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The Principle behind Common Law Judicial Review of Administrative Action—The Search Continues

Published online by Cambridge University Press:  24 January 2025

Bradley Selway QC
Bradley Selway QC*
Affiliation:
Solicitor General for South Australia; University of Adelaide
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Extract

The common law has had considerable difficulty in identifying a principle or principles by which to explain the role of the courts in reviewing administrative action. In this article it is argued that that principle is necessarily a constitutional principle and that the starting point for its analysis in Australian law is the Commonwealth Constitution. It is then argued that the Commonwealth Constitution, and in particular the separation of judicial power within it, necessarily limits the extent of permissible judicial review. In particular, the separation of judicial power justifies and requires the distinction between jurisdictional and non-jurisdictional errors and the distinction between invalidity and merit review in Australian administrative law. This constitutional basis for judicial review, combined with the discipline of a written Constitution, also explains why recent developments in English and New Zealand common law in relation to judicial review are not appropriate or applicable to Australia.

Type
Research Article
Information
Federal Law Review , Volume 30 , Issue 2 , June 2002 , pp. 217 - 237
Copyright
Copyright © 2002 The Australian National University

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Footnotes

I acknowledge the assistance of Peter Psaltis and of Ben Allgrove, both of the South Australian Crown Solicitor's Office, for their helpful comments and for checking references. I also thank the reviewers for their suggestions. The mistakes, of course, are my own.

References

1 Stephen, Gageler, 'The Underpinnings of Judicial Review of Administrative Action: Common Law or Constitution' (2000) 28 Federal Law Review 303Google Scholar

2 Pyrenees Shire Council v Day (1998) 192 CLR 330, 397 (Kirby J).

3 Louis Jaffe and Edith Henderson, 'Judicial Review and the Rule of Law: Historical Origins' (1956) 72 Law Quarterly Review 345. The writers point out that the development of judicial review was a consequence of the separation of functions between the courts and the executive during the 17th century. The courts asserted the power to determine the legality of executive action. The task of the courts was 'to contain administrative activity within the bounds of delegated power: to apply to administrative action the test of “legality"' ibid 346. It should be noted that Susan Kneebone, 'What is the Basis of Judicial Review' (2000) 12 Public Law Review 95, 97-98 argues that Jaffe and Henderson identify the source of judicial review as the autonomy, if not the supremacy, of the common law. However, this seems to read too much into the article.

4 See, for example, the explanation by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 citing Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35 6.

5 Darcy v Allein (1602) 11 Co Rep 84b; 77 ER 1260 and see The Case of Proclamations (1610) 12 Co Rep 74; 77 ER 1260, 'Also it was resolved that the King hath no prerogative but that which the law of the land allows him'.

6 See, for example, Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508.

7 (1992) 175 CLR 564, 584.

8 Minister for Immigration & Multicultural Affairs v Bhadwaj (2001) 187 ALR 117, 120 [11], 128 [47], 130 [54], 132 [66], 144-145 [112]-[113], 148 [129], 155 [153]; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 372 5, 388 91; R v Wicks [1998] AC 92, 117; Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, 89 91.

9 This is discussed below, see text accompanying nn 111-4.

10 Minister for Immigration & Multicultural Affairs v Bhadwaj (2001) 187 ALR 117, 129 [51]-[53], 153 [149], 154 [152], 156 [163]; Craig v State of South Australia (1995) 184 CLR 163, 176 80; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 145 6, 158; Foster v Minister for Customs & Justice (1999) 164 ALR 357, 359 60 [6][8].

11 Craig v State of South Australia (1995) 184 CLR 163, 179 80.

12 Anisminic v Foreign Compensation Commission [1969] 2 AC 147.

13 See Boddington v British Transport Police [1999] 2 AC 143, 171 and see discussion below.

14 See, eg, Naomi Sidebotham, 'Shaking the Foundations: Dicey, Fig Leaves and Judicial Review' (2001) 8 Australian Journal of Administrative Law 89, 95 6. The main theme of the Sidebotham article is a criticism of the requirement for jurisdictional error. That theme is not affected by this criticism of the analysis.

15 [1947] 1 KB 223.

16 Ibid 229.

17 [1898] 2 QB 91. In Wednesbury Lord Greene referred to only one previous authority when setting out his test of Wednesbury unreasonableness. The previous case referred to was Short v Poole Corporation [1926] Ch 66. However, that was a case concerning alleged improper motives or taking into account irrelevant considerations. The only reference in that case to unreasonableness is by Pollack MR at 87-8. Pollock MR cites Kruse v Johnson.

18 On the English approach, Wednesbury unreasonableness is not based upon statutory interpretation and consequently cannot be explained in terms of the ultra vires theory: See Sir John Laws, 'Wednesbury' in Christopher Forsyth and Ivan Hare (eds), The Golden Metwand & the Crooked Cord (1998) 185 ff; Jeffrey Jowell, 'Of Vires and Vacuums: The Constitutional Context of Judicial Review' [1999] Public Law 448, 454–5.

19 Williams v Melbourne Corporation (1933) 49 CLR 142, 155; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 100–101 [40]; Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (2nd ed, 1999) 229 34.

20 Mark, Aronson, 'Unreasonableness and Error of Law' (2001) 24 University of New South Wales Law Journal 315, 318Google Scholar

21 Geoff, Airo-Farulla, 'Rationality and Judicial Review of Administrative Action' (2000) 24 Melbourne University Law Review 543Google Scholar

22 See, eg, the description of the theoretical basis in Kioa v West (1985) 159 CLR 550, 609.

23 See Bradley Selway, 'Judicial Review A Process in Search of a Principle' (1998) 19 Australian Institute of Administrative Law Forum 18.

24 For this purpose an error of law may include errors in findings of 'primary' facts: see Waterford v Commonwealth (1987) 163 CLR 54, 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 340 41.

25 See Craig v South Australia (1995) 184 CLR 163, 175 6, 180 83; JW Shaw and FJ Glynne, 'Certiorari and Error on the Face of the Record' (1997) 70 Australian Law Journal 356.

26 See R v Criminal Injuries Board; Ex parte Lain [1967] 2 QB 864.

27 [1985] AC 374.

28 Ibid 407; see generally Brigid Hadfield, 'Judicial Review and the Prerogative Powers of the Crown' in Maurice Sunkin and Sebastian Payne (eds), The Nature of the Crown (1999) 197 ff.

29 See Von Einem v Griffin (1998) 72 SASR 110, 114, 126; Victoria v Master Builders Association [1995] 2 VR 121; Minister for the Arts v Peko-Wallsend (1987) 15 FCR 274; Peter Bayne, 'The Common Law Basis for Judicial Review' (1993) 67 Australian Law Journal 781 and Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 114 8, 142 51.

30 Examples include those bodies that have the right to determine whether a person can work in a particular trade or profession, such as sports associations, trade unions and professional associations. See eg Nagle v Feilden [1966] 2 QB 633; Forbes v NSW Trotting Club (1979) 143 CLR 242; Mitchell v Royal NSW Canine Council Ltd (2001) 52 NSWLR 242, 246–7; AFL v Carlton Football Club [1998] 2 VR 546, 552; Martin Kosla, 'Disciplined for “Bringing Sport into Disrepute"—A Framework for Judicial Review' (2000) 25 Melbourne University Law Review 654; Sonya Gorman, 'Legislative Recognition of Churches and the Implications for Judicial Review' (2002) 9 Australian Journal of Administrative Law 84.

31 R v Panel on Take-Overs & Mergers; Ex parte Datafin plc [1987] QB 815; R v Disciplinary Committee of the Jockey Club; Ex parte Aga Khan [1993] 2 All ER 853, 863–4, 874; Victoria v Masters Builders Association [1995] 2 VLR 121. See, The Hon J J Spigelman, 'Foundations of Administrative Law: Towards General Principles of Institutional Law' (1999) 58 Australian Journal of Public Administration 3, 57.

32 See, eg, Paul Craig, 'Public Law and Control Over Private Power' in Michael Taggart (ed), The Province of Administrative Law (1997) 196 ff.

33 Dawn Oliver, 'Is the Ultra Vires Rule the Basis of Judicial Review?' [1987] Public Law 543.

34 See, eg, Bayne, above n 29, 781.

35 H L A Hart, 'Law, the rule of' entry in New Fontana Dictionary of Modern Thought (3rd ed, 1999) 471. For a discussion of various uses of the phrase see Paul Craig, 'Formal and Substantive Conceptions of the Rule of Law' [1997] Public Law 467 where the use of the phrase by Raz, Dicey, Dworkin and others is contrasted.

36 R W M Dias, 'Legal Politics: Norms Behind the Grundnorm' (1968) Cambridge Law Journal 233; T R S Allan, Law Liberty and Justice (1993); Jeffrey Jowell, 'The Rule of Law Today' in Jeffrey Jowell and Dawn Oliver The Changing Constitution (3rd ed, 1994) 57; Craig, above n 35; T R S Allan, 'Fairness, Equality, Rationality: Constitutional Theory and Judicial Review' in Christopher Forsyth and Ivan Hare (eds), The Golden Metwand and the Crooked Cord (1998) 15 ff; T R S Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (2001).

37 See, eg, Lord Woolf, 'Droit Public—English Style' [1995] Public Law 57, 67 71; Sir John Laws, 'Law and Democracy' [1995] Public Law 72; Sir John Laws, 'Public Law and Employment Law: Abuse of Power' [1997] Public Law 455, 464–6.

38 Boddington v British Transport Police [1999] 2 AC 143, 171. See also R v Wicks [1998] AC 92. Of course, it is possible that Lord Steyn was using the phrase in a broader sense than merely ultra vires of a statute. See Sir Anthony Mason, 'The Foundations and the Limitations of Judicial Review' forthcoming (2001) 32 Australian Institution of Administrative Law Forum where there is a discussion of the breadth of the English position even when ostensibly based upon ultra vires theory.

39 Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539, 590–91; Thomas v Baptiste [2000] 2 AC 1, 22; R v Secretary of State for the Foreign & Commonwealth Office; Ex parte Bancoult [2001] QB 1067, 1095 [36], 1100 101 [45][47], 1103 4 [55][57] (holding that a 'peace, order and good government' power is subject to Wednesbury unreasonableness; Thoburn v Sunderland City Council [2001] EWCH Admin 934 [62]–[63] (holding that 'constitutional' statutes cannot be impliedly repealed). It is clear from these cases, particularly Bancoult and Thoburn that this approach involves a significant change to the UK Constitution, as it was previously understood. This change has not been adopted in Australia: contrast Bancoult with Durham Holdings v NSW (2001) 177 ALR 436.

40 [2001] 1 WLR 840, 847.

41 [2001] 3 All ER 433, 446 7, 448.

42 The proportionality principle had previously been rejected by the House of Lords in R v Secretary of State for the Home Department; Ex parte Brind [1991] 1 AC 696.

43 R v Secretary of State for the Home Department; Ex parte Daly [2001] 3 All ER 433, 439 40, 445 7, 447, 448.

44 John, McMillan, 'The Foundations and Limitations of Judicial Review A Commentary'. (Paper presented at the 2002 Constitutional Law Conference organised by the Gilbert and Tobin Centre of Public Law of the University of NSW, Sydney, 15 February, 2002) (copy on file with the author).Google Scholar

45 See Philip Joseph, 'The Demise of Ultra Vires—Judicial Review in the New Zealand Courts' [2001] Public Law 354; Sir Robin Cooke, 'Fundamentals' [1988] New Zealand Law Journal 158; Peters v Davison [1999] 2 NZLR 164, 180 81; Dunlea v Attorney-General [2000] 3 NZLR 136, 159 [73].

46 See, eg, Murray Hunt, 'Constitutionalism and Contractualisation of Government in the United Kingdom' in Taggart, above n 32, 27 33.

47 See Bayne, above n 29, 784; Len King, 'The Separation of Powers' in Courts in a Representative Democracy, Australian Institute of Judicial Administration (1995) 1, 10; Sir Gerard Brennan, 'The Purpose and Scope of Judicial Review' in Michael Taggart (ed),Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 18, 19; Laws, 'Law and Democracy', above n 37; Paul Craig, 'Ultra Vires and the Foundations of Judicial Review' (1998) Cambridge Law Journal 63; Paul Craig, 'Competing Models of Judicial Review' [1999] Public Law 428; Dawn Oliver and Gavin Drewry,The Law and Parliament (1998) 1, 3; Sir David Williams, The Judiciary and Judicial Review, Centre for International and Public Law, Australian National University, Law and Policy Paper No 7 (1997) 10 14.

48 See also H W R Wade and C Forsyth, Administrative Law (7th ed, 1994) 496; Lord Lester, 'European Human Rights and the British Constitution' in Jowell and Oliver above n 36, 46– 52; Lord Browne-Wilkinson, 'The Infiltration of a Bill of Rights' [1992] Public Law 397, 399; Sir John Laws, 'Is the High Court the Guardian of Fundamental Constitutional Rights?' [1993] Public Law 59. One way in which the courts could give effect to Convention rights was because such rights were recognised as part of the law of the European Union which had the effect of incorporating the Convention Rights into UK law: see Sydney Kentridge, 'Parliamentary Supremacy and the Judiciary Under a Bill of Rights: Some Lessons from the Commonwealth' [1997] Public Law 96, 97 8; Wade and Forsyth, ibid; S A De Smith, Sir Harry Woolf and Jeffrey Jowell, Judicial Review of Administrative Action (5th ed, 1995) 13. Another way was by treating the principles contained in the European Convention as being already reflected in the common law or, if not, by arguing that they should be so reflected: see Richard Rawlings, 'Legal Politics: The United Kingdom and Ratification of the Treaty on European Union (Part 2)' [1994] Public Law 367.

49 [2001] QB 213.

50 See Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273, 291; Victoria v Master Builders Association [1995] 2 VR 121, 166; Fisher v Minister of Public Safety & Immigration (No 2) [2000] 1 AC 434, 446 7; Paul Finn, 'Controlling the Exercise of Power' (1996) 7 Public Law Review 86, 93. As it was put by the Privy Council in Thomas v Baptiste [2000] 2 AC 1, 25, 'a decision-maker is free to act inconsistently with the expectation in any particular case provided that he acts fairly towards those likely to be affected'.

51 [2001] QB 213, 243 6.

52 For example, in R v Secretary of State for the Home Department; Ex parte Daly [2001] 3 All ER 433 the acceptance of the principle of proportionality in administrative law would seem to be based upon both the common law and the Human Rights Act 1998 (UK). See Paul Craig, 'The Courts, Human Rights Act and Judicial Review' (2001) 117 Law Quarterly Review 589, 594.

53 Paul Craig and Nicholas Bamford, 'Review Article: Constitutional Analysis, Constitutional Principle and Judicial Review' [2001] Public Law 763, 767; Jeffrey Jowell, 'Beyond the Rule of Law: Towards Constitutional Judicial Review' [2000] Public Law 671, 675.

54 See Sir Robin Cooke, 'Fundamentals' (1988) New Zealand Law Journal 158; Laws, 'Law and Democracy' above n 37; Joseph, above n 45.

55 Kneebone, above n 3, 103 12; see also Gageler, above n 1.

56 (1985) 159 CLR 550.

57 Ibid 582.

58 Ibid 609.

59 (1990) 170 CLR 1 ('Quin').

60 Ibid 36.

61 Ibid 35 6.

62 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Abebe v Commonwealth (1999) 197 CLR 510, 579 [195].

63 Craig v South Australia (1995) 184 CLR 163, 176–80; Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602, 630 34; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 372 5 [34][41], 389 91 [92][93]; Corporation of the City of Enfield v Development Assessment Commission (2000) 169 ALR 400, 417 [59]; Coal & Allied Operations v AIRC (2000) 174 ALR 585, 595 [32], 609 [81]; Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82, 140 41 [160][163].

64 Described by Gaudron J as the two Australian approaches: see Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, 258 [89][90].

65 See Gageler, above n 1, 306 7; Sir Anthony Mason, 'Judicial Review: A View From Constitutional and Other Perspectives' (2000) 28 Federal Law Review 331, 332; Kneebone, above n 3, 105 6; Aronson and Dyer, above n 29, 312. However, it is not obvious why this is necessarily true. In each instance it depends upon the content of the implication, rather than its source. It cannot be assumed that the common law will always be more 'liberal' than the Parliament.

66 Mason, above n 65, 331 9.

67 The more recent approach of Sir Anthony Mason may have been affected by the English approach. In Li Shuk Fai v Director of Immigration [2002] HKCAFA 2 [87][99] Mason joined with the other members of the Hong Kong Final Court of Appeal in following the decision of the UK Court of Appeal in R v North & East Devon Health Authority; Ex parte Coughlin [2001] QB 213. Of course, that decision was given in a very different constitutional framework and could not be taken as suggesting that Mason would agree that that approach would be available in Australia. Nevertheless, the approach in that case does seem different to that previously taken by Mason.

68 Justice John Toohey in an article 'A Government of Laws and Not of Men?' (1993) 4 Public Law Review 158, 158 60 did discuss the 'rule of law' in terms similar to that of English commentators and judges, eg, that the rule of law as insisting on 'adherence to fundamental principles, especially the recognition of human rights'. In that article he concluded that the courts can invalidate statutes for breach of such fundamental principles. His Honour's judgments did not reflect this approach. Other Australian commentators have taken a similar approach, see, eg, Linda J Kirk, 'Chapter III and Legislative Interference with the Judicial Process: Abebe v Commonwealth and Nicholas v The Queen' in Adrienne Stone and George Williams (eds), The High Court at the Crossroads: Essays in Constitutional Law (2000) 119, 120 26.

69 See David Dyzenhaus, 'The Politics of Deference: Judicial Review and Democracy' and Madame Justice Clair L'Heureux-Dube, 'The Ebb and Flow of Administrative Law on the General Question of Law' both in Taggart above n 32, 279 and 308 respectively.

70 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135.

71 (1994) 2 SCR 557, 589-590 ; 114 DLR (4th) 385, 404; see also Deputy Minister of National Review v Mattel Canada Inc (2001) 2 SCR 100, 113-115; 199 DLR (4th) 598, 608 9; Moreau Berube v New Brunswick (Judicial Council) [2002] SCC 11 [36][67].

72 Judicial review by the ordinary courts is not the only mode of review within a constitutional context, see, eg, the specialised German courts discussed in Cheryl Saunders, 'Administrative Law and Relations Between Governments: Australia and Europe Compared' (2000) 28 Federal Law Review 263, 280–3, 285–6.

73 See Justice William Gummow 'The Permanent Legacy' (2000) 28 Federal Law Review 177, 180; Mason, above n 65.

74 However, Lord Lester is probably correct when he says that the changes have occurred 'without great public controversy': Lord Lester, 'Developing Constitutional Principles of Public Law' (2001) Public Law 684, 685.

75 Bradley Selway, 'Horizontal and Vertical Assumptions Within the Commonwealth Constitution' (2001) 12 Public Law Review 113, 134.

76 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 193; Miller v TCN Nine (1986) 161 CLR 556, 581; Kartinyeri v Commonwealth (1998) 195 CLR 337, 381; Abebe v Commonwealth (1999) 197 CLR 510, 560.

77 See Ronald Watts, Comparing Federal Systems (2nd ed, 1999) 99 100.

78 Commonwealth v Mewett (1997) 191 CLR 471, 546 8.

79 Re Carmody; Ex parte Glennan (2000) 173 ALR 145, 147; Re Patterson; Ex parte Taylor (2001)182 ALR 657, 673 [64]; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 188 ALR 1, 67 [263].

80 Cheng v The Queen (2000) 203 CLR 248, 278 9.

81 Abebe v Commonwealth (1999) 197 CLR 510, 560.

82 Kable v Director of Public Prosecutions (1996) 189 CLR 51 ('Kable'). The 'incompatibility principle' had previously been justified in relation to federal courts on the basis that such a principle was necessary in order to prevent the separation of powers doctrine from being undermined: Hilton v Wells (1985) 157 CLR 57, 67, 73 4, 81 2; Grollo v Palmer (1995) 184 CLR 348, 362, 364–5, 376, 390, 398. However, since the decision in Kable extended the principle to state parliaments and state courts it is clear that the incompatibility principle can no longer be justified on the basis of separation of powers principles. Rather, the incompatibility principle is now justified on the basis that the text and structure of the Constitution require an 'integrated court system' dealing with an 'integrated system of law'. The incompatibility principle as it applies both to federal and state courts is no longer an aspect of the principle of separation of powers contained within Chapter III, even though it is related to it: Kable (1996) 189 CLR 51, 95, 103 4, 117.

83 Kable (1996) 189 CLR 51, 95 6, 101 4, 110 16, 139 44. For example, the requirement of impartiality, which is recognised in the incompatibility principle, reflects the rule of law: Ex parte Miah (2001) 179 ALR 238, 282 n 133; Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644, 667 [103].

84 It would appear that the Canadian Supreme Court also takes a relatively narrow view of the rule of law in a constitutional context: Reference re Secesssion of Quebec [1998] 2 SCR 217, 247-250, 257-261; 161 DLR (4th) 385, 409 11 [49][54], 417 20[70][78].

85 Kruger v Commonwealth (1997) 190 CLR 1, 66 8, 112 14. Contrast Patrick Keyzer, 'Pfeiffer, Lange, the Common Law of the Constitution and the Constitutional Right to Natural Justice' (2000) 20 Australian Bar Review 87.

86 This analysis is fundamentally the same as that of Kneebone, above n 3, 99 and of Gageler, above n 1, 309–10. It differs from Susan Kneebone's analysis in that it views the Constitution (rather than a different common law analysis) as being the distinguishing feature between the English and the Australian approach. It differs from Stephen Gageler's in that it does not concentrate on s 75(v) as being the only relevant constitutional provision, and identifies the role of the Constitution in the development of the common law.

87 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 152–3; Leslie Zines, 'Federalism and Administrative Discretions in Australia, with European Comparisons' (2000) 28 Federal Law Review 291, 291–8.

88 Abebe v Commonwealth (1999) 197 CLR 510, 579–80; Nicholas v R (1998) 193 CLR 173, 197, 275–6; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Quin (1990) 170 CLR 1, 35–6; David Bennett, 'Balancing Judicial Review and Merits Review' (2000) 53 Administrative Review 3, 5–6.

89 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 557–9.

90 Keith Mason, 'The Rule of Law' in P D Finn (ed), Essays on Law and Government Vol 1 (1995) 114 ,125.

91 See D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed, 1996) 22–26. For the purposes of this article it is unnecessary to consider what is the 'correct' common law approach to statutory interpretation: see discussion in Antonin Scalia, A Matter of Interpretation (1997).

92 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 141 (Brennan J).

93 (2001) 185 ALR 183, 207 [113]; Australian Broadcasting Corporation v Lenah Game Meats (2001) 185 ALR 1, 56 [192] (Kirby J)

94 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 153 (Brennan J).

95 See Adrienne Stone, 'The Nature of the Freedom of Political Communication' (2001) 25 Melbourne University Law Review 374, 405-6; M G Sexton, 'Constitutional Intersections: The Common Law and the Constitution' (Paper presented at the Australian National University, Canberra, Annual Public Law Weekend, 2 November, 2001) (copy on file with the author). This would seem to be a necessary consequence of the High Court's approach in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 565–6; Lipohar v The Queen (1999) 200 CLR 485, 509 10, 534 6, 550 4 and in Pfeiffer v Rogerson (2000) 203 CLR 503. See also Theophanous v Herald & Weekly Times (1994) 182 CLR 104, 141 3, 153 5 (Brennan J). However, Adrienne Stone, in the above article and in 'Freedom of Political Communication, the Constitution and the Common Law' (1998) 26 Federal Law Review 219 is critical of aspects of the High Court's approach, particularly in Lange. Those criticisms seem to be adopted by Callinan J in Australian Broadcasting Corporation v Lenah Game Meats (2002) 185 ALR 1, 102-3 [347].

96 Mason, above n 65, 339 41.

97 The extent of deference in Canada is discussed above. The Canadian Constitution does not contain a strict separation of judicial power. Rather there is a narrower principle prohibiting the conferral of jurisdiction contrary to s 96 of the Canadian Constitution: see MacMillan Bloedel v Simpson [1995] 4 SCR 725, 737-43; 130 DLR (4th) 368, 390 4. This principle does not necessarily prevent judicial functions being conferred on administrators, particularly if such functions can be viewed as ancillary to administrative functions: see generally Peter Hogg Constitutional Law of Canada (4th ed, 1997) 197–205. The principle of judicial independence recently identified in the Canadian Constitution in Reference Re Public Sector Pay Reduction Act (PEI) [1997] 3 SCR 3; 150 DLR (4th) 577 would seem to be similar to the 'incompatibility principle' as applied by the Australian High Court, rather than a strict separation of judicial power.

98 See Chevron USA Inc v Natural Resources Defence Council Inc, 467 US 837 (1984) (' Chevron'). As to whether Chevron can be explained in constitutional terms, see Gummow J in Truth About Motorways v Macquarie (2000) 200 CLR 591, 635; Justice Ronald Sackville, 'The Limits of Judicial Review of Executive Action — Some Comparisons Between Australia and the United States' (2000) 28 Federal Law Review 315, 326; Bradley Selway, 'The Rule of Law, Invalidity and the Executive' (1998) 9 Public Law Review 196, 197 8. It is noted that the apparent breadth of the Chevron doctrine has recently been limited by the US Supreme Court: United States v Mead Corporation 121 US 2164 (2001).

99 The effect of the Constitution in relation to state courts is more limited than in relation to federal courts: see Kable v Direction of Public Prosecutions (1996) 189 CLR 51. However, the effect upon the common law is the same. This is for two reasons. First, there is a single common law and not (as in the US) separate federal and State common laws. Second, the effect of the constitutional principle is not direct; it merely provides a direction for the development of the common law. The development need not be limited to the constitutional principle so long as it is not repugnant to it.

100 In this context statutory 'appeals' de novo from administrative decisions must be distinguished from judicial review on the basis of merit. Even though there may be little or no difference in substance, the former will usually involve the exercise of judicial power; the latter would involve the exercise of executive power: see Precision Data Holdings v Wills (1991) 173 CLR 167, 189; R v Davison (1954) 90 CLR 353, 369–70; Pasini v United Mexican States (2002) 187 ALR 409, 412-3 [11]–[13], 421-7 [47]–[71]. This is not to deny that there may be some administrative functions which, by reason of their policy content, cannot be given to the judiciary even by describing the process as an 'appeal': see Mason, above n 65, 333 9.

101 The 'aspirational' aspects of the rule of law are proper matters for the consideration of the parliament and the executive. They have done so. John McMillan has drawn attention to the 'extraordinary phase of executive and parliamentary leadership in developing administrative law over the last three decades': see John McMillan, 'Parliament and Administrative Law' in G Lindell and R Bennett, Parliament The Vision in Hindsight (2001) 333 ff. Some public officers, particularly the Attorney-General, have a particular responsibility in respect of the 'aspirational' aspects of the rule of law: see Bradley Selway, 'The Duties of Lawyers Acting for Government' (1999) 10 Public Law Review 114. The aspirational aspects of the rule of law are still relevant within the Australian constitutional structure, but they cannot be enforced by judicial review.

102 Contrast Sidebotham, above n 14, who discusses the relevant issues in the context of the debate that has occurred in England. However, in Australia the debate must have a different commencing point in the Commonwealth Constitution; it also reaches a different conclusion.

103 Pelechowski v Registrar NSW Court of Appeal (1999) 198 CLR 435, 483–4 [145]; Re Heerey; Ex parte Heinrich (2001) 185 ALR 106, 110 [20]; See Aronson, above n 20; Peter Cane, 'Merits Review and Judicial Review—The AAT as Trojan Horse' (2000) 28 Federal Law Review 213, 220–21, 243. Of course, this merely reflects the fact that the distinction between judicial and non-judicial functions often appears artificial at least at the margins. However, at least Kirby J has doubted the constitutional significance of the distinction between jurisdictional and non-jurisdictional errors because the distinction is unsatisfactory: Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 188 ALR 1, 45 [172], 46 [175].

104 Although the Canadian Constitution does not contain as rigid a separation of judicial power as does the Commonwealth Constitution (see above) a separation of powers still remains. In any event, the Canadian Supreme Court also takes a relatively narrow view of the rule of law as a principle within the Canadian Constitution: Reference re Secesssion of Quebec [1998] 161 DLR (4th) 385, 409–11 [49]–[54], 417–40[70]–[78].

105 (2001) 177 ALR 436, 454 [62].

106 Philip, Joseph has commented (with considerable justification) '[f]or lawyers from outside the United Kingdom, the debate may seem excessively introspective and distracting' in Joseph, above n 45, 356Google Scholar

107 Stephen, Gageler, 'The Legitimate Scope of Judicial Review' (2001) 21 Australian Bar Review 279, 281–90; Leslie Zines, 'Constitutional Aspects of Judicial Review of Administrative Action' (1998) 1 Constitutional Law and Policy Review 50; contrast Kneebone, above n 3, 100 11Google Scholar

108 See Construction Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645, 660 [43] (the Court); Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, 133 6 (Kirby J); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, 290 92 (Kirby J). See also Gairy v Attorney-General (Grenada) [2002] 1 AC 167, 178 81.

109 See Minister for Immigration & Multicultural Affairs v Bhadwaj (2002) 187 ALR 117, 128 [47] (Gaudron and Gummow JJ); Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, 91 101 (Gaudron and Gummow JJ), 128 (McHugh J), 135 (Kirby J), 141 3 (Hayne J); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, 245 6 (Gleeson CJ and Hayne J), 258 (Gaudron J), 26 7 (McHugh J).

110 See discussion by Tony Cavanough, 'Constitutional Law: Intersections with Administrative Law' (Paper presented at the Australian National University, Canberra, Annual Public Law Weekend, 2 November, 2001) (copy on file with the author); Gageler, above n 107, 284–5.

111 Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 188 ALR 1, 23 [86], 27-28 [98][100], 65-66 [255][260].

112 Ibid at 70 [276].

113 Ibid at 43 [165]. However the Convention Debates suggests that there was no clear reason why certiorari was not included: see Official Record of the Debates of the Australian Federal Convention, Melbourne, 31 January 1898, 320-1, 1875-85.

114 (2002) 188 ALR 1, 8 [20], 17 [62], 21 [76], 62 [245]–[246] contrast 54 [207][208].

115 See, eg, prosecution discretions, Barton v R (1980) 147 CLR 75, 94 6; Director of Public Prosecutions (SA) v B (1998) 194 CLR 566, 578 80 (contrast the English position: R (Pretty) v DPP [2002] 1 All ER 1, 31, 33 4).