Selway, Bradley --- "The Principle Behind Common Law Judicial Review of Administrative Action - The Search Continues" [2002] FedLawRw 8; (2002) 30(2) Federal Law Review 217
Upon the question, "What is the correct standard of review in a case such as this?", there are at least in theory [two possible common law approaches]. The first is the conventional Wednesbury position ... On this model the court makes no judgment of its own as to the relative weight to be attached to this or that factor taken into account in the decision-making process; it is concerned only to see that everything relevant and nothing irrelevant has been considered, and that a rational mind has been brought to bear by the Secretary of State in reaching the decision. The second approach recognises that a fundamental right, here family life, is engaged in the case; and in consequence the court will insist that that fact be respected by the decision-maker, who is accordingly required to demonstrate either that his proposed action does not in truth interfere with the right, or if it does, that there exist considerations which may reasonably be accepted as amounting to a substantial objective justification for the interference.
In that case Laws LJ adopted the second approach. This approach was expressly supported by three Law Lords, including Lord Steyn, in R v Secretary of State for the Home Department; Ex parte Daly.[41] In consequence of this new broad approach the House of Lords has now acknowledged that the principle of proportionality[42] is recognised and applied by the English common law.[43]
As John McMillan has commented,
[t]he English jurisprudence is leading increasingly to the position that there are rights ... that inhere in the constitutional structure. It is therefore said to be part of the judicial role to identify, articulate and safeguard those values as constitutional or legal rules. Notions of "fairness", "proportionality" and "equality" quickly emerge as legally enforceable conditions on the exercise of executive power.[44]
This approach is based upon a broad view of the rule of law and, to that extent, may still be explained by a broad theory of ultra vires. The approach is, however, necessarily inconsistent with any attempt to give any role to legislative intent in relation to the relevant function. It is also inconsistent with separation of powers principles. The new English approach clearly permits merit review subject only to whatever forbearance the judge, as a matter of policy, is prepared to give. But in almost all cases the Parliament has given the task of merit determination to the executive, not to the courts. For the courts to take on that function themselves necessarily involves both ignoring the parliamentary intent and the performance by the judiciary of an executive function.
The New Zealand courts have adopted a similar approach to that of the English courts.[45]
The other approach that has had some judicial support in England has not relied upon the rule of law as the basis for judicial review. Instead it has identified a new common law norm that limits the exercise of public power. Whereas the previous theory of judicial review was based upon the source of the power (in particular, a statutory source), now it is argued the theory is based upon the nature of the power (in particular whether it is a power that is appropriate for judicial review?).[46] The justification for the change is that in consequence of it the courts can hold the executive (and, in principle at least, the legislature) accountable to the people by requiring them to act in accordance with certain minimum standards.[47] So considered, the courts in Australia are concerned with the appropriateness of the exercise of power, not with the rule of law, at least as usually understood. This approach concentrates upon 'fairness' and upon 'outcomes'. International human rights norms, including the rights conferred by the European Human Rights Convention have played a significant role in the development of this approach.[48]
Probably the best example thus far of the application of this approach is the case of R v North and East Devon Health Authority; Ex parte Coughlan.[49] On the ultra vires approach the consequence of a failure to comply with a precondition to the exercise of a power was that the exercise of the power was invalid and of no effect. So, for example, where there was a requirement for a fair hearing, which had not been complied with, the courts would set aside the relevant administrative or judicial act. What the courts did not do was enforce the 'legitimate expectation'.[50] To do that would be to turn the expectation into a substantive private right, rather than to require the decision maker to comply with the law.
Nevertheless, in R v North and East Devon Health Authority; Ex parte Coughlan the English Court of Appeal held that legitimate expectations can be enforced as substantive rights. In that case the relevant decision maker had promised a disabled person that health premises to which she was being shifted would be her 'home for life'. It was later decided to close those premises. No doubt the disabled person should have been afforded a fair hearing before that decision was taken. However, the Court of Appeal, led by the then Master of the Rolls, Lord Woolf, went further. It held that a legitimate expectation could be the source of substantive rights. It did so not on the basis of a breach of the rule of law, but on the basis that the failure of the decision maker to accord with the expectation would involve an 'abuse of power'.[51] It would appear from Lord Woolf's reasons that the overarching principle that he views as supporting administrative law is preventing 'abuses of power'. This approach cannot be explained by any theory based upon ultra vires.
It may be that some of the recent changes in and development of the common law in England may in the future be ascribed instead to the Human Rights Act, 1998 (UK) which may well provide a statutory basis for the further development of judicial review in the United Kingdom.[52]
Leaving aside the effect of that Act, these developments in England in identifying the common law principle behind administrative law have been described generally as 'the common law theory'. This description is unfortunate for at least two reasons. First, it suggests a degree of uniformity between those supporting a broader approach to judicial review than probably exists in fact. For example, in a recent article Paul Craig and Nicholas Bamforth have argued that the common law theory does not involve any change in the respective role and function of the courts and the Parliament. They suggest that under the common law theory the Parliament remains sovereign, but must spell out its intentions with considerable clarity if it is intending to interfere with the 'rule of law'.[53] With respect, not all who would subscribe to the common law theory would accept that the courts would always defer to the Parliament in all circumstances.[54] On the other hand, not all who subscribe to the 'common law theory' would agree that the courts have the power to question the validity of a statute. The reality is that 'bottom uppers' form a reasonably disparate and motley crew.
The other problem with describing the theory as 'the common law theory' is that it suggests that the ultra vires theory is somehow divorced from the common law. This is perhaps the worst fault of the description, and one to which it will be necessary to return in due course.
THE RESPONSE OF THE HIGH COURT
The High Court of Australia has also grappled with these issues. The history of its involvement has been discussed in a recent article by Susan Kneebone.[55] For present purposes that history can be described reasonably briefly.
In Kioa v West[56] Mason J described natural justice as a 'common law doctrine'[57] that was imposed by the common law upon decision makers. In the same case, Brennan J described the requirement to comply with natural justice as an expression of 'the legislature's intention that observance of the principles of natural justice is a condition of the valid exercise of the power'.[58] That debate was continued in later cases. For example, in Attorney-General (NSW) v Quin[59] Brennan J noted that the expansion of judicial review had been achieved by 'an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power'.[60]
In Quin Brennan J concluded:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.[61]
This statement of principle would seem to confirm that the role of the courts in judicial review is based upon the principles of ultra vires and, further, that that principle precludes merit review. That statement of principle would seem to have majority support by the High Court.[62] It would also seem that a majority of the Court would accept that, at least for statutory powers, the jurisdiction of the court to review administrative action is to be found in the relevant statute.[63]
However, this debate does not have the same significance in the High Court as it has in England. In Australia it does not matter so much whether the basis of judicial review is viewed as being a common law concept that is subject to statute, or as being a necessary consequence of statutory interpretation.[64] This is because, at least until very recently, Mason J would not have disagreed with the conclusion by Brennan J in Quin. Mason J's approach to judicial review may have been more flexible than Brennan J's,[65] but it was clearly not intended to permit merit review.[66] The reality is that Mason J's approach, at least until very recent times,[67] was still based upon legality and ultra vires. The difference is that Mason J found the source of ultra vires in the common law, as affected by statute; whereas Brennan J found it in statute affected by the common law.[68]
This is to be contrasted with the approach in England. The common law theory, as it has developed there, is not concerned with legality or ultra vires at all. Rather, as explained above, it is concerned with the development and enforcement of new common law constitutional norms.
This brings us back to the problem referred to earlier of using labels in a way that is misleading. If the approach of Brennan J in Quin is described as the 'ultra vires theory' and that of Mason J in Kiao v West as the 'common law theory' this is misleading in that it suggests that the approach of Mason J was not itself based upon a theory of ultra vires, albeit a different one from Brennan J. Even more concerning is that the use of these labels may confuse Mason J's approach in Kiao v West with that of the English judges and commentators who have proceeded in a very different direction.
It is interesting to note that the Canadian courts have also generally adopted the view that judicial review is to be explained on the basis of ultra vires of a statute. However, the Canadian courts have reached a very different view as to the how the relevant statute is to be interpreted. In Canada, the courts have accepted that administrative tribunals are to be afforded a degree of 'deference'[69] that has been rejected by the Australian High Court.[70] Even so, the basis for identifying just how much deference is due is to be discovered from the interpretation of the relevant statute. As it was put by Iacobucci J for the Court in Pezim v British Columbia (Superintendent of Brokers):
From the outset, it is important to set forth certain principles of judicial review. There exist various standards of review with respect to the myriad of administrative agencies that exist in our country. The central question in ascertaining the standard of review is to determine the legislative intent in conferring jurisdiction on the administrative tribunal. In answering this question, the courts have looked at various factors. Included in the analysis is an examination of the tribunal's role or function. Also crucial is whether or not the agency's decisions are protected by a privative clause. Finally, of fundamental importance, is whether or not the question goes to the jurisdiction of the tribunal involved.[71]
The description of the source of the jurisdiction to review the relevant act or decision is the same as that given by Brennan J. It is the statute. The Canadian Supreme Court, like the Australian High Court has accepted that its role in reviewing administrative action is based upon the principle of ultra vires. However, the content of the authority granted by the Canadian legislatures has been very differently interpreted by the Canadian courts.
THE CONSTITUTIONAL CONTEXT
As discussed above the English and New Zealand courts have, at least in recent times, accepted a wider basis for judicial review than ultra vires as it is generally understood. This basis is essentially that the common law itself will justify and authorise the courts in developing their own rules to control administrative action which breaches certain minimum standards identified by the common law. The courts in Australia and Canada have not gone so far. They have still identified the basis for judicial review as being the principle of ultra vires, that is, that the relevant administrative act or decision was in breach of or unauthorised by the law, or was beyond the scope of the power given to the decision maker by the law and was consequently of no legal effect, or the relevant decision maker had failed to comply with the law and should be compelled to do so.
The question then arising is whether Australian courts can or should follow the English lead? The answer is that they cannot. The reason lies in the constitutional context in which judicial review occurs in Australia.
With any liberal democratic government the constitutional structure must contain and support both the rule of law and the democratic principle. Usually they are not in conflict. The rule of law sustains the democratic institutions and vice versa. However, that is not always the case. Judicial review is one option[72] for resolving conflict when the democratic will, or those representing it, breach the rule of law.
So understood, the debate about the nature and extent of judicial review is ultimately a constitutional debate.[73] With an unwritten Constitution, such as in the United Kingdom and New Zealand, that constitutional debate has involved a consideration of constitutional principle against the background of the common law. (Somewhat surprisingly, in both countries the debate has largely ignored the views of the voters.[74]) However, with a written Constitution the debate must begin with the document.
Both the rule of law and the democratic principle are assumptions upon which the Commonwealth Constitution is drafted. The assumptions form at least part of the context for the interpretation of the Constitution.[75]
It is clear that the 'rule of law' is a fundamental assumption of the Commonwealth Constitution.[76] The concept of a Constitution as a fundamental source of governmental authority may itself assume the rule of law.[77] In any event covering clause 5 requires governments and subjects to obey the Constitution and laws made under it and specific provisions, particularly ss 75(iii)[78] and (v)[79] can be viewed as manifestations of the principle. Other provisions within Chapter III of the Constitution have also been viewed as being reflective of 'the rule of law', for example, section 80.[80] The principle of separation of judicial power from legislative and executive power, which is contained within the text and structure of the Constitution, is also reflective of the principle.[81] So too is the separate but related 'incompatibility principle' recognised in Kable v Director of Public Prosecutions[82] that the Parliaments cannot confer an 'incompatible function' upon a State or federal court or upon a judge of such a court.[83]
It is one thing for 'the rule of law' to be assumed by the Constitution. It is another to describe its meaning and effect. The 'rule of law' as assumed within the Commonwealth Constitution involves a relatively narrow use of the phrase.[84] The practical operation and effect of 'the rule of law' assumption is that the executive and the people are subject to the law as interpreted and declared by the courts, that federal judicial power should be separate and distinct from legislative and executive power and that judges should be impartial and independent.[85]
The 'rule of law' as assumed within the Commonwealth Constitution has two particular elements that are critical to the analysis of the proper role of judicial review.[86] Those elements are primarily derived from the High Court's analysis of the separation of powers principle within the Commonwealth Constitution. The first element is that it is the role of the courts to interpret and apply the law.[87] The second is that the separation of judicial power from legislative and executive power operates to limit the power of the judiciary in relation to the functions to be performed by both the executive and the legislature.[88]
The 'democratic principle' is reflected within the Commonwealth Constitution by the express terms of Chapter I of the Constitution and in the implication of that form of representative democracy that can be identified particularly from ss 7 and 24.[89] As Keith Mason has suggested:
By affirming the supremacy of Parliament the (rule of) law thereby concedes the hierarchy of enacted over common law. In doing so it (indirectly) affirms democratic values, to the extent that parliament functions and continues to function in a democratic milieu.[90]
The democratic principle, in affirming the primacy, subject only to the Constitution, of the democratic institutions of governments, also necessarily requires a limited role for judicial review.
EFFECT OF THE CONSTITUTION
Notwithstanding the different labels that have been used, sometimes in a misleading fashion, it is clear that the questions of the proper basis for and the extent of judicial review are ultimately questions to be answered by the common law. This is true whether the basis for judicial review is to be found in the common law rules and presumptions relating to the interpretation of statutes,[91] or in a separate common law norm. However, it needs to be understood that in this area of discourse the common law has a symbiotic relationship with the constitutional structure.[92] It both informs our understanding of the Constitution, but itself must conform to that Constitution.
As Kirby J remarked in Pfeiffer v Stevens,[93] '[i]n Australia, the legitimacy and authority of all law must ultimately be traced to, or be consistent with, the federal Constitution.' So, within Australia, the common law must conform to the Constitution. Where there is repugnancy between the common law and the Constitution then, as would be the case with a repugnancy to a statute, the common law is abrogated so as to avoid the repugnancy.[94] However, the Constitution has a broader effect upon the common law than merely to abrogate it in cases of inconsistency. In addition the common law can and should be developed by the courts by reference to constitutional principles even where there is no repugnancy.[95]
These effects can be seen in the role of judicial review in Australia. It will be recalled that one of the elements of the rule of law within the Commonwealth Constitution is that it is the role of the courts to finally determine what the law is. This element is strictly limited to the federal courts. A common law principle that was repugnant to that element would be abrogated to that extent. However, there is a single common law in Australia. It can be expected that the single common law will develop in a uniform and consistent fashion having regard to that constitutional element. This explains why judicial deference to the legal interpretation of administrative decision makers was necessarily rejected by the High Court in Corporation of the City of Enfield v Development Assessment Commission[96] notwithstanding that that decision was in State, not federal, jurisdiction. The constitutional principle applicable to federal courts was 'picked up' by the common law and applied, as a common law principle, to federal and State courts.
On the other hand, in Canada, where separation of judicial power is not so rigid (or at least, not yet so rigid) as in Australia and where administrators may exercise judicial power in some circumstances, such extended deference may remain possible.[97] In the United States such deference may be based upon the three way separation of powers which must accommodate a role for the executive branch in at least interpreting the law.[98]
Another element of the rule of law under the Commonwealth Constitution restricts federal courts from performing executive functions. Applying the same reasoning it can be expected that this element would be applied in the development of the uniform and single Australian common law. This element explains why the Australian courts cannot adopt a free standing 'common law theory' of the English or New Zealand type to explain judicial review. The Constitution itself limits the role and function of the federal courts.[99] It is not their role or function to carry out the executive function of administration[100] or the legislative function of determining policy. These are the proper role of the other arms of government.[101] The proper role of the federal courts is to determine if the relevant legislative or executive act or decision was in breach of or unauthorised by the law or was beyond the scope of the power given to the decision maker by the law. In this broad sense, the proper role of the federal courts is to determine if the act or decision was ultra vires and was consequently of no legal effect, or if the relevant decision maker had failed to comply with the law and should be compelled to do so. Applied more generally to the development of the common law, all Australian courts are precluded by the common law from merit review simply because the relevant legislative scheme has clearly conferred the determination of merit to a legislative or executive body.
This second element also explains why Australian courts must retain a distinction between jurisdictional errors and non-jurisdictional errors.[102] Notwithstanding the difficulty, indeed often apparent artificiality, of the distinction,[103] it is a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised. Such a distinction is inherent in any analysis based upon separation of powers principles.
This limited role of judicial review is confirmed by the 'the democratic assumption' which affirms the primacy of valid statutes over the common law.
When the role of the Commonwealth Constitution in identifying and limiting the role of the courts in judicial review is understood it is not surprising that countries with a written Constitution, such as Australia and Canada[104] have taken a more limited view of the proper role of judicial review than have countries with an uncontrolled Constitution, such as the United Kingdom and New Zealand. As Kirby J noted in Durham Holdings v NSW, 'in Australia the common law operates within an orbit of written constitutional laws and political realities'.[105] The vigorous debate that has occurred in England over the last decade as to the proper role and function of judicial review[106] has taken place in a different constitutional context to that in Australia—the consequence is that much if not all of that debate is fundamentally irrelevant to Australian judges and lawyers.
Other questions remain where the constitutional context may have some role. For example the extent to which the Parliament may legislate to limit what errors may be described as jurisdictional errors without transgressing the Constitution may still be a live constitutional issue.[107] There is also some suggestion in some cases that s 75(v) of the Commonwealth Constitution is itself the source of some of the obligations and duties at least upon Commonwealth officers,[108] although it seems clear that even if those rights and obligations are somehow 'constitutionalised' by s 75(v) they are still to be identified from the common law as understood in the context of the Constitution[109].
On the other hand, the role of the Commonwealth Constitution should not be overstated. It provides the ultimate justification for judicial review and sets its parameters, but does not explain the detail of its operation. True it is that the constitutional context means that parliamentary intent as expressed in a statute has primacy over the common law; true it is that the constitutional context means that the courts cannot engage in merit review and are required to differentiate between 'jurisdictional errors' and 'non jurisdictional errors'. But within these parameters there is still considerable room for debate for example as to whether a particular error should be considered a jurisdictional error or not.[110]
Accepting that the Commonwealth Constitution does impose parameters upon the extent of judicial review the question arises whether the three exceptions to the ultra vires theory that were identified above are consistent with those parameters. It will be recalled that the three exceptions were the availability of certiorari for error on the face of the record, the extension of judicial review to the prerogative and the extension of judicial review to private sector bodies.
The availability of certiorari for error on the face of the record can be explained in terms of the history of the writ and its use to facilitate what was, in effect, an appeal from inferior courts.[111] To that extent the availability of certiorari for non jurisdictional error may now be seen as anomalous.[112] This anomaly may explain why s 75(v) of the Constitution expressly refers to prohibition and mandamus (both of which do require a jurisdictional error), but not certiorari.[113] It may also explain the approach of the High Court in Re McBain; Ex parte Australian Catholic Bishops Conference[114] where, by majority, the Court held that certiorari was not available to correct a non jurisdictional error unless there was a 'matter' in which the parties (including the Attorney-General) had a real interest. Notwithstanding these possible explanations and limitations, the availability of certiorari to correct an error on the face of the record remains an exception to the ultra vires theory. It is difficult to justify or explain that exception in terms of the constitutional parameters discussed above.
The more recent exceptions may be capable of some explanation consistent with constitutional principle. For example, the question whether judicial review can or should extend to prerogative powers or not, and, if so, how, may not even arise in Australia. It is at least arguable that all governmental power, including 'the prerogative', is either derived from the Commonwealth Constitution or from statute. For example, Commonwealth executive power is derived from s 61 of the Constitution or from statute; State executive power is derived from s 7(2) of the Australia Act 1986 (Cth) or from statute. Even if the ultra vires theory is explained in terms of parliamentary sovereignty and statutory interpretation there is no reason why those powers should not be subject to judicial review, save for policy issues that may need to be considered in relation to particular powers.[115] Even if this explanation was not accepted, the common law could develop so as to limit the prerogative (or aspects of it) by the principles of administrative law. To this extent at least the debate between Mason J and Brennan J whether the source of ultra vires is to be found in the common law or in the statute remains open.
Similarly the apparent application of judicial review to non-governmental parties may be able to be explained by private rather than public law principles. For example, judicial review might be explained in a particular case by implying the requirements of natural justice into a contract or other arrangement or by the application of equitable principles to the particular case.
CONCLUSION
The question of the proper role and the limits of judicial review is self evidently a constitutional question. With a written Constitution the proper place to commence the consideration of that question is with the written document. When this is done with the Commonwealth Constitution the structure and provisions of the Constitution justify the role of the judiciary in determining the legality of legislative and administrative action but also limit the role of the judiciary in performing executive or legislative acts. These constitutional limitations set the parameters for the development of the common law principles of judicial review in Australia. They are reflected in a number of basic principles of the Australian common law such as the distinction between legality and merit review as reflected in the distinction between jurisdictional and other errors.
These constitutional parameters do not resolve all issues of principle that inform the development of the common law of judicial review, but they do have the effect of establishing a marked difference between the Australian common law of judicial review and recent developments in England and New Zealand. This has the happy consequence that the common law of judicial review in both England and New Zealand can increasingly be ignored in Australia.
[*] Solicitor General for South Australia; Adjunct Professor of Law, University of Adelaide. I acknowledge the assistance of Peter Psaltis and of Ben Allgrove, both of the South Australian Crown Solicitor's Office, for their helpful comments and for checking references. I also thank the reviewers for their suggestions. The mistakes, of course, are my own.
[1] Stephen Gageler, 'The Underpinnings of Judicial Review of Administrative Action: Common Law or Constitution' (2000) 28 Federal Law Review 303.
[2] Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330, 397 (Kirby J).
[3] Louis Jaffe and Edith Henderson, 'Judicial Review and the Rule of Law: Historical Origins' (1956) 72 Law Quarterly Review 345. The writers point out that the development of judicial review was a consequence of the separation of functions between the courts and the executive during the 17th century. The courts asserted the power to determine the legality of executive action. The task of the courts was 'to contain administrative activity within the bounds of delegated power: to apply to administrative action the test of "legality"' ibid 346. It should be noted that Susan Kneebone, 'What is the Basis of Judicial Review' (2000) 12 Public Law Review 95, 97–98 argues that Jaffe and Henderson identify the source of judicial review as the autonomy, if not the supremacy, of the common law. However, this seems to read too much into the article.
[4] See, for example, the explanation by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 citing Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–6.
[5] Darcy v Allein [1572] EngR 398; (1602) 11 Co Rep 84b; 77 ER 1260 and see The Case of Proclamations [1572] EngR 398; (1610) 12 Co Rep 74; 77 ER 1260, 'Also it was resolved that the King hath no prerogative but that which the law of the land allows him'.
[6] See, for example, Attorney General v De Keyser's Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508.
[7] [1992] HCA 10; (1992) 175 CLR 564, 584.
[8] Minister for Immigration & Multicultural Affairs v Bhadwaj [2002] HCA 11; (2001) 187 ALR 117, 120 [11], 128 [47], 130 [54], 132 [66], 144-145 [112]–[113], 148 [129], 155 [153]; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 372–5, 388–91; R v Wicks [1997] UKHL 21; [1998] AC 92, 117; Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78, 89–91.
[9] This is discussed below, see text accompanying nn 111-4.
[10] Minister for Immigration & Multicultural Affairs v Bhadwaj [2002] HCA 11; (2001) 187 ALR 117, 129 [51]–[53], 153 [149], 154 [152], 156 [163]; Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 176–80; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, 145–6, 158; Foster v Minister for Customs & Justice [1999] FCA 687; (1999) 164 ALR 357, 359–60 [6]–[8].
[11] Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179–80.
[12] Anisminic v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147.
[13] See Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143, 171 and see discussion below.
[14] See, eg, Naomi Sidebotham, 'Shaking the Foundations: Dicey, Fig Leaves and Judicial Review' (2001) 8 Australian Journal of Administrative Law 89, 95–6. The main theme of the Sidebotham article is a criticism of the requirement for jurisdictional error. That theme is not affected by this criticism of the analysis.
[15] [1947] 1 KB 223.
[16] Ibid 229.
[17] [1898] 2 QB 91. In Wednesbury Lord Greene referred to only one previous authority when setting out his test of Wednesbury unreasonableness. The previous case referred to was Short v Poole Corporation [1926] Ch 66. However, that was a case concerning alleged improper motives or taking into account irrelevant considerations. The only reference in that case to unreasonableness is by Pollack MR at 87–8. Pollock MR cites Kruse v Johnson.
[18] On the English approach, Wednesbury unreasonableness is not based upon statutory interpretation and consequently cannot be explained in terms of the ultra vires theory: See Sir John Laws, 'Wednesbury' in Christopher Forsyth and Ivan Hare (eds), The Golden Metwand & the Crooked Cord (1998) 185 ff; Jeffrey Jowell, 'Of Vires and Vacuums: The Constitutional Context of Judicial Review' [1999] Public Law 448, 454–5.
[19] Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142, 155; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 41; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 100–101 [40]; Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (2nd ed, 1999) 229–34.
[20] Mark Aronson, 'Unreasonableness and Error of Law' [2001] UNSWLawJl 26; (2001) 24 University of New South Wales Law Journal 315, 318.
[21] Geoff Airo-Farulla, 'Rationality and Judicial Review of Administrative Action' [2000] MelbULawRw 23; (2000) 24 Melbourne University Law Review 543.
[22] See, eg, the description of the theoretical basis in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 609.
[23] See Bradley Selway, 'Judicial Review—A Process in Search of a Principle' (1998) 19 Australian Institute of Administrative Law Forum 18.
[24] For this purpose an error of law may include errors in findings of 'primary' facts: see Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 340–41.
[25] See Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175–6, 180–83; JW Shaw and FJ Glynne, 'Certiorari and Error on the Face of the Record' (1997) 70 Australian Law Journal 356.
[26] See R v Criminal Injuries Board; Ex parte Lain [1967] 2 QB 864.
[28] Ibid 407; see generally Brigid Hadfield, 'Judicial Review and the Prerogative Powers of the Crown' in Maurice Sunkin and Sebastian Payne (eds), The Nature of the Crown (1999) 197 ff.
[29] See Von Einem v Griffin [1998] SASC 6858; (1998) 72 SASR 110, 114, 126; Victoria v Master Builders Association [1995] VicRp 47; [1995] 2 VR 121; Minister for the Arts v Peko-Wallsend (1987) 15 FCR 274; Peter Bayne, 'The Common Law Basis for Judicial Review' (1993) 67 Australian Law Journal 781 and Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 114–8, 142–51.
[30] Examples include those bodies that have the right to determine whether a person can work in a particular trade or profession, such as sports associations, trade unions and professional associations. See eg Nagle v Feilden [1966] 2 QB 633; Forbes v NSW Trotting Club [1979] HCA 27; (1979) 143 CLR 242; Mitchell v Royal NSW Canine Council Ltd [2001] NSWCA 162; (2001) 52 NSWLR 242, 246–7; AFL v Carlton Football Club [1998] 2 VR 546, 552; Martin Kosla, 'Disciplined for "Bringing Sport into Disrepute"—A Framework for Judicial Review' [2001] MelbULawRw 22; (2000) 25 Melbourne University Law Review 654; Sonya Gorman, 'Legislative Recognition of Churches and the Implications for Judicial Review' (2002) 9 Australian Journal of Administrative Law 84.
[31] R v Panel on Take-Overs & Mergers; Ex parte Datafin plc [1986] EWCA Civ 8; [1987] QB 815; R v Disciplinary Committee of the Jockey Club; Ex parte Aga Khan [1992] EWCA Civ 7; [1993] 2 All ER 853, 863–4, 874; Victoria v Masters Builders Association [1995] 2 VLR 121. See, The Hon J J Spigelman, 'Foundations of Administrative Law: Towards General Principles of Institutional Law' (1999) 58 Australian Journal of Public Administration 3, 5–7.
[32] See, eg, Paul Craig, 'Public Law and Control Over Private Power' in Michael Taggart (ed), The Province of Administrative Law (1997) 196 ff.
[33] Dawn Oliver, 'Is the Ultra Vires Rule the Basis of Judicial Review?' [1987] Public Law 543.
[34] See, eg, Bayne, above n 29, 781.
[35] H L A Hart, 'Law, the rule of' entry in New Fontana Dictionary of Modern Thought (3rd ed, 1999) 471. For a discussion of various uses of the phrase see Paul Craig, 'Formal and Substantive Conceptions of the Rule of Law' [1997] Public Law 467 where the use of the phrase by Raz, Dicey, Dworkin and others is contrasted.
[36] R W M Dias, 'Legal Politics: Norms Behind the Grundnorm' (1968) Cambridge Law Journal 233; T R S Allan, Law Liberty and Justice (1993); Jeffrey Jowell, 'The Rule of Law Today' in Jeffrey Jowell and Dawn Oliver The Changing Constitution (3rd ed, 1994) 57; Craig, above n 35; T R S Allan, 'Fairness, Equality, Rationality: Constitutional Theory and Judicial Review' in Christopher Forsyth and Ivan Hare (eds), The Golden Metwand and the Crooked Cord (1998) 15 ff; T R S Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (2001).
[37] See, eg, Lord Woolf, 'Droit Public—English Style' [1995] Public Law 57, 67–71; Sir John Laws, 'Law and Democracy' [1995] Public Law 72; Sir John Laws, 'Public Law and Employment Law: Abuse of Power' [1997] Public Law 455, 464–6.
[38] Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143, 171. See also R v Wicks [1997] UKHL 21; [1998] AC 92. Of course, it is possible that Lord Steyn was using the phrase in a broader sense than merely ultra vires of a statute. See Sir Anthony Mason, 'The Foundations and the Limitations of Judicial Review' forthcoming (2001) 32 Australian Institution of Administrative Law Forum where there is a discussion of the breadth of the English position even when ostensibly based upon ultra vires theory.
[39] Secretary of State for the Home Department; Ex parte Pierson [1997] UKHL 37; [1998] AC 539, 590–91; Thomas v Baptiste [2000] 2 AC 1, 22; R v Secretary of State for the Foreign & Commonwealth Office; Ex parte Bancoult [2001] QB 1067, 1095 [36], 1100–101 [45]–[47], 1103–4 [55]–[57] (holding that a 'peace, order and good government' power is subject to Wednesbury unreasonableness; Thoburn v Sunderland City Council [2001] EWCH Admin 934 [62]–[63] (holding that 'constitutional' statutes cannot be impliedly repealed). It is clear from these cases, particularly Bancoult and Thoburn that this approach involves a significant change to the UK Constitution, as it was previously understood. This change has not been adopted in Australia: contrast Bancoult with Durham Holdings v NSW (2001) 177 ALR 436.
[40] [2000] EWCA Civ 315; [2001] 1 WLR 840, 847.
[41] [2001] UKHL 26; [2001] 3 All ER 433, 446–7, 448.
[42] The proportionality principle had previously been rejected by the House of Lords in R v Secretary of State for the Home Department; Ex parte Brind [1991] UKHL 4; [1991] 1 AC 696.
[43] R v Secretary of State for the Home Department; Ex parte Daly [2001] UKHL 26; [2001] 3 All ER 433, 439–40, 445–7, 447, 448.
[44] John McMillan, 'The Foundations and Limitations of Judicial Review—A Commentary'. (Paper presented at the 2002 Constitutional Law Conference organised by the Gilbert and Tobin Centre of Public Law of the University of NSW, Sydney, 15 February, 2002) (copy on file with the author).
[45] See Philip Joseph, 'The Demise of Ultra Vires—Judicial Review in the New Zealand Courts' [2001] Public Law 354; Sir Robin Cooke, 'Fundamentals' [1988] New Zealand Law Journal 158; Peters v Davison [1999] 2 NZLR 164, 180–81; Dunlea v Attorney-General [2000] NZCA 84; [2000] 3 NZLR 136, 159 [73].
[46] See, eg, Murray Hunt, 'Constitutionalism and Contractualisation of Government in the United Kingdom' in Taggart, above n 32, 27–33.
[47] See Bayne, above n 29, 784; Len King, 'The Separation of Powers' in Courts in a Representative Democracy, Australian Institute of Judicial Administration (1995) 1, 10; Sir Gerard Brennan, 'The Purpose and Scope of Judicial Review' in Michael Taggart (ed), Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 18, 19; Laws, 'Law and Democracy', above n 37; Paul Craig, 'Ultra Vires and the Foundations of Judicial Review' (1998) Cambridge Law Journal 63; Paul Craig, 'Competing Models of Judicial Review' [1999] Public Law 428; Dawn Oliver and Gavin Drewry, The Law and Parliament (1998) 1, 3; Sir David Williams, The Judiciary and Judicial Review, Centre for International and Public Law, Australian National University, Law and Policy Paper No 7 (1997) 10–14.
[48] See also H W R Wade and C Forsyth, Administrative Law (7th ed, 1994) 496; Lord Lester, 'European Human Rights and the British Constitution' in Jowell and Oliver above n 36, 46–52; Lord Browne-Wilkinson, 'The Infiltration of a Bill of Rights' [1992] Public Law 397, 399; Sir John Laws, 'Is the High Court the Guardian of Fundamental Constitutional Rights?' [1993] Public Law 59. One way in which the courts could give effect to Convention rights was because such rights were recognised as part of the law of the European Union which had the effect of incorporating the Convention Rights into UK law: see Sydney Kentridge, 'Parliamentary Supremacy and the Judiciary Under a Bill of Rights: Some Lessons from the Commonwealth' [1997] Public Law 96, 97–8; Wade and Forsyth, ibid; S A De Smith, Sir Harry Woolf and Jeffrey Jowell, Judicial Review of Administrative Action (5th ed, 1995) 13. Another way was by treating the principles contained in the European Convention as being already reflected in the common law or, if not, by arguing that they should be so reflected: see Richard Rawlings, 'Legal Politics: The United Kingdom and Ratification of the Treaty on European Union (Part 2)' [1994] Public Law 367.
[50] See Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 291; Victoria v Master Builders Association [1995] VicRp 47; [1995] 2 VR 121, 166; Fisher v Minister of Public Safety & Immigration (No 2) [2000] 1 AC 434, 446–7; Paul Finn, 'Controlling the Exercise of Power' (1996) 7 Public Law Review 86, 93. As it was put by the Privy Council in Thomas v Baptiste [2000] 2 AC 1, 25, 'a decision-maker is free to act inconsistently with the expectation in any particular case provided that he acts fairly towards those likely to be affected'.
[51] [2001] QB 213, 243–6.
[52] For example, in R v Secretary of State for the Home Department; Ex parte Daly [2001] UKHL 26; [2001] 3 All ER 433 the acceptance of the principle of proportionality in administrative law would seem to be based upon both the common law and the Human Rights Act 1998 (UK). See Paul Craig, 'The Courts, Human Rights Act and Judicial Review' (2001) 117 Law Quarterly Review 589, 594.
[53] Paul Craig and Nicholas Bamford, 'Review Article: Constitutional Analysis, Constitutional Principle and Judicial Review' [2001] Public Law 763, 767; Jeffrey Jowell, 'Beyond the Rule of Law: Towards Constitutional Judicial Review' [2000] Public Law 671, 675.
[54] See Sir Robin Cooke, 'Fundamentals' (1988) New Zealand Law Journal 158; Laws, 'Law and Democracy' above n 37; Joseph, above n 45.
[55] Kneebone, above n 3, 103–12; see also Gageler, above n 1.
[56] [1985] HCA 81; (1985) 159 CLR 550.
[57] Ibid 582.
[58] Ibid 609.
[59] (1990) 170 CLR 1 ('Quin').
[60] Ibid 36.
[61] Ibid 35–6.
[62] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 579 [195].
[63] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 176–80; Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602, 630–34; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 372–5 [34]–[41], 389–91 [92]–[93]; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 169 ALR 400, 417 [59]; Coal & Allied Operations v AIRC [2000] HCA 47; (2000) 174 ALR 585, 595 [32], 609 [81]; Re Refugee Review Tribunal & Anor; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 140–41 [160]–[163].
[64] Described by Gaudron J as the two Australian approaches: see Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, 258 [89]–[90].
[65] See Gageler, above n 1, 306–7; Sir Anthony Mason, 'Judicial Review: A View From Constitutional and Other Perspectives' (2000) 28 Federal Law Review 331, 332; Kneebone, above n 3, 105–6; Aronson and Dyer, above n 29, 312. However, it is not obvious why this is necessarily true. In each instance it depends upon the content of the implication, rather than its source. It cannot be assumed that the common law will always be more 'liberal' than the Parliament.
[66] Mason, above n 65, 331–9.
[67] The more recent approach of Sir Anthony Mason may have been affected by the English approach. In Li Shuk Fai v Director of Immigration [2002] HKCAFA 2 [87]–[99] Mason joined with the other members of the Hong Kong Final Court of Appeal in following the decision of the UK Court of Appeal in R v North & East Devon Health Authority; Ex parte Coughlin [2001] QB 213. Of course, that decision was given in a very different constitutional framework and could not be taken as suggesting that Mason would agree that that approach would be available in Australia. Nevertheless, the approach in that case does seem different to that previously taken by Mason.
[68] Justice John Toohey in an article 'A Government of Laws and Not of Men?' (1993) 4 Public Law Review 158, 158–60 did discuss the 'rule of law' in terms similar to that of English commentators and judges, eg, that the rule of law as insisting on 'adherence to fundamental principles, especially the recognition of human rights'. In that article he concluded that the courts can invalidate statutes for breach of such fundamental principles. His Honour's judgments did not reflect this approach. Other Australian commentators have taken a similar approach, see, eg, Linda J Kirk, 'Chapter III and Legislative Interference with the Judicial Process: Abebe v Commonwealth and Nicholas v The Queen' in Adrienne Stone and George Williams (eds), The High Court at the Crossroads: Essays in Constitutional Law (2000) 119, 120–26.
[69] See David Dyzenhaus, 'The Politics of Deference: Judicial Review and Democracy' and Madame Justice Clair L'Heureux-Dube, 'The Ebb and Flow of Administrative Law on the General Question of Law' both in Taggart above n 32, 279 and 308 respectively.
[70] Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135.
[71] (1994) 2 SCR 557, 589-590 ; 114 DLR (4th) 385, 404; see also Deputy Minister of National Review v Mattel Canada Inc (2001) 2 SCR 100, 113-115; 199 DLR (4th) 598, 608–9; Moreau Berube v New Brunswick (Judicial Council) [2002] SCC 11 [36]–[67].
[72] Judicial review by the ordinary courts is not the only mode of review within a constitutional context, see, eg, the specialised German courts discussed in Cheryl Saunders, 'Administrative Law and Relations Between Governments: Australia and Europe Compared' (2000) 28 Federal Law Review 263, 280–3, 285–6.
[73] See Justice William Gummow 'The Permanent Legacy' (2000) 28 Federal Law Review 177, 180; Mason, above n 65.
[74] However, Lord Lester is probably correct when he says that the changes have occurred 'without great public controversy': Lord Lester, 'Developing Constitutional Principles of Public Law' (2001) Public Law 684, 685.
[75] Bradley Selway, 'Horizontal and Vertical Assumptions Within the Commonwealth Constitution' (2001) 12 Public Law Review 113, 134.
[76] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 193; Miller v TCN Nine [1986] HCA 60; (1986) 161 CLR 556, 581; Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 381; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 560.
[77] See Ronald Watts, Comparing Federal Systems (2nd ed, 1999) 99–100.
[78] Commonwealth v Mewett (1997) 191 CLR 471, 546–8.
[79] Re Carmody; Ex parte Glennan [2000] HCA 37; (2000) 173 ALR 145, 147; Re Patterson; Ex parte Taylor (2001) 182 ALR 657, 673 [64]; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 188 ALR 1, 67 [263].
[80] Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248, 278–9.
[81] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 560.
[82] Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51 ('Kable'). The 'incompatibility principle' had previously been justified in relation to federal courts on the basis that such a principle was necessary in order to prevent the separation of powers doctrine from being undermined: Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57, 67, 73–4, 81–2; Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, 362, 364–5, 376, 390, 398. However, since the decision in Kable extended the principle to state parliaments and state courts it is clear that the incompatibility principle can no longer be justified on the basis of separation of powers principles. Rather, the incompatibility principle is now justified on the basis that the text and structure of the Constitution require an 'integrated court system' dealing with an 'integrated system of law'. The incompatibility principle as it applies both to federal and state courts is no longer an aspect of the principle of separation of powers contained within Chapter III, even though it is related to it: Kable [1996] HCA 24; (1996) 189 CLR 51, 95, 103–4, 117.
[83] Kable [1996] HCA 24; (1996) 189 CLR 51, 95–6, 101–4, 110–16, 139–44. For example, the requirement of impartiality, which is recognised in the incompatibility principle, reflects the rule of law: Ex parte Miah (2001) 179 ALR 238, 282 n 133; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 176 ALR 644, 667 [103].
[84] It would appear that the Canadian Supreme Court also takes a relatively narrow view of the rule of law in a constitutional context: Reference re Secesssion of Quebec [1998] 2 SCR 217, 247-250, 257-261; 161 DLR (4th) 385, 409–11 [49]–[54], 417–20[70]–[78].
[85] Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 66–8, 112–14. Contrast Patrick Keyzer, 'Pfeiffer, Lange, the Common Law of the Constitution and the Constitutional Right to Natural Justice' (2000) 20 Australian Bar Review 87.
[86] This analysis is fundamentally the same as that of Kneebone, above n 3, 99 and of Gageler, above n 1, 309–10. It differs from Susan Kneebone's analysis in that it views the Constitution (rather than a different common law analysis) as being the distinguishing feature between the English and the Australian approach. It differs from Stephen Gageler's in that it does not concentrate on s 75(v) as being the only relevant constitutional provision, and identifies the role of the Constitution in the development of the common law.
[87] Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, 152–3; Leslie Zines, 'Federalism and Administrative Discretions in Australia, with European Comparisons' (2000) 28 Federal Law Review 291, 291–8.
[88] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 579–80; Nicholas v R [1998] HCA 9; (1998) 193 CLR 173, 197, 275–6; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Quin (1990) 170 CLR 1, 35–6; David Bennett, 'Balancing Judicial Review and Merits Review' (2000) 53 Administrative Review 3, 5–6.
[89] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 557–9.
[90] Keith Mason, 'The Rule of Law' in P D Finn (ed), Essays on Law and Government Vol 1 (1995) 114 , 125.
[91] See D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed, 1996) 22–26. For the purposes of this article it is unnecessary to consider what is the 'correct' common law approach to statutory interpretation: see discussion in Antonin Scalia, A Matter of Interpretation (1997).
[92] Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 141 (Brennan J).
[93] (2001) 185 ALR 183, 207 [113]; Australian Broadcasting Corporation v Lenah Game Meats (2001) 185 ALR 1, 56 [192] (Kirby J)
[94] Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 153 (Brennan J).
[95] See Adrienne Stone, 'The Nature of the Freedom of Political Communication' [2001] MelbULawRw 13; (2001) 25 Melbourne University Law Review 374, 405-6; M G Sexton, 'Constitutional Intersections: The Common Law and the Constitution' (Paper presented at the Australian National University, Canberra, Annual Public Law Weekend, 2 November, 2001) (copy on file with the author). This would seem to be a necessary consequence of the High Court's approach in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 565–6; Lipohar v The Queen (1999) 200 CLR 485, 509–10, 534–6, 550–4 and in Pfeiffer v Rogerson [2000] HCA 36; (2000) 203 CLR 503. See also Theophanous v Herald & Weekly Times [1994] HCA 46; (1994) 182 CLR 104, 141–3, 153–5 (Brennan J). However, Adrienne Stone, in the above article and in 'Freedom of Political Communication, the Constitution and the Common Law' (1998) 26 Federal Law Review 219 is critical of aspects of the High Court's approach, particularly in Lange. Those criticisms seem to be adopted by Callinan J in Australian Broadcasting Corporation v Lenah Game Meats (2002) 185 ALR 1, 102-3 [347].
[96] Mason, above n 65, 339–41.
[97] The extent of deference in Canada is discussed above. The Canadian Constitution does not contain a strict separation of judicial power. Rather there is a narrower principle prohibiting the conferral of jurisdiction contrary to s 96 of the Canadian Constitution: see MacMillan Bloedel v Simpson [1995] 4 SCR 725, 737-43; 130 DLR (4th) 368, 390–4. This principle does not necessarily prevent judicial functions being conferred on administrators, particularly if such functions can be viewed as ancillary to administrative functions: see generally Peter Hogg Constitutional Law of Canada (4th ed, 1997) 197–205. The principle of judicial independence recently identified in the Canadian Constitution in Reference Re Public Sector Pay Reduction Act (PEI) [1997] 3 SCR 3; 150 DLR (4th) 577 would seem to be similar to the 'incompatibility principle' as applied by the Australian High Court, rather than a strict separation of judicial power.
[98] See Chevron USA Inc v Natural Resources Defence Council Inc, [1984] USSC 140; 467 US 837 (1984) (' Chevron'). As to whether Chevron can be explained in constitutional terms, see Gummow J in Truth About Motorways v Macquarie (2000) 200 CLR 591, 635; Justice Ronald Sackville, 'The Limits of Judicial Review of Executive Action—Some Comparisons Between Australia and the United States' (2000) 28 Federal Law Review 315, 326; Bradley Selway, 'The Rule of Law, Invalidity and the Executive' (1998) 9 Public Law Review 196, 197–8. It is noted that the apparent breadth of the Chevron doctrine has recently been limited by the US Supreme Court: United States v Mead Corporation 121 US 2164 (2001).
[99] The effect of the Constitution in relation to state courts is more limited than in relation to federal courts: see Kable v Direction of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51. However, the effect upon the common law is the same. This is for two reasons. First, there is a single common law and not (as in the US) separate federal and State common laws. Second, the effect of the constitutional principle is not direct; it merely provides a direction for the development of the common law. The development need not be limited to the constitutional principle so long as it is not repugnant to it.
[100] In this context statutory 'appeals' de novo from administrative decisions must be distinguished from judicial review on the basis of merit. Even though there may be little or no difference in substance, the former will usually involve the exercise of judicial power; the latter would involve the exercise of executive power: see Precision Data Holdings v Wills (1991) 173 CLR 167, 189; R v Davison [1954] HCA 46; (1954) 90 CLR 353, 369–70; Pasini v United Mexican States (2002) 187 ALR 409, 412-3 [11]–[13], 421-7 [47]–[71]. This is not to deny that there may be some administrative functions which, by reason of their policy content, cannot be given to the judiciary even by describing the process as an 'appeal': see Mason, above n 65, 333–9.
[101] The 'aspirational' aspects of the rule of law are proper matters for the consideration of the parliament and the executive. They have done so. John McMillan has drawn attention to the 'extraordinary phase of executive and parliamentary leadership in developing administrative law over the last three decades': see John McMillan, 'Parliament and Administrative Law' in G Lindell and R Bennett, Parliament—The Vision in Hindsight (2001) 333 ff. Some public officers, particularly the Attorney-General, have a particular responsibility in respect of the 'aspirational' aspects of the rule of law: see Bradley Selway, 'The Duties of Lawyers Acting for Government' (1999) 10 Public Law Review 114. The aspirational aspects of the rule of law are still relevant within the Australian constitutional structure, but they cannot be enforced by judicial review.
[102] Contrast Sidebotham, above n 14, who discusses the relevant issues in the context of the debate that has occurred in England. However, in Australia the debate must have a different commencing point in the Commonwealth Constitution; it also reaches a different conclusion.
[103] Pelechowski v Registrar NSW Court of Appeal [1999] HCA 19; (1999) 198 CLR 435, 483–4 [145]; Re Heerey; Ex parte Heinrich [2001] HCA 74; (2001) 185 ALR 106, 110 [20]; See Aronson, above n 20; Peter Cane, 'Merits Review and Judicial Review—The AAT as Trojan Horse' (2000) 28 Federal Law Review 213, 220–21, 243. Of course, this merely reflects the fact that the distinction between judicial and non-judicial functions often appears artificial at least at the margins. However, at least Kirby J has doubted the constitutional significance of the distinction between jurisdictional and non-jurisdictional errors because the distinction is unsatisfactory: Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 188 ALR 1, 45 [172], 46 [175].
[104] Although the Canadian Constitution does not contain as rigid a separation of judicial power as does the Commonwealth Constitution (see above) a separation of powers still remains. In any event, the Canadian Supreme Court also takes a relatively narrow view of the rule of law as a principle within the Canadian Constitution: Reference re Secesssion of Quebec [1998] 161 DLR (4th) 385, 409–11 [49]–[54], 417–40[70]–[78].
[105] (2001) 177 ALR 436, 454 [62].
[106] Philip Joseph has commented (with considerable justification) '[f]or lawyers from outside the United Kingdom, the debate may seem excessively introspective and distracting' in Joseph, above n 45, 356.
[107] Stephen Gageler, 'The Legitimate Scope of Judicial Review' (2001) 21 Australian Bar Review 279, 281–90; Leslie Zines, 'Constitutional Aspects of Judicial Review of Administrative Action' (1998) 1 Constitutional Law and Policy Review 50; contrast Kneebone, above n 3, 100–11.
[108] See Construction Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645, 660 [43] (the Court); Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 133–6 (Kirby J); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, 290–92 (Kirby J). See also Gairy v Attorney-General (Grenada) [2001] UKPC 30; [2002] 1 AC 167, 178–81.
[109] See Minister for Immigration & Multicultural Affairs v Bhadwaj [2002] HCA 11; (2002) 187 ALR 117, 128 [47] (Gaudron and Gummow JJ); Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 91–101 (Gaudron and Gummow JJ), 128 (McHugh J), 135 (Kirby J), 141–3 (Hayne J); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, 245–6 (Gleeson CJ and Hayne J), 258 (Gaudron J), 266–7 (McHugh J).
[110] See discussion by Tony Cavanough, 'Constitutional Law: Intersections with Administrative Law' (Paper presented at the Australian National University, Canberra, Annual Public Law Weekend, 2 November, 2001) (copy on file with the author); Gageler, above n 107, 284–5.
[111] Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 188 ALR 1, 23 [86], 27-28 [98]–[100], 65-66 [255]–[260].
[112] Ibid at 70 [276].
[113] Ibid at 43 [165]. However the Convention Debates suggests that there was no clear reason why certiorari was not included: see Official Record of the Debates of the Australian Federal Convention, Melbourne, 31 January 1898, 320-1, 1875-85.
[114] [2002] HCA 16; (2002) 188 ALR 1, 8 [20], 17 [62], 21 [76], 62 [245]–[246] contrast 54 [207]–[208].
[115] See, eg, prosecution discretions, Barton v R [1980] HCA 48; (1980) 147 CLR 75, 94–6; Director of Public Prosecutions (SA) v B (1998) 194 CLR 566, 578–80 (contrast the English position: R (Pretty) v DPP [2001] UKHL 61; [2002] 1 All ER 1, 31, 33–4).