recent themes injudicial review offederal executive action

RECENT THEMES IN JUDICIAL REVIEW OF FEDERALEXECUTIVE ACTION

John McMillan*

INTRODUCTION

The relative importance of judicial review in Australian administrative law is anunsettled issue. The recent caseload of over 400 judicial review applications per year tothe Federal Court is significant, but strongly overshadowed by more than 40,000inquiries each year to the Commonwealth Ombudsman and 30,000 appeals lodgedwith the independent merit review tribunals. Shortcomings inherent in judicial review- the inability of a court to substitute a new decision,l and the restriction of review to"decisions" that are final and operative2 - also temper its value for members of thepublic who seek a change in administrative practice.

And yet the recurrent impact and notoriety of judicial review decisions cannot bedenied. In 1995 a steady stream of cases illustrated not only the ability of individualdecisions to configure government administration, but also their potential to shape theAustralian political agenda. A striking example of this trend was the decision of theFederal Court in Tasmanian Conservation Trust Inc v Minister for Resources,3 declaringinvalid a woodchip export licence that had been issued to Gunns Ltd in Tasmania. Theevents set in train by that decision - a Ministerial revocation of all other woodchipexport licences, a trucking blockade by loggers of Parliament House, promulgation of anew management plan for logging in national estates, and controversial meetingsbetween Government and industry and conservation representatives - acquiredelectoral significance in 1996 and possibly influenced votes cast in the election.

Two other decisions in 1995 had a similar importance. The decision of the FederalCourt in Chapman v Minister for Aboriginal and Torres Strait Islander Affairs,4 declaringinvalid the Minister's ban on the construction of a bridge to Hindmarsh Island in SouthAustralia, became the subject of a State Royal Commission which made findingsadverse to the Minister's decision. There followed a succession of print and television,inquiries into the Minister's action, incessant political and parliamentary debate in thelead-up to the 1996 election and an inquiry by a Federal Court judge that was later

12

*Reader, Faculty of Law, Australian National UniversityFor example, Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441.Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. ,(1995) 127 ALR 580.(1995) 133 ALR 74; upheld on appeal, Norvill v Chapman (1995) 133 ALR 226. See C Kenny,Women's Business (1996).

348 Federal Law Review Volume 24

declared to be in breach of Ch III of the Constitution.s Of similar notoriety was thedecision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh,6 i

concerning the administrative law significance of international instruments. Thatdecision provoked a joint ministerial declaration to condemn and confine the decision,a special Bill to confirm that objective, a Senate committee inquiry, and a vigorous andongoing academic and public debate on the intersection between domestic andinternationallaw.7

Many other cases that shaped the political and parliamentary agenda in 1995 couldbe added to this list: Minister for Immigration, Local Government and Ethnic Affairs v Mok I

Gek Bouy,8 in which comments by the Prime Minister on "economic refugeeism" were I

the foundation for a much-publicised claim of institutional bias against immigration I

decision-makers; Minister for Immigration and Ethnic Affairs v Respondent A,9 examining:whether aversion to the People's Republic of China's "one child policy" could be the I

basis of an Australian refugee claim; New South Wales Aboriginal Land Council v I

Aboriginal and Torres Strait Islander Commission,10 declaring invalid on the ground of I

unreasonableness a policy decision by the Commission to set aside 80 per cent of its I

land acquisition fund for land purchases in the Northern Territory, contrary to I

government policy; Brandy v Human Rights and Equal Opportunity Commission,ll I

defining the limited enforcement authority of administrative tribunals; and Ridgeway v I

R,12 denouncing police entrapment activity that connived in a breach of the law bYIdrug importers.

The importance of judicial review is not to be measured solely by its impact upon I

the political agenda, however, but chiefly by its development of principles defining allegal framework for administrative decision-making. In this respect, too, the:contribution in recent years has been no less significant, and is examined in this paperlin two different ways. The following section sketches some major themes that emergefrom recent case-law - themes such as the protection of individual rights, thedevelopment of natural justice and the incorporation of international conventions WIAustralian administrative law. That discussion is followed by an examination of thEnature of judicial review, undertaken mostly by way of analysis of three recent case~

(Bond, Wu, and Craig) that deal with different aspects of judicial review and thrrelationship between courts and the executive. The paper concludes by commenting 01

whether the criteria for judicial review elucidated in recent years appropriatel~,

preserve the distinction between judicial review and merit review.

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Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220.(1995) 183 CLR 275.See Administrative Decisions (Effect of International Instruments) Bill 1995, introduceinto the Commonwealth Parliament on 28 June 1995; Senate Legal and ConstitutionLegislation Committee, Report on the Administrative Decisions (Effect of InternationInstruments) Bill 1995; and references in n 42, below.(1994) 127 ALR 223; discussed below, in text accompanying n 92.(1994) 127 ALR 383 per Sackville J; (1995) 130 ALR 48 (Full Court of the Federal Court).(1995) 131 ALR 559.(1995) 183 CLR 245.(1995) 184 CLR 19. Legislation to overturn the decision was subsequently enacted: CrimAmendment (Controlled Operations) Act 1996 (Cth).

1996 Recent Themes in Judicial Review ofFederal Executive Action 349

RECENT THEMES IN FEDERAL JUDICIAL REVIEW

The main features of the judicial review scheme established by the AdministrativeDecisions (Judicial Review) Act 1977 (Cth) (ADJR Act) are now reasonably settled. Asuccession of landmark High Court and Federal Court cases in the 1980s delineated theAct's main features, such as the doctrine of natural justice, the obligation to considerrelevant matters, the range of decisions and conduct subject to review, and theremedial power of the Federal Court conferred by s 16 of the Act.13 Much of the recentcase law does not extend those principles in any meaningful way, but merely reflectstheir application to new circumstances. Few insights can be gleaned by trawlingthrough the recent cases on each feature of the Act. A more interesting challenge is tolook instead at some of the major themes that permeate recent cases and, incidental tothat, at the guiding principles or values that underlie Australian administrative law.

Protection of individual rights

Judicial protection of individual rights is an established theme of Australian publiclaw, yet the emphasis given to it recently has been more prominent. The clearestemphasis has been noted in constitutional law jurisprudence, particularly in thearticulation of implied constitutional restrictions on legislative power, such as thefreedom of political discussion.14 Cornman law developments also exhibit theemphasis, as is illustrated by cases like Mabo v Queensland (No 2)15 and Dietrich v R,16

where the courts adverted to human rights values as a supporting reason forredefining common law principles. In administrative law, the emphasis on protectionof individual rights has surfaced in a few different ways.

Judicial outlookThere is firstly the language used in recent cases, where judges often advert to theconcern of public law and the responsibility of judges to safeguard individual liberty:"to maintain the primacy that the liberty of the individual should have in our legalsystem".17 A familiar affirmation, echoed in Coco v R, is that the judicial methodrequires Parliament to give "a greater measure of attention to the impact of legislative

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For example, Kioa v West (1985) 159 CLR 550 (natural justice); Minister for Aboriginal Affairsv Peko-Wallsend Ltd (1986) 162 CLR 24 (relevant considerations); Australian BroadcastingTribunal v Bond (1990) 170 CLR 321 (scope of judicial review under ADJR Act); and Park OhHo v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 (ADJR Act, s 16).Generally, see M Aronson and B Dyer, Judicial Review ofAdministrative Action (1996).Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106. See also Lin1v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1(implications arising from the separation of judicial power); and Leeth v Commonwealth(1992) 174 CLR 445 (per Toohey and Deane JJ, articulating an implied principle of legalequality). See also G Williams, "Civil Liberties and the Constitution - A Question ofInterpretation" (1994) 5 PLR 82; L Zines, "A Judicially Created Bill of Rights?" (1994) 16 SydLR 166.(1992) 175 CLR 1 (defining the common law recognition of Aboriginal native title).(1992) 177 CLR 292 (defining the common law presumption of adequate legalrepresentation for an accused person).Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 at 730 per Wilcoxand French JJ. See also Buksh v Minister for Immigration, Local Government and Ethnic Affairs(1991) 102 ALR 647 at 656 per Einfeld J.


proposals on fundamental human rights";18 general words in a statute will be"insufficient to authorise interference with the basic immunities which are the !

foundation of our freedom."19 Courts, it has been said, respond to the "vulnerability ofthe citizen" facing "the pervasiveness of State power".20 Likewise, "courts should beslow to find that the parliament has placed the individual in the power of any agency I

of government".21

Construction of legislationIn statutory construction, protection of rights has been invoked recently both to extend Iand to restrict the terms of legislation. The expansive influence is best seen in I

immigration cases, like Chaudhary v Minister for Immigration and Ethnic Affairs,22 I

requiring that immigration legislation be construed in a manner that advances',Australia's aspiration to be perceived as a humane and compassionate nation, and I

Fuduche v Minister for Immigration, Local Government and Ethnic Affairs, preferring "a I

broad and generous construction ... in furtherance of the good name of Australia that I

its humanity maintains".23 A preference for a liberal interpretation in favour of the!citizen has also been advocated in relation to legislation conferring entitlements to I

employee compensation,24 veterans' benefits25 and social security benefits,26 and in I

Aboriginal heritage legislation.27 Similarly, it has been held that a court should be slow I

to find that a statutory power which can affect individual rights can be exercised by a I

delegate or agent of the decision-maker.28

In quite a few recent cases the courts have read legislation restrictively to preclude r

administrative action that is intrusive or detrimental to the individual. A leading:example is Coco v R,29 holding that statutory authority conferred upon a judge tOrauthorise an invasion of privacy, by allowing for the monitoring and recording oflprivate conversations, did not empower the judge to authorise a police officer to enter,

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(1994) 179 CLR 427 at 438 per Mason CJ, Brennan, Gaudron and McHugh JJ.Ibid at 436. See also Bropho v Western Australia (1990) 171 CLR 1 at 18; and Minister fOirImmigration and Ethic Affairs v Teoh (1995) 183 CLR 273 at 304 per Gaudron J, proposing tha'there are rights flowing from citizenship.Justice P Finn, "The Courts and the Vulnerable" in Law and Policy Papers (Paper No 5, 1996'at 7. See also Sir Anthony Mason, "The Importance of Judicial Review of Administrativ(Action as a Safeguard of Individual Rights" (1994) 1 Aust JofHuman Rights 3.Buck v Comcare (1996) 41 ALD 281 at 286 per Finn J.(1994) 121 ALR 315. See also Skidmore v Minister for Immigration, Local Government an~

Ethnic Affairs (1992) 34 FCR 59 at 68 per Einfeld J, contending that the purpose 0

immigration control legislation is to permit, not prevent immigration, and should bapplied fairly with that spirit in mind.(1993) 117 ALR 418 at 430 per Burchett J; applied in Chen v Minister for Immigration anEthnic Affairs (1994) 123 ALR 126 and Moskal v Minister for Immigration, Local Governmeand Ethnic Affairs (1994) 125 ALR 307; contra, Minister for Immigration and Ethnic Affairs v T(1995) 57 FCR 194 at 206 (Full Court).Brennan v Comcare (1994) 122 ALR 615 at 621.Byrnes v Repatriation Commission (1993) 177 CLR 64.Re Vitalone and Secretary, Department ofSocial Security (1995) 38 ALD 169.Tickner v Bropho (1993) 114 ALR 409 at 435.Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 41 ALD 293(1994) 179 CLR 427. See also Anthony Lagoon Station Pty Ltd v Maurice (1987) 74 ALR(power conferred upon Aboriginal Land Commissioner to do "all things necessaryconvenient" for the performance of the function did not authorise entry onto private land


private premises to install a listening device. The justification for this somewhat severereading of the legislation was that "an abrogation or curtailment of a fundamentalright, freedom or immunity... must be clearly manifested by unmistakable andunambiguous language".30 In the same strict vein is Telstra Corp Ltd v Kendall,31 inwhich it was held that a power conferred upon Telstra to "do their best" to preventtelecommunications facilities being used for the commission of an offence did notauthorise the disconnection of the service of a person committing an offence. A thirdexamEle of the same restrictive approach is Taciak v Commissioner of Australian FederalPolice,32 ruling that a statutory power to use information gained lawfully from atelephone intercept for the purpose of deciding whether to take criminal or disciplinaryproceedings against an officer implicated by the intercept, did not authorise the use ofthat information to decide whether to re-appoint the officer.

Criteria for lawful decision-makingYet another way in which protection of individual rights has been given priority is inthe development of the criteria for lawful decision-making. The grounds for judicialreview declared in s 5 of the ADJR Act are no longer a sufficient guide, for they havebeen supplemented by principles that could readily exist quite independently of theADJR grounds. Moreover, many of the new principles have little to say about howlegislation is to be interpreted, and are more a statement of the way in whichindividual claims and interests are to be handled. Examples include the obligation togive "proper, genuine and realistic consideration" to a person's submission;33 theobligation to initiate an inquiry into matters that are readily available and centrallyrelevant;34 the need for a rational justification of a decision that treats one individualless favourably than another;35 the need to warn an individual of an intention to departfrom a policy on which that person might properly and otherwise rely;36 the principleof proportionality, which is premised upon the notion that invalidity can attach toadministrative action that is an excessive or disproportionate interference withindividual rights;37 and the endeavour to establish an administrative law principle thatgovernment agencies bear a duty to take reasonable care to give correct information toa person.38

303132

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(1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ.(1995) 55 FCR 221.(1995) 131 ALR 319.Khan v Minister v Immigration and Ethnic Affairs (1987) 14 ALD 291. See also Hindi v Ministerfor Immigration and Ethnic Affairs (1988) 91 ALR 586 at 597; and Mendoza v Minister forImmigration, Local Government and Ethnic Affairs (1991) 31 FCR 405 at 420.Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 at 563; and Lek vMinister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 455.Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121 at 132. See also Fares Rural Meatand Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation (1990) 96 ALR 153 at167-168 (referring to "discrimination without justification"); and Aboriginal Land Council(NSW) v Aboriginal and Torres Strait Island Commission (1995) 131 ALR 559 at 576-577.Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629; Minister for Immigration andEthnic Affairs v Teoh (1995) 183 CLR 1.See discussion at text accompanying nn 48-59.See Buksh v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 647at 656 (enunciating this principle as a ground of review, though the judgment wasreversed on appeal: (1992) 26 ALD 399); and Re Vitalone and Secretary, Department of Social


A question of balanceIt is appropriate to query whether the judicial emphasis given to the protection ofindividual rights is not in some instances a cloak for a different postulate, namely an !

innate distrust of executive power. Certainly some of the judgments are cast in I

language that presupposes executive arrogance.39 Judges also often speak of unlawfulexecutive action as an "abuse of power", but more moderately describe unlawfuljudicial action as an "error of law". Interestingly, too, the growing number of judges (who are disposed towards adoption of a constitutional Bill of Rights frequently place I

emphasis on the influence which the executive has in relation to parliament and thelegislative agenda.4o

There is no a priori reason to assume that administrators are bent on subverting :either the public interest or the rights of individuals. There is certainly a risk of that \happening, but no reason to assume that it is pervasive. Nor does the case law I

convincingly bear out any such fear. Unlawful action stems in most instances from I

administrative oversight, or from a difference in policy or statutory interpretation. I

Australia is fortunate in having a comprehensive administrative law system that I

establishes a variety of mechanisms that have been largely effective in controlling:executive behaviour. To super-impose upon that system a philosophy that is i

antagonistic to executive power would be unnecessary.

The expanding context for statutory constructionThere is a developing trend by which courts in construing legislation look beyond its i

terms to extrinsic notions that are said to bear upon its interpretation. It is reasoned I

that this was parliament's expectation, but, more accurately, it exhibits the strength oflthe common law tradition at work.41 The usual reason for adverting to the three~

extrinsic concepts discussed below is to bridle the scope of executive discretion.

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Security (1995) 38 ALD 169 (as an aspect of merit review, it is incumbent on a departmentto provide appropriate assistance to a client with poor English).For example, Buksh v Minister for Immigration, Local Government and Ethnic Affairs (1991) 10:;ALR 647 at 656, reversed (1992) 26 ALD 399. See also Skidmore v Minister for Immigration,Local Government and Ethnic Affairs (1992) 34 FCR 59 at 70; Premelal v Minister fOilImmigration, Local Government and Ethnic Affairs (1993) 41 FCR 117 at 136-142; Phillips rDepartment of Immigration and Ethnic Affairs (1994) 48 FCR 57 (discussed in texaccompanying n 96); and Ozmanian v Minister for Immigration, Local Government and Ethni(Affairs (1996) 41 ALD 293 at 324.For example, Sir Anthony Mason, "A Bill of Rights for Australia?" (1990) 5 Aust Bar Rev 7~

at 81; Justice M Kirby, Address to "Public Seminar: A Bill of Rights for the ACT" (Record aProceedings, 1994) at 9; Justice J Toohey, "A Government of Laws, and Not of Men?" (19934 PLR 158 at 173; Justice M Wilcox, An Australian Charter of Rights? (1993). See also SiGerard Brennan, "Courts, Democracy and Law" (1991) 65 ALJ 32 at 35, writing of "the ris~

to democratic freedom" posed by executive influence; and the recent publication of a dra~

Australian Charter of Rights and Freedoms by a Working Group of the Law CouncilAustralia, Australian Lawyer (May 1995). Cf Sir Harry Gibbs, "The Constitutional Protectioof Human Rights" (1982) 9 MULR 1; and Sir Harry Gibbs, "A Constitutional Bill of Rights.(1986) 45 AJPA 171.For example, Justice Finn, "Controlling the Exercise of Power" (1996) 7 PLR 86 at 9concluding that the value system and moral vision of the common law is "most starkly .evidence when it confronts the phenomenon of power".


International conventionsThe contemporary importance to Australian administrative law of internationalconventions was vigorously captured by the following remark of Mason CJ andDeane Jin Minister for Immigration and Ethnic Affairs v Teoh:

[R]atification by Australia of an international convention is not to be dismissed as amerely platitudinous or ineffectual act, particularly when the instrument evidencesinternationally accepted standards to be applied by courts and administrative authoritiesin dealing with basic human rights affecting the family and children. Rather, ratificationof a convention is a positive statement by the executive government of this country to theworld and to the Australian people that the executive government and its agencies willact in accordance with the Convention.42

The force of that principle is reflected in many different ways. In Teoh it was heldthat the ratification of a convention creates a legitimate expectation for Australians thatrights envisaged by the convention will be safeguarded in domestic decision-making.In the result, a deportation decision made against Mr Teoh was a breach of proceduralfairness due to the failure of the decision-maker to bring to Mr Teoh's attention that hisseparation from his children in Australia would clash with the Convention on the Rightsof the Child. A related implication of Teoh is that in time a convention will probably beregarded as a relevant consideration which an administrator is obliged to considerbefore making an adverse decision.43

Conventions can likewise be influential in defining the standards of administrativebehaviour that are required by "Wednesbury unreasonableness", a point recognised inPremelal v Minister for Immigration, Local Government and Ethnic Affairs.44 There, JusticeEinfeld held that unreasonableness encompasses the recognition by a decision-makerof fundamental human rights (in addition to concepts of proportionality, consistencyand le~al certainty). The same reasoning is reflected in leading cases like Dietrich andMabo,4 affirming that conventions can be a concrete indication of contemporary valuesthat should influence the development of the common law.

The utilisation of conventions in this manner has not escaped criticism.46 One line ofargument is that the legal significance of ratification has been overstated. It is said to be

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(1995) 183 CLR 273 at 291. See Sir A Mason, "Influence of International and TransnationalLaw on Australian Domestic Law" (1996) 7 PLR 20; K Walker, "Treaties and theInternationalisation of Australian Law" in C Saunders (ed), Courts of Final Jurisdiction: TheMason Court in Australia (1996); M Allars, "One Small Step for Legal Doctrine, One GiantLeap Towards Integrity in Government" (1995) 17 Syd L R 204; and A Twomey, "Ministerfor Immigration and Ethnic Affairs v Teoh" (1995) 23 F L Rev 348.Cf Kioa v West (1985) 159 CLR 550. See also M Taggart, "Legitimate Expectation andTreaties in the High Court of Australia" (1996) 112 LQR 50; P Bayne, "Administrative law,human rights and international humanitarian law" (1990) 64 ALJ 203; and R v Secretary ofState for the Home Department; ex p Brind [1991] 1 AC 696.(1993) 41 FCR 117.See notes 15 and 16. See also Environment Protection Authority v Caltex Refining Co Pty Ltd(1993) 178 CLR 477 at 499 per Mason CJ and Toohey J ("international law ... provides animportant influence on the development of Australian common law, particularly inrelation to human rights").For example, the dissenting judgment of McHugh J in Minister for Immigration and EthnicAffairs v Teoh (1995) 183 CLR 273; Senate Legal and Constitutional Legislation Committee,Report on the Administrative Decisions (Effect of International Instruments) Bill 1995;H Burmester, "The Teoh Decision - A Perspective from the Government Service" (1995) 5


primarily an international and a political gesture, and is not meant to cause a radicalchange in constitutional relations within a country. The creation of domestic rights andresponsibilities is the responsibility of parliament, not the executive in the conduct ofinternational relations. The other line of criticism is that conventions should beconfined to the more established and limited purpose of constituting a benchmark i

which farliament is presumed to have respected in the event of ambiguity in a •statute. 7 Conventions are not meant to serve more widely as a benchmark foracceptable standards of administrative decision-making. To follow that path, it is )argued, is to erect standards for administrative validity that are inappropriately vague :and uncertain.

ProportionalityIn Minister for Resources v Dover Fisheries Pty Ltd,48 Gummow J observed that "in I

Australia the proportionality doctrine has taken root", having "entered the stream of I

the common law from Europe and, in particular, from the jurisprudence of the Court of I

Justice of the European Communities and the European Court of Human Rights".Burmester and Bezzi49 have chronicled the Australian acceptance of proportionality in I

a variety of situations, including in criminal law, as a criterion for measuring the ~

appropriate severity of a sentence;50 in compensation law, for measuring the:reasonable level of damages;51 and in constitutional law, as a test for deciding whether I

Commonwealth legislation is reasonably and appro~riatelyadapted to achieving the.ends that lie within the limits of constitutional power. 2

The application of the principle of proportionality in administrative law is not fully!settled. There is a growing tendency to use the language of proportionality as a test forithe validity of subordinate legislation made pursuant to a power that designates arpurpose for which legislation can be made. Thus, in South Australia v Tanner,53 inlconstruing a statutory power to make regulations for preventing pollution in a watelrcatchment area, the High Court inquired "whether the regulation is capable of bein/,considered to be reasonably proportionate to the pursuit of the enabling purpose". /This use of proportionality has been explained as a logical expression of the orthodo;'€

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AIAL Forum 6; J McMillan, "Teoh, and Invalidity in Administrative Law" (1995) 5 AlAI!Forum 10; G Evans, "The Impact of Internationalisation on Australian Law: 1Commentary" in C Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australi,(1996).For recent examples of conventions being used in this way, see Chen v Minister foImmigration and Ethnic Affairs (1994) 123 ALR 126; Young v Registrar, Court of Appeal (No 3(1992) 32 NSWLR 262; Director of Public Prosecutions v Serratore (1995) 132 ALR 461; RZulman and Collector of Customs (1995) 38 ALD 427. See also Gerhardy v Brown (1985) 15CLR70.(1993) 116 ALR 54 at 64-65. See also the analysis by Kirby P in New South Wales v MacquarBank Ltd (1992) 30 NSWLR 307.H Burmester and M Bezzi, "Proportionality: A Fashionable and Dangerous Doctrine, or aEssential Safeguard Against Abuse of Power?" (paper delivered to AIAL National ForuSydney, April 1996).Veen v The Queen [No 21 (1988) 164 CLR 465.Carter Corporation v Medway (unreported, NSW Court of Appeal, 12 July 1995).Davis v The Commonwealth (1988) 166 CLR 79 at 100.(1989) 166 CLR 161.Ibid at 165 per Wilson, Dawson, Toohey and Gaudron JJ.


judicial task of construing a statute and identifying the purpose for which decisions areauthorised to be made - "the object is to find the limit set by the legislature".55

The unresolved issue is whether proportionality is an independent test for thevalidity of subordinate legislation and administrative action. Can a court make adeclaration of invalidity where in its assessment the burden imposed by a decision isexcessive or a disproportionate method of administering a statute? There is growingsupport for this approach, both in case law and in academic writing.56 The principalarguments in support are that proportionality is a valuable check on arbitrary decisionmaking, and a useful concept for giving meaning and substance to the circularprinciple that an exercise of power may be "so unreasonable that no reasonable personcould have so exercised the power".57 The opposing view is that standards of validitythat are applied independently of statutory construction are apt to conceal anotherpremise, namely a judge's view of the merits of the decision under challenge.58

Proportionality is prone to that danger, for the judicial comparison of means and endsmust be preceded by the judge'S evaluation of the harm caused by the decision and theimportance of the end sought to be achieved by the decision-maker.59

Rule o/lawThe rule of law has long been accepted in Australia as a basic legal value, even animplicit constitutional assumption.60 The special relevance of the concept to public lawis the insistence that public officials act in accordance with the law and can point toexplicit statutory authority to support an exercise of power that is coercive, punitive orintrusive.61 There has been a regular application of that demand in recent cases.

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Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54 at 74 per Gummow J. Seealso Cooper J in Dover Fisheries, ibid; Mahoney J in New South Wales v Macquarie BankLimited (1992) 30 NSWLR 307; Minister for Primary Industries and Energy v Austral FisheriesPty Ltd (1993) 112 ALR 211 at 214; Bienke v Minister for Primary Industries and Energy (1996)135 ALR 128.For example, Edelsten v Wilcox (1988) 83 ALR 99 (an order to a taxpayer to pay, in effect,100% of his income in settlement of a tax liability was declared to be unreasonable);Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J (suggestingthat procedural fairness "requires a minimum degree of 'proportionality' "); M Allars,Introduction to Australian Administrative Law (1990) at para 5.57; J Jowell and D Oliver,"Proportionality: Neither Novel Nor Dangerous" in Jowell and Oliver (eds), New Directionsin Judicial Review (1988) 51.Administrative Decisions Gudicial Review) Act 1977 (Cth), s 5(2)(g), capturing thestandard stated by Lord Greene in Associated Picture Houses Ltd v Wednesbury Corporation[1948] 1 KB 223 at 230.For example, criticisms made by Lord Lowry in R v Secretary of State for the HomeDepartment; Ex parte Brind [1991] 1 WLR 588; and S Boyron, "Proportionality in EnglishAdministrative Law: A Faulty Translation?" (1992) 12 OJLS 237.M Aronson and B Dyer, Judicial Review ofAdministrative Action (1996) at 378-379.Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 193 per Dixon J. See alsoS Bottomley, N Gunningham, and S Parker, Law in Context (rev ed 1994), Ch 2.See also Justice J Toohey, "A Government of Laws, and not of Men?" (1993) 4 PLR 158 at174, extolling "the efficacy of the rule of law as a means both of protection against themisuse of legislative and executive power and of promotion of fundamental rights andprinciples"; and North Ganalanja Aboriginal Corporation v Queensland (1996) 40 ALD 129 at176 per Kirby J.


Ridgeway v R62 was a dramatic and controversial illustration of the principle. TheCourt excluded evidence of a controlled heroin importation involving the Australian I

Federal Police, leading to the defendant's conviction being quashed. The public policy I

justification for excluding the evidence was described by Mason CJ, Deane andDawson JJ as "grave and calculated police criminality ...[and the] absence of any realindication of official disapproval or retribution." They added: "[T]he courts have no I

choice but to set their face firmly against grave criminality on the part of anyone,regardless of whether he or she be government officer or ordinary citizen. To do i

otherwise would be to undermine the rule of law itself."63Two other cases illustrate the rule of law being used in a similar way. In Kelson v I

Forward,64 it was held that there were "clear rule of law reasons" why the Court should I

strictly confine an inquiry by the Merit Protection Review Agency to the terms of II

reference defined in a Ministerial reference to the Agency: "Public officials, no matter I

how well intentioned, cannot be permitted to trespass upon the rights and interests of I

others save where they have lawful authority to do so."65 In the second illustration, I

Challenge Plastics Pty Ltd v Collector of Customs,66 the Court reversed the usual principle!that administrative acts are presumed to be valid and that the onus lies on the party I

challenging them. Guided by the rule of law principle that an unauthorised entry by I

government officials on to private property would otherwise be invalid, the Court held I

that it was for a government agency to establish the relevance of documents which it I

had collected during an authorised investigation.

Expansion of natural justiceMore than other grounds of review, natural justice requires special treatment in any I

analysis of recent trends in judicial review. It continues to be the ground mostlfrequently relied upon by plaintiffs and seemingly the most frequently invoked bylcourts in reaching a finding of invalidity.

Some of the recent cases clarify the application of the ground in new situations,while many other cases provide familiar illustrations of settled principles.67 The

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(1995) 184 CLR 19.Ibid at 57-58. Cf the dissenting judgment of McHugh J, arguing that the illegal operatiorwas conceived and doggedly pursued by Ridgeway, and that police condonation was 0

reduced significance.(1995) 39 ALD 303 at 326 per Finn J.Ibid.(1994) 126 ALR 731.Recent interesting cases include: Chen Zhen Zi v Minister for Immigration and Ethnic Affair,(1994) 121 ALR 83 (an oral hearing is not required as a general rule in refuge4determination, but may be required in exceptional situations); O'Neill v Mann (1994) 12~

ALR 524 (a substantial oral hearing of an adversarial nature would be required tterminate the appointment of a magistrate); Chu Sing Wun v Minister for Immigration, LocGovernment and Ethnic Affairs (1993) 118 ALR 345 (in the case of confidential material, it .sufficient that a person is told of the essential features); Gamester Pty Ltd v Lockhart (199112 ALR 623 (where a party fails to use the opportunity available to present evidence ansubmissions in support of a contention, the judge is not obliged to search for evidencesupport the contention); Powerlift (Nissan) Pty Ltd v Minister for Small Business, Constructiand Customs (1993) 113 ALR 339 (the right to be informed of the issues in dispute does ninclude a right to know of the tentative views of the decision-maker); In the Marriage 0

and K A Zantiotis (1993) 113 ALR 441 (where a decision is based in part on the judg


general insights that one can perhaps draw from the spread of litigation is that therecognition of natural justice in executive decision-making is neither as "natural" nor assettled as administrative lawyers might hope. Judging too by the great variety of issuesthat arise for determination, there is reason for thinking that the law on such a farreaching procedural obligation will never be fully worked out. Aspects of the recentcase law that warrant separate examination concern the definition of when naturaljustice applies, and the scope of the procedural obligations to be observed. In bothrespects there has been an appreciable expansion of the doctrine.

Extension of the circumstances in which a natural justice obligation arisesHistorically, what distinguished natural justice from other grounds of review is that itsapplication was more confined, to situations in which administrative action threatenedto deprive a person of an existing legal right or interest.68 Extension of the obligation tosituations in which less tangible interests are threatened can be traced in Australia totwo main factors: acceptance of the notion that natural justice applies where alegitimate expectation is threatened;69 and preparedness to apply the obligation toimmigration decision-making.70 Some judges have since expressed their preference for

68'69

70

observation of the demeanour of a family member, the parties should have had theopportunity to address the court on that issue); Marelic v Comcare (1993) 121 ALR 114 (theAAT should as a general principle follow the rule in Browne v Dunn, that it should informcounsel of the AAT's intention to rely upon its own observations of a witness); Mok vMinister for Immigration, Local Government and Ethnic Affairs (No 1) (1993) 47 FCR 1, onappeal (1994) 127 ALR 223 (a refugee claimant should have been informed that thedecision-maker was relying upon a Departmental report on conditions in Cambodia);Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 127 ALR 699 (the decision-makerwas not obliged to disclose his or her provisional views or mental processes, but wasrequired to disclose adverse material gained from other sources, critical issues that werenot apparent from the statute, and adverse conclusions that were not obviously open onthe known material); Hodginkson v Companies Auditors and Liquidators Disciplinary Board(1994) 127 ALR 741 (consistently with natural justice, it was sufficient that the Board'senquiry had been outlined broadly, not that there was a particularised statement of thefacts relied upon); Easton v Griffiths (1995) 130 ALR 306 (natural justice did not requirepayment of a party's legal expenses, to facilitate representation); Bunnag v Minister forImmigration and Ethnic Affairs (1993) 124 ALR 383 (natural justice does not require that aperson be cautioned about the possible adverse consequences that could stem from aninterview); Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 119ALR 342 (the obligation of disclosure extends to all the adverse allegations in thepossession of a department, not just those which it perceives as relevant to the decisionwhich it has to make); Melbourne Pathology Pty Ltd v Minister for Human Services and Health(1996) 40 ALD 565 (no obligation to observe natural justice in making delegated legislation,but an obligation to observe it did exist in applying the legislation in a particular case);Botany Bay Council v Minister for Transport (1996) 41 ALD 84 (decision to re-open Sydney'sEast-West runway not subject to natural justice obligation, because the decision affectedthe public generally); Stephenson v Human Rights and Equal Opportunity Commission (1995)41 ALD 229 (not necessarily a breach of natural justice for a court to rely on cases notraised by the parties during the hearing).For example, McInnes v Onslow-Fane [1978] 3 All E R 211.Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; Haoucher v Ministerfor Immigration and Ethnic Affairs (1990) 169 CLR 648 (see particularly discussion byMcHugh]).Kioa v West (1985) 159 CLR 550.


a much broader principle, that natural justice should apply universally to alladministrative decision-making.71 While there is no formal acceptance of that view,72recent developments demonstrate its influence at work. Mention will be made here ofthree such cases, each concerned with legitimate expectation, that illustrate in differentways how pervasive and far-reaching the obligation has become.

Less controversial, but no less important, was Commissioner for ACT Revenue v I

Alphaone Pty Ltd,73 a decision of the ACT Supreme Court. The Court held that therewas an obligation to observe natural justice in deciding an application for a licence to '[sell "X-rated" videos. It was acknowledged that natural justice is less likely to apply to I

the processing of applications, but the distinguishing feature in Alphaone was that the I

only statutory ground for denial of a licence was that a person was not "fit and proper".This took the applicant's interest beyond the realm of "hope" to the field of II

"expectation".

The significance of the case lies in the example that it provides of how simply I

natural justice can be applied to the processing of applications, which is one of the high I

volume areas of administrative activity, encompassing applications for employment, I

grants, visas, licences, benefits, and approvals. Many administrative powers are today I

confined by statutory or administrative criteria that reduce the scope for residual I

discretionary judgment in refusing an application. It is only a short step in many Iinstances to apply the language of expectation to the perspective of the applicant.

At the other extreme - in terms of controversy - was another expectation case I

discussed earlier in this paper, Minister for Immigration and Ethnic Affairs v Teoh.74 There I

it was held that the ratification by Australia of an international convention provided an i

adequate foundation for a legitimate expectation that administrative decision-makers i

would act in conformity with the convention. A decision-maker proposing to act I

inconsistently should first give a person notice and an adequate opportunity to argue!against that course, regardless of whether the person knew of the convention or hadlreferred to it in earlier submissions. The full implications of the Teoh decision forinatural justice principles are likely to take some time to be settled. The ultimate issue iSiwhether the Parliament will proceed with the initiative of the former LaborlGovernment and enact legislation to overturn the decision.75 Even if that course iSItaken, interim questions that may need to be resolved include whether the legitimateexpectation has effectively been displaced by a joint ministerial statement issued soon l

after the decision,76 whether the expectation can spring from conventions other thanl

71

72

73747576

Deane J in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 65:has described this approach as "conceptually more satisfying". See also Century Metals antMining N L v Yeomans (1989) 100 ALR 383 at 409 (Full Court) - "procedural fairness ha:been developed by the judges, in an attempt to shield from unfairness those potentiall~

affected by the exercise of certain legal, including statutory, powers".For criticism of the "universal implication" approach, see J McMillan, "Development;under the ADJR Act: the Grounds of Review" (1991) 20 F L Rev 50 at 70-74.(1994) 127 ALR 699.(1995) 183 CLR 273.See Administrative Decisions (Effect of International Instruments) Bill 1995 (Cth).Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the AttorneGeneral, Michael Lavarch (10 May 1995). See, however, Department of Immigration anEthnic Affairs v Ram (1996) 41 ALD 517, suggesting that the "executive indication to t


the Convention on the Rights of the Child, and whether an expectation arising fromratification of a treaty by the Commonwealth Executive can fetter the powers ofindependent statutory authorities and State and Territory government agencies.

A further case which has attracted little comment but which has importantimplications for government agencies is Consolidated Press Holdings Ltd v FederalCommissioner of Taxation.77 The Federal Court held that a taxpayer had a legitimateexpectation arising from the secrecy provisions of taxation legislation that informationprovided to the Tax Office would not be divulged to outsiders. The Tax Office wasobliged accordingly to provide a hearing to a taxpayer before engaging a privateaccountant to assist the Office in the investigation of the affairs of the taxpayer.

It is surprising, one might think, that natural justice should require a person to beheard on the staffing choices to be made by an agency. Engagement of outside staff iscommon (should a hearing equally be provided before external legal advice isobtained?) and may possibly increase if there is a resistance in government tomaintaining a large and permanent public sector. Consolidated Press also raises the issueof whether other procedural choices made by an agency could attract a natural justiceobligation,78 for example, as to the discretionary selection of files for auditing orinvestigation. The implications are profound.

The scope ofprocedural fairness

From the time that the language of "procedural fairness" began supplanting the moretraditional expression "natural justice",79 there has been a steady expansion of theprocedural obligations beyond those to which the doctrine was customarily confined,the hearing rule and the bias rule. An early extension in Australia was the enunciationof the probative evidence rule, requiring that an adverse finding of fact be supported

7778

79

contrary" acknowledged by the Court in Teoh, referred to a statement made at the time ofratifying a treaty, and not an announcement like the Joint Statement made some time after.(1995) 129 ALR 443.A similar ruling was made by the High Court (Toohey J dissenting) in Johns v AustralianSecurities Commission (1993) 178 CLR 408. It was held that the ASC was obliged by naturaljustice to give a hearing to Johns before releasing to a public session of a royal commissionthe transcripts of a private examination of Johns conducted by the ASC. See also Ozmanianv Minister for Immigration, Local Government and Ethnic Affairs (1996) 41 ALD 293(department obliged to obseve natural justice in deciding whether to refer a case to aMinister, even though the statute provided that the Minister had no obligation to make adecision). Compare Minosea Pty Ltd v Australian Securities Commission (1994) 35 ALD 493, inwhich Lindgren J held that the ASC was not obliged by natural justice to provide a hearingto a bank before issuing a notice that required the bank to produce documents for aninvestigation, contrary to the obligation of confidentiality the bank would otherwise oweto the customer the subject of the investigation. Further, contrast A v Marsh (1995) 38 ALD566 (Veterans Review Board not required as a general rule to provide a hearing to aveteran before exercising the power to request further information from the Department)and A v Veterans Review Board (1995) 38 ALD 315 (obligation imposed as an exception tothe general rule).See Kioa v West (1985) 159 CLR 550 at 585 per Mason J, "[T]he expression 'proceduralfairness' more aptly conveys the notion of a flexible obligation to adopt fair procedureswhich are appropriate and adapted to the circumstances of the particular case".


by rationally probative evidence and not merely raised as a matter of suspicion orspeculation.80

A later extension (which has been affixed as well to unreasonableness81) is the duty I

of inquiry. A question is raised about the duty later in this paper,82 but the gist of it is I

that an agency may shoulder part of the burden to assemble relevant information !

before an adverse decision is made. This qualifies the conventional wisdom that a I

person who claims that information is relevant and should be considered bears theonus of placing it before the decision-maker.83 Surprisingly, too, the duty has been \imposed by the Federal Court even in situations where a person has been legally !

represented in dealings with a government agency.84 Three typical examples of theduty taken from recent cases are: Minister for Immigration, Local Government and EthnicAffairs v Mok Gek Bouy,85 suggesting that a department had an obligation to inquirewhether circumstances had changed in the four months since the writing of a report on I

which the department was relying concerning conditions in another country; Fuduche v !

Minister for Immigration, Local Government and Ethnic Affairs,86 holding that it was notrational for a decision-maker simply to brush aside expert evidence given by a I

psychiatrist of the special relationship between two relatives, in favour of a theory held I

individually by the decision-maker; and C v T,87 holding that a military inquiry into I

sexual harassment should have obtained the transcript of evidence on the same matter I

given to a Medical Practitioners' Disciplinary Tribunal.The administrative obligations that spring from natural justice may yet extend I

further. Justice Deane expressed the view that it was an obligation to act "rationally I

and reasonably", and encompassed the "Wednesbury principles".88 There is also a I

reference in the Federal Court decision in Teoh to natural justice as a "duty to effect I

80

818283

84

85868788

For example, Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 690 per I

Deane J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J; ;Mahon v Air New Zealand Ltd [1984] AC 808 at 821. Note, however, that the High Court has i

not confirmed this principle - see text accompanying n 171.Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 at 563.Text accompanying notes 177-181.For exalnple, Videto v Minister for Immigration and Ethnic Affairs (1985) 69 ALR 342 and IElbourne v Minister for Immigration, Local Government and Ethnic Affairs (1991) 22 ALD 211 at\212. Other illustrations of the duty being imposed include Luu v Renevier (1989) 91 ALR 39; I

Tickner v Bropho (1993) 114 ALR 409; and Lek v Minister for Immigration, Local Government!and Ethnic Affairs (1993) 117 ALR 455. Cf Enichem v Anti-Dumping Authority (1992) 111 ALR:178 (an agency is not obliged to deal with every avenue of inquiry suggested by a party);;Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health I

(1995) 128 ALR 238 (no obligation to investigate whether approval of drug would belcontrary to State criminal law); and Minister for Immigration and Ethnic Affairs v Teoh (1995)1183 CLR 273 at 289-290 (per Mason CJ and Deane J, doubting if the duty of inquiry was aniaspect of natural justice), at 302-303 (per Toohey J, imposing such a duty).For example, Luu v Renevier (1989) 91 ALR 39, and Teoh v Minister for Immigration, Local!Government and Ethnic Affairs (1994) 121 ALR 436 (Full Ct, Fed Ct).(1994) 127 ALR 223 at 249-250.(1993) 117 ALR418.(1995) 58 FCR 1.Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367.


good administration".89 While such all-encompassing obligations have not beenconfirmed - and, given their vagueness and elasticity, may never be - there areisolated instances of this approach taking root. An illustrative example is Hamilton vMinister for Immigration, Local Government and Ethnic Affairs.9o There it was held thatnatural justice requires that there be consistency of treatment by a department indealings with the public, for example, in implementing a standardised procedure tomake explanatory notes available to applicants.

A danger which lies in these developments is that natural justice can itself becomediminished if it is overloaded.91 That a decision-maker should be unbiased and that anaggrieved person should be given a hearing are norms of timeless relevance toadministrative justice. Inculcating those principles in administrative culture is aperpetual challenge that becomes harder, not easier, if the simplicity of the instructionis clouded by the complexity or subjectivity of the lesson. What constitutes "goodadministration" or "fair procedure" may produce a clear-cut answer in some situations,but not all. Often it will be a matter of individual opinion that takes into accountvariables like resources, program objectives, time, and patterns of behaviour of allrelevant parties. To fashion a legal standard that is so pliable may not move us farbeyond the realm of subjective definition of fair administrative procedure.

Institutional biasThe bias rule of natural justice has traditionally been a stable principle, undergoinglittle doctrinal change over the decades. But a possible extension raised in Minister forImmigration, Local Government and Ethnic Affairs v Mok Gek Bouy92 could have farreaching implications for executive decision-making.

A basis for challenging the validity of a denial of refugee status was that decisionmakers within the Department were tainted by widely-reported remarks made by thePrime Minister that the rash of Cambodian refugee claims was prompted by economicand not political concerns and should be resisted by the Government. Other evidencebefore the Federal Court indicated that the individual decision-maker, while aware ofthose remarks, had gone about applying the criteria for refugee determination and hadnot displayed actual bias. The Court dismissed the bias claim on the basis of the lapseof over two years between the Prime Ministerial statement and the decision, but thepoint of future interest was the view of the Full Court that in a situation such as this afinding of apprehended bias infecting the decision-making process of the Departmentcould be made.93 To displace that implication, corrective action may need to be takenat a senior level within the Department to distance itself from the inflammatoryremarks of senior Ministers and to reinforce the obligation of decision-makers toperform their function lawfully.

89

9091

9293

Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 121 ALR 436 at452 per Lee J.(1993) 48 FCR 20; on appeal (1994) 53 FCR 349.In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291, Mason CJand Deane J criticised the Federal Court judgments of Lee and Carr JJ, for transformingnatural justice from a duty of procedural fairness into a doctrine of substantive fairness, byrequiring that a decision-maker was obliged to decide consistently with the Convention.(1994) 127 ALR 223.Ibid at 245-246.


A criticism that can be made of this approach is that it fails to give adequate orcredible weight to the general context for administrative decision-making. In a system I

that functions according to the precepts of democratic and responsible government,surely there can be no legal impediment to elected Ministers expressing their personalviews on matters of social and international policy. The law can deal adequately withany attempt by Ministers to intimidate decision-makers.94 To extend the concept ofapprehended bias to cocoon the administration from public affairs and government II

policy seems unwarranted. How different is this situation from that in which judgesdeliver academic papers outlining their attitude on social issues like the protection ofindividual rights that can later be an issue arising before them in court?

Even on technical grounds the approach in Mok is worrying. The bias rule has nevertaken objection to a decision-maker having opinions or preconceived views,95 provided I

there is no basis for a reasonable apprehension that the person has not applied an I

unprejudiced mind in coming to the decision in the individual case. In short, the bias i

rule looks at the decision, not at the institution.Mok might be ignored as an isolated pronouncement, except that the same thinking

underlay at least one other recent decision, Phillips v Disciplinary Appeal Committee of the I

Merit Protection Review Agency.96 Mr Phillips was an officer of the Department who wasthe subject of a disciplinary inquiry arising from public statements he had made thatwere critical of the Department. The Court held that the inquiry was flawed by reason I

of the participation of a Departmental nominee on the inquiry panel, as envisaged by I

the legislation. Although there was no evidence to suggest actual bias or animosity by I

the Departmental nominee, it was enough that he came from a Department in which I

senior officers were evidently troubled by Mr Phillips's behaviour. The Court reasoned I

that members of the public would reasonably apprehend bias by supposing that the ~

Departmental nominee had career aspirations and a desire to be granted a public I

service efficiency bonus,97 and would thus lean towards the views of his senior officers, I

to the detriment of Mr Phillips. This conclusion may be heartening for those who seek a I

legal justification for defying their superiors, but it hardly does justice to the I

professionalism of the public service.

Judicial review of the investigatory and preparatory side of government decisionmaking

Outside the familiar category of immigration litigation, the heartland of judicial review I

is probably the inquisitorial and investigatory stages of administrative decisionmaking. It is at the inquiry stage - in areas like corporate regulation, personnel!discipline, criminal investigation and taxation inspection - that a large number of:judicial review challenges occur each year. The grounds of challenge that are relied I

upon are equally diverse, raising allegations routinely of defects in notices and I

warrants, breach of procedural fairness by the investigation officers, disregard of

94

95

9697

For example, ADJR Act 1977, s 5(2)(e) - "an exercise of a personal discretionary power atlt~e direction or behest of another person".Vakuata v Kelly (1989) 167 CLR 568; Re Finance Sector Union of Australia; Ex parte IlIatoni(1992) 107 ALR 581; and R v Commonwealth Conciliation and Arbitration Commission; Ex partEAngliss Group (1969) 122 CLR 546.(1994) 34 ALD 758.Ibid at 769.


presumptive rights against self-incrimination, consideration of irrelevant matters anddisobedience of limited terms of reference.

There is a well-developed jurisprudence in which courts have articulated thecompeting concerns that must be balanced in resolving these challenges.98 On one sideof the balance lies the interests of a person under investigation, in preventing injury totheir reputation, the exposure of their private affairs to scrutiny by governmentagencies, and their expenditure of time and money in safeguarding their position. Onthe other side of the balance lies the public interest in allowing for the thoroughinvestigation of all suspicion of wrongdoing. There is also the practical considerationthat effective investigation commonly needs room in which to move, and to explorehunches and concerns.99 Litigation at a premature stage, even if unsuccessful, canstultify an inquiry.

It is difficult to trace any clear pattern in recent cases, bearing in mind in particularthe disparity of legal issues that are frequently raised. lOO There are cases in whichnotices and warrants have been construed strictly and narrowly,lOl just as there aresome in which judicial indulgence is more apparent.l02 Agencies like the AustralianSecurities Commission, which attract a growing body of legal challenges, have been assuccessful as often as they have been defeated. l03 The decision in Australian

98

99100101

102

103

For example, Balog v Independent Commission Against Corruption (1990) 169 CLR 625;Independent Commission Against Corruption v Chaffey (1992) 30 NSWLR 21; and Johns vAustralian Securities Commission (1993) 178 CLR 408. Only in exceptional circumstances willa court undertake judicial review of the commencement of criminal proceedings: Smiles vFederal Commissioner of Taxation (1992) 109 ALR 449; Elliott v Seymour (1993) 119 ALR 1(HC), 119 ALR 10 (Fed Ct).Independent Commission Against Corruption v Cornwall (1993) 116 ALR 97.See M Allars, above at 235.F H Faulding and Co Ltd v Federal Commissioner of Taxation (1994) 126 ALR 561 (a noticeissued by the Commissioner, requiring production of documents needed for assessment ofa taxpayer, was invalid because it requested production of documents that would not berelevant to the assessment); Perpetual Trustee Company (Canberra) Ltd v Commissioner forAustralian Capital Territory Revenue (1994) 123 ACTR 17 (a notice requiring a person toattend for examination concerning an enquiry into "the liability of a person under a taxlaw" was defective for not specifying the person whose liability was under enquiry); andCarbone v National Crime Authority (1994) 126 ALR 79 (a search warrant should beconstrued strictly, and it is no answer for a government agency to claim that the defect inthe notice arose from inadvertence or a typing error).Sremcevic v Gurry (1994) 123 ALR 255 (a search warrant need not be drafted with theprecision of an indictment); Deputy Commissioner of Taxation v De Vonk (1995) 133 ALR 303(a court should display caution in undertaking judicial review of a notice to require that aperson attend for examination; judicial review is more appropriate of the conduct of theexamination).For example, Australian Securities Commission v Lucas (1992) 108 ALR 521; Allen, Allen andHemsley v Australian Securities Commission (1992) 27 ALD 296; Mercantile Mutual LifeInsurance Co Ltd v Australian Securities Commission (1993) 112 ALR 463; Whelan v AustralianSecurities Commission (1993) 119 ALR 323; MacDonald v Australian Securities Commission(1994) 120 ALR 515; Deloitte Touche Tohmatsu v Australian Securities Commission (1995) 128ALR 318; Neate v Australian Securities Commission (1995) 132 ALR 413; Deloitte ToucheTohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Ross Tohmatsu) v AustralianSecurities Commission (1996) 136 ALR 453.


Broadcasting Tribunal v Bondl04 went some way to confining the scope of preliminaryadministrative activity that can be the subject of judicial review, yet the preparednessof the High Court in Johns v Australian Securities CommissionlOS to apply the rigour ofnatural justice to conduct occurring at very early stages of an investigatory processprovides a route around that restriction.

The most that can perhaps be said, in attempting to sketch contemporary themes, isthat the majority of challenges to investigatory behaviour that were launched in theearly 1990s seemed to fail, while a surprising number seem to have been successful inthe last 12 to 18 months. It may be that on closer inspection there are explanations thatundermine an anecdotal theory, but some recent Federal Court decisions neverthelessportray a comparatively strict approach taken to the discretionary scope of preliminaryinvestigations.106

In Chairperson, Aboriginal and Torres Strait Islander Commission v CommonwealthOmbudsman,107 Einfeld J held that while the Ombudsman could express opinions onwhether a person was guilty of an offence, it was not for the Ombudsman to report in away that suggested a definitive finding of guilt. A statement by the Ombudsman thatthere was "prima facie" evidence of guilt was accordingly invalid. Given that theadvisory and investigatory nature of the Ombudsman's role is well-known ingovernment circles, if not in the community generally, it is surprising that the validityof an investigatory report should tum on such fine differences in language.

Kelson v Forwardl08 is an example of a different kind. A few different faults were 'found by Finn Jwith an inquiry and report prepared by the Merit Protection ReviewAgency (MPRA) into allegations of workplace harassment by senior officers in the 'Australian War Memorial. At the heart of the problem was that the MPRA undertook abroad-ranging inquiry that was guided in part by its statutory objects, which includedthe promotion of sound personnel management. The Court, by contrast, ruled that theinquiry should have been strictly confined by the terms of refer~nce cited in aMinisterial letter which initiated the inquiry (and which referred to workplace'harassment).109 On one view what the MPRA did was quite defensible, both legallyand administratively, given its general responsibilities with respect to personnelmanagement policy and presumably too its reluctance at the commencement of an

104105

106

107108109

(1990) 170 CLR 321. For examples of this decision being applied, see text following n 113.(1993) 178 CLR 408. See also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564(procedural fairness required disclosure by the CJC of an adverse report received during,investigation of an enquiry into possible criminal behaviour).Other recent examples of a strict approach include: MacDonald v Australian Securities:Commission (1994) 120 ALR 515 (notice to produce declared invalid for being expressed tOOlbroadly); R v Elliott (Supreme Court of Victoria, 6 May 1995, unreported - an excess ofpower for National Crimes Authority to collect evidence on offences related to but notthemselves the subject of an authorised investigation).(1995) 134 ALR 238.(1995) 39 ALD 303.The practical result of the Court's finding is that the legal basis for the MPRA's report waseroded, the report languished, and the allegations of workplace harassment wer~

unresolved. In a similar vein is Chapman v Minister for Aboriginal and Torres Strait IslandeAffairs (1995) 133 ALR 74, quashing a report to the Minister by Professor Saunders on thHindmarsh Bridge development proposal, by reason of a natural justice defect in the noticcommencing the inquiry, resulting subsequently in a fresh inquiry and report to thMinister by Mathews J.


inquiry to frame it in narrow, threatening or accusatory terms. This difference ofoutlook on how an investigation should be conducted foreshadowed another findingby the Court that there had been a breach of natural justice consisting in the failure ofthe MPRA to give adequate notice of adverse charges to senior officers of the WarMemorial. The particulars that had been given to them by the MPRA were condemnedas assertive and generalised, reflecting no doubt the preliminary views of the MPRA asto the open-ended direction that the inquiry might take.110

Lastly, in Ebber v Human Rights and Equal Opportunity Commission,lll Drummond Jheld that an inquiry by HREOC into whether there has been unlawful discrimination isan adversarial, not an inquisitorial inquiry. The complainant accordingly has the onusof proving all elements of the complaint, and a complaint should be dismissed at theoutset if there is only a remote possibility of a well-founded claim. The comment tomake on this ruling is that, given that breach of natural justice is probably the mostcommon single ground for challenging investigatory activity, to classify an antidiscrimination inquiry as adversarial in nature can only enhance the scope for legalchallenges.

JUDICIAL REVIEW AND THE RELATIONSHIP OF COURTS TO THEEXECUTIVE

To this point this paper has looked at the principles defined by courts for controllingthe relationship between government and the public. There is another way of lookingat judicial review, by focusing attention on a different relationship, that of the courts tothe executive.

An essential feature of judicial review is that the defendant - the Crown executive- is broadly the same party in each case. The executive, moreover, is not an ordinarylitigant, but is the largest and most active arm of the state, charged with the special roleof administering legislation and carrying out and devising government policy. Thedecisions of courts impact on that process, and create a shifting balance of influencebetween themselves and the executive. The special nature of this relationship isrecognised by both ~arties. Many judges speak of their role in terms of controlling theexercise of power.ll A comparable executive perspective is neatly captured in the titleof a well-known British Civil Service pamphlet, The Judge O'ver Your Shoulder.

Judicial review, accordingly, is not merely a process for adjudicating disputesbetween individuals and the government. It is in addition a concept that defines aspecial relationship of courts to the executive. The courts, moreover, have the exclusivepower to define the relationship, barring legislative intervention. The way in whichcourts have done so is the topic addressed in the remainder of this paper. This is notthe occasion to offer a new theory of judicial review, but rather to look at the waycourts have addressed the issue in recent years. That is done by looking at three recentHigh Court cases that have dealt with different aspects of judicial review: Bond,

110 A further finding, which may independently have provided a sufficient basis for a findingof invalidity, was that the MPRA had declined to adopt the definition of workplaceharassment published by the Public Service Board, and had opted instead for a far broaderdefinition borrowed from another enquiry.

111 (1995) 129 ALR 455.112 For example, Finn J, "Controlling the Exercise of Power" (1996) 7 PLR 86.


defining the range of executive action that is susceptible to judicial review, and the I

stage at which that can occur; Wu, outlining the attitude that a court should bring to the I

task of judicial review; and Craig, defining the scope of judicial review as it applies to I

administrative tribunals. The analysis concludes by examining the distinction betweenjudicial review and merits review, and in particular whether recent developments I

constitute a form of disguised merits review.

Australian Broadcasting Tribunal v Bondl13

It is generally accepted that judicial review should not be an available mechanism in all I

situations to review the legality of administrative activity. There may be a suitable I

alternative method of review. It may be premature for judicial intervention. The I

plaintiff may have an inadequate interest to justify disruption of the administrative 'process. Doubts may otherwise exist about the justiciability or suitability of the !

administrative activity for judicial intervention. The result accordingly is that I

limitations on judicial review are a standard feature both of common law and of I

statutory schemes of review.114

Ideally the criteria defining the scope of judicial review should be free of ambiguity: :it is surely self-defeating if the limits on judicial review themselves become a major I

topic of litigation! It is hard to resist the conclusion that that in fact has happened since ~

the decision of the High Court in 1990 in Australian Broadcasting Tribunal v Bond. The!Tribunal was conducting an inquiry into whether companies with which Mr Alan Bond I

were associated as director and shareholder were "fit and proper" persons to hold a I

commercial broadcasting licence pursuant to the Broadcasting Act 1942 (Cth). The!concern as to fitness arose principally from public comments (made by Mr Bond), i

which suggested that one of his media companies had settled a defamation action I

brought by the Queensland Premier on overly generous terms, to buy influence withrthe Premier. The Tribunal had made a preliminary determination of unfitness against I

Mr Bond and the companies, but had not yet resolved what action should be taken inlrelation to the commercial broadcasting licence. A further hearing was to be held bYIthe Tribunal to resolve that question. Before that could occur, Mr Bond and some of the!companies commenced proceedings, citing 18 separate findings or rulings of theTribunal that were alleged to have legally flawed its inquiry. The High Court held thallonly a few of those actions were properly the subject of judicial review proceedings.,The way in which the Court expressed that conclusion was to say that most of thEactions could not be classified as a "decision" or "conduct" as required respectively bYI

113114

(1990) 170 CLR 321.For example, ADJR Act, Schedule 1, defining "Classes of decisions that are not decisions t<which this Act applies" and s 10(2), conferring a discretion on the Federal Court to refusfan application for judicial review where there is a suitable alternative method of reviewCouncil of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409 per LoreDiplock, defining the attributes that must be present for a decision to qualify as a subjecfor judicial review (eg, a decision empowered by public law that has consequences whicaffect a person); and Minister for the Arts, Heritage and Environment v Peko-Wallsend Lt(1987) 75 ALR 218, discussing the justiciability of Cabinet decisions and decisions made ithe exercise of prerogative powers.


ss 5 and 6 of the ADJR Act.l15 Those terms were defined in the following way byMasonC}:

[A] reviewable "decision" ... will generally, but not always, entail a decision which is finalor operative and determinative, at least in a practical sense, of the issue of fact calling forconsideration. A conclusion reached as a step along the way in a course of reasoningleading to an ultimate decision would not ordinarily amount to a reviewable decision...[T]he concept of conduct looks to the way in which the proceedings have beenconducted, the conduct of the proceedings, rather than decisions made along the waywith a view to the making of a final determination. Thus, conduct is essentiallyprocedural, and not substantive in character.116

In applying those definitions to the facts it was held, by way of example, that thethreshold finding as to Mr Bond's unfitness was not a decision, since he was not thebroadcasting licensee and as an individual was not eligible to hold a licence; whereasthe finding that the companies were unfit by reason of his influence over them was adecision, because this was an essential preliminary finding to any subsequent decisionto revoke or suspend the licences or impose conditions upon them.

This ruling of the Court in Bond has come to dominate federal judicial review.Jurisdictional objections to the competency of ADJR actions are frequent, even if theyare usually unsuccessful.117 It is fair to say that quite a deal of the analysis in the casesleads nowhere. This was apparent even in Bond, where the extended discussion of"decision" and "conduct" ultimately had little bearing on the High Court's conclusionthat the Broadcasting Tribunal had not acted unlawfully. The same pattern can be seenin other areas. Challenges to refugee determinations, for example, are one of themainstays of federal judicial review activity, notwithstanding a rich but ineffectualjurisprudence on when and how a refugee determination (upon which hinges a laterdecision whether to issue a permanent entry permit) can be classified as a "decision".118Quite commonly a judicial finding that one element of a case is not a decision will becounteracted by another finding in the same case that a different element is a decisionor conduct that will provide the jurisdictional support for the action to go ahead.119The terms "decision" and "conduct" can likewise jostle for supremacy: a preliminaryadministrative action which is not a "decision" may yet be "conduct" if it can beportrayed as a breach of natural justice.

115

116117

118

119

Section 5 of the ADJR Act provides that a person may make an application to the FederalCourt to review "a decision to which this Act applies", which is defined in turn in s 3 tomean "a decision of an administrative character made ... under an enactment". Section 6 ofthe ADJR Act provides that a person may seek review of "conduct" engaged in for thepurpose of making a decision to which this Act applies.(1990) 170 CLR 321 at 337 and 342.The few successful cases include: Pegasus Leasing Ltd v Federal Commissioner of Taxation(1991) 32 FCR 158 (advisory letter from Tax Office); Neate v Australian Securities Commission(1995) 132 ALR 413 (a notice requiring a person to "show cause" why a final notice shouldnot be issued); Hutchins v Federal Commissioner of Taxation (1996) 136 ALR 153 (a votingdecision by the Commonwealth as a creditor in a bankruptcy).For example, Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991)102 ALR 339; and Heshmati v Minister for Immigration, Local Government and Ethnic Affairs(1991) 102 ALR 367.For example, Mount Isa Mines Ltd v Marks (1992) 106 ALR 702; Tasmanian Conservation TrustInc v Minister for Resources (1995) 127 ALR 580; Kelson v Forward (1995) 39 ALD 303;Chapman v Minister for Aboriginal and Torres Strait Islander Affairs (1995) 133 ALR 74.


In evaluating Bond it is important to bear in mind that in truth there were two issues I

facing the Court, which tended to be clouded by the single inquiry into whether there I

was a "decision" or "conduct", and have been further confused by subsequent litigation I

applying Bond. Both issues would arise from the circumstance that the Court was askedto review the legality of an administrative process, still incomplete, but incorporating18 separate Tribunal findings and rulings that were alleged to be flawed.

The threshold issue to be resolved was whether the judicial review proceedings hadbeen instigated at a premature and inappropriate stage of the administrative process.There were traces of concern about this issue, in references made to the danger ofjudicial review fragmenting the decision-making process and impairing its I

efficiency.120 The action also arose against a background of growing public criticismthat broadcasting regulation was being impaired by interlocutory litigation under theADJR Act.121 In fact, however, this issue could be simply resolved in Bond, because the !

Tribunal had conceded early on that at least one of its many findings was a "decision" I

which could enliven the Federal Court's jurisdiction.122

The second issue, which occupied the bulk of the judgments, was whether anisolated error committed by the Tribunal at a preliminary stage in proceedings shouldinvalidate a subsequent or final decision which is otherwise faultless. As Toohey andGaudron JJ pointed out:

If the decision is to stand because it is not attended by a reviewable error, review of theconclusions and findings leading to that decision to see if they were attended by someerror which, ex hypothesi, was not carried into the decision so as to render it reviewableis a futile exercise.123

There is also an extended discussion in other judgments of whether judicial review I

encompasses the review of findings of fact, reflecting the circumstance that the !

preliminary findings of the Tribunal that were being challenged in these proceedings i

were mostly of a factual nature.

The ADJR concepts of "decision" and "conduct" are, it will be argued, an imperfect I

tool for resolving either of those questions. Whether judicial review proceedings have!been instituted prematurely will be heavily influenced by whether the administrative ~

process has reached a concluded or operative stage, but little more is to be gained by I

an artificial investigation of whether as a matter of fine statutory analysis there is yet a I

"decision" or "conduct". This is particularly so when often the outcome is that an I

administrative action not challengeable as an ADJR "decision" or "conduct" is:nevertheless reviewable by the Federal Court via a different route, usually s 39B of the I

Judiciary Act 1903 (Cth).124 In the same vein - and somewhat quixotic - is the!

120121

122123124

(1990) 170 CLR 321 at 336-337.See in particular the description of the role of ADJR litigation in converting a projected 15day inquiry by the Australian Broadcasting Tribunal in Perth into a 117-day inquiry, I

involving at least 12 ADJR challenges to procedural rulings by the Tribunal: L Grey, "The~

Impact of Administrative Law in Communications Regulation" in J McMillan (ed)'1Administrative Law: Does the Public Benefit? (1992) 232 at 236-240.(1990) 170 CLR 321 at 374 per Toohey and Gaudron JJ.Ibid at 378.Section 39B confers jurisdiction on the Federal Court to issue certain remedies against "arofficer or officers of the Commonwealth". This supplementary jurisdiction is mostly,invoked in respect of activity that does not arise "under an enactment" (ADJR Act, s 3(1)definition of "decision to which this Act applies"), but it has been invoked in respect 0


decision in New South Wales Aboriginal Land Council v Aboriginal and Torres Strait IslanderCommission,125 holding that a decision by ATSIC declaring policy on land purchaseswas neither a "decision" or "conduct", nor amenable to review under s 39B of theJudiciary Act 1903 (Cth), but was reviewable in the pendent jurisdiction of the FederalCourt. Surely this begs the question of whether judicial review of this policyannouncement was appropriate, which should have been an issue arising commonlyunder all three mechanisms considered by the Court.

The alternative approach is to treat the terms "decision" and "conduct" as essentiallyneutral and easily satisfied. Other powers can then be used by a court to control thecommencement and the impact of proceedings, a point earlier made by the Full FederalCourt in Lamb v Moss, a case effectively reversed by the High Court in Bond:

[T]his court has conferred upon it a wide discretion to grant or refuse relief in aparticular case. It is in the exercise of that discretion that the court will exercise controlover the circumstances in which and the stage at which judicial review will be embarkedupon. Furthermore, it should be understood that the court's discretion is not limited towhat is to occur when it comes to the question of whether to grant or refuse final relief.By s 15 of the [ADJR] Act there is no automatic stay of the operation of a decision uponthe making of an application to the court. It will always be for the court carefully toconsider whether a stay should be granted. One of the matters that will be taken intoaccount is whether the application has been made prematurely.126

The other issue in Bond that became entangled with the definition of "decision" and"conduct" was the relevance of preliminary factual errors to the validity of a finaldecision. This link is best addressed in other ways, some of which are canvassed by theCourt in Bond. Ultimately it is a matter of judgment as to whether there has been anunlawful exercise of power that should be corrected by a court, or merely an instanceof bad administration more suitably addressed by an Ombudsman or merit reviewtribunal. Asking whether the preliminary factual error should be classified as a"decision" does little to inform that judgment. The more important task is to elucidatethe grounds of judicial review in a sympathetic way. For instance, as Mason CJcontended in Bond, care should be taken to ensure that judicial review principles like

125

126

activity that is not a "decision" or "conduct" - eg, El Sayed v Minister for Immigration, LocalGovernment and Ethnic Affairs (1991) 22 ALD 767 (a refugee determination); Harris v Bryce(1993) 113 ALR 726 (proposal by Sex Discrimination Commissioner to investigate acomplaint).(1995) 131 ALR 559. See also Seventh Mingcourt Pty Ltd v Lawrence (1996) 40 ALD 603(though the Minister had not in fact made a decision, she was to be treated as having doneso, because she had purported to do so and had claimed to have done so).(1983) 49 ALR 533 at 557 per Bowen CJ, Sheppard and Fitzgerald JJ (emphasis supplied).M Aronson and B Dyer, Judicial Review ofAdministrative Action (1996) at 54-55 conclude thatthere were relatively few problems arising from the Federal Court's liberal definition of"decision" in Lamb v Moss, and that there was little point thereafter in taking an objectionthat the subject of a challenge was not a decision. There is the further option of amendingthe ADJR Act to extend the powers of the Federal Court to prevent premature litigation, asrecommended by the Administrative Review Council in 1989. The Council proposed anamendment to s 10 of the ADJR Act to confer power upon the Court to refuse to grant anapplication for review that was instituted during the course of proceedings, in order toavoid interference with the due and orderly conduct of the proceedings or because thebalance of convenience so requires: Review of the Administrative Decisions (Judicial Review)Act: the Ambit of the Act (Report No 32, 1989) at paras 359-363.


129

130

127128

"no evidence", "probative evidence" and "error of law" do not become a vehicle forconverting judicial review into a search for errors of fact.

It is also probable that the Court in Bond was seeking to constrain what it perceivedas a tendency for judicial review by the Federal Court to embrace the merits ofadministrative action. In explaining that findings of fact would often not be reviewableas "decisions", the Court noted that these were more sUitab~ reviewed in the meritreview jurisdiction of the Administrative Appeals Tribunal.12 Sir Anthony Mason hasalso written subsequently that the distinction between merit review and judicial reviewunderlies the reasoning in Bond.128 Once again, however, it is questionable whether thisobjective, undoubtedly appropriate, can be achieved by the concept of "decision" - or, I

indeed, by a principle of justiciability. Judicial review is frequently and legitimatelyconcerned with factual determinations. Whether a decision-maker has taken irrelevant :matters into account, failed to look at the merits of a case, or misinterpreted a statute,will often be revealed by the way in which the facts were handled. The objective ofpreserving the distinction between merit review and judicial review is better achievedby directing attention to other issues that are discussed in the final section of this i

paper, principally whether the practical effect of judicial review criteria is to pre-empta discretionary judgment by a decision-maker.

The legacy of Bond is a principle of justiciability that fails in many ways. It does noteffectively control judicial review, because it can be circumvented by alternative I

mechanisms like s 39B of the Judiciary Act 1903 (Cth). It has not been simple in its i

operation, but has given rise to a constant stream of objections and argument, much ofit rather technical and arid,129 and some of it inconsistent and confusing.130 Nor didBond adequately expose for consideration those fundamental questions that are I

inherent in any judicial review scheme, concerning when and at what stage judicialreview will be appropriate. If, as seems likely, the High Court intended in Bond to I

constrain judicial review, the endeavour was largely unsuccessful. Perhaps thatexplains the Court's return to that theme in later cases like Wu and Craig.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang131

The judgments of the High Court in this case are being noted by many observers as arebuke to the Federal Court in its approach to judicial review. In issue was whether adelegate of the Minister had committed an error of law in a decision refusing to acceptthe plaintiffs' claims for refugee status. The delegate in her reasons had explicitlyadopted and correctly enunciated the proper test, viz, whether there was a "real

(1990) 170 CLR 321 at 340-341.Sir Anthony Mason, "Administrative Law - Form Versus Substance" in K Cole (ed),Administrative Law and Public Administration: Form vs Substance (1996) 1 at 2 and 7.For example, see the cases concluding that a resolution of the Australian SecuritiesCommission that litigation should be commenced was not a decision, whereas the action toimplement that resolution and commence the litigation was a decision: Deloitte ToucheTohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Ross Tohmatsu) v AustralianSecurities Commission (1995) 54 FCR 562, (1995) 13 ACLC 783, and (1996) 136 ALR 453.For example, cf Smiles v Director of Public Prosecutions (1992) 107 ALR 439, and Gillis vDirector of Public Prosecutions (1993) 119 ALR 510, concerning whether a decision toprosecute is a decision.

131 (1996) 185 CLR 259.


Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389,407 and429.(1996) 185 CLR 259 at 281 per Brennan CJ, Toohey, McHugh and Gummow JJ. Othercomments of the High Court were equally terse, referring to "what appears to be a falseline of authority" (ibid at 263); the Federal Court was said to have "insufficientlyappreciated" a legislative change (at 264); it read meaning into "innocuous" language (at281); "[t]here is nothing here to suggest" (at 278); "we find it difficult to understand" (at280); and "too long a leap is required"(at 280).Ibid at 295.Ibid at 272. Query whether, in light of Wu, the comment of the decision-maker in Ministerfor Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 281, "that Ms Teoh andfamily are facing a very bleak and difficult future" were Mr Teoh deported, should havebeen accepted as a sufficient indication that the best interests of the children had beenconsidered as a matter of substance? Cf the conclusion to that effect of McHugh J,dissenting, ibid at 320.Ibid at 291.136

133

134135

chance" of persecution on political grounds if the plaintiffs were returned to China.132

The Full Court of the Federal Court (Sheppard, Lee and Carr JJ) nevertheless held thata close analysis of the delegate's reasons showed that she had in truth applied adifferent and impermissible test, viz, whether on the balance of probabilities there wasa risk of persecution. This conclusion was based upon language used by the delegate inher reasons, principally that she "gave more weight" to some information obtained bythe Department about the risk of persecution and that she regarded as "speculative"some of the arguments of the plaintiff.

The High Court agreed that a balance of probabilities test was impermissible andthat speculation could be relevant to the "real chance" test. But those errors, the Courtfelt, had not been committed by the delegate, as a plain reading of her reasons wouldshow:

The delegates should be taken to mean what they have said and a proper construction ofthe reasons does not disclose any surreptitious adoption of a balance of probabilities test.... There is no reason to assume that the delegates of the Minister engage in someartificial and fallacious manner of reasoning...133

The conclusion of Kirby Jin a separate judgment was equally blunt:I do not consider that the impugned language in the reasons of the Minister's delegate, ortheir structure, evinces a legal error on the part of the delegate that warrant an order ofreview. In granting that relief to Mr Wu the Full Court of the Federal Court itself erred.This court should correct the error.134

The High Court went on to elaborate on the proper and limited role of a courtundertaking administrative review. In addition to counselling against blurring thedistinction between judicial review and merit review, the joint judgment of four justicesnoted that "the reasons of an administrative decision-maker are meant to inform andnot to be scrutinised upon over-zealous judicial review by seeking to discern whethersome inade~uacy many be gleaned from the way in which the reasons areexpressed."13 Kirby Jcommented likewise, that a decision-maker's reasons "must beconsidered fairly". He added: "It is erroneous to adopt a narrow approach, combingthrough the words of the decision-maker with a fine appellate tooth-comb, against theprospect that a verbal slip will be found warranting the inference of an error of law".136This admonition, he continued, has particular application to the review of the languageof lay decision-makers, from whom a different mode of expression may be expected.

132


All judges were also critical of submissions to the Court that relied upon concepts moreappropriate to civil litigation than to administrative decision-making, such as i

"evidence", "balance of probabilities" and "onus of proof".137The decision in Wu is a promising foundation for the further development of an I

Australian doctrine or principle of deference to administrative judgment. There are ~

scattered remarks in other cases on the need for judicial restraint in particular I

situations,138 but they fall short of articulating a general theory on whether courtsundertaking judicial review should be prepared to pay deference to administrativejudgment, and if so in what way. It is important to observe that Wu is only a beginning, I

for it discusses only one aspect of decision-making - the final preparation of reasons I

to explain a decision. At many other stages of a decision there are choices to be made in I

which fault can be found by an administrative review body. The other stages includefact-finding, interpretation of legislation and its application to the facts, ascertainingthe weight to be given to government policy, consultation with interested parties, andthe overall conduct of the decision-making process. A theory which articulates morefully the relationship between courts and the executive and the attitude that courts i

should bring to the task of judicial review could play an important function in ensuring :a greater measure of consistency and coherence in judicial review.

Opinions will inevitably differ on whether a theory of deference is needed and how I

far it should go,139 but it has to be said that the facts of Wu provide a compelling:justification for more attention being paid to this issue. The facts reveal that the ,I

delegate's decision on this individual refugee claim was extensive and time-consuming, I

involving a detailed oral interview with the claimant, receipt of information from other I

departments and a non-government organisation on the treatment of returnees to I

China, consideration of the application by a Refugee Status Review Committee which I

included independent membership, re-consideration of the decision within the ~

Department, and the preparation of a 19-page statement of reasons (albeit with some I

standard paragraphs) to explain the decision. It is apparent, too, that the Department I

had given a great deal of thought and attention to the implications of the decision in I

Chan. Ultimately, the High Court ruled that the Department's reading of that decision I

was preferable to that of at least three differently-constituted Full Benches of the ~

Federal Court.140

Another powerful consideration in support of a theory of deference is that Australia I

has a comprehensive system of administrative law which, in addition to judiciall

137138

139

140

Ibid at 282 per Brennan CJ, Toohey, McHugh and Gummow JJ; at 293 per Kirby J.For example, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 at 8-101per Neaves, French and Cooper JJ; Australian Broadcasting Commission Staff Association 1:,

Bonner (1984) 54 ALR 653 at 668-669 per Kirby J; Blackwood Hodge (Aust) Pty Ltd v Collectoflof Customs (1980) 47 FLR 131; McAuliffe v Secretary, Department of Social Security (1992) 2EALD 609 at 616 per Spender, Forster and O'Loughlin JJ; Peverill v Backstrom (1994) 38 ALe14.See P Bayne, "The Court, The Parliament and the Government - Reflections on the ScOptof Judicial Review" (1991) 20 FL Rev 1.The High Court drew attention to two other cases in which the Full Court had adopted thtsame reasoning as in Wu: Minister for Immigration, Local Government and Ethnic Affairs v MoJGek Bouy (1994) 127 ALR 223 (Black CJ, Lockhart and Sheppard JJ); and Chen Ru Mei c

Minister for Immigration and Ethnic Affairs (1995) 130 ALR 405 (Northrop, Spender and LeeJJ).


review, establishes other independent mechanisms for controlling administrativedecision-making. These include merit review by specialist tribunals and investigationof administrative error by the Ombudsman and anti-discrimination agencies. Giventhat setting, the task of maintaining the integrity and legality of administrativedecision-making does not rest entirely on the judicial shoulder. In undertaking judicialreview, courts will inevitably encounter administrative errors and shortcomings, butlack of administrative perfection need not be equated with unlawful decision-making;as Sir Gerard Brennan commented in Quin: "[T]he court has no jurisdiction simply tocure administrative injustice or error".t41 And yet it is hard to find in judicial reviewjurisprudence acknowledgment of the role and existence of other review bodies andthe way in which their functions complement that of the court.142 A recognition of theseparate role to be played by the different review bodies must be the foundation of anydoctrine of judicial deference.

Still on the issue of deference, there is a further aspect of Wu that invites comment.In explaining why the Federal Court had erred, the High Court drew attention to thefact that the statutory power was cast in subjective terms (or, what might be called a"state of mind" provision). The Migration Act provided in s 22A that "[i]f the Ministeris satisfied that a person is a refugee", a determination to that effect may be made. TheCourt contrasted this formulation with an earlier version of the statutory power thatdid not explicitly make the Minister's satisfaction an element of the decision. The HighCourt felt that the change was significant and necessarily of relevance in defining therole of a supervisory court charged with the function of deciding whether an error oflaw had been committed. The difference is encapsulated in a passage from thejudgment of Gibbs Jin Buck v Bavone, relied upon by the Court in Wu:

[W]here the matter of which the authority is required to be satisfied is a matter ofopinion or policy or taste it may be very difficult to show that it has erred ... or that itsdecision could not reasonably have been reached. In such cases the authority will be leftwith a very wide discretion which cannot be effectively reviewed by the courts.143

It is difficult to accept the view of the Court in Wu that so much should hinge on theactual statutory formulation. This point is taken up again later in this paper, where it isargued that the role of a supervisory court should tum on the true nature of theexecutive decision that the Court is reviewing. Subjective language in a statute goessome way towards defining the executive function, but it is only one such indication.The critical issue is whether discretionary judgment is inherently a feature of theexecutive decision, for if it is, the role of the supervisory court is more restrained,confined to examining such questions as whether irrelevant matters were taken into

141

142

143

Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (quoted in Wu (1996) 185 CLR 259at 272).Cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341 per Mason CJ,explaining that an added reason for confining the jurisdiction of the Federal Court underthe ADJR Act to review findings of fact is that this fell within the function of theAdministrative Appeals Tribunal. Though query whether the reference should in fact havebeen to the Commonwealth Ombudsman, since the Court was speaking of reviewingfindings of fact that occurred during preliminary administrative processes, which the AATcould likewise not review unless the findings were related somehow to a reviewable"decision".Buck v Bavone (1976) 135 CLR 110 at 119 per Gibbs CJ, quoted in Wu (1996) 185 CLR 259 at275-276.


account. Surely a decision as to whether a person is a refugee who fears politicalpersecution involves discretionary judgment, regardless of whether the statutorypower being exercised is premised by an "if the Minister is satisfied" phrase.

The point of the analysis is not to quibble over language, but to take issue with theCourt on how it defines the role of a supervisory court. If a doctrine of judicialdeference is to be developed, it requires a more solid foundation than the subtleties oflegislative drafting. A proper appreciation of the interacting roles of judiciary andexecutive must be at the heart of the doctrine.

Craig v State ofSouth Australia:l44

The core concepts that define the role of a superior court undertaking judicial review ofthe proceedings of an inferior court or tribunal - jurisdictional error and error of lawon the face of the record - had been in a state of flux for some years. The uncertaintyas to jurisdictional error was reflected in the evenly split decision of the High Court inR v Gray; Ex parte Marsh,145 and in the absence of any definitive High Court ruling onthe implications for Australian jurisprudence of the landmark House of Lords decisionin Anisminic Ltd v Foreign Compensation Commission.146 Error of law on the face of therecord had not been squarely addressed by the High Court for many years, and in themeantime lower State court decisions had defined the concept eXEansively in a mannerinconsistent with the vestigial but narrow High Court comments. 47

The uncertainty on both issues was categorically removed by the decision of theHigh Court in Craig. A judge of the District Court of South Australia, applying Dietrichv R,148 had made an order staying criminal proceedings against Craig pending furtherinquiries into whether legal representation could be arranged for him at publicexpense. The Crown contended that the judge's ruling was erroneous, principallybecause the Judge had not referred in his reasons to evidence led by the Crown of theassets and behaviour of the accused. The Crown could not appeal against the judge'sruling, appeal being confined by statute to the sentence. Instead, the Crown institutedjudicial review proceedings in the Supreme Court, seeking certiorari to challenge theDistrict Court Judge's decision on the basis of jurisdictional error and error of law onthe face of the record. The High Court held that neither ground for issuing certioraricould be established in this case.

The error of law claim was dismissed on the basis that, if an error of law existed, itwas not apparent on the face of the record of the District Court proceedings. This wasbecause the "record" was confined to the documents initiating and defining theproceedings and the order or determination of the District Court. Neither the writtenreasons for judgment given by the District Court nor the transcript of its proceedingswere part of the record. The Court's justification for this narrow definition of the record(and for rejecting the contrary view expressed elsewhere by the NSW Court of

144145146147

148

(1995) 131 ALR 595.(1985) 157 CLR 351.[1969] 2 AC 147.Cf the decision of the High Court in R v District Court of Queensland Northern District; Exparte Thompson (1968) 118 CLR 488 with the decisions of the NSW Court of Appeal in G JColes & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503, and Commissioner forMotor Transport v Kirkpatrick (1988) 13 NSWLR 368.(1992) 177 CLR 292.


Appeal149) was to avoid "transforming certiorari into a discretionary general appeal forerror of law." The Court continued:

[A] situation in which any proceeding in an inferior court which involved a disputedquestion of law could be transformed into superior court proceedings notwithstandingimmunity from ordinary appellate procedures would represent a significant increase inthe financial hazards to which those involved in even minor litigation in this country arealready exposed.ISO

In answer to the probable rejoinder that review was in any case restrained by the needto identify an error of law, the Court commented that, "Like almost any question whicharises for determination by a judge, that question of 'fault' can, once the facts areascertained, be dressed in the garb of a question of law".151

In holding that there was no jurisdictional error, the Court worked from the basisthat the concept applies differently according to whether the body to be reviewed is aninferior court (such as the District Court) or an administrative tribunal. It is far harder,the Court held, to establish a jurisdictional error by an inferior court. This may occur,as a general guide, where an inferior court mistakenly asserts or denies the existence ofits jurisdiction or misapprehends or disregards statutory limits imposed on its function.An administrative tribunal, by contrast, will commit a jurisdictional error if it identifiesa wrong issue, asks itself the wrong question, ignores relevant material, relies onirrelevant material or, in some circumstances, makes an erroneous finding or reaches amistaken conclusion - in short, if it acts ultra vires.1S2 The justification for treatinginferior courts and administrative tribunals differently was explained by the HighCourt in the following way:

[T)he inferior courts of this country are constituted by persons with either formal legalqualifications or practical legal training. They exercise jurisdiction as part of ahierarchical legal system entrusted with the administration of justice under theCommonwealth and State constitutions. In contrast, the tribunals other than courts whichare amenable to certiorari are commonly constituted, wholly or partly, by personswithout formal legal qualifications or legal training. While normally subject toadministrative review procedures and prima facie bound to observe the requirements ofprocedural fairness, they are not part of the ordinary hierarchical judicial structure.153

The different stance taken in Craig towards inferior courts and administrative tribunalsis presumably justified in each case by a different policy objective. As to courts, theconcern is to preclude judicial review being used in a way that circumvents the appealframework and disrupts the flow of an inferior court proceeding. As to tribunals, theconcern is to ensure that executive decision-making concerning the rights and interestsof members of the public is subject to judicial scrutiny.

Both objectives are sound, yet it is questionable whether they provide a solidfoundation for what is a rather rigid theory based upon a hard-and-fast distinction

149150151152

153

See cases cited in n 147.(1995) 131 ALR 595 at 604 per Brennan, Deane, Toohey, Gaudron and McHugh }}.Ibid at 608.This catalogue of errors is similar to the list of jurisdictional errors given by Lord Reid inAnisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171. The High Courtpointed out that Lord Reid's judgment could not be accepted in Australia as anauthoritative statement of what constitutes jurisdictional error by an inferior court «1995)131 ALR 595 at 602).Ibid at 600.


between inferior courts and administrative tribunals. Examples come readily to mindof tribunals that include a substantial proportion of lawyers among their members,which are part of an appellate framework, which sit as multi-member panels, andwhich have innovative training-programs for members. Judicial review also has thesame potential to disrupt the efficiency of tribunal proceedings and to inflate the costsof parties before the tribunal. For example, an appeal from the AAT to the FederalCourt can usually be brought only at the conclusion of AAT proceedings,154 yet ajudicial review application to the Federal Court at an earlier stage could prevent ordisrupt the exercise of jurisdiction by the AAT. The theory outlined in Craig also fails to I

take account of the frequent conferral of executive discretion upon inferior courts, inmatters like liquor licensing, land use, and welfare and guardianship issues. In thoseareas the distinction between an inferior court and an administrative tribunal can bemore fortuitous and historical than substantive and practical.

It is uncertain even whether the barely-concealed assumption that lay tribunals aremore likely than legally-staffed tribunals to fall into legal error can be substantiated:155

I

there does not appear, for example, to be a noticeably higher reversal rate in appealsagainst AAT decisions to the Federal Court, as compared to ap.&eals to the Full Courtfrom first instance ADJR determinations by the Federal Court. b There is also a widerconcern that a theory premised upon perceived inadequacy in administrative tribunals ;can inhibit the preparedness of those tribunals to develop an adjudicative style that is I

distinctive and appropriate to the nature of the jurisdiction being exercised. Thetendency may be strong for tribunals to conform to what is perceived to be an orthodoxjudicial expectation as to how adjudicative decision-making is to be undertaken.

There is scope for developing a more flexible alternative theory to that espoused in I

Craig, which builds on the policy objectives sought to be achieved by that decision. Thecore issue is whether judicial review should be an available option where a partyclaims that a legal error has been committed by an adjudicative body, whether thatbody be described as an inferior court or as an administrative tribunal.157 Judicial,review can have a beneficial effect - ensuring lawful conduct by courts and tribunals I

with power to adjudicate on the rights and interests of individuals - but it can also be I

destructive - enabling a party to interrupt proceedings and add to their length, I

154

155

156

157

Administrative Appeals Tribunal Act 1975 (Cth), s 44; Director-General of Social Services v I

Chaney (1980) 31 ALR 571.Cf also the view of TIson, "The Sovereignty of the Judiciary" (1985) 10 Adel L Rev 1 at 11:"The assertion that only courts can determine 'law' is a notion born of wizardry and power'politics.... It reflects an attempted ideological rationalisation for judicial review that is I

oriented in private law, not in public law."Note, too, the high number of leading administrative law cases in which there was areversal by a superior court of the decision or principle of a lower court: a list was given inJMcMillan, "The Conflicting Values in Administrative Law and Public Administration: AMarriage Strained", in S Argument (ed), Administrative Law and Public Administration:'Happily Married or Living Apart under the Same Roof? (1994) 31.The term "tribunal" is imprecise and has been applied by parliament to bodies that proceedby adversarial and adjudicative method (such as the Administrative Appeals Tribunal) as;well as to bodies that perform a more orthodox executive function (such as the Social!Security Appeals Tribunal, and perhaps the former Australian Broadcasting Tribunal). The'term "adjudicative" tribunal has been preferred in this paper, for the reason that theconcept of "error within jurisdiction" - the subject of discussion - can suitably apply onlyto tribunals that proceed by adjudication in a manner comparable to that of courts.


complexity and expense. A constructive choice between the beneficial and thedestructive effects can only be made in the individual case by balancing a fewcompeting factors. A threshold factor is whether there is an appeal framework whichenables the alleged error to be challenged at an appropriate time: if so, the appealframework provides strong evidence of a parliamentary intention that the appeal rightshould be the principal avenue of challenge and judicial review should be anexceptional remedy. A second factor is the nature of the issue being determined by theinferior court or tribunal: judicial review is more appropriate for controlling theadjudication of public law disputes by inferior courts or administrative tribunals, thanit is for controlling criminal and committal proceedings and the adjudication of civildisputes by tribunals. The nature of the error alleged to have been committed can alsobe relevant: judicial review is more appropriate for threshold errors disputing theexistence of jurisdiction and for errors reflected in the final decision or reasons, than itis for errors alleged to have been committed in the course of an inquiry beforeproceedings have been concluded. Nor can it be forgotten that a court undertakingjudicial review has a discretion whether to grant a remedy, and thus to strike a balancebetween competing pressures.

In summary, it is arguable that Craig does not adequately define a theoryconcerning the supervisory role of courts in controlling executive decision-making byinferior courts and tribunals. At the heart of the issue is a need to recognise both thebeneficial and destructive effects of judicial review, which can be felt by administrativetribunals much as they can be felt by inferior courts.

DISTINGUISHING JUDICIAL REVIEW AND MERIT REVIEW

The distinction between merit review and judicial review is the most commonly-citedprinciple to explain the relationship of the judiciary to the executive. In a sense, theprinciple serves a dual purpose, defining the role of the judiciary while safeguardingthe separate role of the executive from unwarranted judicial intrusion. The point ofpresent interest is that the distinction largely depends on judicial exposition, so it isinstructive to examine what has been said in recent cases.

The point that is usually emphasised is that a court should not substitute a newdecision, typified in the following characteristic passages:

The function of the Federal Court under the Judicial Review Act is to review the legality,not the merits, of administrative decisions and the court does not substitute its owndecision for that of the decision-maker.158

The merits of administrative action, to the extent that they can be distinguished fromlegality, are for the repository of the relevant power and, subject to political control, forthe repository alone.159

There are a great many cases not examined in this paper that illustrate very well howthat distinction is respected and is a useful guide to the practice of Australian courts. Awell-known example of that trend is Minister for Immigration and Ethnic Affairs vConyngham,160 in which the Full Court of the Federal Court reversed a decision byWilcox Jdirecting the Minister to issue a visa to "The Platters" to visit Australia.

158 Johnson v Federal Commissioner ofTaxation (1986) 72 ALR 625 and 628 per Toohey J.159 Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J.160 (1986) 68 ALR 441.


Two aspects of the distinction between judicial review and merit review are taken I

up in the following analysis. First, the emphasis on substitution of a new decision can I

overlook situations in which merit review is arguably occurring in a more subtle way.Three ways in which this may be happening are discussed. To deal with that result, itmay be more appropriate to reformulate the judicial review/merit review distinction,to emphasise instead that a court should not direct an administrator as to the decision I

to be made in exercise of a discretionary power, or as to the opinion to be formed II

pursuant to a provision that is framed in subjective or "state of mind" terms (forexample, "If the Minister is satisfied ..."). That is, where a statute requires that anadministrative choice be made, after consideration of relevant issues of fact, law andpolicy, it is not for a court undertaking supervisory review to pre-empt the I

discretionary judgment of the administrator as to what is the preferable choice tomake.161 The notion of legality, though it is open-ended, must stop short of thatoutcome.

A different threat to the judicial review/merit review distinction is posed by the I

jurisdictional fact doctrine, which provides a recognised exception to the principle thata court undertaking judicial review should not substitute its opinion for that of the I

executive. It is argued below that the doctrine has been applied too widely in recent I

years, resulting in an inappropriate extension of judicial review.

Philosophy of decision-makingThe first threat to the distinction is where a court enunciates a philosophy or policy I

concerning the basis for administrative decision-making which is at odds with the !

philosophy on which administrative decisions and government policy are presently I

based. There can be no objection to a judicial philosophy that be can be tied directly to I

the legislation that is being construed, but it is different where the policy is ;autonomous. To require that an administrative decision reflect the application or I

consideration of that new philosophy can have the practical result of pre-empting an I

administrative choice as to the preferable decision.Chaudhary v Minister for Immigration and Ethnic Affairs162 illustrates this argument.

The applicant had been denied permanent residence for the reason that his eldest child I

suffered from cerebral palsy, faced a lifelong dependence on professional and possibly I

institutionalised care, and could be a significant cost to the Australian community. The I

Migration Act 1958 (Cth), s 6A(1)(d), provided that an entry permit could be granted I

where there were "strong compassionate or humanitarian grounds". The Full Court of I

the Federal Court held that the emphasis in the decision on Australia's economic I

interests was an error of law, or alternatively a failure to consider relevant matters. I

Australia's interests, it was held, must be given a far wider meaning:True national interest has a concern for Australia's name in the world, and may at timesinvolve a measure of generosity. Certainly, it is in Australia's best interests to be seen ascivilised and compassionate; as an advanced nation equipped with an advanced and

161 See the definition of merit review in Drake v Minister for Immigration and Ethnic AffairE.(1979) 24 ALR 577 at 589 per Bowen CJ and Deane J, as a selection of the "correct 01

preferable" decision.162 (1994) 121 ALR 315.


available medical technology; and as willing to accept some of the responsibilities of aleading country in our area of the Pacific.163

What differentiated the approach of the Court and that of the Department was adifferent philosophy of immigration decision-making. Neither was incompatible withthe open-ended phraseology in the Migration Act, but preferring one philosophy overthe other would be likely to lead to a different decision in many situations. In effect, thechoice of philosophy foreshadowed the choice of decision.

The stance taken by Gaudron Jin Minister for Immigration and Ethnic Affairs v Teoh164

could have the same impact. A deportation order made against Mr Teoh would havecaused his separation from his children if they were to remain in Australia. Unlikeother members of the Court, Justice Gaudron held that the United Nations Conventionon the Rights of the Child was of subsidiary significance to the validity of the deportationdecision. In her Honour's judgment, two other considerations had been overlooked bythe decision-maker: a common law requirement, springing from citizenship, to treat theinterests of children as a primary consideration in decisions affecting their individualwelfare, with a corresponding obligation on administrators to initiate appropriateinquiries into the effect of a decision on a child; and the assumption which anyreasonable person would make that the bests interests of a child would be taken intoaccount as a matter of course and without any need for the issue to be raised with thedecision-maker.

What is significant about Justice Gaudron's approach is that it establishes a basis fordecision-making that cannot be located in a statute, but rests on principles that areperceived as more fundamental. Failure by a decision-maker to recognise theparamount nature and compelling force of those principles will spell invalidity.

Evidentiary basis for decision-makingFacts lie at the basis of most administrative decisions. Finding the facts, drawinginferences from them, and allocating weight to conflicting facts, is at the heart ofadministrative judgment as to the preferable decision to reach.

There is a keen recognition in judicial review cases that a balance must be struck bycourts in confronting review of the factual side of decision-making. It is recognised, onthe one hand, that for a court to evaluate the evidentiary support for a decision, or toattach importance to all errors of fact, can divert the court into re-examining the meritsof a decision.165 On the other hand, to ignore serious errors of fact or reasoning would

163

164165

Ibid at 318 per Wilcox, Burchett and Foster JJ. Other cases noted in Chaudhary havedeclared a similar philosophy - for example, the proposition that decisions be taken "byreference to a liberal and even compassionate outlook appropriate to a free and confidentnation and conscious of its reputation as such": Ates v Minister of State for Immigration andEthnic Affairs (1983) 67 FLR 449 at 455-456 per Smithers J. See also cases discussed in nn 22and 23. In the same vein as Chaudhary is Park v Minister for Immigration and Ethnic Affairs(1996) 41 ALD 487, declaring invalid as unreasonable a decision to refuse resident status toan applicant who would be a drain on the Australian medical system.(1995) 183 CLR 273.For example, Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 17 ALD529. See also Brennan Jin Waterford v Commonwealth (1987) 163 CLR 54 at 77: "There is noerror of law simply in making a wrong finding of fact".


be to condone an administrative process that is quite at odds with that anticipated byparliament.166

Some of the judicial review principles which focus the court's attention on the factsthat support a decision are apt to tilt the balance towards disguised merits review. Thiscan be said of the requirement that a decision-maker, while free to decide the weight toattach to conflicting facts, must give "proper, genuine and realistic consideration to themerits of the case".167 That principle arrests any trend by decision-makers to make aperfunctory declaration that all relevant matters were considered, but the principle hascommonly been applied (in immigration cases particularly) to condemn decisionswhich appear objectively to be carefully thought out, albeit harsh in the result.168 TheHigh Court disapproved that trend recently in Wu, remarking that a decision is notinvalid merely because the statement of reasons employs a verbal formula that isroutinely used by people making similar decisions.169 Use of the formula will not byitself establish a lack of genuine consideration of the merits of a case.

The probative evidence rule poses the same risk of disguised merits review. The gistof the rule is that an adverse finding of fact must be supported by rational% probativeevidence, and not merely raised as a matter of suspicion or speculation.1 0 This goesclose to requiring substantial evidence to support an adverse decision: what issubstantial or adequate is inevitably relative to one's own evaluation of the harshnessand justice of the decision under challenge. It is interesting again to note that membersof the High Court have cautioned against reliance on the probative evidence rule,principa~ because of its potential to obscure the distinction between merits andlegality.1 1

The same criticism can be made of other principles that have been employed todeclare invalid a decision that is based essentially on a factual error. It has been heldthat consideration of an irrelevant matter will occur by "[t]he taking into account of afact found unreasonably"172 or "proceeding upon an erroneous premise on a

166

167168

169170

171

172

For example, GTE (Australia) Pty Ltd v Brown (1986) 14 FCR 309 (Court declared invalid adecision imposing anti-dumping duty, which had been reached on the basis of amisreading of a foreign price list).Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J.For example, Hindi v Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586 at 597 perSheppard J; and Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117ALR 455 at 472 per Wilcox J. See also discussion in Deloitte Touche Tohmatsu (formerly knownas Deloitte Haskins & Sells and Deloitte Ross Tohmatsu) v Australian Securities Commission(1996) 136 ALR 453 at 468 per Lindgren J.Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 266.For example, Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 690 perDeane J; and GTE (Australia) Pty Ltd v Brown (1986) 14 FCR 309.See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357 per Mason CJ that:"The approach adopted in these cases has not so far been accepted by this Court." See alsoan extra-curial comment by Sir Anthony Mason, that, "[T]hese initiatives taken by theFederal Court ... would possibly lead to wider-ranging judicial review, with the result thatthe Court would be dealing more with the substance of the administrative decision....Whether that development would meet with executive and political approval is a realquestion.": Sir Anthony Mason, "Administrative Law - Form Versus Substance" in K Cole(ed), Administrative Law and Public Administration: Form vs Substance (1996) 1 at 8-9.Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77at 80 per Davies, Burchett and Lee JJ.


fundamental matter".173 Likewise, there will be a failure to consider a relevant matterwhere a decision-maker proceeds upon a "fundamental misconception of what wasadmitted to be a consideration of significance"174 or fails to decide "on the basis of themost current material available to the decision-maker".175

The other development that should be noted in this context is the emerging supportfor a princiWe of proportionality in Australian administrative law, discussed earlier inthis paper. 76 The concern noted there was that an inquiry into whether the burdenimposed by a decision is excessive or a disproportionate method of administering astatute has the danger of directing attention to issues that lie at the heart of meritreview, like the weight of evidence to support a decision and the preferable method forachieving an objective.

Exacting procedural standards

A major concern of judicial review is the way in which decisions are made. A court isthus in a position to impose a minimum code of fair procedure. If the minimum is settoo high, the practical outcome may that an adverse decision is foreclosed.

The duty to conduct an adequate inquiry is a procedural obligation that is prone tothat result. The scope of the duty is that an administrator acts unlawfully by notattempting to obtain information "where it is obvious that material is readily availablewhich is centrally relevant to the decision to be made"177 or where the availablematerial "contains some obvious omission or obscurity that needs to be resolved beforea decision is made".178

In earlier cases like Prasad and Videto, the duty was framed narrowly, in a form thatcould easily have been discharged by a phone call or a few questions. In some latercases, by contrast, the duty has been more onerous and open-ended, posing the riskthat an inquiry could never be satisfactorily concluded in the knowledge that anotheruntumed stone may be hiding additional relevant information. For example, inSecretary, Department of Social Security v O'Connell and Sevel,179 the Department wasexpected to consult electoral rolls, telephone entries and other means to identifywhether there had been a change of address by thousands of persons who had notresponded to a circular letter warning of an impending cessation of benefit. Likewise,in Teoh, Justices Toohey and Gaudron gave examples of institutions with knowledge ofMr Teoh's children that could have been contacted by the Department,notwithstanding the full exchange of correspondence that had already occurredbetween Mr Teoh's solicitors and the Department.180 Another area in which the impact

173

174175176177

178

179180

Akers v Minister for Immigration, Local Government and Ethnic Affairs (1988) 16 ALD 688 at694 per Lee J.Laremont v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13 per Lockhart J.Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45 per Mason J.Text accompanying nn 48-59.Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 at 563 per Wilcox J(ascribing this error to the ground of "unreasonableness").Videto v Minister for Immigration and Ethnic Affairs (1985) 69 ALR 342 at 353 per Toohey J.For other illustrations, see cases cited in n 83.(1992) 110 ALR 627.Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 302-303; cf Mason CJand Deane J at 289-290. Breach of the duty of inquiry was also a ground of invalidity reliedupon by the Full Court of the Federal Court in Teoh: (1994) 121 ALR 436.


of the duty has been apparent has been refugee decision-making, where theimmigration authorities have been required to mount extensive inquiries into thepolitical and social conditions in the country from which the refugee claimants havecome.18l

Jurisdictional (or objective) factsThe jurisdictional fact doctrine is an exception to the principle that a court undertakingjudicial review should not substitute its opinion for that of the decision-maker. It isrecognised that the nature of the issue to be decided may be such that a "correct"answer should be reached, and that a court reviewing the decision can inquire whetherthat occurred. In so doing the court can review the facts before the decision-maker, andany fresh evidence or material that may be relevant. A different way of expressing thedoctrine - in fact, the more usual way - is to say that the issue to be decided is anobjective fact, a condition imposed by statute on the decision-making power, or ajurisdictional fact.

The jurisdictional fact doctrine has arisen with surprising frequency in recent cases.The circumstances in which it has been applied provide an illustration of how freelythe doctrine can be used to disturb the distinction between judicial review and meritreview.

It is best to begin this analysis by noting that the language of jurisdiction and theconcept of a jurisdictional fact are used more naturally (and less controversially) toexpress the point that by and large courts have a limited function. Their jurisdictionmay be limited, for example, to cases of a certain monetary value, or to a case arisingbetween parties of a particular description (say husband and wife), or to cases thathave arisen within a particular time-limitation period. If a court purports to defy thoselimits, and to exercise a jurisdiction that it does not possess, it is appropriate for asuperior court to restrain that excess of power, for example, by issuing the writ ofprohibition.182 On the other hand, if the jurisdictional facts or limits have been met, thenormal presumption is that the superior court will not use its powers of judicial reviewto disturb the proceedings or decision of the inferior court. That is, it is presumed thatany legal error by the inferior court that is committed during the course of theproceedings will be an error within jurisdiction, which can be challenged by way ofstatutory appeal where the right exists.183 The rationale for distinguishing betweenjurisdictional facts and questions arising within jurisdiction can mostly be found in twofactors: the importance of ensuring that the jurisdiction of a court is properlyestablished before parties are committed to the labour and expense of an adjudication;and, once that adjudication has commenced, the inconvenience of allowingunrestrained judicial review to disrupt the adjudication.

181

182

183

For example, Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy(1994) 127 ALR 223 at 249-250, and Lek v Minister for Immigration, Local Government andEthnic Affairs (1993) 117 ALR 455.There is, however, a presumption against the legislature making the jurisdiction of a courtcontingent upon the actual existence of a state of facts, because of the inconvenient result itproduces: Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, especially at 391 perDixonJ.Craig v State of South Australia (1995) 131 ALR 595; and R v Gray; Ex parte Marsh (1985) 157CLR351.


The same considerations do not apply identically to judicial scrutiny of executivedecision-making. Executive decision-making is often much simpler and shorter, andthere is probably not the same risk as there is in curial decision-making that one sidewill rush off to court to interrupt the proceedings or to challenge an adverse decision.Moreover, if it is important that a primary-level executive decision should be correctboth in fact and in law, parliament can create a right of appeal to an administrativetribunal. Many other mechanisms also exist to ensure that executive decisions - butnot inferior court decisions - are correct, such as the Ombudsman, internal review,ministerial oversight, and informal complaint channels.

Only two situations come readily to mind in which it is appropriate to apply theconcept of a jurisdictional or objective fact to executive decision-making. The first iswhere the executive power is conditional on a constitutional finding or some similarlegal condition (such as a power to be exercise in respect of a "trading corporation",184or in respect of a contract). The second exception is where the executive power isconditional on the existence of a simple fact as to which there is essentially no scope fordiscretionary judgment (for instance, a power in respect of people who are "sixteen orover"). It is different, however, where the decision-maker is required to form anopinion or belief or to exercise a residual discretion. The theory of separation of powerscommits that function to the executive, and confines the judiciary to the role ofexamining whether legal error has occurred in the process.

The view that has been described is at odds with the approach taken in many recentcases, of which three will be discussed. The first is the decision of the Full Court of theFederal Court in Minister for Immigration and Ethnic Affairs v Naumovska.185 Animmigration decision-maker had to decide whether the plaintiff fell within a section ofthe Migration Act 1958 (Cth) which provided that a person is deemed to be aprohibited immigrant if at the time of entering Australia and "for the purpose ofsecuring entry into Australia [he or she] produces or produced to an officer ... apassenger card that contains information that is false or misleading in a materialparticular". This imposed, in the view of the Full Court, a test of objective fact: "It is forthe courts to say whether information in a passenger card produced to an immigrationofficer by a person for the purpose of securing entry into Australia is false ormisleadin~in a material particular. It is not for immigration officers to determine thesematters."l 6 Adopting this approach, the Court then reviewed the facts presented bythe plaintiff and agreed with the view of the trial judge that the plaintiff was not aprohibited immigrant.

The justification for this approach was found in the words of the statute and in theimpact which an adverse decision would have on the liberty of an individual. But howpersuasive are those considerations? The administration of the statute inevitablyrequired that an immigration official, working from facts that might often beambiguous or incomplete, must initially form an opinion as to whether a person

184

185186

Constitution, s 51(20), conferring power on the Commonwealth Parliament to legislatewith respect to "trading corporations": as to constitutional limits being jurisdictional facts,see R v Federal Court; Ex parte Western Australian National Football League (Inc) (1979) 143CLR 190.(1983) 88 ALR 589.Ibid at 601 per Lockhart J. See also ibid at 597 per Franki J; and, applying Naumovska,Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 110 ALR 367;and Wong v Minister for Immigration and Ethnic Affairs (1994) 37 ALD 51.


proffered a false or misleading entry card. To say that parliament did not commit that I

function to immigration officials seems to fly in the face of the only practical option.Nor can the potentially adverse impact of the decision alone provide a justification forstripping the official's decision of the status it would normally have. It would be a short I

step from that reasoning to say that any decision made under a tightly-worded statutewhich can result in severe prejudice to the individual turns on findings of objective I

fact. The potential adversity of the decision can be adequately controlled by theorthodox principles of judicial review, which define (in the ADJR context) as many as \18 different grounds of review that can be used to ensure that the immigration official's I

decision is not arbitrary or perverse. Supplementary options for review, by I

Ombudsman and merit review tribunals, provide further support to this view.A second example is Australian Heritage Commission v Mt [sa Mines Ltd.187 The I

Commission had to decide whether a particular site should be entered in the register ofthe national estate, which it could be if it was a site that has "aesthetic, historic, I

scientific or social significance or other special value for future generations as well asfor the present community".188 At first instance Drummond J held that the s 4requirement was a jurisdictional fact, and that a place entered by the Commission onthe Register must objectively answer that description. On appeal, Beaumont andBeazley JJ (Black CJ dissenting) substantially agreed, tempering their view only by I

adding that the evaluation by the Commission will involve matters of judgment and !

degree.189 Factors that were referred to in support of this conclusion included the ,I

terms of the legislation, the decision-making process which required the Commission I

to receive objections from interested parties, the nature of the question to be decided I

which was as appropriate for judicial as for executive determination, and the I

undesirability of treating the Commission's decision as conclusive. Black Crs dissent I

pointed out that the classification of a site under s 4 was clearly a function committed Ito the Heritage Commission, involving quite often the careful assessment of complex :facts, the formation of opinions and value judgments on a potentially wide range of I

matters of science, history and aesthetics, and consultation with a wide range of I

parties.

An altogether new implication was drawn from the reasoning in Naumovska and Mt I

[sa Mines in Buck v Comcare.190 Comcare had suspended the plaintiff's compensation I

payments, under a section providing that: "Where an employee refuses or fails, without I

reasonable excuse, to undergo an examination ... the employee's rights to compensation I

under this Act .. are suspended until the examination takes place."191 The Court heIdithat the legislation was concerned with objective facts, which a court could decide in!appropriate proceedings. A further implication was that the plaintiff's rights were'suspended by force of the legislation, not by any decision of Comcare, so that in factithere was no "decision" of Comcare, and accordingly no jurisdiction in the Court underlthe ADJR Act. Instead, the only remedy open to the plaintiff was a declaration of rightI

under the Federal Court of Australia Act 1976 (Cth).

187188189

190191

(1995) 133 ALR 353.Australian Heritage Commission Act 1975 (Cth), s 4.The issue arose before the Court as an answer to a case stated at a preliminary stage of thfproceedings, so that the question of whether the Commission had reached the wronFdecision did not arise at this stage of the proceedings.(1996) 41 ALD 281 per Finn J.Safety, Rehabilitation and Compensation Act 1988 (Cth), s 57(2).


This decision illustrates again the difficulty - indeed, the artificiality - of theobjective or jurisdictional fact reasoning. When one stands back from the employeecompensation scheme and considers how claims are lodged and evaluated, it wouldsurely seem to be a core function of Comcare to administer the scheme and to makedecisions on whether claimants are to undergo medical examination. If not, and ifComcare had not made any decision,192 one may ask how it came to be the defendantbefore the Federal Court in this case? The fact that parliament had carefully spelt outwhich decisions under the legislation were appealable to the Administrative AppealsTribunal would seem further to suggest that the Tribunal, not the Federal Court, hadbeen designated by parliament as the merit review body of Comcare decisions. Hadparliament intended to depart from the implications that are normally drawn from theseparation of powers, would it not have done so in a more direct and explicit way?

Many other examples could be given of situations in which a court has reviewed themerits of an executive decision, as a result of classifying that decision as one turning ona jurisdictional fact.193 This occurred in Makisi v Minister for Immigration and EthnicAffairs,194 concerning whether an application for resident status had been lodged withthe Department as claimed by the plaintiffs; in Guo Wei Rong v Minister for Immigrationand Ethnic Affairs,195 concerning whether a person had the status of refugee; in State ofQueensland v Wyvill,196 concerning whether a person who had died in custody was"Aboriginal"; and in Attorney-General (Northern Territory) v Hand,197 concerningwhether land included Ita road over which the public had a right of way". There arealso traces of the same reasoning in Minister for Immigration and Ethnic Affairs v Wu ShanLiang.198 As pointed out earlier in this paper,199 the High Court thought it wassignificant, in terms of the scope of judicial review, that the Migration Act 1958 (Cth)had been amended such that the decision on refugee determination was now prefacedby the clause "If the Minister is satisfied that a person is a refugee ...".

CONCLUSION

This paper commenced by noting that in recent times judicial review has beenimportant in terms of its impact on the Australian political agenda. The survey ofrecent cases illustrates other effects of equal importance, notably the judicial protectionof individual rights and the definition of new standards for administrative decision-

192

193

194195

196197198199

For criticism of "The myth of the self-executing statute" see M Aronson and B Dyer, JudicialReview ofAdministrative Action (1996) at 68-71.See also Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580, inwhich Sackville Jgave serious consideration to, but ultimately did not accept, an argumentthat the determination of whether an action is one "affecting the environment to asignificant extent" (Environment Protection Act (Impact of Proposals) Act 1974 (Cth), s 5)was a jurisdictional fact; and Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR194, in which the Full Court described a decision to be made by the Minister on migrantentry as a special species of jurisdictional fact in that it was expressed in subjective terms.(1994) 37 ALD 420.(1996) 135 ALR 421. Contra: Guo Wei Zhi v Minister for Immigration and Ethnic Affairs (1996)41 ALD 524.(1989) 90 ALR 611.(1988) 16 ALD 318.(1996) 185 CLR 259.Text accompanying n 143.


making. Those trends are relatively easy to detect and to trace, for usually they arematters discussed explicitly by courts. Harder to trace, but of no less importance, is the I

role of judicial review in defining the relationship between courts and the executive, a I

feature that is present in nearly all judicial review activity but rarely rises above thesurface. Aspects of that relationship that could be addressed further, and which have!been discussed in this paper, include the scope of justiciable executive action, the stageat which judicial review is appropriate, the scope of judicial review as it applies tOIadministrative tribunals, the distinction between judicial review and merit review, and Ithe issue of judicial deference to executive decision-making. In all of those areas, the ,I

discussion needs to take account of the limited role that judicial review is required to I

play in the comprehensive system of Australian administrative law in which tribunals, I

investigatory agencies and internal review sections can playa valuable role alongside :courts in safeguarding principles of administrative justice.

COMMENTARY

Henry Burmester*

I make these comments from the standpoint of a person who, like Mr McMillan, hasconsistently attacked the "aggressive" use of judicial power and argued for deference,whether in the constitutional or administrative law area, and as a government lawyerwho has been involved as counsel in advising and representing decision-makers buthas not been responsible for policy development. From that perspective, let me addsome thoughts on several of the key propositions made by Mr McMillan.

As I read his paper, there are two stark and quite different sections. The firstdisplays the aggressive and activist work, principally of the Federal Court, in curbingthe excesses of the executive as they see it, by resort to reliance on the protection ofindividual rights, by the expansion of procedural safeguards, and by interference at thepreliminary or investigative stage of the administrative process. The outcome has beento tum judicial review into a merits review exercise, to find a means, if at all possible,to overturn decisions that a judge does not like. The second section of the paper focuseson three High Court decisions and in this section Mr McMillan articulates a possiblebasis for a theory of deference, although he, to my regret, does not attempt to offer hisown new theory of judicial review. I look forward to this promise being met on a futureoccasion. I strongly endorse the theory of deference tentatively identified, but I wouldargue that it takes more than three High Court decisions to overturn or undermine theentirely non-deferential approach of the Federal Court. In his paper Mr McMillanclearly identifies many of the activist strategies used by the Federal Court and in thefinal part returns to this issue and addresses the question of whether the courts areproperly maintaining the distinction between merits review and a limited judicialreview. He also points to areas where this distinction is not properly maintained. Iwant to refer to a few examples, principally procedural, which seem to me to suggestthat the limited role of judicial review is being overlooked.

Australian Fisheries Management Authority v PW Adams Pty Ltdl was an appeal fromthe Administrative Appeals Tribunal (AAT) in relation to fishing quotas imposed onfishing permits. The Federal Court held that it must be possible to show that each ofthe objectives set out in s 3 of the Act was pursued by the Minister. The policy inquestion which had been applied to the particular fishing permits erred, as it failed totake into account a relevant consideration set out in the statutory objectives(maximising economic efficiency in the exploitation of fisheries resources). In otherwords, the objectives in the Act were not only obligatory, but individual decisions

1Mr Burmester is Chief General Counsel, Commonwealth Attorney-General's Department.(1995) 61 FCR 314.

recent themes injudicial review offederal executive action

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