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example, upon the wisdom and expediency of a proposal, a particular decision
or a course of action‚Ä™.50
The public interest test requires a balancing of competing interests as outlined
above. However, because this exemption focuses on the processes by which doc-
uments are generated rather than on any specific harm arising from disclosure
there is some degree of uncertainty and controversy as to the factors which can
legitimately be taken into account as weighing against disclosure.
A common, but not uncontroversial,51 starting point in many cases is a list
of five factors identified by the Commonwealth AAT in Re Howard and the
Treasurer.52 Those factors are that: (1) the parties to the communication are
of high rank; (2) the communication was made in the course of the development
and consequent promulgation of policy; (3) disclosure will inhibit frankness and
candour in future pre-decisional communications; (4) disclosure will lead to
confusion and unnecessary debate resulting from disclosure of possibilities con-
sidered; and (5) disclosure will not fairly disclose the reasons for a decision
126 AUSTRALIAN ADMINISTRATIVE LAW


subsequently taken. An alternative line of cases adopt a more flexible approach
that focuses more specifically on the factors relevant to each individual case.53
The exceptions to 36(i) fall into four categories: matters relating to the ‚Ęinter-
nal laws‚Ä™ of an agency as it affects members of the public, purely factual material,
records of decisions or exercise of powers or adjudicative functions, and reports
of scientific or technical experts. A claim for exemption under s36 may be sup-
ported by a conclusive ministerial certificate which establishes conclusively that
disclosure of any document specified is contrary to the public interest.54

Law enforcement and protection of public safety
The exemption in s37 protects documents relating to the administration and
enforcement of Australian laws. A document is exempt if its disclosure under the
Act could reasonably be expected to have one of six specified consequences. These
are: (1) prejudice to a current law enforcement investigation or to the proper
administration of the law; (2) disclosure of the existence (or non-existence) of a
confidential source in relation to the enforcement of administration of the law;
(3) danger to the life or physical safety of any person; (4) prejudice to a fair trial
or impartial adjudication; (5) prejudice to methods used for preventing breaches
of the law; and (6) prejudice to lawful methods for protecting public safety. A
source of information will qualify as confidential if ‚Ęthe information was provided
under an express or implied pledge of confidentiality‚Ä™.55

Documents subject to secrecy provisions in other laws
Section 38 regulates the interrelationship between the access provisions in the
Commonwealth FOI Act and secrecy provisions in other legislation. It provides
that a document is exempt: (1) if its disclosure or the disclosure of information
contained in it is prohibited under a provision of a law specified in Schedule 3; or
(2) there is a legislative provision which expressly applies s38 to the document (or
information) in issue. Section 38(1A) makes it clear that a document is exempt
only to the extent that disclosure to the applicant is prohibited by the relevant
enactment.

Documents affecting the Commonwealth‪s financial or property interests
A document is exempt under s39(1) if its disclosure under the Act could reason-
ably be expected to have a substantial adverse effect on the financial or property
interests of the relevant government or of an agency. That primary test for exemp-
tion is subject to a public interest proviso in s39(2).

Documents concerning certain agency operations
Section 40(1) is designed to protect the operations of agencies and is subject to a
public interest proviso in s40(2). A document is exempt if its disclosure under the
Act could reasonably be expected to: (1) prejudice the effectiveness or procedures
or methods for the conduct of tests, examination or audits by an agency; or
(2) prejudice the attainment of the objects of particular tests, examinations or
127
FREEDOM OF INFORMATION


audits by an agency; (3) have a substantial adverse effect on the management
or assessment of personnel; (4) have a substantial adverse effect on the proper
and efficient conduct of the operations of an agency; or (5) have a substantial
adverse effect on the proper and efficient conduct of the operations of an agency.
The types of prejudice which may be relevant to claims for exemption on the
first two grounds include the ability of examinees to gain an unfair advantage over
others, the potential for plagiarism and that regular challenges to their judgment
might inhibit examiners in the performance of their functions.56
The fourth ground for exemption is potentially very broad-ranging and
involves a substantial degree of overlap with the deliberative processes provi-
sion in s36. Review bodies have upheld claims for exemption under s40(1)(d)
where there has been evidence that disclosure of specific documents would affect
the future ability of an agency to obtain information or cooperation from others
(including consultants),57 inhibit candour and frankness58 or have a substantial
adverse effect on the future provision of information.59

Documents affecting personal privacy
Section 41 provides that a document is exempt if its disclosure under the Act
would involve the unreasonable disclosure of personal information about any
person (including a deceased person). ‚ĘPersonal information‚Ä™ is broadly defined
in s4(1). It means ‚Ęinformation or an opinion (including information forming
part of a database), whether true or not, and whether recorded in a material
form or not, about an individual whose identity is apparent, or can reasonably be
ascertained, from the information or opinion‚Ä™. That definition is consistent with
the definition of ‚Ępersonal information‚Ä™ in the Privacy Act 1988 (Cth).
The requirement that disclosure must be unreasonable has been interpreted
in Colakovski v Australian Telecommunications Commission60 as requiring a bal-
ancing of the public interest consideration for and against disclosure. Factors
relevant to that balancing process include any personal interest of the applicant
in the information in question, the nature and sensitivity of that information,
how the information was obtained by the agency, the likelihood that the per-
son to whom it relates would not wish to have it disclosed without consent and
whether it has any current relevance.61 It may also be affected by any relationship
between the applicant and the person to whom the record relates.
Section 41(3) confers discretion to provide access to an applicant‪s own per-
sonal information indirectly via an agreed intermediary in cases where it is of
a disturbing or distressing nature. That discretion arises if it appears likely that
the information will be detrimental to an applicant‚Ä™s ‚Ęphysical or mental health
or well-being‚Ä™ and it has been supplied by a qualified person such as a medical
practitioner, psychologist, marriage guidance counsellor or social worker.

Documents subject to legal professional privilege
A document is exempt under s42 if it is ‚Ęof such a nature that it would be privi-
leged from production in legal proceedings on the ground of legal professional
128 AUSTRALIAN ADMINISTRATIVE LAW


privilege‚Ä™. However, material which is required to be published under s9 is not
exempt by reason only of the inclusion in it of matter that is used or to be used for
the purpose of the making of decisions or recommendations referred to in that
section.
It has been held that the test to be applied is the new common law ‚Ędominant
purpose‚Ä™ test articulated in Esso Australia Resources Ltd v Commissioner of Taxation
of the Commonwealth of Australia.62 This requires that a document has been
created for the main purpose of giving or receiving legal advice or use in actual or
anticipated litigation. The High Court has confirmed that the privilege extends
to professional communications with salaried legal advisors provided there is a
professional relationship which secures to the advice an independent character.63
Legal privilege cannot be relied on if a document was created for some illegal
purpose (for example, to avoid some statutory duty). Furthermore, because it
attaches to information rather than documents, privilege may attach only to
some part or parts of documents.

Documents relating to business affairs
Section 43 protects the trade secrets and business affairs of third parties. A doc-
ument is exempt if its disclosure under the Act would disclose: (1) trade secrets;
(2) any other information having a commercial value that could reasonably be
expected to be destroyed or diminished if disclosed; (3) other information con-
cerning a person in respect of his or her business or professional affairs or con-
cerning the business, commercial or financial affairs of an organisation or under-
taking, the disclosure of which could reasonably be expected to unreasonably
affect that person or body adversely in respect of those affairs; or (4) other infor-
mation concerning a person in respect of his or her business or professional affairs
or concerning the business, commercial or financial affairs of an organisation or
undertaking which, if disclosed, could reasonably be expected to prejudice the
future supply of information to the government or an agency for the purpose of
the administration of a local law or the administration of matters administered
by an agency.
The first category provides for a class-based exemption in respect of any infor-
mation which qualifies as a trade secret. That expression has been interpreted
in Searle Australia Pty Ltd v Public Interest Advocacy Centre64 as having its ordi-
nary meaning, not some technical legal one. What is essential, therefore, is that
information is secret in character, that it would be advantageous to trade rivals
to obtain it and that it has an actual or potential trade use to the business owner.
The second category is harm-based and requires an assessment of the impact of
disclosure on the information‚Ä™s ‚Ęcommercial value‚Ä™. The Federal Court has held
that this requires an assessment of value from the perspective of those activities of
an organisation which are of a commercial (as opposed to, say, an administrative)
character.65 In the case of the third category, the expression ‚Ęunreasonably affect‚Ä™
has been interpreted consistently with the requirement of reasonableness in s41
as requiring a balancing of the competing factors for and against disclosure.66
129
FREEDOM OF INFORMATION


Documents containing material obtained in confidence
The exemption for confidential information in s45 is worded with reference to the
common law test for breach of confidence. A document is exempt if its disclosure
under the Act would ‚Ęfound an action, by a person other than the Commonwealth,
for breach of confidence‚Ä™. The primary test for exemption in s45(1) is subject to a
proviso in s45(2) that it does not apply to internal working documents prepared
by a minister, by an officer or employee of an agency in the course of his or her
duties, or by a prescribed authority in the performance of its function unless its
disclosure would constitute a breach of confidence owed to a third party.
The test generally applied in the absence of a contractual obligation is that
set out in the dissenting judgment by Gummow J in Corrs Pavey Whiting and
Byrne v Collector of Customs (Vic).67 This requires demonstration that the specific
information in issue: (1) has the necessary quality of confidentiality (and is not,
for example, commonly known); (2) was received in circumstances which gave
rise to an obligation of confidence; and (3) that disclosure will amount to a misuse
of it.
The requirement to treat information as confidential may be implied from the
context in which the information was obtained and it is unnecessary that there
should have been any express undertaking to that effect.68 Conversely, the fact
that a document is marked as confidential will not be definitive.
A problem with s45 is that it provides scope for agencies to structure their
contractual arrangements with third parties in ways which allow them to claim
exemption on this ground, thereby shielding their commercial activities from
public scrutiny.69

Other exemptions
The Act also contains additional exemptions which protect ongoing research by
agency officers,70 documents affecting the national economy,71 documents the
disclosure of which would be in contempt of Parliament or contempt of court,72
certain documents arising out of companies and securities legislation73 and elec-
toral rolls and related documents.74



Applications for amendment of personal documents

The procedures for amendment of records are contained in Part V of the Act.


Making an application
An applicant who has lawfully obtained access to a document which contains his
or her personal information and is used for an ‚Ęadministrative‚Ä™ purpose may apply
in writing for the document to be amended or for an annotation to be added to it.
An application must specify the respects in which the information is claimed to be
130 AUSTRALIAN ADMINISTRATIVE LAW


incomplete, incorrect, out of date or misleading and the reasons for that claim. An
application for an annotation must, in addition, specify such other information
as would make the information complete, correct, up-to-date or not misleading.
Information will not necessarily qualify as out of date simply because it is
old; what is required is that it must be in some sense obsolete. Likewise, it will
not be regarded as incorrect if it is simply a transcript of a conversation which
itself contained factual inaccuracies. Another limitation is that the amendment
procedure cannot be used to ‚Ęrewrite history‚Ä™ or to provide an avenue for disputing
an agency‪s decision.


Responding to an application
An agency or minister must respond to an application for amendment or annota-
tion within a specified time period and provide reasons for any adverse decision.
There is also provision for transfers to other agencies. An important difference,
however, is that there is no automatic right to amendment. A decision maker who
is satisfied that information in a document is incomplete, incorrect, out of date or
misleading has discretion to amend the document so as to correct the deficiency.
If he or she declines to do so, the applicant is entitled to require the addition of
a note specifying the respects in which the information is incomplete, incorrect
or misleading. In that case the agency may, if it so chooses, add comments of its
own by way of an additional note.
In most cases, amendment will be achieved via some method which does
not obliterate the original information. However, review bodies have agreed to
fully obliterate data in exceptional circumstances (for example, where it is highly
defamatory and lacking in any factual foundation).75


Review of adverse decisions
Part VI of the Act provides for a two tiered system of internal review within an
agency and external review by the Commonwealth AAT. It also makes specific
provision for complaints to the Commonwealth Ombudsman and for appeal on
questions of law from the AAT to the Federal Court.


Internal review
Internal review is restricted to decisions made by a person other than a minister
or the principal officer of an agency. The procedures and grounds for applying for
it are set out in s54. An application for review may be made by any person who has
received an adverse decision in relation to an application for access or amendment
(including a deemed decision, a decision concerning charges and a decision to
grant access with deletions or to defer access to a later date or a third party who
has been consulted in accordance with the procedures for consultation). It must
be accompanied by the required application fee and made within thirty days of
131
FREEDOM OF INFORMATION


notification of the original decision (or deemed decision), or within such further
period as the agency allows.
The person conducting the review must inform the applicant of its result within
thirty days. Failure to comply with this requirement results in a deemed decision
which triggers a right to apply for external review by the AAT.


Ombudsman review
A person who is dissatisfied with any action taken by an agency under the
Act is entitled to make a complaint to the Commonwealth Ombudsman (see
Chapter 6).
Section 57 contains two restrictions on the Ombudsman‪s powers. First, his or
her report cannot contain information about the existence or non-existence of
information which would, if included in a document of an agency, cause that doc-
ument to be exempt from the national security, intergovernmental relations and
law enforcement exemption provisions. Second, the Ombudsman is precluded
from recommending amendment where a document records a decision under
an enactment by a court, tribunal, authority or person; or the decision whether
to amend the document involves determination of a question that the person
seeking to amend the document is, or has been, entitled to have determined by a
court or tribunal.


Tribunal review
General
The provisions governing review by the AAT are set out in ss55 to 66. An applica-
tion for review must be accompanied by the required application fee and made
within the time limits prescribed (that is, as appropriate, within sixty days of noti-
fication of the original decision, a decision on internal review, a deemed decision
or notification of the result of a complaint to the Ombudsman).
Except in the case of documents which are subject to conclusive certificates,
it is the AAT‪s function to provide review on the merits. However, in contrast to
the initial decision maker, the tribunal is precluded from granting access to an
exempt document. It is also precluded from requiring the amendment of a record
of opinion unless it finds that the opinion is based on a mistake of fact or that the
author of the opinion was biased, unqualified or acted improperly in adducing
the fact which formed the basis of the opinion.76
The tribunal is required to have regard to the necessity to avoid the disclosure of
exempt matter (including information concerning the existence or non-existence
of documents) and to ensure that no exempt matter is included in its reasons
for decision.77 It cannot require the production of any document claimed to be
exempt unless it is not satisfied by evidence that the claim for exemption is a
justified one or requires access in order to decide whether it is practicable to
132 AUSTRALIAN ADMINISTRATIVE LAW


grant access to an edited copy of a document. It is also restricted in its ability to
allow applicants‚Ä™ legal representatives to view any material which is claimed to
be exempt.78
In proceedings before the AAT, the onus is on the respondent to establish that
its decision was justified. Each party is usually required to pay its own costs,
irrespective of the outcome but the tribunal has discretion to recommend to the
Attorney-General that the Commonwealth should pay the costs of an applicant
who has been successful or substantially successful in his or her application.79

Documents subject to conclusive certificates
The tribunal must be specially constituted to consider an application for review
of a decision concerning access to a document which is subject to a conclusive
certificate.80 Its task is limited to assessing the reasonableness of the claims
made in the certificate. In McKinnon v Treasury,81 the Full Court of the High
Court rejected an argument that the exercise of that power in the context of
a certificate issued under s36(3) required the Tribunal to specifically engage
in a balancing of the factors for and against disclosure. However, the majority
differed in their formulation of the Tribunal‪s task in reviewing such a certificate.
Callinan and Heydon JJ took the view that: ‚Ęif one reasonable ground for the claim
of contrariety to the public interest exists, even though there may be reasonable
grounds the other way, the conclusiveness will be beyond review‚Ä™.82 In contrast,
Hayne J accepted that there would often be competing considerations which
were relevant to the statutory test in s58(3) and described the Tribunal‪s task
as being ‚Ęto decide whether the conclusion expressed in the certificate (that
disclosure of particular documents would be contrary to the public interest) can
be supported by logical arguments which, taken together, are reasonably open
to be adopted and which, if adopted, would support the conclusion expressed
in the certificate‚Ä™.83 He also stressed that the test of reasonableness required a
finding of something more than a mere absence of grounds which are ‚Ęirrational,
absurd or ridiculous‚Ä™.84 The two minority judges, Gleeson CJ and Kirby J, took
the view that the Tribunal‪s assessment of reasonableness required it to consider
all relevant considerations from the perspective that ‚Ęthere is a general right of
access to information . . . limited only by exceptions and exemptions necessary
for the protection of essential public interests‚Ä™.85
If the Tribunal concludes that the claims made are unreasonable it may rec-
ommend that the certificate should be revoked.86 In that case, the minister must
either revoke the certificate or provide and table in Parliament a notice detail-
ing his or her reasons for refusing to do so, including findings on any material
questions of fact and the findings on which they were based.


Judicial review
Decisions made under the Commonwealth FOI Act are potentially subject to
judicial review.87
133
FREEDOM OF INFORMATION


Overview

While it has made an important contribution to open government, the Act has
fallen short of achieving its broader democratic objectives.88 That failure is in part
attributable to the way in which it has been drafted and interpreted and in part
to shortcomings in its administration and funding and to a lack of governmental
support.89 Two major disincentives to its use for public interest purposes are
delays in the processing of requests and the imposition of significant charges for
access.90
If the Act is to work more effectively there needs to be a greater emphasis
on proactive dissemination of information and reconfiguring of its scope in a
way which takes into account the erosion of the public/private dichotomy as
discussed in Chapter 3.91 It is also important that there should be some office
with responsibility for publicising the Act‪s existence, monitoring compliance
and initiating actions to remedy factors which are found to inhibit its effective
operation.92


State and territory legislation

State and territory FOI laws93 follow a generally similar pattern to the Common-
wealth Act. They provide for rights of access to documents in the possession of
agencies and official documents of ministers, requirements for the publication of
internal laws and other specified documents (except in the case of the Tasmanian
Act) and procedures for the amendment of an applicant‪s personal information.
The access rights contained in them are again subject to a number of exceptions
and exemptions, although there is some variation in the grounds of exemption
and in the wording of specific exemption provisions.
The procedures for access and amendment are generally similar although
there are variations in the time limits for responses and the circumstances in
which third parties must be consulted about disclosures.
Like the Commonwealth FOI Act, the state and territory FOI Acts contain
provision for both internal review within an agency and external review by some
independent body. An important difference, however, is that some of the state
Acts provide for review by an Information Commissioner or Ombudsman rather
than an administrative appeals tribunal.
8
Delegated legislation
Stephen Argument




‚ĘDelegated legislation‚Ä™ is legislation made by a body or person to whom the Parlia-
ment has delegated its power to legislate. This is an important point of distinction
with ‚Ęprimary‚Ä™ legislation, which is passed by both Houses of the Commonwealth
Parliament and assented to by the Governor-General. Delegated legislation (for
example, regulations) is often made by the Governor-General, acting on the
advice of the Federal Executive Council.
Delegated legislation tends to provide detail to a legislative scheme, setting
out matters that are regarded as not necessary for Parliament itself to approve by
passage of primary legislation. For a more precise exposition of what delegated
legislation covers, however, it is more a case of referring to what should not be
provided for by delegated legislation. The Department of the Prime Minister and
Cabinet‪s Legislation Handbook1 provides that the following matters should only
be implemented through primary legislation:


a appropriations of money;
b significant questions of policy including significant new policy or fundamental
changes to existing policy;
c rules which have a significant impact on individual rights and liberties;
d provisions imposing obligations on citizens or organisations to undertake certain
activities (for example, to provide information or submit documentation, noting
that the detail of the information or documents required should be included in
subordinate legislation) or desist from activities (for example, to prohibit an activity
and impose penalties or sanctions for engaging in an activity);
e provisions conferring enforceable rights on citizens or organisations;
f provisions creating offences which impose significant criminal penalties (impris-
onment or fines equal to more than 50 penalty units for individuals or more than
250 penalty units for corporations);

134
135
DELEGATED LEGISLATION


g provisions imposing administrative penalties for regulatory offences (administra-
tive penalties enable the executive to receive payment of a monetary sum without
determination of the issues by a court);
h provisions imposing taxes or levies;
i provisions imposing significant fees and charges (equal to more than 50 penalty
units consistent with (f) above);
j provisions authorising the borrowing of funds;
k procedural matters that go to the essence of the legislative scheme;
l provisions creating statutory authorities (noting that some details of the opera-
tions of a statutory authority would be appropriately dealt with in subordinate
legislation); and
m amendments to Acts of Parliament (noting that the continued inclusion of a mea-
sure in an Act should be examined against these criteria when an amendment is
required).

Since legislation should preferably be made by the Parliament and not dele-
gated to non-parliamentary entities, delegated legislation is regarded, at best,
a necessary evil that is only tolerated because the growth in the functions
and requirements of modern government demand it. A more problematic issue
is that delegated legislation might be regarded as challenging the concept of
the separation of powers, in that it is ‚Ęlegislative in form and executive in
source‚Ä™.
This chapter sets out to do four things. First, it looks at the justification for
having delegated legislation. Second, it considers the arguments levelled against
the uses of delegated legislation. Third, it discusses the single most important
development in delegated legislation for at least half a century ‚Ä“ the passage
of the Legislative Instruments Act 2003 (Cth) (LIA). Fourth, the effect of various
developments (including the LIA but especially the role of parliamentary scrutiny
committees) on the operation of delegated legislation and on the way that the
courts have dealt with delegated legislation is analysed.



The justification for having delegated legislation

The conventional wisdom is that there are three justifications for the Parliament
delegating the power to make legislation:

‚ÄĘ to ease pressure on parliamentary time;
‚ÄĘ to cope with legislation that is too technical or detailed for parliamentary consider-
ation; and
‚ÄĘ to provide the flexibility to deal with rapidly changing or uncertain situations.

The question that is posed is whether these justifications are still tenable. It
is uncontroversial that the demands on parliamentary time are increasing rather
than decreasing. However, does that justify the explosion of delegated legisla-
tion? Is it possible that the proliferation of delegated legislation reflects the fact
136 AUSTRALIAN ADMINISTRATIVE LAW


that the Parliament has let the genie out of the bottle? Is there an element of the
self-fulfilling prophecy?
As to concerns about technical issues and complexity, again, it is indubitable
that some delegated legislation deals with complex and technical issues, requiring
voluminous detail. On the other hand, Parliament does not necessarily shy away
from complex, technical or voluminous legislation, as exemplified by amend-
ments to the Corporations Act 2001 (Cth), the Income Tax Assessment Act 1936
(Cth) or the recent amendments to the Workplace Relations Act 1996 (Cth). The
regulations made in relation to those recent amendments are, of course, another
matter altogether. It is difficult to explain why Parliament is prepared to deal
with some instances of complexity, technicality and volume but not others.
The flexibility argument is also, on its face, hard to dispute. Anyone who has
been involved with the legislative process knows that on the whole it takes a longer
lead-up time for the implementation of amendments to primary legislation than
for putting in place amendments by way of delegated legislation. But legislation
can be amended quickly, if there is the necessary will. The process for making
regulations may also take time and has its own challenges.


Arguments against the use of delegated legislation

It is primarily argued that if the executive has power to make laws, the supremacy
or sovereignty of the Parliament will be seriously impaired and the balance of the
Constitution altered. Furthermore, it is asserted that if laws are made affecting
the subject, they should first be submitted to the elected representatives of the
people for consideration and approval.
Lord Hewart, an early critic of delegated legislation, said:

A mass of evidence establishes the fact that there is in existence a persistent and well-
contrived system, intended to produce, and in practice producing, a despotic power
which at one and the same time places Government departments above the Sovereignty
of Parliament and beyond the jurisdiction of the Courts.2

Lord Hewart‪s prospective despot was seen as being able to achieve his or her
purpose if he or she could:

(a) get legislation passed in skeletal form;
(b) fill up the gaps with his [or her] own rules, orders, and regulations;
(c) make it difficult or impossible for the Parliament to check the said rules, orders,
and regulations;
(d) secure for them the force of statute;
(e) make his [or her] own decision final;
(f) arrange that the fact of his [or her] decision shall be conclusive proof of its legality;
(g) take power to modify provisions of statutes; and
(h) prevent and avoid any sort of appeal to a Court of Law.3

Is this true today?
137
DELEGATED LEGISLATION


The recent amendments to the Workplace Relations legislation would seem
to be a good example of (a) and (b). While the amendments to the Workplace
Relations Act could hardly be described as skeletal, it could also be said that there
is a lot of devil in the detail that was left to the regulations.4 As to (c), parliaments
in Australia rely on legislative scrutiny committees to check delegated legislation.
These committees have been established explicitly to deal with this issue.
Undoubtedly, delegated legislation has the force of statute. An important role
of legislative scrutiny committees is to ensure that what should be in primary
legislation is in primary legislation, and not shunted off to delegated legislation.
Thus, there is vigilance by the committees to ensure that the use of penalty
provisions in delegated legislation is monitored and limited.
Legislative scrutiny committees are also required to ensure that decisions made
under delegated legislation are subject to review on their merits by a judicial or
other independent tribunal. We therefore rely on the legislative scrutiny com-
mittees to protect us from (e), (f ) and (h) in Lord Hewart‪s list.
In relation to (g) the use of dreaded ‚ĘHenry VIII‚Ä™ clauses (these are clauses that
allow the amendment of primary legislation by subordinate legislation)5 has
increased, as instanced by the recent Workplace Relations legislation amend-
ments. The legislative scrutiny committees are there to monitor the use of Henry
VIII clauses. The committees draw attention to the use of Henry VIII clauses,
forcing the Parliament to authorise their use expressly, rather than passing them
into law as part of the blur of voluminous legislation. Parliament retains the
capacity to disallow amendments made under Henry VIII clauses because the
regulations that are made under Henry VIII clauses are themselves disallowable.
How realistic this mechanism is can be queried, especially in parliaments where
the Government has a majority.


Delegated legislation and the Legislative
Instruments Act 2003 (Cth)

The most significant element of the LIA is its application to all instruments made in
exercise of a power delegated by the Parliament that are ‚Ęof a legislative character‚Ä™.
Section 5 of the LIA provides that an instrument is ‚Ęof a legislative character‚Ä™ if:

(a) it determines the law or alters the content of the law, rather than applying the law
in a particular case; and
(b) it has the direct or indirect effect of affecting a privilege or interest, imposing an
obligation, creating a right, or varying or removing an obligation or right.

The significance of this definition is that, unlike other jurisdictions, the regime
provided for by the LIA operates by reference to what an instrument does, rather
than by what it is called. While the operative definitions in some other juris-
dictions refer to instruments having a legislative character, the fact is that, in
all other Australian jurisdictions, whether or not an instrument is subject to the
138 AUSTRALIAN ADMINISTRATIVE LAW


relevant regime for publication, tabling and disallowance is governed by whether
or not the instrument in question is a ‚Ędisallowable instrument‚Ä™,6 a ‚Ęregulation‚Ä™,7
a ‚Ęstatutory instrument‚Ä™,8 a ‚Ęstatutory rule‚Ä™,9 a ‚Ęsubordinate law‚Ä™,10 ‚Ęsubordinate
legislation‚Ä™11 or ‚Ęsubsidiary legislation‚Ä™,12 depending on the jurisdiction.
The effect of this approach to instruments is that all that is required for an
instrument not to be subject to the relevant publication, tabling and disallowance
regime is for it to be designated as something other than the term that triggers
the operation of that regime. From a theoretical perspective at least, it is difficult
to justify a process that operates on the basis of what legislative instruments are
called, rather than what they do.
Nomenclature should be irrelevant, not the least because it is a reflection
of variations in bureaucratic practices and preferences, drafting approach or in
what the Parliament might be prepared to allow at a particular time. This sleight-
of-hand with nomenclature has, in the Commonwealth at least, been the single
biggest cause of the explosion of ‚Ęquasi-legislation‚Ä™ that occurred in the twenty-
five or so years prior to the enactment of the LIA.13 The coming into force of the
LIA has put a stop to this exponential growth in legislative instruments that fall
outside of the publication, tabling and disallowance regime.
The LIA addresses four basic problems prevailing before the enactment of the
LIA. The first problem relates to the proliferation of instruments not covered by
the existing regimes. Proliferation becomes irrelevant, because instruments are
now covered by the LIA, irrespective of what they are called. All that matters is
whether or not they are ‚Ęof a legislative character‚Ä™.
In relation to the problem of poor drafting, s16 of the LIA gives the Secretary
of the Attorney-General‚Ä™s Department an obligation to ‚Ęcause steps to be taken to
promote the legal effectiveness, clarity and intelligibility to anticipated users, of
legislative instruments‚Ä™. These steps may include (but are not limited to) under-
taking or supervising the drafting of legislative instruments; scrutinising prelim-
inary drafts of legislative instruments; providing advice concerning the drafting
of legislative instruments; providing training in drafting and matters related to
drafting to officers and employees of other departments or agencies; arranging
the temporary secondment to other departments or agencies of Australian Public
Service employees performing duties in the department; and providing drafting
precedents to officers and employees of other departments or agencies (s16(2)).
Subsection 16(3) of the LIA also requires the Secretary to cause steps to be taken
to prevent the inappropriate use of gender-specific language.
Secondly, the LIA by providing that instruments are recognised as having a
legislative effect and have to be registered, leads to agencies taking more care
to ensure that they say and do what they are supposed to do. The third problem
of accessibility is arguably the most important. The LIA ensures that people can
work out what the law is by making sure that all ‚Ęlegislation‚Ä™ is now publicly
available. Apart from requiring that instruments be tabled in the Parliament
the LIA establishes a Federal Register of Legislative Instruments (FRLI),14 in
which all legislative instruments must be registered. Finally, the LIA ensures
139
DELEGATED LEGISLATION


that instruments of a legislative character receive appropriate scrutiny by the
legislature.



The importance of disallowance

Both Houses of the Commonwealth Parliament have the power to disallow a
‚Ęlegislative instrument‚Ä™. The situation is substantially the same in all the other
Australian states. At the federal level, the power to disallow is set out in s42 of
the LIA, which provides that a notice of a motion to disallow can be given in
either House within fifteen sitting days of a legislative instrument being tabled in
that House. There are then a further fifteen sitting days within which the notice
of motion must be dealt with. If the motion is not either negatived or otherwise
disposed of within that further fifteen sitting days, then the legislative instrument
is disallowed by the effluxion of time (see subsection 42(2) of the LIA).
While either House of the Federal Parliament can disallow a legislative instru-
ment, historically, disallowance motions have tended to be moved in the Senate,
where the legislative scrutiny process has, since 1932, been assisted by the Senate
Standing Committee on Regulations and Ordinances Committee (R and O Com-
mittee). An important improvement that has been made by the LIA is to ensure
that legislative instruments are subject to the scrutiny of the Parliament and of
the R and O Committee.



The significance of s5 of the Legislative
Instruments Act

Despite s5 of the LIA, a problem facing Commonwealth agencies is deciding
what are and what are not legislative instruments. As the late Selway J stated
in McWilliam v Civil Aviation Safety Authority15 there is no clear or ‚Ębright line‚Ä™
distinction between legislative and administrative powers. After referring to two
of the leading authorities on this issue,16 Selway J stated:

These decisions should not be understood as suggesting that administrative and leg-
islative decisions fall into two mutually exclusive categories and that such categories
can be identified by particular characteristics.17

He added:

That difficulty is exacerbated in relation to administrative functions simply because,
under the Westminster system of government, the executive branch may exercise
legislative powers delegated by the Parliament. This has the practical effect that it
is impossible under Australian constitutional arrangements to draw a clear or ‚Ębright
line‚Ä™ distinction between legislative and administrative powers.18
140 AUSTRALIAN ADMINISTRATIVE LAW


Selway J concluded that ‚Ęthere is no reason in principle why the same deci-
sion could not be described as being both an administrative and a legislative
decision‚Ä™.19
In RG Capital Radio Ltd v Australian Broadcasting Authority,20 referred to by
Selway J, the Full Court of the Federal Court set out nine factors to be taken into
account in characterising whether an instrument made under subsection 26(1)
of the Broadcasting Services Act 1992 (Cth) was administrative or legislative.
While that case was decided in the context of whether the Administrative Deci-
sions (Judicial Review) Act 1977 (Cth) applied to the making of the instrument,
the discussion in the case is helpful in determining the issue at hand. The Full
Court concluded that, in determining whether a power is legislative or adminis-
trative, a court would have regard to a series of relevant factors, none of which is
determinative. The Full Court stated that ‚Ęthere is no simple rule‚Ä™21 and that ‚Ęno
single feature is decisive‚Ä™.22 Despite these cautions, the Full Court identified the
following factors as relevant:

i. Legislative decisions determine the content of rules of general, usually prospective,
application whereas administrative decisions apply rules of that kind to particular
cases.23 On this issue, the court quoted the reasoning of Gummow J, while his
Honour was a member of the Federal Court in Queensland Medical Laboratory v
Blewett.24 In that case Gummow explained that: ‚ĘIndividual norms‚Ä™ which apply
only to the action of a single person or occasion may still be classed as laws, and this
is so although the operation of such laws must necessarily be upon particular cases.
ii. If a decision is subject to parliamentary control, this tends to indicate that it is
legislative.25 In RG Capital Radio,26 the Full Court summed up its review of author-
ities on this issue in the following terms:
The absence of any provision for disallowance by parliament points against char-
acterisation of a decision under [the legislative provision under consideration]
as legislative. However, although persuasive, the absence is not fatal to such a
characterisation. No case declares provision for disallowance to be a litmus test
of legislative character. Its absence is to be taken into account as a factor pointing
against that characterisation, but that is all.27
iii. A requirement for publication ‚Ęsuggests‚Ä™ that a decision is legislative but this
requirement is not a ‚Ęcompelling indication‚Ä™.28
iv. A requirement for wide consultation might indicate that the decision involves
broad policy considerations, which suggests that it is legislative.29
v. The fact that a decision involves taking into account wide policy considerations
suggests that it is legislative.30
vi. The fact that a decision maker has the power to vary a decision can indicate either
legislative or administrative character. The capacity to vary a decision could be
seen as analogous to the legislature‪s power to amend legislation. That said, s33 of
the Acts Interpretation Act 1901 (Cth) construes the power to make an instrument
(including an administrative instrument) as including the power to amend, etc an
instrument.31
vii. An absence of control of the decision maker by the executive suggests that the
decision is legislative.32
viii. An absence of merits review of the decision suggests that the decision is
legislative.33
141
DELEGATED LEGISLATION


ix. If a decision has a binding effect, in the sense that other statutory provisions are
‚Ęenlivened‚Ä™ by the decision, that may tend to confirm that the decision is making
a rule of general content rather than applying rules in a particular case.34




Delegated legislation and the courts

Although most of this chapter has been concerned with the procedures that gov-
ern the making of delegated legislation, it is important to note that all delegated
legislation may be challenged by way of judicial review. In theory the principles of
ultra vires that govern administrative decisions apply to delegated legislation but
in practice judicial review rarely intersects with delegated legislation. Douglas
and Jones explain:

. . . successful attacks on the validity of subordinate legislation are rare. There are
various reasons for this. They include the relative discretion enjoyed by rule-makers as
compared with administrative decision makers; the fact that rule-makers normally have
much more time to devote to decision-making than makers of purely administrative
decisions; the careful vetting process which typically characterises the rule-making
process; and review by parliamentary committees charged, inter alia, with examining
the legality of the legislation before them.

Pearce and Argument adopt a similar position. Those authors note that the courts‚Ä™
approach to delegated legislation generally involves a presumption as to validity
and a reluctance to substitute judicial opinion for that of the legislation-maker.35
One of the many cases to which they refer is the High Court‪s decision in Gibson
v Mitchell.36 The issue in that case was what might be ‚Ęnecessary or convenient‚Ä™
for carrying out the purposes of the Commonwealth Post and Telegraph Act 1901
(Cth). Isaacs J explained the effect of the words ‚Ęnecessary and convenient‚Ä™ in the
following terms:

Those words in that collocation mean necessary or convenient from the standpoint
of administration. Primarily, they signify what the Governor-General may consider
necessary or convenient, and no court can overrule that unless utterly beyond the
bounds of reason and so outside power.37

A case in which vigorous judicial control was underlined by the court occurred in
Paradise Projects Pty Ltd v Gold Coast City Council.38 In that case, Thomas J said:

The by-laws which I have concluded to be ultra vires are typical examples of lazy
drafting. It is much easier to frame general prohibitions than to define exactly what
is intended. Those who draft ordinances should identify their true target rather than
attack the community with grapeshot. Unless this trend is identified and curbed by the
courts, we may find practically every form of human activity contrary to some by-law
or regulation, or that a permit is required for virtually every form of everyday activity.
If the courts do not control these excesses, nobody will.39
142 AUSTRALIAN ADMINISTRATIVE LAW


The role of parliamentary committees

Parliamentary committees, specifically legislative scrutiny committees, play a
very important role in the oversight of delegated legislation. The most significant
of the ‚Ęevils‚Ä™ identified by Lord Hewart relates to the likelihood that delegated law-
making, because of its volume and complexity, makes it difficult or impossible
for the Parliament to check the detail of the various regulations, rules, orders,
and so on. Lord Hewart might not have appreciated just how voluminous and
just how complex delegated legislation would become. Experts are appointed to
assist legislative scrutiny committees in scrutinising the minutiae of delegated
legislation.
There is a certain irony that one of the answers to the evils of delegated
legislation is for Parliament to entrust the task of scrutinising delegated legislation
to a committee and for the committee then (in effect) to entrust an expert with
the responsibility of providing it with technical advice as to the content of the
legislation and whether or not it might offend against a series of established (but
nevertheless highly subjective) principles. The committee also has to be able to
trust the legal adviser not to go off on a campaign or frolic of his or her own.
There is another element of trust in the process. The committees, to a certain
extent, have to be able to trust the rule-makers (as the LIA calls them) to do the
right thing. In particular, the committees need to be able to trust rule-makers
to be open and fulsome in their Explanatory Statements. Whether this trust is
warranted may on occasions be questioned.

Delegated legislation involves the Parliament entrusting the Executive with the
power to make legislation, without requiring that it be passed by the Parliament.
The key mechanism for ensuring that the Executive does the right thing is the
legislative scrutiny process and the role of parliamentary committees such as the
Senate‪s R and O Committee. Australia has, for seventy years, led the world in leg-
islative scrutiny. With the enactment of the LIA, the Commonwealth jurisdiction
has gone to the cutting-edge of legislative scrutiny, by implementing a scrutiny
trigger that operates by reference to what legislative instruments do, rather than
by what they are called. In so doing, the Commonwealth Parliament has set an
example that other jurisdictions would do well to follow.
9
The concept of ‚Ęjusticiability‚Ä™ in
administrative law
Chris Finn




The term ‚Ęjusticiability‚Ä™ refers to the suitability for, or amenability to, judicial
review of a particular administrative decision or class of decisions. The term
derives from the common law and reflects a series of self-imposed judicial
restraints, themselves founded in a view as to the appropriate constitutional
balance between the respective roles of the Executive and the judiciary. Thus,
a matter may be deemed ‚Ęnon-justiciable‚Ä™ by a court which feels that its resolu-
tion either is beyond the institutional competence of the court or would involve
stepping outside the bounds of its appropriate constitutional role.
There is a good deal of confusion surrounding justiciability. At least in part, this
is due to the fact that the term is used in a number of discrete, albeit sometimes
overlapping, senses.1 It is important to keep these various strains of meaning
analytically separate. Some are best analysed quite separately from justiciability
in its strict sense. The following senses of the term may be encountered from time
to time:


1) The matter is beyond the jurisdiction of the court;
2) The matter is within the jurisdiction of the court, but beyond the reach of the
prerogative writs or their equivalent administrative law remedies, as it does not
involve an exercise of ‚Ępublic‚Ä™ power;
3) The court possesses jurisdiction but is institutionally incompetent to resolve the
matter;
4) The court possesses jurisdiction and is competent, but regards the matters as
constitutionally inappropriate for its intervention;
5) The court views the matter as premature, and thus not yet appropriate for judicial
intervention;
6) The court can find no ground of review, or at least no argument that would not
involve an impermissible intrusion into the administrative merits;

143
144 AUSTRALIAN ADMINISTRATIVE LAW


7) The Court lacks admissible evidence upon which to determine the matter, partic-
ularly due to Crown immunity from disclosing that evidence.


It is submitted that the third and fourth of these senses lie at the core of the
concept of ‚Ęnon-justiciability‚Ä™.
There is a complex relationship between questions of jurisdiction, justiciability
and the limits of public law. At common law, these concepts are particularly
difficult to separate. However, they remain analytically distinct. First, the outer
limits of public law and its attendant remedies have traditionally been set by the
public/private divide. Judicial review has been held to be available to remedy
abuse of statutory and prerogative powers, but not abuse of contractual or other
common law powers by the Crown. The latter powers are not unique to the
Crown and any remedy for their abuse is said to lie in private rather than public
law.2 In this sense, exercises of contractual power and other private law powers
are sometimes said to be ‚Ęnon-justiciable‚Ä™ at public law. But this is misleading
for two reasons. First, misuse of such powers remains justiciable at private law.
Private law remedies are potentially available. Second, ‚Ęnon-justiciability‚Ä™ is a
narrower concept than ‚Ępublic power‚Ä™. The mere fact that a power is classified as
‚Ępublic‚Ä™ rather than ‚Ęprivate‚Ä™ does not entail its justiciability. Many prerogative,
and arguably even some statutory, powers are still viewed by the courts as non-
justiciable.
The jurisdiction of the courts is also a separate concept. This is most evident
when that jurisdiction is conferred by statute, such as the Federal Court‪s juris-
diction conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth)
(ADJR Act). That jurisdiction, intended to largely mirror the common law posi-
tion at the time of enactment, has been left looking somewhat anachronistic as
the common law has developed. It remains limited to review of statutory powers,
and does not extend to review of any decision-making powers formally conferred
upon the Governor-General. By contrast, the jurisdiction of the court conferred by
s39B of the Judiciary Act 1903 (Cth) has evolved with the common law, allowing
the Court to review decisions beyond the scope of its ADJR Act jurisdiction.
Where jurisdiction is conferred by common law, it is likely to be coterminous
with the limits of public power described above.
The final area where lack of jurisdiction and non-justiciability are liable to be
confused lies in relation to alleged breaches of international law. Such breaches
are not infrequently alleged in domestic courts but dismissed as non-justiciable
in that court.3 But this is not true non-justiciability. It is simply a case of domestic
courts lacking the jurisdiction to determine such claims or award any appropriate
remedy. The matter may be justiciable, but only in an appropriate international
institution.
The fifth, sixth and seventh senses of non-justiciability listed above are more
trivial, and can quickly be disposed of. The fifth sense, where the matter is ‚Ępre-
mature‚Ä™, may simply mean that the plaintiff has acted in haste, fearing injustice,
145
THE CONCEPT OF ‚ĘJUSTICIABILITY‚Ä™


but before any actual ground of review has been made out on the facts. Thus it
merges with the sixth sense, where the plaintiff simply fails to make out their
chosen ground or grounds of review. Neither is truly an example of non-
justiciability as these claims do not refer to the nature of the particular decision
or class of decisions, but simply to the failure of the particular case before the
court. This is certainly a valid reason for a court to decline to provide a remedy,
but it is distinct from true ‚Ęnon-justiciability‚Ä™, which involves a court declining to
adjudicate regardless of the presence or absence of an arguable ground for review.
On occasion, however, the argument that a matter is ‚Ępremature‚Ä™ may have a
much deeper meaning. It is fundamental that Australian courts will only adjudi-
cate upon a ‚Ęmatter‚Ä™; they will not answer purely ‚Ęhypothetical‚Ä™ questions, even
in an action for a declaration. This may be an example of true ‚Ęnon-justiciability‚Ä™
as this refusal is linked to understandings of the limits of judicial power.4 This
constitutional aspect of non-justiciability will be considered further below.
Where evidence is lacking a court will, inevitably, be unable to adjudicate
upon a matter. This is particularly likely in matters relating to national security
where the executive may resist disclosure of documents or other evidence on the
basis of crown immunity. Equally, courts may be willing to accept as conclusive
executive statements that national security required a particular course of action
to be taken, and will be reluctant to look behind such claims. The lack of evidence
will usually be fatal to a plaintiff ‪s claim, but should not be confused with true
non-justiciability had such evidence been available. However, the willingness to
accept executive pronouncements as conclusive should probably be seen as a
genuine acceptance by the courts that the particular issue is non-justiciable.


The core meaning of ‚Ęnon-justiciability‚Ä™

It is the third and fourth senses listed above, then, which capture the essence of
non-justiciability. This arises when a court, correctly imbued with jurisdiction to
hear a particular matter, brought by a plaintiff with locus standi, and raising at
least an arguable case that one or more ground of review has been made out,
nonetheless decides for reasons of institutional incompetence or constitutional
legitimacy that it should decline to hear and determine the matter.


Underlying issues
As the foregoing indicates, there are two key sets of concerns which underpin the
view that some classes of administrative decisions are not appropriately subject
to judicial review. First, it is argued that a combination of the adversarial trial
method and the rules of evidence mean that courts are institutionally incom-
petent to resolve particular types of disputes. Second, it is suggested that some
decisions are sensitive, in a constitutional or political sense, and should be avoided
146 AUSTRALIAN ADMINISTRATIVE LAW


for that reason. Allied with the latter concerns are those sourced from the limits
of judicial power.
The argument that curial decision-making techniques are unsuited to the res-
olution of some issues focuses on decisions described as ‚Ępolycentric‚Ä™. These are
decisions whose resolution one way or another is likely to affect a wide range of
interest groups, such that the full effect of a decision may not easily be predicted.
Moreover, it is argued that many of those whose interests are affected may not be
represented in the judicial proceedings, whose resolution may turn upon a single
narrow point, without evidence bearing upon the wider ramifications. Lon Fuller
uses the metaphor of a spider‚Ä™s web, where ‚Ęa pull on one strand will distribute
tensions after a complicated pattern throughout the web as a whole‚Ä™.5 J Jowell
describes polycentric decisions as ones which:

. . . involve a complex network of relationships, with interacting points of influence. Each
decision made communicates itself to other centres of decision, shaping the conditions,
so that a new basis must be found for the next decision.6

A polycentric administrative decision involves the weighing and balancing of dis-
parate interests, an exercise which seems quintessentially of ‚Ęthe merits‚Ä™. Thus it
appears quite inappropriate for judicial resolution, both for separation of powers
reasons, and because the adversarial method of the courts, the party selected
nature of the evidence and the tendency to focus proceedings on a small number
of key issues, make it unlikely that the court will be well placed to make a good
decision on the merits. On this line of argument, it is far more appropriate that
such matters be resolved administratively, by experts in the particular field who
have access to much wider sources of information from all interested parties and
who have not been confined to a particular set of issues by the rules of evidence
and curial procedures.
It is suggested, however, that this line of argument is misconceived. Quite
simply, a court undertaking judicial review is not being asked to resolve the
administrative matter under review, in the absence of those questions of law
which admit of only one resolution. Typically, the court supervises the decision-
making process, and the outcome of a finding that this process was flawed is
the remittal of the decision to the relevant administrative body to resolve the
polycentric matter in question, this time in accordance with law.
To put the matter another way, it can be accepted that courts are ill-suited to the
resolution of polycentric matters. They are seldom, however, called upon to do so.
It is the administrative decision which is polycentric, not the question which the
court is asked to resolve. The latter will typically be an altogether simpler question,
or at least a series of such questions, that is, was the applicant accorded procedural
fairness? Were all legally relevant matters considered by the decision maker? Was
a policy inflexibly applied in the decision-making process? These may on occasion
be difficult questions to answer, but they are not polycentric ones. They are in fact
matters well suited to resolution by the adversarial process, with the points of
disagreement narrowed by pre-trial procedures and with skilled advocates then
147
THE CONCEPT OF ‚ĘJUSTICIABILITY‚Ä™


presenting argument and relevant evidence to assist in the resolution of those
narrowly defined issues. The result, of course, of a successful judicial review is not
a substitution of the court‪s decision on the merits, but a quashing of the decision
under review, with the matter remitted for re-decision by the administrative
decision maker.
It should perhaps be noted in passing that polycentric administrative decisions
are no rarity. They are commonplace. Many, if not all, licensing and other regula-
tory decisions, are likely to affect the interests of a wide range of parties directly
or indirectly. Even the most individualised of decisions, such as dismissals from
public office or visa decisions, are likely to have knock-on effects which may well
be beyond the purview of the courts. Thus, if polycentricity were to be seen as a
serious bar to judicial review, then there would be little work for the courts to do.
The second concern is the constitutional suitability of the courts reviewing
certain classes of decision. Whilst this matter will be discussed in more detail
later in this chapter, it can be said at the outset that this provides a much more
powerful argument in favour of the non-justiciability of at least some limited
classes of administrative decisions. It is perhaps no surprise that there is a tra-
dition of judicial reluctance to intervene in matters which are constitutionally
sensitive, which raise political questions, and which seem peculiarly within the
province of the executive branch. These same areas are typically those which were
traditionally governed, and in some cases still are governed, by the exercise of
prerogative powers. Since the manner of exercise of prerogative powers became
reviewable only as recently as the 1980s, it is understandable that considerable
judicial reluctance to aggressively review such powers remains. And indeed, the
law has moved only a little, now holding that the exercise of prerogative power is
not automatically immune from review, a position which falls considerably short
of suggesting that such review is commonplace.




Non-justiciability: A short history

Case law dealing with the nature and extent of the royal prerogative can be
found at least as far back in the early seventeenth century constitutional turmoil
in England. In a series of cases, the ability of the Stuart Kings (James I and
Charles I) to govern by means of the prerogative, and thus without the need for
parliamentary support, was examined in the Courts. In Bates Case (The Case of
Impositions),7 it was held that the King had prerogative power to regulate trade,
as an aspect of foreign affairs. However, in the celebrated Case of Prohibitions,8
Lord Chief Justice Coke risked the Royal displeasure by holding that the King
could not create new offences. In 1611, Coke went further, holding in the Case
of Proclamations9 that no new prerogative could be created. The Chief Justice
famously quoted Bracton as authority for the proposition that ‚ĘThe King himself
ought not to be subject to man, but subject to God and the law, because the law
148 AUSTRALIAN ADMINISTRATIVE LAW


makes him King‚Ä™. He went on the say that ‚ĘThe King has no prerogative, but that
which the law of the land allows him‚Ä™.10
Whilst it was not until after the ‚ĘGlorious Revolution‚Ä™ of 1688 that the Crown
finally accepted this proposition, these cases mark the emergence of the principle,
lying at the heart of the rule of law that it is the province of the common law courts,
rather than the executive itself, to determine the limits of the existing prerogative.
Thus the extent of the existing prerogative power was confined, and it was further
established that Parliament could abrogate individual prerogatives.11
Not all decisions during this period went against the King, however. In the
Case of Ship Moneys,12 it was held, by a court under considerable Royal pressure,
that the King‪s historical power to levy maritime ports to provide for naval vessels
in times of war could be extended to levy all of England and to do this outside of
times of war. The decision was overturned by the Parliament within a few years,
helping to establish the principle that no new taxes could be imposed without
parliamentary consent.
An important observation should be made of these cases. Each was concerned
with determining the existence and extent of the challenged aspect of the Royal
prerogative. In short, the question was simply whether or not the King possessed
the particular prerogative power in question, and thus could act unilaterally, or
whether the consent and action of Parliament was required. Where the existence
of the relevant power was established, however, there was no further question
raised as to the manner of its exercise. The Courts would not inquire into such
matters but limited themselves to determining what we would today term the
basic question of vires: did the King possess the claimed power or not? The
justiciability of this question was clearly established by these cases; however
the justiciability of questions relating to the manner of exercise of preroga-
tive powers was not to be addressed for another 350 years. It is in that sense
that prerogative powers have been described as ‚Ętraditionally immune from
review‚Ä™.
It was from these seventeenth century upheavals that the modern system of
Westminster government would ultimately emerge. The decline of the personal
power of the monarch, however, did not signify a triumph of Parliament over
the Executive. Rather, executive power was simply transferred to the govern-
ment of the day, and subjected to only limited oversight by Parliament. Thus
questions of the extent of prerogative power, which once related to the extent
of the monarch‪s personal power, are now questions of the ability of Executive
government to act without Parliamentary authority or sanction. The monarch,
or in Australia the Governor-General as the monarch‪s representative, remains
the formal head of the executive branch of government, but their decisions are
made and their powers exercised on the advice of the government of the day.
Some former prerogative powers have in fact been expressly transferred to par-
ticular ministers and others have been abrogated by statute. In practical terms,
prerogative power is now exercised entirely by the Executive government of the
day and not by the monarch.
149
THE CONCEPT OF ‚ĘJUSTICIABILITY‚Ä™


Whilst the locus of prerogative power thus shifted, the level of review of that
power remained unchanged until the 1970s and 1980s. During that period, a
series of cases indicated a new willingness by the courts to go beyond the simple
question of the existence or otherwise of a claimed prerogative power and now
to treat as justiciable the question of the manner in which a particular power
had been exercised. In particular, courts first expressed themselves as willing to
extend the doctrine of natural justice (or procedural fairness) to at least some
exercises of prerogative power. In this, the courts began to reject a formalistic dis-
tinction between exercises of statutory power, seen as potentially reviewable, and
exercises of prerogative power, traditionally seen as immune from the scrutiny
of the courts.
An important early precursor was Ex parte Lain13 in 1967, where the
Queens Bench Division held that the Criminal Injuries Compensation Board was
amenable to the writ of certiorari, despite the fact that its authority derived from
the prerogative rather than from a statutory source. Then, in the Laker Airways
case14 in 1977, Lord Denning expressed himself as unable to see why a decision
ought to be immune from review, merely because it was sourced to the preroga-
tive rather than a statutory power. These decisions set the stage for the leading
House of Lords decision in CCSU in 1985.

Council of Civil Service Unions v Minister for Civil Service (CCSU)
The House of Lords 1985 decision in CCSU marked a major turning point in the
reviewability of decisions sourced from a prerogative power. Here, the Lords held
that the manner in which a prerogative power was exercised could, at least in
some cases, be open to judicial review. The English Prime Minister, Margaret
Thatcher, had issued an Order-in-Council, sourced from the prerogative. That
order prohibited union membership amongst employees at GCHQ, an electronic
intelligence gathering facility, on the grounds that union activism had disrupted
the facility, thus posing a threat to national security. The union argued that a
legitimate expectation of consultation with respect to changes in employment
conditions had been frustrated, thus constituting a denial of procedural fairness.
The government asserted that the decision, sourced from the prerogative, was in
any case immune from review.
A majority of the House of Lords disagreed with the proposition that prerog-
ative powers were automatically immune from review. Lord Diplock famously
stated that:

To qualify as a subject for judicial review the decision must have consequences which
affect some person (or body of persons) other than the decision maker . . . either (a)
by altering rights or obligations of that person which are enforceable by or against him
in private law or (b) by depriving him of some benefit or advantage . . .15

Lord Diplock held that for a decision to be amenable to judicial review, ‚Ęthe
decision maker must be empowered by public law‚Ä™,16 and reached the conclusion
that he could:
150 AUSTRALIAN ADMINISTRATIVE LAW


see no reason why simply because a decision-making power is derived from a common
law and not a statutory source it should for that reason only be immune from judicial
review.17

Lords Scarman and Roskill agreed. However, all members of the court agreed that
whilst the fact that the decision was sourced to prerogative power did not confer
immunity from review, evidence, provided by government affidavit, that the
decision was one likely to affect ‚Ęnational security‚Ä™ had precisely that consequence.
In short, an immunity based upon the source of the power was rejected, but a
new immunity based upon the subject matter of the decision replaced it. Lord
Roskill listed a range of subject matters which would not attract judicial review:

Prerogative powers such as those relating to the making of treaties, the defence of the
realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and
the appointment of ministers as well as others are not, I think, susceptible to judicial
review because their nature and subject matter is such as not to be amenable to the
judicial process. The courts are not the place wherein to determine whether a treaty
should be concluded or the armed forces disposed in a particular manner or parliament
dissolved on one date rather than another.18

Thereafter the focus would be on the subject matter of a particular decision,
rather than its source in the prerogative or in statute. It has subsequently been
accepted that at least one of the powers listed by Lord Roskill, the prerogative
of mercy, has indeed been held susceptible to judicial review, at least on some
occasions. In Ex parte Bentley,19 Lord Roskill‪s list of non-reviewable powers was
dismissed by the Queens Bench division as obiter, and review of this particular
exercise of prerogative power was allowed. However, a 1996 decision of the Privy
Council, Reckley v Minister of Public Safety (No 2),20 distinguished Bentley and
opted for the traditional view that this prerogative power was indeed unreview-
able. To similar effect is the decision of the South Australian Supreme Court in
Von Einem v Griffin.21
One of the more striking justiciability sagas of recent times is the Bancoult lit-
igation. In R (Bancoult) v Foreign Secretary,22 an ordinance requiring the forcible
removal of all the civilian inhabitants of the Chagos Archipelago was held to be
invalid by the Queen‪s Bench as it could not reasonably be described as being
made for the ‚Ępeace, order and good government‚Ä™ of those inhabitants. This was
despite the fact that the forced removal flowed from an agreement between the
British and United States governments, whose principal aim was the establish-
ment of a US airforce base on the largest of the islands, Diego Garcia. Whilst this
placed the decision squarely within the ‚Ęnational security‚Ä™ and ‚Ęforeign relations‚Ä™
subject matters, review was nevertheless granted. The British Foreign Secretary
of the day, Robin Cook, announced that the government would not be appealing
that decision. That was not the end of the matter, however. The British gov-
ernment continued to stall on the granting of access and in 2004, by means of
an Order-in-Council, again purported to exclude all right of access by the for-
mer inhabitants to the islands comprising the archipelago. In 2006, in Bancoult
151
THE CONCEPT OF ‚ĘJUSTICIABILITY‚Ä™


(No 2),23 the Queens Bench held that the 2004 Order-in-Council was also invalid
on the ground that it was irrational and unreasonable. This was despite argu-
ment that the Order was made on national security grounds in the wake of
September 11. The Order-in-Council, although signed by the Queen, was treated
in substance as being an order of the Secretary of State and reviewed accordingly.
Thus, in the fields of national security and international relations also, the UK
courts at least do not always accept automatic immunity from review.


The current Australian law

Australian case law has largely followed the United Kingdom lead in rejecting
automatic immunities based upon the source of power or indeed the status of the
decision-maker. Thus, as long ago as 1980 in the Toohey case,24 the High Court
had rejected a claim that a decision of the Administrator of the Northern Territory
was immune from review for improper purpose. Similarly in FAI v Winneke25 and
South Australia v O‪Shea,26 the fact that the decisions in question were attributed
to state Governors did not entail the conclusion that they were immune from
review.
The leading Australian decision, however, is that of the Federal Court in Peko
Wallsend,27 two years subsequent to that of the House of Lords in CCSU. In Peko
Wallsend, the Full Federal Court was asked to rule on the justiciability of a decision
of the Federal cabinet to proceed with heritage listing, under the World Heritage
Convention, of an area within the Kakadu National Park, a decision which was
a step along the way to ultimately making it more difficult for Peko to conduct
mining operations in the area.
There were a number of obstacles to review. First, this was clearly an exercise
of prerogative power. No statutory power was involved. Second, it was a decision
of the Federal cabinet which was challenged and, despite its central political
importance, cabinet is not a legally or constitutionally recognised body. Third,
the complex polycentric nature of the decision and its subject matter, involving
the implementation of Australia‪s international obligations, arguably rendered
it unsuitable for review. Finally, as this decision was in itself only one part of a
process, it was unclear whether any direct and immediate effect on the rights of
the plaintiff could be said to flow from the challenged decision of the cabinet.
All three members of the Court agreed that the decision was not immune from
review merely because it involved an exercise of prerogative power rather than
flowing from a statutory source. CCSU was applied in aid of this conclusion. As to
whether cabinet decisions were in principle capable of being reviewed the judges
seemed divided. Wilcox J would clearly not have denied review on this ground
alone; however the position of the other two members of the court was less clear.
All members of the court agreed, however, that the decision was in this instance
non-justiciable. They reached this conclusion on the basis of the complex policy
nature of the decision, and its subject matter, which involved the implementation
152 AUSTRALIAN ADMINISTRATIVE LAW


of Australia‪s international obligations. In addition, it was held that the main
ground of review argued, a denial of procedural fairness, had not been made out.
The current position in Australian law may thus be shortly stated. First, there
are no longer any automatic a priori immunities from judicial review based upon
either the nature of the power exercised or the nature and status of the decision
maker. Australian courts have followed CCSU in rejecting any a priori immunity
from review of decisions merely because those decisions were made in exercise
of prerogative power. Similarly, Australian courts clearly accept that decisions
attributed to ministers may be reviewable, and have extended that possibility to
decisions made by a Governor or Governor-General or even by a Cabinet.
Nonetheless, judicial reluctance to review decisions in particular subject areas
remains. It is perhaps not surprising that this reluctance is found primarily in
subject matters formerly within the province of the Crown prerogative. Thus,
the courts remain reluctant to intrude upon the exercise of executive powers in
relation to defence, national and internal security, the conduct of foreign affairs
and related matters. Equally, matters related to the administration of justice
including judicial appointments, the exercise of the prerogative of mercy, the
decision to enter a nolle prosequi or alternatively to enter an ex officio indictment,
and the grant or non-grant of consent to a relator action are treated with great
caution. Finally, to these two traditional categories of restraint, a third perhaps
may be added, that is, decisions on matters of broad economic policy. These
would include, for example, major budgetary decisions made by Cabinet.
It can be argued that even in these areas, the better view, older authorities
notwithstanding, is that there are no complete immunities from review. Even
accepting that view, however, it should be stressed that judicial review of decisions
made in these subject areas remains extremely rare. The landmark decision in
CCSU and the subsequent Australian decision in Peko Wallsend have not opened
the gates to a flood of new litigation or sparked a new wave of judicial activity.
Rather, development since that time has been sporadic at best.


Subject matter immunities

As noted above, CCSU itself clearly accepted that, whilst some exercises of prerog-
ative power might be capable of review, there would remain some subject matters
that were effectively immune from review. In 1992, Fiona Wheeler suggested that
a steady erosion of these remaining immunities would occur, on a case by case
basis.28 This has proven to be a slow process, with relatively few matters of sig-
nificance reaching a level in the court system where such issues might be argued.
Of Lord Roskill‪s list, it is only in the case of the prerogative of mercy and national
security that the position has arguably changed, and development appears con-
fined, at least to date, to the United Kingdom cases.29
In Australia, courts have not departed greatly from this suggested list of
immune subject matters. Indeed, even where the relevant prerogative power
153
THE CONCEPT OF ‚ĘJUSTICIABILITY‚Ä™


has been abrogated by statute, many Australian courts have been reluctant to
take the view that statutory conferrals of power are necessarily limited, by the
subject matter, scope and purpose of the statute if by nothing else. Rather, they
have tended to suggest that a former ‚Ęprerogative‚Ä™ power remains of that nature,
notwithstanding its new statutory basis and framework.
In Coutts v Commonwealth,30 a majority of the High Court held that an airforce
officer held office at the pleasure of the Crown and therefore could be dismissed
at any time, without any requirement that the niceties of procedural fairness
be observed. This was despite the fact that the dismissal occurred in peacetime
and no issue of national security was raised. Significantly, it was also despite the
fact that the power to dismiss was now contained in statute which appeared to
provide for the right to be heard.
In Macrae v Attorney-General (NSW),31 Kirby P, whilst ultimately holding that
the appellants had been denied procedural fairness, stated that the fact that
appointments of magistrates was now regulated by statute did not take those
appointments out of the category of prerogative powers. However, he held, apply-
ing CCSU, that this did not make the exercise of the power non-reviewable.
In Waters,32 the same foundation led to the opposite conclusion. Here the
applicant had sought to be appointed as Queen‪s Counsel in the Northern Terri-
tory. His application was ultimately rejected and he sought judicial review claim-
ing a denial of procedural fairness. Again, the relevant power, historically flowing
from the prerogative, was now based in statute. However, in the view of Olney J
this made no difference and the claim for judicial review was dismissed on the
basis of the old authorities.
It is interesting that each of these decisions was one in which denial of pro-
cedural fairness was argued. It may well be that this is the ground most likely
to succeed where the exercise of a true prerogative power is challenged, as the
absence of a statutory framework makes it harder to establish ultra vires grounds.
However, in none of these cases did the provision of a statutory framework appear
to render the decision in question more clearly justiciable.
A more nuanced approach is evident in some decisions, however. A good
example is the decision of Gummow J in Re Ditfort,33 which examined the legality
of an extradition order. Whilst ultimately finding against the plaintiff, Gummow
J explicitly rejected the Commonwealth‪s argument that the subject matter of the
decision, foreign relations, rendered the decision non-justiciable. To the contrary,
he stated:

Insofar as the applicant asserts that the Commonwealth acted in excess of the executive
power with respect to foreign relations . . . there is a justiciable matter . . . the matter
touches foreign relations, but that does not place the matter, as to any part of it, beyond
the cognisance of the court.34

Thus, at least the ground of simple excess of power was potentially available to
the plaintiff, though it may have been much harder to make out other grounds
relating to the manner of its exercise.
154 AUSTRALIAN ADMINISTRATIVE LAW


The cases suggest therefore that the CCSU-led move towards a subject matter
approach to justiciability, in place of a flat refusal to review exercises of preroga-
tive power, is by no means an unequivocal move towards a more liberal approach
to judicial review. In some cases, the result may paradoxically be that review is
less easy to obtain where, for example, a statutory power has been exercised, but
the subject matter of that power clearly relates to national security.
There are a number of criticisms that might be levelled at the existing subject
matter immunities. In many cases, the immunities appear too broadly drawn, and
it is difficult to see a common thread running through the decisions nominally
involving the same immune subject matter. Whilst the case against judicial over-
sight of decisions to declare war or to deploy military force in a particular fashion
might seem a strong one, it is more difficult to justify immunity of decisions such
as the dismissal of a service person in peacetime, the situation in Coutts. The
latter class of decision appears only tangentially related to national security.
In the case of decisions such as the grant or non-grant of consent to a relator
action, the grant of honours, or the exercise or non-exercise of the prerogative of
mercy, the immunity from judicial review seems little more than an uncritically
accepted historical relic, for which there is scant remaining justification in the
vastly changed constitutional landscape of the twenty-first century. The lines of
authority dealing with judicial appointments are also open to criticism on this
count. Cases such as Waters seem particularly questionable, as they simply rely
upon existing authority and make little or no attempt to examine the relevance
of that authority or its underlying principle to an evolving system of government.
Equally, whilst ‚Ęnon-justiciability‚Ä™ may be a convenient device to explain non-
intervention into the budgetary processes of government, it will be argued below
that there are other equally effective, and more finely calibrated, techniques to
achieve this end.
Before reaching a final conclusion on these criticisms, however, it is important
to return to the underlying rationales for the justiciability doctrine. The first of
these, polycentricity, has already been dismissed. The deeper set of concerns,
however, relate to the constitutional separation of powers and the limits of the
judicial power. These must now be considered.



Non-justiciability, political questions and the
separation of powers

The core of concerns as to justiciability lie in a sense that there are some decisions
or classes of decisions which it is simply not appropriate for the courts to review.
In some cases, this is because of the sensitivity to the courts of the decisions in
question. Decisions relating to judicial appointments provide the best example
as it may be seen to be particularly awkward, and potentially self-serving, for a
court to have to rule on the process of appointment of one of its own members.
155
THE CONCEPT OF ‚ĘJUSTICIABILITY‚Ä™


Similar concerns, albeit rather more remote, may underlie the refusal to examine
the exercise of various prerogatives reposed in the Attorney-General, such as
the power to grant consent to a relator action, to proceed by way of ex officio
indictment, or to enter a nolle prosequi. These may involve the court ruling
in relation to a matter which will later come before them for decision on the
substantive issue, and the court may wish to avoid both the appearance and the
actuality of prejudgment of that issue.
In other cases, such as national security matters, the concern may be that
allowing any form of judicial intervention is simply not in the public interest,
as it may fetter executive action at a time when rapid and decisive action is
required in response to an external threat. Moreover, it is argued that, in such
cases, it is peculiarly within the realm of the executive to judge what is in the
public interest and to act accordingly. This rationale for non-intervention is also
extended to cases involving foreign relations generally. In the United States, many
of these concerns are addressed in the political questions doctrine. Brennan J of
the American Supreme Court described ‚Ępolitical questions‚Ä™ as involving:

. . . a textually demonstrable commitment of the issue to a coordinate political depart-
ment; or a lack of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a court‪s undertaking independent reso-

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