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VOLUME 45(4)







Between Form and Substance: Minimising Judicial Scrutiny of Executive Action


The privative clause is dead, but there are other ways of reducing meaningful judicial scrutiny of government illegality. Pushed to the extreme, these threaten to hollow out judicial review’s much-vaunted promise of protecting the rule of law, even on such a basic issue as the interpretation of an Act of Parliament. Other mechanisms for judicial supervision have also become more fragile. These include collateral challenge, and the potential for holding public officers to account through tort liability and criminal responsibility. ASIO officers, for example, have prospective immunities from tort law and criminal responsibility. Courts can act upon government evidence kept entirely secret from the opposing party. This article asks whether there is any stopping point for Acts that effectively remove government officers from legal controls.

Interrogating 'Absolute Discretion': Are NZ's Parliament and Courts Compromising the Rule of Law?


It is elementary in administrative law that there is no such thing as unfettered discretion—yet, in a development that appears to have gone largely unnoticed, statutes increasingly confer ‘absolute discretion’ on public decision-makers. This article explores and evaluates these provisions and their judicial treatment in New Zealand. It surveys the range of contexts in which they are used and the various purposes or functions they appear to serve, and evaluates each against orthodoxy. It also surveys the judicial responses to such provisions, finding that these are mixed and too often muted. Of particular concern are the ‘absolute discretion’ provisions in the Immigration Act, and the lack of a consistently resolute judicial response to these.

The Entrenched Minimum Provision of Judicial Review and the Limits of 'Law'


The Australian Constitution constrains the scope of executive power that Parliament is capable of conferring in several ways. This article examines whether any constraints flow from the inherent requirements of ‘law’ itself. That is, is Parliament incapable of conferring executive power of a certain kind or breadth, because the statute that would be required to do so is simply not a ‘law’ for the purposes of the Australian Constitution? More broadly, the article explores the connection between constitutional doctrine and legal theory, and the ways in which statutory conferrals of very broad executive powers can diminish the rule of law.

Re-Evaluating the Doctrine of Deference in Administrative Law


It is frequently said that Australian administrative law does not have, and cannot accommodate, a doctrine of deference. These statements, from judges and commentators, tend to cite the High Court’s decision in Corporation of the City of Enfield v Development Assessment Commission as authority. In that case, the High Court of Australia indicated that Australia’s strict separation of powers, as manifested by the legality/merits distinction, does not allow courts to defer to administrative bodies in determining the meaning of ambiguous statutory provisions. Since Enfield, there have been considerable developments in the application, and theorisation, of deference across the common law world. This article examines developments in the UK and Canada, and argues that they show that there is no single ‘doctrine’ of deference—deference is applied in administrative law in a range of ways. I argue that some of the ways in which Canadian and UK courts apply deference are not dissimilar from the principles Australian courts already apply in reviewing executive action. I argue that Australian law may benefit from greater attention to, and wider application of, these deferential principles, in order to curb judicial intrusion into administrative discretion.

Judicial Review and Merits Review: Are the Boundaries Being Eroded?


Courts and tribunals have distinct roles within the Australian administrative law system at the federal level, and to a lesser extent, in the states and territories. Questions of law are for the courts, and questions of fact are for the executive and tribunals. From time to time this orthodoxy is questioned. Suggestions are made that the courts are increasingly tending to intrude into the province of tribunals. Using cases as illustrations, this article explores five relevant jurisdictional areas—from appeals on a question of law to deference under the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 10(2)(b)(ii)—to test the accuracy of the suggestion.

The Unfolding Purpose of Fairness


The duty to observe the requirements of procedural fairness is well settled in Australian administrative law. So too is the variable content of that duty and the possibility that it may be limited or excluded by legislation expressed in suitably clear terms. One key aspect of fairness that is not yet clear is its purpose. Why do courts require those who exercise public or official power to act fairly? The question cannot be fully answered by reliance on legislative intent or reference to the common law because recourse to one or both of these possible sources of the duty to act fairly does not necessarily answer why that duty is drawn from the common law or implied as part of statutory interpretation. This article examines recent steps by courts and commentators that suggest an exploration of the purpose of fairness may be beginning to occur.

Judicial Review of Legislators' Motives


Are legislators’ subjective motives relevant to the constitutional validity of an Act? In the USA, an Act may be found to be unconstitutional because legislators were motivated by a desire to discriminate against religion or interstate trade. The High Court has rejected such an enquiry in cases concerning ss 92 and 116 of our own Constitution. This article examines how, with substantially similar constitutional protections, the courts of these two countries have arrived at opposing views on the relevance of ‘motive evidence’. The High Court can avoid recourse to motive evidence because, when compared with its US counterpart, it applies a clearer test in the religion cases, and a more nuanced approach to proportionality testing in the interstate trade cases. This is the preferable approach.

Justiciability, Access to Justice and the Development of Constitutional Law in Canada


Concentrating on Canadian experience, specifically litigation under the Canadian Charter of Rights and Freedoms (the ‘Charter’), this article seeks to reconcile the access to justice benefits of summary procedures with the government litigant’s duty to act in the public interest (or as a ‘model litigant’) and uphold the rule of law. Though acknowledging the benefits that can result from the use of summary procedures to end litigation, the authors observe that compliance with strict requirements in procedural law are frequently dispensed with in the Charter context. In fact, summary procedures can have a devastating effect on the development of Charter rights. The authors ultimately posit that the government should have a duty of restraint in using summary procedures to end public law litigation, and courts should be reluctant to permit the government to preclude such litigation aimed at advancing the evolution of the Charter from reaching hearings on the merits.

Book Reviews


Lisa Burton Crawford The Rule of Law and the Australian Constitution

Janina Boughey Human Rights and Judicial Review in Australia and Canada: The Newest Despotism?

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