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Finn, Chris --- "The Justiciability of Administrative Decisions: A Redundant Concept?" [2002] FedLawRw 9; (2002) 30(2) Federal Law Review 239

[*] Lecturer in Law, University of Adelaide. Thanks are due to many colleagues both at the Law School, University of Adelaide, and at the Law Program, Research School of Social Sciences, Australian National University, for their thoughtful comments. In particular, John Keeler, Leighton McDonald, Greg Taylor, Christos Mantziaris, Peter Cane and the Rt Hon EW Thomas deserve thanks. The remaining errors must be attributed to the author alone. This article focuses on the justiciability of administrative decisions only. Whilst the author suspects that similar arguments might be made regarding the 'justiciability' of other matters before the courts, these arguments are not explored in this article.

[1] Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935.

[2] Case of Monopolies [1572] EngR 398; (1602) 11 Co Rep 84b; Prohibitions del Roy [1572] EngR 255; (1607) 12 Co Rep 63.

[3] See, for example, the lists of such 'non justiciable' powers provided by Mason J in R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 218-20 (‘R v Toohey’), and Roskill LJ in Council of Civil Service Unions and others v Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935, 956. These are discussed below.

[4] Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218.

[5] See, in particular, Fiona Wheeler, 'Judicial Review of Prerogative Power in Australia: Issues and Prospects' [1992] SydLawRw 32; (1992) 14 Sydney Law Review 432, 442. Wheeler comments that 'the prerogative powers which remain in the hands of the Crown are diverse and the circumstances of their exercise infinitely varied. Whether the subject matter of a prerogative decision presents a barrier to review by the courts is thus a matter for consideration in the circumstances of each individual case'.

[6] Ibid 432. Whilst commenting on recent decisions that '[I]t is the "subject matter" of a prerogative decision which provides the relevant controlling factor', Wheeler criticises blanket immunities at 442, and argues at 451, that 'non-justiciability' should be seen as turning on a more flexible distinction between types of executive decision, ie, between 'a "policy decision" because of its high policy content or essentially political nature, or, on the other hand, as an "individualised decision" determinative of individual rights and involving no (or limited) policy or political factors'. Aronson and Dyer appear to take a similar position in stating, in reliance on the judgment in Peko-Wallsend, that 'a matter tends towards non-justiciability as its "policy" (code for political) content increases, political institutions being more apt sites than the courts for the resolution of complex and competing claims affecting the whole community'. Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 115.

[7] Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25.

[8] Diplock LJ in CCSU [1983] UKHL 6; [1984] 3 All ER 935, 952.

[9] See discussion of this confusion in Geoff Lindell, 'The Justiciability of Political Questions: Recent Developments' in HP Lee and G Winterton, Australian Constitutional Perspectives (1992) 183-6.

[10] Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183.

[11] Ibid 7 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

[12] Her Majesty's Attorney-General In and For the United Kingdom v Heinemann Publishers Australia [1988] HCA 25; (1988) 165 CLR 30.

[13] Ibid 40-41 (Mason CJ, Wilson, Deane, Dawson, Toohey and Gaudron JJ). Brennan J 'generally agreed' albeit on slightly different grounds. Ibid, 48.

[14] Michael Polanyi, The Logic of Liberty: Reflections and Rejoinders (1951) 171.

[15] Lon Fuller, 'The Forms and Limits of Adjudication' (1978) 92 Harvard Law Review 353.

[16] Ibid 395.

[17] Jeffrey Jowell, 'The Legal Control of Administrative Discretion' (1973) Public Law 178–220.

[18] G D S Taylor, 'The Limits of Judicial Review', (1986) 12 New Zealand Universities Law Review 178–203.

[19] Vicki Waye, 'Justiciability' in Vicki Waye and Michael Harris (eds), Administrative Law (1991) 47.

[20] Jowell, above n 17, 213.

[21] Taylor, above n 18, 180.

[22] Waye, above n 19, 49.

[23] Ibid 50.

[24] See, eg, John Allison, 'The Procedural Reason for Judicial Restraint' [1994] Public Law 452, 457.

[25] This fact lies at the heart of objections to mandatory sentencing provisions.

[26] Aronson and Dyer make a very similar point in their discussion of the American 'political questions' doctrine. With respect to the criterion that there must be 'judicially discoverable and manageable standards for resolving the issue' they comment that '[t]he question is wrong, because the courts' job is not to remake that decision. The courts, for example, have long engaged in judicial review of planning decisions, even those they might regard as non-justiciable on the merits. The point is that the courts do not decide these cases on the merits.' Aronson and Dyer, above n 6, 117.

[27] Peko-Wallsend (1987) 75 ALR 218, 224.

[28] The question of subject matter immunities is dealt with below.

[29] Peko-Wallsend (1987) 75 ALR 218, 227. This approach betrays some echoes of the American 'political questions' doctrine. See Baker v Carr, [1962] USSC 48; 369 US 186 (1962).

[30] Sir Anthony Mason, 'Administrative Review: The Experience of the First Twelve Years' (1989) 18 Federal Law Review 122, 124.

[31] Waye, above n 19, 56.

[32] Michael Harris, 'The Courts and the Cabinet: "Unfastening the Buckle"?', [1989] Public Law 251, 279.

[33] Fiona Wheeler, above n 5, 451. See also Aronson and Dyer, above n 6, 115.

[34] Judicial review cases are replete with judicial statements that Ministerial responsibility provides an inadequate form of accountability in the context of the modern administrative State. See, eg, the comments of Bowen CJ in Peko-Wallsend (1987) 75 ALR 218, 223 and Mason J in R v Toohey [1981] HCA 74; (1981) 151 CLR 170, 222.

[35] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 (Mason J).

[36] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168.

[37] Koowarta ibid, 229, quoted by Wilcox J in Peko-Wallsend (1987) 75 ALR 218, 253.

[38] See the approach of Brennan J in Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70.

[39] Diplock LJ in CCSU[1983] UKHL 6; , [1984] 3 All ER 935, 951, quoted by Wilcox J in Peko-Wallsend (1987) 75 ALR 218, 255.

[40] Wednesbury unreasonableness requires 'a decision so unreasonable that no reasonable authority could ever have come to it', per Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 229-30. It is well known that this standard, though seemingly high, has not proven easy to delineate with precision. It is submitted, however, that a court minded to transgress inappropriately into the merits under the guise of 'unreasonableness' review is unlikely to be constrained from doing so by considerations of justiciability.

[41] For a comprehensive study of this doctrine see Lindell, above n 9. See also Sir Anthony Mason 'The High Court as Gatekeeper' [2000] MelbULawRw 31; (2000) 24 Melbourne University Law Review 784. Both discussions focus primarily on the use of the doctrine in constitutional disputes.

[42] Baker v Carr, [1962] USSC 48; 369 US 186 (1962).

[43] Ibid 217.

[44] Aronson and Dyer, above n 6, 116-7.

[45] See McTiernan J in Victoria v Commonwealth, [1975] HCA 39; (1975) 134 CLR 81 ('Petroleum and Minerals Authority Case'); Brennan J in Gerhardy v Brown, [1985] HCA 11; (1985) 159 CLR 70.

[46] Mason, above n 41, 795.

[47] [1985] HCA 11; (1985) 159 CLR 70.

[48] See commentary on this approach in Lindell, above n 9; see also Mason, above n 41.

[49] Ruddock v Vadarlis [2001] FCA 1329; (2001) 183 ALR 1.

[50] Robin Creyke and John McMillan, 'No Place for Dispute in Court', The Australian, 25 September 2001. John McMillan has recently published a more developed version of this argument, see John McMillan, ‘The Justiciability of the Government's Tampa Actions’ (2002) 13 Public Law Review 89.

[51] Ruddock v Vadarlis [2001] FCA 1329; (2001) 183 ALR 1.

[52] Ibid. Para 8 of the judgment summary reads as follows: ‘The judges wish to make it plain that the Court's decision is not, and cannot be, concerned with either the policy or the merits of the Commonwealth's actions. That is a debate for other forums. The questions before the Court are questions of law.’ Ibid 5.

[53] The same distinction appears in other areas of law, eg, tort and estoppel in relation to government. This article confines itself to considering the use of the distinction in relation to the justiciablity of administrative decisions.

[54] Blyth District Hospital Incorporated v South Australian Health Commission (1988) 49 SASR 501 (‘Blyth’).

[55] Shire of Beechworth v Attorney-General (Vic) [1991] VicRp 26; [1991] 1 VR 325 (Vincent J)(‘Beechworth’).

[56] King CJ in Blyth (1988) 49 SASR 501, 509.

[57] Ibid 509-10.

[58] Compare this distinction with the 'policy' and 'operational' distinction put forward by Gummow J in Minster for Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 92 ALR 93.

[59] Vincent J in Beechworth [1991] VicRp 26; [1991] 1 VR 325, 332.

[60] CCSU [1983] UKHL 6; [1984] 3 All ER 935; Peko-Wallsend (1987) 75 ALR 218.

[61] South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378; R v Toohey [1981] HCA 74; (1981) 151 CLR 170, FAI Insurances v Winneke (1982) 151 CLR 342.

[62] R v Toohey [1981] HCA 74; (1981) 151 CLR 170.

[63] Ibid 218.

[64] Ibid 219–20.

[65] CCSU [1983] UKHL 6; [1984] 3 All ER 935, 956 (Roskill LJ).

[66] Coutts v Commonwealth [1985] HCA 40; (1985) 157 CLR 91.

[67] Ibid 98 (Wilson J).

[68] Ibid 105.

[69] Ibid 105 (Brennan J).

[70] Ibid 120 (Dawson J).

[71] Feather v The Queen [1865] EngR 205; (1865) 6 B & S 257, 295[1865] EngR 205; , 122 ER 1191, 1205.

[72] Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268 ('Macrae').

[73] Ibid 282 (Kirby P).

[74] Ibid.

[75] Waters v Acting Administrator (NT) [1993] FCA 604; (1993) 119 ALR 557.

[76] Somewhat ironically, the Acting Administrator at the time was Asche CJ, the same Chief Justice who, in that capacity, had initially recommended the appointment of Mr Waters.

[77] Waters v Acting Administrator (NT) [1993] FCA 604; (1993) 119 ALR 557, 564, 566.

[78] Attorney-General (NSW) v Quin (1990) 170 CLR 1.

[79] Ibid 18 (Mason CJ).

[80] Ibid 33 (Brennan J).

[81] Waters v Acting Administrator (NT) [1993] FCA 604; (1993) 119 ALR 557, 573 (Olney J).

[82] Northern Australian Aboriginal Legal Aid Service v Bradley [2001] FCA 1728 (7 December 2001).

[83] Ibid para 81. The reference to the Northern Territory Supreme Court arises dues to the procedural history of this matter. Olney J had rejected the claim by NAALAS in the NTSC at first instance. That decision was overturned on appeal to the Full Court, on the basis that it was 'fairly arguable' that the allegations of improper purpose were justiciable. Olney J subsequently transferred the matter to the Federal Court.

[84] [1993] FCA 604; (1993) 119 ALR 557. See paras 310-26.

[85] It is difficult to see that public interest immunity has any place in such situations. This immunity was sought unsuccessfully in this case. See Northern Australian Aboriginal Legal Aid Service v Bradley [2001] FCA 1080.

[86] Wheeler, above n 5, especially 460-61.

[87] R v Secretary of State for the Home Department; ex parte Bentley [1993] 4 All ER 442; Lewis v Attorney General of Jamaica [2000] UKPC 35; [2000] 3 WLR 1785. For a discussion of the slow evolution of the Privy Council position on the justiciability of the prerogative of mercy see Justice EW Thomas 'A Critical Examination of the Doctrine of Precedent' in Rick Bigwood (ed), Legal Method in New Zealand (2001) 141 especially 164-74.

[88] See the fascinating decision of the Queen's Bench Division in Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] 2 WLR 1219, where it was held that a power to make ordinances for the 'peace, order and good government' of a territory did not authorise, in the absence of exceptional circumstances, the making of an ordinance for the removal of the entire civil population.

[89] R v Toohey [1981] HCA 74; (1981) 151 CLR 170, 219.

[90] The unlikelihood of such an eventuality is evident.

[91] It is noted that 'ultra vires' doctrines are seen by some commentators as incapable of application to prerogative powers. This is not a view shared by the present writer. Whilst it is true that limits to statutory powers are directly referable to the intent of the legislature, it should be observed that prerogative powers are always susceptible to statutory abrogation. Where this does not occur, it is not unreasonable, and perhaps no more fictitious than other attributions of legislative intent, to suggest that the legislature is content with the existing, albeit broad, limits on the discretionary prerogative power recognised by the common law. These must at least include purposive limits, since it is hardly arguable that prerogative powers exist for no purpose. Equally, some matters would be clearly irrelevant to the exercise of a particular power, just as they would be to the exercise of a broadly expressed statutory power.

[92] For one example of critique of the distinction see Peter Cane, 'Merits Review and Judicial Review: The AAT as Trojan Horse' (2000) 28 Federal Law Review 213. Whilst it is suggested that such critiques are ultimately not persuasive, there is undoubtedly a great deal of work to be done by administrative lawyers and theorists in developing a more perceptive analysis of 'legal error' and untangling it from mere disagreement as to the 'merits' in fact and law of a particular administrative action. That task is left for another day.

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