6 - The operation of judicial review in Australia

Summary

JUDICIAL REVIEW IN AUSTRALIA

The fabric to create an administrative law system was part of the invisible baggage brought by the first settlers to the Australian colonies after 1788. The first legal step taken to establish a colony – Governor Phillip's Proclamation at Sydney Cove – can, with contemporary eyes, be classified as an executive instrument, a species of subordinate legislation. Judicial review of government action, another mainstay of administrative law, was also an activity engaged in early by the fledgling court system. In an early public law case in 1825, the Chief Justice of the colony of New South Wales, Sir Francis Forbes, in a case brought by emancipated convicts against court officers who had failed to empanel them in jury lists, ruled that:

every court has of necessity a power to [compel the executive] to execute its process. This is a power necessarily incidental to the creation of courts.

When the British colonies were reconstituted at the turn of the twentieth century to form the new nation of Australia, the Constitution they adopted included a unique constitutional guarantee, section 75(v), which conferred upon the High Court of Australia a jurisdiction to grant three administrative law remedies to restrain federal agencies and officials from exceeding the limits of their power. While the practical significance of that guarantee has since been overshadowed by the comprehensive administrative law framework established by the legislature, the constitutional and common law foundation for administrative law retains its importance.