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Federal Law Review |
In current times, most executive action affecting individuals involves the exercise of powers conferred by or under statute. Administrative lawyers are familiar with the use of judicial review in order to enforce limits placed on such powers by the empowering legislation. Indeed, the development of the modern principles of administrative law over the latter half of the 20th century has largely taken place in a statutory setting. As recent history demonstrates, however, there are circumstances in which an executive government may seek to rely on non-statutory sources of power. The exercise of non-statutory powers will often raise distinct issues in the context of judicial review. The review of non-statutory powers may involve questions concerning the extent to which governmental actions are justiciable, that is, suitable to be examined by the courts. Further, the application of many of the traditional grounds of judicial review can be problematic without the touchstones of validity that are usually provided by statute.
This article discusses the judicial review of non-statutory executive powers in relation to questions of jurisdiction, justiciability, grounds of review and remedies.
Some preliminary points should be noted in relation to the classification and nomenclature of non-statutory executive powers. It is common to refer to such powers as prerogative powers. However, it is necessary to observe several caveats in the use of such terminology.
The conferral of statutory powers has greatly reduced the areas in which prerogative or non-statutory executive powers still operate.[8] Where a statute specifically empowers the Crown to do something which could previously be done under the prerogative, the statute operates to abridge the prerogative, so that it is not possible for the Crown to disregard restrictions, conditions and limitations applicable to the statutory power simply by relying on an unrestricted prerogative power.[9] Accordingly, prerogative powers will generally be superseded by legislation which operates in the same area.[10]
In Ruddock v Vadarlis, however, French J adopted a different approach in relation to executive powers derived from s 61 of the Constitution. Under that approach, a clear and unambiguous legislative intention is required to displace an executive power, particularly in cases where the executive power is of great significance to national sovereignty.[11] The result in that case was that the relevant provisions of the Migration Act dealing with the entry and removal of non-citizens, including specific provisions which had been introduced to protect Australia's borders against unlawful entry by non-citizens, were characterised by French J as 'facultative' and were construed as not evincing an intention to deprive the executive of its non-statutory power to prevent the entry of non-citizens into Australian waters.
Notwithstanding this outcome, the Parliament enacted amendments to the Migration Act which introduced a detailed statutory regime for the exclusion of non-citizens from Australia.[12] However, in an attempt to ensure the continued operation of non-statutory executive powers (such as those recognised by the majority in Ruddock v Vadarlis), the amendments inserted a new s 7A of the Migration Act which provides that:
The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia's borders, including, where necessary, by ejecting persons who have crossed those borders.
It remains to be seen whether such a provision is capable of preserving (or perhaps even reviving) non-statutory executive powers in the face of statutory powers which are conferred subject to express conditions, restrictions and safeguards. Although s 7A asserts a general legislative intention not to abrogate any non-statutory executive powers relating to border protection, it might be argued that this cannot overcome the effect of any specific statutory provisions which are directly inconsistent with the continued existence or availability of such non-statutory powers.[13]
Nevertheless, a provision such as s 7A of the Migration Act raises the possibility that alternative or 'parallel' sources of power might be invoked to support particular executive actions. Such a situation could potentially bring into sharp relief any material differences in the judicial review of non-statutory and statutory powers respectively.
At Commonwealth level, judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act') is confined to decisions which are made 'under an enactment' (or conduct in relation to such decisions). Accordingly, where non-statutory executive actions are the subject of review, it is necessary to identify another source of jurisdiction. The difference in the source of jurisdiction may in turn have some bearing on both the grounds of review and the remedies that are available, although, generally speaking, once a basis for jurisdiction is established the court is 'clothed with full authority essential for the complete adjudication of the matter'.[14]
It should be noted that jurisdiction at federal level is confined to 'matters'.[17] It will therefore be necessary to demonstrate that there is some immediate right, duty or liability to be established by the court's decision.[18] In some cases, this might require an applicant to show that the relevant executive action sought to be challenged affects rights, interests or (perhaps) legitimate expectations. For example, an attempt to challenge a general policy decision made by a government (such as a Cabinet decision) that does not have any immediate legal consequences might fail to meet such a requirement, and therefore not involve a 'matter' over which the court can exercise jurisdiction.[19] However, provided that there is a right, duty or liability in question in the proceedings, there is no constitutional requirement that the opposing parties must have 'correlative interests' in that right, duty or liability.[20] The question whether particular non-statutory executive action is within power (at least where such action is capable of affecting rights and interests) might be sufficient to satisfy the requirement that there be a 'matter', irrespective of the interest of the particular applicant bringing the proceedings.
The interest of the particular applicant can, however, be relevant to the question of standing.[21] It has been recognised that the question of standing in proceedings within federal jurisdiction is closely linked with, and sometimes even subsumed in, the constitutional concept of 'matter' for the purposes of Chapter III of the Constitution.[22] Under the orthodox approach to standing, an applicant would need to demonstrate a 'special interest' (that is, an interest greater than that of a member of the general public) in the subject matter of the proceedings,[23] although there may be a growing tendency towards a more liberal approach to standing requirements for the enforcement of public rights.[24] Further, it has always been clear that some remedies, such as habeas corpus or prohibition, can be sought by 'strangers' who cannot necessarily demonstrate any 'special interest' in the proceedings.[25]
The position in relation to jurisdiction is somewhat different at state level. In general terms, the Supreme Court in each State has jurisdiction to review executive action taken by that State in reliance on non-statutory powers, although in some states the Court's jurisdiction to grant writs of certiorari, mandamus and prohibition has been replaced by jurisdiction to make orders in the nature of such writs.[26] In Queensland, the Judicial Review Act 1991 (Qld) applies not only to decisions made 'under an enactment', but also to decisions made by the State, a state authority or a local government authority under a non-statutory scheme or program involving public funds.[27] In contrast, the Tasmanian legislation more closely mirrors the Commonwealth ADJR Act, and is confined to decisions of an administrative character made under an enactment.[28] In Victoria, a person affected by a decision of a 'tribunal' can apply for an order for review under s 3 of the Administrative Law Act 1978 (Vic). This review jurisdiction is capable of extending to the exercise of non-statutory powers, provided that there is a decision operating in law to determine a question affecting rights or privileges, and the decision-maker is a person who is required 'to act in a judicial manner to the extent of observing one or more of the rules of natural justice'.[29] In other circumstances, an applicant must resort to the general jurisdiction of the Supreme Court under O 56 of the Supreme Court (General Civil Procedure) Rules 1996 (Vic).
One of the most significant issues arising in the review of non-statutory powers is often whether and to what extent the particular exercise of power is justiciable. As discussed below, the question of justiciability is not necessarily confined to prerogative or non-statutory powers, and can also arise in a statutory context. However, the nature and subject-matter of many non-statutory powers, and the absence of any legislative context to indicate limits on the manner in which such powers may be exercised, can create particular difficulties in relation to justiciability.
It has never been disputed that the courts can examine questions concerning the existence and extent of prerogative or non-statutory powers. This has always been a justiciable issue. As Mason J observed in R v Toohey; Ex parte Northern Land Council:
the courts in earlier times took it upon themselves to decide whether a particular prerogative power existed, what was its extent, whether it had been exercised in appropriate form and how far, if at all, it had been superseded by statute.[30]
This fundamental principle stems from the acknowledgement that 'the King hath no prerogative, but that which the law of the land allows him'.[31] It is, of course, well illustrated by the proceedings arising from the Tampa incident, in which both North J at first instance[32] and the Full Court on appeal[33] were prepared to determine whether the executive government possessed a prerogative power to prevent the entry of non-citizens to Australia and to do such things as are necessary to effect such an exclusion, and if so whether any such prerogative power had been abrogated by the provisions of the Migration Act. In a separate judgment on the question of costs, Black CJ and French J tersely rejected a submission that had been made by the Commonwealth that the litigation was not a matter of public interest, but rather constituted 'an interference with an exercise of executive power analogous to a non-justiciable "act of state"':[34]
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: Re Ditford; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 per Gummow J at (368-369) and the general discussion on non-justiciability (at 367-373).[35]
It can be noted that the Tampa proceedings did not directly raise any issues concerning the manner in which the government had exercised its powers, and therefore did not confront the potential objection that those issues were non-justiciable.
Issues of justiciability arise in relation to the review of the manner in which a power is exercised. The traditional view was that the exercise of all prerogative powers was non-justiciable, on the basis that such powers involved an absolute and unlimited discretion.[36] This view was described by Lord Fraser in Council of Civil Service Unions v Minister for the Civil Service (the 'CCSU Case'):
the courts will inquire into whether a particular prerogative power exists or not, and, if it does exist, into its extent. But once the existence and the extent of a power are established to the satisfaction of the court, the court cannot inquire into the propriety of its exercise.[37]
However, the CCSU Case established that prerogative powers are not subject to an absolute immunity from judicial review. The case arose from a challenge to a Ministerial instruction altering the terms and conditions of service for staff at the Government Communications Headquarters, pursuant to which staff would no longer be permitted to belong to national trade unions. The applicant union sought review of the instruction on procedural fairness grounds, complaining that there had been no prior consultation in relation to the instruction. The instruction was issued under powers conferred on the Minister by an Order-in-Council which had been made in the exercise of the Crown's prerogative powers in relation to its civil service (rather than pursuant to an Act of Parliament). The House of Lords held that the fact that the ultimate source of power for the instruction was derived from the prerogative did not prevent judicial review. As Lord Diplock asserted,
I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review.[38]
Rather, it was held that the amenability to review of a particular prerogative power depends on the nature and subject matter of that power. Lord Scarman concluded:
I believe that the law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power... Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.[39]
In the result, however, the House of Lords concluded that national security considerations outweighed any duty of fairness which might otherwise have been owed by the government.
It was implicit in the CCSU Case that many of the important remaining prerogative powers would often be held to be non-justiciable. Some powers which were specifically mentioned as not being subject to judicial review were the power to enter into treaties and the conduct of foreign policy, the defence of the realm and the control of the armed forces, the prerogative of mercy, the dissolution of Parliament and the appointment of Ministers.[40] Such powers are governed by broader policy considerations which are more appropriately entrusted to the political branches of government, and which are unsuited to examination by the courts.[41]
The CCSU Case was followed in Australia by the Federal Court in Minister for Arts Heritage and Environment v Peko-Wallsend,[42] which involved an attempted challenge to a Cabinet decision to nominate Stage 2 of the Kakadu National Park for inclusion in the World Heritage List established under the World Heritage Convention. Chief Justice Bowen endorsed the conclusion reached in the CCSU Case that executive action was not immune from judicial review merely because it was carried out pursuant to a common law or prerogative power.[43] He noted that the inclusion or exclusion of matters from judicial review according to subject matter could raise a question of some difficulty. In that case, the decision of Cabinet was non-justiciable, primarily because it 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'.[44] Both Sheppard and Wilcox JJ adopted similar positions.[45]
Considerations of ministerial responsibility and political accountability may provide some support for a conclusion that a particular exercise of power is non-justiciable. In Peko-Wallsend, Bowen CJ accepted that ministerial responsibility in practice was 'not able to reach down far enough to supervise the detailed dealings of government with members of the public', requiring the courts to maintain some oversight of legality and fairness in the decision-making process.[46] However, he noted that, in deciding whether or not a particular power was justiciable, '[j]udges are conscious of the responsibilities carried by Ministers, of their accountability to Parliament and ultimately to the electors'.[47] To conclude that a power is non-justiciable is often to conclude that it is not suitable or appropriate for determination by the courts. The remedy for any abuse of such a power would lie in the political arena. This is not to say that a matter will be non-justiciable whenever it raises issues that are politically controversial.[48] However, if the considerations which govern the exercise of the power are primarily political in nature, involving diverse and conflicting interests extending beyond the parties to any particular case, the courts are not well placed to apply legal standards to the manner in which the power is exercised.[49] As Laws LJ observed in Marchiori v Environment Agency,[50] in explaining the reasons why 'the law of England will not contemplate what may be called a merits review of any honest decision of government upon matters of national defence policy':[51]
The first, and most obvious, is that the court is unequipped to judge such merits or demerits. The second touches more closely the relationship between the elected and unelected arms of government. The graver a matter of State and the more widespread its possible effects, the more respect will be given, within the framework of the constitution, to the democracy to decide its outcome. The defence of the realm, which is the Crown's first duty, is the paradigm of so grave a matter. Potentially such a thing touches the security of everyone; and everyone will look to the government they have elected for wise and effective decisions. Of course they may or may not be satisfied, and their satisfaction or otherwise will sound in the ballot-box. There is not, and cannot be, any expectation that the unelected judiciary play any role in such questions, remotely comparable to that of government.[52]
Because some non-statutory powers will be exercised at a high level of government — by a Minister, by Cabinet, or by the Crown's representative (in Council) — the elements of ministerial and political accountability which flow from the principles of responsible government will be heightened. However, this will not always ensure that the rights of interested persons will be duly respected, either procedurally or substantively. Accordingly, the fact that a power is exercised by a Minister or by the Executive Council is not in itself sufficient to preclude judicial review.[53] The 'nature and subject-matter' approach allows the court to balance these factors in reaching a conclusion as to whether the power in question, or even a particular exercise of that power, raises issues which are justiciable by way of judicial review. Thus, as Laws LJ went on to acknowledge in Marchiori v Environment Agency:
this primacy which the common law accords to elected government in matters of defence is by no means the whole story. Democracy itself requires that all public power be lawfully conferred and exercised, and of this the courts are the surety. No matter how grave the policy issues involved, the courts will be alert to see that no use of power exceeds its proper constitutional bounds. There is no conflict between this and the fact that upon questions of national defence, the courts will recognise that they are in no position to set limits upon the lawful exercise of discretionary power in the name of reasonableness. Judicial review remains available to cure the theoretical possibility of actual bad faith on the part of ministers making decisions of high policy. In the British State I assume that is overwhelmingly unlikely in practice.[54]
Some other contexts in which it has been held that powers are non-justiciable include the decision by an Attorney-General to present an ex officio information, to enter a nolle prosequi, or to grant or refuse his fiat in relator proceedings.[55] It has also been consistently held that a decision by the Crown's representative to grant or refuse to grant a pardon pursuant to the prerogative of mercy is not subject to judicial review.[56] More recently, however, the Privy Council has indicated that the process involved in the grant of a commutation or pardon might not be completely immune from review by the courts, at least on procedural grounds, in order to ensure that a petition for mercy is considered in a fair and proper manner.[57]
In Thorpe v Commonwealth (No 3),[58] Kirby J considered the extent to which the Commonwealth government was subject to review in relation to its conduct of international relations. He struck out proceedings which, among other things, sought relief which would have required the government to seek a resolution from the General Assembly of the United Nations requesting an advisory opinion from the International Court of Justice on issues relating to the 'genocide' of Aboriginal people. Justice Kirby concluded that the matters in issue involved considerations of which the Court had no knowledge, which defied judicial application, and which were reserved to the executive government. However, he expressly left open the possibility that, in an extreme case, the Court might be able to review whether or not conduct went beyond constitutional limits, notwithstanding that the government sought to support it by reference to the conduct of international relations and external affairs.
Similarly, in Re Ditfort; Ex parte Deputy Commissioner of Taxation,[59] Gummow J accepted that a question as to the character and extent of the Commonwealth's executive powers under s 61 of the Constitution in relation to the conduct of relations with other countries could give rise to a justiciable matter at the suit of an individual whose rights were affected by the exercise of those powers. However, Gummow J distinguished the situation
where the issue is not one of alleged lack of constitutional power, but rather one of the propriety of the conduct by the Executive Government of the Commonwealth of relations with foreign governments within the scope of its constitutional powers in that behalf.[60]
In that situation, the critical questions will be whether there is a 'matter' and whether the applicant has standing. A dispute may not be justiciable where it involves dealings between Australia and foreign states which do not create rights or impose obligations upon individuals, or which involve 'an extension of the court's true function into a domain that does not belong to it, namely the consideration of undertakings and obligations depending entirely on political sanctions'.[61]
In this regard, reference may be made to the recent decision of the Full Court of the Federal Court in Petrotimor Companhia de Petroleos SARL v Commonwealth,[62] where the applicants (the holders of oil exploration concessions granted by Portugal over an area of the Timor Sea) sought to challenge the entry into and implementation of the Timor Gap Treaty between Australia and Indonesia. To the extent that the proceedings involved an examination of the conduct of the Australian government in the area of international relations, and in particular the question whether its actions were consistent with international law, there were significant issues concerning whether such matters were justiciable. Further, the Commonwealth submitted that a decision by the executive defining the territorial boundaries of Australia (including the limits of the territorial sea and continental shelf), like the prerogative power to acquire sovereignty over territory, could not be challenged in the courts.[63] Chief Justice Black and Justice Hill did not find it necessary to decide whether this principle was applicable in the circumstances, but suggested that there might be some scope for judicial review of an exercise of the statutory power (under the Seas and Submerged Lands Act 1973 (Cth)) to declare the limits of the continental shelf.[64] As the applicants' claims would have required a consideration of the validity of the concessions purportedly granted to the applicants by Portugal, the decision in Petrotimor also involved a consideration of the foreign 'act of state' doctrine, under which the courts will not generally adjudicate on the validity of acts or transactions of a foreign sovereign State within that State's territory.[65] A discussion of the 'act of state' doctrine is beyond the scope of the present article, which is primarily concerned with the justiciability of the executive action of a State in its own courts.
In Xenophon v South Australia,[66] the Supreme Court of South Australia rejected a challenge to a decision by the Attorney-General to grant an indemnity to a Minister against whom the applicant had brought defamation proceedings. It was noted that the Crown's power to grant an indemnity was a power shared with any member of the community, and was not governed by any objective policies or criteria by reference to which the Court could judge the legal validity of the Attorney-General's decision. Further, it was noted that the grant of the indemnity did not adversely affect the rights or interests of the applicant or any other individual.
The latter factor was emphasised by Lord Diplock in the CCSU Case, whose approach towards justiciability focused on the effect of the relevant executive action on the rights, interests and legitimate expectations of individuals:
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.[67]
Such an approach reveals that the issue of justiciability may overlap with questions which arise in the context of determining standing to challenge an exercise of prerogative power, and perhaps also (at Commonwealth level) in determining whether the challenge involves a 'matter' for the purposes of Chapter III of the Constitution.
Issues relating to justiciability may also arise in the context of statutory powers which, by reason of their nature and subject matter, are not amenable to judicial review. Thus, the replacement of a prerogative power with a statutory equivalent may not necessarily remove any question in relation to justiciability.[68] As Gibbs and Mason JJ observed in Barton v The Queen,[69] it is not correct to say that the exercise of every statutory power is examinable by the courts. A particular statutory power may confer a discretion which is unlimited by anything but the scope and object of the statute, leaving the decision-maker at large in deciding what course he shall take, and as a consequence making his decision largely immune from judicial review.
In accordance with the principles approved in the CCSU Case, a court must examine each particular non-statutory power to determine whether or not it is justiciable. As several commentators have noted,[70] this does not necessarily mean that each prerogative or non-statutory power must be categorised as either justiciable or non-justiciable in all cases. The preferable approach is for the courts to examine issues of justiciability in the context of the particular exercise of power which is under challenge, and by reference to the grounds on which review is sought. Thus, a prerogative power could be non-justiciable in some circumstances, and yet a particular exercise of that power might still be capable of presenting justiciable issues for determination by the courts. As Clive Walker has noted:
the whole exercise of attempting to cordon off areas of the prerogative by reference to subjectmatter is to be deprecated. ... A better approach would be to leave the whole field of prerogative powers open to review subject to consideration of the difficulties of justiciability, national security or public interest immunity in particular circumstances.[71]
For example, where it is clear that an exercise of a prerogative or non-statutory power directly affects the rights of a particular individual, and turns on considerations personal to that individual, there may be less reason for the courts to decline to examine the manner in which the power has been exercised, particularly where allegations of bad faith or procedural unfairness have been raised.
Most of the authorities in this area are consistent with this approach. For example, in Xenophon v South Australia,[72] while the Court held that the decision by the Attorney-General to grant an indemnity was not reviewable, Bleby J envisaged that it might be possible to review a decision to refuse to grant an indemnity in circumstances where the applicant had a legitimate expectation that an indemnity would be afforded. And in Macrae v Attorney-General (NSW),[73] Kirby P emphasised the 'quite exceptional' circumstances which gave rise to the entitlement to review a decision in relation to the judicial appointments.
Questions of justiciability have arisen in several recent cases in the United Kingdom involving attempts to seek review of executive action in the areas of defence and foreign relations. These cases illustrate the creativity of litigants in attempting to subject executive action in sensitive areas to judicial scrutiny, but also affirm the reluctance on the part of the courts to interfere in areas which are traditionally the responsibility of the executive government.
In Abassi v Secretary of State for Foreign and Commonwealth Affairs,[74] the mother of a British national who was captured by United States forces in Afghanistan, and detained at a United States' naval base at Guantanamo Bay in Cuba, brought proceedings on behalf of her son seeking to compel the British Foreign Office to make representations on his behalf to the United States Government or to take other appropriate action. The Court of Appeal noted that Abassi was being indefinitely detained by the United States executive on territory over which it had total control, in circumstances where he could make no challenge to the legality of his detention before any court or tribunal.[75] As a consequence, the Court accepted that Abassi was being arbitrarily detained in a 'legal black hole', in apparent contravention of fundamental principles recognised by both domestic and international law. Nevertheless, the question raised by the proceedings concerned the conduct of the United Kingdom government in dealing with the United States regarding the protection of one of its citizens.
The Court rejected the proposition that there was no scope for judicial review of a refusal to render diplomatic assistance to a British subject whose fundamental human right were being violated as the result of the conduct of the authorities of a foreign state.[76] The Court noted that every citizen had a legitimate expectation that the government would not 'simply wash their hands of the matter and abandon him to his fate.'[77] However, the nature of that expectation was very limited, and generally required no more than that the government consider making diplomatic representations on behalf of its subject. The Court made it clear that the Secretary of State had a wide discretion as to whether to make any representations in any particular case, and what form any such representations should take, giving full weight to non-justiciable foreign policy considerations. The Court stated that judicial review would be available in an 'extreme case' where the government refused even to consider whether to make representations on behalf of its subject, but also left open the possibility that in some cases the Secretary might be expected to give reasons for his decision, and that in some cases such reasons might be open to attack.[78] In summarising its views, the Court stated:
iii. ... the Foreign Office has discretion whether to exercise the right, which it undoubtedly has, to protect British citizens. It has indicated in the ways explained what a British citizen may expect of it. The expectations are limited and the discretion is a very wide one but there is no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation; but the court cannot enter the forbidden areas, including decisions affecting foreign policy.
iv. It is highly likely that any decision of the Foreign and Commonwealth Office, as to whether to make representations on a diplomatic level, will be intimately connected with decisions relating to this country's foreign policy, but an obligation to consider the position of a particular British citizen and consider the extent to which some action might be taken on his behalf, would seem unlikely itself to impinge on any forbidden area.
v. The extent to which it may be possible to require more than that the Foreign Secretary give due consideration to a request for assistance will depend on the facts of the particular case.[79]
In the result, the Court dismissed the application on the basis that there was evidence that the Foreign and Commonwealth Office had considered Abassi's request for assistance, and that there had been discussions and contact between the United Kingdom and the United States about the situation of British citizens detained at Guantanamo Bay. The Court emphasised that:
On no view would it be appropriate to order the Secretary of State to make any specific representations to the United States, even in the face of what appears to be a clear breach of a fundamental human right, as it is obvious that this would have an impact on the conduct of foreign policy, and an impact on such policy at a particularly delicate time.[80]
In another recent case in the United Kingdom, R (Campaign for Nuclear Disarmament) v Prime Minister,[81] the applicants sought an advisory declaration concerning the meaning of United Nations Security Council Resolution 1441, and in particular whether that resolution authorised States to take military action in the event of non-compliance by Iraq with its terms. The applicant relied on public statements by the Foreign Secretary that the government intended to act in accordance with international law, and argued that the government should have judicial guidance on the question of what international law required. This claim was encapsulated by Simon Brown LJ in the following terms:
In short, the court is being invited to declare that the UK Government would be acting in breach of international law were it to take military action against Iraq without a further resolution. To say the least, it is a novel and ambitious claim.[82]
The Court held that such a claim was non-justiciable, and accepted the government's submission that even requiring it to make a definitive statement of its legal position under international law would be prejudicial to the national interest and to the conduct of foreign policy and international relations. Lord Justice of Appeal Simon Brown concluded:
Were the court even to embark upon a hearing of the substantive issue the government would be placed in an impossible position. In practice it would be forced to adopt and argue its position before the court, the very thing that Mr Ricketts indicates would damage the conduct of our international relations. The objection, in short, is not merely to the court ever granting an advisory declaration, but in addition to the court even embarking on the argument....
The plain fact is that even to argue the substantive issue here, let alone to decide it, would be contrary to the national interest.[83]
In summary, while the fact that an executive power is non-statutory will not render that power non-justiciable or otherwise immunise an exercise of that power from judicial review, the subject-matter of the power and the circumstances of its exercise may nevertheless involve issues which are not amenable to determination by the courts. In determining whether, and to what extent, a particular exercise of a non-statutory executive power is justiciable, the court may take into account both the grounds of review that are relied upon and the relief that is sought in the proceedings.
It is one thing to conclude that the review of a particular exercise of prerogative power is justiciable, but another to ascertain and apply the recognised grounds of judicial review in relation to such a power. Many of these grounds have evolved in the context of statutory powers, and their application often depends to a significant extent on the legislative intention revealed by the terms, scope and object of the relevant statute by which the power is conferred. As Stephen J noted in R v Toohey,[84] statutory powers are seldom, if ever, 'conferred in gross, devoid of purposes or criteria, express or implied, by reference to which they are intended to be exercised.'
Prerogative or non-statutory powers, on the other hand, are more uncertain in content. This may give rise to difficulties in applying many of the traditional grounds of judicial review. As Mason J explained in R v Toohey:
There is, as the commentators have noted, a contrast between the readiness of the courts to review a statutory discretion and their reluctance to review the prerogative. The difference in approach is none the less soundly based. The statutory discretion is in so many instances readily susceptible to judicial review for a variety of reasons. Its exercise very often affects the right of the citizen; there may be a duty to exercise the discretion one way or another; the discretion may be precisely limited in scope; it may be conferred for a specific or an ascertainable purpose; and it will be exercisable by reference to criteria or considerations express or implied. The prerogative powers lack some or all of these characteristics. Moreover, they are in some instances by reason of their very nature not susceptible of judicial review. [85]
Such concerns were echoed by Lord Diplock in the CCSU Case. He noted that an exercise of prerogative power would often be amenable to review on the ground of illegality (that is, ultra vires in the narrow sense) or procedural impropriety. However, while there was no 'a priori' reason to rule out 'irrationality' (for example, Wednesbury unreasonableness) as a ground of review, Lord Diplock stated:
I find it difficult to envisage in any of the various fields in which the prerogative remains the only source of the relevant decision-making power a decision of a kind that would be open to attack through the judicial process upon this ground. Such decisions will generally involve the application of government policy. The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another — a balancing exercise which judges by their upbringing and experience are ill-qualified to perform.[86]
In other words, an attempt to apply some grounds of review in relation to non-statutory executive powers may encounter similar issues to those raised in the context of determining justiciability. In fact, the question whether a proceeding for the review of non-statutory executive action involves justiciable issues must ordinarily be answered by reference to the grounds of review that are invoked by the applicant.
In appropriate circumstances, there would appear to be no difficulty in reviewing an exercise of prerogative or non-statutory power on natural justice grounds.[87] Of course, this assumes for such purposes that the obligations of natural justice can be regarded as 'autonomous' obligations imposed by the common law (albeit subject to displacement by contrary statutory provision), rather than simply the product of an implied legislative intent.[88] Whatever may be the position when reviewing the exercise of statutory powers, it is not possible to justify or explain the judicial review of non-statutory powers as simply the enforcement of express and implied limits imposed on the executive by the Parliament. Similarly, the existence of bad faith in the exercise of a non-statutory executive power, assuming that it can be demonstrated by admissible evidence, should be capable of attracting relief on judicial review.
The position in relation to other grounds of judicial review is less clear. In the context of statutory powers, relief may be granted where an applicant can establish 'jurisdictional error' (that is, a failure to exercise jurisdiction or an excess of jurisdiction) by the repository of the power, for example by identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material.[89] Further, such powers must be exercised for the purposes for which they were conferred. In the context of non-statutory executive powers, assuming that the existence of the relevant power has been established, the concept of excess of jurisdiction may be more difficult to define. In the case of statutory powers, judicial review on the basis of improper purposes, taking into account irrelevant considerations, or failing to take into account relevant considerations rests on the assumption that the purposes for which the power may be exercised, and the considerations which must and must not be taken into account, can be ascertained from the terms of an empowering statute. Where the source of a power is in the prerogative or common law, however, it may be more difficult to identify justiciable 'limits' on power which are capable of enforcement by a court in judicial review proceedings.
The fact that an executive power is non-statutory does not necessarily preclude a court from relying on the common law as a source of implied limitations on power that are analogous to the requirements applicable in relation to statutory powers, for example that the power be exercised for a proper purpose, after having regard to all relevant considerations and no irrelevant considerations, and even that an exercise of power must not be so unreasonable that no reasonable person or body could have so exercised the power. The problem is that the court may have no ready means of determining the content and application of such grounds, and in some cases the nature and subject matter of the non-statutory power may render such an exercise inappropriate. For example, a court will be more cautious in concluding that a decision with a high policy content is unreasonable:
The greater the policy content of a decision, the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. [90]
An unlawful exercise of a prerogative power will attract the court's jurisdiction to grant prerogative (or 'constitutional') writs such as certiorari, prohibition or mandamus, or to give declaratory or injunctive relief. The applicability and utility of such remedies may however need to be addressed in the circumstances of each particular case. For example, the writ of certiorari may not be of much use where the challenged executive action does not involve an operative decision made by an inferior court or tribunal that can be removed into the court and quashed.[91] The writ of mandamus may not be relevant in circumstances where the executive is not under any enforceable duty to exercise a non-statutory power;[92] thus, while it may be possible to prohibit the executive from engaging in ultra vires conduct, and perhaps set aside any decision or action that was beyond power, there may be limited scope for requiring the executive to exercise a non-statutory power or to perform a non-statutory function. While there is some authority that it is not possible to issue prerogative remedies against the Crown's representative (that is, the Governor-General or a Governor),[93] it is likely that such a situation could be effectively dealt with by the grant of declaratory or injunctive relief.
In cases involving allegations of unlawful detention by the executive in reliance on a non-statutory executive power, the most appropriate remedy will be the writ of habeas corpus. The State Supreme Courts retain jurisdiction to grant this remedy, as does the High Court.[94] In relation to the Federal Court, if it does not have jurisdiction to grant the writ of habeas corpus itself, it at least has power to make an order for release in the nature of the writ of habeas corpus.[95]
The nature of the relief available in any particular case may depend to some extent on the basis of jurisdiction invoked. However, as noted above, once jurisdictional basis is established, the court will generally have power to grant all remedies necessary to ensure the complete and final determination of all matters in controversy between the parties.[96]
A court would have power to grant interlocutory relief according to ordinary principles, where an applicant raises a serious issue to be tried and the balance of convenience favours the grant of such relief. Depending on the particular executive action under challenge, the ability to obtain interlocutory relief may be crucial in order to restrain an allegedly unlawful interference with rights and interests. For example, in the proceedings arising out of the Tampa incident, notwithstanding the unprecedented expedition with which the Federal Court heard and determined the proceedings (and the appeal), it was necessary for the Court to grant an interlocutory injunction in order to preserve the status quo, although this injunction was later discharged in the light of an agreement reached between the parties which preserved the applicants' position while addressing the humanitarian needs of the rescuees.[97]
The increasing focus by governments on matters such as national security and border protection may in particular circumstances involve a reliance by governments on non-statutory sources of power,[98] and an increased tension between the executive and the courts over the scope to which such powers may be subject to judicial review. Recent experience both in Australia and overseas throws up some interesting examples.
In the wake of the Tampa incident, the Commonwealth government intercepted several hundred asylum seekers and transported them to places outside the territory of Australia (including Nauru and Papua New Guinea).[99] Those asylum seekers were held in such places for the purposes of processing their claims to refugee status under the Convention relating to the Status of Refugees (‘Refugees Convention’).[100] It remains unclear to what extent Commonwealth officials are involved in any ongoing detention and processing of the asylum seekers. However, if the Commonwealth (or an officer or officers of the Commonwealth[101]) were to detain persons outside the territory of Australia in purported reliance on non-statutory powers, it is likely that the courts of this country would have jurisdiction to consider a challenge to the legality of such detention.[102] The fact that a person is detained outside Australia, including in a foreign country, does not necessarily preclude an Australian court from exercising jurisdiction in respect of that detention, at least where the Commonwealth has effective control over the place of detention and/or over the detainee.[103] Both the High Court and the Federal Court have jurisdiction to grant constitutional writs and injunctions against officers of the Commonwealth, as well as jurisdiction in matters arising under or involving the interpretation of the Constitution. While there might be a question as to whether the writ of habeas corpus can be issued in respect of detention outside the territorial jurisdiction of Australia,[104] it is nevertheless likely that relief in some form would be available against the Commonwealth in respect of any unlawful detention. The relevant question for determination by the Court would be whether s 61 of the Constitution encompasses a non-statutory power to detain aliens outside Australian territory. The non-statutory powers recognised by the Federal Court in Ruddock v Vadarlis would probably not extend to the offshore detention of aliens for the purposes of processing claims to refugee status.
Further questions might be raised by the involvement of Commonwealth officials in making determinations of refugee status in relation to persons in offshore places.[105] Such functions clearly would not involve the exercise of any powers conferred by the Migration Act. In performing these functions, the relevant decision-makers would be applying the Refugees Convention, rather than any specific criteria prescribed by the Migration Act. The outcome of a positive determination would not be the grant of a visa; instead, the person would await resettlement in Australia or another country. The outcome of a negative determination would be that the person may be returned to his or her country of origin. Could an application be brought in an Australian court by or behalf of such a person for review of an adverse determination of refugee status made by a Commonwealth officer?
Finally, it is interesting to consider whether the manner of exercise of the prerogative or non-statutory powers recognised in Ruddock v Vadarlis could be subject to judicial review. The exercise of such powers will often involve high-level considerations relating to international relations, defence and national security. These aspects of an exercise of the powers are likely to be regarded as non-justiciable, and therefore not subject to judicial review. Further, it is unlikely that the exercise of such powers would be subject to the requirements of procedural fairness. However, if the Commonwealth executive sought to exercise its non-statutory powers to exclude or expel non-citizens against a particular individual or individuals, in a manner which involved an element of bad faith or improper purpose, there might be some scope for judicial review.
Judicial review of non-statutory executive powers can give rise to a tension between competing principles. On the one hand, the rule of law requires the courts to review the legality of executive action. On the other hand, the separation of powers precludes the Court from trespassing into matters entrusted or committed to other branches of government.
The fundamental role of the court in judicial review proceedings is to identify and enforce limits on executive power, whether derived from statute, prerogative or the common law. In this way, '[j]udicial review is neither more nor less than the enforcement of the rule of law over executive action'.[106] At Commonwealth level, the entrenched original jurisdiction of the High Court under s 75 of the Constitution 'is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them'.[107] For this reason, it is necessary to maintain the role of courts in supervising the exercise of non-statutory powers by the executive.
However, the scope of review in any particular case must take account of the nature and subject matter of the power relied upon by the executive, and the context in which it is exercised. Some aspects of some non-statutory powers may be non-justiciable, and beyond the proper role of the courts. Ultimately, this is a reflection or application of principles relating to separation of powers, in that the courts' role is confined 'to the exercise of judicial power in relation to issues not properly assignable to other branches of government under the separation of powers and otherwise within the institutional competence of the courts'.[108]
[*] Barrister, Victorian Bar.
[1] AV Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959) 424.
[2] Thus, Blackstone regarded the prerogative as 'that special pre-eminence which the king hath, over and above all other persons, and out of the ordinary course of the common law in right of his regal dignity', and stated that the term 'can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects': William Blackstone, Commentaries on the Laws of England (first published 1765, 3rd ed, 1768) bk I, ch 7, 239. See generally William Wade, Administrative Law (8th ed, 2000) 221–2; Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79, 108 (Brennan J).
[3] See New South Wales v Bardolph [1934] HCA 68; (1934) 52 CLR 455, 474–5 (Evatt J).
[4] This does not mean that the exercise of common law (as opposed to prerogative) powers cannot be the subject of judicial review proceedings. However, unless the executive oversteps some positive constitutional or statutory limit on its powers, the exercise of its common law powers will more often involve questions arising under private law (for example, contract, property or tort).
[5] Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477, 498; see also Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79, 93; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority [1997] HCA 36; (1997) 190 CLR 410, 424 (Brennan CJ), 438 (Dawson, Toohey and Gaudron JJ), 455, 459 (McHugh J), 463–4 (Gummow J).
[6] [2001] FCA 1329; (2001) 110 FCR 491, 538. Compare the recent use of the term 'constitutional writs' in preference to 'prerogative writs' to describe the remedies provided for by s 75(v) of the Constitution: see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 92–3 [20]–[21] (Gaudron and Gummow JJ), 133–6 [138]–[140], 135–6 [144] (Kirby J), 141–2 [165] (Hayne J).
[7] Thus, in Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, 540, 542–3, French J placed primary reliance on 'Australia's status as a sovereign nation' in determining whether there was an executive power to prevent the entry of non-citizens into Australia. Contrast the more historical approach adopted by Black CJ: ibid 496–501. See also Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 368 (Gummow J).
[8] Note also that in some areas, under long-standing constitutional principles, the Crown cannot act without positive authority conferred by statute — in other words, there is no scope for the exercise of non-statutory executive powers. For example, the Crown cannot raise taxes or impose fines or penalties without statute: see eg, Northern Suburbs General Cemetery Reserve Trust v Commonwealth [1993] HCA 12; (1993) 176 CLR 555, 579 (Brennan J), 597–8 (McHugh J); Cam and Sons Pty Ltd v Ramsay [1960] HCA 82; (1960) 104 CLR 247, 258 (Dixon CJ). Further, in general terms, statutory authority is required for the detention of citizens in custody by the executive: see Chu Kheng Lim v. Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1, 13 (Mason CJ) , 19 (Brennan, Deane and Dawson JJ), 67 (McHugh J); Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 528 (Deane J).
[9] Attorney-General v De Keyser's Royal Hotel [1920] AC 508, 526 (Lord Dunedin), 537–40 (Lord Atkinson), 549–50 (Lord Moulton), 561–2 (Lord Sumner), 568–9 (Lord Parmoor); cf Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477.
[10] See, eg, Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, 501–4 (Black CJ dissenting).
[11] Ibid 540–1, 545–6 (French J); cf Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3 [28] (Black CJ and Hill J), in relation to the question whether statute had displaced the non-statutory executive power to define the territorial boundaries of Australia.
[12] Border Protection (Validation and Enforcement Powers) Act 2001 (Cth).
[13] Cf, in relation to inconsistency for the purposes of s 109 of the Constitution, R v Credit Tribunal; Ex parte General Motors Acceptance Corporation [1977] HCA 34; (1977) 137 CLR 545, 563–64.
[14] R v Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452, 465. See also Judiciary Act s 32; Federal Court of Australia Act 1976 (Cth) ss 21–23.
[15] Note that the Federal Magistrates' Court does not have an equivalent jurisdiction. With the exception of jurisdiction under specific enactments (such as s 483A of the Migration Act), its jurisdiction in administrative law matters arises solely under the ADJR Act.
[16] The traditional approach to determining whether a person is an 'officer of the Commonwealth' takes into account a range of factors, such as whether the person is appointed, removable and paid by the Commonwealth: see R v Murray and Cormie; Ex parte Commonwealth [1916] HCA 58; (1916) 22 CLR 437, 452 (Isaacs J), 464 (Higgins J), 471 (Gavan Duffy and Rich JJ).
[17] This limitation would also apply to State courts when exercising federal jurisdiction. Cf Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298.
[18] See Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 265–7; see also Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 524–5 [25] (Gleeson CJ and McHugh J), 555 [118] (Gaudron J), 570 [164] (Gummow and Hayne JJ), 585 [215] (Kirby J); Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372, 388–9 [3]–[4], 396 [25]–[26] (Gleeson CJ), 405–6 [62], 408 [72], 410 [76] (Gaudron and Gummow JJ), 449 [204] (Kirby J), 458–9 [242], 460 [246] (Hayne J); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591.
[19] Cf Thorpe v Commonwealth (No 3) [1997] HCA 21; (1997) 71 ALJR 767, 777–9 (Kirby J).
[20] See Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372, 406–7 [65], [67] (Gaudron and Gummow JJ).
[21] See, eg, the decision of North J at first instance in the Tampa Case, Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; (2001) 110 FCR 452, 482–5, concerning the standing of the applicants to seek an injunction restraining the allegedly unlawful removal of the asylum seekers from Australia.
[22] Croome v Tasmania [1997] HCA 5; (1997) 191 CLR 119, 126–7, 132–3; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247, 262; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591, 610–12 (Gaudron J), 637 (Gummow J), 659–60 (Kirby J).
[23] Australian Conservation Foundation Incorporated v Commonwealth [1979] HCA 1; (1980) 146 CLR 493.
[24] See, eg, Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247, 266 [47], 267 [49]–[51] (Gaudron, Gummow and Kirby JJ), 278–80 [87]–[91] (McHugh J); Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372, 449–50 [206] (Kirby J).
[25] Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591, 599–600 [2] (Gleeson CJ and McHugh JJ), 627–8 [95] (Gummow J), 652–3 [162] (Kirby J), 669–70 [211] (Callinan J); see also Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; (2001) 110 FCR 452, 469 [56]; Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, 509 [66], 518 [107], 530 [153].
[26] See Supreme Court Act 1970 (NSW) s 69; Supreme Court Act 1986 (Vic) s 3(6) and r 56.01 of the Supreme Court (General Civil Procedure) Rules 1996 (Vic); Judicial Review Act 2000 (Tas) s 43; Judicial Review Act 1991 (Qld) s 41.
[27] Judicial Review Act 1991 (Qld) s 4(b).
[28] Judicial Review Act 2000 (Tas) s 4.
[29] Administrative Law Act 1978 (Vic) s 2.
[30] [1981] HCA 74; (1981) 151 CLR 170, 218; see also Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 368 (Gummow J).
[31] Proclamations [1610] EWHC J22 (KB); (1611) 12 Co Rep 74; 77 ER 1352, 1354 (Sir Edward Coke).
[32] Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; (2001) 110 FCR 452.
[33] Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491.
[34] Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229, 242 [30].
[35] Ibid.
[36] See R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 218 (Mason J) (‘R v Toohey’), quoting Blackstone's Commentaries ('In the exertion therefore of those prerogatives, which the law has given him, the king is irresistible and absolute, according to the forms of the constitution': Blackstone, above n 2, 251); see also Fiona Wheeler, 'Judicial Review of Prerogative Power In Australia: Issues and Prospects' (1992) 14 Sydney Law Review 432, 433–5.
[37] [1983] UKHL 6; [1985] AC 374, 398; see also ibid 407 (Lord Scarman). This is analogous to the principle which is applied by courts when examining what takes place in the Parliament, namely that 'it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise': R v Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92 CLR 157, 162 (Dixon CJ); see also Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, 446 [27] (Gaudron, Gummow and Hayne JJ), 460 [66] (McHugh J), 490–3 [133] (Kirby J).
[38] [1983] UKHL 6; [1985] AC 374, 410 (emphasis in original).
[39] Ibid 407.
[40] Ibid 398 (Lord Fraser), 418 (Lord Roskill).
[41] See, eg, Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, 555 [92] (McHugh and Gummow JJ), noting that in Australia the term 'non-justiciability' has been used 'to describe controversies within or concerning the operations of one or other branches of government which cannot be resolved by the exercise of judicial power.'
[42] (1987) 15 FCR 274 ('Peko-Wallsend').
[43] Ibid 277–9.
[44] Ibid 278–9.
[45] Ibid 280–1 (Sheppard J); 298–308 (Wilcox J).
[46] Ibid 277; see also R v Toohey [1981] HCA 74; (1981) 151 CLR 170, 222 (Mason J); FAI v Winneke [1982] HCA 26; (1982) 151 CLR 342, 363–4 (Mason J); Sir Gerard Brennan, 'The Purpose and Scope of Judicial Review' in Michael Taggart (ed), Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 19.
[47] Peko–Wallsend (1987) 15 FCR 274, 278.
[48] See Thorpe v Commonwealth (No 3) [1997] HCA 21; (1997) 71 ALJR 767, 777–79 (Kirby J).
[49] Brennan, above n 46, 20.
[51] Ibid [38].
[52] Ibid.
[53] Cf R v Toohey [1981] HCA 74; (1981) 151 CLR 170; FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342.
[54] [2002] EWCA Civ 03 (25 January 2002), [40].
[55] See Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75.
[56] See, eg, De Freitas v Benny [1976] AC 239; Reckley v Minister of Public Safety and Information (No 2) [1996] AC 527; cf Lewis v Attorney-General of Jamaica [2001] 2 AC 50; Burt v Governor-General [1992] 3 NZLR 672; see also Von Einem v Griffin (1998) 72 SASR 110.
[57] Lewis v Attorney-General of Jamaica [2001] 2 AC 50 [47]–[64].
[58] [1997] HCA 21; (1997) 71 ALJR 767, 777–9.
[59] (1988) 19 FCR 347.
[60] Ibid 369.
[61] Ibid 370.
[63] [2003] FCAFC 3 [9]–[13]; see also New South Wales v Commonwealth ('Seas and Submerged Lands Case') [1975] HCA 58; (1975) 135 CLR 337, 388; Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 31–2. Further, the executive can provide the courts with statements or certificate which are treated as conclusive evidence on certain questions: see Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 368; Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3 [32], [94].
[64] [2003] FCAFC 3 [28]–[31].
[65] See generally Buttes Gas and Oil Co v Hammer [1982] AC 888; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 370–2; cf Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 WLR 1353.
[66] (2000) 78 SASR 251. The High Court refused special leave to appeal on the basis that, quite apart from the questions of standing and justiciability, there were insufficient prospects of success in establishing that the grant of the indemnity was not a proper exercise of power (High Court, Gleeson CJ and McHugh J, 16 August 2001).
[67] [1983] UKHL 6; [1985] AC 374, 408; see also Peko-Wallsend (1987) 15 FCR 274, (Wilcox J).
[68] See, for example, Macrae v A-G (NSW) (1987) 9 NSWLR 268, 281, where Kirby P treated a statutory power to appoint magistrates as a 'prerogative' power. Note, however, that the Court held that the exercise of the power was justiciable in the particular circumstances of that case, and not immune from review on natural justice grounds. Cf North Australian Aboriginal Legal Aid Service Inc v Bradley (2001) 192 ALR 625, 639–642 [65]–[81] (Weinberg J) (‘NAALAS v Bradley’); NAALAS v Bradley [2002] FCAFC 297; (2002) 122 FCR 204, 225 [51] (Black CJ and Hely J).
[69] [1980] HCA 48; (1980) 147 CLR 75, 94; see also Von Einem v Griffin (1998) 72 SASR 110, 129.
[70] Wheeler, above n 36, 473; Clive Walker, 'Review of the Prerogative: The Remaining Issues' [1987] Public Law 62, 71. For a recent discussion of the position in Canada, see Lorne Sossin, ‘The Rule of Law and the Justiciability of Prerogative Powers: A Comment on Black v. Chretien’ (2002) 47 McGill Law Journal 435.
[71] Walker, above n 70, 71.
[72] (2000) 78 SASR 251, 265.
[73] (1987) 9 NSWLR 268, 282.
[74] [2002] EWCA Civ 1598 (6 November 2002).
[75] Ibid 58], [107]. The courts in the United States had dismissed several applications for habeas corpus brought on behalf of detainees at Guantanamo Bay, on the basis that United States courts do not have jurisdiction to consider challenges to the detention of aliens who were held outside the sovereign territory of the United States: see eg, Rasul v Bush; Al Odah v United States, 321 F 2d 1134 (2003). On 10 November 2003, the Supreme Court of the United States agreed to hear an appeal from this decision. Note that, while the Court of Appeals (4th Circuit) has accepted jurisdiction to consider a petition for habeas corpus by an alleged 'enemy combatant' who is an American citizen detained within the United States, it has shown considerable deference to the exercise by the executive of its 'war' powers (under Article II section 2 of the Constitution) to detain persons captured in the course of active military operations, including the determination by the executive that such a person is an 'enemy combatant': Hamdi v Rumsfeld, 316 F 3d 450 (2003).
[76] [2002] EWCA Civ 1598 [80]–[106].
[77] Ibid [98]. This expectation was in part based on leaflets made available by the government to those who travel abroad.
[78] Ibid [104]–[105].
[79] Ibid [106].
[80] Ibid [107].
[81] [2002] EWHC 2759 Admin QB (17 December 2002).
[82] Ibid [2].
[83] Ibid[43], [45]; see also [53]–[55], [59] (Richards J).
[84] [1981] HCA 74; (1981) 151 CLR 170, 204.
[85] Ibid 219.
[86] [1983] UKHL 6; [1985] AC 374, 411.
[87] In particular cases, however, considerations of national security can affect the content of the requirements of procedural fairness or even (as in the CCSU Case) displace such requirements entirely.
[88] See generally Wheeler, above n 36, 463–66; Brennan, above n 46, 26–27; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 585 (Brennan J).
[89] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 352 [82].
[90] R v Ministry of Defence; Ex parte Smith [1996] QB 517, 556 (Sir Thomas Bingham).
[91] See Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372, 462 [253] (Hayne J).
[92] Cf Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 195 ALR 1, 12 [48], 22–3 [100].
[93] See, eg, Banks v Transport Regulation Board [1968] HCA 23; (1968) 119 CLR 222, 241; R v Toohey [1981] HCA 74; (1981) 151 CLR 170, 186 (Gibbs CJ).
[94] In relation to the latter, see Judiciary Act s 3.
[95] See Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; (2001) 110 FCR 452, 468–9; Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, 509 [66], 517–18 [101]–[108].
[96] In relation to the High Court and Federal Court, see Judiciary Act s 32; Federal Court of Australia Act 1976 (Cth) s 22.
[97] Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297; (2001) 110 FCR 452, 460 [30], 466–67 [42].
[98] Of course, the same focus also results in the enactment of legislation in order to confer additional and broader statutory powers on the executive.
[99] The Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) conferred powers to take persons to a place outside Australia: see Migration Act s 245F(9); Customs Act 1901 (Cth) s 185(3A).
[100] Convention relating to the Status of Refugees opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Protocol relating to the Status of Refugees opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[101] At least where acting in the capacity of an officer of the Commonwealth, and not in a personal capacity or as an agent of a foreign state.
[102] Cf the position in the United States, where the courts have to date declined to entertain proceedings to challenge the legality of the detention of foreign nationals at Guantanamo Bay in Cuba: Rasul v Bush; Al Odah v United States, 321 F 2d 1134 (2003). In Abassi v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 [15], the Court of Appeal noted that '[o]n the face of it we find surprising the proposition that the writ of the United States courts does not run in respect of individuals held by the government on territory that the United States holds as lessee under a long term treaty.'
[103] In the proceedings arising out of the Tampa incident, the High Court refused special leave to appeal on the basis that the 'rescuees' had since been taken to Nauru or New Zealand, and were no longer detained on the MV Tampa: High Court (Gaudron, Gummow, Hayne JJ, 27 November 2001). However, the Court was not required to decide whether proceedings could be brought to challenge the legality of any detention of the 'rescuees' on Nauru.
[104] Cf R v Secretary of State; Ex parte O'Brien [1923] 2 KB 361, 381, 391–92, 397–98 (appeal dismissed as incompetent: [1923] AC 603); see also Ex parte Mwenya [1960] 1 QB 241.
[105] Apart from some of the initial asylum seekers detained on Nauru, the United Nations High Commissioner for Refugees has not been involved in processing the asylum seekers who have been taken by the Commonwealth to places outside Australia.
[106] Church of Scientology v Woodward [1980] HCA 38; (1983) 154 CLR 25, 70 (Brennan J); Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 195 ALR 24, 34 [31] (Gleeson CJ); see also Attorney-General v Quin [1990] HCA 21; (1990) 170 CLR 1, 36–7 (Brennan J).
[107] Plaintiff S157/2002 v Commonwealth (2003) 195
LR 24, 52 [104] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[108] Sir Anthony Mason, 'The High Court as Gatekeeper' (2000) 24 Melbourne University Law Review 784, 788: see generally 787–94.