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.

The non-justiciability of certain executive decisions is based upon a number of notions including that of ‘polycentricity’, the unsuitability of certain types of power for review, deference to executive judgment, and the question of the judicially enforceable limits to power. In this article, it is argued that the concept is redundant. It is sufficient to consider whether a ground of review, invoked with an appropriate regard for the legalities merits distinction, is available. There is no further question of ‘justiciability’.

It is questionable whether it has ever really made sense to talk of ‘justiciability’ as a discrete notion, rather than justiciability upon this or that ground. Historically, it is trite to observe that questions of the existence and limits of the prerogative powers have been justiciable since at least the upheavals of the 17th century, even while courts would steadfastly refuse to examine the manner in which those powers were exercised. Thus, even prior to the decision in Council of Civil Service Unions v Minister for the Civil Service (‘CCSU’), non-justiciability in relation to prerogative powers meant simply the non availability of grounds of review other than the simplest form of ultra vires. CCSU itself established the potential availability of review of such powers for denial of procedural fairness, leaving open the question of whether the various abuse of power grounds might also be available. In short, the issue appears to be whether a decision is justiciable upon this or that ground of review, rather than the blanket availability or non availability of review. Once this point is grasped the inchoate concept of ‘justiciability’ becomes problematic at best. One need simply ask whether one or more grounds of review can be made out.

At the National Australasian Convention held in Sydney in 1891, Andrew Inglis Clark observed:

Inglis Clark was quoting Edward Augustus Freeman, Regius Professor of Modern History at Oxford University, whose History of Federal Government in Greece and Italy, first published in 1863, was the ‘classic nineteenth century exposition’ of the city-state leagues of ancient Greece, and is still cited today by specialists in the field.

Freeman, who succeeded William Stubbs to the Regius Chair, profoundly shaped nineteenth century conceptions of federalism, although studies of Australian federalism have tended to neglect his influence. While Freeman's reputation suffered in later years, his earlier career was celebrated and revered.

In March 2002 the class action regime introduced by the Commonwealth Parliament, through the addition of a new Part IVA to the Federal Court of Australia Act 1976 (Cth), celebrated its tenth ‘birthday'. During this time, a number of important issues, concerning the interpretation and application of Part IVA, have emerged.

The role of the judiciary in public law cases is a topic of debate in every age. The present age is no different. On topics as diverse as implied constitutional rights, native title, refugee determination and public sector tort liability, there has been a vigorous public debate between the critics and the defenders of judicial power. We live in an age, as the Tampa litigation reminds us, in which the national public policy agenda is increasingly structured by legal claims.

Many commentators would take the judicial role a step further by giving judges a more explicit role in applying human rights standards when evaluating the validity of executive (and, possibly, legislative) action. A constitutional or statutory Bill of Rights would be the most direct way of conferring that function on the judiciary. Less direct is the option, with steadily growing support, of judges taking account of international human rights instruments in discharging their adjudicative function. Whatever level of support those options attract, it seems probable that human rights principles will play an increasing role in judicial review of executive action. The principles are stamped already on many aspects of public law.