commonwealth (1992) 177 CLR 106; Nationwide News Pty Limited v Wills [1992] HCA 46; (1992) 177 CLR 1; Theophonous v Herald & Weekly Times Ltd (1994) 184 CLR 104; Stephens v W. A. Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211; Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272; Lange v ABC [1997] HCA 25; (1997) 189 CLR 520; and see generally Williams Human Rights Under the Australian Constitution ch 7; Kirk “Constitutional Implications” Parts I and II (2000) 24 Melb U LR 645, (2001) 25 Melb U LR 24; Kirk “Constitutional Guarantees, Characterisation and the Concept of Proportionality” (1997) 21 Melb U LR 1
[188] Not at the will of Parliament in s 76
[189] Zines “Constitutional Aspects of Judicial Review of Administrative Action” (1998) 1 Constit Law & Policy Review 50
[190] [2000] HCA 33; (2000) 202 CLR 629
[191] See Residual Assco at 652-62. The other members of the Court did not find this issue necessary to deal with. Though it was dealt with later in the year in Re Macks
[192] Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158
[193] at 177-78
[194] at 185
[195] at 209-221
[196] at 235-41
[197] at 247-50
[198] at 274-280
[199] For example the question of the extent of the aliens power: Re Patterson; Ex parte Taylor (2001) 182 ALR 657
[200] Communist Party Case at 193; Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 196 (McHugh J). Though it might be said that the deployment of the phrase “the rule of law” in this way is to beg the question of the identification of the legal or political philosophy which is to give context to the phrase, since, without that, the phrase may only mean the organisation of public power: see Friedmann and Benjafield Principles of Australian Administrative Law (2nd Ed 1962) pp 17-8; and K. Mason “The Rule of Law” in Finn (Ed) Essays on Law and Government Vol 1 pp 114 to 143
[201] See [132] ff below.
[202] See [132] ff below.
[203] Though cf Liveridge v Anderson, supra.
[204] The role of privative clauses in industrial and tax legislation is well known. But there is generally a regime of appeal otherwise available.
[205] De Tocqueville, Oeuvres completes, 14th ed. (1864), vol. Viii, 445-457 – quoted in Dicey’s The Law of the Constitution, 9th ed. (1939), 186-187.
[206] Similar considerations, to a degree, seem to underlie the views of the minority in Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510
[207] See below at [132] ff in respect of justiciability.
[208] I accept that “arbitrarily” and “capriciously” in these two juxtaposed examples may mean different things.
[209] Accepting as I have said elsewhere that the phrase, to a degree, masks, rather than illuminates, the debate.
[210] (2001) 205 CLR 399 though dealing with the authority of State Parliament; and see Winterton “Justice Kirby’s Coda in Durham” (2002) 13 Pub. L R 165; and “Constitutionally Entrenched Common Law rights: Sacrificing Means to Ends?” in Sampford and Preston (eds) Interpreting Constitutions (1999)
[211] cf Gleeson CJ in Eshetu, supra
[212] R v Ministry of Defence; Ex parte Smith [1995] EWCA Civ 22; [1996] QB 517, 533
[213] R v Secretary of State; Ex parte Nottinghamshire County Council [1985] UKHL 8; [1986] AC 240 and R v Secretary of State; Ex parte Hammersmith and Fulham London Borough Council [1991] UKHL 3; [1991] 1 AC 521. See also [191] below.
[214] See [95] above
[215] See R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, 430, and see the emphasised words in Craig at [47] above
[216] See Abebe, supra
[217] See generally in relation to this section Lindell “The Justiciability of Political Questions: Recent Developments” in Lee and Winterton (Eds) Australian Constitutional Perspectives; Lindell “Judicial Review of International Affairs” in Opeskin & Rothwell (Eds) International Law and Australian Federalism (1997); Zines Commentary in Evatt op. cit. at C25 - C 34; Williams “Justiciability and Control of Discretionary Power” in Taggart Judicial Review of Administrative Action in the 1980s; B Hadfield “Judicial Review and the Prerogative Powers” in Sunkin and Payne op. cit. pp 197-232; and TRS Allan Constitutional Justice (Oxford 2001)
[218] British South Africa Co v Companhia Moçambique [1893] UKLawRpAC 53; 1893] AC 602
[219] Companhia Naviera Vascongado v SS Cristina (The Cristina) [1938] AC 485
[220] See generally Cook v Sprigg [1899] UKLawRpAC 44; [1899] AC 572; and see [154] ff below
[221] As to the position in the United Kingdom see generally Sunkin and Payne op. cit. pp 202 ff
[222] [1917] HCA 38; (1917) 23 CLR 510, 544
[223] [1919] AC 696, 706
[224] [1930] HCA 48; (1930) 43 CLR 386, 411
[225] In ch xxiv of his thesis: see Evatt op.cit. ch xxiv
[226] Zines Commentary to Evatt op. cit. at C26-C27
[227] (1931) 46 CLR 72, 129
[228] Australian Communist Party v The Commonwealth, supra at 178-79
[229] Those cases were discussed by Mason J in R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 222-23. As to the issue of judicial review of action by the Crown representative as at 1969, see Hogg “Judicial Review of Action by The Crown Representative” (1969) 43 ALJ 215.
[230] Zines Commentary to Evatt op.cit. p C28
[232] [1978] HCA 43; (1978) 142 CLR 1
[233] See generally Byrne and Heydon Cross on Evidence ch. 14; though see the importance of Cabinet confidentiality in South Australia v O’Shea (1987) 163 CLR 378, discussed below.
[234] See Evatt op. cit. p 31 and see [14] above
[235] [1981] HCA 74; (1981) 151 CLR 170
[236] R v Toohey, supra at 219-222
[237] [1982] HCA 26; (1982) 151 CLR 342; see also CREENDZ Inc Governor General [1981] 1 NZLR 172; and South Australia v O’Shea (1987) 163 CLR 378
[238] per Mason J
[239] per Aickin and Brennan JJ
[240] See also Lord Denning in Laker Airways v Department of Trade [1977] 1 Ch 643, 705, with whose views Mason J in R v Toohey agreed.
[241] (CCSU) [1985] AC 374
[242] Lords Scarman, Diplock and Roskill
[243] Wade “Procedure and Prerogative in Public Law” (1985) 101 LQR 180; Sunkin and Payne op. cit. pp 83-85
[244] CCSU, supra at 418
[245] ibid at 408-409
[246] As to which see generally R. E Barkow “More Supreme Than Court? The Fall of The Political Question Doctrine and the Rise of Judicial Supremacy” (2002) 102 Columbia L.R. 237. The political question doctrine should not mislead by its name. Questions of politics intrude, as they always have, into the business of the Supreme Court and the High Court.
[247] 5 U.S (1Cranch) 137, 170 (1803)
[248] at 166
[249] at 170
[250] See in particular Coleman v Millar [1939] USSC 115; 307 US 433 (1939) and Colegrove v Green [1946] USSC 119; 328 US 549 (1946)
[251] For example Rutledge J in Colegrove v Green, supra at 565; and see Ramirez de Arellano v Weinberger [1984] USCADC 384; 745 F (2d) 1500 (1984) at 1521-1533, 1560-1566
[252] [1962] USSC 42; 369 US 186 (1962)
[253] at 210
[254]at 211
[255] at 213
[256] at 214
[257] at 215
[258] at 216
[259] at 217
[260] at 211-2
[261] [2000] USSC 70; 531 US 70 (2000)
[262] [2000] USSC 72; 531 US 98 (2000)
[263] Colegrove v Green, supra at 554; though, as Barkow points out, the question of non-justiciability was not argued.
[265] ibid pp 931-32
[266] [1897] USSC 197; 168 US 250, 252 (1897)
[267] 246 US 297, 304 (1918); said by Brennan J in Baker v Carr to have been stated too broadly, see [149] above.
[268] [1964] USSC 48; 376 US 398 (1964)
[269] at 938
[270] [2000] 1 AC 61
[271] Underhill v Hernandez, supra at 252
[272] Kirkpatrick & Co v Environmental Tectonics Corp International [1990] USSC 11; 110 S.Ct. 701
[274] at [26]
[275] at [113]
[276] R v Secretary of State; Ex parte Pierson [1997] UKHL 37; [1998] AC 539 and In re Findlay [1985] 1 AC 318, 332-33.
[277] R v Home Secretary; Ex parte Doody [1993] UKHL 8; [1994] 1 AC 531, 557; R v Secretary of State; Ex parte Venables [1997] UKHL 25; [1998] AC 407; and in Australia see South Australia v O’Shea, supra.
[278] [1999] UKHL 43; [2000] 2 AC 326
[279] ibid at 381
[280] [2001] UKHL 47; [2001] 3 WLR 877
[281] at [26] – [28]
[282] at [31]
[283] at [31]
[284] at [49] to [54]
[285] Renault v Zhang [2002] HCA 10; (2002) 187 ALR 1, at [76] where British South Africa Co v Companhia de Moçambique [1893] UKLawRpAC 53; [1893] AC 602 and Potter v BHP Co Ltd [1906] HCA 88; (1906) 3 CLR 479 were reserved for future consideration.
[286] A-G (UK) v Heinemann Publishers Australia Pty Limited [1988] HCA 25; (1988) 165 CLR 30, 47
[287] [1994] HCA 32; (1994) 181 CLR 183
[289] The claim succeeded at first instance (1986) 70 ALR 523
[290] Bowen CJ at 278, Sheppard J at 280 and Wilcox J at 300-301
[291] Though, of course, not under the AD(JR)Act.
[292] 15 FCR at 278-79
[293] at 279
[294] at 281
[295] in CCSU at 408-9, and set out at [143] above, referred to by Wilcox J at 306
[296] Peko, supra at 304
[297] Peko supra at 307
[299] at 387
[300] at 387
[301] at 387-8
[303] [1962] USSC 42; 369 US 186, 211 (1962)
[304] See the discussion in Re Ditfort at 368
[305] As was Lord Diplock’s analysis CCSU and Marshall CJ’s approach in Marbury v Madison
[306] Re Ditfort supra at 370, citing Tasmanian Wilderness Society v Fraser [1982] HCA 37; (1982) 153 CLR 270, 274
[307]Re Ditfort at 370
[308] Buttes at 932; and Marshall CJ see [144] and [145] above
[309] Such as a “contract” between governments within the federation which was intended to be dealt with by political means (South Australia v The Commonwealth [1962] HCA 10; (1962) 108 CLR 130, 141) or between the Australian and foreign governments (Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 138-39).
[310] Re Ditfort at 371; and see [146] and ftnt 251 above; and see the discussion of the relationship between equity and public law in Bateman’s Bay.
[311] See Lindell “The Justiciability of Political Questions: Recent Developments” at pp 218 ff dealing with the duty to exercise judicial review.
[312] Hanratty v Lord Butler (1971) 115 (1) Sol. J 386; Burt v Governor-General [1992] NZCA 225; [1992] 3 NZLR 672; Reckley v Minister of Public Safety (No 2) [1996] UKPC 1; [1996] 1 AC 527 (P. C. an appeal from the Bahamas); but see below at [179] ff
[313] [1988] NZHC 279; [1989] 3 NZLR 64
[314] ibid at 74; but see the Court of Appeal [1992] NZCA 225; [1992] 3 NZLR 672, 678, 681, post [179]
[315] R v Secretary of State; Ex parte Everett [1988] EWCA Civ 7; [1989] 1 All ER 655
[316] ibid
[319] op. cit. 217
[320] R v Secretary of State; Ex parte Rees Mogg [1994] QB 552
[321] [1990] 2 AC 418, 449-500
[322] R v Foster [1985] 1 QB 115, 127
[323] ibid at 126-7
[324] supra n. 312
[325] R v Secretary of State; Ex parte Bentley [1994] QB 349
[326] supra at 418
[327] [1992] NZCA 225; [1992] 3 NZLR 672
[328] at 678, 681
[329] [1994] QB 349, 363
[330] Comprising Lord Keith of Kinkel, Lord Goff of Chieveley (who delivered the judgment), Lord Browne-Wilkinson , Lord Hoffmann and Sir Michael Hardie Boys
[331] Reckley v Minister for Public Safety [1996] UKPC 1; [1996] AC 527
[332] [1975] UKPC 12; [1976] AC 239
[333] ibid at 247
[334] supra n 277
[335] See R v Secretary; Ex parte Fire Brigades Union supra, referred to at [26] above.
[336] Enfield, supra at 154
[337] “The Justiciability of the Government’s Tampa Actions” (2002) 13 Pub L.R 89
[338] With, therefore, the concomitant lack of a standing requirement.
[339] 188 ALR 143 at [30]
[340] Such as the “turning back” of Haitian boats outside United States’ waters which were heading towards Florida: see Sale v Haitian Centers Council [1993] USSC 89; 509 US 155 (1993), though no reference was made there to non-justiciability.
[341] supra at 258
[342] [1955] HCA 28; (1955) 93 CLR 127, 165-66; and see Richardson v Forestry Commission (1988) 164 CLR 261, 294 and 341; and Queensland v the Commonwealth [1989] HCA 36; (1989) 167 CLR 232, 239
[343] [1951] HCA 5; (1951) 83 CLR 1 at p 222
[344] See the discussion by Gummow J in RE Ditfort, supra at 368
[345] Bradley v The Commonwealth [1973] HCA 34; (1973) 128 CLR 557, 562; Ffrost v Stevenson [1937] HCA 41; (1937) 58 CLR 528, 549
[346] A-G (UK) v Heinemann Publishers Australia Pty Ltd, supra at 53
[347] supra at 239-42; and at an interlocutory stage before Mason CJ see [1988] HCA 1; (1988) 62 ALJR 143, 145; and see the discussion by Lindell in “The Justiciability of Political Questions: Recent Developments” at 208-211.
[348] Richardson v Forestry Commission, supra at 295-96
[349] [1985] UKHL 8; [1986] AC 240
[350] It has been described as “super-Wednesbury” see [129] and ftnt 212 above. See also R v Secretary of State; Ex parte Hammersmith and Fulham London Borough Council [1991] UKHL 3; [1991] 1 AC 521
[351] Constitutional Justice (Oxford 2001)
[352] ibid 174-75, 176 and 177
[*]1 November 2002 I would like to express my thanks to research assistants at the Court Mr Ian Benson, Ms Lydia Clapinska and Ms Fleur Ramsay and to my associate, Ms Lhasa Morgan, for assistance in research and for their helpful discussion in preparing this paper.