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liament, laws were passed to empower prison authorities to issue condoms but
they ultimately decided not to. The court refused to consider an application for
judicial review of this decision for the following reason:

The power to direct and manage prisons conferred on the Commissioner [of
Corrections] . . . is subject to the direction and control of the Minister . . . who in
turn is a member of the Cabinet and as such is answerable to Parliament, and through
Parliament to the electorate. Such is the nature of our democratic process that the
determination of government policy often involves political considerations, and if the
courts were to assume the power to review decisions of government policy, political
power would pass from Parliament and the electorate to the courts.19


The absence of a Bill of Rights
The framers of the Commonwealth Constitution did not opt for the incorpo-
ration into the constitutional framework of an express Bill of Rights. Such an
omission is becoming more conspicuous given that other western democracies,
such as Canada, New Zealand and the United Kingdom, have adopted either
constitutionally-entrenched or statutory Bill of Rights. It was felt that the adop-
tion of the principle of responsible government precluded the necessity for the
incorporation of express guarantees of individual rights. In Australian Capital
Television Pty Ltd v Commonwealth20 Mason CJ remarked:

The framers of the Constitution accepted, in accordance with prevailing English think-
ing, that the citizen™s rights were best left to the protection of the common law in
association with the doctrine of parliamentary supremacy.21

The reluctance to adopt a national Bill of Rights is being slowly eroded by the adop-
tion of a statutory Bill of Rights in the Australian Capital Territory and Victoria.22
The full impact of these instruments remains to be seen but, if the experience of
other common law jurisdictions is any indication, a Bill of Rights might greatly
invigorate those jurisdictions to which it applies. The English courts have recently
6 AUSTRALIAN ADMINISTRATIVE LAW


suggested that the enactment of the Human Rights Act 1998 (UK) has strength-
ened the position of the courts because the Act essentially provides a crucial role
for the courts (which is to declare and enforce the Human Rights Act) that parlia-
ment cannot easily, if at all, diminish. English courts have also begun to question
whether parliament is absolutely sovereign.23 These propositions are not radical
to Australia because they have long been accepted as ones arising from our writ-
ten constitution, but they would prove radical if transplanted to the non-federal
jurisdictions that have enacted or are considering a Bill of Rights. There are sev-
eral other consequences an equivalent of the Human Rights Act 1998 (UK) could
have in any Australian jurisdiction. One is the extraordinary intensity with which
judicial review applies to decisions that affect fundamental rights.24 Another is
the acceptance of proportionality as a separate ground of judicial review, which
could blur or even collapse the distinction between judicial and merits review.25
Yet another consequence might be the apparent willingness of the English judi-
ciary to enter politically sensitive areas.


The separation of powers
A full understanding of Australian administrative law must also take account
of another essential facet of the constitutional framework, namely the separa-
tion of powers. The Commonwealth Constitution does not expressly spell out the
existence of a separation of powers doctrine but the High Court held that the com-
partmentalisation of the legislative, executive and judicial powers into Chapters
I, II and III of the Constitution respectively led inevitably to the proposition that
Australia™s constitutional framework dictated a separation of powers.26
The separation of powers doctrine does not operate in a strict fashion in Aus-
tralia. The Westminster system of responsible government was grafted by the
framers of the Australian Constitution onto a federal framework modelled on the
United States Constitution. A conspicuous feature of the Westminster system is
the absence of a sharp separation of powers between the legislature and the exec-
utive. Ministers of the Crown are drawn from the ranks of parliamentarians or
those who become members of parliament within a short time after their appoint-
ment as ministers. Responsible government means that the executive branch of
government holds a mandate to govern as long as it commands the confidence
of a majority of members of the lower house of parliament. The federal parlia-
ment is permitted to delegate its law-making power to the executive.27 Given the
complexities and demands of modern-day life, delegated legislation is a common
route for legislative implementation of schemes proposed by the executive arm
of government.
The separation of powers doctrine provides a system of ˜checks and balances on
the exercise of power by the respective organs of government in which the powers
are reposed™.28 Although the courts have accepted an intermingling of legislative
and executive powers, they have nevertheless insisted on a strict separation of
the judicial function from the other functions of government in order to advance
7
THE CONSTITUTIONAL AND LEGAL MATRIX


two main objectives “ ˜the guarantee of liberty and to that end the independence
of Chapter III judges™.29
The evolution of the separation of judicial power doctrine stemming from the
˜seminal™ judgment of Isaacs J in the Wheat case30 to the decision in Alexander31
and to Boilermakers case resulted in the formulation of a two limb proposition:
(i) that federal judicial can be vested in only a Chapter III court, and (ii) that only
federal judicial power, apart from a power which is ancillary or incidental to the
exercise of judicial powers, can be invested in a Chapter III court.
An important consequence of the separation of judicial power doctrine is that
it becomes crucial for the true nature of a particular power to be identified as a
judicial power or a non-judicial power. In this connection, the ˜classic™ definition
of judicial power formulated by Griffith CJ in Huddart Parker and Co. Pty Ltd v
Moorehead32 is often invoked:

The words ˜judicial power™ as used in s71 of the Constitution mean the power which
every sovereign must of necessity have to decide controversies between its subjects, or
between itself and its subjects, whether the rights relate to life, liberty or property. The
exercise of this power does not begin until some tribunal which has power to give a
binding and authoritative decision (whether subject to appeal or not) is called upon to
take action.33

It is universally acknowledged that the definition of judicial power lacks
precision.34 Despite the fact that judicial power is an elusive concept, it is crucial
that the true nature of a power be identified for that identification is pivotal in
determining the validity of legislation which is alleged to violate the separation
of judicial powers doctrine. This difficult task has been recognised by the High
Court in Brandy v Human Rights and Equal Opportunity Commission.35 The court
explained:

Difficulty arises in attempting to formulate a comprehensive definition of judicial power
not so much because it consists of a number of factors as because the combination is
not always the same. It is hard to point to any essential or constant characteristic.36

Over the course of time, the High Court has tempered the rigidity of the Boiler-
makers doctrine by giving judicial recognition to a number of ˜exceptions™ to the
doctrine. Thus, a parliament™s power to cite contempt of itself, while undoubt-
edly a judicial power, is valid. Similarly, the High Court has also acknowledged
the constitutionality of courts martial and defence service tribunals. Historical
considerations provide the justification for these ˜exceptions™ to the separation
of judicial power doctrine. An exception of especial significance in the admin-
istrative law arena relates to what is often described as the persona designata
doctrine.
The persona designata doctrine enables the courts to uphold legislation which
seeks to confer administrative functions not incidental to the exercise of judicial
functions upon a federal judge acting in a ˜personal capacity™ rather than as a judge
of a court. In 1979, the Federal Court rejected a challenge to the competency of
8 AUSTRALIAN ADMINISTRATIVE LAW


a federal judge (Davies J) to be appointed to the position of Deputy President
of the Administrative Appeals Tribunal to hear and determine an application for
review.37 Bowen CJ and Deane J said:

There is nothing in the Constitution which precludes a justice of the High Court or a
judge of this or any other court created by the Parliament under Ch III of the Constitution
from, in his personal capacity, being appointed to an office involving the performance
of administrative or executive functions including functions which are quasi judicial in
their nature.38

The persona designata doctrine was applied by the High Court in Hilton v Wells39 in
which the validity of s20 of the Telecommunications (Interception) Act 1979 (Cth)
was challenged. The impugned section required judges of the Federal Court to
entertain and determine applications for the issue of warrants authorising per-
sons to intercept communications made to or from a telecommunication service.
It was contended that this amounted to a conferral of a non-judicial power on
the Federal Court in violation of the Boilermakers doctrine. The majority justices
(Gibbs CJ, Wilson and Dawson JJ) said:

Although the Parliament cannot confer non-judicial powers on a federal court, or invest
a State court with a non-judicial power, there is no necessary constitutional impediment
which prevents it from conferring non-judicial power on a particular individual who
happens to be a member of a court.40

On the construction of s20, they found that s20 designated the judges as indi-
viduals who were particularly well qualified to fulfil the sensitive role envisaged
by the section. Mason and Deane JJ dissented on the construction of s20. They
demanded ˜a clear expression of legislative intention™ before it could be concluded
that the functions entrusted to a judge of the Federal Court were to be exercised
by the judge ˜personally™.41
The High Court, ten years down the track, was called upon in Grollo v Palmer42
to deal with the persona designata issue again in the context of an amended
Telecommunications (Interception) Act 1979 (Cth). The amendments to the Act
took into account some of the criticisms in the joint dissent of Mason and Deane
JJ in Hilton v Wells. There was now a requirement that the federal judge had to
consent to be nominated as an ˜eligible™ judge in order to perform the functions
under the Act and to be so declared by the minister.
In Grollo v Palmer,43 it was submitted to the High Court that ˜the conception
of persona designata should be abolished to maintain the integrity of the Boiler-
makers principle™. In rejecting this submission, Brennan CJ, Deane, Dawson and
Toohey JJ prescribed the following two conditions which should be attached to
the power to confer non-judicial functions on judges as designated persons:

First, no non-judicial function that is not incidental to a judicial function can be con-
ferred without the judge™s consent; and, second, no function can be conferred that is
incompatible either with the judge™s performance of his or her judicial functions or with
9
THE CONSTITUTIONAL AND LEGAL MATRIX


the proper discharge by the judiciary of its responsibilities as an institution exercising
judicial power (˜the incompatibility condition™).44

They explained that the incompatibility condition:

. . . may arise in a number of different ways. Incompatibility might consist in so per-
manent and complete a commitment to the performance of non-judicial functions by
a judge that the further performance of substantial judicial functions by that judge is
not practicable. It might consist in the performance of non-judicial functions of such
a nature that the capacity of the judge to perform his or her judicial functions with
integrity is compromised or impaired. Or it might consist in the performance of non-
judicial functions of such a nature that public confidence in the integrity of the judiciary
as an institution or in the capacity of the individual judge to perform his or her judi-
cial functions with integrity is diminished. Judges appointed to exercise the judicial
power of the Commonwealth cannot be authorised to engage in the performance of
non-judicial functions so as to prejudice the capacity either of the individual judge or
of the judiciary as an institution to discharge effectively the responsibilities of exercis-
ing the judicial power of the Commonwealth. So much is implied from the separation
of powers mandated by Chs I, II and III of the Constitution and from the conditions
necessary for the valid and effective exercise of judicial power.45

In Grollo v Palmer, a majority of the Court held that the power to issue war-
rants under the Act was not incompatible with the performance of judicial func-
tions by the federal judges. The incompatibility test was applied a year later in
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs.46 In that case,
a Federal Court judge (Matthews J) accepted nomination as a ˜reporter™ under
the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The
Court found that there was incompatibility between Matthews J™s performance
of her non-judicial and judicial functions. Matthews J was appointed as a judicial
officer of the Commonwealth and, therefore, could not accept an administra-
tive position in an inquiry. The Wilson decision affirmed that the separation of
powers doctrine prohibits judges appointed under Chapter III of the federal Con-
stitution from exercising non-judicial functions, but the principles can also apply
in the reverse to prevent a non-judicial officer or body from exercising judicial
power.
That restriction and the problems it can present to administrative tribunals
were highlighted in Brandy v HREOC.47 In that case, the High Court held parts of
the Racial Discrimination Act 1975 (Cth) invalid because they invested the Human
Rights and Equal Opportunity Commission (HREOC) with judicial power. HREOC
was an administrative body granted power to receive and determine complaints
about discrimination. It was not empowered to enforce its determinations, no
doubt because the enforcement of orders is a hallmark of judicial power. The Act
instead provided that HREOC determinations enforceable when registered in the
Federal Court. The High Court held this regime unconstitutional on the ground
that it did not involve an independent exercise of judicial power by the Federal
Court. On this view, the Act impermissibly attempted to extend the enforcement
powers of a judicial body to the decisions of an administrative body.48
10 AUSTRALIAN ADMINISTRATIVE LAW


The requirements of the separation of powers doctrine do not generally apply
at the state level. The High Court has clearly held that here is no separation of
powers doctrine in the state constitutional systems. Until 1996, it was not possible
to challenge successfully the vesting of a non-judicial function in a state judge. A
decision of the High Court in that year has led to a limitation on the legislative
capacity of state parliaments. The ˜Kable principle™ enunciated in Kable v Director
of Public Prosecutions (NSW)49 led to the invalidation of the Community Protection
Act 1994 (NSW) which empowered the Supreme Court of New South Wales to
make an order for detention of Kable in prison for a specified period if it was
satisfied on reasonable grounds that Kable was ˜more likely than not to commit
a serious act of violence™, and that it was appropriate ˜for the protection of a
particular person or the community generally™ that he be held in custody.50
Invoking notions of incompatibility, the High Court held that the Act was
invalid because it purported to vest functions in the Supreme Court of New South
Wales that were incompatible with the Court being a receptacle of the judicial
power of the Commonwealth. Section 71 of the Commonwealth Constitution pro-
vides expressly for the vesting of federal judicial power in, inter alia, ˜such other
courts as it invests with federal jurisdiction™, which embraces the state courts.
Underpinning the Kable principle was the concern to protect public confidence
in the judicial system and to negate the perception ˜that the Supreme Court was
an instrument of executive government policy™.51 The subsequent case of Fardon
v Attorney-General (Qld)52 has undermined the importance of the Kable princi-
ple and has largely restricted its application to future cases involving legislation
which would be identical to the legislation in Kable.53


The limits on the judicial role imposed by the separation
of powers doctrine
The separation of powers doctrine imposes limitations on the judicial function
which are crucial to the shape of judicial review. According to the separation of
powers doctrine, the role of the judiciary is to declare and apply the law.54 It
follows that the role of the judiciary is to pronounce on the scope and limits of
discretionary powers, but not assume control of those powers. The classic modern
statement of this principle was made by Brennan J in Attorney (NSW) v Quin,55
where his Honour explained:

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 doing so, the court avoids injustice, so be it; but
the court has nor 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 and, subject to political control, for the repository
alone.
The consequence is that the scope of judicial review must be defined not in terms of
the protection of individual interests but in terms of the extent of power and the legality
of its exercise.56
11
THE CONSTITUTIONAL AND LEGAL MATRIX


There are numerous other instances in which the High Court has stressed that
the Constitution does not grant it a general jurisdiction to enforce its own view
of how a discretionary power should be exercised.57 While this approach might
suggest that the separation of powers doctrine imposes rigid limits upon the role
of the courts, the courts do not function in a vacuum. This approach is not as
strict as might first appear. Kirby J, for example, recently accepted that the role
of the court in judicial review did not extend to the attainment of administrative
justice but he suggested that the court ˜should not shut its eyes and compound
the potential for serious administrative injustice . . . It should always take account
the potential impact of the decision upon the life, liberty and means of the person
affected™.58 The point that Kirby J clearly sought to make was that, while the courts
are always constrained by their constitutional limits and cannot therefore step
into the shoes of a decision maker or order that a discretion be exercised in a
particular way, they can and should be aware of the potential impact of their
decisions.


The constitutionally entrenched position of the High Court
Although the separation of powers doctrine imposes significant restrictions on
the nature and form of judicial and non-judicial bodies, the Constitution provides
some protection to judicial review. In this connection, it is instructive to note that
the judicial powers of the Commonwealth are confined to matters specified in ss75
and 76 of the Commonwealth Constitution. These sections provide as follows:

75 In all matters “
(i) Arising under any treaty:
(ii) Affecting consuls or other representatives of other countries:
(iii) In which the Commonwealth, or a person suing or being sued on behalf of the
Commonwealth, is a party:
(iv) Between States, or between residents of different States, or between a State and
a resident of another State:
(v) In which a writ of Mandamus or prohibition or an injunction is sought against an
officer of the Commonwealth:
the High Court shall have original jurisdiction.

76 The Parliament may make laws conferring original jurisdiction on the High Court
in any matter ”
(i) Arising under this Constitution, or involving its interpretation:
(ii) Arising under any laws made by the Parliament:
(iii) Of Admiralty and maritime jurisdiction:
(iv) Relating to the same subject-matter claimed under the laws of different States.

The jurisdiction granted by s75(v) is a curious one, because it provides a consti-
tutional right of judicial review in a truncated manner.59 The section grants the
High Court power to issue certain writs (mandamus, prohibition and injunction)
but says nothing about the grounds upon which those writs may be issued. It is
now clear that the common law grounds apply to orders granted under s75(v),60
which enables the High Court to draw upon and contribute to the evolution of
12 AUSTRALIAN ADMINISTRATIVE LAW


the grounds of judicial review, at least at common law, in the exercise of its
jurisdiction under s75(v).61
The constitutionally entrenched position of the High Court means that the
original jurisdiction of the court cannot be restricted or abolished except in accor-
dance with the Constitution itself. The High Court has made clear that s75(v)
introduces ˜an entrenched minimum provision for judicial review™ and that the
˜centrality and protective purpose™ of this jurisdiction ˜places significant barriers
in the way of legislative attempts (by privative clauses or otherwise) to impair
judicial review of administrative action™.62 This jurisdiction has assumed new
importance in recent years as successive federal governments have limited or
excluded rights of statutory judicial review. McHugh and Gummow JJ recently
explained:

The contraction of the operation of the ADJR Act has attached significance to s75(v). The
decisions upon s75(v), which extend across the whole period of the court™s existence,
may have been overlooked or discounted by administrative lawyers as being largely of
immediate concern for industrial law. That . . . can now no longer be so.63

Several important consequences flow from the increased role of s75(v). One is
that there clearly exists a right of judicial review that the federal parliament
cannot limit or exclude except in accordance with a referendum. A second point,
which is explained in the chapter by Crock and Santow (see page 363“7), is that
the extent to which the federal parliament might be able to limit the jurisdiction
of s75(v) remains unsettled. The uncertainty surrounding that issue suggests that
s75(v) will provide the focus of many key battles in administrative law. A related
point is the extent to which legislative efforts to restrict or evade the scope of
s75(v) might prove counterproductive. The history of privative clauses suggests
that attempts to limit or exclude judicial review frequently achieve the opposite
result, often seeming to encourage rather than limit litigation. It could be possible
that the natural hostility courts demonstrate to privative clauses might be stronger
when those clauses are aimed at a constitutionally entrenched jurisdiction. One
can only guess how the High Court might respond.

The New Administrative Law
In the late 1960s, there was widespread acknowledgement that Australia™s system
of administrative law required fundamental reform. Judicial review was seen as
overly complex and in need of complete reform, and it was also accepted that
the system of administrative review should include other avenues of redress. The
committee established to investigate reforms “ known as the Kerr Committee “
provided a blueprint for comprehensive reform that extended well beyond judi-
cial review. The Kerr Committee recommended the establishment of a general
merits review tribunal (which later became the Administrative Appeals Tribunal
[AAT]), the introduction of legislation to provide members of the public with a
general right of access to information held by government (which was the basis of
FOI legislation), statutory reform to judicial review (which later took effect as the
13
THE CONSTITUTIONAL AND LEGAL MATRIX


Administrative Decisions (Judicial Review) Act 1977 (ADJR Act)) and the estab-
lishment of an Ombudsman with power to receive and investigate complaints
about government administration.64
Each part of the New Administrative Law package provided an important
reform, but the full impact of the package came from the combined effect of
the different parts of the package. The ADJR Act introduced a general right to
reasons for decisions that were amenable to review, a single test for standing,
codified the grounds of review and swept aside most of the procedural technical-
ities of common law judicial review.65 The AAT legislation also provided a right
to reasons for decisions that were amenable to review, a simplified process of
merits review and the right for people to gain a new decision. The Ombudsman
legislation did not provide the right to gain a new decision, but instead granted
the Ombudsman considerable powers to investigate individual complaints about
public administration and to conduct wider investigations into systemic prob-
lems in government administration. The combined effect of these rights shifted
the balance of power between people and government. The New Administrative
Law made government more transparent and accountable by granting people a
comprehensive system of rights to obtain information from government agencies
and to challenge decisions that affected them.66
But for all its innovations, this new system of administrative law reflected
the constitutional and common law influences that had long shaped Australian
administrative law. The courts were not, for example, granted the power to con-
duct merits review because such a step would breach the separation of powers.67
That power was vested in the AAT which exercises power under Chapter II rather
than Chapter III of the Constitution. The codified grounds and remedies of judi-
cial review introduced by the ADJR Act were clearly modelled on the grounds and
remedies of the common law, while the codified remedies were clearly modelled
on those available at common law.
The New Administrative Law was long regarded as a major leap forward but it
has recently come under criticism.68 Freedom of information legislation is often
said to provide too many exemptions for governments and too little protection for
the general right of access to information.69 The AAT has been criticised as too
formal and adversarial, and adopting a model of merits review that is difficult to
distinguish from judicial review.70 Even the ADJR Act, which was long regarded
as setting the pace for judicial review, has been criticised on the basis that its
codified grounds of review inhibit the growth of new or existing grounds of
review.71
The Chief Justice of Australia recently offered a quite different assessment
of the New Administrative Law. Gleeson CJ asserted that the underlying values
upon which the package was based have ˜taken deep root™ in our legal and political
systems. He also offered an important rejoinder to the criticisms that Australian
principles of judicial review were timid or had not grown with the vigour of
other jurisdictions. Gleeson CJ suggested that Australia™s comprehensive system
of merits review:
14 AUSTRALIAN ADMINISTRATIVE LAW


. . . relieves the judicial branch of pressure to expand judicial review beyond its proper
constitutional and legal limits. Federal courts can mark out and respect the boundaries
of judicial review more easily where there is a satisfactory system of merits review.
This has beneficial consequences for the relations between the three branches of gov-
ernment, and relations between the judicial branch and the public. All forms of inde-
pendent review have implications that are, in the widest sense, political. In that sense,
acceptance of the legitimacy of the exercise of judicial power is a political matter which
cannot be ignored.72

Two comments can be made about this passage. First, the scope of judicial review
in Australia can only be fully understood in conjunction with the role played
by merits review bodies. The two forms of review usually operate in tandem in
the sense that one will often apply when the other does not.73 Secondly, the
acceptance by the courts of the formal legal doctrines such as the separation
of powers rests on both legal and political foundations. These doctrines might
be technical and give rise to many problems, but they underpin a division and
balance of political and legal power that the courts are unlikely to discard or alter
radically.

In her book, Introduction to Australian Administrative Law, Professor Margaret
Allars referred to the reforms in administrative law in Australia and observed:
The power to review administrative decisions has been distributed amongst a variety of
institutions and access to the relief available from such institutions made available to a
broad range of individuals. Although general legal principles can still be discerned, their
content has become uncertain as courts and tribunals struggle to fashion responses to
the challenge of the expansion and complexity of the executive branch of government.
New principles, of good administration, are developing in the context of review by
tribunals. On account of this blurring of the boundaries between principles whose
sources are clearly legal and those which are regarded traditionally as sourced in other
disciplines, the scope of administrative law defies neat definition.74

The excitement arising from the reforms of the 1970s has ceased over the
course of time and these developments have constituted the corpus of adminis-
trative law in Australia today. The unifying thread in all these developments is
the primary importance accorded to the over-arching core value of the rule of
law with the implication that those who exercise power do so within and under
the law, not above it.
2
Administrative law in Australia:
Themes and values
Justice Robert French




Underlying simplicities

Nature demonstrates that apparent complexity can be generated by uncompli-
cated rules. Fractal forms based on simple iterations are to be found in plants,
animals, clouds, snowflakes, population patterns and galaxies. The Mandelbrot
set, one of the most complex mathematical forms known, is based on a sim-
ple mathematical relationship.1 Like organic and inorganic forms in nature, the
apparent complexities of different areas of the law, whether they be statutory or
judge-made, are frequently generated by a few underlying principles.
These are propositions not always acknowledged within the legal profession
of the common law world. In Australia, as in England and other like jurisdictions,
there is a well-developed enthusiasm for specialisation. Specialist lawyers and
their professional symbiotes in numerous fields assert the market™s need for their
existence and for specialist judges and courts or divisions of courts.2 But whatever
evolutionary forces drive this speciation, it is difficult to think of any ecological
niche in which such practitioners can find shelter from the pervasive influence
of public law and that branch of it known as administrative law. There seem to
be few, if any, aspects of economic activity in contemporary society that are not
supervised by some kind of statutory regulator with powers to grant, withhold,
suspend or cancel licences to engage in such activity and to approve or with-
hold approval for particular transactions. The business columns of daily news-
papers are replete with stories of the sometimes fractious exchanges between
the private sector and public regulators such as the Australian Competition and
Consumer Commission, the Australian Securities and Investments Commission,
the Takeovers Panel, the Australian Prudential Regulatory Authority and like
bodies. In the area of intellectual property, the Commissioner of Patents and the

15
16 AUSTRALIAN ADMINISTRATIVE LAW


Registrar of Designs and of Trade Marks make important administrative decisions
affecting valuable intellectual property rights and, in the case of the first two offi-
cials, describe themselves as ˜An Administrative Tribunal™.3 Beyond these are the
legions of ministers, officials and tribunals whose decisions, in a variety of ways,
can affect the lives, liberty, welfare and opportunities of countless individuals
and organisations. Administrative law defines the proper scope of governmental
executive power. It is the ether in which private law moves in a regulated society.
Despite the anti-authoritarian elements of some of its public discourse, Australia
is a much regulated society. In such a society, no legal practitioner can afford to
be unaware of the salient features of administrative law.
Although administrative law can be difficult in its application, it should not
be necessary for its student to overburden himself or herself with the arcane bag-
gage of the ages. An understanding of the origins and history of contemporary
principles and remedies is necessary but need not embroider those principles and
remedies with undue complication. As Sir Robin Cooke wrote in 1986: ˜Obscure
concepts hinder progress. So to attempt more direct and more candid formula-
tions of principle has more than a semantic purpose.™4
In administrative law, it is possible to identify simply stated themes and val-
ues which should engender at least an instinctive awareness that a public law
question has arisen. They can also inform a wider understanding of the way in
which the rule of law operates in contemporary society. A law degree should
not be necessary to appreciate their core meanings. They are lawfulness, good
faith, rationality and fairness. They can be taken as reflecting community expec-
tations that representative and responsible government in a democracy will act
within the law, honestly, sensibly and fairly in its dealings with the people of that
democracy. These requirements are closely related to the grounds upon which
administrative decisions may be reviewed in the courts. They closely resemble
the requirements suggested by Sir Robin Cooke that:

. . . the judicial role is not to resolve the issues but to act as a check or keep the ring, trying
to ensure that those responsible for decisions in the community do so in accordance
with law, fairly and reasonably.5


When the field of administrative law is more widely defined than by reference to
judicial review, there are larger themes and values which come into play. They
include accessibility, openness, participation and accountability.6 As Professor
Paul Craig has written,7 there is much diversity of opinion about the nature and
purpose of administrative law:

For some it is the law relating to control of government power, the main object of which
is to protect individual rights. Others place great emphasis upon rules that are designed
to ensure that the administration effectively performs the tasks assigned to it. Yet others
see the principal object of administrative law as ensuring government accountability,
and fostering participation by interested parties in the decision-making process.8
17
THEMES AND VALUES


Wade and Forsythe take as the first approximation to a definition of administra-
tive law the statement that ˜it is the law relating to the control of governmental
power™.9 Their second approximation is that it is ˜the body of general princi-
ples which govern the exercise of powers and discretions by public authorities™.
The latter more narrowly focused approach is consistent with that taken in this
chapter.
It is the purpose of this chapter to offer an overview of these thematic and
normative ideas in contemporary administrative law in Australia. As with most
taxonomic exercises, the choices are open to debate. The value of the exercise
lies in providing an occasion for reflection upon the nature of administrative
law, the simplicity of the principles which underlie it and the desirability of their
connection to widely-held community values. Each of these themes, however,
finds its place under the overarching concept of the rule of law which, in Australia,
is supported by constitutional remedies against unlawful official action.



Administrative law and the rule of law

The Australian legal system operates upon the assumed application of the rather
numinous concept of the rule of law.10 It is a term descended from English
constitutional discourse. Parliamentary sovereignty and the rule of law were
described by Professor AV Dicey as two characteristic features of the political insti-
tutions of England since the Norman Conquest. Parliament inherited the royal
supremacy. The rule of law was expressed in what Dicey called ˜the old saw of the
courts™:

˜La ley est le plus haute inheritance, que le roy ad; car par la ley il mˆme et toutes ses
e
11
sujets sont rul´s, et si la ley ne fuit, nul roi, et nul inheritance sera™
e

The Diceyan vision involved ˜at least three distinct though kindred concep-
tions™. They were (in summary):

1. . . . no man is punishable or can be lawfully made to suffer in body or goods except
for a distinct breach of law established in the ordinary legal manner before the
ordinary courts of the land.12
2. Every man whatever be his rank or condition, is subject to the ordinary law of the
realm and amenable to the jurisdiction of the ordinary tribunals.13
3. . . . the general principles of the constitution (as for example the right to personal
liberty, or the right of public meeting), are with us the result of judicial decisions
determining the rights of private persons in particular cases brought before the
courts.14

Dicey™s formulation has been much criticised, but judicial elaboration of the
rule of law has been described rightly as ˜[p]erhaps the most enduring contri-
bution of our common law™.15 Jeffrey Jowell, who so described it, sees the rule
of law as supplying the foundation of a new model of democracy in Britain that
18 AUSTRALIAN ADMINISTRATIVE LAW


limited governmental powers in certain areas, even where the majority preferred
otherwise:

It is a principle which requires feasible limits on official powers so as to constrain abuses
which occur even in the most well-intentioned and compassionate of governments. It
contains both procedural and substantive content, the scope of which exceeds by far
Dicey™s principal attributes of certainty and formal rationality.16

The dominant requirement of the rule of law in Australia is that the exercise of
official power, whether legislative, executive or judicial, be supported by con-
stitutional authority or a law made under such authority. A secondary principle
is that disputes about the limits of legislative and executive power in particular
cases can only be determined in a final and binding manner through the exercise
of judicial power.
The rule of law operates within a framework set by written constitutions.
The Commonwealth Constitution defines, separates and limits the legislative,
executive and judicial powers of the Commonwealth. Each of the states has its own
constitution inherited from that which it had as a colony before Federation, which
was supported by specific or generic Imperial statutes, and which was continued
in force by s106 of the Commonwealth Constitution. The state constitutions do
not provide in a formal way for the separation of powers. Generally, it is applied
by way of convention. It has been suggested that it may be possible for state
legislatures to confer judicial power upon themselves and/or the Executive.17
However, there may also be irremovable implications in state constitutions which
prevent their parliaments from so doing.18
In the Australian Communist Party19 case, Sir Owen Dixon spoke of the Com-
monwealth Constitution as framed in accordance with many traditional con-
ceptions, some of them given express recognition and effect. An example is the
separation of judicial power from other functions of government. Other tradi-
tional conceptions are assumed. Dixon CJ said: ˜Among these I think that it may
fairly be said that the rule of law forms an assumption.™20 The rule of law is con-
stitutionally guaranteed, in respect of official decision-making, by s75(v) of the
Constitution which directly confers upon the High Court original jurisdiction in
all matters: ˜In which a writ of Mandamus or prohibition or an injunction is sought
against an officer of the Commonwealth.™21
The subject is thus provided with a mechanism to challenge the lawfulness of
the exercise of official power. Its construed extension to ministers of the Crown
also provides the states with ˜a significant means of requiring observance by the
Commonwealth of the federal system™.22
It is fundamental to the rule of law that there is no such thing as an unfet-
tered discretion. Any Commonwealth statute conferring discretionary power is
confined by the requirement that it be a law with respect to a head of legislative
power conferred by the Constitution. A statute conferring an unfettered power
upon an official would be unconstitutional, for an unfettered power would know
not even constitutional limits. The laws of the states and territories are not limited
19
THEMES AND VALUES


to specific heads of power as are those made by the Commonwealth Parliament.
But they must operate within the limits imposed by the Commonwealth Consti-
tution on the legislative competence of the states and the legislative supremacy
of Commonwealth laws established by s109 of the Constitution. They must also
operate within their entrenched limitations at least as to manner and form of
making certain classes of law. All laws, Commonwealth and state, are affected
by interpretive principles which prevent, as a matter of their internal logic, the
creation of unfettered discretions.
Every statutory power is confined, under its inherent logic, by the subject
matter, scope and purpose of the legislation by which it is conferred.23 This
inescapable interpretive principle has a constitutional dimension for the subject
matter, scope and purpose of a statute within which power conferred by it must
be exercised, define the criteria by which the constitutional legitimacy of the
statute can be measured. As Kirby J has observed: ˜No Parliament of Australia
could confer absolute power on anyone.™24
Even absent a written Constitution, discretions conferred by law are necessar-
ily limited by the laws which confer them. When the British Minister of Agricul-
ture claimed an unfettered discretion under the Agricultural Marketing Act 1958
(UK), his claim was rejected by the House of Lords. It spoke of the judicial control
over the Executive:

. . . namely that in exercising their powers the latter must act lawfully and that is a
matter to be determined by looking at the Act and its scope and object in conferring a
discretion upon the Minister rather than by the use of adjectives.25

And as Lord Denning MR observed in a later case:

The discretion of a statutory body is never unfettered. It is a discretion which is to be
exercised according to law.26

It has sometimes been contended by the Executive in both England and Aus-
tralia that the exercise of prerogative or executive power is not justiciable. But as
Gummow J pointed out in 1988:

. . . even in Britain, the threshold question of whether an act in question was done under
the prerogative power will be for the court to decide, the point being that if it was, the
court may then decide it will not inquire further into the propriety of that act . . . To
decide whether a question is ˜non-justiciable™ is not to decide the alleged non-justiciable
question itself.27

Under the Commonwealth Constitution, the executive power of the Common-
wealth is conferred by s61. It takes the place of the prerogative. It extends to the
execution and maintenance of the Constitution and of the laws of the Common-
wealth. The question of its justiciability was raised in a sequel to the well-known
Tampa decision of the Full Federal Court.28 In the primary decision of the Full
Court, it was held by majority that the Commonwealth Government operated
within its executive power in interdicting the landing, in Australia, of asylum
20 AUSTRALIAN ADMINISTRATIVE LAW


seekers on board the Norwegian vessel Tampa. The debate about the costs of
the proceedings that followed included a contention which was successful, that
because of the nature of the proceedings brought on behalf of the asylum seek-
ers, including the public interest dimension, costs should not follow the event.
An argument was advanced by the Commonwealth that the litigation was not a
matter of public interest because the Commonwealth was exercising an aspect of
executive power central to Australia™s sovereignty as a nation. The litigation was
said to be ˜therefore an interference with an exercise of executive power analo-
gous to a non-justiciable “act of state”™. The Full Court by majority rejected that
proposition, saying:

The proposition begs the question that the proceedings raised. That question concerned
the extent of Executive power and whether there was a restraint on the liberty of
individuals which was authorised by the power. It is not an interference with the exercise
of Executive power to determine whether it exists in relation to the subject matter to
which it is applied and whether what is done is within its scope. Even in the United
Kingdom, unencumbered by a written constitution, the threshold question whether an
act is done under prerogative power is justiciable.29



The constitutional framework

The great common law remedies against unlawful official action came to Australia
from the courts of England. The prerogative writs, certiorari to quash jurisdic-
tional error, mandamus to require the performance of official duty and prohi-
bition to restrain excess of official power together with habeas corpus against
unlawful restraints on liberty, form an historical foundation for administrative
justice in Australia. The prerogative principles underpinning their application
have a constitutional character which does not depend upon the existence of a
written constitution. They are concerned with enforcing limits on governmental
power. In the ninth edition of Wade and Forsyth™s Administrative Law, it is said
that ˜The British Constitution is founded on the rule of law and administrative
law is the area where this rule is to be seen in its most active operation™.30
There are three species of official power for which the Australian Constitution
provides. The first is the law-making power vested, under Chapter 1, in the Federal
Parliament. The second is the executive power, vested under Chapter 2, in the
Queen and exercisable by the Governor-General through his or her appointed
Ministers of State. The third is the judicial power vested, under Chapter 3, in the
High Court, such other federal courts as the Parliament creates and such other
courts as it invests with federal jurisdiction.
In the constitutions of the states of Australia, which trace their ancestry to
colonial constitutions predating Federation, there are delineations of legislative,
executive and judicial power similar to those found in the Australian Constitution,
but not so well-defined in their separation one from another. The state consti-
tutions inherited the ˜United Kingdom model under which the extent to which a
21
THEMES AND VALUES


separation of powers was observed was conventional rather than compelled by
any constitutional mandate™.31


The vessels of administrative law “ administrative
and judicial review

Administrative law is particularly concerned with the exercise of executive power
whether conferred by statute or derived from a constitution or Crown prerog-
ative. The exercise of such power is subject, in Australia, to various kinds of
checking when challenged. In the front line, and bearing the highest volume of
decision-making, are mechanisms of administrative review primarily concerned
with ensuring that when official decisions are disputed, the decision made on
review is the correct or preferable decision having regard to the relevant law, the
facts of the case and any applicable policy. Many government departments and
authorities have internal review procedures which may not have a specific statu-
tory basis. External administrative review may be provided by tribunals and there
may be more than one level of such review. A multi-tiered process applies to deci-
sions under the Social Security Act which may be reviewed by the Social Security
Appeals Tribunal and thereafter by the Administrative Appeals Tribunal. Deci-
sions under the Veterans Affairs Act may also go through multiple stages of such
review which end in the Administrative Appeals Tribunal. Similar administrative
review arrangements exist in a number of the states.
Tribunals which provide administrative review are themselves subject to judi-
cial review. Judicial review may be expressly provided for in the statute estab-
lishing the relevant tribunal and may be on specified or limited grounds. It may
be left to the prerogative writs (in state jurisdiction) or the constitutional writs
(in Commonwealth jurisdiction) of mandamus, prohibition and certiorari. These
general remedies and those of the declaration and injunction may co-exist with
specific statutory remedies.
Administrative review is sometimes generically referred to as ˜merits review™
and distinguished from ˜judicial review™. Ultimately, both are concerned with the
merits of the case. A decision which is bad in law is bad on its merits. A better
distinction might be drawn by using the terms ˜factual merits review™ and ˜legal
merits review™.
The principal object of judicial review is to ensure that when official action
affecting the subject is challenged in the courts, it has been taken within the
boundaries of constitutional, statutory or executive power and to set it aside
and require its reconsideration if it has not. Judicial review may apply to first line
decision-making such as that of a minister or the minister™s delegate. It may apply
to a tribunal which has made a decision in the exercise of an administrative review
function. There are some species of judicial review which have a factual merits
review character about them. Examples are statutory ˜appeals™, so-called from
administrative decision makers to the Federal Court in the exercise of its original
22 AUSTRALIAN ADMINISTRATIVE LAW


jurisdiction. Appeals from the Commissioner of Taxation, the Commissioner of
Patents and the Registrar of Trade Marks fall into that category. The review by the
Federal Court of decisions of magistrates, acting administratively, about eligibility
for extradition, although confined to the materials before the magistrates, has a
merits review aspect in that it is not confined to review for error of law or failure
to follow necessary procedures.
The principal limitation of the judicial review function was described by
Brennan J in Attorney-General (NSW) v Quin:32

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.33

The function of judicial review, which reacts to particular applications invoking
it, has been properly described as ˜inevitably sporadic and peripheral™.34
Judicial review can be constrained by specific statutory provisions. These may
take the form of privative clauses which seek to exclude or limit its scope. They
may seek to codify the grounds of review. In the Migration Act 1958 (Cth), there
are sections which are calculated to limit the content of procedural fairness by
confining the natural justice hearing rule to specific mechanisms for which the
Act expressly provides. In its previous form, Pt VIII of the Act set out the grounds
for judicial review of migration decisions in the Federal Court. As enumerated,
these excluded ˜apparent™ or ˜ostensible™ bias as a ground of review.
Administrative law operates within a constitutional framework. Judicial
review of administrative action requires a focus upon that framework in a way
that does not arise to the same extent with factual merits review. Review by
administrative tribunals, albeit reactive to application by aggrieved parties, is
part of the continuum of administrative decision-making. In one sense, it is more
important than judicial review because it can offer a complete answer, not avail-
able through the courts, to a person affected by a decision. It can do so more
economically and expeditiously than judicial review. The tribunal may act in an
inquisitorial rather than adversarial way. It may not necessarily be bound by the
rules of evidence. It can also address questions of legality, but not in a way that
delivers a final and binding determination.
While the focus of this chapter is on judicial review, it is important for lawyers
concerned with administrative law not to let its power and trappings ˜divert their
gaze from more fundamental, if less glamorous mechanisms to redress citizens™
grievances and call government to account™.35 The assessment of the state of
administrative justice in Australia requires acknowledgement of the full range of
˜less glamorous mechanisms™. Professor Robyn Creyke has recently written that
the Australian administrative law system ˜provides a wide variety of remedies
23
THEMES AND VALUES


with different levels of access and costs for users™. And picking up the different
functions of its components:

Judicial review of legality with its precedential value is matched by merits review and
its ability to provide substantive outcomes. Alongside these adjudicative bodies are
institutions which operate principally by means of investigation and recommendation,
such as ombudsmen, information, privacy and other commissioners. Finally, there are
particular rights “ such as the right to reasons, to access information and to require
government to keep to itself personal information supplied by an individual “ which
protect important interests. The system can be said to provide a comprehensive pack-
age of institutions and principles, each component designed to provide ˜justice to the
individual™.36


Neither judicial review nor tribunal-based factual merits review are means by
which administrative policies can be developed. They do not provide mechanisms
for general supervision or review of administrative programs. They are remedial
in character and respond to particular disputes about or challenges to official
action. Courts can only hear and decide the disputes which are brought before
them. They are necessarily reactive. Federal jurisdiction, whether exercised by
Federal courts or by state courts, only arises if there is a ˜matter™ before the
court for determination. That is to say, there must be a ˜controversy™. State courts
exercising jurisdiction under state laws or the common law are similarly, but not
as tightly, confined because of their character as judicial institutions.
Judicial review, however limited in its accessibility, supports in the most direct
way the basic themes and values of administrative law identified earlier. It pro-
vides, in a way no other process can, the mandate to executive authorities to be
lawful, to act in good faith, to be fair and to be rational.



Themes and values “ A taxonomical choice

Ultimately administrative justice, reflecting the rule of law, requires official action
to be authorised by law. Put another way, all official action must lie within the
boundaries of power created by law. This is perhaps the most fundamental theme
of administrative law from which all others may be derived. Within that frame-
work themes and values of administrative justice in the sense administered by
the courts may be identified as follows:

1. Lawfulness “ that official decisions are authorised by statute, prerogative or con-
stitution.
2. Good faith “ that official decisions are made honestly and conscientiously.
3. Rationality “ that official decisions comply with the logical framework created by
the grant of power under which they are made.
4. Fairness “ that official decisions are reached fairly, that is impartially in fact and
appearance and with a proper opportunity to persons affected to be heard.
24 AUSTRALIAN ADMINISTRATIVE LAW


The identification of these elements of administrative justice is a little like
the identification of ˜fundamental™ particles in physics. When pressed they will
transform one into another or cascade into the traditional grounds of review
developed at common law.37 A decision maker may be affected by actual bias
which constitutes a breach of the requirements of procedural fairness. Such bias,
if directed against an attribute of the person affected by the decision, such as
race or gender or sexual orientation, may mean that the decision is made by
reference to irrelevant considerations or for improper purposes and therefore is
beyond power. A serious enough bias may lead to dishonest decision-making. Bad
faith has a similar character. Professor Craig has written of it as ˜. . . synonymous
with improper purposes or relevancy™, and that it is difficult to conceive of bad
faith that would not automatically render applicable one of those two traditional
grounds of review. Lack of rationality may manifest in illogicality that fails to take
into account mandatory relevant considerations. In such a case, there may be an
error of law for failure to apply statutory criteria or an improper exercise of power.
Or it may yield a decision so unreasonable that no reasonable person could have
made it. A factual finding without any evidentiary base may be irrational and
reviewable on the so-called ˜no-evidence™ ground. Unfairness following from a
failure to hear from a party to be affected may also constitute a failure to comply
with express statutory procedures conditioning the exercise of the power.38 These
examples indicate the interdependence of the themes and values set out above.
They nevertheless form a convenient taxonomy not least because they are capable
of being broadly understood by a wider audience than lawyers or judges, in terms
of widely accepted community values.




Statutory interpretation “ Where themes and
values are embedded

The themes and values of administrative law are brought to bear upon its practi-
cal application first through the process of statutory interpretation. In Australia,
most official decisions affecting the subject are taken in the exercise of a power
conferred by a statute or some form of subordinate legislation. In such cases, the
question whether an official has acted within the limits of his or her power will
depend upon the interpretation of the statute or delegated legislation conferring
that power. A decision to grant or refuse a benefit or privilege will require a con-
sideration of statutory criteria and conditions to be satisfied before such grant
or refusal is made. The lawfulness of the exercise of the power will depend crit-
ically upon the interpretation of its scope and limits. Good faith, rationality and
fairness all apply within the framework and to the extent defined by the statute.
In administrative law statutory interpretation is always a threshold issue, even if
not contested.
25
THEMES AND VALUES


Whether a statutory power is exercised in good faith will depend upon whether
there is an honest and conscientious attempt by the decision maker to discharge
the function conferred by the statute. That necessarily involves identification of
the function by reference to the interpretation, informed by legislative purpose,
of the statute. Every exercise of power under a statute must be carried out in
accordance with its internal logic which defines the range of considerations rel-
evant to the exercise of the power. That is a matter of interpretation and imposes
a framework of rationality within which the decision maker must operate. So
too, the application and content of the requirements of procedural fairness in
the exercise of the power will depend upon the nature of the function conferred
by the statute and the extent to which explicitly or implicitly it qualifies, limits,
excludes or codifies those requirements.
Those who are subject to the law, those who invoke it and those who apply it
are entitled to expect that it means what it says. This is a rule of fairness. So the
courts, as a rule, take as their starting point the ordinary and grammatical sense
of the words used:

. . . that rule is dictated by elementary considerations of fairness, for, after all, those who
are subject to the law™s commands are entitled to conduct themselves on the basis that
those commands have meaning and effect according to ordinary grammar and usage.39

Statutory words are a direct expression of the outcome of parliamentary deliber-
ation. Their binding interpretation is a judicial function. It requires the applica-
tion of statutory and common law rules of interpretation. A purposive approach
is mandated by Commonwealth and state Interpretation Acts. Closely related to
purpose is the concept of legislative intention. That is a fiction. It is an attributed
intention based on inferences drawn from the text and context of the statute
itself.40 It may be assisted by reference to extrinsic materials where construc-
tional choices treated as dependent upon ˜purpose™ and ˜intention™ are open.
In a sense, the discovery of purpose or intention is a persuasive declaration
after the event that the proffered interpretation of the statute is legitimate. That
legitimacy, when claimed by a judicial interpreter, relies upon the use of rules
of construction known to parliamentary drafters and, at least by attribution, to
Parliament and to the executive. Although such rules may yield a range of pos-
sible outcomes, they are generally understood and accepted and so can serve as
criteria of the acceptability of the result which follows from their application.
The themes and values of administrative law, reflecting as they do broadly
accepted community values, are part of the background of interpretation. As
McHugh J said:

The true meaning of a legal text almost always depends on a background of concepts,
principles, practices, facts, rights and duties which the authors of the text took for
granted or understood, without conscious advertence, by reason of their common lan-
guage or culture.41

Part of this background is the concept of the rule of law.
26 AUSTRALIAN ADMINISTRATIVE LAW


Legislative power is exercised in Australia, as in the United Kingdom from
which it has drawn much of the common law relevant to judicial review, in the
setting of a ˜liberal democracy founded on the traditions and principles of the
common law™.42 The importance of those traditions and principles in statutory
interpretation in Australia is reflected in the interpretive approach to the inter-
action between statute law and common law. This may be traced back to the
judgment of O™Connor J in Potter v Minahan43 in which he cited the fourth edi-
tion of Maxwell on The Interpretation of Statutes:44

It is in the last degree improbable that the legislature would overthrow fundamental
principles, infringe rights, or depart from the general system of law, without expressing
its intention with irresistible clearness; and to give any such effect to general words,
simply because they have that meaning in their widest, or usual, or natural sense, would
be to give them a meaning in which they were not really used.

A presumption against the modification or abolition of fundamental rights
has been repeatedly restated by the High Court of Australia over the years.45
A particular example is the interaction between statute law and the rules of
procedural fairness or natural justice as it is still sometimes called. In Re Minister
for Immigration and Multicultural Affairs; Ex parte Miah,46 McHugh J spoke of the
common law rules of natural justice as part of the background principles upon
which legal texts depend: ˜They are taken to apply to the exercise of public power
unless clearly excluded.™
The conservative approach to interpretation resembles the ˜principle of legal-
ity™ asserted by the Courts of the United Kingdom. It is formulated as a strong
presumption that broadly expressed discretions are subject to the fundamen-
tal human rights recognised by the common law. Lord Hoffman explained it
thus:

The principle of legality means that parliament must squarely confront what it is doing
and accept the political cost. Fundamental rights cannot be overridden by general or
ambiguous words. This is because there is too great a risk that the full implications of
their unqualified meaning may have passed unnoticed in the democratic process. In
the absence of express language or necessary implication to the contrary, the courts
therefore presume that even the most general words were intended to be subject to the
basic rights of the individual. In this way, the Courts of the United Kingdom, though
acknowledging the sovereignty of parliament, apply principles of constitutionality little
different from those which exist in countries where the power of the legislature is
expressly limited by a constitutional document.47

This approach confers a certain ˜constitutional™ status on rights and freedoms
without according to them the status of limits on legislative competence. The
interpretive principles applicable in Australia have a similar juristic character
although in a country which operates under written Constitutions there would
be a reluctance to call those rights which they protect ˜constitutional rights™ and
a readiness to emphasise the lower case ˜c™ if they are. Perhaps a high water mark
of this characterisation of common law principles, in the context of statutory
27
THEMES AND VALUES


interpretation, is to be found in the judgment of Laws LJ in the Metric Martyrs™
case.48 Following the conversion of the United Kingdom to a metric system of
weights and measures, four food sellers, the Metric Martyrs, continued to sell food
by imperial measures contrary to law. Although their appeals were dismissed,
Laws LJ discussed what he called rights of a constitutional character recognised
by the common law and statutes which had a constitutional character.
Laws LJ said that the abrogation of a ˜constitutional™ common law right by
statute would require that the legislature™s actual intention, as distinct from
imputed constructive or presumed intention, was to effect the abrogation. The
test could only be met by express words or words so specific that the inference
of an actual determination to effect the result contended for was irresistible.49
This development of the common law which applied not only to ˜constitutional
rights™ but to ˜constitutional statutes™ gave ˜most of the benefit of a written con-
stitution in which fundamental rights are accorded special respect™. But it pre-
served the sovereignty of the legislature and the flexibility of the unwritten British
Constitution.50
There is relevance in these observations for Australia for, although Australia™s
statutes are made under written constitutions, none of them guarantee common
law rights and freedoms against legislative abrogation. The dicta of Laws LJ
were strongly stated, but seem to have gone no further than a strongly stated
interpretive principle. That principle may be less strongly stated in Australia but
the principle itself can properly be regarded as ˜constitutional™ in character even
if the rights and freedoms which it protects may not.
In the context of administrative law it is helpful to go back to Wade and Forsythe
for a useful statement of the way in which interpretive principles affect the limits
of administrative power:

It is presumed that Parliament did not intend to authorise abuses, and that certain
safeguards against abuse must be implied in the Act. These are matters of general
principle, embodied in the rules of law which govern the interpretation of statutes.
Parliament is not expected to incorporate them expressly in every Act that is passed.
They may be taken for granted as part of the implied conditions to which every Act
is subject and which the courts extract by reading between the lines. Any violation of
them, therefore, renders the offending action ultra vires.51

The rules governing the interpretation of statutes and particularly those which
raise barriers against the abrogation of common law principles and rights and
freedoms under common law, mean that the themes and values of administrative
law are logically anterior to the way in which official power is exercised. Some
aspects of those themes and values emerge from the very nature of statutes
which does not depend upon common law principles. Others concerned with the
requirements of procedural fairness and the limits of power against fundamental
common law rights and freedoms will require the assistance of the interpretive
principle described above. The themes and values of administrative law have a
part to play in defining the terms of the instruments by which power is conferred
28 AUSTRALIAN ADMINISTRATIVE LAW


and so are linked to the societal origins of those statutes which in Australia is a
representative democracy governed by the rule of law.


Good faith

Good faith is difficult to define, but is entrenched in statutes, the common law
and in equity. It appears in no less than 154 Commonwealth Acts. It has a core
meaning, in ordinary usage, of honesty, with fidelity and loyalty to something “
a promise, a commitment or a trust.52 It is therefore a relational concept. But its
elements do not diminish from one legal application to another. In the United
States Second Restatement of Contracts, par 205 it was said:

Good faith performance or enforcement of a contract emphasises faithfulness to an
agreed common purpose and consistency with the justified expectations of the other
party; it excludes a variety of types of conduct characterised as involving ˜bad faith™
because they violate community standards of decency, fairness or reasonableness.

This statement can be seen as an application of the ordinary meaning of the term.
Good faith is to be found in the common law and equity in relation to contracts
and the discharge of fiduciary duties. It is imposed as a statutory obligation
upon company directors and officers. It conditions, in bankruptcy, the validity
of certain antecedent dispositions of property. It has long been identified as
a positive obligation attaching to the exercise of official power. In 1905, Lord
McNaghten said of the exercise of statutory power by a public body:

It must keep within the limits of the authority committed to it. It must act in good faith.
And it must act reasonably. The last proposition is involved in the second, if not in the
first.53

Good faith and honesty of purpose are closely linked. Sir Owen Dixon spoke
of good faith as ˜an honest attempt to deal with a subject matter confided to
the tribunal and to act in pursuance of the power of the tribunal in relation to
something that might reasonably be regarded as falling within its province™.54
Bad faith is generally taken to imply dishonesty, but is often regarded as akin
to an allegation of fraud by a decision maker. The requirement of good faith is not
satisfied by mere absence of dishonesty. So much appears from Lord McNaghten™s
reflection upon the interdependence of good faith and reasonableness. This has
given rise to confusion when public authorities are found to act in bad faith
because they have acted unreasonably or on improper grounds:

Again and again it is laid down that powers must be exercised reasonably and in good
faith. But in this context ˜in good faith™ means merely ˜for legitimate reasons™. Contrary
to the natural sense of the words they import no moral obliquity.55

This criticism has been echoed in some English decisions.56 Good faith has
not figured prominently in Australian administrative law, save as a ground which
29
THEMES AND VALUES


could defeat privative clauses which seek to exclude judicial review.57 There has
been debate about its scope. It has been equated to a requirement for ˜. . . an
honest or genuine attempt to undertake the task™.58 A wider formulation pro-
posed that recklessness and capriciousness in decision-making will demonstrate
its absence.59 On that wider view, an honest attempt to exercise official power is
not demonstrated merely by the absence of dishonesty or malice. What is required
is an honest and conscientious approach to the statutory task.60 A decision maker
who deliberately makes no attempt to conform to statutory duty will not be acting
in good faith.61
The term ˜good faith™ appears in so many statutory contexts that, notwith-
standing its relational character, it must be seen by those who draft statutes as
having a core meaning capable of a degree of practical application. Applying its
essential elements good faith requires, in the exercise of a statutory power, hon-
est action and fidelity to the purposes and criteria that govern the exercise of the
power. Good faith therefore requires that attention be paid by the decision maker
to those criteria and purposes. This requires at least an honest and conscientious
attempt to exercise the relevant power as required by the legislature.
To wilfully and deliberately make a decision without attempting to carry out
the relevant statutory duty, such as tossing a coin without reading the file or
finding in favour of every third applicant or rotating applicants from different
countries would amount to a want of good faith.62 In these examples, want of
good faith is expressed in conduct which would support judicial review on other
grounds. A decision made on the toss of a coin is likely to be a decision made by
reference to an irrelevant consideration. So too would be a decision based on the
chance fact that the favoured applicant is the third in line after the last favoured
applicant. A process of rotational choice would also indicate an irrational basis
for decision-making because founded on irrelevant considerations.63
The obligation of good faith in administrative law is therefore an honest and
conscientious endeavour to exercise power in accordance with the requirements
of the relevant statute.




Rationality

Rationality has been described as ˜a common law standard of good administrative
decision-making™.64 It may be put higher than that. In the exercise of statutory
power rationality is demanded by the very assumptions upon which the power
rests.
Administrative decision-making requires the identification of the relevant rule
of law, the ascertainment of facts which engage the application of the rule and the
application of the rule to the facts. That application may involve or precede the
exercise of a discretion. If there is a discretion, its exercise will be confined in all
cases by the purposes of the statute and, in some cases, by a specific requirement
30 AUSTRALIAN ADMINISTRATIVE LAW


to have regard to particular matters. Rationality here reduces to lawfulness, that
is, compliance with the legal requirements for the exercise of statutory power.
Rationality, in the sense of decision-making according to law, does not neces-
sarily permit only one possible outcome, although there may be cases in which it
does. Nor does it mandate a single pathway of reasoning for any particular case.
Rationality at this level is an envelope which can cover a family of alternative
pathways, each of which may lead to what could properly be called a rational
decision.
The High Court has drawn a distinction between judicial and administrative
decision-making so far as it relates to the ascertainment of fact:

Where facts are in dispute in civil litigation conducted under common law procedures,
the court has to decide where, on the balance of probabilities, the truth lies as between
the evidence the parties to the litigation have thought it in their respective interests to
adduce at the trial. Administrative decision-making is of a different nature. A whole
range of possible approaches to decision-making in the particular circumstances of the
case may be correct in the sense that their adoption by a delegate would not be an error
of law.65

The materials before a decision maker may permit more than one inference to
be drawn about matters of fact. If an inference on a matter of fact relevant to the
decision is drawn by the decision maker, the fact that another inference is open
and may even be preferable or more persuasive from the point of view of a court
does not render the decision maker™s inference irrational. Some people apply the
words ˜irrational™ or ˜illogical™ to inferences with which they disagree. But if a
challenged inference is open on the materials, then it cannot be said to fall within
either of those categories. It might be thought that an inference open on the
materials before the decision maker is necessarily a logical or rational inference.
But there is authority for the view that such an inference may be illogical yet
unreviewable. So it has been said a person affected by a decision cannot show
error of law simply by showing that the decision maker inferred the existence of
a particular fact by illogical reasoning:

. . . at common law, according to the Australian authorities, want of logic is not syn-
onymous with error of law. So long as there is some basis for an inference “ in other
words, the particular inference is reasonably open “ even if that inference appears to
have been drawn as a result of illogical reasoning, there is no place for judicial review
because no error of law has taken place.66

Whatever ˜illogicality™ means in this context it has to be consistent with the exis-
tence of logical links between material and inference. Perhaps the passage cited
means nothing more than that, where a logical chain connects evidence to infer-
ence, the fact that the decision maker followed an illogical chain to the same
result does not expose the decision to review.
Where there is no evidence to support a particular finding of fact by a decision
maker, then the factual finding will involve an error of law. The question whether
there is any evidence of a particular fact is treated as a question of law. Whether
31
THEMES AND VALUES


a particular inference can be drawn from facts found or agreed is also treated
as a question of law. For, before the inference is drawn a preliminary question
arises whether the evidence reasonably admits a different conclusion. So making
findings and drawing inferences in the absence of evidence is an error of law
which is judicially reviewable.67
In Australia, ˜unreasonableness™ is a ground for judicial review only where the
decision is so unreasonable that no reasonable decision maker could have made
it.68 But it does not appear to extend to grossly unreasonable fact-finding.69
The Wednesbury test is one of those tests that defines at least leeways of choice,
if not a category of meaningless reference. It allows for curial visitation upon an
administrative decision where the decision is, on the face of it, absurd. No under-
lying error needs to be identified in order to characterise such a decision as beyond
power simply because it is beyond the pale. The language of the test imposes a
constraint. It is only to be applied in extremist and therefore in rare cases.
Rationality is an inescapable requirement of official decision-making which
underpins most of the traditional grounds of review. An irrational decision will
often be unlawful because it fails to comply with the substantive requirements of
the decision-making power as defined explicitly or implicitly by the statute which
is its source.70


Fairness

When a statute empowers a public official to adversely affect a person™s rights
or interests the rules of procedural fairness regulate the exercise of the power
unless excluded by plain words.71 It is a matter which goes to power:

. . . if an officer of the Commonwealth exercising power conferred by statute does
not accord procedural fairness and if that statute has not, on its proper construction,
relevantly (and validly) limited or extinguished any obligation to afford procedural
fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition
under s75(v) of the Constitution.72

Procedural fairness supports rational decision-making in two ways. As already
noted, bias in a decision maker is likely to inform reviewable error. A failure to
give a person affected by a decision the right to be heard and to comment on
adverse material creates a risk that not all relevant evidence will be before the
decision maker who may thereby be led into factual or other error. Apparent or
apprehended bias is likely to detract from the legitimacy of a decision and so
undermine confidence in the administration of the relevant power. As the Full
Court of the Federal Court said in 2000:

Fairness is not a moral fetter on efficiency. Fairness, expressed in recognition of the
right to be heard and want of bias on the part of the decision maker, operates in aid
of informed decision-making that has regard to relevant criteria and so advances the
statutory purpose. So equity serves efficiency.73
32 AUSTRALIAN ADMINISTRATIVE LAW


The requirements of procedural fairness, particularly in relation to the right
to be heard, are ambulatory. They will vary from one legal context to another and
from one fact situation to another.74 They must be practical. They do not require
the imposition on administrators of highly prescriptive requirements of the kind
appropriate to a judicial proceeding. The assumption that the methods of natural
justice are necessarily those of the courts is ˜wholly unfounded™.75
Procedural fairness may apply where there is a legitimate expectation of a
particular approach to decision-making based, for example, upon a statement or
undertaking or regular practice followed by the decision maker.76 That is to say, a
decision maker who has committed himself or herself to a declared procedure or
policy or a regular practice may not fairly depart from that commitment, policy or
practice without first giving persons to be affected an opportunity to be heard on
the question whether there should be a departure. This is a process requirement.
It does not create, in Australia, substantive rights to the subject matter of the
expectation.77
The extension of the legitimate expectation principle to compliance, by Aus-
tralian officials, with obligations under international conventions to which
Australia is a party was made in Minister for Immigration and Multicultural Affairs
v Teoh78 but has been called into question in Re Minister for Immigration and
Multicultural Affairs; Ex parte Lam.79 Indeed, the whole concept of legitimate
expectation has come under scrutiny in that case.80
In the end, legitimate expectation is something of a fiction best regarded as
a tool for the analysis of the requirements of procedural fairness in particular
classes of case. It may go the way of ˜proximity™ in the law of negligence without
effecting any substantive change to the requirements of procedural fairness. In
the light of comments made in the Lam judgments, ˜practical unfairness™ is likely
to be the touchstone of review for alleged want of procedural fairness in relation
to the right to be heard.
Fairness is sufficiently valued as an attribute of an administrative decision-
making that a decision can be quashed for want of fairness even though the
decision maker has acted entirely fairly. The unfairness may be attributable to
the conduct of a third party. An official who is expected to provide a tribunal
with all papers in the possession of the government department responsible
for the primary decision may, deliberately or inadvertently, withhold material
favourable to the applicant for review. In that case, unfairness can result despite
the fact that the tribunal is unaware of the true situation. Alternatively, a third
party may present misleading material to a tribunal or decision maker without
its knowledge. As Gleeson CJ said in Hot Holdings Pty Ltd v Creasy,81 ˜procedural
unfairness can occur without any personal fault on the part of the decision maker.™
In another case a decision of the Administrative Appeals Tribunal was set
aside where there had been unfair cross-examination of an applicant based upon
a common misapprehension about the completeness of the document on which
he was being cross-examined. Neither the Tribunal nor the applicant were to
blame.82 And where, without the knowledge of a tribunal, an applicant did not
33
THEMES AND VALUES


receive notice of the hearing date before the hearing, the resulting decision was
set aside. Gray ACJ and North J said:
The fact that the Tribunal was unaware of the absence of notice to the applicant when it
made its decision does not negate the denial of procedural fairness. It is not a necessary
element of a denial of procedural fairness that it be the result of intentional conduct,
or even of negligence. It is enough that it occurred.83

The law does not however operate to protect persons from unfairness resulting
from the negligence of their own advisers.84
Fraud and circumstances analogous to fraud may also vitiate administrative
decisions which they affect notwithstanding that there is no fault on the part
of the decision maker or of the party affected by the decision. Of course it is
also true that a decision procured by the fraud of the party benefited by it will
be a nullity. Generally speaking third party fraud adversely affecting the subject
of a decision necessarily involves procedural unfairness. But fraud has its own
long-established vitiating quality. Fraud ˜unravels everything™.85 It is, however,
difficult to establish. The case law on administrative decisions induced or affected
by fraud is sparse.86 The vitiating quality of fraud is, in a sense, implicit in the
themes and values of administrative law already identified, although for the most
part they relate to the standards imposed upon official decision makers.

The themes and values of administrative law identified in this chapter are useful
heads for the discussion of its essential elements. Perhaps more importantly, they
form a bridge of intelligibility between what administrators, judges and lawyers
do in the pursuit of administrative justice and what the wider community is
entitled to expect of them. The pursuit of intelligibility through simple statements
of basic themes and values is important to establish and maintain confidence in
administrative justice in contemporary Australian society.
3
The public/private distinction in
Australian administrative law
Colin Campbell




Judicial review is commonly assumed to be available solely in respect of the
exercise of power that may be described as ˜public™.1 Until recently, Australian
courts have been of the view that the source of a power would be determinative
of whether the power was public in the requisite sense: only power which derived
from statute or the prerogative would be public for the purposes of judicial review.
That view, however, is beginning to change. Over the last two decades, and
beginning with the seminal Court of Appeal decision in R v Panel on Take-overs
and Mergers, Ex parte Datafin,2 the English courts have moved away from relying
exclusively on the source of power as determinative of whether that power is
public. Rather, power that does not derive from statute or the prerogative may
nonetheless be public, and therefore amenable to the court™s review jurisdiction,
if it may be determined to be public by virtue of its nature or character.3 This notion
that power may be public as a result of its nature is of increasing significance for
judicial review in Australia. The notion is of most immediate relevance in the
context of the review jurisdiction that the state Supreme Courts were granted
upon being established, and which mirrored the jurisdiction possessed at the
time by the superior courts at Westminster.4 Pursuant to such jurisdiction, still
possessed by the Supreme Courts, and generally referred to as their common law
review jurisdiction,5 exercise of power will be subject to judicial review if the

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