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First, if the privative clause applies to a court established under Chapter III
of the Commonwealth Constitution, there would be inevitable constitutional
friction. As previously stated, s75(v) of the Constitution enshrines the High
Court’s power to grant, as against an officer of the Commonwealth, the writs
of mandamus and prohibition, or an injunction. If the privative clause were
allowed to operate in accordance with its ordinary meaning, this would require
a highly restrictive interpretation of s75(v) of the Constitution. We submit that
this would run counter to accepted precedent, and such a development would be
undesirable.
Second, a privative clause of this nature, if interpreted literally, would be incon-
sistent with the principle of the separation of powers. In essence, the separation of
366 AUSTRALIAN ADMINISTRATIVE LAW


powers is a mechanism to avert the tyranny which could otherwise result from the
confluence of power in any one arm of government. As Montesquieu observed:

When the legislative and executive powers are united in the same person, or in the
same body of magistrates, there can be no liberty; because apprehensions may arise,
lest the same monarch or senate should enact tyrannical laws to execute them in a
tyrannical manner. Again, there is no liberty, if the judicial power be not separated
from the legislative and executive.110

The separation of powers, as a principle, has been found to be embedded in the
text and structure of the Federal Constitution.111
There was considerable concern that the United Kingdom’s proposed privative
clause breached the separation of powers principle.112 Like the Australian pro-
posal, it explicitly tried to exclude the courts’ ‘supervisory or other jurisdiction
(whether statutory or inherent)’ in respect of a specified class of administra-
tive decisions. Such a provision constitutes a direct threat to the separation of
powers because, if permitted to operate in this way, it prevents the courts from
fulfilling their constitutional role. As such, we believe that the High Court in
particular would be very reluctant to permit a privative clause to operate in this
manner.
Third, it has been our argument throughout this chapter that if (as was pro-
posed in the two examples considered in this section) a new form of privative
clause is directed towards administrative decision-making that affected individ-
uals’ fundamental rights, courts are less likely to permit its full operation. Both
of the exemplars of the new breed of privative clause would have operated in
the migration field, and would even have included decisions to refuse a person
refugee status.113 It is quite proper for a court to look to the subject matter to which
a legislative provision is directed in the process of statutory interpretation. The
High Court has affirmed the correctness of this approach in many situations. For
instance, in finding that the requirements of natural justice should not be taken
to be excluded in respect of decisions made under the Migration Act 1958 (Cth),
McHugh J referred to the following relevant factor:

Here, the nature of the interest is the prosecutor’s personal security. The consequences
for him include returning to face serious threats to his personal security, if not to his
life. The subject matter of the legislation is undeniably important – it enacts Australia’s
international obligations towards some of the world’s most vulnerable citizens.114

Finally, this new form of privative clause offends the rule of law. One of the
fundamental elements of the rule of law, as traditionally conceived, has always
been that government power should be exercised by clearly articulated legis-
lation as distinct from executive decrees.115 By immunising jurisdictional error
from curial correction by way of judicial review, the effective discretion of admin-
istrative decision makers is increased exponentially. As Lord Denning stated: ‘If
[administrative] tribunals were to be at liberty to exceed their jurisdiction with-
out any check by the courts, the rule of law would be at an end.’116
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PRIVATIVE CLAUSES


In relation to the proposed United Kingdom’s privative clause, Lord Steyn
stated extra-judicially: ‘The Bill attempts to immunise manifest illegality. It is
an astonishing measure. It is contrary to the rule of law.’117 The same argument
could, of course, be made in relation to the Australian example considered in this
part. Dixon J has stated, in obiter, that the rule of law is ‘an assumption’ of the
Australian Constitution.118 The High Court of Australia has not yet been obliged to
decide whether this means that it could or should invalidate a statutory provision
found to contravene the rule of law.119 It may be that, if faced with a privative
clause such as those outlined in this part, the Court would be forced to address
this question and Dixon J’s argument might be used to invalidate such a provision,
assuming it is found to contravene the rule of law. Kirby J makes this point with
customary eloquence in Fish v Solution 6 Holdings Limited.120 Referring to the
inclusion of ‘purported’ decisions within the scope of the privative clause in s179
of the Industrial Relations Act 1996 (NSW), Kirby J stated:
The rule of law, which is an acknowledged implication of the Australian Constitution,
imposes ultimate limits on the power of any legislature to render governmental action,
federal, State or Territory, immune from conformity to the law and scrutiny by the
courts against that basal standard.121

For all of these reasons, we believe that the courts will continue to resist
strongly any attempt to preclude them from engaging in judicial review to remedy
administrative decisions infected with jurisdictional error.
23
Administrative law judicial remedies
Stephen Gageler




A rational system of law would start with matters of substance – it would prescribe
legal norms. It would separately prescribe legal remedies for breach of those legal
norms. It would provide a single procedure for a person claiming to be affected
by a breach of a legal norm to apply to a court for a legal remedy. It would
ultimately allow the court to grant whatever legal remedy was appropriate to the
breach found. Unfortunately, a rational system of that nature has not been the
legacy of the common law which has instead fastened ‘not upon principles but
upon remedies’.1 Much of the development of administrative law in the last 150
years has involved attempts in various ways to create a system in which principle
prevails and in which remedies are functional and subservient.


The historical legacy

It is sometimes forgotten that the whole of the common law was once adminis-
tered through a system of ‘writs’. The writs were numerous but finite in number.
Each had its own ‘uncouth name’.2 Each contained a unique command of the
sovereign. Each was founded on a ‘form of action’ expressed or ‘endorsed’ on
the writ in rigid and formulaic terms. The substantive law was constrained to fit
the formulaic terms of the form of action but often strained against them. When
a form of action failed to meet the demands of justice, the form prevailed and
a ‘fiction’ was invented. There would be said to be an ‘implied’ or ‘constructive’
fulfillment of an otherwise unfulfilled element of the form of action.
Supplementing the common law and to some extent ameliorating its rigidity
was the separately administered body of law known as ‘equity’. Equity had its
own bevy of writs expressing still more commands of the sovereign. And equity

368
369
ADMINISTRATIVE LAW JUDICIAL REMEDIES


administered those writs according to its own canon of ‘equitable principle’. The
broadest and most flexible of the writs in equity was the ‘writ of injunction’: ‘a
judicial process whereby a party was required to do a particular thing or refrain
from doing a particular thing according to the exigency of the writ’.3 A writ of
injunction was available not only to redress a legal wrong where the common
law was perceived as failing to provide an adequate remedy but also to restrain
the ‘unconscionable’ exercise of a legal right.
All of the writs were commands of the sovereign to her ‘subjects’. None of them
was a command of the sovereign to herself or to her ‘servants’ or ‘ministers’ acting
as such as distinct from acting as holders of a separate office. It was in this sense
that the sovereign and derivatively her central government ‘could do no wrong’.
A claim that the sovereign or her government had infringed a legal right of the
subject recognised by the common law could be made against the sovereign but
only with the sovereign’s permission or ‘fiat’ on a ‘petition of right’. The result
would be a ‘declaration of right’ which the sovereign could choose to honour.
A series of statutory reforms in the United Kingdom in the middle part of the
nineteenth century culminated in 1875 with the abolition in proceedings between
‘subject’ and ‘subject’ of the common law ‘forms of action’ and the simultaneous
assimilation of law and equity.4 The multiple writs were replaced with a sin-
gle writ of summons which brought the disputing ‘subjects’ before the court to
present their cases and receive whatever legal remedy was appropriate. Statutory
reform also provided for a general remedy of a declaration of right, something
unknown to the common law and to equity alike. The result, as recognised by
Maitland writing in the idiom of his day in the early part of the twentieth cen-
tury, was ‘an important improvement in the law’: ‘for the attention [was] freed
from the complexity of conflicting and overlapping systems of precedents and
[could] be directed to the real problem of what [were] the rights between man
and man, what is the substantive law’.5 The procedural reform thus wrought
by statute facilitated the significant judicial and academic development of the
substantive law of contract and of tort that occurred in the late part of the nine-
teenth century and the early part of the twentieth century. More recently, it has
facilitated the judicial and academic development of the substantive law of resti-
tution. Once labelled ‘quasi-contract’ and constrained to fit the elements of the
action of ‘indebitatus assumpsit’, restitution has been cut loose from the fiction of
an implied contract to develop as a discrete body of jurisprudence.6
Left untouched by the statutory reforms of the mid-nineteenth century and
remaining ‘isolated survivors from the old era’7 were the ‘prerogative writs’.
These were common law writs designed not to address legal rights in proceed-
ings between ‘subject’ and ‘subject’ but to convey the commands of the sovereign
to officers who exercised or purported to exercise authority on the sovereign’s
behalf. The proceedings in which the prerogative writs issued were not ‘inter
partes’ but ‘ex parte’; a ‘subject’ would invoke the jurisdiction of the common law
court by seeking the issue in the name of the sovereign of an ‘order nisi’ calling
upon the officer as ‘respondent’ to ‘show cause’ why a particular writ should not
370 AUSTRALIAN ADMINISTRATIVE LAW


issue on grounds stated in the order. The ‘order nisi’ would issue only if the court
was sufficiently persuaded at the outset that a ground existed for the issue of
the writ. The order nisi would subsequently be made ‘absolute’ if the ground for
its issue remained unanswered after the officer had had an opportunity to show
cause.
Chief among the prerogative writs were the writs of ‘mandamus’,
‘prohibition’ and ‘certiorari’. Mandamus (from the Latin ‘to charge or command’)
was able to be issued to any officer who was charged with the performance of a
public duty. It issued upon proof of a refusal on the part of the officer to whom
it was directed to comply with a demand that the officer perform the duty. The
writ in form charged or commanded the officer to perform the duty. Prohibition
and certiorari were slightly more limited in their reach. They were each able to
be issued only to an officer who exercised some ‘judicial’ function. The notion of
a ‘judicial function’, however, extended to an extensive range of what would now
be regarded as administrative functions then reposed in justices of the peace. The
justices ‘did administrative work under judicial forms’.8 Prohibition was simply
a restraining order. It prohibited the judicial officer from doing some threatened
act which was beyond the judicial authority or ‘jurisdiction’ of the officer. Certio-
rari (from the Latin ‘to be informed’) required the judicial officer to produce the
‘record’ of proceedings before the officer so that its correctness could be reviewed
and the legal effect of any resulting exercise or purported exercise of authority
by the officer could be ‘quashed’ if it could be shown that the officer exceeded
his jurisdiction or if it could be shown on the face of the ‘record’ that his decision
was otherwise legally erroneous.
Likened by Lord Denning in the middle of the twentieth century to a ‘pick and
shovel’,9 the prerogative writs were adapted in the tradition of the common law to
meet the demands of the modern administrative state. Mandamus was extended
to cover not only an actual refusal to perform a duty following an actual demand
but also a ‘constructive’ refusal to perform a duty notwithstanding a purported
attempt to do so. This would occur where the purported performance of the duty
failed to comply with some requirement essential to its valid or effectual perfor-
mance. In such a case the officer could ‘be commanded by the writ to execute his
function according to law de novo, at any rate if a sufficient demand or request to
do so has been made upon him’.10 Certiorari and prohibition were extended so as
to be able to issue not only to officers exercising ‘judicial’ authority but to officers
exercising ‘quasi-judicial’ authority. Devoid of any real meaning, the term ‘quasi-
judicial’ was itself extended to encompass any authority to determine questions
affecting legal rights where the repository had a duty to ‘act judicially’11 and came
ultimately to be treated as superfluous. The explanation for this extension was
that a duty to ‘act judicially’ sufficient to attract certiorari and prohibition was
automatically imposed upon any repository of power to affect legal rights.12 What
constituted the ‘record’ for the purposes of certiorari also underwent a brief but
significant expansion13 only to be superseded by the revelation in Anisminic Ltd
v Foreign Compensation Commission14 that any error of law would result in the
371
ADMINISTRATIVE LAW JUDICIAL REMEDIES


officer exceeding jurisdiction. The explanation was that if the officer mistook the
law to be applied to the facts as found by the officer it followed that the officer
‘must have asked the wrong question’ and that the question the officer asked was
one into which he or she ‘was not empowered to inquire and so had no jurisdiction
to determine’.15 It therefore ceased to matter whether or not the error of law was
on the face of the record. Indeed, it became redundant to describe an error of law
as resulting in the officer exceeding jurisdiction. Any error of law could result in
prohibition or certiorari being issued to restrain or correct it.
Uneasily coexisting with the prerogative writs were now the statutory remedy
of declaration and the equitable remedy of injunction both available through
the separate procedure of a writ of summons. The availability of the former to
declare the validity or invalidity of acts purporting to be performed on behalf
of the sovereign was confirmed as early as 1911.16 By the 1950s it had come to
be regarded as an accepted method of challenging administrative action and as
having the potential to usurp the writ of certiorari.17 The availability of the latter
to prohibit or compel administrative action had the potential to usurp the writs
of mandamus and prohibition. However, in practice the utility of injunctions
tended to be limited by two factors. One was more restrictive rules of standing
than those which existed for the issue of either mandamus or prohibition: whereas
mandamus and prohibition could each be sought by a ‘stranger’, the ability to seek
an injunction was for the most part confined to a person who could demonstrate
that the action sought to be restrained infringed a private right.18 The other was
the lack of availability of injunctive relief against a Minister or other officer of
the sovereign.
The result, as summarised by Professor de Smith in the 1970s, was that:19

Until the Legislature intervenes, therefore, we shall continue to have two sets of reme-
dies against the usurpation or abuse of power remedies which overlap but do not
coincide, which must be sought in wholly distinct forms of proceedings, which are
overlaid with technicalities and fine distinctions, but which would conjointly cover a
very substantial area of the existing field of judicial control. This state of affairs bears
a striking resemblance to that which obtained when English civil procedure was still
bedevilled by the old forms of action.



Statutory reform in the United Kingdom

Although the writs of mandamus, certiorari and prohibition were replaced in
1938 with ‘orders’ having the same name and scope,20 significant statutory
reform of the legal remedies available in administrative law in the United King-
dom did not occur until 1977, more than a century after the more general reforms
of the mid-nineteenth century. What has since come to be regarded as a reform as
momentous for the relationship between the citizen and the state as that which
occurred a century earlier in relation to proceedings between ‘subject’ and ‘sub-
ject’ occurred in that year with the ostensibly modest implementation by rules
372 AUSTRALIAN ADMINISTRATIVE LAW


of court of the single procedure of an ‘application for judicial review’ able to be
commenced by an applicant with a ‘sufficient interest in the matter to which
the application relates’.21 The nomenclature of the prerogative writs was for a
time preserved. So too were the remedies of declaration and injunction. But
each was made a discretionary form of relief available as a potential outcome
of a single procedure. There was thenceforth to be a single application for ‘an
order of mandamus, prohibition or certiorari’ which was combined as appro-
priate with an application for a declaration or injunction. The latter could now
always be granted on an application for judicial review, but only where the court
considered it ‘just and convenient’ to do so. The procedure for making the new
application for judicial review differed from that applicable to an ordinary action
in that it required the permission or leave of the court to proceed and the time
limits within which the proceeding could be commenced were shorter.
The consequence of this procedural reform, as interpreted by the House of
Lords in 1983 in O’Reilly v Mackman,22 was to facilitate the creation of a dis-
tinct field of ‘public law’ now regulated by the distinct procedure of ‘judicial
review’ as a result of which the court could order ‘whichever remedy is found
to be most appropriate in the light of what has emerged upon the hearing of
the application’.23 The general rule was laid down that it was to be regarded as
‘contrary to public policy, and as such an abuse of the process of the court, to per-
mit a person seeking to establish that a decision of a public authority infringed
rights to which he was entitled to protection under public law to proceed by way
of ordinary action’ including by way of ordinary action simply for a declaration
or injunction.24 Within a relatively short time, and as the direct result of the
procedural changes which had taken place, there occurred a substantial merger
of the rules for standing for seeking the various remedies that were available
on an application for an order of review25 and injunctive relief was accepted as
having become available in such an application against a minister or other officer
of the sovereign.26 Further reform of the rules of court in 200027 resulted in a
modernisation of nomenclature and with it a falling away of old distinctions:
certiorari has become simply a ‘quashing order’; prohibition a ‘prohibitory order’
and mandamus a ‘mandatory order’.28
This distinction between ‘public law’ and ‘private law’ which emerged in
O’Reilly v Mackman has been the subject of much debate and has been criti-
cised as itself introducing procedural complexity. Procedurally, its strictness has
been modified by later developments.29
The distinction which emerged in O’Reilly v Mackman was described the year
following as having ‘recently been imported into the law of England from coun-
tries which . . . have separate systems concerning public and private law’.30 The
reference was to European systems into which the law of the United Kingdom has
since become increasingly integrated. The distinction has now taken firm root in
the discourse of substantive legal doctrine.31 It has become possible, for exam-
ple, to speak of ‘general principles of public law’32 just as it has become possible
to speak of ‘the common law of the European Union’.33 The significant point for
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ADMINISTRATIVE LAW JUDICIAL REMEDIES


present purposes is that the distinction was one the articulation of which was able
to be initiated not through any reform of the substance of the law but through a
reform of procedure.


Statutory reform in Australia

At the time of federation, and for much of the twentieth century, the Supreme
Courts of each state retained the prerogative writ procedures of the common law.
As in the United Kingdom, the statutory remedy of declaration and the equitable
remedy of injunction were both available.
While it is unprofitable to examine the historical development in each state,
because of its proximity to the changes which were shortly to occur both in the
United Kingdom and at the Commonwealth level, the enactment of the Supreme
Court Act 1970 (NSW) is worthy of note. Where formerly the Supreme Court
had jurisdiction to issue writs of mandamus, prohibition or certiorari, that juris-
diction was replaced by a jurisdiction to grant remedies of the same nature by
order in ordinary proceedings commenced by writ of summons.34 In addition,
it was declared that the jurisdiction of the Supreme Court to make an order in
the nature of certiorari extended to quashing an ultimate determination of a
court or tribunal made on the basis of an error of law appearing on the face of
the record and that the ‘record’ for this purpose included the reasons expressed
by the court or tribunal for making the ultimate determination.35 At the same
time, the Supreme Court was separately empowered to ‘order any person to fulfill
any duty in the fulfillment of which the person seeking the order is personally
interested’36 and confirmed in its general power to make declarations.37 The con-
sequence, as judicially expounded almost immediately, was to deny continuing
relevance to the ‘adjectival aspects of the prerogative writs’, to allow ‘relief of at
least equivalent significance [to be] more readily available to be sought under
one or other of the new provisions’ and thereby to allow the Supreme Court to
direct its attention ‘to the matter of substance involved in the dispute between
the parties’ and to avoid being distracted by the ‘tedious and profitless task’ of
examining ‘the authorities, old and new, upon adjectival considerations affecting
the grant of the writ[s]’.38
Removal of the procedural complications attendant on the grant of the prerog-
ative writs also underlay the statutory development of a different nature which
occurred at the Commonwealth level with the enactment in the same year as the
statutory reform in the United Kingdom of the Administrative Decisions (Judicial
Review) Act 1977 (Cth).39 That Act conferred on the newly-created Federal Court
of Australia jurisdiction to entertain an ‘application for an order of review’ by a
‘person aggrieved’ in respect of a ‘decision’ having an ‘administrative character’
made under a Commonwealth enactment.
The structure of the Administrative Decisions (Judicial Review) Act was to a very
large extent a reflection of the prerogative writs it was designed to supersede.
374 AUSTRALIAN ADMINISTRATIVE LAW


It made provision for not one but three kinds of application for an order of
review each of which was capable of being made only on specified ‘grounds’.
The grounds largely replicated those which had by then come to be recognised
at common law. The kinds of application for which provision was made were:
by s5 an application for an order of review in respect of a decision that had
already been made (in substance statutory certiorari); by s6 an application for
an order of review in respect of conduct in which a person had been or was
engaged for the purpose of making a decision (in substance statutory prohibi-
tion); and an application for an order of review in respect of a failure to make
a decision (in substance statutory mandamus). Each kind of application then
gave rise to its own range of remedial orders to be available, in the exercise of
judicial discretion, upon the establishment of any one or more specified grounds
of review. The remedies so provided were designed to be simple, broad and
flexible.
The key provision in this respect was s16. It provided:


(1) On an application for an order of review in respect of a decision, the Court may,
in its discretion, make all or any of the following orders:
a. an order quashing or setting aside the decision, or a part of the decision, with
effect from the date of the order or from such earlier or later date as the Court
specifies;
b. an order referring the matter to which the decision relates to the person who
made the decision for further consideration, subject to such directions as the
Court thinks fit;
c. an order declaring the rights of the parties in respect of any matter to which
the decision relates;
d. an order directing any of the parties to do, or to refrain from doing, any act or
thing the doing, or the refraining from the doing, of which the Court considers
necessary to do justice between the parties.
(2) On an application for an order of review in respect of conduct that has been, is
being, or is proposed to be, engaged in for the purpose of the making of a decision,
the Court may, in its discretion, make either or both of the following orders:
a. an order declaring the rights of the parties in respect of any matter to which
the conduct relates;
b. an order directing any of the parties to do, or to refrain from doing, any act or
thing the doing, or the refraining from the doing, of which the Court considers
necessary to do justice between the parties.
(3) On an application for an order of review in respect of a failure to make a decision,
or in respect of a failure to make a decision within the period within which the
decision was required to be made, the Court may, in its discretion, make all or any
of the following orders:
a. an order directing the making of the decision;
b. an order declaring the rights of the parties in relation to the making of the
decision;
c. an order directing any of the parties to do, or to refrain from doing, any act or
thing the doing, or the refraining from the doing, of which the Court considers
necessary to do justice between the parties.40
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ADMINISTRATIVE LAW JUDICIAL REMEDIES


Commenting on the scope of the declaratory and injunctive powers conferred by
s16(1)(c) and (d) – in terms identical to each of s16(2)(a) and (b) and s16(3)(b)
and (c) – the High Court said in Park Oh Ho v Minister for Immigration and Ethnic
Affairs:41

The legislative purpose to be discerned in the conferral by s16(1)(c) and (d) of power
to grant declaratory and injunctive relief in addition to the power to quash or set
aside (with effect from a specified date) an impugned decision is clear. It is to allow
flexibility in the framing of orders so that the issues properly raised in the review
proceedings can be disposed of in a way which will achieve what is ‘necessary to do
justice between the parties’ (s16(1)(d)) and which will avoid unnecessary re-litigation
between the parties of those issues. The scope of the powers to make orders which the
sub-section confers should not, in the context of that legislative purpose, be constricted
by undue technicality. In particular, the phrase ‘any matter to which the decision relates’
in s16(1)(c) should be construed as encompassing any matter which is so related to,
in the sense of connected with, the impugned decision that it is appropriate that it
be dealt with by the grant of declaratory relief in judicial proceedings for the review
of the propriety of that decision. In a case such as the present where the impugned
decision is a deportation order which has been found to have been null and void ab
initio, the lawfulness of a period of forced imprisonment which was based solely on the
void order could, depending on the circumstances, be such a matter. If the applicant
in such a case is still held in custody by persons under the control of the respondent
decision maker, an injunctive order that the respondent do whatever be necessary to
procure the applicant’s release could be properly considered as ‘necessary to do justice
between the parties’. In that regard, it is relevant to mention that both declaratory
and injunctive orders, as distinct from an order for damages, can readily be seen as
appropriate remedies of judicial ‘review’ of administrative decisions and actions.

Wide though they were proclaimed to be, the ancillary remedial powers so con-
ferred on the Federal Court were not left entirely at large. The express qualifica-
tion on the power of the Federal Court under s16(1)(d), s16(2)(b) and s16(3)(c)
to make orders in the nature of injunctions or statutory prohibition, expressly
limited to those which ‘the Court considers necessary to do justice between the
parties’, was held to refer to ‘justice according to law’.42 The power was therefore
interpreted as authorising no relief to which a person would not be entitled at
general law.
Although for a time hugely influential on the development of substantive
administrative law throughout Australia, and recently replicated in two states,
the significance of the Administrative Decisions (Judicial Review) Act has receded
over the past two decades. This has been under three main influences. The first has
been recognition of the limitations inherent in its jurisdictional requirement for a
‘decision’ of an ‘administrative character’.43 The second has been the concurrent
conferral on the Federal Court by amendment to the Judiciary Act 1903 (Cth) of
other bases of jurisdiction which are not subject to those limitations: in 1983 the
Federal Court was invested with jurisdiction in terms equivalent to that conferred
on the High Court by s75(v) of the Constitution44 and in 1997 its jurisdiction was
further expanded to include any matter arising under a law of the Commonwealth
376 AUSTRALIAN ADMINISTRATIVE LAW


Parliament.45 The third and more pervasive influence has been the legislative
withdrawal of a range of decisions from the jurisdiction conferred on the Federal
Court by the Administrative Decisions (Judicial Review) Act particularly in the field
of migration.



Refocus on the Constitution

A result of first the conferral and then the contraction of the jurisdiction of the
Federal Court under the Administrative Decisions (Judicial Review) Act has been to
stimulate a refocus on the original jurisdiction conferred on the High Court by s75
of the Constitution. Two aspects of that jurisdiction have particular significance
to administrative law. By virtue of s75(iii) of the Constitution, the High Court
has original jurisdiction in all matters in which the Commonwealth or a person
being sued on behalf of the Commonwealth is a party. By virtue of s75(v) of the
Constitution the High Court also has original jurisdiction in all matters in which
‘a writ of mandamus or prohibition or an injunction is sought against an officer
of the Commonwealth’.
Where its original jurisdiction is invoked, the High Court has always had
statutory power under the Judiciary Act to make and pronounce all orders as
may be ‘necessary for doing complete justice’ in the matter before it46 and, in
addition, has always been specifically empowered to make orders which include
‘commanding the performance of any duty by any person holding office under the
Commonwealth’.47 Before the enactment of the Administrative Decisions (Judicial
Review) Act, the availability of statutory relief in the exercise of the original
jurisdiction conferred on the High Court by s75(iii) of the Constitution had come
to be recognised as providing a sufficient foundation for an action in the original
jurisdiction of the High Court seeking declaratory or injunctive relief against a
Commonwealth administrator.48
However, it is in the irreducible minimum of the remedies which define the
original jurisdiction of the High Court under s75(v) of the Constitution that the
essential nature of the judicial review of administrative action has been found to
exist. In the face of a privative clause expressed to render a decision ‘final and
conclusive’, incapable of ‘challenge’ or ‘review’ and ‘not subject to prohibition,
mandamus, injunction, declaration or certiorari in any court on any count’,49 the
High Court in Plaintiff S157/2002 v Commonwealth50 recalled and acted upon
the observation of Dixon J in R v Hickman; Ex parte Fox and Clinton:51


It is, of course, quite impossible for the Parliament to give power to any judicial or other
authority which goes beyond the subject matter of the legislative power conferred by
the Constitution . . . It is equally impossible for the legislature to impose limits upon the
quasi-judicial authority of a body which it sets up with the intention that any excess
of that authority means invalidity, and yet, at the same time, to deprive this Court of
authority to restrain the invalid action of the court or body by prohibition.
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ADMINISTRATIVE LAW JUDICIAL REMEDIES


The result was to confirm what had been expressed earlier in more general
terms by Griffith CJ in The Tramways Case [No 1]:52 that the consequence of the
entrenched position of s75(v) is that ‘any act done under the asserted authority
of a Commonwealth law may be impeached in appropriate proceedings on the
ground that it was done in excess of the authority’ and that the Commonwealth
Parliament ‘cannot take away this right by any form of words or any device’.
The exegesis of the varying circumstances in which the limited remedies for
which s75(v) of the Constitution provides are available has influenced the High
Court during the last decade in shaping the content of the substantive law not
only in matters within its original jurisdiction but more generally in matters in
which it has exercised appellate jurisdiction. A number of particular features of
s75(v) have been highly influential.
The first is that s75(v) is expressed not in terms of a substantive principle but in
terms of a conferral of jurisdiction on the High Court of inviolable constitutional
status to grant specified remedial orders. What were once ‘prerogative writs’ have
become ‘constitutional writs’. Under that guise what has occurred yet again is that
the form of remedy for which the ancient writs of mandamus and prohibition
provide has both driven and constrained the development of substantive legal
principle.
The second is that the ‘officer of the Commonwealth’ against whom relief may
be sought under s75(v) includes a Commonwealth judicial officer as well as a
Commonwealth executive or administrative officer. The same jurisdiction that
allows the High Court to grant mandamus or prohibition to a Commonwealth
administrator allows it to grant mandamus or prohibition to the Federal Court or
to the Family Court of Australia.53 Any explanation of the nature of the conduct to
which the relief available under s75(v) can be directed must therefore be capable
of equal application to judicial acts as well as administrative acts. Whereas the
terminology of ‘ultra vires’ is appropriate to describe administrative acts under-
taken without authority, it has never been applied to unauthorised judicial acts.
The terminology of ‘jurisdictional error’, on the other hand, is not only traditional
but apposite to describe both unauthorised administrative acts and unauthorised
judicial acts. In the context of Commonwealth judicial officers, the terminology
of ‘jurisdictional error’ is particularly apposite to describe an unauthorised act of
such an officer given the terms in which s77 of the Constitution confers on the
Commonwealth Parliament power to make laws ‘[d]efining the jurisdiction of
any federal court other than the High Court’.
It is therefore unsurprising that the refocus on s75(v) has brought with it
a return to the traditional conception of the writs of mandamus and prohibi-
tion being concerned with ‘jurisdictional error’ sometimes referred to as either
a ‘want of jurisdiction’ or an ‘excess of jurisdiction’. What ‘jurisdictional error’
in every case amounts to is a breach of some express or implied legislative
condition which defines the ambit and powers of the Commonwealth judicial
officer or Commonwealth executive or administrative officer to whom the writ is
directed.54
378 AUSTRALIAN ADMINISTRATIVE LAW


The necessary retention of the concept of ‘jurisdictional error’ as applicable to
Commonwealth judicial officers and Commonwealth executive or administrative
officers alike has also inhibited acceptance in Australia of the broader implication
of Anisminic Ltd v Foreign Compensation Commission that any error of law results
in an officer exceeding jurisdiction. As explained in Craig v South Australia, with
faint but nevertheless significant allusion to the constitutional underpinning, it
is ‘important to bear in mind a critical distinction which exists between adminis-
trative tribunals and courts of law’.55
The third of the features of s75(v) of the Constitution to have had a bearing
on the development of administrative law is the absence from the collocation of
remedies of a writ of certiorari. This had two influences. One has been to expand
the scope of prohibition and mandamus to the point where one or other of them
is available to challenge what is in fact a final decision – prohibition on the basis
that the decision has ongoing legal consequences and mandamus on the basis
that a decision affected by ‘jurisdictional error’ is in law no decision at all with the
consequence that any duty pursuant to which the decision was purportedly made
remains unperformed. The other influence has been substantially to negate the
development of any separate role for that writ by treating its statutory availability
by virtue of the Judiciary Act as simply ancillary to the grant of relief under
s75(v)56 and by reducing its scope to issue for error of law on the face of the
record by minimising almost to the point of oblivion what is to constitute the
‘record’ for that purpose.57
Finally, there is the enigmatic presence in s75(v) of the remedy of injunction.
A more generous approach to standing to seek injunctive as well as declaratory
relief has come to prevail in Australia, requiring not that a plaintiff seek to vindi-
cate a private right but only that the plaintiff have ‘a special interest in the subject
matter of the action’.58 In addition, less inhibition has been shown to granting
one or other of those additional forms of relief in proceedings principally for pre-
rogative or constitutional writs in which the writ has been found wanting.59 The
result has been to allow a declaration or injunction to be granted by reference
to equitable principle ‘on the footing of the inadequacy (in particular the techni-
calities hedging the prerogative remedies otherwise available) to vindicate the
public interest in the maintenance of due administration’.60 Indeed, it has been
pointed out that there has never been in Australia any inhibition on the grant of
an injunction to a minister who is for the purposes of s75(v) just another officer
of the Commonwealth.61

The ideal of the triumph of substance over procedure remains elusive. The step
taken for better or for worse in O’Reilly v Mackman has not been replicated in
Australia. Here no sharp distinction between ‘public law’ and a proceeding by
way of ‘ordinary action’ has been drawn. Rather, ‘[s]ignificant questions of public
law . . . are determined in litigation which does not answer the description of
judicial review of administrative action by the medium of the prerogative writs or
statutory regimes’. 62 This is in very large part because ‘in Australia, the existence
379
ADMINISTRATIVE LAW JUDICIAL REMEDIES


of a basic law which is a written federal constitution, with separation of the
judicial power, necessarily presents a frame of reference which differs from both
the English and other European systems . . . ’.63
The promise of procedural simplicity and flexible remedies held out by the
Administrative Decisions (Judicial Review) Act has been unfulfilled to the extent of
its jurisdictional limitations. Yet refocus on s75(v) of the Constitution has allowed
a different paradigm of judicial review to emerge in Australia: one focused under
the rubric of ‘jurisdictional error’ on the provision of remedies for breach of a
legislative condition which defines the ambit and powers of the Commonwealth
judicial officer or Commonwealth executive or administrative officer.
Notes


Foreword
1 Church of Scientology v Woodward (1982) 154 CLR 25 at 70 per Brennan J (as he then
was)




Chapter 1
1 See AW Bradley, ‘Administrative Justice: A Developing Human Right?’ (1995) 1 Euro-
pean Public Law 347, who argues that the collective rights offered by administrative
law are developing into a new and distinct human right. The Chief Justice of Canada
took a similar view when she suggested that people regard the ability to challenge
and seek a justification for administrative decisions as a ‘right’: Hon B McLachlin, ‘The
Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law’ (1998)
12, Canadian Journal of Administrative Law and Practice 171 at 174.
2 Much of this list is drawn from M Aronson, B Dyer and M Groves, Judicial Review of
Administrative Action (3rd edn, LBC Information Services, 2004) 1.
3 Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 193 (Dixon J).
4 [1891] AC 173.
5 ibid, 179 (footnotes omitted).
6 See, for example, Kruger v Commonwealth (1997) 190 CLR 1 at 36; Minister for Immi-
gration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 532; Re Patterson; Ex
parte Taylor (2001) 207 CLR 391 at 447; Re Minister for Immigration and Multicultural
Affairs; Ex parte S20/2002 (2003) 198 ALR 59 at [54].
7 DJ Galligan, Discretionary Powers (Clarendon Press, 1986) 4.
8 See, for example, Aronson, Dyer and Groves, n2 above, 85–93.
9 The analysis of privative clauses by Crock and Santow in chapter 22 shows just how
hard it can be for parliaments to undermine these foundational assumptions in an
effective manner.
10 A leading English work on judicial review has long maintained that the control of
government power lies at the ‘heart’ of all administrative law: HWR Wade and CF
Forsyth, Administrative Law (9th edn, OUP, 2004) 4.
11 (1992) 177 CLR 106.
12 ibid, 138.
13 Commonwealth Constitution, s64.
14 This is subject to a minor qualification set out in s64 of the Commonwealth Constitution:
‘After the first general election no Minister of State shall hold office for a longer period
than three months unless he is or becomes a senator or a member of the House of
Representatives.’
15 See, for example, Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 69–70 (Deane
and Toohey JJ); Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at
559; Wetzel v District Court of NSW (1998) 43 NSWLR 687 at 688 (Mason P).
16 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 559.

381
382 NOTES


17 The report that led to the introduction of the federal administrative law reforms of the
late 1970s was strongly influenced by the view that ministerial accountability was an
inadequate means of control for administrative failings: Commonwealth Administra-
tive Review Committee, Report (AGPS, 1971).
18 (1994) 75 A Crim R 205.
19 ibid, 210.
20 (1992) 177 CLR 106.
21 ibid, 136.
22 The possible impact of these changes is examined in Chapter 4.
23 The most notable instance is Jackson v Attorney-General [2006] 1 AC 262, discussed in J
Jowell, ‘Parliamentary Sovereignty Under the New Constitutional Hypothesis’ [2006]
Public Law 562.
24 Though similar considerations already apply in Australia, at least to the interpretation
of privative clauses: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 492
(Gleeson CJ).
25 The ground is explained in Julian Rivers, ‘Proportionality and Variable Intensity of
Review’ (2006) 65 Cambridge Law Journal 174.
26 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73.
The Privy Council reached a similar view in Attorney-General (Cth) v R (1957) 95 CLR
529, 540 (The Boilermakers’ Case). The early evolution of the doctrine is traced in C
Saunders, ‘The Separation of Powers’ in B Opeskin and F Wheeler (eds), The Australian
Federal Judicial System (Federation Press, 2000).
27 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73.
28 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1.
29 ibid, 11.
30 NSW v Commonwealth (1915) 20 CLR 54.
31 Waterside Workers’ Federation v JW Alexander (1918) 25 CLR 434.
32 (1909) 8 CLR 330.
33 ibid, 357.
34 Peter Cane argues that the search for a clear definition of ‘judicial power’ is pointless
because it focuses on what judicial power is rather than the more important question
of what judicial power is for: P Cane, ‘Understanding Judicial Review and Its Impact’
in M Hertogh and S Halliday, Judicial and Bureaucratic Impact (Cambridge UP, 2004)
26. The nub of this criticism is the notion that the High Court has adopted a formal-
istic and unhelpful approach to defining judicial power that will never reach a clear
answer.
35 (1995) 183 CLR 245.
36 ibid, 267.
37 Drake v Minister of State for Immigration and Ethnic Affairs (1979) 24 ALR 577.
38 ibid, 584. Smithers J agreed on this point.
39 (1985) 157 CLR 57.
40 ibid, 68.
41 ibid, 81.
42 (1995) 184 CLR 348.
43 ibid, 363.
44 ibid, 364–5.
45 ibid, 365.
46 (1996) 189 CLR 1.
47 (1995) 183 CLR 245.
48 The wider issues are explained in E Campbell and M Groves, ‘Enforcement of Admin-
istrative Determinations’ (2006) 13 Australian Journal of Administrative Law 121.
49 (1996) 189 CLR 51.
50 Section 5(1).
51 (1996) 189 CLR 51 at 124 (McHugh J).
52 (2004) 210 ALR 50.
383
NOTES


53 See generally, D Meagher, ‘The Status of the Kable Principle in Australian Constitutional
Law’ (2005) 16 Public Law Review 182.
54 The classic exposition of this doctrine was made by the Supreme Court of the United
States in Marbury v Madison (1803) 5 US 87 at 111.
55 (1990) 170 CLR 1.
56 ibid, 35–6.
57 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
at 11–12 (Gleeson CJ); Minister for Immigration and Multicultural Affairs v Bhardwaj
(2002) 209 CLR 597 at 645 (Hayne J).
58 Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198
ALR 59 at [170].
59 Section 39B of the Judiciary Act 1903 (Cth) invests the Federal Court with a roughly
equivalent jurisdiction. Many claims that fall within s75(v) would normally be remitted
by the High Court to the Federal Court if the case does not involve a point of special
importance. Section 39B enables applicants to avoid that procedure by lodging their
claim directly in the Federal Court.
60 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.
61 Though any use of the common law developments of other nations would require
adjustment to ensure their conformity with Australia’s constitutional arrangements:
Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198
ALR 59 at [168] (Kirby J).
62 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 513–14 (Gaudron, Gum-
mow, Kirby and Hayne JJ).
63 Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198
ALR 59 at [27].
64 The work of the Kerr Committee is examined in R Creyke and J McMillan (eds), The
Kerr Vision of Australian Administrative Law – At the Twenty Five Year Mark (ANU, 1998)
and Hon A Mason, ‘Administrative Law Reform: The Vision and the Reality’ (2001) 8
Australian Journal of Administrative Law 135.
65 An important allied reform was the creation of the Federal Court, which was granted
jurisdiction to determine applications under the ADJR Act.
66 The Chief Justice of New South Wales has suggested that these reforms have intro-
duced a notion of ‘administrative responsibility’ by which individual decision makers
are directly accountable for their decisions to the people who are affected by them:
‘Foundations of Administrative Law: Toward General Principles of Institutional Law’
(1999) 58(1) Australian Journal of Public Administration 3. This idea suggests that
increased rights in administrative law have created a direct connection between those
who exercise power and those affected by its exercise.
67 A point explained by Sir Anthony Mason in ‘Administrative Law Reform: The Vision
and the Reality’ (2001) 8 Australian Journal of Administrative Law 135 at 138–41.
68 The first such criticisms were made long ago, but they were fairly isolated: D Pearce,
‘The Fading of the Vision Splendid in Administrative Law? Retrospect and Prospect’
(1989) 58 Canberra Bulletin of Public Administration 15.
69 The apparent tension in the objects clause of the FOI Act between the desire to provide
access to information and the maintenance of privacy have led the courts to essentially
declare the objects of the FOI Act are almost useless: News Corporation Ltd v National
Companies and Securities Commission (1984) 1 FCR 64 at 66.
70 P Cane, ‘Merits and Judicial Review: The AAT as Trojan Horse’ (2000) 28 Federal Law
Review 212.
71 A point raised by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex
parte S20/2002 (2003) 198 ALR 59 at [157] and examined in detail in M Aronson, ‘Is
the ADJR Act Hampering the Development of Australian Administrative Law?’ (2005)
12 Australian Journal of Administrative Law 79. Aronson ultimately rejects the view
that the ADJR is restraining the growth of judicial review, but accepts that the Act
should be amended to extend judicial review to a wider range of decisions.
384 NOTES


72 Hon M Gleeson, ‘Outcomes, Process and the Rule of Law’ (Speech delivered for the
thirtieth anniversary of the AAT, Canberra, 2 August 2006).
73 The same point can be made at a wider scale. Robin Creyke, for example, has stressed
that the various rights and institutions of administrative law provide a systemic or
overall package of benefits to people: R Creyke, ‘The Performance of Administrative
Law in Protecting Rights’ in T Campbell, J Goldsworthy and A Stone (eds), Protecting
Rights Without A Bill of Rights (Ashgate, 2006) 127.
74 M Allars, Introduction to Australian Administrative Law (Butterworths, 1990) 1.



Chapter 2
1 zn + 1 = z2 n + c. Each value of z derived on the left is fed back in the right to generate a
sequence of numbers. The Mandelbrot set is the set of values of c which give sequences
that are bounded, that is, which do not expand to infinity.
2 Specialist Divisions of the Federal Court or specialist courts have been proposed from
time to time in intellectual property, competition and taxation and, for different rea-
sons, in human rights and native title – see, ‘Federal Courts created by the Parliament’
in B Opeskin and F Wheeler (eds) RS French, The Australian Federal Judicial System
(MUP, 2000) 156–7.
3 Australian Patent Office Manual of Practice and Procedure – Oppositions, Court, Exten-
sion and Disputes, November 1995 Part 1 and see R v Quinn; Ex parte Consolidated Foods
Corporation (1977) 138 CLR 1.
4 R Cooke, ‘The Struggle for Simplicity in Administrative Law’ in M Taggart (ed), Judicial
Review of Administrative Action in the 1980s (OUP, 1986) 5.
5 ibid, 17.
6 M Aronson, B Dyer and M Groves, Judicial Review of Administrative Law (3rd edn, Law
Book Co, 2004) 1.
7 P Craig, Administrative Law (5th edn, Sweet and Maxwell, 2003).
8 ibid, 1.
9 HWR Wade and CF Forsyth, Administrative Law (9th edn, OUP, 2004) 4.
10 ‘A celebrated historic ideal, the precise meaning of which may be less clear today than
ever before’ – RH Fallon, ‘The Rule of Law as a Concept in Constitutional Discourse’
(1997) 97 Columbia Law Review 1, 1.
11 AV Dicey, Introduction to the Study and the Law of the Constitution (10th edn, 1959) 184.
Editor’s note: None of the many editions of Dicey translated this passage of medieval
French. It was kindly translated for us by David and Ann Garrioch as follows: ‘The law
is the greatest heritage that the king has; for by the law he and all his subjects are
governed, and if the law did not exist, there would be no king and no heritage.’
12 ibid, 188.
13 ibid, 193.
14 ibid, 195.
15 J Jowell, ‘The Rule of Law Today’ in J Jowell and D Oliver (eds), The Changing Consti-
tution (5th edn, OUP, 2004) 24.
16 ibid, 25.
17 A Twomey, The Constitution of New South Wales (Federation Press, 2004) 203–4.
18 ibid, 204.
19 (1951) 83 CLR 1 at 193.
20 ibid.
21 See the reference by Gleeson CJ to s75(v) as providing in the Constitution ‘a basic
guarantee of the rule of law’ in Gleeson, The Rule of Law and the Constitution (Boyer
Lectures 2000 ABC Books) 67.
22 WMC Gummow, ‘The Constitution: Ultimate Foundation of Australian Law?’ (2005)
79 Australian Law Journal 167 at 179.
385
NOTES


23 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
at 505 (Dixon J), 496 (Latham CJ); R v Australian Broadcasting Tribunal; Ex parte 2HD
Pty Ltd (1979) 144 CLR 45 at 49–50; FAI Insurances Ltd v Winneke (1982) 151 CLR
342 at 368 (Mason CJ); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162
CLR 24 at 40 (Mason J); O’Sullivan v Farrer (1989) 168 CLR 210 at 216 and Oshlack v
Richmond River Council (1980) 193 CLR 72 at 84.
24 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [69]–[70]. See also Hot Holdings
Pty Ltd v Creasy (1996) 185 CLR 149 at 171.
25 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.
26 Breen v Amalgamated Engineering Union [1971] 2 QB 175 at 190. And see generally the
discussion in Wade and Forsyth, n9 above, 356–9.
27 Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 368–
9.
28 Ruddock v Vadarlis (2001) 110 FCR 491.
29 Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 242.
30 Wade and Forsyth, n9 above, 20.
31 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 79 (McHugh J).
32 (1990) 170 CLR 1 at 35.
33 ibid, 35–6 approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang
(1996) 185 CLR 259 at 272.
34 SA De Smith, H Woolf and J Jowell, Judicial Review of Administrative Action (5th edn,
1999) 19.
35 R Cranston, Law, Government and Public Policy (1987) 176.
36 R Creyke, ‘Performance of Administrative Law in Protecting Rights’ in T Campbell, J
Goldsworthy and A Stone (eds), Protecting Rights Without a Bill of Rights (Ashgate,
2006) 127.
37 To a large extent reflected in the statutory grounds for judicial review set out in s5 of the
Administrative Decisions (Judicial Review) Act 1977 (Cth) and its State counterparts –
Kioa v West (1985) 159 CLR 550 at 567, 576, 594, 625 and 630; Australian Broadcasting
Tribunal v Bond (1990) 170 CLR 321 at 356–8.
38 See, for example, Migration Act 1958 (Cth) Part 7, Div 4.
39 Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 340 (Gaudron J).
40 Mills v Meeking (1990) 169 CLR 214 at 226 and 346.
41 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 196.
42 R v Secretary of State for Home Department; Ex parte Pierson [1998] AC 539 at 587.
43 (1908) 7 CLR 277 at 304.
44 (1905) 122.
45 Bropho v State of Western Australia (1990) 171 CLR 1 at 18; Coco v The Queen (1994)
179 CLR 427 at 437.
46 (2001) 206 CLR 57 at 93.
47 R v Secretary of State for Home Department; Ex parte Simms [2000] 2 AC 115 at 131.
See also R v Lord Chancellor; Ex parte Witham [1998] QB 575 and the discussion by
D Dyzenhaus, M Hunt and M Taggart in ‘The Principle of Legality in Administrative
Law: Internationalisation as Constitutionalisation’ (2001) 1 Oxford University Com-
monwealth Law Journal 5.
48 Thoburn v Sunderland City Council [2003] QB 151.
49 ibid, 187.
50 ibid.
51 Wade and Forsyth, n9 above, 36. See also CF Forsyth, Of Fig Leaves and Fairy Tales:
The Ultra Vires Doctrine, The Sovereignty of Parliament and Judicial Review (1996) 55
Cambridge Law Journal 122. For a perspective on administrative law principles as
judicial creations see J Laws, ‘Law and Democracy’ [1995] Public Law 72. See also M
Elliott, The Constitutional Foundations of Judicial Review (2001, Hart) 109–10. cf Craig
P, Competing Models of Judicial Review [1999] Public Law 428 at 446 and TRS Allan, ‘The
386 NOTES


Constitution Foundations of Judicial Review: Conceptual Conundrum or Interpretive
Inquiry?’ (2002) 61 Cambridge Law Journal 87.
Shorter Oxford English Dictionary ‘faith’; Blacks Law Dictionary 7th Edition, West
52
Group (1999) 701.
53 Westminster Corporation v London and North Western Railway Company [1905] AC 426
at 430.
54 R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 400. See also Little v The Common-
wealth (1947) 75 CLR 94 at 108 (Dixon J).
55 Wade and Forsyth, n9 above, 410.
56 Connock Chase DC v Kelly (1978) 1 WLR 1: Western Fish Products Ltd v Penrith DC [1981]
2 All ER 204 at 215.
57 For example Income Tax Assessment Act 1936 (Cth) s177; Migration Act 1958 (Cth)
s474.
58 NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA
805 at [41] (Hely J); NADR v Minister for Immigration and Multicultural and Indigenous
Affairs (2002) 124 FCR 465; NAAQ v Minister for Immigration and Multicultural and
Indigenous Affairs [2002] FCAFC 300.
59 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC
361.
60 Applicant WAFV of 2002 v Refugee Review Tribunal (2003) 125 FCR 351 at 371. cf.
NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199
ALR 42 [24] where Gyles J rejected the notion that good faith could be constituted by
recklessness in the sense of negligence.
61 Daihatsu Australia Pty Ltd v Federal Commissioner of Taxation (2001) 184 ALR 576 at
587 (Finn J).
62 NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199
ALR 412 at [24] (Gyles J).
63 Sometimes the toss of a coin, figuratively speaking, is a good faith way to proceed.
Decision-making between applicants for a single benefit who cannot be otherwise dis-
tinguished may be conducted by ballot without complaint – see the process under
the Mining Act 1978 (WA) of holding a ballot between competing applicants for an
exploration licence, upheld by the Full Court of the Supreme Court of Western Aus-
tralia in Ex parte Hot Holdings Pty Ltd; Hot Holdings Pty Ltd v Creasy (1996) 16 WAR
428.
64 G Airo-Farulla, ‘Rationality and Judicial Review of Administrative Action’ (2000) 24
Melbourne University Law Review 543.
65 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282
and see Minister for Immigration v Eshetu (1999) 197 CLR 611 at 656 (Gummow J).
66 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–6 Mason CJ (Bren-
nan, Toohey and Gaudron JJ agreeing). Roads Corp v Dacakis [1995] 2 VR 508 at 517–
29, approved in Minister for Immigration and Multicultural Affairs v Epeabeka (1999)
84 FCR 411 and see Minister for Immigration and Multicultural Affairs v Anthony-pillai
(2001) 106 FCR 426 at [42].
67 Minister for Immigration and Multicultural Affairs v Miahi (2001) 65 ALD 141 at [34].
68 As in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB
223 at 230 discussed in Re Minister for Immigration and Multicultural Affairs; Ex parte
S20/2002 (2003) 198 ALR 59 at 74–5 and 90–1.
69 See discussion of S20 by Aronson, Dyer and Groves, n6 above, 338–9.
70 The doctrine of rationality is explained in chapter 14.
71 Annetts v McCann (1990) 170 CLR 596 at 598.
72 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 101 [41].
73 Barratt v Howard (2000) 96 FCR 428 at 444.
74 The flexible nature of procedural fairness and the principles that govern this flexibility
are explained in chapter 17.
75 Local Government Board v Arlidge [1915] AC 120 at 138.
387
NOTES


76 Kioa v West (1985) 159 CLR 550; Salemi v Mackellar (No 2) (1977) 137 CLR 396;
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; Attorney-
General (NSW) v Quin (1990) 170 CLR 1; Darling Casino Ltd v NSW Casino Control
Authority (1997) 191 CLR 602.
77 The possible application of the doctrine of substantive unfairness to Australia is con-
sidered in chapter 18.
78 (1995) 183 CLR 273.
79 (2003) 195 ALR 202.
80 This question is examined in chapter 19.
81 (2002) 210 CLR 438 at 448
82 O’Sullivan v Repatriation Commission (2003) 128 FCR 590.
83 Clements v Independent Indigenous Advisory Authority (2003) 131 FCR 28 at 38 [33].
84 Freeman v Health Insurance Commission (2004) 141 FCR 129; B41 of 2003 v Refugee
Review Tribunal [2004] FCA 30 and in the United Kingdom see R v Secretary of State
for the Home Department; Ex parte Al Mehdawi [1990] 1 AC 876.
85 Lazarus Estates Ltd v Beasley (1956) 1 QB 702.
86 For a recent discussion see Minister of Immigration and Multicultural affairs v SZFDE
[2006] FCAFC 142 at [104]–[124].

Chapter 3
1 See, for instance, M Aronson, B Dyer, and M Groves, Judicial Review of Administrative
Action (3rd edn, Lawbook Co, 2004) 85; M Allars, ‘Private Law But Public Power:
Removing Administrative Law Review from Government Business Enterprises’, (1995)
6 Public Law Review 44 at 73.
2 [1987] QB 815.
3 A number of decisions have held, conversely, that power will not be public for the
purposes of judicial review, notwithstanding its derivation from statute, if the nature
of the power is private. See R v London Borough of Camden, ex p Hughes [1994] COD 253
at 254 (Latham J); R v Bolsover District Council, ex p Pepper [2001] LGR 43 at 51 (Keene
J); R (on the application of Ise Lodge Amenity Committee) v Kettering Borough Council
[2002] EWHC 1132 at [64] (Goldring J); R (on the application of Hopley) v Liverpool
Health Authority [2002] EWHC 1723 at [53] (Pitchford J) and R (on the application of
Nurse Prescribers Limited) v The Secretary of State for Health [2004] EWHC 403 at [69]
(Mitting J).
4 Aronson, Dyer, and Groves, n1 above, at 15–19.
5 ibid.
6 ibid 115–32.
7 See Typing Centre of New South Wales v Toose (Unreported, New South Wales Supreme
Court, 15 December 1998) at 19–20 (Matthews J); Masu Financial Management v FICS
and Julie Wong (No 2) (2005) 23 ACLC 215 at 216–17 [4–7] (Shaw J). See also D’Souza
v Royal Australian and New Zealand College of Psychiatrists (2005) 12 VR 42 at 59
(Ashley J). Australian cases which have accepted in theory that non-statutory power
may be public, by virtue of its nature, for the purposes of judicial review, but do not
appear actually to have held that particular instances of non-statutory power are public
include Norths Ltd v McCaughan Dyson Capel Cure Ltd and Ors (1988) 12 ACLR 739 at
745 (Young J); Chapmans Ltd v Australian Stock Exchange Ltd (1994) 123 ALR 215 at
223 (Beaumont J); Dorf Industries Pty Ltd v Toose (1994) 127 ALR 654 at 666 (Ryan
J); Minister for Local Government v South Sydney Council (2002) 55 NSWLR 381 at
384 (Spigelman CJ); Hall v the University of New South Wales [2003] NSWSC 669 at
[81]–[103] (McClellan J) and McClelland v Burning Palms Life Saving Club (2002) 191
ALR 759 at 779–91 [80–117] (Campbell J).
8 Administrative Decisions Judicial Review Act 1977 (Cth) s3(1); Administrative Decisions
(Judicial Review) 1989 (ACT) s2, Dictionary; Judicial Review Act 1991 (Qld) ss4(a),
4(b)(ii); Judicial Review Act 2000 (Tas) s4(1).
388 NOTES


9 NEAT Domestic Trading Pty Ltd v AWB Ltd (2004) 216 CLR 277.
10 ibid, 314.
11 See M Aronson, ‘Is the ADJR Act hampering the development of Australian admin-
istrative law?’ (2004) 15 Public Law Review 202 at 212. It is unlikely that the Aus-
tralian courts’ preparedness to countenance that non-statutory and non-prerogative
power might be public for the purposes of judicial review would impact upon the High
Court’s jurisdiction under s75(v) of the Commonwealth Constitution. The require-
ment in s75(v) that the power in question be exercised by an ‘officer of the Common-
wealth’ significantly limits the extent to which power that is not statutory or prerogative
might be subject to the Court’s review jurisdiction under that section. But it has been
observed that, ultimately, the High Court must determine who is an ‘officer of the Com-
monwealth’: C Mantziaris, ‘A “Wrong Turn” on the Public/Private Distinction: NEAT
Domestic Trading Pty Ltd v AWB Ltd’ (2003) 14 Public Law Review 197 at 200.
12 It is recognised that where such relationships do exist, the wielders of power may
be subject to constraints that are very similar to the principles of good administra-
tion. Accordingly, courts in common law jurisdiction are increasingly prepared to find
implied terms in contracts that impose restrictions on the exercise of discretionary
contractual power that correspond closely to the broad ultra vires grounds of review.
See Paragon Finance Plc v Staunton [2002] 2 All ER 248 at 262 (Dyson LJ), (Astill LJ
and Thorpe LJ agreeing); Gan Insurance v Tai Ping Insurance Co [2001] All ER (Comm)
299 at 324–6 (Mance LJ), concurred with at 328 (Latham LJ). In the context of equity,
trustees are subject to similar restrictions: Harris v Lord Shuttleworth [1994] ICR 991
at 999 (Glidewell LJ), concurred with at 1007 (Evans and Waite LJJ); Edge v Pensions
Ombudsman [2000] Ch 602 at 627 (Chadwick LJ); Scott v National Trust [1998] 2 All
ER 705 at 718 (Robert Walker J).
13 J Stuckey-Clarke and F R Burns, ‘Declarations’ in P Parkinson (ed), The Principles of
Equity (2nd edn, Lawbook Co, 2003) 889.
14 See Australian Broadcasting Corporation v Lenah Games Meats Pty Ltd (2002) 208 CLR
199 at 218 (Gleeson CJ), 248 (Gummow and Hayne JJ).
15 M Aronson, ‘A Public Lawyer’s Responses to Privatisation and Outsourcing’, in M Tag-
gart (ed), The Province of Administrative Law (Hart Publishing 1997) 40, 41–2. A Stuhm-
cke, ‘Administrative law and the Privatisation of Government Business Enterprises: A
Case Study of the Victorian Electricity Industry’ (1997) 4 Australian Journal of Admin-
istrative Law 185 at 187–8.
16 G Brennan, ‘The mechanics of responsibility in government’ (1999) 58(3) Australian
Journal of Public Administration 3 at 10.
17 See, for example, R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993]
1 WLR 909 at 930 (Farquharson LJ), 932 (Hoffman LJ). A recognition of this factor
is also implicit in Donaldson MR’s comments in Datafin that ‘No one could have been
in the least surprised if the panel had been instituted and operated under the direct
authority of statute law . . . Its lack of a statutory base is a complete anomaly’ (at 835).
18 JWF Allison, A Continental Distinction in the Common Law (revised edn, OUP, 2000)
37.
19 ibid, 72.
20 ibid.
21 [1993] 2 All ER 833.
22 ibid, 849.
23 ibid.
24 ibid.
25 [1991] 6 Admin LR 697.
26 ibid, 719.
27 ibid, 718.
28 See, for example, R v Press Complaints Commission, ex p Stewart-Brady (1997) 9 Admin
LR 274; R v Life Assurance Unit Trust Regulatory Organisation Ltd; ex p Ross [1993] QB
17.
389
NOTES


29 R v Press Complaints Commission, ex p Stewart-Brady (1997) 9A Admin LR 274 at 277
(Lord Woolf MR), 279 (Millett and Potter LJJ concurring); R v Life Assurance Unit Trust
Regulatory Organisation, ex p Ross [1993] QB 17 at 45 (per Glidewell LJ), 53 (Stocker
and McCowan LJJ concurring).
30 For a similar argument, see D Pannick, ‘Who is Subject to Judicial Review in Respect
of What?’ [1992] Public Law 1.
31 Cf S Fredman, and G Morris, ‘The Costs of Exclusivity: Public and Private Re-examined’
[1994] Public Law 69 at 76–77.
32 D Oliver, Common Values and the Public-Private Divide (Butterworths, 1999) 60–70.
33 [1992] 1 WLR 1036.
34 ibid, 1041–2.
35 ibid, 1042.
36 See, for example, H Woolf, ‘Droit Public – English Style’ [1995] Public Law 57 at 64.
37 J Black, ‘Constitutionalising Self-Regulation’ (1996) 59 Modern Law Review 24 at 35.
38 J Beatson, ‘The Courts and the Regulators’ (1987) 3 Professional Negligence 121 at 123.
39 SA de Smith, H Woolf and J Jowell, Judicial Review of Administrative Action (5th edn,
Sweet and Maxwell, 1995) para 3-024.
40 JWF Allison, ‘Theoretical and Institutional Underpinnings of a Separate Administrative
Law’ in M Taggart (ed), The Province of Administrative Law (Hart Publishing, 1997)
85.
41 de Smith, Woolf and Jowell, n39 above, para 3-024.
42 Typing Centre of New South Wales v Toose (Unreported, New South Wales Supreme
Court, 15 December 1998) (Matthews J).
43 ibid, 4.
44 ibid, 19–20.
45 HWR Wade and CF Forsyth, Administrative Law (9th edn, OUP, 2004) 355. There is
some suggestion that, historically, such a conception of statutory power in fact played a
significant role in the first decisions that subjected statutory power to the courts’ super-
visory jurisdiction: see J Barratt, The Fiduciary Duty of a Local Governor (unpublished
PhD thesis, Cambridge University, October 2003).
46 Typing Centre of New South Wales v Toose (Unreported, New South Wales Supreme
Court, 15 December 1998) at 3 (Matthews J).
47 ibid, 4.
48 ibid, 20.
49 ibid.
50 ibid.
51 [1995] 2 VR 121.
52 ibid, 133–6 (Tadgell J), 147–9 (Ormiston J); 153–60 (Eames J).
53 ibid, 138 (Tadgell J), 160, 161–4 (Eames J).
54 ibid, 138 (Tadgell J).
55 ibid, 164 (Eames J).
56 NEAT Domestic Trading Pty Ltd v AWB Ltd (2004) 216 CLR 277.
57 Masu Financial Management v FICS and Julie Wong (No 2) (2005) 23 ACLC 215.
58 See n9 above.
59 NEAT Domestic Trading Pty Ltd v AWB Ltd (2004) 216 CLR 277 at 314.
60 ibid.
61 ibid.
62 Masu Financial Management v FICS and Julie Wong (No 2) (2005) 23 ACLC 215 at 217
[7]
63 ibid.
64 ibid.
65 ibid.
66 ibid.
67 NEAT Domestic Trading Pty Ltd v AWB Ltd (2004) 216 CLR 277 at 313, referring to
Datafin, [1987] QB 815 at 848.
390 NOTES


68 ibid, referring to Datafin [1987] QB 815 at 849.
69 ibid at 314.
70 Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB
48 at 70.
71 ibid.
72 (1979) 143 CLR 242.
73 ibid, 264.
74 NEAT Domestic Trading Pty Ltd v AWB Ltd (2004) 216 CLR 277 at 312.
75 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 at 264.
76 See Nagle v Feilden [1966] 2 QB 633 at 644, 646 (Lord Denning), 650 (Dankwerts
LJ); Lee v Showman’s Guild of Great Britain [1952] 2 QB 329 at 343 (Denning LJ), 347
(Romer LJ).
77 NEAT Domestic Trading Pty Ltd v AWB Ltd (2004) 216 CLR 277 at 313.
78 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 at 275.
79 D’Souza v Royal Australian and New Zealand College of Psychiatrists (2005) 12 VR 42.
80 ibid, 59.
81 ibid, 58–9.
82 ibid, 59.
83 ibid.
84 ibid.
85 See n18 above.
86 T Blackshield and G Williams, Australian Constitutional Law and Theory (3rd edn,
Federation Press, 2002) 67.
87 Allison, n18 above, 75.
88 ibid.
89 L Zines, The High Court and the Constitution (4th edn, Butterworths 1997) 249.
90 For the examples that follow (in the text) I am indebted to Zines, ibid, 249.
91 Commonwealth Constitution s61.
92 ibid, s2.
93 ibid, s64.
94 ibid, s66.
95 Allison, n18 above, 77.
96 See, for example, Constitution Act 1902 (NSW) Part 2A, Part 3, Division 3, Part 3,
Division 4; Constitution Act 1975 (Vic) Part 1, Constitution Act 1934 (SA) Part 3.
97 P Hanks, Constitutional Law in Australia (2nd edn, Butterworths, 1996) 488.
98 Zines, n89 above, 154.
99 Hanks, n97 above, 488 referring to G Winterton, Parliament, the Executive, and the
Governor General (Melbourne UP, 1983) 64.
100 See also Davis v Commonwealth (1988) 166 CLR 79 at 92 (Mason CJ, Deane and
Gaudron JJ).
101 Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 179,
referred to by Gummow J in Airservices Australia v Canadian Airlines (2000) 202 CLR
133 at 276.
102 ibid.
103 ibid.
104 ibid.
105 ibid.
106 Bropho v Western Australia (1990) 171 CLR 1 at 19 (Mason CJ, Deane, Dawson, Toohey,
Gaudron and McHugh JJ).
107 Kioa v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550 at 584 (Mason
J).
108 Aronson, Dyer, and Groves, n1 above, 64.
109 ibid.
110 See, for example, Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169
CLR 550 at 632 (Deane J).
391
NOTES


111 See R v North East Devon Health Authority, ex p Coughlan [2001] QB 213 at 244 (Woolf
J). See also R v Jockey Club, ex p Massingberd-Mundy [1993] 2 All ER 207 at 209 (Neil
LJ), 220 (Roch LJ); R v Jockey Club, ex p RAM Racecourses Ltd [1993] 2 All ER 225 at
243–4 (Stuart-Smith LJ). See also Woolf, n36 above, 64.
112 See, for example, NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at 290
(Gleeson CJ) and 319 (Kirby J); Master Builders [1995] 2 VR 121 at 137–8 (Tadgell
J), 164 (Eames J).




Chapter 4
1 C Beaton-Wells, ‘Australian Administrative Law: The Asylum Seeker Legacy’ [2005]
Public Law 267; J McMillan and N Williams, ‘Administrative Law and Human Rights’
in D Kinley (ed), Human Rights in Australian Law (Federation Press, 1998) 63 at 82;
J McMillan, ‘Recent Themes in Judicial Review of Federal Executive Action’ (1996)
24 Federal Law Review 347 at 356–62. The High Court also criticised the Federal
Court for ‘over-zealous judicial review’: Minister for Immigration and Ethnic Affairs
v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and
Gummow JJ).
2 J McMillan, ‘Judicial Restraint and Activism in Administrative Law’ (2002) 30 Federal
Law Review 335 at 336.
3 McMillan and Williams, n1 above, raise these in their discussion of human rights and
administrative law.
4 See, for example, N O’Neill, S Rice and R Douglas, Retreat from Injustice: Human Rights
Law in Australia (2nd edn, Federation Press, 2004) 177–86, 477–562.
5 (1995) 183 CLR 273 at 311.
6 Teoh is considered in chapter 19 in this volume.
7 M Taggart, ‘Reinventing Administrative Law’ in N Bamforth and P Leyland (eds),
Public Law in a Multi-Layered Constitution (Hart, 2003) 311 at 326.
8 C Evans, ‘Human Rights Act and Administrative Law Talk’, Assessing the First Year of
the ACT Human Rights Act, ANU, Canberra, 29 June 2005, at 12.
9 Good discussions of values in public law are found in P Cane, ‘Theory and Values in
Public Law’ in P Craig and R Rawlings (eds), Law and Administration in Europe: Essays
in Honour of Carol Harlow (OUP, 2003) 3; D Oliver, ‘The Underlying Values of Public
and Private Law’ in M Taggart (ed), The Province of Administrative Law (Hart, 1999)
223; M Taggart, ‘The Province of Administrative Law Determined’ in M Taggart (ed),
The Province of Administrative Law (Hart, 1999) 1 at 3.
10 See generally A Mason, ‘The Importance of Judicial Review of Administrative Action
as a Safeguard of Individual Rights’ (1994) 1 Australian Journal of Human Rights 1.
11 Oliver, n9 above.
12 As Oliver writes, ‘public bodies must justify their actions against recognised criteria’:
ibid, 228. But, as the chapter in this volume by Marilyn Pittard explains, there is no
common law duty to give reasons for administrative decisions.
13 This principle is commonly traced to Entick and Carrington (1765) 19 St Tr 1030 (no
lawful authority to issue a search warrant which resulted in a trespass on private
property).
14 McMillan and Williams, n1 above, 71; see also Swan Hill Corporation v Bradbury
(1937) 56 CLR 746 at 758 (Dixon J); Sean Investments Pty Ltd v MacKellar (1981) 38
ALR 363 at 375 (Deane J); Buck v Bavone (1976) 135 CLR 110 at 119 (Gibbs J).
15 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
(CA). The case and its consequences are explained in the chapter in this book by Geoff
Airo-Farulla.
16 See, for example, Plaintiff S157 v Commonwealth (2003) 211 CLR 476. See also
Beaton-Wells, n1 above.
392 NOTES


17 See, for example, K Ewing, ‘The Futility of the Human Rights Act’ [2004] PL 829; C
Finn, ‘Some Reflections on the Council’s Discussion Paper on the Scope of Judicial
Review’ (2004) 56 Admin Review; J Jowell, ‘Judicial Deference and Human Rights: A
Question of Competence’ in Craig and Rawlings (eds), n9 above, 67.
18 ICCPR, art 4; Human Rights Act 1998 (UK), arts 14 and 16.
19 Finn, n17 above, at 7.
20 Taggart, ‘The Province of Administrative Law Determined’, n9 above, at 10–15.
21 Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121 at 132. For example,
in Parramatta City Council v Pestell (1972) 128 CLR 305, a decision was found to be
unreasonable where a benefit or a burden was distributed unequally and unjustifiably
among members of similar class. In that case, a council levy to fund improvements
such as footpaths, kerbs and gutters was imposed on commercial land owners but not
on residential owners.
22 Taggart, ‘The Province of Administrative Law Determined’, n9 above, 16.
23 Cf McMillan and Williams, n1 above, 70: ‘the structure of administrative law is premised
more upon the protection of individual rights than it is upon the pursuit of good
decision-making’.
24 J McMillan, ‘Parliament and Administrative Law’, Australian Parliamentary Library
Research Paper 13 (2000–01).
25 M Aronson, ‘Is the ADJR Act Hampering the Development of Australian Administrative
Law?’ (2004) 15 Public Law Review 202 at 214.
26 McMillan and Williams, n1 above, 72, giving the example of racial discrimination as a
permissible criterion in exercising a discretion (prior to the Racial Discrimination Act
1975 (Cth)): Water Conservation and Irrigation Commission (NSW) v Browning (1947)
74 CLR 492 at 505 (Dixon J).
27 M Taggart, ‘The Tub of Public Law’ in D Dyzenhaus (ed), The Unity of Public Law (Hart,
2004) 455.
28 McMillan and Williams, n1 above, 67.
29 ICCPR, art 2(3).
30 Victorian Charter of Rights and Responsibilities Act 2006 (Vic) s39.
31 [1994] 3 NZLR 667
32 ibid, at 673 (Cooke P).
33 Evans, n8 above, 10.
34 [1999] 1 AC 69.
35 ibid, at 80 (Lord Clyde). See also R v Shayler [2002] UKHL 11 at [61] (Lord Hope); C
Ovey and R White, Jacobs and White: European Convention on Human Rights (3rd edn,
OUP, 2002) 201.
36 See, for example, Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54 at
64–5 (Gummow J); Premelal v Minister for Immigration, Local Government and Ethnic
Affairs (1993) 41 FCR 117 (Einfeld J); B Selway, ‘The Rise and Rise of the Reasonable
Proportionality Test in Public Law’ (1996) 7 Public Law Review 212.
37 South Australia v Tanner (1989) 166 CLR 161 at 165; McMillan, n2 above, 354.
38 A Mason, ‘The Scope of Judicial Review’ (2001) 31 AIAL Forum 21 at 38.
39 B Selway, ‘The Principle Behind Common Law Judicial Review of Administrative
Action: The Search Continues’ (2002) 30 Federal Law Review 217 at 224.
40 McMillan, n2 above, 368.
41 Taggart, n7 above, at 22.
42 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
(CA). For an example, see Smith and Grady v United Kingdom (1999) 29 EHRR 493 at
543 [138].
43 [2001] 3 All ER 433.
44 ibid, at 446. See also D Feldman, ‘Proportionality and the Human Rights Act 1998’ in
E Ellis (ed), The Principle of Proportionality in the Laws of Europe (Hart, 1999) 107 at
117.
393
NOTES


45 ibid, at [27].
46 ibid, at [28].
47 J Laws, ‘Law and Democracy’ [1995] Public Law 72 at 79.
48 ibid, 80.
49 The issues are considered in the chapter in this volume by Colin Campbell.
50 Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242 at 274 (Murphy J).
51 UN Human Rights Committee, General Comment No 31: Nature of the General
Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, UN Doc
CCPR/C/21/Rev.1/Add.13 at [8].
52 In the UK, there has been extensive debate about the scope of the term ‘public authority’
under the Human Rights Act 1998 (UK), while in the US, there has been similar debate
about the ‘state action’ requirement for constitutional rights.
53 UN Human Rights Committee, n51 above.
54 Velasquez Rodriguez case, IACHR, Ser C, No 4 (1988) 9 Human Rights LJ 212 at [172–3];
T Buergenthal, ‘To Respect and to Ensure: State Obligations and Permissible Deroga-
tions’, in L Henkin (ed), The International Bill of Rights (Columbia UP, 1981) 72 at
77–8; A Clapham, Human Rights in the Private Sphere (Clarendon, 1996) 105–6 at 119;
D Shelton, ‘Private Violence, Public Wrongs, and the Responsibility of States’ (1990)
13 Fordham Intl LJ 1; G Sperduti, ‘Responsibility of States for Activities of Private Law
Persons’, in R Bernhardt (ed), Encyclopedia of PIL, Instalment 10 (1987) 373 at 375.
55 ICCPR, art 2(3).
56 H Steiner, ‘International Protection of Human Rights’ in M Evans (ed), International
Law (OUP, 2003) 757 at 776.
57 Velasquez-Rodriguez case, n54 above, at [172–3].
58 Preambles to UNGA resolution 48/22 (1993); UN Commission on Human Rights res-
olutions 1995/43; 1996/47; 1997/42; 1998/47; 1999/27; 2000/30; 2001/37.
59 Clapham, n54 above, at 97–8.
60 Constitution of South Africa 1996, Chapter 2 (Bill of Rights), art 8(2). In applying
this provision, a court must apply or develop the common law to the extent that the
legislation does not give effect to that right: art 8(3).
61 Ombudsman Act 1976 (Cth), s5; Freedom of Information Act 1982 (Cth), s4.
62 Privacy Act 1998 (Cth), schedule 3.
63 S Free, ‘Across the Public/Private Divide: Accountability and Administrative Justice in
the Telecommunications Industry’ (1999) 21 AIAL Forum 1 at 8.
64 R v Panel on Take-overs and Mergers; Ex parte Datafin [1987] 1 QB 815.
65 (1979) 143 CLR 242.
66 ibid, at 275 (Murphy J): ‘When rights are so aggregated that their exercise affects
members of the public to a significant degree, they may often be described as public
rights and their exercise as that of public power. Such public power must be exercised
bona fide, for the purposes for which it is conferred and with due regard to the persons
affected by its exercise. This generally requires that where such power is exercised
against an individual, due process or natural justice must be observed.’
67 Judiciary Act 1903 (Cth) ss39B(1) and 39B(1A)(c) respectively.
68 See, for example, Fencott (1983) (accrued jurisdiction); Federal Court of Australia Act
1976 (Cth), s32 (associated jurisdiction).
69 Judiciary Act 1903 (Cth), ss31–32. Such jurisdiction may also be inherent or accrued.
70 Administrative Decisions (Judicial Review) Act 1977 (Cth) s3(1).
71 NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 at 192 (McHugh, Hayne
and Callinan JJ).
72 ibid.
73 Griffith University v Tang (2005) 213 ALR 724.
74 NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 at 195.
75 Griffith University v Tang (2005) 213 ALR 724 at [99].
76 R Creyke and J McMillan, Control of Government Action (Butterworths, 2005) 99.
394 NOTES


77 M Aronson, ‘A Public Lawyer’s Responses to Privatisation and Outsourcing’ in Taggart
(ed), n7 above, 40 at 69.
78 Industry Commission, Competitive Tendering and Contracting by Public Sector Agencies,
(Report No 48, 1996).
79 McMillan and Williams, n1 above, 64–70.
80 McMillan and Williams, n1 above, 64, citing A Bradley, ‘Administrative Justice: A Devel-
oping Human Right?’ (1995) 1 European Public Law 347. See also F Bignami, ‘Creating
Rights in the Age of Global Governance: Mental Maps and Strategic Interests in Europe’
(2005) 11 Columbia Journal of European Law 1 at 15 (identifying three generations
of rights before the European Commission: the right to a hearing, the right to trans-
parency, and the right to civil society participation).
81 McMillan and Williams, n1 above, 64–6.
82 See, for example, C Harlow, ‘Global Administrative Law: The Quest for Principles and
Value’ (2006) 17 European Journal of International Law 187; N Krisch, ‘The Pluralism
of Global Administrative Law’ (2006) 17 European Journal of International Law 247;
N Krisch and B Kingsbury, ‘Global Governance and Global Administrative Law in the
International Legal Order’ (2006) 17 European Journal of International Law 1; M Barr
and G Miller, ‘Global Administrative Law: The View from Basel’ (2006) 17 European
Journal of International Law 15.
83 Art 27(1): ‘Every person has the right to the observance of the principles of natural
justice by any tribunal or other public authority which as the power to make a determi-
nation in respect of that person’s rights, obligations, or interests protected or recognised
by law’. Art 27(2): ‘Every person whose rights, obligations, or interests protected or
recognised by law have been affected by a determination of any tribunal or other pub-
lic authority has the right to apply, in accordance with law, for judicial review of that
determination’.
84 Electoral and Administrative Review Commission of Queensland Report, Individual
Rights and Freedoms: A Bill of Rights and Other Freedoms for Queensland – The Implica-
tions for Australia? (Queensland University Press, 1993), 312–13.
85 ibid, 313.

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