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power is determined by the court to be public.6 In some of those jurisdictions,
judges have already followed Datafin in finding exercises of non-statutory and
non-prerogative power to be public, and therefore subject to judicial review.7
However, the notion that a non-statutory power may be public is also of sig-
nificance in the context of the Administrative Decisions (Judicial Review) Act 1977
(Cth) (ADJR Act) and the state Supreme Courts’ statutory review jurisdictions.8
Hence, and somewhat peculiarly, in the recent NEAT decision,9 Kirby J held that if

34
35
THE PUBLIC/PRIVATE DISTINCTION


a decision is made pursuant to the exercise of power that is public in the requisite
sense, that decision is more likely than would otherwise be the case to be ‘admin-
istrative’ for the purposes of s3 of the ADJR Act.10 More broadly, one commentator
has argued that the ‘under an enactment’ requirement in the ADJR Act should be
removed, and replaced with a requirement that would render amenable to judi-
cial review ‘decisions . . . in breach of Commonwealth law imposing restraints
on . . . the exercise of public power’.11
The coherence of the tests relied upon by the courts to determine whether
power is public for the purposes of judicial review is of significant practical impor-
tance. The determination by the court of whether a particular exercise of power
is public, for instance, may be crucial to the ability of an individual adversely
affected by the exercise of the power to obtain relief. Hence, in the absence of a
pre-existing legal relationship between two persons – as would exist, for example,
if they were parties to a contract, or fiduciary and beneficiary12 – judicial review
may be the only basis upon which one party may seek to challenge the actions
of the other that have adversely affected him or her. If, for instance, the issue in
contention was the refusal of one party to provide a service to another, or to grant
him or her permission to engage in some activity, it is difficult to think of a pri-
vate law avenue of redress that would be of assistance. In these circumstances –
and if the power in question could not be determined coherently to be public,
and therefore subject to judicial review – even the equitable remedies of decla-
ration or injunction would be of no assistance to the person adversely affected.
A declaration does not alter the legal relationship between the parties to which
it pertains, but merely serves to declare their legal rights and obligations with
respect to each other.13 But in the absence of a private law cause of action there
would be no relevant legal rights or obligations that could be declared. Similarly,
an injunction serves to protect an individual’s legal rights or equitable interests.14
But, again, in the circumstances described, there would be no such rights or inter-
ests. The only avenue of redress that might be available would be judicial review.
And, as far as the courts are concerned, judicial review is available only in respect
of the exercise of public power.
The coherence of the tests used by the courts to determine precisely when, as
a result of its nature, power will be public for the purposes of judicial review has
been rendered all the more important in the present context by the widespread
implementation by both the federal government and state governments of pro-
grams of privatisation.15 Under such programs, functions previously carried out
pursuant to statute – and so plainly subject to judicial review – have been trans-
ferred to Corporations Act companies that are not creatures of statute.16 The
power will be public, and so subject to review, if at all, only by virtue of its nature.
The purpose of this chapter is to illustrate some of the difficulties that the
courts have faced – and will continue to face – in seeking to determine whether
power, by virtue of its nature, is public and therefore subject to judicial review.
The chapter will be divided into three main parts. In the first part, two of the tests
articulated by English jurists, and which purportedly permit a determination to
36 AUSTRALIAN ADMINISTRATIVE LAW


be made of whether power is public by virtue of its nature, will be examined.
Attention will be drawn to the problems inhering in the tests, and a possible
explanation mooted for the existence of at least some of these problems. In the
second part of the chapter, tests that have been relied on by Australian courts,
and which purportedly permit a determination to be made of whether power is
public, will be subjected to scrutiny. It will be concluded that these tests are just as
deficient as their English counterparts. In the third part of the chapter, a possible
explanation will be provided as to why the Australian courts, like the English
courts, have had difficulty in arriving at a coherent test to determine whether
power, by virtue of its nature, is public. Finally, a tentative suggestion will briefly
be made as to a test that the Australian courts might rely on to determine whether
power, by virtue of its nature, is public.


English efforts

One test commonly referred to by the English courts, which supposedly permits
the courts to determine whether power, by virtue of its nature, is public for the
purposes of judicial review, is known as the ‘but-for test’. Pursuant to that test
power exercised in the carrying out of a particular function will be public if, in the
absence of a non-governmental body to carry out that function, the government
itself would almost invariably undertake the function.17
The but-for test has two main problems: it is very difficult to apply coherently
in practice, and it lacks an attractive normative basis. The test is difficult to
apply coherently in practice because, although it requires the court to ascertain
whether the government would invariably undertake a particular function in
the absence of a non-governmental body to perform the function, English law
provides no criteria by reference to which the court can determine whether or not
the government would in fact invariably undertake a particular function. That
absence, contends John Allison, reflects the absence, in turn, of a ‘prevailing and
well-developed theory of the State’18 in English law. English law does not contain
a prevailing and well-developed theory of the state, claims Allison, ‘due to the
lateness and limited extent of administrative centralisation’19 in England, and
the ‘theoretical insularity of the English legal profession’.20
The absence of criteria of the relevant kind has a number of consequences
for the operation of the but-for test. One is that judges purport to apply the
test while actually giving effect to their own intuitive and largely unexamined
notions of what is appropriately regarded as governmental. Hence, in R v Football
Association Ltd; Ex parte Football League Ltd,21 Rose J declined to subject the
Football Association to judicial review, at least in part because football is a ‘popular
form of entertainment and recreation’.22 The notion is implicit in Rose J’s analysis
that the government would not invariably become involved in the administration
of an activity which exists for the purposes of entertainment and recreation. But
his judgment contains nothing by way of theoretical analysis (or even empirical
37
THE PUBLIC/PRIVATE DISTINCTION


evidence) to support such a conclusion. This is the case even though football
might be thought to occupy a special position in England. It is, in the words of
the judge himself, a sport which ‘thousands play and millions watch’,23 and in
respect of which ‘millions of pounds are spent by spectators, sponsors, television
companies and also clubs’.24
Another possible consequence of the absence of criteria by reference to which
it can be determined, for the purposes of the but-for test, whether the government
would invariably undertake a particular function, is judicial anxiety about apply-
ing that test. Hence in R v Code of Practice Committee of the British Pharmaceutical
Industry; Ex parte Professional Counselling Aids Ltd,25 for instance, Popplewell J
commented that the but-for test is especially difficult to apply,26 and subjected the
Practice Committee to the court’s review jurisdiction, but only with ‘the greatest
reluctance’.27
And it is probably not going too far to suggest that many judges are even
more concerned than was Popplewell J about the capacity of the but-for test to be
coherently applied. There are a number of recent decisions involving applications
for the judicial review of the exercise of a non-statutory power that the courts have
resolved, somewhat conspicuously, without determining whether the power in
question was public to begin with.28 Rather, the courts assumed for the purpose of
the applications that the power was governmental, and then held that no grounds
of review were made out.29 Accordingly, the courts did not need to ascertain
whether they had review jurisdiction in the first place, in order to resolve the
disputes before them. It is not suggested that the judges’ conclusions that the
relevant grounds were not made out were in any way influenced by a desire to
avoid the need to determine whether the court’s review jurisdiction was engaged.
However, the apparent readiness of some English judges to side-step the need to
determine whether they had jurisdiction to hear the very matters before them is
in itself troubling.
However, even if the but-for test could be applied coherently in practice, the
test is normatively unattractive. It is simply not apparent why the provision of
protection to people against activity undertaken in contravention of the princi-
ples of good administration should depend upon the hypothetical preparedness
of the government to undertake the function in respect of which the power is
exercised.30 There is no suggestion, for example, that even if functions could be
characterised as governmental, that power exercised in the carrying out of such
functions, would necessarily affect individuals any more seriously, or qualita-
tively differently, from power exercised pursuant to so-called private functions.31
Indeed, in recent work Oliver has suggested that the exercise of public power may
impinge upon the same individual interests as may the exercise of private power.32
The very consequence, however, of the courts’ reliance on the but-for test
is that individuals are deprived of judicial review’s protection on the basis that
the court is unprepared to find that the but-for test is satisfied. The court is
unprepared, in other words, to find that if the non-governmental body in question
did not perform a function in respect of which administrative activity is taken,
38 AUSTRALIAN ADMINISTRATIVE LAW


that the government would invariably undertake that function. So, for instance,
in R v Chief Rabbi; Ex parte Wachmann33 the court declined to subject to judicial
review the Chief Rabbi’s decision to declare Wachmann ‘no longer religiously
and morally fit to occupy his position as rabbi’, for the reason that it could not,
in the court’s view, be suggested that ‘but for [the Chief Rabbi’s] offices, the
government would impose a statutory regime’.34 The government ‘could not and
would not seek to discharge’ the Chief Rabbi’s functions, ‘were he to abdicate
his regulatory responsibility’.35 It is not contended here that the decisions of
religious bodies should necessarily be subject to judicial review, although some
prominent commentators have suggested that the decisions of such bodies should
be.36 Rather it is contended that if such bodies are to be immune from judicial
review, it must be on a basis other than that their role fails to be in some vague
fashion governmental.
There are other normative difficulties with the but-for test, too. Hence, the
government of the day may not be prepared to perform a particular function
because of ‘political ideology or history’37 or efficacy. But it would be bizarre
if the political ideology or history of the ruling party, or that party’s consider-
ations as to what is politically efficacious, were to play a determinative role as
to the availability of judicial review. Quite apart from anything else, none of
these matters bears any relation to the extent to which, or the manner in which,
administrative action taken in contravention of the principles of good adminis-
tration may impact upon those affected. There is also the possibility, pursuant
to the adoption of the but-for test, that a function may shift in and out of the
court’s review jurisdiction with changes in government, or even as a result of one
government’s changes in policy.38
It is not just the courts who have encountered difficulties in arriving at a
satisfactory test for determining, for the purposes of English judicial review,
whether power will be public by virtue of its nature. Leading English academics
have also faltered in this regard. Lord Woolf and Professor Jowell, for instance,
contend that a body should be regarded as exercising public power when it seeks
to ‘achieve some collective benefit for the public or a section of the public and
is accepted by the public or that section of the public as having authority to do
so’.39
Quite apart from anything else, however, this collective benefit test cannot
be coherently applied. Certainly it seems intuitively correct to suggest that a
public function must be directed at obtaining some collective benefit. But in the
absence of a theoretical underpinning of the notion of ‘collective benefit’ which,
as Allison claims, would ‘be at home in a theory of the state’,40 it is impossible to
determine with any certainty when particular actions may be regarded as having
been undertaken for ‘a collective benefit’ in the requisite sense. Hence, it can be
argued that any publicly listed company seeks to achieve a collective benefit for
a section of the public. Such companies seek, inter alia, to do well financially, so
as to maximise financial returns for their shareholders, clearly a section of the
public.
39
THE PUBLIC/PRIVATE DISTINCTION


It is acknowledged that it is unlikely that Woolf and Jowell intend ‘collective
benefit’ to be interpreted so broadly – indeed they may regard such an interpreta-
tion as bizarre. But without a particular a priori understanding of ‘public function’
such an interpretation could be ruled out only arbitrarily. Nor is this interpreta-
tion of the application of the collective benefit test hindered by the requirement,
as part of the test, that the body in question must be ‘accepted by the public or
[the relevant] section of the public as having authority’41 to carry out the func-
tion in question. Simply by acquiring shares in the company, the shareholders
would be evincing their approval, in general, of the activities undertaken by the
company.


Australian attempts

In light of the unsatisfactory efforts of English courts and academics to arrive at
tests to ascertain whether power is public for the purposes of judicial review, it
might have been hoped that the Australian courts would have been especially
careful in arriving at any such tests upon which they proposed to rely. It does not
appear, however, that that has been the case. Australian courts have determined
power to be public by virtue of its nature in at least five cases so far, and the
approaches relied on in each have been no more satisfactory than those employed
in England.
It is proposed to examine each of the relevant judgments and to identify its
deficiencies. As a preliminary matter, it should be noted that it is not being argued
that the judges’ conclusions in these cases that the power in question was public,
and therefore appropriately subject to judicial review, are necessarily wrong, a
matter that will be touched on again in the conclusion to this chapter. The point
is simply made here that the particular bases upon which the judges determined
the power to be public were flawed.


Typing Centre of New South Wales v Toose and Others
The first Australian judge to hold a power that did not derive from statute or
the prerogative to be public for the purposes of judicial review, by virtue of
its nature, was Matthews J in Typing Centre of New South Wales v Toose and
Others.42 In the case, the applicant was seeking review of a determination made
by the respondents, as members of the Advertising Standards Council, to uphold
a complaint that one of the applicant’s advertisements had breached the Council’s
Code of Ethics. A finding by the Council that an advertisement had breached its
Code would have the result, in practice, that no proprietor of commercial media
in Australia would accept the advertisement for publication.43
Her Honour relied on a number of ad hoc factors in concluding that the deci-
sion of the Council was made pursuant to the exercise of public power, all of
which are problematic. The judge regarded it as significant, for instance, that the
40 AUSTRALIAN ADMINISTRATIVE LAW


Council ‘has power, through its complaints procedures, to interpret and mould
the various advertising Codes in precisely the same way as the courts can inter-
pret and mould Acts of Parliament’.44 It is not at all apparent, however, why a
resemblance between the Council and courts of law, bodies which are by and
large not subject to judicial review, should have the consequence of rendering
the Council and its activities public in the sense of being subject to review. A
more useful comparison might have been between the Council and statutory tri-
bunals, bodies which interpret and give effect to legislation, but which, unlike
courts, generally are subject to judicial review. Nonetheless, it is unlikely that
the Advertising Standards Council is sufficiently similar to statutory tribunals for
the resemblance between the two to have formed the basis of an argument that
the Council is public in the relevant sense.
Hence, for instance, a normative justification for the subjection of statutory
power to judicial review, advanced by prominent commentators, operates by way
of analogy with the law of trusts. It is contended that, just as title to trust property
is conferred by the settlor of the trust onto the trustee to be used for the benefit of
the beneficiaries, statutory power may be presumed to have been conferred upon
the executive by the legislature to be exercised in the public good.45 The subjection
of the exercise of statutory power to the principles of good administration, by way
of judicial review, would at least reduce the likelihood of that statutory power
being exercised for a purpose other than the public good, just as the subjection
of a trustee to the various duties that the law imposes on him serve, inter alia, to
reduce the likelihood of his dealing with the trust property for a purpose other
than that of benefiting the beneficiaries.
The analogy with the law of trusts, however, cannot be comfortably applied
to the Advertising Standards Council and its decisions. Hence it is questionable
whether the Council has had power of any sort conferred upon it. The ability
of the Council to hear complaints about advertisements simply vests within the
Council as a result of its own complaint procedures,46 and the power to decline
to publish advertisements that have been found to contravene the Council’s Code
of Practice lies not with the Council, but with particular media proprietors.47
Furthermore, statutory power would presumably be regarded as having been
conferred by the legislature on the executive to be exercised in the public good
because the legislature is elected by the public to act for the public’s benefit. But
any power which the Advertising Standards Council possesses does not derive in
any meaningful or specific way from the populace at large.
In determining that the decision of the Advertising Standards Council under
consideration was subject to judicial review, Matthews J also accorded weight
to the fact that an advertiser ‘need do no more than insert a single media adver-
tisement in order to attract the ASC’s jurisdiction’.48 It is difficult to ascertain
precisely why the judge thought that this matter should be of significance in
determining whether the Council’s decisions should be subject to judicial review.
One possibility is that the judge was concerned that the Council could affect the
41
THE PUBLIC/PRIVATE DISTINCTION


Typing Centre unilaterally, without the Typing Centre in any way agreeing to be
governed by the Council’s decisions. Indeed, at the time the offending article
was placed, the plaintiff was not aware of the provisions that it was said to have
contravened.
However, any suggestion that an exercise of power should be subject to judicial
review because that exercise of power may unilaterally affect a person is novel
and, if given effect, would massively expand the scope of judicial review. Hence,
for instance, every time a corporation decides that a commercial concern – such
as a factory, or a bank – should be closed down or should move from a particular
area, those who live and work in the area may be unilaterally affected by the
corporation’s decision. But as judicial review is currently conceived, there is no
suggestion that corporations would be subject to judicial review in respect of such
decisions.
Finally, the judge indicated that she would be prepared to subject the Coun-
cil’s decisions to judicial review because of the ‘centrality of advertising in our
society’49 and the ‘importance of advertising in our community’.50 But again,
subjecting decisions to judicial review merely because they were made in respect
of matters central to our society would be a novel approach, and one that would
massively expand the province of judicial review. Hence it is difficult to avoid
the conclusion that pursuant to that approach decisions in respect of the sale
and purchase of food and other commodities – certainly a matter central to our
society – would be subject to judicial review.
And even if the judge intended this ‘central to society’ criterion to subject to
judicial review only decisions made by bodies that administer matters central to
our society, and the use of the criterion were so limited, the expansive effect upon
judicial review would remain substantial. It is not going too far to say that sport is
central to our society. If decisions made by bodies that operate in an administrative
capacity with regard to sport were subject to review, then an enormous number
of decisions made by bodies ranging from the AFL to little athletics organising
committees would be rendered amenable to judicial review.


The State of Victoria v the Master Builders’
Association of Victoria
The next relevant Australian case is The State of Victoria v the Master Builders’
Association of Victoria.51 The Victorian Attorney-General had established a non-
statutory body, the Building Industry Task Force, to deal with collusive tendering
and other corrupt practices in the building industry. The task force distributed to
all government departments and agencies, and to all municipal councils, a black
list of contractors who were not permitted to tender for government contracts.
The Master Builders’ Association brought a review application on behalf of its
members who had been blacklisted, claiming that they had not been given an
opportunity to explain why they should have been blacklisted.
42 AUSTRALIAN ADMINISTRATIVE LAW


Large portions of the various judgments in Master Builders were devoted to a
consideration of whether power that has its source in the prerogative is for that
reason subject to review and, if so, whether the compilation and distribution
of the black list was undertaken pursuant to prerogative power.52 However, the
court did not limit itself to considering just that issue. Rather, both Tadgell J
and Eames J had regard to whether the power exercised by the task force in
carrying out its activities was, by virtue of the nature of those activities, public.
The power was public, said the judges, because, inter alia, the compilation and
distribution of the black list took place pursuant to the performance of a public
duty.53
It is suggested, however, that a determination that a particular function is
undertaken under a public duty is unlikely to be of great assistance in determin-
ing whether the function is public for the purposes of judicial review. Such a
determination is much more likely to follow as a consequence of the identification
of the function as public, than it is to be a useful guide as to whether the function
is public in the first place. In the absence of provisions in the documents consti-
tuting the body that exercises the function expressly stating that the body must
act on behalf of the public, it is difficult to know how it could be ascertained, in
advance of a function’s classification as public, that it would be carried out under
a public duty.
It is acknowledged that the judgments of Tadgell J and Eames J are not silent
as to how it may be determined that a particular function will have been carried
out pursuant to a public duty. The judges suggest that that will be the case – and
so review will be available – when the function in question relates to a matter of
‘public significance’54 or ‘public importance’.55
To the extent that the judgments of Tadgell J and Eames J effectively render
the public significance or importance of a function determinative of whether
the judicial review is available in respect of decisions made pursuant to that
function, they are deficient. The judgments make no attempt to provide any
general criteria by reference to which it can be determined whether matters are of
public significance or public importance, and fail entirely to explain why decisions
relating to matters of public significance or importance should be subject to
judicial review. Decisions by petrol companies as to the price that they will charge
for petrol, by sporting bodies as to when they schedule matches and by bodies
engaged in medical research to seek a cure for one disease rather than another
all plausibly relate to matters of public importance. But it is unlikely that the
court would accept that decisions like these should be subject to judicial review.
A test for the availability of judicial review that makes the public significance or
public importance of the subject-matter of a decision ultimately determinative
of whether the decision, in turn, is public in the requisite sense must either
provide a strong normative basis for why the sorts of decisions referred to above
are appropriately subject to judicial review, or be sufficiently nuanced not to
categorise them as public to begin with.
43
THE PUBLIC/PRIVATE DISTINCTION


NEAT Domestic Trading Pty Ltd v AWB Limited and Masu
Financial Management P/L v FICS and Julie Wong
Two further cases relevant to the current discussion are NEAT Domestic Trading
Pty Ltd v AWB Ltd (NEAT)56 and Masu Financial Management P/L v FICS and
Julie Wong (No 1) (Masu Financial Management).57 NEAT involved a challenge
by NEAT Domestic Trading Pty Ltd to a decision by the Australian Wheat Board
(International) Limited (AWBI) to decline to give its approval for NEAT to make
bulk exports of wheat to Italy and Morocco. As a consequence of AWBI’s declining
to give that approval, and pursuant to provisions of the Wheat Marketing Act 1989
(Cth), the Wheat Export Authority was obliged not to consent to the export of
the wheat. The result was that any exporting of the wheat by NEAT would have
been illegal.
The principal issue was whether AWBI’s refusal to approve the export of the
wheat was amenable to the court’s jurisdiction under the ADJR Act, and so was
a decision of an administrative character made under an enactment. But the
public/private distinction also arose. As mentioned above,58 Kirby J held that if
a decision is made pursuant to the exercise of public power, the decision would
be more likely, than would otherwise have been the case, to be administrative in
character.59
In Masu Financial Management, the applicant, Masu, sought judicial review
of a decision by the Financial Industry Complaints Service that Masu had pro-
vided Ms Wong with deficient financial advice. The Financial Industry Com-
plaints Service is a corporation that acts ‘as a complaints resolution body’ in
respect of ‘the financial services industry’ and which deals with ‘complaints aris-
ing from transactions involving members of the public and participants in the
industry’.60
Both Kirby J in NEAT and Shaw J in Masu Financial Management held that
the decisions in question were made pursuant to the exercise of public power,
and there is substantial overlap between the reasoning in the two judgments.
Both judges held that the decisions in question were public essentially because
the decisions were made pursuant to functions that were enmeshed in govern-
mental concerns. Hence in Masu Financial Management (No 2),61 Shaw J stated
that the Financial Industry Complaints Service exercised public power because,
variously: ‘the federal government was responsible for appointing a substantial
proportion of the members of the board of FICS’;62 ‘the federal government was
involved in the appointment of two-thirds of any panel appointed by FICS to
hear a complaint’;63 ‘the scheme was constituted in compliance with the pol-
icy statement issued by the federal government’;64 ‘the scheme was established
under the umbrella of a regulation made by the Australian executive government
under statute’;65 and ‘failure to comply with a decision of FICS could result in the
federal government cancelling a licence and exposing the licensee to prosecution
if it continued to conduct a business’.66
44 AUSTRALIAN ADMINISTRATIVE LAW


In NEAT, Kirby J did not advert to specific aspects of AWBI, as a result of which
AWBI could be said to be enmeshed in the concerns of the government. But he did
list certain features of the Panel on Take-overs and Mergers as a result of which it
could be said that the Panel was enmeshed with governmental activity, and upon
which Lloyd J had relied in Datafin in determining that the activities of the Panel
were public. Hence, for instance, some legislation ‘assumed [the] existence’67
of the Panel, and the Panel’s ‘chairman and deputy chairman were appointed
by the Governor of the Bank of England’.68 Kirby J then stated that when ‘applied
to the circumstances of the current appeal’ all the criteria identified in, inter alia,
Datafin pointed ‘to the conclusion that AWBI’s decisions were made pursuant to
governmental authority’.69
The enmeshment approach is unsatisfactory for determining whether a body’s
activities are public for the purposes of judicial review. It provides very little by
way of specific guidance to courts or prospective litigants as to whether a body’s
functions will be found to be public for the purposes of judicial review. At least as
articulated so far, the approach does not indicate what degree of enmeshment is
necessary in order for a body’s functions to be subject to judicial review. Accord-
ingly, it can be argued that the regulation of an activity by statute, or the granting
of governmental funding in respect of the carrying out of an activity, results in
the enmeshment of that activity with governmental concerns. But it is impossible
to determine on an a priori and principled basis whether any particular instance
of regulation or funding would result in sufficient enmeshment to render the
activity in question public for the purposes of judicial review. Consequently, it
is likely that reliance by the courts on the enmeshment approach would result
in substantial inconsistency, as judges gave effect to their (largely) uninformed
intuitions about whether particular acts are (or are not) public. This problem
with the enmeshment approach was as much as admitted by Lord Woolf, in an
English context, when he contended that the application of the approach will
provide ‘no clear demarcation line which can be drawn between public and pri-
vate . . . functions’.70 Rather, he said, whether or not an act is public, pursuant
to the application of the enmeshment approach, will be ‘very much’ a matter of
‘fact and degree’.71
Kirby J in NEAT also relied on observations made previously by members of the
High Court in Forbes v New South Wales Trotting Club Ltd72 – not a judicial review
case – in determining that the power exercised by AWBI was public. However,
the observation of Gibbs J that ‘trotting is a public activity in which quite large
numbers of people take part’,73 quoted by Kirby J,74 provides minimal assistance
in arriving at general criteria for determining whether power is public for the
purposes of judicial review. The natural reading of Gibbs J’s language is that his
Honour was simply asserting that trotting is a public activity – there is no reason
to think that he is suggesting that trotting is a public activity because ‘quite large
numbers of people take part’ in it. However, even if Gibbs J did mean to say
that trotting is a public activity because many people participate in it, difficulties
remain. Quite apart from the lack of precision inherent in a criterion that renders
45
THE PUBLIC/PRIVATE DISTINCTION


review available in respect of activities in which ‘quite large numbers of people’
partake, it is likely that the adoption of such a criterion would massively expand
the scope of judicial review. Kirby J’s reliance on the suggestion of Gibbs J that
decisions made in respect of trotting are public because they may prevent a person
from ‘carrying on his occupation or performing the duties of his employment’75
is similarly problematic. The adoption of such a criterion for the availability of
judicial review would be novel (at least if applied to situations where the employer
in question was not a monopoly employer),76 and if given broad effect would,
again, massively expand the scope of judicial review.
Nor can assistance be gained in arriving at general criteria to determine when
review is available from the contention of Murphy J, also relied on by Kirby J,77
that

A body . . . which conducts a public racecourse at which betting is permitted under
statutory authority, to which it admits members of the public on payment of a fee, is
exercising public power.78

Hence, to begin with, the judge provides no explanation as to why the race-
course in question was public. Further, it could not plausibly be the case that the
offering of a service would be public in the requisite sense simply because either
governmental permission was required before the service could be offered, or
the provision of the service carried a fee. Indeed, even if the judge intended that
only those services would be public the offering of which required governmental
permission and in respect of which a fee was payable, the expansion of the scope
of judicial review would be substantial. Pursuant to such a criterion, the activities
of public houses, licensed grocers, licensed restaurants, cable television stations
and taxi companies would all be subject to judicial review.


D’Souza v The Royal Australian and New Zealand
College of Psychiatrists
The most recent decision in which the court considered whether power that did
not derive from statute or the prerogative might nonetheless, by virtue of its
nature, be public is that of Ashley J of the Victorian Supreme Court in D’Souza v
The Royal Australian and New Zealand College of Psychiatrists.79 The plaintiff was
a medical practitioner who was seeking review of the College’s decision to fail
him with respect to his ‘clinical viva’. As a consequence of failing the viva, the
applicant was prevented from practising psychiatry as a consultant, although he
was not prevented from practising psychiatry altogether.80
Although the judge determined ultimately that the College’s decision to fail
D’Souza was not public because of the existence of a contract between the College
and D’Souza,81 he held that the College’s decision to fail D’Souza was prima facie
public, and in the absence of the contract between D’Souza and the College,
would have been subject to judicial review.82
46 AUSTRALIAN ADMINISTRATIVE LAW


But once again, the basis on which the court found the decision to be public –
or prima facie public in this case – is unsatisfactory. The judge’s reasoning that
the decision in question was public, and, therefore, amenable to judicial review,
consists of little more than assertions that rhetorically invoke the word ‘public’
in a variety of different contexts. Hence the respondent’s decision to fail the
plaintiff in his clinical viva and, therefore, not to elect him to membership of the
Fellowship had ‘public consequences’.83 This was in part because the ‘treatment
of mental illness is a public health issue, and the ability to practice in that field
as a specialist is of public importance’.84 But a test which renders the public
importance of a function determinative of whether decisions made pursuant to
that function are subject to judicial review is subject to the objections that have
been made above in the context of Toose and Master Builders.


A theory of the state in Australian law

One question prompted by these cases is why the Australian courts have encoun-
tered difficulties in arriving at a conception of public power that can coherently be
applied in practice. As observed above,85 Allison has contended that the English
courts have been unable to arrive at a coherent test for determining whether
power will be public for the purposes of judicial review because of the absence of
a well-developed theory of the state in English law. A well-developed theory of
the state seems similarly absent from Australian law. Such an absence provides
a persuasive explanation as to why the Australian courts have been unable to
arrive at a coherent test for determining whether power, by virtue of its nature,
is public. In the absence of a well-developed theory of the state, conceptions of
that which are public must necessarily be vague and ad hoc.
There are difficulties, of course, in demonstrating that something is absent.
Furthermore, it is not possible here to consider the absence of a well-developed
theory of the state in Australian law in the same depth as Allison devotes to his
analysis in his book on the public private/divide. As a starting point, however,
it is worth noting that it would be surprising if Australian law were to contain a
well-developed theory of the state, while English law does not. The presence of a
well-developed theory of the state in Australian law would be surprising because
for:

. . . much of Australia’s constitutional law, and for even more of its ‘constitutionalism’,
the historical framework was provided by the institutions, traditions and practices of
British (and especially English) constitutional government.86

Australian constitutional law is not the same as English constitutional law.
One of the main structural differences is that Australia has a written Common-
wealth Constitution and state Constitutions, whereas England does not have a
written constitution. But the fact that Australia has written constitutions has not
resulted in the presence of a well-developed theory of the state in Australian
constitutional law. Indeed, certain aspects of Australia’s constitutions may be
47
THE PUBLIC/PRIVATE DISTINCTION


seen as contributing to the absence of a well-developed theory of the state in
Australian law.
The ‘abstract concept of the Crown’,87 for example – a notion that Allison argues
exemplifies, and in turn contributes towards, the ‘traditional neglect of the state
administration’88 – ‘pervades’89 the Commonwealth Constitution.90 Thus the
preamble to the Constitution states that the people of the various colonies have
agreed to unite in ‘an indissoluble Federal Commonwealth under the Crown of
the United Kingdom of Great Britain and Ireland’. The ‘executive power of the
Commonwealth is vested in the Queen, and is exercisable by the Governor
General’,91 who is appointed as the Queen’s representative in the Com-
monwealth.92 Departments of state of the Commonwealth are administered
by ‘the Queen’s Ministers . . . for the Commonwealth’,93 and the ministers’
salaries are ‘payable to the Queen, out of the Consolidated Revenue Fund of the
Commonwealth’.94 The position just described, too, reflects that which Allison
describes as the ‘traditional preoccupation with official persons to the exclusion
of a concept of the state’.95 And the notion of the Crown also generally plays a
role in state constitutions.96
Although ‘the structure of the Commonwealth Constitution suggests a tripar-
tite separation of the principal functions of government’,97 the High Court of
Australia has ‘established in a series of cases that the principle of separation of
powers [has] little or no impact on the delegation of legislative power to the
executive’.98 Such an approach, argues Winterton, is necessitated by the ‘Com-
monwealth Constitution’s acknowledgment of the system of responsible govern-
ment’, which in turn ‘depends on the close integration of the Parliament and the
executive government’.99 It does not seem overly controversial to suggest that
such an acknowledgment has resulted in the notion of the state receiving less
attention in Australian jurisprudence than it might have, had the High Court
been required to consider closely the difference between the executive and the
legislature.100
The absence of a well-developed theory of the state in Australian constitu-
tional law is made most apparent by the uncertain nature of Australian law with
respect to certain matters, a proper explanation of which would depend upon the
existence of a comprehensive theory of the state. Finn J has spoken of ‘two rather
significant fissures in Australian jurisprudence’.101 One ‘concerns the constitu-
tional status and standing [in Australian law] of statutory corporations . . . ’102 –
do these ‘fall within the Executive’103 or are they, alternatively, a ‘fourth arm of
government’?104 The other, according to his Honour:

. . . raises the extent to which the manner of scrutiny of the formally ‘non-governmental’
action of a statutory corporation (ie entering into a ‘commercial’ contract) can or should
be affected by the considerations that it nonetheless is a public body that is so acting
and that in so doing it is exercising a public function.105

In similar fashion, the Australian High Court has declined to ‘assert the possibility
of drawing a clear and fixed distinction between those functions that are properly
or essentially governmental and those that are not’.106
48 AUSTRALIAN ADMINISTRATIVE LAW


Finally, the test, in the Australian common law, to determine whether a deci-
sion maker is bound by the rules of natural justice107 is limited to ‘what can
loosely be described as “governmental” decision-making’.108 But this qualifica-
tion is unexplained109 and cast in very imprecise language.110
While none of these areas of confusion alone permits us to determine decisively
that there is no well-developed theory of the state in Australian law, they do, in
combination, point strongly towards that conclusion. And, absent a theory of
what the state is in Australian law, and what it is appropriate for the state to do, it
is difficult to derive meaningful criteria by which to label a decision or an activity
public or governmental.

It has been argued in this chapter that the tests relied on by the Australian courts
to determine whether power is public by virtue of its nature are deficient. If that
argument is accepted, and the courts continue to purport to rely on the nature of
power in determining whether the power is public and, therefore, amenable to
judicial review, it will be necessary to devise a more satisfactory test.
Although the matter will not be developed in any depth here, one possible solu-
tion might be for the courts to conceive of public power as being synonymous with
monopoly power. While no-one has previously suggested that nature of power
as monopolistic should be determinative of whether the power is regarded as
public for the purposes of judicial review, there have been some suggestions
by judges in an English context that monopoly power is appropriately the sub-
ject of judicial review,111 and at least some hints to that effect by Australian
judges.112
An approach pursuant to which public power is regarded as being synonymous
with monopoly power for the purposes of judicial review has two main virtues.
One is that such an approach has a plausible normative basis. If a body exercises
monopoly power, it will not be under the competitive pressure to act in accordance
with the principles of good administration to which a body that operates in
a competitive environment may be subject. Pursuant to the monopoly power
conception of public power then, judicial review can perhaps be regarded as a
kind of corrective mechanism that serves, in certain respects, to simulate the
effects of competition upon the exercise of monopoly power.
The other virtue is that the monopoly power conception of public power is
largely consistent with the circumstances in which courts have held power to be
public and, therefore, subject to judicial review. Certainly this is the case with
respect to the decisions, referred to above, in which Australian courts have held
power, by virtue of its nature, to be subject to judicial review. Although none of
the determinations in those cases that the relevant power was public relied on
any sort of express monopoly power test, each of the relevant forms of power was
plausibly monopolistic.
And it is not only non-statutory power which has been held to be public that
is monopolistic. Perhaps the paradigmatic case of judicial review is review of a
decision by a statutory decision maker to refuse a person permission to engage in
49
THE PUBLIC/PRIVATE DISTINCTION


an activity which, in the absence of the permission, would be illegal. However, in
circumstances where statutory decision makers can grant such permission, they
are invariably the only bodies that are permitted, pursuant to the terms of the
statute, to do so.
Accordingly, the adoption of a monopoly power conception of public power
would not only provide a coherent basis upon which it could be determined
whether power that did not derive from statute or the prerogative was nonethe-
less public for the purposes of judicial review. It would also conceivably permit
the same test to be employed to determine whether instances of the exercise
of statutory and even prerogative power were public in the requisite sense. The
result may well be, overall, that a single test could be employed by the courts to
determine the amenability to review of any exercise of power.
4
Australian administrative law: The
human rights dimension
Ben Saul




Public officials and government agencies possess wide and often discretionary
powers which profoundly affect the rights and liberties of people in Australia.
In the absence of an Australian statutory or constitutional Bill of Rights, it is
inevitable that human rights claims will attempt to infiltrate existing branches
of Australian law and clothe themselves in their language and causes of action.
On one hand, writing about the human rights dimension of Australian adminis-
trative law is like writing about the human rights dimension of the law of torts,
contract or crime. Every branch of law has incidental effects on the protection or
infringement of human rights, whether by constraining or enabling actions which
affect other people.
Administrative law is, however, particularly vulnerable to the permeation of
human rights claims, since, like human rights law, it primarily constrains the
exercise of public power, often in controversial areas of public policy, with a
shared focus on the fairness of procedure and an emphasis on the effectiveness
of remedies. Nowhere is this trend more apparent than in decisions about refugee
status, where failed applicants have often sought judicial review to advance what
are essentially human rights claims. The perceived generosity of the courts in the
migration area, through an expansion of the scope of natural justice and other
grounds of judicial review,1 and a blurring of the legality/merits distinction,2
provoked a series of political attempts (not always successful) to restrict the
quality or availability of review.
Establishing the human rights dimensions of administrative law depends to an
extent on where the boundaries of administrative law are drawn. If, for instance,
anti-discrimination law, privacy law or implied constitutional freedoms are clas-
sified as discrete areas of law,3 touching on but remaining distinct from admin-
istrative law, then much of the human rights dimension of administrative law is

50
51
THE HUMAN RIGHTS DIMENSION


carved out. Indeed there is now a large and distinctive body of Commonwealth
and state/territory anti-discrimination law which partly implements, and in some
cases extends, Australia’s international human rights obligations.4 Further, once
the doctrine of legitimate expectation developed in Minister for Immigration and
Ethnic Affairs v Teoh5 is taken out of the picture,6 it might be thought that a
mere skeleton of human rights issues remains within the ambit of Australian
administrative law.
Unlike English public law after the enactment of the Human Rights Act 1998
(UK),7 Australian administrative law has not undergone the same fundamen-
tal transformation of the administrative law grounds for review of discretionary
administrative decision-making. Bills of Rights may, for example, require public
authorities to exercise discretions compatibly with human rights, or direct courts
to interpret legislation compatibly with rights. Australian administrative law has
remained isolated from the impact of such developments, which are common-
place in most comparable common law jurisdictions and which have become a
global meta-narrative in the evaluation of governmental action. While the Aus-
tralian Capital Territory enacted Australia’s first Human Rights Act in 2004, and
Victoria adopted its own Charter of Rights and Responsibilities in mid-2006, these
developments are likely to remain localised and unlikely to influence Australia’s
single common law.8
Without a Bill of Rights to bring human rights and administrative law together,
the Australian relationship between the two is a contradictory story of conver-
gence and divergence. While there are some important basic similarities between
both areas of law, at the same time each area is both more advanced and less
sophisticated than the other in significant respects. This chapter first traces and
compares the values underlying both areas of law, before exploring a number of
specific issues spanning both areas such as the concept of proportionality, the
public/private distinction, and the ‘right’ to administrative justice. The chapter
then examines how interpretive principles are employed by the courts to safe-
guard rights, at least where they are not expressly limited by statute. The final
part of this chapter focuses on two institutional mechanisms which assist in pro-
tecting human rights: the Commonwealth Ombudsman, and scrutiny of Bills by
parliamentary committees. The aim of this chapter is not to comprehensively
examine every human rights issue arising in Australian administrative law, but
to outline some of the key trends and patterns.



Convergence and divergence of human rights and
administrative law

At an abstract level, there is a consonance of fundamental values underlying
human rights law and administrative law.9 Both systems of law aim to restrain
arbitrary or unreasonable governmental action and, in so doing, help to protect
52 AUSTRALIAN ADMINISTRATIVE LAW


the rights of individuals. Both share a concern for fair and transparent process,
the availability of review of certain decisions, and the provision of effective reme-
dies for breaches of the law. The correction of unlawful decision-making through
judicial review may help to protect rights.10 On one view, the values underlying
public law – autonomy, dignity, respect, status and security11 – closely approxi-
mate those underlying human rights law.
Moreover, each area of law has been primarily directed towards controlling
‘public’ power, rather than interfering in the ‘private’ realm, despite the inherent
difficulties of drawing the ever-shifting boundary between the two. A culture
of justification permeates both branches of law, with an increasing emphasis
on reasons for decisions in administrative law12 and an expectation in human
rights law that any infringement or limitation of a right will be justified as strictly
necessary and proportionate. There is also an ultimate common commitment
to basic principles of legality, equality, the rule of law and accountability. The
principle of legality underlying both administrative and human rights law asserts
that governments must not intrude on people’s lives without lawful authority.13
Further, both embody concepts of judicial deference (or restraint) to the exper-
tise of the executive in certain matters. In administrative law, for example, this
is manifest in a judicial reluctance to review the merits, facts or policy of a mat-
ter, the leeway given to administrators in deciding which factors are relevant in
exercising a discretion,14 and in the generous latitude accorded to decision mak-
ers by the standard of Wednesbury unreasonableness.15 At the same time, there
are counter-movements (such as the reading down of privative clauses which
purport to oust review of migration decisions).16 In human rights law, courts
allow an often wide ‘margin of appreciation’ towards executive judgments on
the circumstances and manner in which rights may be justifiably limited. At the
same time, concern has been expressed in both areas of law that the degree of
deference is at once too large and too small.17
One area in which deference is most pronounced in both systems concerns
the availability of exceptional procedures which restrict the ordinary application
of each area of law. Human rights law treaties contain derogation provisions
which enable the suspension of many human rights in times of public emergency
threatening the life of the nation.18 In administrative law, privative clauses in
legislation may preclude judicial review of certain decisions, including in urgent
or emergency situations.19
Other points of commonality between administrative law and human rights
law include the concept of proportionality, a distinction between public and
private power, and the idea of a right to ‘administrative justice’. Each of these
areas is considered in more detail below. It is sufficient to note here that in
each of these three areas, there are more differences than similarities between
administrative law and human rights law, despite the prima facie parallels.
In other ways too, there are marked differences between the two areas of
law. Human rights law is principally concerned to protect and ensure substantive
rights and freedoms, whereas administrative law focuses more on procedure and
53
THE HUMAN RIGHTS DIMENSION


judicial review attempts to preserve a strict distinction between the legality and
the merits of a decision. Human rights law protects rights as a substantive end
in themselves, whereas administrative law focuses on process as the end and it
may be blind to substantive outcomes, which are determined in the untouchable
political realm of legislation or government policy. It is perfectly possible for
good administration to result in serious human rights violations (and conversely,
compatibility with human rights law does not preclude gross maladministration).
Indeed, before statutory intervention, there was no anti-discrimination principle
in administrative law,20 although rational justification for differential treatment
may be necessary.21 Further, unlike civil law systems, there is also no abuse of
rights doctrine in public law.22
Human rights law is underpinned by the paramount ideal of securing human
dignity, whereas administrative law is more committed to good decision-making
and rational administration.23 The three broad principles said to underpin Aus-
tralian administrative law are largely neutral on substantive outcomes: adminis-
trative justice, executive accountability and good administration.24 Further, the
statutory grounds of judicial review in Australia are ‘totally silent on the relatively
recent discovery of universal human rights to autonomy, dignity, respect, status
and security’.25 Deference to administrative determinations of which factors are
relevant and irrelevant in exercising discretions may result in the exclusion of
human rights issues.26
The traditional emphasis of administrative law on remedies over rights27
reverses the direction of human rights law, which may provide damages for the
breach of a right, whereas this ‘is not the natural consequence of invalid action’
in administrative law.28 At the same time, administrative law remedies may still
guarantee essential human rights; an action for release from unlawful detention
(habeas corpus) can secure freedom from arbitrary detention, and an associ-
ated declaration by the courts may provide a basis for pursuing compensatory
damages in a tortious claim for false imprisonment.
Moreover, the availability of remedies in human rights law depends on how
domestic legal orders incorporate international human rights treaties, which
require that states provide ‘effective remedies’ for rights violations.29 In Australia,
neither the Australian Capital Territory nor the Victorian human rights models
establish new causes of action for human rights violations. Instead, the Victo-
rian approach limits remedies to situations where some other existing cause of
action can be pleaded,30 while the Australian Capital Territory legislation is silent
on remedies. Over time, the Australian Capital Territory courts may, however,
develop an independent cause of action, as occurred in New Zealand. In Simpson v
Attorney-General (Baigent’s case),31 the execution of a search warrant against the
premises of a wrongly-identified person clearly interfered with rights to property
and privacy, yet did not amount to the common law tort of maliciously obtaining
a warrant without reasonable and probable cause.32 The injustice was a catalyst
for the development of an independent right to a remedy for a breach of the Bill of
Rights Act 1990 (NZ),33 despite that Act not expressly providing for such a right.
54 AUSTRALIAN ADMINISTRATIVE LAW


The concept of proportionality

While the notion of proportionality surfaces in both areas of law, it is far more
established as a discrete principle in human rights law. It is well accepted that
any limitation on a human right must be proportionate, defined in the seminal
Privy Council case of de Freitas v Permanent Secretary of Ministry of Agriculture,
Fisheries, Lands and Housing34 as testing whether:

(i) the legislative objective is sufficiently important to justify limiting a fundamental
right; (ii) the measures designed to meet the legislative objective are rationally con-
nected to it; and (iii) the means used to impair the right or freedom are no more than
is necessary to accomplish the objective.35

Likewise, in administrative law there has been some development of the
notion of proportionality,36 particularly in considering the validity of subordi-
nate legislation37 and whether it should inform understanding of Wednesbury
unreasonableness.38
Reviewing administrative action for disproportionately interfering with indi-
vidual rights has, however, been attacked from three different and somewhat con-
tradictory directions. Firstly, it is suggested that proportionality imposes a higher
standard of review and inevitably crosses over into merits review, thus interfer-
ing in the separation of powers39 and indulging in improper judicial activism.
Secondly, importing proportionality into administrative law is said to introduce
unnecessary vagueness, and it is thought better ‘to eschew standards that do
not have self-apparent meaning’, since overly elastic concepts may result in the
same problem of encouraging merits review.40 A third criticism is that the idea
of proportionality expresses ‘much the same ideas’ as the existing concept of
Wednesbury unreasonableness in administrative law.41
Clearly, the idea of proportionality cannot simultaneously impose a higher
standard of review while expressing similar concepts to those already found in
administrative law. It is difficult to see how proportionality is little different from
Wednesbury unreasonableness, which allows decision makers a wider freedom of
lawful action. Decisions can lack proportionality without being ‘so unreasonable
that no reasonable authority could even have come to it’.42 As Lord Steyn observed
in R v Secretary of State for the Home Department; Ex parte Daly43 of the differences
between proportionality and the grounds of judicial review:

First, the doctrine of proportionality may require the reviewing court to assess the
balance which the decision maker has struck, not merely whether it is within the range
of rational or reasonable decisions. Secondly, the proportionality test may go further
than the traditional grounds of review inasmuch as it may require attention to be
directed to the relative weight accorded to interests and considerations. Thirdly, even
the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith [1996] QB
517, 554 is not necessarily appropriate to the protection of human rights.44

While the traditional grounds of judicial review overlap with the proportionality
test in human rights law, the proportionality test is more ‘precise’, ‘sophisticated’
55
THE HUMAN RIGHTS DIMENSION


and ‘intense’ than the judicial review grounds.45 In Lord Steyn’s view: ‘This does
not mean that there has been a shift to merits review. On the contrary . . . the
respective roles of judges and administrators are fundamentally distinct and will
remain so.’46
To an extent, whether the proportionality test trespasses on the merits of a
decision depends on the approach taken to the conceptual validity of the legality/
merits distinction. On one view, like proportionality, concepts such as Wednes-
bury unreasonableness and procedural unfairness are equally ‘judicial creations’
which ‘owe neither their existence nor their acceptance to the will of the legisla-
ture. They have nothing to do with the intention of Parliament, save as a fig-leaf
to cover their true origins’.47 On this view, the grounds of judicial review are
‘not morally colourless’ but ‘constitute ethical ideals as to the virtuous conduct of
the state’s affairs’,48 designed to protect democracy from its destruction by gov-
ernments. Once the inevitability of judicial creativity is acknowledged – every
precedent originated somewhere – the real argument becomes about the width
of, and constraints upon, judicial creativity, and not whether it exists at all.


The public/private distinction

In both human rights law and administrative law, there has been much angst
about constructing, defending and destabilising the boundaries of public and
private power.49 Historically, neither human rights law nor administrative law
normally addressed the decisions or actions of private actors, since both were
limited to controlling excessive or arbitrary governmental power. The modern
devolution of public power to private entities, through measures of privatisation,
commercialisation and contracting out, has generated a great deal of concern in
both areas of law about how best to control and hold accountable the activities
of private or hybrid entities. While there is also a shared concern about the
conceptual validity of the distinction between public and private power – since
‘one may shade into the other’50 – it has been conditionally accepted in both
areas of law as a working premise for delineating different types of powers, albeit
increasingly blurred in practice.
Under international human rights treaties, only states expressly owe legal obli-
gations to protect rights. In contrast, private persons are not parties to human
rights treaties, which do not have ‘direct horizontal effects’ in international law
and are not regarded as substitutes for domestic criminal law.51 For this reason,
most national Bills of Rights are limited to controlling rights violations by public
authorities, in order to implement international treaty obligations. In some juris-
dictions, there is considerable debate about the scope of the meaning of a ‘public
authority’, and in particular whether it encompasses hybrid bodies spanning the
public/private divide.52
Nonetheless, in implementing the duty to ‘ensure’ rights, states must also pro-
tect individuals from private violations of rights ‘in so far as they are amenable to
application between private persons or entities’.53 This may require states to take
56 AUSTRALIAN ADMINISTRATIVE LAW


positive measures of protection (through policy, legislation and administrative
action), or to exercise due diligence to prevent, punish, investigate or redress the
harm or interference caused by private acts.54 These duties are related to the
duty to ensure effective remedies for rights violations.55 Thus non-state actors
such as individuals or corporations are indirectly regulated by human rights law,
by virtue of the duties on states to ‘protect’ and ‘ensure’ rights. Consequently,
‘[m]uch of the significance of the State/non-State (public-private) distinction
with respect to the reach of international law . . . collapses’.56 Even so, where a
private act is not attributable to the state, the state cannot be held responsible for
the act itself, but only for its own failure to exercise due diligence in preventing
the resulting rights violations or responding appropriately to them.57
While private persons are not directly legally responsible for rights violations,
neither are they left entirely unregulated. The preamble to the Universal Decla-
ration of Human Rights (UDHR) states that ‘every individual . . . shall strive . . . to
promote respect for these rights and freedoms . . . to secure their universal recog-
nition and observance’, reiterated in UN resolutions.58 Article 29(1) of the UDHR
further recognises that ‘everyone has duties to the community’, and the travaux
pr´paratoires support the view that individuals must respect human rights.59 Sim-
e
ilarly, the preambles to the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural Rights
(ICESCR) state that ‘the individual, having duties to other individuals and to the
community to which he belongs, is under a responsibility to strive for the pro-
motion and observance of . . . rights’. While these preambular injunctions and
UDHR provisions are not binding, common article 5(1) of the ICCPR and ICESCR
states, however, that nothing in those treaties:

. . . may be interpreted as implying for any State, group or person any right to engage
in any activity or perform any act aimed at the destruction of any of the rights and
freedoms recognized herein or at their limitation to a greater extent than is provided
for.


That provision is legally binding and, like humanitarian law instruments directed
towards controlling individual conduct, is addressed directly to individuals and
groups. Developments in customary human rights law have also tended towards
increasing control of private actors in relevant situations.

If the objective of human rights law is the protection of human dignity, it is logical that
remedies be available for violations of human rights whether committed by public or
private actors. The criminal law and civil law remedies will not always provide sufficient
redress for the violation of rights by private actors, and it is vital that individuals can
seek remedies against private violators. One method to achieve this is the example set
by the 1996 Constitution of South Africa, which provides that a provision of their Bill
of Rights ‘binds a natural or a juristic person if, and to the extent that, it is applicable,
taking into account the nature of the right and the nature of any duty imposed by the
right’.60
57
THE HUMAN RIGHTS DIMENSION


In Australia, arguments to extend the reach of administrative law to private bod-
ies have not met with much success. Mechanisms such as the Ombudsman and
freedom of information legislation are generally limited to government depart-
ments, agencies or prescribed authorities,61 although, as explained below, there
was some expansion of the Commonwealth Ombudsman’s powers in 2005. In
addition, new National Privacy Principles in 2001 extended the reach of federal
privacy law beyond Commonwealth government agencies to regulate private sec-
tor bodies.62 Generally, however: ‘The private sector has been quarantined from
the strict requirements of public law, and governed primarily by market princi-
ples, self-interested relations between individuals, and the limited intervention
of the private law’.63 In contrast, following the Datafin decision, the English
courts have been more willing to expand the remit of administrative law, in that
case finding that judicial review was available in relation to a body exercising
regulatory powers in deregulated capital markets.64 Similar efforts by Australian
judges, such as Justice Murphy in Forbes v NSW Trotting Club Ltd65 have remained
in the minority.66 Under the Judiciary Act 1903 (Cth), the jurisdiction of the Fed-
eral Court is limited to actions involving public elements such as where an action
is against an officer of the Commonwealth or arises under a law of Parliament,67
although the latter category may authorise actions against private individuals,
and in both cases the Court has an inherent accrued and/or associated jurisdic-
tion which may cover private individuals.68 The High Court’s original jurisdiction
under s75(v) of the Commonwealth Constitution is similarly limited to matters
where remedies are sought against an officer of the Commonwealth, although
the Court also has pendent jurisdiction to decide the whole of a matter brought
before it and to do ‘complete justice’ between the parties so as to avoid multiple
proceedings.69 Such extended jurisdiction may enable the court to grant relief
against private individuals.
Judicial review under the Administrative Decisions (Judicial Review) Act 1977
(Cth) is limited to administrative decisions made ‘under an enactment’ or by
a Commonwealth authority or officer.70 The phrase ‘under an enactment’ has
been narrowly construed to generally exclude the exercise of private power. For
example, in NEAT Domestic Trading Pty Ltd v AWB Ltd,71 the quasi-regulatory
role of a private company, AWBI, in consenting or refusing consent to wheat
exports by companies other than itself was not considered to be a decision of an
administrative character made under an enactment. AWBI was a private entity
incorporated under the Corporations Law, for the purpose of making profit, and
the High Court thought ‘it is not possible to impose public law obligations on AWBI
while at the same time accommodating pursuit of its private interests’.72 Similarly,
in Griffith University v Tang,73 a disciplinary decision to exclude a student from
enrolment at university was found not to be a judicially reviewable decision
made under an enactment, since the disciplinary proceedings did not affect legal
rights or obligations and had no explicit statutory basis. In that case, private law
remedies were also unavailable, since the relationship between the university
and the student did not give rise to any contractual obligations.
58 AUSTRALIAN ADMINISTRATIVE LAW


Kirby J dissented in each case and argued that public law remedies should be
extended to bodies exercising powers of the kind in issue in each case. In NEAT,
Kirby J found that AWBI’s decisions were given legal effect by statute and AWBI
enjoyed powers arising under statute which were wider than those enjoyed by
ordinary companies. In his view:

The question of principle presented is whether, in the performance of a function pro-
vided to it by federal legislation, a private corporation is accountable according to the
norms and values of public law or is cut adrift from such mechanisms of accountability
and is answerable only to its shareholders and to the requirements of corporations law
or like rules.74

Similarly, in Tang, Kirby J thought that the majority took ‘an unduly narrow
approach to the availability of statutory review directed to the deployment of
public power’.75 There was an elaborate statutory regime creating and regulating
the university and the absence of specific statutory authority for disciplinary
decisions could not detract from the public nature of the university’s powers.
While private law may provide remedies in some situations where private
bodies are exercising public powers, public law remedies clearly ask different
(and often more intense) questions to those posed in private law, particularly in
an emphasis on values such as fairness. Private actors can affect people’s lives in
ways which cannot be challenged by public law remedies, and in relation to which
private law remedies may be insufficient to ensure accountability. This is not to
suggest that attenuating the scope of administrative law is always preferable.
There are different ways to ensure accountability76 and in some cases the better
approach may be to adapt private law remedies, as in tort or contract.77 Contracts
in areas such as immigration detention can, for example, specify expected service
delivery standards,78 although those most affected by breaches of a contract
may not be parties to it and possess no enforceable contractual rights. Industry
ombudsmen schemes may also enhance accountability of private actors (as in the
telecommunications and banking sectors), though there are inherent limitations
to self-regulation.



A right to administrative justice?

In approaching the human rights dimension of administrative law, some authors
have articulated a human right to ‘administrative justice’ and then explained how
Australian administrative law already secures such a right.79 The right is said to
comprise a right of individuals to seek judicial review of government decisions
adversely affecting them; a right of appeal (with suspensive effect) on the merits
to a tribunal or a court; and a right of judicial review on the law and merits on
matters of special importance.80 Australia is thought to satisfy these requirements
because there exists a right of judicial review on questions of law; a right of merits
review to various tribunals (which may incorporate a human rights perspective
59
THE HUMAN RIGHTS DIMENSION


in substituting the ‘correct or preferable decision’); the ability to complain to the
Ombudsman (who examines whether administrative action was ‘unreasonable,
unjust, oppressive or improperly discriminatory’); and complaints mechanisms
(such as the Human Rights and Equal Opportunity Commission) for dealing
with rights violations and discrimination by government agencies.81 In addition,
freedom of information legislation and privacy laws protect the associated human
right to information under article 19 of the ICCPR.
While this approach helpfully illustrates some of the ways in which Australian
administrative law pursues the goal of administrative justice, such analysis pro-
ceeds from a mistaken (and overly optimistic) premise. There is no recognised
right to administrative justice in international human rights law, and its purported
grounding in European human rights jurisprudence is speculative or aspirational
at best. Article 14(1) of the ICCPR establishes only that in the determination of
a ‘criminal charge’ or ‘rights and obligations in a suit at law’, a person is ‘entitled
to a fair and public hearing by a competent, independent and impartial tribunal
established by law’. The difficulty is that a ‘suit at law’ was historically understood
as meaning a civil action in court, and did not extend to encompass administrative
decisions or actions.
In part, this limitation reflects the historical circumstances, 1945–1966, in
which the human rights treaties were drafted, when the full effects on individ-
uals of the explosive growth of the modern regulatory state were not yet felt.
Civil or criminal proceedings were still considered the primary means by which
legal rights and interests were affected, and the importance of safeguarding the
individual from bureaucratic oppression and maladministration was not fully
recognised. This is perhaps surprising, given that arbitrary, cruel or capricious
administrative action was a hallmark of Nazi and fascist rule in occupied Europe
during World War II. The omission may be explained by the reality that in aspiring
to universality, the human rights treaties had to find common ground across the
whole spectrum of national legal systems. Some states were simply not willing
to countenance binding procedural rights against governmental action, while
in other states the issue was not thought relevant given the primitive state of
development of administrative processes.
While there may be good policy reasons for extending minimum procedural
guarantees to administrative decision-making, international human rights law
has not yet developed to this point. Despite increasing international interest in
the concept of a ‘global administrative law’,82 such a concept is at best emergent
or aspirational, and is not reflected in state practice at the domestic level. While
European countries have developed farthest in this direction, it is difficult to
transpose that experience to the Australian context, given the absence of Aus-
tralian participation in any similar regional human rights system (such as the
European Convention on Human Rights and associated institutions) or supra-
national governance arrangement (such as the European Union). Moreover, the
fair hearing provision in the European Convention on Human Rights, article 6(1),
is worded more broadly than the ICCPR equivalent, referring to ‘civil rights and
60 AUSTRALIAN ADMINISTRATIVE LAW


obligations’ unlimited by the need for a ‘suit at law’. As such, it may be easier to
infer a right to administrative justice from an expansive reading of the European
Convention than from the ICCPR. The further ‘right to good administration’ in
the Charter of Fundamental Rights of the European Union of 2000 has not been
similarly articulated anywhere outside the EU.
Only in rare cases, such as the ‘right to justice’ in article 27 of the New
Zealand Bill of Rights, have entitlements to natural justice and judicial review
been elevated to the status of human rights.83 In the aftermath of the Fitzger-
ald Inquiry, the Electoral and Administrative Review Commission of Queensland
recommended including an equivalent ‘right to procedural fairness’ in its draft
Queensland Bill of Rights, in situations where a ‘decision by a tribunal or other
public authority . . . may affect the person’s rights’.84 Unlike the New Zealand
approach, the Commission’s draft article 31 (non-exhaustively) particularised
the content of procedural fairness to include (a) a reasonable opportunity to
present a case, (b) the impartiality of the tribunal or authority, and (c) a logically
probative evidence rule. Such a right was not, of itself, thought to be essential to
human dignity, but is ‘a process which protects other fundamental rights’ and so
was considered appropriate for inclusion.85
The significance of this analysis is to show that analysing Australian admin-
istrative law for compliance with a human right to administrative justice puts
the cart before the horse. In some ways, Australian administrative law is more
advanced than international human rights law, since it provides both merits
review and essential judicial guarantees of procedural fairness in administrative
decision-making, supplementing the human rights guarantees of fair process
which apply in the more limited situations of criminal or civil proceedings. More-
over, the very extensive grounds of judicial review in Australian administrative
law are far more comprehensive than the meagre requirement in human rights
law of a fair and public hearing by a competent, independent and impartial tri-
bunal. While criminal cases attract far more detailed due process rights, nothing
more is specified in civil cases. The price of universality in human rights law is
that the content of some rights is reduced to the bare minimum acceptable to
all contracting states. The Australian administrative law system surpasses these
lowest common denominator standards in these important respects.


Interpretive principles and human rights

Judicial approaches to interpretation can play an important role in protecting
human rights. While principles of interpretation cut across all areas of law and
are not peculiar to administrative law, the way in which the courts interpret legis-
lation and the common law will circumscribe the legal boundaries of administra-
tive action and signal the permissible range of discretionary choices. There is no
‘no general legal requirement in Australia that a statutory discretion be exercised
in accordance with human rights norms’,86 and the principle of parliamentary
61
THE HUMAN RIGHTS DIMENSION


supremacy must be respected in interpreting legislation and in setting the bound-
aries of the common law. Within these limits, a number of principles of statutory
interpretation contribute to protecting human rights in Australia.


Non-interference with fundamental rights
First, as the High Court stated in Coco v R:87 ‘The courts should not impute to the
legislature an intention to interfere with fundamental rights. Such an intention
must be clearly manifested by unmistakable and unambiguous language. Gen-
eral words will rarely be sufficient for that purpose.’88 In that case, legislation
authorising a magistrate to issue listening device warrants was held not to permit
warrants authorising entry and trespass upon private property. Strictly constru-
ing statutes to protect individual rights reflects a kind of moral law underpinning
the role of the judiciary,89 and is also designed to ‘enhance the parliamentary
process by securing a greater measure of attention to the impact of legislative
proposals on fundamental rights’.90 The dialogue between Parliament and the
courts which the principle generates is a manifestation of the broader principle
of legality pursued by the courts.91 There is, however, no broader doctrine allow-
ing the courts to invalidate legislation which is incompatible with fundamental
rights.92
Clearly, the fundamental rights principle may have a similar effect to a statu-
tory Bill of Rights requiring the courts to interpret legislation consistently with
human rights,93 as is now the case in the Australian Capital Territory and
Victoria.94 However, the common law emphasis on protecting individual rights
and liberties does not necessarily equate with the protection of human rights,
which cover a wider territory than common law rights. Conversely, the com-
mon law emphasis on property rights goes further than international human
rights law, which contains no express right to property (although such a right is
incidentally protected by rights to privacy and non-interference with the home
and family life). In some cases, an insistence on protecting property rights may
overshadow countervailing individual rights of greater importance.
The fundamental rights principle has been criticised for its elasticity, both
in identifying what constitutes ‘fundamental rights’ and when an intention to
interfere with rights is manifested.95 In part, such critiques are borne of suspicion
of ‘judicial activism’ and the democratic deficit which is thought to characterise
such an affliction. Some Australian judges have cautioned that ‘the scope of
judicial review must be determined not in terms of the protection of individual
interests but in terms of the extent of power and the legality of its exercise’.96
Even so, the notion of fundamental rights is deeply rooted in precedent, and is
arguably no more ill-defined than other subjective concepts routinely invoked
and applied by judges. Factors such as ‘[h]istory, tradition and international
norms have important roles to play in the justification and legitimation of value
inquiry’ and in ‘combating eclecticism and subjectivity in the identification of
“fundamental” rights’.97
62 AUSTRALIAN ADMINISTRATIVE LAW


Al-Kateb v Godwin98 illustrates the difficulty in determining when statutory
language is sufficiently ambiguous to trigger the application of the principle. The
case concerned the lawfulness of the possible indefinite detention of a non-citizen
who could not be presently removed from Australia under the Migration Act 1958
(Cth). In the majority, McHugh J found that the words of the statute – requiring
a person’s removal from Australia ‘as soon as reasonably practicable’ – were
unambiguous and were ‘too clear to read them as being subject to a purposive
limitation or an intention not to affect fundamental rights’.99 In contrast, the
dissenting judges found that more explicit language was necessary to signal an
intention to interfere with personal liberty, considered the most fundamental
individual right. Gleeson CJ observed:

In a case of uncertainty, I would find it easier to discern a legislative intention to confer a
power of indefinite administrative detention if the power were coupled with a discretion
enabling its operation to be related to the circumstances of individual cases, including,
in particular, danger to the community and likelihood of absconding.100

This suggestion comes close to covertly replicating a human rights analysis of the
problem, which would require that any restriction on liberty must be justified as
objectively necessary and as a proportionate means of securing a legitimate aim
(such as protecting the community or preventing absconding).
While there was no dispute about the importance of personal liberty, McHugh
J doubted the wisdom of the rule that statutes contain an implication that they
should be construed in conformity with international law. In his view, the large
number of international treaty and customary rules means that the rationale for
such a rule ‘bears no relationship to the reality of the modern legislative process’,
though he conceded that the rule is ‘too well established to be repealed now by
judicial decision’.101 In contrast, Gleeson CJ firmly endorsed it and tapped into a
broader rule of law discourse underpinning the principle: ‘In a free society, under
the rule of law, it is an expression of a legal value, respected by the courts, and
acknowledged by the courts to be respected by Parliament’.102 Kirby J similarly
articulated a strong presumption at common law ‘in favour of liberty, and against
indefinite detention’.103
Differences in the appreciation of statutory ambiguity are an inherent con-
sequence of language and are hardly unique to the application of the funda-
mental rights principle. As others have noted, the notion of ambiguity itself is
ambiguous;104 or as McHugh J previously wrote: ‘Questions of construction are
notorious for generating opposing answers, none of which can be said to be
either clearly right or clearly wrong’.105 Underlying approaches to interpretation
necessarily inform how interpretive principles are applied. As Mason J has said:
‘Problems of legal interpretation are not solved satisfactorily by ritual incanta-
tions which emphasise the clarity of meaning which words have when viewed in
isolation, divorced from their context’.106 Al-Kateb exposes not so much a defi-
ciency in the fundamental rights principle so much as an arguable error in its
application to a particular case. The decision should also signal to Parliament the
importance of precision in statutory drafting, particularly when depriving people
63
THE HUMAN RIGHTS DIMENSION


of liberty. It is noteworthy that McHugh J thought ‘desirable’ a Bill of Rights,107
to make human rights more secure.


Interpretation of ambiguous statutes
The second principle of interpretation relevant to protecting human rights from
administrative infringement is the presumption that ambiguous statutes should
be interpreted consistently with international obligations,108 particularly human
rights. In Teoh, the High Court stated that ‘there are strong reasons for rejecting a
narrow conception of ambiguity. If the language of the legislation is susceptible
of a construction that is consistent with the terms of the international instru-
ment and the obligations which it imposes on Australia, then that construction
should prevail’.109 An extension of the principle is that ‘so far as the language
of a statute permits, it should be interpreted and applied in conformity with the
established rules of international law’110 generally, although the application of
the principle to interpreting the Commonwealth Constitution remains controver-
sial, even ‘heretical’.111 The presumption is that Parliament intends to legislate in
conformity with international law, unless otherwise indicated. In a more limited
way, s15AB(2)(d) of the Acts Interpretation Act 1901 (Cth) provides that a treaty
referred to in a statute may be used as extrinsic material in interpreting that
statute, to confirm the ordinary meaning of a provision, or where the provision is
ambiguous or obscure, or where its ordinary meaning would lead to a manifestly
absurd or unreasonable result.
Again, there is a similarity with provisions in statutory Bills of Rights which
require legislation to be interpreted consistently with enumerated human rights.
In both situations, there may be a lacuna where the executive is not acting pur-
suant to statutory powers, but under prerogative powers, powers exercisable as
ordinary legal persons, or through the use of non-statutory policies.112 A sig-
nificant difference between the two approaches is that the language of treaty
provisions may be indeterminate and expressed as goals rather than as rules,113
whereas the domestic enactment and codification of such treaties may involve a
higher degree of specification of rights during the parliamentary process.
Even so, suspicion of the indeterminacy of human rights treaties is sometimes
founded on a lack of familiarity with human rights concepts114 thought to be
alien to the domestic legal order, and even a certain blindness to the lack of
precision inherent in many existing legal concepts in national law. There is a rich
international jurisprudence on the interpretation and application of rights, and
the feared indeterminacy of rights is (partly) cured by reference to comparative
sources. As one commentator notes,

The challenge is to persuade public administrators that international human rights
standards are important, finite and helpful. Rather than shrink from them, they can
be harnessed to achieve the goals of certainty, smooth administration and effective
management. This is particularly necessary where decision-making involves significant
discretionary powers and the use of ‘personal, idiosyncratic values’.115
64 AUSTRALIAN ADMINISTRATIVE LAW


The more difficult challenge to the application of rights is the much larger debate
about whether rights are really just political claims masquerading as law,116 and
which should be left to Parliament, not least in order to respect the separation of
powers and so as not to transfer political decision-making to the less accountable
judiciary.117 There is also a concern that prioritising rights in curing ambigu-
ity may fail to adequately acknowledge other relevant public interests or values,
although it might be countered that human rights discourse has developed sophis-
ticated techniques for weighing up, balancing and limiting rights, in relation to
competing rights and competing public goods.118


Developing the common law
A third relevant principle of interpretation is the broader idea that international
law is, as stated in Mabo v Queensland (No 2),119 a ‘legitimate and important
influence on the development of the common law, especially when interna-
tional law declares the existence of universal human rights’.120 It has also been
asserted that human rights treaties help to indicate contemporary values and
the public interest.121 In Mabo (No 2), the development of modern human rights
treaties (along with statutory anti-discrimination law) was one factor informing
the Court’s decision to revisit the legal foundations of land title in Australia and
to recognise the persistence of native title.122
The problem of indeterminacy afflicting human rights is amplified if inter-
national law as a whole is considered a relevant influence on the common law.
Once a relatively small and coherent field of rules applicable between states,
international law has grown markedly over the past century, becoming highly
specialised, somewhat fragmented, and increasingly affecting relations between
individuals and other non-state legal entities. Nonetheless, as far as it is permitted
by Parliament, it makes sense to seek to harmonise Australian law with interna-
tional norms, at least where such norms would progressively develop (rather than
regress) Australian law. In the main, a relatively small number of international
rules will be relevant to administrative decision-making in Australia, and coalesce
in key human rights treaties. Many international rules will be of little relevance
to individuals in Australia as they principally continue to apply between states.


Legitimate expectations
The relevance of international law in administrative decision-making reached its
apotheosis in the High Court’s decision in Teoh in 1995,123 which is considered in
detail in chapter 19. The traditional position at common law, noted in Simsek, was
that until enacted by Parliament into domestic law, international treaties (even
if ratified by Australia) ‘have no legal effect upon the rights and duties of the sub-
jects of the Crown’.124 In Teoh, however, it was found that Australia’s ratification

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