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Is the ADJR Act hampering the development of Australian administrative law?∗ Professor Mark Aronson∗∗

The ADJR Act is the legislative template for statutory judicial review schemes in several places, and has helped secure the Federal Court’s practical pre-eminence in Australian judicial review. However, it is not beyond criticism. This article discusses the need to extend its coverage to those areas presently reached only by common law judicial review, and questions whether the Judiciary Act’s extensions have made the ADJR Act redundant. The article also discusses recent suggestions that the ADJR’s judicial review grounds are deficient for being wholly particularised. Is it correct to suggest that the Act contain a statement of general principles, and that the absence of such a statement has stunted the growth of Australia’s common law of judicial review?

INTRODUCTION The Federal Court’s judicial review jurisdiction has several sources, particularly if one takes a broad view of what constitutes judicial review, so as to include collateral challenges to the validity of government actions.1 This article deals primarily with the Federal Court’s judicial review jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR) and s 39B of the Judiciary Act 1903 (Cth).

Whilst it ranks beneath the High Court, the Federal Court is Australia’s pre-eminent court for judicial review of administrative decisions. Even though it is shared with the Federal Magistrates Court, its judicial review caseload far outstrips that of any other court. The ADJR Act can take the lion’s share of the credit for this pre-eminence, and ADJR has been substantially copied in the Australian Capital Territory,2 Queensland3 and Tasmania.4 Until recently, most of ADJR’s judicial review grounds were reproduced in the Migration Act 1958 (Cth), which had its own self-contained code for Federal Court challenges to migration decisions, and even now, the privative clause protecting migration decisions largely reproduces ADJR’s definition of reviewable decisions. Western Australia is presently contemplating its own imitation ADJR.5 The ADJR Act has become a legislative model. It has nevertheless come in for some criticism, essentially on three broad fronts.

∗ This article was originally published in (2004) 15 PLR 202. The author and the editors of PLR have kindly consented to its republication in the interests of readers who want access to the entire conference proceedings (including the prepared commentaries on each conference paper) in one place. ∗∗ Law Faculty, University of New South Wales. Mark Aronson presented an earlier version of this article to an Administrative Law Seminar run in April 2004 jointly by the Federal Court and the Litigation Section of the Law Council of Australia. The author has made amendments in response to the helpful comments and suggestions made at that seminar, and in particular, the commentary delivered by John Griffiths. The author would also like to thank Arthur Glass for his suggestions and helpful comments. 1 Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 143-144; 169 ALR 400. 2 Administrative Decisions (Judicial Review) Act 1989 (ACT). 3 Judicial Review Act 1991 (Qld). 4 Judicial Review Act 2000 (Tas). 5 Law Reform Commission (WA), Report on Judicial Review of Administrative Decisions (Dec 2002).

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The first group of criticisms relate to the Act’s jurisdictional provisions.6 The criticisms here are largely of the Act’s restricted coverage, especially as compared to common law judicial review and to matters brought under s 39B of the Judiciary Act.

The second sort of criticism relates to ADJR’s grounds of review.7 Criticism here was initially more muted. It pointed to the lack of clarity in some of ADJR’s grounds, and to their over-reliance on the common law if they were properly to be understood. ADJR’s linkages with the common law’s concept of jurisdictional error have been progressively weakened. What were formerly assumed to be ADJR’s largely formulaic restatements of the common law’s review grounds are increasingly being interpreted more generously. The grounds nevertheless remain highly particularised, and to the extent that they sever the link with jurisdictional error, they offer no readily apparent principles to keep the court on the path of judicial review and away from merits review.

A more recent criticism is that ADJR’s grounds fail to articulate any general principles or organising themes which might give some shape and direction to each particularised ground. Depending to some extent on how one counts them, ADJR appears to have seventeen specific review grounds.8 It has also issued two invitations to the Federal Court to add different or newer common law grounds. The invitations come via the catch-all grounds that the decision “was otherwise contrary to law”9 or was an “exercise of a power in a way that constitutes abuse of the power”.10 Whilst recognising the need for particularity, or a “bottom up” approach as Stephen Gageler called it, the call here is for some “top down” general principles.11 Justice Selway agreed,12 and argued that judicial review’s primary organising principles can be found in our constitutional separation of powers principles. His Honour added, however, that one should not overstate the Constitution’s role: “It provides the ultimate justification for judicial review and sets its parameters, but does not explain the details of its operation.”13

Kirby J laid a separate but logically related charge against ADJR. Whilst acknowledging that the Act’s overall impact has been “overwhelmingly beneficial”,14 his Honour charged the Act with having hampered the growth of Australia’s judicial review at common law. Specifically, the complaint appears to be that ADJR’s attempted codification of the review grounds, together with that Act’s dominance in Australian judicial review law, have “retarded” the development of our common law review grounds. On this theory, the common law’s grounds expanded and evolved rapidly in the course of the last century to meet new needs generated by a massive expansion in the size and pervasiveness of the administrative state. His Honour saw this naturally adaptive relationship between the common law and its context as continuing unabated in England, whereas it has become “retarded”15 and “somewhat arrested”16 in Australia because of ADJR’s

6 See Administrative Review Council, Administrative Decisions (Judicial Review) Act 1977: Exclusions Under Section 19 (Report No 1, 1977); Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: the Ambit of the Act (Report No 32, 1989); Administrative Review Council, The Scope of Judicial Review (Discussion Paper, 2003); and Aronson M, Dyer D and Groves M, Judicial Review of Administrative Action (3rd ed, Lawbook Co., 2004) pp 79-80. The Australian Law Reform Commission, Report No 92, The Judicial Power of the Commonwealth (2001) calls for further investigation and clarification of the relationship between the Federal Court’s general jurisdiction for all matters arising under Commonwealth laws (s 39B(1A)(c)), and more specific grants of jurisdiction, such as the ADJR Act. 7 Administrative Review Council, The Scope of Judicial Review (Discussion Paper, 2003) Part IV. 8 Sixteen for “decisions”, and one more for refusing or failing to decide. 9 Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)(j). 10 Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(2)(j). 11 Gageler S, “The Underpinnings of Judicial Review of Administrative Action: Common Law or Constitution?” (2000) 28 Fed L Rev 303. 12 Selway B, “The Principle Behind Common Law Judicial Review of Administrative Action – the Search Continues” (2002) 30 Fed L Rev 217. 13 Selway B, “The Principle Behind Common Law Judicial Review of Administrative Action – the Search Continues” (2002) 30 Fed L Rev 217 at 235. 14 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [157]; 77 ALJR 1165. 15 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [157]; 77 ALJR 1165.

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codification.17 Kirby J suggested the need for, indeed the existence of, a residual common law power to correct “serious administrative injustice”.18 His Honour conceived this residual power as exceptional, to be deployed only in “extreme” cases,19 which he defined by reference not only to the nature of the administrative error per se, but also to its gravity in terms of its potential consequences to the individual.

Kirby J seemed to offer his concept of “serious administrative injustice” in part as a “safety net” or “fall-back” ground, designed to fill any gaping holes left by the specific grounds. The concept might also fill the role of an over-arching principle, explaining at least some of the individual review grounds.20 His Honour has frequently criticised the common law’s language of “jurisdictional error”.21 He regards that terminology as “meaningless”22 unless it is either informed23 (or preferably replaced)24 by general principles.

This article will deal with all three groups of criticism, namely, ADJR’s jurisdictional shortcomings, its lack of general principles, and its allegedly retardant effect on the common law’s development. ADJR’S REQUIREMENT OF AN “ADMINISTRATIVE” DECISION ADJR’s coverage is limited to decisions of an “administrative” character, a term which the Act does not define. The historically inclined might have thought that one reason for this limitation was to exclude policy-making from the Act’s coverage. The first wave of federal administrative law reform was preceded by three Committee Reports. These were the Kerr,25 Bland26 and

16 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [166]; 77 ALJR 1165. 17 This is an interesting inversion of his Honour’s attempt in other cases to secure the beneficial development of the common law by reference to legislative advances in cognate areas. See: Osmond v Public Service Board (NSW) [1984] 3 NSWLR 447 at 465; Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at 83; 168 ALR 123; and Pilmer v Duke Group Ltd (In Liq) (2001) 207 CLR 165 at 230; 19 ACLC 1,172. 18 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [161] and [170]; 77 ALJR 1165. 19 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [161]; 77 ALJR 1165. 20 This is not entirely clear, because his Honour offered “serious administrative injustice” as a limited exception to the principle in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36; 93 ALR 1 that the avoidance of administrative injustice or error is not judicial review’s purpose, even though it may be its occasional by-product. See Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [170]; 77 ALJR 1165. 21 See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 226-228; 174 ALR 585; Re Minister for Immigration and Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489 at [27]; [2001] HCA 77; Re Minister for Immigration and Multicultural Affairs; Ex parte Holland (2001) 185 ALR 504 at [22]; [2001] HCA 76; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 123; 179 ALR 238; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 439-440; 188 ALR 1; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S190 of 2002 (2002) 191 ALR 569 at [19]; [2002] HCA 39; and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [122]; 77 ALJR 1165. 22 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [122]; 77 ALJR 1165. A better term might be “merely conclusory”. See per Hill, Branson and Stone JJ in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43 at [27]; 75 ALD 40: “The statement that a particular error is a ‘jurisdictional error’ is a statement of conclusion.” 23 On the assumption that Craig v South Australia (1995) 184 CLR 163; 131 ALR 595 is not overruled. 24 See Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 123; 179 ALR 238 per Kirby J: “Once it is appreciated that the writs referred to in s 75(v) [of the Constitution] are distinct, are not confined to their historical provenance, have high constitutional purposes in Australia and may adapt over time within the limits of their essential characteristics, the old insistence upon preserving the chimerical distinction between jurisdictional and non-jurisdictional error of law might be interred, without tears, in Australia as has happened elsewhere.” It is doubtful that his Honour would want to retain a chimerical distinction for common law cases not brought in the High Court’s constitutional writ jurisdiction. 25 Commonwealth Administrative Review Committee, Report (Parl Paper No 144 of 1971) (the Kerr Report). The Committee’s membership was JR Kerr (chair), AF Mason, RJ Ellicott and H Whitmore. 26 The Bland Committee produced two Reports, the Interim Report focusing on the Ombudsman proposal. See: Attorney-General’s Department, Interim Report of the Committee on Administrative Discretions (AGPS, January 1973) (the Bland

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Ellicott27 Reports, which mapped out the basic design for what became the Ombudsman, the AAT and the ADJR Act. The reports were all written at a time when there remained some lingering uncertainty28 as to the extent to which it might still be legally relevant to distinguish between functions according to whether they were legislative, judicial, administrative or “ministerial”.29 The Reports consciously refused to conform to the old structures. As a result, they gave very little space to the problem of defining “administrative”, although their terms of reference were limited to administrative discretions. They repeatedly emphasised the political sensitivities involved in any recommendation for external review of Ministerial policy decisions. For the most part, they treated “administrative” decisions as those which usually do not include policy elements, although they saw room for overlap.30 Kerr and Ellicott recommended that their judicial review statute extend to decisions of Ministers, even those with a policy element. Ellicott’s guiding principle was “a cardinal rule that all officers and tribunals should act according to law”.31 Both Kerr32 and Ellicott33 saw statutory coverage of all decisions of Ministers as pushing further than the common law.

With the historical record providing no real clues, the courts have understandably opted for viewing “administrative” decisions as being simply those which are neither “judicial” nor “legislative”.34 The question arises as to why ADJR should continue to deny direct coverage of subordinate legislative acts.35 Subordinate legislation can sometimes be challenged directly under s 39B of the Judiciary Act 1903 (Cth),36 and even indirectly under ADJR itself.37 However, when neither of those heads of power applies, someone challenging a Commonwealth legislative act might find themselves forced to go to a State Supreme Court.38 Most of its review grounds would

Interim Report); and Attorney-General’s Department, Final Report of the Committee on Administrative Discretions (AGPS, October 1973) (the Bland Final Report). The Committee’s membership was H Bland (chair), H Whitmore and PH Bailey. 27 Report of Committee of Review, Prerogative Writ Procedures (Parl Paper No 56 of 1973) (the Ellicott Report). The Committee’s membership was RJ Ellicott (chair), FJ Mahoney and LJ McAuley. 28 See Evans JM, de Smith’s Judicial Review of Administrative Action (4th ed, 1980, Stevens) Ch 2: “Classification of Functions”. The 5th edition relegated the old Ch 2 to an Appendix, noting its largely historical nature: de Smith SA, Woolf H, Jowell J, Judicial Review of Administrative Action (5th ed, Sweet and Maxwell, 1995) pp 1001-1020. 29 In this context, “ministerial” decisions were those which had virtually no discretionary element. 30 The Kerr Committee’s Report laid the groundwork for the ADJR Act. It recommended (at [265]) a specific provision extending the grounds of review to Ministerial decisions if they were “administrative”, but did not define the term. The Ellicott Report concurred in general terms with Kerr’s conclusions, saying that generally speaking, even Ministerial policy decisions should be judicially reviewable for illegality: at [22]-[27]. Bland’s Interim Report seemed to think that Ministerial policy decisions should be immune from Ombudsman review, but wondered whether the only feasible way to achieve this was to immunise all Ministerial decisions, because it would be too difficult to distinguish “administrative” from “policy” decisions. The Interim Report set out the arguments, and left the matter for the government: [82]-[98]. Bland’s Final Report stated (at [33]) that the Minister had advised the Committee that all Ministerial decisions would be immune from Ombudsman review. The Final Report nevertheless proceeded to recommend external merits review by what eventually became the AAT of such Ministerial decisions as were “administrative” rather than “policy”: [34]-[37]. 31 At [30]. 32 At [265]. 33 At [21]-[27]. 34 Burns v Australian National University (1982) 40 ALR 707 at 714; 61 FLR 76; Evans v Friemann (1981) 35 ALR 428 at 434; 3 ALD 326; and Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 633; 16 ALD 40. Drummond J said in Harts Australia Ltd v Commissioner, Australian Federal Police (2001) 65 ALD 463 at [24]; 46 ATR 338 that a decision might not be administrative even if it neither legislative nor judicial. 35 There might be good arguments for extending the Federal Court’s statutory powers of judicial review so that they cover decisions of a judicial character made by federal courts inferior to it. The analogy would be with the State Supreme Courts, whose judicial review powers over subordinate courts largely overlaps their appellate powers. However, this is a complex issue, and will not be pursued here. 36 Hamzy v Tricon International Restaurants t/as KFC (2001) 115 FCR 78 at 87-88; 111 IR 198. 37 As in Bennett v Human Rights and Equal Opportunity Commission (2003) 204 ALR 119; 78 ALD 93. 38 See Vietnam Veterans’ Affairs Association of Australia (NSW Branch) Inc v Cohen (1996) 70 FCR 419; 46 ALD 290, which held that the Repatriation Medical Authority’s Statements of Principle (SoPs) under the Veterans’ Entitlements Act 1986 (Cth) were legislative, and therefore not covered by ADJR. The parties accepted that because it was a body corporate, the Authority was not an “officer” for the purposes of s 39B(1). The New South Wales Supreme Court accepted jurisdiction in Vietnam Veterans’ Association of Australia (NSW Branch) Inc v Specialist Medical Review Council [1999] NSWSC 403; see also Repatriation Commission v Vietnam Veterans’ Association of Australia (NSW Branch) Inc (2000) 48 NSWLR 548

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be inapplicable, of course, but that should not be a reason for limiting ADJR to administrative decisions. One could understand the policy reasons for exempting legislative acts from ADJR’s duty to give reasons, but it is submitted that ADJR should otherwise provide coverage. The Act’s title could then be shortened to the Judicial Review Act 1977 (Cth). ADJR’S EXCLUSION OF THE GOVERNOR-GENERAL The Commonwealth’s ADJR Act maintains its specific exclusion of the Governor-General39 from its scope,40 despite the Administrative Review Council’s recommendation41 to the contrary. Vice-regal immunity has gone at common law,42 and under the Queensland43 and Tasmanian44 versions of ADJR. The trend now is to deprive the state of those privileges belonging to the monarch personally.45 ADJR’s maintenance of the immunity is an anomaly. The government should not be able to reduce judicial scrutiny of the legality of its actions by the simple device of formally vesting powers in the head of state. ADJR’S REQUIREMENT OF A “FINAL AND OPERATIVE” DECISION Decisions under the Migration Act 1958 (Cth) are currently subject to ADJR review, but most of them are subject to two important provisos. The grounds of challenge must be jurisdictional,46 and s 476(1) of the Migration Act excludes “primary decisions” from ADJR’s scope. “Primary decisions” are those which can be appealed to a merits review tribunal, or which could have been so appealed if the person affected had complied with the Act’s savage deadlines for lodging an appeal.47 The net result is to make it pointless to resort to ADJR as regards most migration decisions. As a matter of policy, however, it is interesting to see an Act requiring applicants to use the merits review system before resorting to ADJR.

It is submitted that the Migration Act’s way of ordering the sequence of possible challenges to administrative decision-making is preferable to the High Court’s interpretative approach to the meaning of a “decision” for ADJR’s purposes. As in the case of the Migration Act, Parliament can impose its requirement that a decision be “final” before it can be challenged under a statutory judicial review scheme, whether that challenge be under ADJR or s 39B of the Judiciary Act 1903 (Cth). The Bond decision’s48 more generalised requirement that an ADJR decision be final and

at 550; 171 ALR 523; 154 FLR 345. The Federal Court’s jurisdiction expanded from mid-1997 to include matters “arising under” Commonwealth legislation: s 39B(1A)(c). As a result, the Federal Court can now hear direct challenges to SoPs. See Vietnam Veterans’ Association of Australia (NSW Branch) Inc v Specialist Medical Review Council (2002) 69 ALD 553 at 555; [2002] FCA 733 (reversed, but not on jurisdictional grounds, in Vietnam Veterans’ Association of Australia (NSW Branch) Inc v Specialist Medical Review Council (2002) 72 ALD 378; 125 FCR 127). These cases are discussed in Robertson A, “The Administrative Law Jurisdiction of the Federal Court – Is the AD(JR) Act Still Important?” (2003) 24 Aust Bar Review 89 at 93. 39 Although perhaps not his delegates: Sherston v Chief of Navy [2004] FCA 110 at [10]. 40 Administrative Decisions (Judicial Review) Act 1977 (Cth), s 3(1)(c). 41 Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act (Report No 32, 1989), Ch 5. 42 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; 38 ALR 439; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; 41 ALR 1; South Australia v O’Shea (1987) 163 CLR 378 at 386 and 416; 73 ALR 1; Attorney-General (NT) v Minister for Aboriginal Affairs (1987) 73 ALR 33; 16 FCR 267; Minister for Arts, Heritage and the Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 at 223, 227 and 246-249; 15 FCR 274; South Australia v Tanner (1989) 166 CLR 161 at 174; 83 ALR 631; Ball v Maritime Services Board (1988) 15 ALD 149; Dohrmann v Attorney-General (Vic) (unreported, Vic Sup Ct, O’Bryan J, 1994); and H A Bachrach Pty Ltd v Minister for Housing (1994) 85 LGERA 134. 43 The Judicial Review Act 1991 (Qld), s 53, substitutes the responsible Minister for the Governor as the appropriate defendant, whether the application be for review under the Act or at common law. 44 The Judicial Review Act 2000 (Tas), s 41, substitutes the responsible Minister for the Governor as the appropriate defendant, but only for review under the statute, and not at common law. 45 See Aronson M, “Nullity” (2004) 40 AIAL Forum 19 at 19-20. 46 Para (da) of ADJR’s first Schedule excludes “privative clause” decisions from the ADJR coverage. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; 195 ALR 24 said that jurisdictionally flawed decisions were not “privative clause” decisions. 47 Migration Act 1958 (Cth), s 476(6). 48 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11. See generally Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (3rd ed, Lawbook Co., 2004) pp 49-61.

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operative left s 39B unaffected. Bond also left no mark on the High Court’s constitutional writ jurisdiction, nor on that court’s jurisdiction to entertain applications for injunctions against Commonwealth officers. Perhaps with the benefit of hindsight, one might comment that any decision is to be regretted where it has the potential for increasing resort to the High Court’s original jurisdiction for want of any other forum.49 Bond also allowed for an exception which can find no justification in terms of functionality or policy, namely, that ADJR can cover decisions which are not final and operative, provided they are decisions of substance for which the relevant Act has made separate provision.

The net result is that ADJR’s general restriction to final decisions has exceptions, and can sometimes be outflanked by resort to the Judiciary Act, and even the High Court’s original jurisdiction under s 75(v) of the Constitution. Where ADJR’s finality requirement does apply, it excludes resort under that Act to anticipatory relief by way of declaratory order.50 It is submitted that the courts have used their anticipatory powers sparingly in the declaratory jurisdiction, and could be trusted to exercise the same caution if ADJR were amended as suggested.

It is submitted that generally speaking, ADJR should be freed from its current restriction to final and operative decisions. This would require legislative attention not only to the definition of “decision”, but also an amendment of the second Schedule, so as to limit the right to reasons for interim decisions. It might at the same time be thought prudent to strengthen ADJR’s criteria for judicial restraint in the case of decisions which are neither final nor operative if they pose no appreciable threat to an applicant’s interests. ADJR’S RESTRICTION TO DECISIONS “UNDER AN ENACTMENT” It is difficult to justify ADJR’s continuing restriction51 to decisions under enactments. Judicial review at common law extends to decisions taken without claim to statutory authorisation, provided, of course, that they are illegal. Declaratory relief lay against the New Zealand Prime Minister for unlawfully purporting to terminate the operation of an Act.52 Police officers are liable for damages for false imprisonment if they illegally abuse a common law power of arrest.53 Habeas corpus was claimed in the Tampa litigation. The government’s win was because prerogative or executive power authorised the Australian military’s actions. No-one doubted the ability of habeas corpus to check illegal prerogative or executive detention.54 Provided the judicial review issues are

49 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [7]-[15]; 74 ALJR 405. 50 See Pegasus Leasing Ltd v Federal Commissioner of Taxation (1991) 104 ALR 442; 91 ATC 4972; Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580; 37 ALD 73; Tasmanian Conservation Trust Inc v Minister for Resources (1996) 135 ALR 338; 40 ALD 271; Barkworth Olives Management Ltd v Federal Commissioner of Taxation (2003) 74 ALD 600; and Humane Society International Inc v Minister for the Environment and Heritage (2003) 126 FCR 205; [2003] FCA 64. 51 Administrative Decisions (Judicial Review) Act 1977 (Cth), s 3(1)(a). 52 Fitzgerald v Muldoon [1976] 2 NZLR 615. 53 Christie v Leachinskey [1947] AC 573. 54 See Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Afairs (2001) 110 FCR 452; [2001] FCA 1297; Ruddock v Vadarlis (2001) 182 ALR 1; 110 FCR 491; and Marr D and Wilkinson M, Dark Victory (Allen & Unwin, 2003).

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justiciable, it now55 seems reasonably clear that the rules of natural justice might sometimes bind government officials exercising prerogative power.56

The Administrative Review Council recommended a modest extension to ADJR’s coverage, so as to encompass Commonwealth officers making administrative decisions “under a non-statutory scheme or program the funds for which are authorised by an appropriation made by the Parliament for the purpose of that scheme or program.”57 Queensland’s version of the ADJR Act adopted this suggestion,58 but the Commonwealth remains unmoved.59

ADJR’s requirement that the decision be made “under an enactment” has given rise to a number of cases discussing what might have to be proved to establish the necessary linkage between the Act and the decision. Speaking generally, at least two, and possibly three, tests are on offer. It might be sufficient to establish either60 that the enactment required or authorised a decision,61 or that the enactment gives a decision some sort of legal effect.62 Alternatively and more frequently, these requirements are seen as being cumulative.63 Thirdly, the statutory authority for making a decision might need to be more specific than the broad-brush enabling provision so typical64 of Acts establishing and empowering bureaucracies,65 although this criterion may not be essential.66

There is a rich body of precedents to support or explain these tests, but at the level of policy, one must question the need for them. One can glean from some of the cases and government commentaries a generally undifferentiated fear that cutting ADJR’s ties to “decisions under an enactment” might inundate the bureaucracies and the Federal Court with challenges to decisions

55 Whilst he was on the bench, Sir Gerard Brennan expressed strong reservations about the common law of judicial review extending its coverage to non-statutory powers. See: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 409; 41 ALR 1; Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 70; 31 ALR 609; Coutts v Commonwealth (1985) 157 CLR 91 at 105; 59 ALR 699; Kioa v West (1985) 159 CLR 550 at 609-611; 62 ALR 321; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36-37; 93 ALR 1; Annetts v McCann (1990) 170 CLR 596 at 604; 97 ALR 177; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 583-586; 106 ALR 11; Walton v Gardiner (1993) 177 CLR 378 at 408; 112 ALR 289; and Brennan FG, “The Purpose and Scope of Judicial Review”, in Taggart M (ed), Judicial Review of Administrative Action in the 1980s (OUP, 1986) pp 26-27. His Honour has virtually recanted in a post-retirement article: Brennan FG, “Review of Commonwealth Administrative Power: Some Current Issues”, in Creyke R and Keyzer P (eds), The Brennan Legacy: Blowing the Winds of Legal Orthodoxy (Federation Press, 2002) pp 22-33. 56 See R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 219-221 and 282-283; 38 ALR 439; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 1 WLR 1174; Minister for the Arts, Heritage and the Environment v Peko-Wallsend Ltd (1987) 75 ALR 218; 15 FCR 274; Macrae v Attorney-General (1987) 9 NSWLR 268 at 281-282 and 308; “Sydney” Training Depot Snapper Island Ltd v Brown (1987) 14 ALD 464 at 465; Blyth District Hospital Inc v Health Commission (SA) (1988) 49 SASR 501 at 509 and 524-525; Century Metals and Mining NL v Yeomans (1989) 100 ALR 383 at 407-408; 40 FCR 564; Victoria v Master Builders’ Association of Victoria [1995] 2 VR 121; Re Concord Data Solutions Pty Ltd and Director-General of Education (1993) 1 QAR 181 at 192; and Von Einem v Griffin (1998) 72 SASR 110. 57 Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: the Ambit of the Act (Report No 32, 1989), pp 40-41. 58 Judicial Review Act 1991 (Qld), ss 4 and 9. 59 With result that ADJR had no coverage of decisions under a Commonwealth scheme known as the Compensation for Detriment Caused By Defective Administration: see Smith v Oakenfull [2004] FCA 4. 60 See per Davies A-JA in Scharer v New South Wales (2001) 53 NSWLR 299 at 313; 116 LGERA 217: “The crux of the issue in each case is whether the enactment has played a relevant part in affecting or effecting rights or obligations. A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient.” 61 Even this test is difficult. The University’s general statutory power in Australian National University v Burns (1982) 43 ALR 25; 5 ALD 67 empowered it to dismiss professors, but the dismissal in this case was for “permanent incapacity”, which only the contract of employment mentioned. This meant that the contract had a closer nexus with the dismissal than the Act. 62 See General Newspapers Pty Ltd v Telstra Corporation Ltd (1993) 45 FCR 164 at 169-172; 117 ALR 629. 63 As in Tang v Griffith University [2003] QCA 571 (SLG in April 2004). The joint judgment in Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179; 77 ALJR 1263 arguably assumed that an ADJR decision be both required or authorised by an enactment, and given effect by the enactment. 64 See Salerno v National Crime Authority (1997) 144 ALR 709 at 719; 94 A Crim R 302. 65 Hutchins v Deputy Commissioner of Taxation (1996) 65 FCR 269 at 272; 136 ALR 153; and Smith v Oakenfull [2004] FCA 4. 66 Tang v Griffith University [2003] QCA 571 at [30].

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relating to administrivia, personnel, or government’s general commercial activities. That might be so if there were no corresponding extension of the Schedule of decisions for which there is no right to reasons. Tasmania’s version of ADJR excludes the right to reasons for tendering and contract decisions.67

As for the broader question of judicial review of government’s commercial decisions, there is a remarkable consistency of outcome between ADJR cases and judicial review cases at common law. Generally speaking, they both deny review of contract decisions. ADJR’s excuse is that these are not decisions made under an enactment.68 The common law’s excuse is that such decisions do not involve the exercise of a “public” power or function.69 This should not be taken as a criticism of the overall direction of either the ADJR or the common law cases. The next section of this article remarks on the English shift from “public body” to “public power” in describing who might be subjected to judicial review. That shift has a logic which cuts both ways. A “public power” test catches non-government bodies exercising governmental powers, but it also explains why some governmental activities of a purely commercial nature escape judicial review.

Currently, whether judicial review be under ADJR or at common law, the courts seem to have reserved the possibility of review where a decision to contract is challenged because of an alleged breach of a statutory limit70 to the contract power or a statutory requirement as to how that power is to be exercised.71 And that, surely, is judicial review’s core concern, namely, whether public power, even public commercial power, has been exercised illegally.

ADJR’s main focus is on decisions which are null and void, and therefore72 not made under an enactment. The cases make an interpretative allowance of sorts to accomodate that concern.73 Ideally, however, ADJR should be amended so as to delete its restriction to decisions “under an enactment”. Like the common law, ADJR should allow judicial review of the illegal exercise of public power. The fears expressed in ADJR’s early days that such an amendment might result in the bureaucracy being hounded with trivial challenges to the legality of the minutest administrivia, or to ordinary commercial dealings, appear to be unfounded. The possibilities for thus exploiting s 39B of the Judiciary Act 1903 (Cth) remain largely untapped. In any event, applicants challenging government action taken in the exercise of a non-statutory power are unlikely to find much purchase for most of the review grounds, other than the rules of natural justice or breach of delegated authority.74 The fact that ADJR has coverage of a class of decisions does not mean that all or even any of its grounds apply to restrain that class of decision-making.75

67 Judicial Review Act 2000 (Tas), Sch 3, cl 9. 68 General Newspapers Pty Ltd v Telstra Corporation Ltd (1993) 45 FCR 164; 117 ALR 629. 69 R v Jockey Club Disciplinary Committee; Ex parte Aga Khan [1993] 1 WLR 909. 70 Whether that limit be purposive or of some other sort. 71 Davies and Einfeld JJ said in General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 at 173; 117 ALR 629 that such challenges might be “appropriate [under ADJR], even in relation to a contract, because the statute affects the force and effect of that which was done”. As for the common law, see Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (3rd ed, Lawbook Co., 2004) pp 149-156. Finn J raised a further issue in Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 179; 146 ALR 1, namely, the extent to which (if at all) the formally “non-governmental” activities (such as commercial contracting) of a statutory corporation might be subject to administrative law principles because of the public nature of the corporation. Gummow J agreed (in Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 at 262; 167 ALR 392) that this was a serious and unresolved issue. Kirby J referred in Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 at [95]-[96]; 77 ALJR 1263 to these observations, and concluded generally that administrative law restraints apply to non-government bodies exercising “public power”. 72 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615; 187 ALR 117; and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506; 195 ALR 24. 73 Merkel J reviewed the cases in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 125-127; 41 ALD 293. The appeal did not affect that aspect of his Honour’s judgment; see Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322; 46 ALD 244. Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367 at 375; 40 ALD 603 said that ADJR covered decisions in the “purported” exercise of statutory authority. 74 This is not to imply that natural justice would apply to many contract situations. The “narrow” ground alleged in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 1 WLR 1174 was that the Prime Minister

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If it is regarded as too risky simply to abolish the restriction to decisions under an enactment, an alternative would be to rephrase the restriction so that it better articulates ADJR’s original policy, which was to allow review, not for decisions under enactments, but for their breach. JUDICIAL REVIEW’S REACH BEYOND GOVERNMENT The common law of judicial review focuses on the control of government power. This is not because that is the only power with the potential for abuse or oppression, but because it is thought that government must answer to different principles than those applicable to private or corporate power, however large. That raises important questions, but only in the secondary literature. There can be no doubting judicial review’s current restriction to government power. The cases all accept judicial review’s exclusion of private power, and concern themselves with how one might more accurately describe the exclusion.

England’s judicial review law is still anchored to government power, but has been adapting what that might mean in a series of cases stretching back nearly forty years. The first step was the decision to allow judicial review of a government board which was operating what in those days was a non-statutory criminal injuries compensation scheme.76 The board was reviewable because it was exercising public power, albeit one not sourced in statute. The next step was a case applying the “public power” test to a non-government body exercising non-statutory power.77 The precise basis for that extension was not entirely clear,78 because the body in question was neither fish nor fowl. It was on one view non-governmental, but its functions were regulatory, it was recognised (although not empowered) by statute, and it had government representatives in its membership. In reality, the body was a hybrid, half-way between public and private, although that is not how the court rationalised its decision. The United Kingdom’s Human Rights Act 1998 (UK) (HRA) explicitly extends to “hybrid” bodies to the extent that they perform “public functions”. That has produced further complications in trying to explain just how much further might be the reach of the HRA as compared to judicial review.79 The Court of Appeal has admitted that its boundary line between public and private power “is often as much a matter of feel, as deciding whether any particular criteria are met”.80

Australian cases have noted, commented on and even endorsed aspects of these English developments.81 Until recently, however, there has been no real discussion of England’s extension of judicial review to private sector bodies exercising public power.

had exceeded the terms of her authority as granted by Her Majesty in Council. Mason J said in R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 219; 38 ALR 439 that establishing a review ground would be harder for prerogative powers than for statutory powers. 75 Kioa v West (1985) 159 CLR 550 at 566-567 (Gibbs CJ), 576-577 (Mason J), 593-595 (Wilson J), 625 (Brennan J) and 630 (Deane J); 62 ALR 321. 76 R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864; [1967] 2 All ER 770. 77 R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1987] 1 QB 815; [1987] 1 All ER 564. 78 Datafin’s application has generally been fairly cautious. If government has no role, Datafin does not apply to private sector bodies engaged in industry self-regulation through a series of contracts, no matter how massive their power: R v Jockey Club Disciplinary Committee; Ex parte Aga Khan [1993] 1 WLR 909. 79 Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] 2 QB 48; R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936; and Parochial Church Council of the Parish of Aston Cantlow and Wilmcote v Wallbank [2003] 3 WLR 283. 80 R (Tucker) v Director General of the National Crime Squad [2003] ICR 599 at [13] per Scott Baker LJ. 81 See Norths Ltd v McCaughan Dyson Capel Cure Ltd (1988) 12 ACLR 739 at 745-746; 6 ACLC 320; Typing Centre of New South Wales v Toose (unreported, NSW Sup Ct, Mathews J, 15 Dec 1988); Adamson v NSW Rugby League Ltd (1991) 31 FCR 242 at 279 and 292; 103 ALR 319; Chapmans Ltd v Australian Stock Exchange Ltd (1994) 123 ALR 215 at 223-224; 12 ACLC 512; Dorf Industries Pty Ltd v Toose (1994) 127 ALR 654 at 666-667; 54 FCR 350; Victoria v Master Builders’ Association of Victoria [1995] 2 VR 112 at 136-137, 160-161 and 163; McCasker v Queensland Corrective Services Commission [1998] 2 Qd R 261 at 272; 100 A Crim R 150; Australian Stock Exchange Ltd v Hudson Securities Pty Ltd [1999] NSWSC 1237 at [83]; MBA Land Holdings Pty Ltd v Gungahlin Development Authority [2000] ACTSC 89 at [212]-[220]; Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 at 385; 123 LGERA 367; McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759 at [80]-[117]; [2002] NSWSC 470; and Whitehead v Griffith University [2003] 1 Qd R 220; [2002] QSC 153.

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The issues and judgments in Neat Domestic82 were complex, but a thumb-nail sketch will suffice for present purposes. Legislation provided for the government’s substantial retreat from its former arrangements for the collective marketing of most of Australia’s wheat crops. The new regime left the government with only one relevant regulatory function. The government controlled Australia’s bulk wheat export market through a statutory body called the Wheat Export Authority, but its control was minimal. The Authority’s consent was needed before anyone could export their own wheat in bulk. However, no consent was needed for exports conducted by a collective wheat pool which was for the most part grower owned and operated. Two companies ran the pool, one for the domestic market, and its subsidiary for the bulk export market. These were private sector companies incorporated under the Corporations Law (Vic), with the normal private sector objective of maximising profits for their shareholders. The Authority’s discretion to grant or withhold export consents was constrained by statute, which said that consent should be refused unless the Authority had first sought and obtained the written consent of the relevant grower company. The Act did not specifically authorise or require the grower company to give or withhold its consent, but its “natural person” power under the Corporations Law sufficed to enable it to make a decision one way or the other. The net effects of this arrangement were highly anti-competitive. It left the company with effective control over a statutory authority, which it understandably exercised in its own self interest. This forced the applicant out of the bulk export market, with the consequence of reducing the price which the applicant’s clients could obtain for their product on the domestic market.

The applicant wanted to challenge the grower company’s steadfast refusals to allow the statutory Authority to consent. It alleged breach of the restrictive trade practices provisions of the Trade Practices Act 1974 (Cth) (TPA). The company’s defence relied on the same section of the Wheat Marketing Act 1989 (Cth) which effectively empowered it to veto competitive exports, because that section also removed the operation of the TPA for “anything done by [that company] under this section or for the purposes of this section”.83 The basic question in Neat Domestic, therefore, was whether the company’s refusals were done “under this section”, and that could be questioned only if the company’s veto power was subject to administrative law restraints, so that one could argue that the company’s refusals were not done validly “under this section”.

The particular restraint alleged was that the company should consider each consent application on its individual merits, and not by reference merely to a blanket policy. It was accepted that the common law and ADJR statements of that principle were the same. Although the applicant had pleaded ADJR, therefore, the Federal Court had ample jurisdiction to try the same challenge under its Trade Practices jurisdiction, without reference to ADJR.84 The basic questions were whether the company’s decisions were judicially reviewable at all, and if so, on what grounds.

Kirby J in sole dissent thought that this was a case of legislation conferring public power or functions on a private corporation, and that the company was therefore subject to administrative law principles. His Honour even hinted that Parliament was constitutionally incapable of freeing such a company from at least some of administrative law’s principles,85 although he did not have to explore that possibility. His Honour discussed the English developments with evident approval, and said that the company’s decisions were reviewable, whether under the common law’s “public power”86 or “public function” test, or under ADJR.

The Chief Justice was disposed to agree as regards ADJR. He cited the company’s “virtual ... statutory monopoly”,87 its release from TPA constraints, its power over a statutory authority, and the implication that the company’s powers were granted not just for the narrow interests of its

82 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179; 77 ALJR 1263 83 Wheat Marketing Act 1989 (Cth), s 57(6)(b). 84 Heerey J made this point in the Full Court of the Federal Court: Neat Domestic Trading Pty Ltd v AWB Ltd (2001) 114 FCR 1 at 4; [2001] ATPR 41-836. 85 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 at [67] and [94]-[96]; 77 ALJR 1263. 86 His Honour wondered whether “public power” was sufficiently precise: Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 at [115]; 77 ALJR 1263. 87 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 at [27]; 77 ALJR 1263.

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members, but for the wider national interest. For the Chief Justice, therefore, the company could legitimately look to its own interests, but not entirely. Had the applicant sought consent on the ground that it wanted to exploit a niche market in a way which could not affect the company, his Honour thought that the company would have been obliged to give it individual consideration.

The joint judgment of McHugh, Hayne and Callinan JJ disagreed. Their Honours said that there was no ADJR decision under an enactment, because the company’s decision was given under the “natural person” power it had by virtue of its incorporation under the Corporations Law. Their Honours went further, citing three considerations which, taken together, pointed to the conclusion that the company was under no administrative law restraints. Firstly, the Act’s structure distinguished between the Authority and the company. Only the Authority was subject to ADJR, and only the Authority was bound by restraints derived by implication from the Act’s subject matter, scope and purpose.88 Secondly, the company was “private” and legitimately dedicated to members’ interests, rather than “public” interests.89 Thirdly, those interests were incompatible with a requirement to consider “public” interests, because they would always outweigh wider “public” interests.90 It is important to emphasise that the joint judgment specifically reserved for future consideration the question of when a private sector body might be reviewable.91 It seems that for the joint judgment, the company escaped review because it was set up to behave selfishly if it wanted, in disregard of any wider public interest.

It is difficult to state the net effect of Neat Domestic. Its approach to whether a decision is under an enactment was not broad, but by the same token, ADJR contains no specific requirement that the decision-maker be part of government. Its conclusion that the company was free of all administrative law restraints, primarily because it could legitimately focus on the profit motive, was disappointing, unnecessarily wide and taken without discussion of the interesting constitutional issue of whether there might be limits to Parliament’s ability to confer power on private sector bodies without public-regarding limitations. It leaves unresolved the wider question of how far, if at all, Australia’s common law of judicial review should follow England’s extension to private sector bodies exercising public power, but even here, the prospect is not necessarily as gloomy as appeared to the dissentient.92 The joint judgment pointedly left the issue open,93 and the Chief Justice was prepared to countenance some extension.94 Kirby J asserted95 that Gummow J had in an earlier case96 flagged this as an issue needing further consideration, although it seems more likely that Gummow J’s earlier observations were meant to apply only to statutorily constituted authorities and corporations.

This article has already recommended severing ADJR’s tether to “decisions under an enactment”. It should be replaced with “decisions, conduct, acts or omissions in breach of Commonwealth law imposing restraints on or requirements for the exercise of public power”. That would leave ADJR free to explore the outer reaches of judicial review with no more constraints than seem to apply to the common law. Any exploration would necessarily be cautious. It is true that a test of “public power” or “public function” is indeterminate. But it has the merit of focusing on judicial review’s core mission, which is all about the legal control of public power, whether or not that be vested in bodies we can readily recognise as “belonging” to our core idea of government. The indeterminacy flows from the recognition that some activities are still governmental, even though there might be some novelty in the formal nature of the bodies performing them, or in the way in which their powers are invested or exercised. Tests such as “public power” or “public function” are necessarily fuzzier than the more mechanical test of

88 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 at [52]-[56]; 77 ALJR 1263. 89 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 at [51] and [57]-[61]; 77 ALJR 1263. 90 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 at [62]-[63]; 77 ALJR 1263. 91 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 at [49]-[50]; 77 ALJR 1263. 92 Kirby J feared that the majority had taken “a wrong turning”: Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 at [68]; 77 ALJR 1263. 93 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 at [49]-[50]; 77 ALJR 1263. 94 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 at [27]-[29]; 77 ALJR 1263. 95 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 at [95]; 77 ALJR 1263. 96 Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 at 262; 167 ALR 392.

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asking whether the power derives from statute. They nevertheless are preferable in terms of explanatory and descriptive force. Indeed, this conclusion is hard to avoid if judicial review is to extend beyond statutory powers, and if judicial review can be withheld from the “normal” commercial or private functions of statutory bodies.

This is not to urge a wholesale adoption of all of the elements of the English tests for “public power”, but its indeterminacy is ultimately unavoidable.97 Identifying the “public” realm is admittedly a difficult task, involving some sense of political judgment, but it is unavoidable, particularly in a federal system.98 One can perhaps analogise to other contexts, where the difficulties in identifying a State or Commonwealth Crown,99 or a State,100 are equally difficult, but equally unavoidable. Those difficulties are magnified by the increasing resort to corporatisation, government outsourcing and the privatisation of government functions. There is room for debate as to whether the characterisation of a body or its functions as the state, or as public, is largely a political judgment,101 or whether political judgment has been overwhelmed by more fixed legal criteria. The answer probably lies somewhere between the two poles102 of a “checklist” frozen in time,103 and a purely political approach.104 SHOULD MOST OF ADJR BE REPEALED? Most of the discussion so far has proceeded on the assumption that the Federal Court’s jurisdiction under ADJR should continue, with some fine tuning to bring it into line with judicial review at common law. That assumption must now be questioned in light of the breadth of the Federal Court’s jurisdiction under s 39B of the Judiciary Act 1903 (Cth). Section 39B still has some gaps, but not as many as the ADJR Act. Sub-section 39B(1)’s restriction to Commonwealth officers is anomalous, in light of the current view that bodies corporate cannot be Commonwealth officers.105 The sub-section should be amended.

97 See per McClellan J in Hall v University of New South Wales [2003] NSWSC 669 at [99]: “The distinction between public and private power is central to liberal political thought but its application to contemporary government is not always self-evident.” 98 McHugh and Gummow JJ suggested in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [74]-[75]; 214 CLR 1 at 24 that the English extension of judicial review into the enforcement of notions of substantive fairness is partly explained by that country’s relative absence of a legal need to identify the state, as compared to Australian law, where our constitutional arrangements require the identification of our bodies politic. See also Mantziaris C, “A ‘Wrong Turn’ on the Public/Private Distinction: Neat Domestic Trading Pty Ltd v AWB Ltd” (2003) 14 PLR 197. 99 In the context, for example, of the “shield of the Crown”; see: Bropho v Western Australia (1990) 171 CLR 1; 93 ALR 207; Commonwealth v Western Australia (1999) 196 CLR 392 at 409-410, and 429-430; 160 ALR 638; and Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 345-347; 161 ALR 399. 100 See SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51; 188 ALR 241, in the context of the immunity of State-owned property from Commonwealth taxes. Kirby J believes that most State government functions are performed by States rather than State Crowns: British American Tobacco Australia Ltd v Western Australia (2003) 200 ALR 403 at [138]-[153]; 77 ALJR 1566. 101 It cannot be merely a political judgment, because the Constitution requires the courts to identify Australia’s bodies politic: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 24; 195 ALR 502 at [74]-[75]; 77 ALJR 699. 102 See Parochial Church Council of Aston Cantlow and Wilmcote v Wallbank [2003] 3 WLR 283 37, where indicative criteria were used to identify “public functions”, whilst Lord Rodger noted (at [159]) that what falls within the concept of governmental power will vary between states according to their histories and political philosophies. See also Hedges v Australasian Conference Association Ltd [2003] NSWSC 1107, which said that for certiorari’s purposes, a church’s investigation of allegations of child sex abuse was not an exercise of public power, even though statute required such an investigation. 103 Kirby J’s appraisal of the Commonwealth’s submissions in SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51 at 92; 188 ALR 241. 104 In the context of s 75 of the Constitution, Dixon J said that the Commonwealth and the States “are conceived as politically organized bodies”: Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 363; [1948] 2 ALR 89. 105 The cases can be traced to Broken Hill Pty Co Ltd v National Companies and Securities Commission (1986) 67 ALR 545 at 550-551; 5 ACLC 373 per Dawson J. The High Court might reconsider that issue: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at 135; 179 ALR 296.

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Paragraph 39B(1A)(c)’s restriction to the Commonwealth’s written laws is also anomalous, for the same reasons that it is anomalous to tether ADJR to acts or omissions under enactments. Alan Robertson is undoubtedly correct, however, in his argument that the sheer breadth of s 39B means that it will cover most judicial review cases not caught by ADJR.106 Robertson does not go so far as to urge ADJR’s repeal, but his analysis prompts consideration of that question. The principal reasons for retaining ADJR are said to be four-fold. The Act’s remedial flexibility is sometimes said to be greater than the common law’s,107 although that appears doubtful.108 The Act’s conferral of a right to reasons is probably its most enduring reform,109 although it (and its exceptions) could easily be relocated to a new Division of the Freedom of Information Act 1982 (Cth). ADJR’s grounds push beyond the common law’s jurisdictional error in at least three respects, namely, errors of fact,110 law111 and procedure,112 although there is some measure of convergence between Act and common law as regards errors of fact113 and law.114 Finally, the Act’s itemisation of the review grounds goes some distance towards a codification, which has an educative effect for the profession.115 These points are sufficient to repel an argument for ADJR’s repeal. They also give force to Robertson’s argument that it might be more profitable to shift focus from the Act's jurisdictional short-comings to the Act’s grounds. HOW FLEXIBLE ARE THE REVIEW GROUNDS? It will be recalled that Kirby J has charged ADJR’s codification of the review grounds with retarding the common law’s adaptability to the changing nature of the administrative state. Specifically, his Honour blames ADJR for having pulled focus from the common law, with the

106 Robertson A, “The Administrative Law Jurisdiction of the Federal Court – Is the AD(JR) Act Still Important?” (2003) 24 Aust Bar Review 89. 107 See, eg: Robertson A, “The Administrative Law Jurisdiction of the Federal Court – Is the AD(JR) Act Still Important?” (2003) 24 Aust Bar Review 89 at [97]; and McGowan v Migration Agents Registration Authority [2003] FCA 482 at [34]. 108 ADJR’s remedies are discretionary, but the courts have always had a discretion to refuse relief in the nature of the prerogative writs, and declaratory relief and injunctive relief. ADJR’s authorisation to select a review order’s operative date seems no wider than the common law’s: see Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55. Despite its literal breadth, ADJR’s s 16 does not confer a new power to award damages: Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 at 645; 88 ALR 517. 109 Yang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 258 at [47]. 110 ADJR’s “factual error” ground is tethered neither to jurisdictional fact nor to error of law, and it might extend beyond the common law’s “irrationality” review. See Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; 190 ALR 402; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at 458; 195 ALR 1; and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 77 ALJR 1165. 111 ADJR’s “error of law” ground applies regardless of whether the error is jurisdictional or latent. 112 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 341 and 372; 180 ALR 1; Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [169]; 76 ALJR 966; and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at 460; 195 ALR 1. Aside from breach of the hearing rule of natural justice, the common law usually treats procedural errors as non-jurisdictional; see: Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (3rd ed, Lawbook Co., 2004) p 326; and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490. 113 See Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 77 ALJR 1165. 114 Of the prerogative writs or orders, only certiorari lies at common law for non-jurisdictional error of law, and even then, only if the error is apparent on the face of the record: R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338; [1952] 1 All ER 122. The injunction is not tied to jurisdictional error of law: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 393; 152 ALR 490; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 232 and 240-241; 185 ALR 1; Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [47] and [169]; 76 ALJR 966; and Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 21; 195 ALR 502 at [65]; 214 CLR 1. Nor is the declaration: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 393; 152 ALR 490. Inferior courts aside, there is arguably a weak and rebuttable interpretative presumption that errors of law are jurisdictional: Craig v South Australia (1995) 184 CLR 163 at 176-180; 131 ALR 595. 115 NSW Supreme Court Practice Note 119, which has a shorter list of the common law’s grounds, evidently for educative purposes.

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result that Australia’s common law grounds have adapted less to modern needs than the English grounds, which are all common law.116

It might be remarked at the outset that the complaint bears a curious aspect, in that it blames ADJR’s success for an alleged under-development of the common law. Even if the allegation were true (and this will be denied), it would accord pride of place to the common law in our judicial review system. One might see an analogy to a similar complaint which Professor Cane made in regard to the AAT. Mason CJ insisted in the Bond case117 that a viable distinction be maintained between the AAT’s merits review and ADJR’s judicial review. Cane drew on that to conclude that the AAT’s establishment “fragmented administrative law by giving the distinction between judicial review and merits review a unique and rigidifying significance.”118 It is not valid to retard a statutory scheme for fear that its success might retard the common law.

It is undoubtedly true that the mass of cases and commentaries surrounding ADJR exert a powerful attraction away from the common law, but it is doubtful that this has resulted in undue rigidity, either at common law or as regards a developing understanding of the ADJR grounds themselves.

At a time when the Migration Act 1958 (Cth) forbade the Federal Court entertaining complaints of failing to take account of mandatory considerations, the High Court’s decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1 (Yusuf)119 managed to say that the “relevant considerations” grounds were simply one example of more general grounds which the Migration Act allowed in the Federal Court. These were that the decision-maker “did not have jurisdiction”120 or that “the decision was not authorised”.121 The allowable grounds were straight copies of ADJR grounds,122 and were interpreted as being equivalent to “jurisdictional error” at common law and in the High Court’s constitutional writ jurisdiction.

At a time when the Migration Act prohibited Federal Court challenges for unreasonableness,123 the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 77 ALJR 1165 (S20) minimised the prohibition’s effectiveness. S20 severely retracted the field of operation for “unreasonableness”124 and gave the excised portion to a newly-minted ground called “serious irrationality or illogicality”.125 By a happy coincidence, the new ground was not forbidden in the Federal Court, because as in Yusuf, it was simply an example of decisions which their makers had no “jurisdiction” to make or which were “not authorised”. Happily also, the new ground may well operate in all other respects in the same way that the unreasonableness ground had previously been thought to operate.126

Yusuf and S20 are important here not just because of their adroitness in outflanking legislative attempts to narrow the review grounds in migration cases, but because they are clear evidence of adaptability and innovation, both at common law and under a statutory restatement of the

116 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [156]-[168]; 77 ALJR 1165. 117 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341; 94 ALR 11. 118 Cane P, “The Making of Australian Administrative Law” (2003) 24 Aust Bar Rev 114 at 133. The analogy is close but not perfect. Cane’s comments applied only where merits review and judicial review were each available. Further, they implicitly recognised a degree of overlap between the two. It is submitted, however, that the nub of Cane’s complaint is of Mason CJ taking account of the scope of merits review in calibrating the extent of judicial review’s grounds. 119 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 338-340 and 350-352; 180 ALR 1. 120 Migration Act 1958 (Cth), s 476(1)(b) (since repealed). 121 Migration Act 1958 (Cth), s 476(1)(c) (since repealed). 122 ADJR Act ss 5(1)(c) and 5(1)(d) respectively. 123 Migration Act 1958 (Cth), s 476(2)(b). 124 It now operates only in respect of discretionary decisions, rather than fact-finding or fact-finding processes. 125 Summarised in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]. 126 But see Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [59], where Santow JA said that those challenging administrative action for serious irrationality might find S20’s standard more demanding than the unreasonableness standard of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-230; [1947] 2 All ER 680.

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allowable grounds. The statutory restatement in each case was in the Migration Act, but with direct equivalents in ADJR. In neither case were the permissible grounds articulated as such in the statutory restatement, and S20’s “serious irrationality” ground must count on any reckoning as a major statutory and common law innovation. The Migration Act’s list of allowable and disallowed grounds has since been repealed, and nothing comparable has taken its place at the time of writing. However, the conclusions are inescapable that Migration’s lists were susceptible to flexible interpretation, and that the substantive127 inspiration came from the common law. Clearly, the Migration Act had no retardant effect on the common law’s development. Indeed, Professor McMillan argued that at each turn of the screws by amendments to the Migration Act, the Federal Court was spurred on to more imaginative heights of statute-avoidance, including some highly innovative explorations of judicial review grounds.128 McMillan was critical of the Federal Court’s performance. He found himself in high-profile company in this respect,129 although I, for one, have thought the court remarkably constrained in the face of interpretative difficulties and political savagery.

There is a further consideration as regards ADJR which has no Migration Act equivalent. ADJR has a catch-all ground, namely, “that the decision was otherwise contrary to law”.130 Its raison d’être was to allow ADJR’s grounds to be as adaptive as the common law’s, thereby avoiding the rigidity which might otherwise have set in with real codification or a closed list.131

It is submitted, therefore, that ADJR must be acquitted of Kirby J’s charges that its grounds are insufficiently flexible, and that they have caused a degree of inflexibility in the common law’s grounds. There is, however, a more important charge which his Honour makes, which appears to be levelled generally at the state of Australian judicial review law. This charge is that we have been too slow to search for the general principles underlying the review grounds. The search for general principles Stephen Gageler’s point that ADJR lacks any statement of general principle is well-made. Kirby J’s complaint about the lack of generally articulated principles underlying the common law grounds is also well-made, although he should not have blamed ADJR. However, Kirby J’s deeper complaint perhaps needs some elaboration.

Kirby J was clearly right to insist upon an explanation of the concept of jurisdictional error, or, at least, an explanation of what it might stand for. The common law’s “jurisdictional error” is a conclusory term, encompassing more specific grounds which can themselves be indeterminate. It does not follow that the term is infinitely manipulable,132 but it can no longer serve as an organising concept. Jurisdictional error now embraces all those errors presumptively resulting in the impugned decision being treated for most purposes as having been a nullity from the outset. That leaves the concept of non-jurisdictional error as an umbrella term for administrative errors not resulting in retrospective invalidity. Even that idea is difficult, because “nullity” is itself a bundle

127 As opposed to strategic. 128 See McMillan J, “Federal Court v Minister for Immigration”, (1999) 22 AIAL Forum 1; and McMillan J, “Judicial Restraint and Activism in Administrative Law”, (2002) 30 Fed LR 335. McMillan was not alone; see NAAX v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 312 at 334-335 (Gyles J). 129 The Minister made highly critical comments about the Federal Court in the run-up to the Full Court hearing of NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449; 123 FCR 298. He refused to apologise when asked to explain, and the court did not pursue the matter further. All the major print media covered the imbroglio between 4–7 June 2002. 130 Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)(j). 131 Professor Sir William Wade had long argued that the common law’s evolutionary capacity was its great advantage over a statutory codification of the grounds of review. It was on his suggestion that ADJR included s 5(1)(j). See the Ellicott Report, [41]-[43]. 132 With Lord Denning in Pearlman v Keepers and Governors of Harrow School [1979] QB 56 at 69; [1979] 1 All ER 365, Kirby J believes the distinction between jurisdictional and non-jurisdictional errors of law to be nothing more than a smokescreen for the judge’s preferences. The only people discomforted by that thought, he says, are “those who vainly yearn for bright lines and a clear legal rule”: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [121]; 77 ALJR 1165. I disagree.

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of complex notions, depending ultimately on a view of legislative intent133 which is often manipulable.134

Kirby J believes that it would advance our understanding if we were to abandon the terminology of jurisdictional error altogether. It should be “interred, without tears, in Australia as has happened elsewhere.”135 This article has already noted ADJR’s push beyond jurisdictional error, and some degree of movement in that direction by the common law. Whilst that might in some respects be welcome, it is submitted that this would not address the nub of Kirby J’s complaint. Whether abolition resulted in tears or jubilation, the emotion would be short-lived, as we set about the hard grind of articulating general principles.

However one defines the grounds of judicial review, there is a sense in which they must leave administrative decision-makers with workable margins. Whether those margins be described as margins for error, or for judgment, and whether they be explained in terms of separation of powers, legislative supremacy, or rule of law, or in terms of relatively stable limits to the competence and legitimacy of the judicial branch, the fact is that judicial review itself lies at the margins of government. For it to remain workable and legitimate, judicial review must always exercise a large measure of self-restraint, in deference both to the relevant bureaucracies and to the supremacy of the legislative schemes which established them.

ADJR’s eighteen grounds say nothing about the rule of law, the separation of powers, fundamental rights and freedoms, principles of good government or (if it be different) good administration, transparency of government, fairness, participation, accountability, consistency of administrative standards, rationality, legality, impartiality, political neutrality or legitimate expectations. Nor does ADJR mention the Thatcher era’s over-arching goals of efficiency, effectiveness and economy, although perhaps one should add that the English judiciary were never enthusiastic advocates of those goals. ADJR’s grounds are totally silent on the relatively recent discovery of universal human rights to autonomy, dignity, respect, status and security. Nowhere does ADJR commit to liberal democratic principles, pluralism, or civic republicanism.

Some of these terms may occasionally be found in the judicial review cases, but they are not developed or offered to explain or justify the institution or practice of judicial review. The academic literature, by contrast, has a rich stream of writings exploring or advocating these and other principles, in an effort to come to grips with the interrelationships between law, politics and society. This is especially noticeable in the United Kingdom’s literature, which is witnessing vigorous debates about the appropriate place for the judiciary in the constitutional balance, both generally and specifically in light of the Human Rights Act 1998 (UK).136

Doubtless there are several explanations for the academic debates, but they must include a gradual but unmistakeable break with what Professor Harlow called the classic model of judicial review.137 Harlow’s classic model had several elements. It had “no developed distinction between public and private law.”138 It was interest-oriented, in its requirement for standing,139 and originally

133 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490. 134 Aronson M, “Nullity” (2004) 40 AIAL Forum 19. 135 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 123; 179 ALR 238. 136 See O’Leary B, “What Should Public Lawyers Do?” (1992) 12 OJLS 404 (reviewing Craig P, Public Law and Democracy in the United Kingdom and the United States of America OUP, 1990); Prosser T, “Journey Without Maps? Review of Martin Loughlin: Public Law and Political Theory” [1993] PL 346; Harlow C, “Changing the Mindset: the Place of Theory in English Administrative Law” (1994) 14 OJLS 419; Poole T, “Back to the Future? Unearthing the Theory of Common Law Constitutionalism” (2003) 23 OJLS 435; and Poole T, “Legitimacy, Rights and Judicial Review” (forthcoming). 137 Harlow C, “A Special Relationship? American Influences on Judicial Review in England” in Loveland I (ed), A Special Relationship? American Influences on Public Law in the UK (Clarendon, 1995) Ch 3, pp 79-97. 138 Harlow C, “A Special Relationship? American Influences on Judicial Review in England” in Loveland I (ed), A Special Relationship? American Influences on Public Law in the UK (Clarendon, 1995) Ch 3, at 85.

Is the ADJR Act hampering the development of Australian administrative law?

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in its more general focus on rights and privileges, “[i]ts objective being primarily the protection of legal interests”.140 Its processes were formal, and focused on the arguments submitted by the parties.141 It was also remedy-oriented, in the sense that its grounds and scope varied according to the remedy sought.142

The slide from the classic model is slow but perceptible, and done by steps so small that it takes time to appreciate their significance. Right now, most judges are extremely reluctant to offer their vision of good government principles. Gleeson CJ, McHugh and Gummow JJ have expressed143 serious reservations about recent English developments, including cases144 embracing the substantive protection of legitimate expectations, and the prevention of abuse of power judged in substantive terms. McHugh and Gummow JJ thought that the English identification of “certain minimum standards” might work over there, but would in Australia involve the judiciary in trespassing into legislative or policy-making functions. Kirby J may well have regretted his absence from that case, because his Honour’s only elaboration of his fall-back remedy for “serious administrative injustice” was that it was part of the judicial function “to uphold the rule of law itself, ... [maintain] minimum standards of decision-making and correct ... clear injustices where what has occurred does not truly answer to the description of the legal process that the parliament has laid down.”145 Australia is clearly closer to the classic model than England.

Whether the model be classic or modified, however, the questions remain whether it is the proper role of the judiciary, or the desirable role of the legislature, to lay down judicial review’s meta-principles. It is easier to answer the second question first.

Maitland famously said of the eighteenth century British Parliament that it “seems afraid to rise to the dignity of a general proposition”.146 Legislative fear of the abstract was extremely pronounced in those days. These days, we have statutes replete with high-sounding objects clauses, but how useful are they? The objects clause of the Freedom of Information Act 1982 (Cth)147 so perfectly balances the competing tensions of privacy and openness that the courts have declared it virtually useless.148 For an equally balanced but much longer set of competing values, one cannot go past s 10 of the Public Service Act 1999 (Cth). This contains a long list of Public Service values, including that the public service is to be “openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public”. In case that might mean something, the Public Service Commissioner is then empowered to override it by issuing a determination as to its scope or application. In the event of a clash, the Commissioner’s determination prevails over the Public Service values.149 If ADJR were to get a

139 Harlow C, “A Special Relationship? American Influences on Judicial Review in England” in Loveland I (ed), A Special Relationship? American Influences on Public Law in the UK (Clarendon, 1995) Ch 3, at 86; and Harlow C, “Popular Law and Popular Justice” (2002) 65 MLR 1. 140 Harlow C, “Popular Law and Popular Justice” (2002) 65 MLR 1 at 2. 141 Harlow C, “Popular Law and Popular Justice” (2002) 65 MLR 1 at 2. 142 Harlow C, “A Special Relationship? American Influences on Judicial Review in England” in Loveland I (ed), A Special Relationship? American Influences on Public Law in the UK (Clarendon, 1995) Ch 3, at 86-87. See also Cane P, “The Making of Australian Administrative Law” (2003) 24 Aust Bar Rev 114 at 114-115: “The prerogative writs were the forms of action of public law. As such, they escaped the great procedural reforms of the nineteenth century that transformed the forms of action into causes of action and shifted the law’s conceptual centre of gravity from procedure to substance.” 143 Re Minister For Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 9-10 and 22-25; 195 ALR 502 at [28] and [68]-[77]; 77 ALJR 699. 144 Specifically: R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213; [2000] 3 All ER 850; and R v Secretary of State for Education and Employment; Ex parte Begbie [2000] 1 WLR 1115. 145 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [161]; 77 ALJR 1165 (reference omitted). 146 Maitland FW, The Constitutional History of England (Cambridge, Reprint 1950) p 383. 147 Freedom of Information Act 1982 (Cth), s 3. 148 See News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 at 66; 52 ALR 277; and Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 at 115; 108 ALR 163. 149 Public Service Act 1999 (Cth), s 11.

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statement of over-arching principles, would it, too, be a useless list of competing principles in perfect equilibrium? Or worse still, would it be dangerously narrow?

Developing a general principles clause for ADJR, therefore, might not be a good option. Is it a job more appropriate for the judges? That is a difficult question. To what extent might it be the judiciary’s role (or even duty) to explore, deduce, describe, articulate or promote a normative framework for judicial review of administrative action? This is not to question the judiciary’s role in articulating general doctrinal principle, but the question being asked here concerns a much deeper level of public law theory. Even here, it is not to question a judge’s natural interest in exploring this level of theory, and it certainly helps the reader understand where the judge is coming from. But is it the judge’s duty to explore and expound his or her philosophical underpinnings, and when they do it, are their conclusions “law”? Professors Harlow and Rawlings tell their administrative law students that “[b]ehind every theory of administrative law there lies a theory of the state.”150 They urge greater awareness of law’s political content or assumptions, but deliberately disown a prescriptive approach, whereby administrative law is viewed through only one political lens. Their focus differs from the standard legal treatise, which is typically concerned with the internal coherence of legal doctrine. They believe that students need to know something of administrative law’s environment, including that environment’s various political theories.

It is certainly true that administrative law cannot be wholly understood or evaluated in isolation from its background of political and administrative practices and theories. It follows that judicial review’s caselaw can be analysed for deeper theories, even though these will usually be implicit, and will never be consistent. There is considerable academic debate as to whether this is the public lawyer’s proper focus, if not domain,151 but very little as to whether or why the judge should step into the fray. It is submitted that it will rarely be necessary for the courts to come to some form of authoritative conclusions as to the more theoretical assumptions underlying their views about the state, community and individuals. Indeed, there are good arguments against the judicial resolution (as opposed to articulation and exploration) of such issues. Any resolution would necessarily be piecemeal, fairly vague, and subject to legislative reversal, unless, of course, it were sought to embed these theories into the Constitution. The most one can reasonably expect is that individual judges will occasionally give greater attention to their own visions of administrative law’s normative underpinnings. CONCLUSIONS Some conclusions are necessarily more tentative than others. There should be some extensions to ADJR’s scope of review, although these should not automatically carry with them an extension of the duty to give reasons. Specifically, judicial review under ADJR should not be confined to “administrative” decisions. Its coverage should also extend to the Governor-General’s decisions. Its general restriction to decisions which are final should be overturned. These are all amendments which would bring the Federal Court’s judicial review jurisdictions under ADJR and the Judiciary Act into greater alignment. Such a move can be justified on several grounds, not the least of them being the need for the Federal Court’s judicial review jurisdiction never to be less than the High Court’s entrenched jurisdiction.

More controversially, ADJR should no longer be restricted to decisions “under an enactment”. At a technical level, that restriction would be better expressed as “decisions in breach of an enactment”. At a deeper level, ADJR should match the common law’s supervision of non-statutory power, even power exercised by a non-government body, provided it is still “public power”.

150 Harlow C and Rawlings R, Law and Administration (2nd ed, Butterworths, 1997) p 1. 151 Craig P and Rawlings R (eds), Law and Administration in Europe: Essays in Honour of Carol Harlow (OUP, 2003), Ch 1, Cane P, “Theory and Values in Public Law”, and Ch 2, Craig P, “Theory and Values in Public Law: A Response”. See also O’Leary B, “What Should Public Lawyers Do?” (1992) 12 OJLS 404; Craig P, “What Should Public Lawyers Do? A Reply” (1992) 12 OJLS 564; and Craig P, “Public Law, Political Theory and Legal Theory” [2000] PL 211.

Is the ADJR Act hampering the development of Australian administrative law?

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ADJR presents its grounds as an open list, deliberately allowing for the incorporation of common law developments. Its grounds have proved to be sufficiently flexible to reject the charge of ossification. It is true that they lack any statement of general principles, and that Australia’s common law grounds have also developed in a more or less piece-meal fashion. Work on a legislative statement of general principles might well be a waste of effort. Even worse, it might produce a statement which restricts the Federal Court’s judicial review role. Whilst welcome, judicial exploration of general principles at a fundamental level cannot reasonably be demanded. Judicial views of the nature of the state are bound to differ, and to vary over time. Unless they were to be expressed as entrenched constitutional fundamentals, they would also be susceptible to legislative reversal.