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Published online by Cambridge University Press: 01 January 2025
Owing to its focus on statutory interpretation, judicial review of administrative action in Australia has been perceived to be ‘formalist’, particularly when compared with review in comparable nations such as England. This led Michael Taggart to characterise review in Australia as ‘exceptionalist’. The judgment of Brennan J in Attorney-General (NSW) v Quin, in which Brennan J emphasised the importance of courts remaining away from ‘the merits’ of administrative decision-making while exercising the supervisory jurisdiction has become closely associated with the view that review in Australia is rigid and formalist. In this article, I re-evaluate the judgment of Brennan J and place it in the context of its facts and of its time. This helps to reveal that the approach to judicial review of administrative action set out by Brennan J in Quin should not be seen as formalist. Rather, both Brennan J’s approach and the contemporary ‘statutory approach’ to judicial review can be seen as informed by values connected with what are understood to be the appropriate functions of each institution of government found within the Australian political system.
I would like to thank Mark Aronson, Rosalind Dixon, Harry Hobbs and the two anonymous reviewers for their very generous and helpful comments on this article. Thanks are also due to Mark Aronson, Lisa Burton Crawford, Gabrielle Appleby, Andrew Lynch, Arthur Glass, Robin Creyke and Kristen Rundle for their comments on earlier versions of this work as it appeared in my doctoral thesis. Any errors are my own. I gratefully acknowledge the support of the Sir Anthony Mason PhD Award in Public Law for partly funding this research.
1 Anthony Mason, ‘The Kerr Report of 1971: Its Continuing Significance’ (Whitmore Lecture, Council of Australasian Tribunals NSW Chapter, 19 September 2007) 5.
2 See, eg, Probuild v Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, 22 [58] (Gageler J) (‘Probuild’); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 133–134 [27]–[29] (Kiefel CJ, Gageler and Keane JJ) (‘Hossain’); Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, 4–6 [7]–[11] (Allsop CJ); Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628, 630 [3] (Allsop CJ).
3 See, eg, Lisa Burton Crawford, ‘Immaterial Errors, Jurisdictional Errors and the Presumptive Limits of Executive Power’ (2019) 30 Public Law Review 281.
4 Michael Taggart, ‘‘‘Australian Exceptionalism” in Judicial Review’ (2008) 36(1) Federal Law Review 1.
5 Many of the key contributions to this debate are collected in Christopher Forsyth (ed) Judicial Review and the Constitution (Hart Publishing, 2000).
6 See Mark Aronson, ‘Process, Quality and Variable Standards: Responding to an Agent Provocateur’ in David Dyzenahus, Murray Hunt and Grant Huscroft (eds) A Simple Common Lawyer: Essays in Honour of Michael Taggart (Hart Publishing, 2009) 5, 6.
7 Taggart (n 4) 27.
8 See, eg, Dean Knight, Vigilance and Restraint in the Common Law of Judicial Review (Cambridge University Press, 2018) 43.
9 (1990) 170 CLR 1 (‘Quin’).
10 Ibid 37 (Brennan J).
11 See, eg, Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, 581 [99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (‘Kirk’).
12 See, eg, James Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21(2) Public Law Review 77; Matthew Groves, ‘Federal Constitutional Influences on State Judicial Review’ (2011) 39(3) Federal Law Review 399.
13 Will Bateman and Leighton McDonald, ‘The Normative Structure of Australian Administrative Law’ (2017) 45(2) Federal Law Review 153, 153.
14 (1985) 159 CLR 550 (‘Kioa’).
15 Stephen Gageler, ‘The Underpinnings of Judicial Review: Common Law or Constitution?’ (2000) 28(2) Federal Law Review 303, 303 (‘The Underpinnings of Judicial Review’).
16 Stephen Gageler, ‘The Constitutional Dimension’ in Matthew Groves (ed) Modern Administrative Law in Australia: Concepts and Context (Cambridge, 2014) 165, 175 (‘The Constitutional Dimension’).
17 See, eg, Gageler, ‘The Underpinnings of Judicial Review’ (n 15) 306–7; Gageler, ‘The Constitutional Dimension’ (n 16) 170, 175; Margaret allars, ‘Executive Versus Judiciary Revisited’ in Anthony Connelly and Daniel Stewart (eds) Public Law in the Age of Statutes: Essays in Honour of Dennis Pearce (The Federation Press, 2015) 49, 49–60. Although note that Bateman and McDonald consider that shift occurred in stages, beginning with the judgments of Brennan J in FAI Insurances Ltd v Winneke (1982) 151 CLR 342 (‘FAI Insurances’) and Kioa (n 14), see Bateman and McDonald (n 13) 164–6.
18 Quin (n 9) 35, citing Marbury v Madison, 5 US 87, 111.
19 Ibid 35–6.
20 See, eg, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) and Corporation of the City of Enfield v Development Assessment Corporation (2000) 199 CLR 135, [43] 152–3 (Gleeson CJ. Gummow, Kirby and Hayne JJ).
21 (1956) 94 CLR 254 (‘Boilermakers’ Case’).
22 Something once pointed out by Groves, who noted how ‘striking’ this was—see Groves (n 12) 402.
23 Matthew Groves and H P Lee, ‘Australian administrative law: The constitutional and legal matrix’ in Matthew Groves and H P Lee (eds) Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 1, 10.
24 Bateman and McDonald (n 13) 166.
25 Knight (n 8) 43.
26 Ibid.
27 See, eg, Taggart (n 4) 7; Thomas Poole, ‘Between the Devil and the Deep Blue Sea: Administrative Law in an Age of Rights’ in Linda Pearson, Carol Harlow and Michael Taggart (eds) Administrative Law in a Changing State: Essays in Honour of Mark Aronson (Hart, 2008) 15, 17; Knight (n 8) 19, 37.
28 Knight (n 8) 43.
29 See Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 6th ed, 2017) 374–5, 378–82 for an assessment of the Australian position on this after Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (‘Li’) and McCloy v New South Wales (2015) 257 CLR 178.
30 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 (‘Lam’), 23–5 (McHugh and Gummow JJ); cf R v North and East Devon Health Authority; Ex parte Coghlan [2001] 3 QB 213.
31 See, eg, Janina Boughey, ‘Re-Evaluating the Doctrine of Deference in Administrative Law’ (2017) 45(4) Federal Law Review 597, 597.
32 Li (n 29).
33 See, eg, Leighton McDonald, ‘Rethinking Unreasonableness Review’ (2014) 25(2) Public Law Review 119, 127.
34 Taggart (n 4) 7.
35 See, eg, Christopher Forsyth, ‘Showing the Fly the Way Out of the Flybottle: The Value of Formalism and Conceptual Reasoning in Administrative Law’ (2007) 66(2) Cambridge Law Journal 325.
36 Frederick Schauer, ‘Formalism’ (1988) 97(4) Yale Law Journal 509, 510.
37 Ibid.
38 See, eg, Forsyth (n 35) 329.
39 Taggart (n 4) 7.
40 See, eg, Hossain (n 2) 134–5 [29]–[30] (Kiefel CJ, Gageler and Keane JJ); Crawford (n 3).
41 In the Boilermakers’ Case (n 21), for example, the majority decided that arbitral functions were not judicial functions. Arbitration could require the consideration of broad policy considerations such as the state of the economy and the cost of living. Intervention in these matters ‘would plunge the federal courts into the turbulent and controversial world of industrial relations’: see Sir Anthony Mason, ‘Mike Taggart and Australian Exceptionalism’ in David Dyzenhaus, Murray Hunt and Grant Huscroft (eds) A Simple Common Lawyer: Essays in Honour of Michael Taggart (Bloomsbury, 2009) 179, 180.
42 Sir Anthony Mason once described the term “merits review” as having the quality of ‘blancmange’: see Anthony Mason, ‘Judicial Review: A View from Constitutional and Other Perspectives’ (2000) 28(2) Federal Law Review 331, 333.
43 As Sir Ivor Jennings said, ‘[n]obody has seriously sought to define an administrative function, except by a process of exclusion’. See Sir Ivor Jenning, The Law and the Constitution (University of London Press, 5th ed, 1959) 239–40, 293.
44 Quin (n 9) 38 (Brennan J).
45 See, eg, Li (n 29) 377, where Gageler J acknowledged that a relevant consideration to his finding that the decision at issue reached the high threshold of legal unreasonableness was that the decision-maker was an administrative tribunal.
46 An example of where this kind of consideration is clearly relevant can be found in Probuild (n 2). The issue here was whether the Building and Construction Industry Security of Payment Act 1999 (NSW) ousted the supervisory jurisdiction of the Supreme Court of NSW. The very nature of the statutory regime itself, and the fact that it was ‘not concerned with finally and conclusively determining the entitlements of parties to a construction contracts’ was something the High Court took into account in reaching the conclusion that the Act excluded the jurisdiction of the Supreme Court to review for non-jurisdictional errors of law: see, eg, 16–17 [37]–[48] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
47 See New South Wales Law Reform Commission, The Magistracy: Interim Report - First Appointments as Magistrates Under the Local Courts Act, 1982 (Report No 38, September 1983).
48 Ibid [4.20]–[4.25].
49 Ibid [4.30].
50 Ibid [4.47]–[4.51].
51 Ibid [4.51].
52 See the facts as set out by Priestley JA in Macrae v Attorney General for New South Wales (1987) 9 NSWLR 268 (‘Macrae’), 287-301, in particular 296 and 299.
53 Ibid 301 (Priestley JA).
54 See ibid 302 (Priestley JA).
55 Ibid.
56 Ibid 283 (Kirby P); 285–6 (Mahoney JA); 304–8 (Priestley JA).
57 Ibid 283 (Kirby P); 287 (Mahoney JA); 309 (Priestley JA).
58 See Quin (n 9) 12 (Mason CJ).
59 Ibid 50-51, Dawson J quotes from the statement made by the new Attorney General for New South Wales.
60 Ibid 3.
61 Quin v Attorney-General (NSW) (1988) 16 ALD 550, 554 (Kirby P); 557 (Hope JA).
62 Ibid 562 (Mahoney JA).
63 Ibid.
64 See, eg, Quin (n 9) 65–6 (Toohey J).
65 Kioa (n 14).
66 Ibid 582 (Mason J); 602 (Wilson J); 628 (Brennan J); 634 (Deane J).
67 Kirby P was also concerned about the possible effects this decision could have on the public perception of judicial independence: see Macrae (n 52) 271.
68 See Quin (n 9) 45 (Deane J); 66-9 (Toohey J).
69 See, eg, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 291–292. See also Sir Anthony Mason, ‘Judicial Review: The Contribution of Sir Gerard Brennan’ in Robin Creyke and Patrick Keyzer (eds) The Brennan Legacy: Blowing the Winds of Legal Orthodoxy (The Federation Press, 2002) 38, 51 (‘Judicial Review: The Contribution of Sir Gerard Brennan’); Sir Anthony Mason, ‘Procedural Fairness: Its Development and Continuing Role of Legitimate Expectation’ (2005) 12(2) Australian Journal of Administrative Law 103, 106–7.
70 Quin (n 9) 16.
71 Ibid.
72 Ibid 17.
73 Ibid 18–19.
74 Ibid 18.
75 Ibid 33.
76 Ibid 58.
77 Ibid 60.
78 Ibid.
79 Ibid.
80 See, eg, Mark Elliott, ‘The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law’ (1999) 58(1) Cambridge Law Journal 129, 129.
81 Dennis Pearce, ‘Executive Versus Judiciary’ (1991) 2(3) Public Law Review 179; John McMillan, ‘Judicial Restraint and Activism in Administrative Law’ (2002) 30(2) Federal Law Review 335.
82 See, eg, Dawn Oliver, ‘Is the Ultra Vires Rule the Basis of Judicial Review?’ [1987] (Winter) Public Law 543.
83 Council of Civil Service Unions v Minister for the Civil Service (‘GCHQ Case’) [1985] AC 374.
84 Ibid 400 (Lord Fraser), 407 (Lord Scarman), 409 (Lord Diplock), 417 (Lord Roskill). For other reasons, related to the justiciability of the decision, this was of no avail to the applicants: see 400-3 (Lord Fraser), 404, 406–7 (Lord Scarman), 412–3 (Lord Diplock), 423 (Lord Roskill), 423 (Lord Brightman).
85 See, eg, Oliver (n 82).
86 Ibid 544.
87 See, eg, Christopher Forsyth, ‘Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review’ (1996) 55(1) Cambridge Law Journal 122.
88 Oliver (n 82) 543.
89 See the judgment of Lord Diplock in the GCHQ Case (n 83) 410, where he hinted that grounds of review could be further developed to adopt the principle of proportionality. See, eg, Jeffrey Jowell and Anthony Lester, ‘Proportionality: Neither Novel Nor Dangerous’ in Jeffrey Jowell and Dawn Oliver (eds), New Directions in Judicial Review (Stevens & Sons, 1988) 51, 68; and Jeffrey Jowell and Anthony Lester, ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ [1987] (Autumn) Public Law 368.
90 See British Railways Board v Pickin [1974] AC 765, 782 (Lord Reid).
91 TRS Allan, ‘The Limits of Parliamentary Sovereignty’ [1985] Public Law 614, 625–9; Paul Craig, ‘Sovereignty of the United Kingdom Parliament after Factortame’ (1991) 11(1) Yearbook of European Law 221, 255.
92 With perhaps the most famous defence of political constitutionalism being J A G Griffith’s Chorley Lecture, ‘The Political Constitution’ (1979) 42(1) Modern Law Review 1. See also Adam Tomkins, ‘In Defence of the Political Constitution’ (2002) 22(1) Oxford Journal of Legal Studies 157; Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press, 2007); and Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (Cambridge University Press, 2010) ch 2.
93 This actually began over a decade earlier, when, in a series of judgments, Murphy J expressed the view that protections for various rights and freedoms could be implied from the Constitution: see, eg, Ansett Transport Industries (Operations) Pty Limited v Commonwealth (1977) 139 CLR 54, 88; Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237, 267; McGraw-Hinds (Australia) Pty Ltd v Smith (1979) 144 CLR 633, 670; Sillery v The Queen (1981) 180 CLR 353, 362; and Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556, 581–2.
94 Susan Kenny, ‘Evolution’ in Cheryl Saunders and Adrienne Stone (eds) The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018) 119, 123.
95 See, eg, Leeth v Commonwealth (1992) 174 CLR 455, 485–7, 491–3, where Toohey and Deane JJ found that a provision of the Commonwealth Prisoners Act 1967 (Cth) relating to the setting of non-parole periods for Commonwealth offences by State or Territory courts was invalid as it infringed a ‘doctrine of legal equality’, which they implied from the Constitution. See also John Toohey, ‘A Government of Laws, and Not of Men?’ (1993) 4(3) Public Law Review 158, 170.
96 See, eg, George Winterton, ‘Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends?’ in Charles Sampford and Kim Preston (eds) Interpreting Constitutions: Theories, Principles and Institutions (Federation Press, 1996) 121; Leslie Zines, ‘A Judicially Created Bill of Rights?’ (1994) 16(2) Sydney Law Review 166, 180–4.
97 As in the context of the implied freedom of political communication, where the High Court has repeatedly emphasised that what is protected is not a personal right: see, eg, Unions NSW v New South Wales (2013) 252 CLR 530, 554 (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
98 Aronson, Groves and Weeks (n 29) 133.
99 AV Dicey, Lectures Introductory to the Study of the Law of the Constitution, ed JWF Allison (Oxford University Press, 2013) 95.
100 See, eg, Allan (n 91) 625. This perspective was subsequently expanded upon in Allan’s other scholarship: see, eg, TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, 2001); TRS Allan, The Sovereignty of Law: Freedom, Constitution and Common Law (Oxford University Press, 2013). See also John Laws, ‘Law and Democracy’ [1995] (Spring) Public Law 72, 84-8; Sir John Laws ‘The Good Constitution’ (2012) 71(3) Cambridge Law Journal 567.
101 See, eg, Tom R Hickman, ‘In Defence of the Legal Constitution’ (2005) 55(4) University of Toronto Law Journal 981, 987–8. This is not to suggest that such arguments are not controversial. However, orthodox accounts of Dicey’s theory sometimes overlook the way in which it was likely influenced by his own political beliefs. Dicey did not believe in expanded franchises, wide-reaching legislation or the administrative state. He expressed reservations about the emergence of ‘democratic constitutionalism’ in his introduction to the 8th edition of the Law of the Constitution, published in 1914: see, eg, Dicey (n 99) 415, 482–3. His theory was informed by an understanding that the members of Parliament would be drawn from the same social class as the judges of his day, meaning, in effect, that in propounding it he did not envisage legislation that did not accord with his formulation of the rule of law: see Martin Loughlin, Public Law and Political Theory (Clarendon Press, 1992) 140–59. This context is relevant for understanding why these kinds of arguments may have less traction in Australia – the Australian Constitution is, arguably at least, underpinned by a somewhat different set of political beliefs to those informing Dicey’s theory.
102 Dicey (n 99) 116.
103 Mark Tushnet, ‘Foundations of Public Law: A View from the United States’ in Michael A Wilkinson and Michael W Dowdle (eds), Questioning the Foundations of Public Law (Hart Publishing, 2018) 209, 209.
104 Ibid 210.
105 See, eg, Bradley Selway, ‘The Principle Behind Common Law Judicial Review of Administrative Action—The Search Continues’ (2002) 30(2) Federal Law Review 217, 229–30, who said that where there was a ‘written Constitution the debate must begin with the document’.
106 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 39–40 (Mason J).
107 Kioa (n 14) 611 (Brennan J).
108 Li (n 29) 366 (Hayne, Kiefel and Bell JJ), 371 (Gageler J).
109 See, eg, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 390–1 (McHugh, Gummow, Kirby and Hayne JJ) (‘Project Blue Sky’); Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146, 156–7 (Gummow, Hayne, Heydon and Crennan JJ) (‘Futuris’).
110 Project Blue Sky (n 109) 390.
111 See, eg, Crawford (n 3) 289–90.
112 Bateman and McDonald (n 13).
113 Ibid 164.
114 Kioa (n 14).
115 Ibid 610.
116 Ibid.
117 Mason ‘Judicial Review: The Contribution of Sir Gerard Brennan’ (n 69) 46.
118 Kioa (n 14) 584.
119 See, eg, Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 666 (Gummow, Hayne, Crennan and Bell JJ), citing Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, 100–1 (Gaudron and Gummow JJ), in turn drawing upon authority including that of Brennan J in Kioa (n 14) at 615.
120 Bateman and McDonald (n 13) 154.
121 Ibid 175. For a period during the 1990s and early 2000s the High Court was subjected to critique for what was perceived by some to be ‘judicial activism’: see, eg, Tanya Josev, The Campaign Against the Courts: A History of the Judicial Activism Debate (Federation Press, 2017), in particular ch 5. For specific reference to controversies in the context of judicial review of migration decisions, see McMillan (n 81).
122 Bateman and McDonald (n 13) 176.
123 Ibid.
124 Zheng v Cai (2009) 239 CLR 446, 455–6, as quoted by Bateman and McDonald (n 13) 178.
125 Bateman and McDonald (n 13) 179.
126 See, eg, Jeffrey Goldsworthy, ‘Australia: Devotion to Legalism’ in Jeffrey Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (Oxford University Press, 2007) 106.
127 See, eg, Brian Galligan, The Politics of the High Court: A Study of the Judicial Branch of Government in Australia (University of Queensland Press, 1987) 252 and Haig Patapan, Judging Democracy: The New Politics of the High Court of Australia (Cambridge University Press, 2000) 3.
128 Stephen Gageler, ‘Foundations of Australian Federalism and the Role of Judicial Review’ (1987) 17(3) Federal Law Review 162; Stephen Gageler, ‘Beyond the Text: A Vision of The Structure and Function of The Constitution’ (2009) 32(2) Australian Bar Review 138 (‘Beyond the Text’).
129 Gageler, ‘Beyond the Text’ (n 128) 152.
130 Ibid.
131 An example of this approach is Commonwealth v Australian Capital Territory (2013) 250 CLR 441, in which the Court, writing together, made it clear that the term ‘marriage’ as it appeared in s 51(xxi) could clearly accommodate a meaning that was quite different to what it would have had at Federation and it was within the power of the Commonwealth Parliament to legislate for marriage equality: see, eg, 462–3 and 467.
132 See, eg, Taggart (n 4) 8.
133 See, eg, Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 82 (Dixon J).
134 FAI Insurances (n 17). See Bateman and McDonald (n 13) 164–5.
135 FAI Insurances (n 17) 407–10 (Brennan J). While a majority of the High Court, with only Murphy J in dissent, found that the requirements of natural justice applied to the decision under challenge, only Brennan J entered into a discussion of the source of the requirements.
136 Bateman and McDonald (n 13) 165.
137 Ibid 166, citing Kioa (n 14) 611.
138 Ibid.
139 Ibid.
140 See Kioa (n 14) from 609 throughout.
141 (1979) 2 ALD 634.
142 See, eg, Matthew Groves, ‘Legitimate Expectations in Australia: Overtaken by Formalism and Pragmatism’ in Matthew Groves and Greg Weeks (eds), Legitimate Expectations in the Common Law World (Hart Publishing, 2017) 319, 324, where he noted ‘the often neglected point that Brennan J exercised as much influence on the evolution of merits review in his role as the first president of the AAT as he did on judicial review in his role as a Justice of the High Court’.
143 Kioa (n 14) 622.
144 Ibid 623, emphasis added.
145 Quin (n 9) 37, emphasis added. Note the similarity between this statement and the judgment of Fullagar J in Australian Communist Party v Commonwealth (1951) 83 CLR 1, 262–3. Like Brennan J in Quin, Fullagar J referred to the principle in Marbury v Madison, noting that it was ‘axiomatic’ in the Australian system. He noted, however, that it was ‘modified in varying degree in various cases (but never excluded) by the respect which the judicial organ must accord to the opinions of the legislative and executive organs’.
146 Quin (n 9) 37–8.
147 Andrew Inglis Clark, Studies in Australian Constitutional Law (Charles F Maxwell (G Partridge & Co), 1901) 205.
148 Quin (n 9) 36.
149 Ibid 36-7.
150 Cf Mark Aronson, ‘The Growth of Substantive Review: The Changes, their Causes and their Consequences’ in John Bell et al (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Hart Publishing, 2016) 113, 136, where it is suggested that owing to the development of more substantive approaches to judicial review of administrative action, the merits are residual, or in other words, ‘the left-overs from the court’s scrutiny’.
151 Quin (n 9) 36.
152 Bateman and McDonald (n 13) 175.
153 See, eg, ibid 155, where Bateman and McDonald say that one consequence of the embrace of the statutory approach is the abandonment of ‘the idea that administrative law norms play any role in legitimising the administrative state by contributing to some underlying idea of justified or legitimate administration’.
154 In Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, Griffith CJ said that the phrase ‘judicial power’ in s 71 of the Australian Constitution meant the power ‘which every sovereign authority must of necessity have’ to decide controversies about rights: at 357.
155 See, eg, T T Arvind and Lindsay Stirton, ‘The Curious Origins of Judicial Review’ (2017) 133 (January) Law Quarterly Review 91, 114–116, where they grapple with the nature of the interests involved and the claims at stake, and note the limitations of modern doctrine in addressing the problems raised.
156 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 221.
157 Cole v Whitfield (1989) 165 CLR 360.
158 (1990) 169 CLR 436.
159 Ibid 472.
160 Ibid 473.
161 Kioa (n 14) 611.
162 Ibid.
163 Quin (n 9) 35 (emphasis added).
164 Gerard Brennan, ‘The Purpose and Scope of Judicial Review’ in Michael Taggart (ed) Judicial Review of Administrative Action in the 1980s: Problems and Prospects (Oxford University Press, 1987) 18, 29.
165 Gerard Brennan, ‘The Review of Commonwealth Administrative Power: Some Current Issues’ in Robin Creyke and Patrick Keyzer (eds) The Brennan Legacy: Blowing the Winds of Legal Orthodoxy (Federation Press, 2002) 9, 9.
166 Sir Gerard Brennan, ‘The Parliament, The Executive and The Courts: Roles and Immunities’ (1997) 9(2) Bond Law Review 136, 142. See also Lord Hailsham, ‘Elective Dictatorship’ (Richard Dimbleby Lecture, BBC, 14 October 1976), published in The Listener (London, 21 October 1976).
167 See Kioa (n 14) from 610–619 in particular.
168 See, eg, the contributions to Matthew Groves and Greg Weeks (eds), Legitimate Expectations in the Common Law World (Hart Publishing, 2017).
169 See Lam (n 30) 27–28 (McHugh and Gummow JJ).
170 Ibid.
171 See ibid, 9–10 (Gleeson CJ); 23–25 (McHugh and Gummow JJ); 48 (Callinan J). See, eg, Greg Weeks, ‘Holding Government to its Word: Legitimate Expectations and Estoppels in Administrative Law’ in Matthew Groves (ed), Modern Administrative Law in Australia: Principles and Practice (Cambridge University Press, 2014) 224, 244.
172 See, eg, Kioa (n 14) 617.
173 Aronson, Groves and Weeks (n 29) 427.
174 Kioa (n 14) 616–617.
175 Quin (n 9) 37.
176 Plaintiff S10 (n 119).
177 Ibid 666 (Gummow, Hayne, Crennan and Bell JJ) (citations omitted).
178 See Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 258–259 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) and Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 352 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
179 Aronson, Groves and Weeks (n 29) 415.
180 Ibid.
181 Ibid 130.
182 Ibid.
183 Ibid 132 (emphasis in original).
184 Quin (n 9) 35.
185 Ibid 36.
186 He does, however, cite an earlier article by Jack Beatson, ‘The Scope of Judicial Review for Error of Law’ (1984) 4(1) Oxford Journal of Legal Studies 22, which referred to the emerging challenge to ultra vires.
187 Oliver (n 82) 543.
188 See especially Selway (n 105).
189 Tushnet (n 103) 209–210.
190 Laws, ‘Law and Democracy’ (n 100) 79.
191 Forsyth (n 87) 136.
192 Paul Craig, ‘Ultra Vires and the Foundations of Judicial Review’ (1998) 57(1) Cambridge Law Journal 63, 64.
193 Ibid 65.
194 Ibid 67.
195 Forsyth (n 87) 136. This is reminiscent of Walter Bagehot’s observation that the English Constitution was comprised of both ‘dignified’ and ‘efficient’ parts: see Walter Bagehot, The English Constitution (Oxford University Press, 2009) 7.
196 Taggart (n 4) 14.
197 Australian Constitution ss 73, 75.
198 Kirk (n 11).
199 Ibid 580–1 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
200 See, eg, Oliver (n 82) 545, where she noted that ‘[a] considerable part of the activity of central government is carried on under de facto or common law powers’.
201 Paul Finn, ‘Public Trusts and Fiduciary Relations’ in Charles Sampford, Ken Coghill and Tim Smith (eds), Fiduciary Duty and the Atmospheric Trust (Routledge, 2012) 32, 35.
202 Ibid.
203 Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1, 24 (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
204 Robert French, ‘The Principle of Legality and Legislative Intention’ (2019) 40(1) Statute Law Review 40, 41.
205 See, eg, Amalgamated Society of Engineers’ v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 151–152 (Knox CJ, Isaacs, Rich and Starke JJ); Gageler, ‘Foundations of Australian Federalism and the Role of Judicial Review’ (n 128) 188.
206 This narrative has been challenged in recent years. See, eg, Elisa Arcioni and Adrienne Stone, ‘The Small Brown Bird: Values and aspirations in the Australian Constitution’ (2016) 14(1) International Journal of Constitutional Law 60; Rosalind Dixon (ed), Australian Constitutional Values (Hart Publishing, 2018); Dylan Lino, ‘The Australian Constitution as Symbol’ (2020) 48(4) Federal Law Review 543.
207 Discretion is a necessary feature of the administrative state: see, eg, DJ Galligan, Discretionary Powers: A Legal Study of Official Discretion (Clarendon Press, 1986) 72–84. However, Dicey equated discretion with arbitrariness: see, eg, Dicey (n 99) 98. On the failure of Diceyan constitutionalism to properly account for administrative power see HW Arthurs, ‘Rethinking Administrative Law: A Slightly Dicey Business’ (1979) 17(1) Osgoode Hall Law Journal 1; Matthew Lewans, ‘Re-Thinking the Diceyan Dialectic’ (2008) 58(1) University of Toronto Law Review 75. In the United States Phillip Hamburger has argued that administrative power is unconstitutional: see Phillip Hamburger, Is Administrative Law Unlawful? (University of Chicago Press, 2014). Cf Adrian Vermeule, ‘“No” Review of Phillip Hamburger, “Is Administrative Law Unlawful?”’ (2015) 93 Texas Law Review 1547.
208 There is a lot that might be said on this point. Both prior to and after Federation there was a reliance upon governments to provide infrastructure and services: see, eg, John Wanna and Patrick Weller, ‘Traditions of Australian Governance’ (2003) 81(1) Public Administration 63, 65–71. Justice Gageler has said of the Commonwealth’s executive power in s 61 of the Australian Constitution that it ‘was always to involve broad powers of administration, including in relation to the delivery of government services’: see Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, 96.
209 See, eg, the judgment of Gibbs CJ in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, in particular at 668–670, where his Honour gives an account of some of the functional limits of judicial power in support of his conclusion that there was no generally applicable common law right to reasons.
210 Gageler, ‘Beyond the Text’ (n 128) 147.
211 Ibid 152.
212 Jane Addams, Democracy and Social Ethics (Belknap Press, 1964) 11–12.
213 See, eg, Peter Mair, ‘Ruling the Void? The Hollowing of Western Democracy’ (2006) 42 New Left Review 25.
214 See, eg, AV Dicey, Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century (Transaction Books, 1981) xxx–xxxii.
215 See Bateman and McDonald, who note that their argument is not that ‘under the statutory approach the judges do or can engage in value-free analysis’: (n 13) 179
216 Lord Reid, ‘The Judge as Law Maker’ (1972) 12(1) Journal of the Society of Public Teachers of Law 22, 22.
217 See, eg, Sir Anthony Mason, ‘The Judge as Law-maker’ (1996) 3 James Cook University Law Review 1, 1 where he draws upon Lord Reid’s speech and adds ‘[n]othing is to be gained by spending time in demonstrating what is obvious to everyone’.
218 Reid (n 216) 22.