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‘Australian Exceptionalism’ in Judicial Review

Published online by Cambridge University Press:  24 January 2025

Michael Taggart
Michael Taggart*
Affiliation:
University of Auckland, New Zealand
*
<mb.taggart@auckland.ac.nz>
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Extract

The phrase ‘Australian exceptionalism’ is most often used these days in relation to Australia's stand with the United States in the war against terror and the Australian government's attitude to international human rights law. Australia is exceptional also in being now the only English-speaking democracy without a judicially enforceable bill of rights at the federal level. Although not unrelated, here I want to explore whether the part of Australian public law that deals with judicial review of administrative action is also ‘exceptional’. I will identify the features that are commonly said to set Australia apart from other common law jurisdictions and justify Australia taking a different path in the elaboration of the principles of judicial review of administrative action.

Type
Research Article
Information
Federal Law Review , Volume 36 , Issue 1 , March 2008 , pp. 1 - 30
Copyright
Copyright © 2008 The Australian National University

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Footnotes

A shortened version of this paper was delivered as the 10th annual Geoffrey Sawer Lecture at the Australian National Museum on 9 November 2007. It retains something of the conversational tone of a delivered lecture. I thank Kim Rubenstein and the Centre for International and Public Law at Australian National University for inviting me. As far as I know any Australian administrative law, it is due to what I have learnt from the writings of a large number of Australian legal scholars, too many to name. I would be remiss, however, if I did not record long-standing intellectual debts to Mark Aronson, Peter Bayne, Enid Campbell, Peter Cane, Robin Creyke, Matthew Groves, John McMillan, Dennis Pearce and Cheryl Saunders. That does not mean any of them will necessarily agree with what I say here. It would be truly exceptional if they did.

References

1 See, eg, Dianne, Otto, ‘From “Reluctance” to “Exceptionalism“: The Australian Approach to Domestic Implementation of Human Rights’ (2001) 26(5) Alternative Law Journal 219Google Scholar. See also in relation to the US, Michael, Ignatieff (ed), American Exceptionalism and Human Rights (2005)Google Scholar. The phrase also crops up in Australian economic and labour market analyses. See Geoffrey, Brennan and Francis, G Castles (eds), Australia Reshaped: 200 Years of Institutional Transformation (2002)Google Scholar.

2 Brian, Galligan and F L, Morton, ‘Australian Exceptionalism: Rights Protection without a Bill of Rights’ in Tom, Campbell, Jeffrey, Goldsworthy and Adrienne, Stone (eds), Protecting Rights without a Bill of Rights: Institutional Performance and Reform in Australia (2006) 17Google Scholar; Nick, O’Neill, Simon, Rice and Roger, Douglas, Retreat from Injustice: Human Rights Law in Australia (2nd ed, 2004) 1Google Scholar.

3 To some extent I am treading ground well covered by Peter Cane: see Peter, Cane, ‘The Making of Australian Administrative Law’ (2003) 24 Australian Bar Review 114Google Scholar. I have to admit I chose my lecture topic in ignorance of this piece — which also explains the omission of the institutional Festschrift from Michael, Taggart (ed), An Index to Common Law Festschriften: From the Beginning of the Genre up to 2005 (2006)Google Scholar. At the end of the piece, Peter Cane refers to ‘Australian exceptionalism’ in relation to judicial review: Cane, 133.

4 See generally Cheryl, Saunders, ‘Apples, Oranges and Comparative Administrative Law’ [2006] Acta Juridica 423Google Scholar; Andrew, Harding, ‘Comparative Public Law: A Neglected Discipline?’ in Ian, Edge (ed), Comparative Law in a Global Perspective: Essays in Celebration of the Fiftieth Anniversary of the Founding of the SOAS Law Department (2000) 101Google Scholar; John, Bell, ‘Comparing Public Law’ in Andrew, Harding and Esin, Örücü (eds), Comparative Law in the 21st Century (2002) 235Google Scholar; Edward, Eberle, ‘Comparative Public Law: a Time That Has Arrived’ in Ulrich, Hübner and Werner, F Ebke (eds), Festschrift für Großfeld zum 65.Geburtstag (1999) 175Google Scholar; David, Nelken (ed), Comparing Legal Culture (1997)Google Scholar.

5 I owe the term ‘recolonialisation’ to James, Belich, Paradise Reforged: A History of New Zealanders: From the 1880s to the Year 2000 (2001) 29Google Scholar.

6 I realise this concentration on the former imperial power and selected so-called ‘white’ settler colonies is open to the charge of ignoring the contribution of the other former colonies in Africa, the Mediterranean, West Indies and Asia. See Upendra, Baxi, ‘Book Review’ (2004) 14 Law and Politics 799, 804Google Scholar. All I can say is that space constraints preclude a full review of the jurisprudence of courts from around the entire common law world.

7 See generally H, Patrick Glenn, ‘Persuasive Authority’ (1987) 32 McGill Law Journal 261Google Scholar.

8 The freedom of information legislation was not part of the original reform package shaped by the Kerr, Ellicott and Bland Committee reports, but is sometimes seen as an inevitable consequence of those reform proposals: see Lindsay, Curtis, ‘The Vision Splendid: A Time for Re-Appraisal’ in Robin, Creyke and John, McMillan (eds), The Kerr Vision of Australian Administrative Law (1998) 36, 46Google Scholar. The establishment of the Administrative Review Council was another feature of the reforms. To which picture some would add the creation of what is now called the Commonwealth Human Rights and Equal Opportunities Commission in 1981: Robin, Creyke, ‘The Performance of Administrative Law in Protecting Rights’ in Campbell, Goldsworthy and Stone (eds), Protecting Rights without a Bill of Rights: Institutional Performance and Reform in Australia (2006) 101, 109, 116–17Google Scholar.

9 JusticeMichael, Kirby, ‘The AAT: Back to the Future’ in John, McMillan (ed), The AAT: Twenty Years Forward (1996) 359Google Scholar, 362–3: John McMillan, Parliament and Administrative Law (Research Paper No 13, Information & Research Services, Department of the Parliamentary Library, Canberra, 2000–1). The rider ‘in their judicial capacity’ is necessary because Justices Kerr and Mason were members of the most far-sighted of the three reform committees, the Kerr Committee.

This is not to deny that enactment of the reform package was a close run thing and that there was ‘formidable opposition from both politicians and administrators to an enlargement of review of administrative action by the judiciary’. SirAnthony, Mason, ‘Judicial Review: A View from Constitutional and Other Perspectives’ (2000) 28 Federal Law Review 331Google Scholar, 333, 338.

10 See Chief JusticeMurray, Gleeson, ‘Outcome, Process and the Rule of Law’ (2006) 65(3) Australian Journal of Public Administration 5, 12Google Scholar; G D S, Taylor, ‘May Judicial Review Become a Backwater?’ in Michael, Taggart (ed), Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 153Google Scholar. Cf Margaret, Allars, ‘Federal Courts and Federal Tribunals: Pluralism and Democratic Values’ in Brian, Opeskin and Fiona, Wheeler (eds), The Australian Federal Judicial System (2000) 191, 212–13Google Scholar.

11 This observation appeared at the beginning of every edition Stanley de Smith was responsible for and in the 4th edition edited by his former London School of Economics colleague (now Justice) John Evans, but is heavily qualified in later editions. See S A, de Smith, Judicial Review of Administrative Action (1st ed, 1959) 3Google Scholar, immediately followed by: ‘The administrative process is far more than a succession of justiciable controversies’; (2nd ed, 1968) 3, followed by: ‘The administrative process is not, and cannot be, a succession of justiciable controversies’; (3rd ed, 1973) 3, changes to: ‘Judicial review of administrative action is inevitably sporadic and peripheral. The administrative process is not, and cannot be, a succession of justiciable controversies’; (4th ed, 1980) 3. The 5th edition (edited by Sir Harry Woolf and Jeffrey Jowell) is a fundamentally different book, and the passage was demoted to page 19 and heavily qualified (5th ed, 1995) 19, [1–033]; a trend continued in the latest edition: Harry, Woolf, Jeffrey, Jowell and Andrew, Le Sueur, De Smith’s Judicial Review (6th ed, 2007) 5Google Scholar, [1–004]; See generally D J, Galligan, ‘Judicial Review and the Textbook Writers’ (1982) 2 Oxford Journal of Legal Studies 257Google Scholar.

12 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 563: ‘There is one common law in Australia which is declared by this Court as the final court of appeal’. See further Mark, Leeming, ‘Common Law within Three Federations’ (2007) 18 Public Law Review 186, 188Google Scholar; Leslie, Zines, ‘The Vision and the Reality’ in Peter, Cane (ed), Centenary Essays of the High Court of Australia (2004) 3, 12–14Google Scholar.

13 Bradley, Selway, ‘The Principle Behind Common Law Judicial Review of Administrative Action — The Search Continues’ (2002) 30 Federal Law Review 217Google Scholar, 233-4; Chief Justice Spigelman, ‘The Integrity Branch of Government’ (2004) 78 Australian Law Journal 724, 733Google Scholar.

14 See Enid, Campbell, ‘Civil Rights and the Australian Constitutional Tradition’ in Carl, Beck (ed), Law and Justice: Essays in Honour of Robert S. Rankin (1970) 295Google Scholar.

15 See Haig, Patapan, ‘The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia’ (1997) 25 Federal Law Review 211Google Scholar; and the snapshot in Jeffrey, Goldsworthy, ‘Australia: Devotion to Legalism’ in Jeffrey, Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (2006) 106, 108–9Google Scholar.

16 See, eg, Brian, Galligan, ‘Australia’s Rejection of a Bill of Rights’ (1990) 28 Journal of Commonwealth and Comparative Politics 344Google Scholar; Paul, Kildea, ‘The Bill of Rights Debate in Australian Political Culture’ (2003) 9 Australian Journal of Human Rights 65, 67–9Google Scholar.

17 See, eg, H P, Lee, ‘The Implied Freedom of Political Communication’ in H P, Lee and George, Winterton (eds), Australian Constitutional Landmarks (2003) 391Google Scholar.

18 Hilary, Charlesworth, ‘The Australian Reluctance About Rights’ in Philip, Alston (ed), Towards an Australian Bill of Rights (1994) 21Google Scholar.

19 Less often remarked upon is the fragility of the historical support for this view, and this is especially remarkable in respect of those attracted by versions of originalism in constitutional interpretation. See generally Fiona, Wheeler, ‘Original Intent and the Doctrine of the Separation of Powers in Australia’ (1996) 7 Public Law Review 96Google Scholar; Fiona, Wheeler, ‘The Boilermakers Case’ in H P, Lee and George, Winterton (eds), Australian Constitutional Landmarks (2003) 160Google Scholar; Geoffrey, Sawer, Australian Federalism in the Courts (1967)Google Scholar ch 9.

20 The point is often made that this is a gloss on the Constitution — now a very firmly established one — rather than expressly mandated. Indeed, the importance of the independence of the judiciary is deeply embedded in Diceyan constitutionalism. See generally John, Allison, ‘The Separation of Powers in the Modern Period in England: Constitutional Principle or Customary Practice’ (2002) 16 Iuris Scripta Historica 90Google Scholar; now up-dated in J W F, Allison, The English Historical Constitution: Continuity, Change and European Effects (2007)Google Scholar ch 4. So the real difference between separation of powers in the UK and Australia on this score may be that the Australian courts can invalidate legislation on the basis of a strong conception of the judicial role, whereas British judges can only operate by interpretative means in the UK but have a wider but less-well-recognised role (similar to that of the Australian courts) under constitutional review sitting in the Privy Council on appeals from former colonies with capital ‘C’ Constitutions. See Suratt v A-G (Trinidad and Tobago) [2008] 2 WLR 262. Cf Keith, Ewing, ‘A Bill of Rights: Lessons from the Privy Council’ in W, Finnie, Chris, Himsworth and Neil, Walker (eds), Edinburgh Essays in Public Law (1991) 231Google Scholar.

21 SirAnthony, Mason, ‘The Break with the Privy Council and the Internationalisation of the Common Law’ in Peter, Cane (ed), Centenary Essays of the High Court of Australia (2004) 66, 77Google Scholar. Chief Justice Black of the Federal Court has also pointed out ‘the constant presence of Australia’s Constitution — often unnoticed but, on occasion, stamping its own authority on the development of this body of law’: ‘Foreword’ to Matthew, Groves and H P, Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) viiGoogle Scholar.

22 In Australian Communist Party v Commonwealth (1951) 83 CLR 1 (‘Communist Party Case’), 193, Sir Owen Dixon famously postulated that the rule of law was an ‘assumption’ implicit in the Constitution. See also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (‘Plaintiff S157’), 491 [27]–[31] (Gleeson CJ) (‘the Australian Constitution is framed upon the assumption of the rule of law’), 513, [103]–[104] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). For further discussion of the Communist Party Case, see David, Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (2006) 72–87Google Scholar; George, Winterton, ‘The Communist Party Case’ in H P, Lee and George, Winterton (eds), Australian Constitutional Landmarks (2003) 108Google Scholar.

23 Goldsworthy, ‘Australia’, above n 15, 106, 148.

24 See George, Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in Geoffrey, Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (1994) 185Google Scholar.

25 See generally James, Crawford and Brian, Opeskin, Australian Courts of Law (4th ed, 2004) 48Google Scholar, 151–4, 282–3.

26 Read Alan, Robertson, ‘The Administrative Law Jurisdiction of the Federal Court — Is the AD(JR) Act Still Important?’ (2003) 24 Australian Bar Review 89Google Scholar and ask yourself how any lawyer outside Australia can be expected to understand the Federal Court’s administrative law jurisdiction.

27 See Peter, Cane and Leighton, McDonald, Principles of Administrative Law: Legal Regulation of Governance (2008)Google Scholar ch 2. The same was true of US federal administrative law until quite recently, and is still true of state administrative laws in the US (which, unlike at the federal level, has a common law basis). See Jack, Beermann, ‘The Reach of Administrative Law in the United States’ in Michael, Taggart (ed), The Province of Administrative Law (1996) 171Google Scholar.

28 See Christos, Mantziaris and Leighton, McDonald, ‘Federal Judicial Review Jurisdiction after Griffith University v Tang’ (2006) 17 Public Law Review 22Google Scholar.

29 For details, see Cane’s excellent discussion: Cane, ‘The Making of Australian Administrative Law’, above n 3, 116, 119–22, 131–4.

30 Justice Kirby noted the rise of immigration cases as the ‘most distinctive phenomenon’ of the High Court’s work since the mid-1990s: JusticeMichael, Kirby, ‘Ten Years in the High Court — Continuity and Change’ (2005) 27 Australian Bar Review 4, 9Google Scholar.

31 See JusticeRonald, Sackville, ‘Judicial Review of Migration Decisions: An Institution in Peril?’ (2000) 23 University of New South Wales Law Journal 190Google Scholar.

32 See the statement of Tim Fischer (the then Deputy Prime Minister) in the wake of Wik Peoples v Queensland (1996) 187 CLR 1, that the Federal government would make ‘[c]apital C conservative’ appointments to the High Court, quoted in JusticeMichael, Kirby, ‘Judicial Activism? A Riposte to the Counter-Revolution’ (2004) 24 Australian Bar Review 219, 228Google Scholar. See generally Enid, Campbell and H P, Lee, The Australian Judiciary (2001) 62Google Scholar; Goldsworthy, ‘Australia’, above n 23, 158 (‘After Wik … the government proceeded to fill a series of vacancies with judges believed to subscribe to more traditional, legalistic methods’).

33 Haig, Patapan, ‘High Court Review 2001: Politics, Legalism and the Gleeson Court’ (2002) 37 Australian Journal of Political Science 241Google Scholar, 241–3; Cane, ‘The Making of Australian Administrative Law’, above n 3, 130–1.

34 This theme is explored through interviews with judges in Jason L Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed (2006) but cf David, Robertson, ‘Book Review’ (2006) 6 Oxford University Commonwealth Law Journal 237Google Scholar. The same point is sometimes made about the Warren Court in the US: David, Luban, ‘The Warren Court and the Concept of a Right’ (1999) 34 Harvard Civil Rights-Civil Liberties Law Review 7Google Scholar, 7.

35 Pierre, Legrande, ‘Against a European Civil Code’ (1997) 60 Modern Law Review 44Google Scholar, 62.

36 Johan, Steyn, ‘Does Legal Formalism Hold Sway in England?’ (1996) 49 Current Legal Problems 43, 44Google Scholar.

37 On the distinction between top-down and bottom-up reasoning, see JusticeKeith, Mason, ‘What Is Wrong with Top-Down Legal Reasoning?’ (2004) 78 Australian Law Journal 574Google Scholar; Stephen, Gageler, ‘The Underpinnings of Judicial Review of Administrative Action: Common Law or Constitution?’ (2000) 28 Federal Law Review 303Google Scholar.

38 Cane writes of ‘a strong commitment to conceptualism and historicism on the part of intellectually influential members of the Gleeson court’: Cane, ‘The Making of Australian Administrative Law’, above n 3, 134. See generally Goldsworthy, ‘Australia’, above n 23; and in relation to the UK, P S, Atiyah, The Pragmatism and Theory in English Law (1987)Google Scholar.

39 SirAnthony, Mason, ‘Justice of the High Court’ in Timothy, L H McCormack and Cheryl, Saunders (eds), Sir Ninian Stephen: A Tribute (2007) 3, 5Google Scholar.

40 See Andrew, J Goldsmith, ‘A Profile of the Federal Judiciary’ in Brian, Opeskin and Fiona, Wheeler (eds), The Australian Federal Judicial System (2000) 365Google Scholar, 380–3; Harold, A J Ford, ‘Recreating Australian Legal Education’ in Charles, Sampford and C A, Bois (eds), Sir Zelman Cowen: A Life in the Law (1997) 62Google Scholar (Melbourne Law School in the 1950s and early 1960s); Francesca, Dominello and Eddy, Neumann, ‘Background of Justices’ in Tony, Blackshield, Michael, Coper and George, Williams (eds), The Oxford Companion to the High Court of Australia (2001) 48, 50Google Scholar; Colin, Phegan and Patricia, Loughlan (eds), The Sydney Centenary Essays in Law: A Collection of Essays to Mark the Centenary of the Faculty of Law at the University of Sydney (1991)Google Scholar; Geoff, Lindsay and Carol, Webster (eds), No Mere Mouthpiece: Servants of All, Yet of None (2002)Google Scholar.

41 See, eg, Colin, Howard, ‘Sir Owen Dixon and the Constitution’ (1973) 9 Melbourne University Law Review 1, 3Google Scholar; Mita, Bhattacharya and Russell, Smyth, ‘The Determinants of Judicial Prestige and Influence: Some Empirical Evidence from the High Court of Australia’ (2001) 30 Journal of Legal Studies 223Google Scholar, 241–2 (Sir Owen Dixon sits at the top of citation tables). Cf David, Ritter, ‘The Myth of Sir Owen Dixon’ (2005) 9 Australian Journal of Legal History 249Google Scholar; Laurence, W Maher, ‘Owen Dixon: Concerning His Political Method’ (2003) 6(2) Constitutional Law and Policy Review 33Google Scholar; Dennis, Rose, ‘Sir Owen Dixon’ (2003) 6(1) Constitutional Law and Policy Review 18, 20Google Scholar. Sir Anthony Mason has pointed out also that the continuing influence of Sir Owen Dixon’s ideas of judicial method may be ‘yet another reason for the differentiation between the common law in Australia and the common law in other jurisdictions’: Sir Anthony Mason, ‘The Break with the Privy Council and the Internationalisation of the Common Law’, above n 21, 80.

42 SirOwen, Dixon, ‘Address Upon the Oath of Office in Sydney as Chief Justice of the High Court of Australia on 21st April, 1952’ in Justice Woinarski (ed), Jesting Pilate and Other Papers and Addresses (1965) 245, 247Google Scholar. This is a large topic. See the much discussed paper by JusticeJ D, Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Australian Bar Review 110Google Scholar. See also SirDaryl, Dawson and Mark, Nicholls, ‘Sir Owen Dixon and Judicial Method’ (1986) 15 Melbourne University Law Review 543, 544Google Scholar; JusticeKenneth, Hayne, ‘“Concerning Legal Method” — Fifty Years On’ (2006) 32 Monash University Law Review 223Google Scholar. But Sir Owen Dixon, so often painted a legal literalist, staked out a common law constitutionalist position but did not take it very far. See generally Michael, Wait, ‘The Slumbering Sovereign: Sir Owen Dixon’s Common Law Constitution Revisited’ (2001) 29 Federal Law Review 57Google Scholar; cf JusticeW M C, Gummow, ‘The Constitution: Ultimate Foundation of Australian Law?’ (2005) 79 Australian Law Journal 167Google Scholar. For a UK contribution, politely disagreeing with Justice Heydon and perhaps Sir Owen Dixon (both of whom he cites), see Lord Bingham of Cornhill, ‘The Judges: Active or Passive?’ (2006) 139 Proceedings of the British Academy 55Google Scholar.

43 Craig v South Australia (1995) 184 CLR 163 (‘Craig’); Public Service Association of South Australia v Federated Clerks’ Union of Australia (1991) 173 CLR 132. See generally Mark, Aronson, Bruce, Dyer and Matthew, Groves, Judicial Review of Administrative Action (3rd ed, 2004) 212–18Google Scholar; Robin, Creyke and John, McMillan, Control of Governmental Action: Text, Cases and Commentary (2005) 790–4Google Scholar.

44 Mark, Aronson, ‘Jurisdictional Error without the Tears’ in Matthew, Groves and H P, Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 330Google Scholar, 333, 344. Aronson thinks ‘error of law’ is equally ‘conclusory’. So it is, without more: that is where deference theory comes in. We have been in conversation about this and disagreeing for years, long may it continue.

45 (1995) 184 CLR 163. See generally above n 43.

46 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(f).

47 This point is nicely made by Kristina, Stern, ‘Substantive Fairness in UK and Australian Law’ (2007) 29 Australian Bar Review 266, 267Google Scholar.

48 See generally Margaret, Allars, ‘Chevon in Australia: A Duplicitous Rejection?’ (2002) 54 Administrative Law Review 569, 570Google Scholar; Mark, Aronson, ‘The Resurgence of Jurisdictional Facts’ (2001) 12 Public Law Review 17Google Scholar.

49 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. This terminology has ‘risen exponentially’ since 2000: D F, Jackson, ‘Development of Judicial Review in Australia Over the Last Ten Years: The Growth of the Constitutional Writs’ (2004) 12 Australian Journal of Administrative Law 22, 24Google Scholar. See also Walter, Sofronoff, ‘Constitutional Writs’ (2007) 14 Australian Journal of Administrative Law 145Google Scholar.

50 See Re Minister for Immigraiton and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 24–5 [76]–[77] (McHugh and Gummow JJ); Jackson, above n 49, 27.

51 See also Aronson, ‘Jurisdictional Error without the Tears’, above n 44, 334–5.

52 Cane makes this point also but seems to think the historical baggage is less easily dispensed with than I do: Cane, ‘The Making of Australian Administrative Law’, above n 3, 116.

53 (2003) 211 CLR 476. Section 75(v) rather mysteriously omits certiorari: no clear reason for this is evident from federal convention debates. See generally Mary, Crock and Edward, Santow, ‘Privative Clauses and the Limits of the Law’ in Matthew, Groves and H P, Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 345Google Scholar.

54 SirAnthony, Mason, ‘The Foundations and Limitations of Judicial Review’ (2001) 31 AIAL Forum 1, 20Google Scholar. Elsewhere, Sir Anthony called the doctrine ‘an Australian innovation’: Sir Anthony Mason, ‘The Break with the Privy Council and the Internationalisation of the Common Law’, above n 21, 78. See also SirAnthony, Mason, ‘The Analytical Foundations, Scope and Comparative Analysis of the Judicial Review of Administrative Action’ in Geoffrey, Lindell (ed), The Mason Papers: Selected Articles and Speeches by Sir Anthony Mason AC, KBE (2007) 180, 187Google Scholar.

55 Ian, Holloway, ‘“A Bona Fide Attempt“: Chief Justice Sir Owen Dixon and the Policy of Deference to Administrative Expertise in the High Court of Australia’ (2002) 54 Administrative Law Review 687Google Scholar.

56 There is a lot written about Frankfurter’s views on administrative law, but less on his influence and connections outside the US. See Richard A Cosgrove, Our Lady the Common Law: An Anglo-American Legal Community, 1870–1930 (1987) ch 8; Michael, Taggart, ‘Prolegomenon to an Intellectual History of Administrative Law in the Twentieth Century: The Case of John Willis and Canadian Administrative Law’ (2005) 43 Osgoode Hall Law Journal 223Google Scholar.

57 (2000) 199 CLR 135 (‘Enfield’). The case is taken to decide this even though it involved jurisdictional fact rather than the interpretation of statutory text, which is a more common context where issues of deference arise.

58 See Michael, Taggart, ‘The Contribution of Lord Cooke to Scope of Review Doctrine in Administrative Law: A Comparative Common Law Perspective’ in Paul, Rishworth (ed), The Struggle for Simplicity in Law: Essays for Lord Cooke of Thorndon (1997) 189Google Scholar, 203–4; Michael, C Tolley, ‘Judicial Review of Administrative Interpretation of Statutes: Deference Doctrines in Comparative Perspective’ (2003) 31 Policy Studies Journal 31Google Scholar; Aronson, Dyer and Groves, above n 43, 181–4; Paul, P Craig, Administrative Law (5th ed, 2004)Google Scholar ch 15.

59 See, eg, Gleeson, above n 10, 12 (‘Australian administrative law, for reasons related to our Constitution, has not taken up the North American jurisprudence of deference’); Cane, ‘The Making of Australian Administrative Law’, above n 3, 118–19 (difference due to institutional design of separation-of-powers).

60 See Re Racal Communications Ltd [1981] AC 374, 382–3 (Lord Diplock); Bulk Gas Users Group v A-G [1983] NZLR 129, 133 (Cooke J).

61 In Australia, Peter Bayne pressed for acceptance of a deference doctrine in the 1990s. See, eg, Peter, Bane, ‘The Court, the Parliament and the Government — Reflections on the Scope of Judicial Review’ (1991) 20 Federal Law Review 1, 32–40Google Scholar. Cf Mason, ‘Judicial Review’, above n 9, 339–40.

62 Marbury v Madison, 1 Cranch 137, 177–8 (1803), cited in A-G (NSW) v Quin (1990) 170 CLR 1, 35–6 (Brennan J); Enfield (2000) 199 CLR 135, 153. See also JusticeW M C, Gummow, ‘The Permanent Legacy’ (2000) 28 Federal Law Review 177, 180–1Google Scholar.

63 Stephen Gageler has emphasised the constitutional underpinnings of Sir Gerard Brennan’s approach to administrative and his reliance on Marshall CJ’s dicta in Marbury v Madison: Stephen, Gageler, ‘Sir Gerard Brennan and Some Themes in Judicial Review’ in Robin, Creyke and Patrick, Keyzer (eds), The Brennan Legacy: Blowing the Winds of Legal Orthodoxy (2002) 62Google Scholar, 62–7. He sees the ‘ultra vires’ approach, exemplified by Sir Gerard, as now in the ascendancy in the High Court: Stephen, Gageler, ‘Legitimate Expectation: Comment on the Article by Sir Anthony Mason AC KBE’ (2005) 12 Australian Journal of Administrative Law 111Google Scholar. Marbury v Madison, of course, has not prevented the US courts adopting a version of the deference doctrine in their administrative law.

64 See Cheryl, Saunders, ‘Plaintiff S157/2002: A Case-Study in Common Law Constitutionalism’ (2005) 12 Australian Journal of Administrative Law 115Google Scholar; Dyzenhaus, The Constitution of Law, above n 22, ch 2. Terms like constitutionalism are contestable, of course. In the Australian setting, see Haig, Patapan, ‘The Forgotten Founding: Civics Education, the Common Law and Liberal Constitutionalism in Australia’ (2005) 14 Griffith Law Review 91Google Scholar.

65 A large amount has been written on Dicey and his views on administrative law, see: H W, Arthurs, ‘Rethinking Administrative Law: A Slightly Dicey Business’ (1979) 17 Osgoode Hall Law Journal 1Google Scholar; Paul, P Craig, Public Law and Democracy in the United Kingdom and the United States of America (1990)Google Scholar ch 2; Martin Loughlin, Public Law and Political Theory (1992) ch 7; David, Sugarman, ‘The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science’ (1983) 46 Modern Law Review 102Google Scholar; J, Stapleton, ‘Dicey and his Legacy’ (1995) 16 History of Political Thought 234Google Scholar; Lord Bingham of Cornhill, ‘Dicey Revisited’ [2002] Public Law 39Google Scholar.

66 Named after Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 229 (Lord Greene MR). For a contextualised treatment of the case and its significance, see Michael, Taggart, ‘Reinventing Administrative Law’ in Nicholas, Bamforth and Peter, Leyland (eds), Public Law in a Multi-Layered Constitution (2003) 311Google Scholar. The vultures are circling Wednesbury unreasonableness in the UK: see R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397, 1413 [34] ; H W R, Wade and Christopher, Forsyth, Administrative Law (9th ed, 2004) 371Google Scholar (‘terminal decline’); Craig, Administrative Law, above n 58, 628–35; R v Chief Constable of Sussex; Ex parte International Trader’s Ferry Ltd [1999] 2 AC 418, 452 (Lord Cooke of Thorndon); R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (‘Daly’), 548–9 [32] (Lord Cooke of Thorndon); SirStephen, Sedley, ‘The Sound of Silence: Constitutional Law Without a Constitution’ (1994) 110 Law Quarterly Review 270, 277–8Google Scholar.

67 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(2)(g).

68 There is disagreement over whether the codification of grounds of review in the ADJR Act has ‘retarded’ common law development. Cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, 94 [157], 97 [166] (Kirby J) (who believes it has) with Mark, Aronson, ‘Is the ADJR Act Hampering the Development of Australian Administrative Law?’ (2004) 15 Public Law Review 202Google Scholar, 214–16; John, Griffiths, ‘Commentary on Professor Aronson’s Article “Is the ADJR Act Hampering the Development of Australian Administrative Law?“’ (2005) 12 Australian Journal of Administrative Law 98Google Scholar (who disagree). See generally Timothy, H Jones, ‘Judicial Review and Codification’ (2000) 20 Legal Studies 517Google Scholar.

69 See Aronson, Dyer and Groves, above n 43, 102; Greg, Weeks, ‘Litigating Questions of Quality’ (2007) 14 Australian Journal of Administrative Law 76Google Scholar; Andrew, Le Sueur, ‘The Rise and Ruin of Unreasonableness’ (2005) 10 Judicial Review 32Google Scholar, 32 (‘a useful longstop to deal with a residual category of patently bad decisions’).

70 The list was well-established long before Lord Greene MR unintentionally codified it in Wednesbury.

71 The clarion call came first from Jeffrey, Jowell and Anthony, Lester, ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ [1987] Public Law 368Google Scholar.

72 See generally SirJohn, Laws ‘Wednesbury’ in Christopher, Forsyth and Ivan, Hare (eds), The Golden Metwand and the Crooked Cord: Public Law Essays in Honour of Sir William Wade QC (1998) 185Google Scholar; R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840, 847-8 [18] (Laws LJ).

73 See SZADC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1497 (Unreported, Stone J, 16 December 2003) [23]–[24]; SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43; STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 251 (Unreported, Ryan, Jacobson and Lander JJ, 8 September 2004) [16]–[22]; Andary v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 211 (Unreported, Spender, Cooper and Dowsett JJ, 28 August 2003). See Mason, ‘Judicial Review’, above n 9, 334, 343; Mason, ‘The Break with the Privy Council and the Internationalisation of the Common Law’, above n 21, 78–9.

74 See Ronald, Dworkin, Taking Rights Seriously (1977) 31Google Scholar (‘Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction.’).

75 [1991] 1 AC 696 (‘Brind’).

76 (1995) 183 CLR 273 (‘Teoh’).

77 R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539, 588; R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115; R v Pora [2001] 2 NZLR 37, 50 [53], 73 [157]; Ngati Apa Ki Te Waipounamu Trust v R [2000] 2 NZLR 659, 675 [82]; Drew v A-G [2002] 1 NZLR 58; Daly [2001] 2 AC 532; Plaintiff S157 (2003) 211 CLR 476, 492-3 [29]–[33] (Gleeson CJ); Al-Kateb v Godwin (2004) 219 CLR 562 (Gleeson CJ and Kirby J).

78 See John, McMillan and Neil, Williams, ‘Administrative Law and Human Rights’ in David, Kinley (ed), Human Rights in Australian Law: Principles, Practice and Potential (1998) 63Google Scholar, 88–9.

79 Ibid 89–90.

80 Convention for the Protection on Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, CETS No 005 (entered into force 3 September 1953). The classic pre-Human Rights Act 1998 (UK) treatment is Murray Hunt, Using Human Rights Norms in English Courts (1997).

81 The phase is from Etienne, Mureinik, ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 South African Journal on Human Rights 31Google Scholar, 32, and was popularised by David, Dyzenhaus, ‘Law as Justification: Etienne Mureinik’s Conception of Legal Culture’ (1998) 13 South African Journal on Human Rights 11Google Scholar.

82 Aronson, Dyer and Groves, above n 43, 554–62; Creyke and McMillan, above n 43, 892–8; Marilyn, Pittard, ‘Reasons for Administrative Decisions: Legal Framework and Reform’ in Matthew, Groves and H P, Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 172Google Scholar; Margaret, Allars, ‘Of Cocoons and Small ‘c’ Constitutionalism: The Principle of Legality and an Australian Perspective on Baker’ in David, Dyzenhaus (ed), The Unity of Public Law (2004) 307Google Scholar, 315–19.

83 (1986) 159 CLR 656 (‘Osmond’).

84 For a critique, see Michael, Taggart, ‘Osmond in the High Court of Australia: Missed Opportunity’ in Michael, Taggart (ed), Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 53Google Scholar; David, St Leger Kelly, ‘The Osmond Case: Common Law and Statute Law’ (1986) 60 Australian Law Journal 513Google Scholar; Ben, Zipser, ‘Revisiting Osmond: In Search of a Duty to Give Reasons’ (1998) 9 Public Law Review 3Google Scholar. ‘In other common law countries,’ Kirby J (dissenting) observed recently, deliberately exempting Australia from the observation, ‘the law has moved in recent times, with general consistency, to insist on the importance of the giving reasons for valid and just decisions, not only by judges but also administrators’: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212, 229 [64].

85 See Michael, Taggart, ‘Should Canadian Judges Be Legally Required to Give Reasoned Decisions in Civil Cases?’ (1983) 33 University of Toronto Law Journal 1, 3–8Google Scholar; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, 441 (Meagher JA) (common law duty on judge and statutory duty on administrators ‘essentially serve the same purpose’).

86 Osmond (1986) 159 CLR 656, 669 (Gibbs CJ). See also SirAnthony, 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 (2002) 38Google Scholar, 60. Cf Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70, 173 (Lord Goff).

87 See JusticeMichael, Kirby, ‘Accountability and the Right to Reasons’ in Michael, Taggart (ed), Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 36Google Scholar. While awaiting vindication, Justice Kirby feels bound by Osmond: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S190 of 2002 (2002) 191 ALR 569, 575. See, however, the ingenuity displayed in Campbelltown City Council v Vegan (2006) 67 NSWLR 372.

88 (1999) 174 DLR (4th) 193 (‘Baker’). See Mary, Liston, ‘“Alert, Alive and Sensitive“: Baker, the Duty to Give Reasons, and the Ethos of Justification in Canadian Public Law’ in David, Dyzenhaus (ed), The Unity of Public Law (2004) 113Google Scholar.

89 See R v Secretary of State for the Home Department; Ex parte Doody [1994] 1 AC 531; Paul, Craig, ‘The Common Law, Reasons and Administrative Justice’ (1994) 53 Cambridge Law Journal 282Google Scholar; David, Toube, ‘Requiring Reasons at Common Law’ (1997) 2 Judicial Review 68Google Scholar; Stefan v General Medical Council [1999] 1 WLR 1293, 1301; R (Wooder) v Feggetter [2003] QB 219; cf Dad v General Dental Council [2000] 1 WLR 1538, 1541–2.

90 See, eg, English v Emery Reimbold and Strick Ltd [2002] 3 All ER 385; Mousaka Inc v Golden Seagull Maritime Inc [2002] 1 WLR 395; Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546, 567 (Elias CJ).

91 One of the recommendations of the Donoughmore Committee (UK) in 1932 was that reasons should be given for quasi-judicial decisions: Committee on Ministers’ Powers Report (Her Majesty’s Stationery Office, Cmd 4060, 1932) 76, 80, 100. The requirement in the US Administrative Procedure Act of 1946, 5 USC § 500 (1946) requiring reasons was one of the most admired features across the Atlantic. See Harry, Street, ‘Book Review’ (1950) 59 Yale Law Journal 590, 593Google Scholar.

92 Gleeson, ‘Outcome, Process and the Rule of Law’, above n 10, 12.

93 SirAnthony, Mason, ‘Reply to David Dyzenhaus’ in Cheryl, Saunders and Katherine, Le Roy (eds), The Rule of Law (2003) 52, 54Google Scholar.

94 Peter Cane has said ‘[i]t seems unlikely, even in the current climate of judicial caution, that the rule in Osmond could survive a direct onslaught totally unscathed’: Cane, ‘The Making of Australian Administrative Law’, above n 3, 129. See generally David, Dyzenhaus and Michael, Taggart, ‘Reasoned Decisions and Legal Theory’ in Douglas, Edlin (ed), Common Law Theory (2007) 134Google Scholar.

95 (1995) 183 CLR 273 (‘Teoh’).

96 Ahmed v Secretary of State for the Home Department [1999] Imm AR 22, 36–7 (‘wholly convincing’: Lord Woolf MR), 41 (his approach ‘fully accord[ed]’ with that in Teoh: Hobhouse LJ); R v Uxbridge Magistrates’ Court; Ex parte Adimi [2001] 3 QB 667, 686 (Simon Brown LJ), 690–1 (Newman J); Thomas v Baptiste [2000] 2 AC 1, 32 (Privy Council, Trinidad and Tobago - dissent); Higgs v Minister of National Security [2000] 2 AC 228, 241 (Privy Council, The Bahamas); Fisher v Minister of Public Safety (No 2) [2000] 1 AC 434, 446–47, 454 (Privy Council, The Bahamas); Lewis v A-G (Jamaica) [2001] 2 AC 50, 83–5, cf 88–9 (Privy Council, Jamaica); Naidike v A-G (Trinidad and Tobago) [2005] 1 AC 538, 558-60 [72]-[77] (Baroness Hale of Richmond). The Privy Council has not yet applied the Teoh approach as ratio in any case, but it appears to be slouching towards doing so.

97 Although Teoh was studiously avoided by the Supreme Court of Canada in Baker (1999) 174 DLR (4th) 193, arguably it played an influential role: David, Dyzenhaus, Murray, Hunt and Michael, Taggart, ‘The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation’ (2001) 1 Oxford University Commonwealth Law Journal 5, 13–16Google Scholar.

98 An exception is Thomas J’s part-concurring, part-dissenting judgment in New Zealand Maori Council v A-G [1996] 3 NZLR 140, 184–5, founding an expectation on the Treaty of Waitangi; cf Ngai Tahu Maori Trust Board v Director-General of Conservation [1995] 3 NZLR 553. For the current New Zealand approach, see Michael, Taggart, ‘Administrative Law’ [2003] New Zealand Law Review 99, 104–9Google Scholar; Claudia, Geiringer, ‘Tavita and All That: Confronting the Confusion Surrounding Unincorporated Treaties and Administrative Law’ (2004) 21 New Zealand Universities Law Review 66Google Scholar.

99 See Michael, Taggart, ‘Legitimate Expectation and Treaties in the High Court of Australia’ (1996) 112 Law Quarterly Review 50Google Scholar. See also Hunt, above n 80, 242–7; Elizabeth, Handsley, ‘Legal Fictions and Confusion as Strategies for Protecting Human Rights: A Dissenting View on Teoh’s Case’ (1997) 2 Newcastle Law Journal 56Google Scholar; Dyzenhaus, Hunt and Taggart, above n 97. Others were critical of both the reasoning and the ambition. The majority of commentators, however, applauded both. Among the administrative lawyers Margaret Allars took the lead: Margaret, Allars, ‘One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh’s Case and the Internationalisation of Administrative Law’ (1995) 17 Sydney Law Review 204Google Scholar; Margaret, Allars, ‘International Law and Administrative Discretion’ in B R, Opeskin and D R, Rothwell (eds), International Law and Australian Federalism (1997) 232Google Scholar; Margaret, Allars, ‘Human Rights, UKASES and Merits Review Tribunals: The Impact of Teoh’s Case on the Administrative Appeals Tribunal in Australia’ in Michael, Harris and Martin, Partington (eds), Administrative Justice in the 21st Century (1999) 337Google Scholar.

100 (2003) 214 CLR 1 (‘Lam’).

101 For a selection see Matthew, Groves, ‘Is Teoh’s Case Still Good Law?’ (2007) 14 Australian Journal of Administrative Law 126Google Scholar; Bruce, Dyer, ‘Legitimate Expectations in Procedural Fairness After Lam’ in Matthew, Groves (ed), Law and Government in Australia (2005) 184, 207Google Scholar; Alison, Duxbury, ‘The Impact and Significance of Teoh and Lam’ in Matthew, Groves and H P, Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 19Google Scholar; SirAnthony, Mason, ‘Procedural Fairness: Its Development and Continuing Role of Legitimate Expectation’ (2005) 12 Australian Journal of Administrative Law 103Google Scholar; Wendy, Lacey, ‘The Judicial Use of Unincorporated International Conventions in Administrative Law: Back-Doors, Platitudes and Window-Dressing’ in Hilary, Charlesworth, Madelaine, Chiam, Devika, Hovell and George, Williams (eds), The Fluid State: International Law and National Legal Systems (2005) 82Google Scholar.

102 Salemi v MacKellar (No 2) (1977) 137 CLR 396 (‘Salemi’), 404. See also R v MacKellar; Ex parte Ratu (1977) 137 CLR 461.

103 On the casting vote, see Michael, Coper, ‘Tied Vote’ in Tony, Blackshield, Michael, Coper and George, Williams (eds), The Oxford Companion to the High Court of Australia (2001) 671Google Scholar.

104 (1977) 137 CLR 487.

105 For a nice thumbnail sketch of a topic upon which much has been written, see Robin, Creyke, ‘Legitimate Expectation’ in Tony, Blackshield, Michael, Coper and George, Williams (eds), The Oxford Companion to the High Court of Australia (2001) 431Google Scholar. For chapter and verse, see Ian Holloway, Natural Justice and the High Court of Australia: A Study in Common Law Constitutionalism (2002). The reason for the temporal qualification is that there has been significant grumbling about the doctrine on the High Court over the years (see Creyke, ‘Legitimate Expectation’) and this has resurfaced in the recent case of Lam (2003) 214 CLR 1, 45-6 [140]–[141] (Callinan J).

106 [1983] 2 AC 629, 636.

107 (2005) 221 CLR 99 (‘Tang’).

108 See Daniel, Stewart, ‘Griffith University v Tang, “Under an Enactment” and Limiting Judicial Review’ (2005) 33 Federal Law Review 525Google Scholar; Graeme, Hill, ‘Griffith University v Tang: Comparison with NEAT Domestic, and the Relevance of Constitutional Factors’ (2005) 47 AIAL Forum 6Google Scholar; Melissa, Gangemi, ‘Griffith University v Tang: Review of University Decisions “Under an Enactment“’ (2005) 27 Sydney Law Review 567Google Scholar; Mantziaris and McDonald, above n 28; Patty, Kamvounias and Sally, Varnham, ‘Doctoral Dreams Destroyed: Does Griffith University v Tang Spell the End of Judicial Review of Australian University Decisions?’ (2005) 10 Australia & New Zealand Journal of Law & Education 5Google Scholar; Anthony, Cassimatis, ‘Statutory Judicial Review and the Requirement of a Statutory Effect on Rights or Obligations: “Decisions Under an Enactment“’ (2006) 13 Australian Journal of Administrative Law 169Google Scholar; Mark, Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’ (2007) 35 Federal Law Review 1Google Scholar.

109 She had other claims too — errors of law, deciding on no evidence and improper exercise of power (Tang (2005) 221 CLR 99, 120 [53], 138 [116]) — but the procedural ones seemed strongest.

110 There is some significance in the fact that she relied on s 4(a) of the Judicial Review Act 1991 (Qld) rather than s 4(b), but that need not detain us.

111 I find Mark Aronson’s analysis on this issue compelling and adopt it: Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’, above n 108.

112 Tang (2005) 221 CLR 99, 130-1 [89] (Gummow, Callinan and Heydon JJ).

113 Ibid 131 [91].

114 Ibid 131-2 [92], 111 [20] (Gleeson CJ).

115 (1977) 137 CLR 396. And perhaps in more ways than one: Barwick CJ was clearly in the ultra vires camp. See below at n 143 and accompanying text, and Holloway, above n 105, 254-6.

116 Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’, above n 108, 14.

117 A B, Schofield, Dictionary of Legal Biography 1845–1945 (1998) 17Google Scholar; Geoffrey, Lewis, Lord Atkin (1983) 1–3Google Scholar. His father, Robert Travers Atkin, was a Member of the Queensland Legislative Assembly.

118 [1924] 1 KB 171, 205 (‘Electricity Commissioners Case’).

119 The misunderstanding is explained by Lord Reid in Ridge v Baldwin [1964] AC 40, 72, 74–6. Sir Anthony Mason has described this ‘famous judgment’ as ‘the centre piece’ of administrative law in the early 1960s and pointed out it was followed by the High Court of Australia in Testro Bros Pty Ltd v Tait (1963) 109 CLR 353: SirAnthony, Mason, ‘Administrative Law Reform: The Vision and the Reality’ (2001) 8 Australian Journal of Administrative Law 135, 135Google Scholar.

120 (2005) 221 CLR 99, 131 [90]. See also Lam (2003) 214 CLR 1, 24-5 [76]–[77].

121 Ironically, in the light of Tang, the Australian Founders eschewed the US terminology of ‘case and controversy’ in favour of ‘matter’ because they desired the widest possible ambit. See Henry, Burmester, ‘Limitations on Federal Adjudication’ in Brian, Opeskin and Fiona, Wheeler (eds), The Australian Federal Judicial System (2000) 227, 230–1Google Scholar, citing J, Quick and L E, Groom, The Judicial Power of the Commonwealth (1904) 27Google Scholar. For different reasons, but to much the same end, Mark Aronson has expressed unease: Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’, above n 108, 16–17, 22–3.

122 Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’, above n 108, 23. Graeme Hill thinks the ‘matter’ issue is a ‘red herring’: Hill, above n 108, 11.

123 SirAnthony, Mason, ‘Administrative Review: The Experience of the First Twelve Years’ (1989) 18 Federal Law Review 122, 123Google Scholar.

124 I agree with Kirby J at (2005) 221 CLR 99, 133 [100].

125 This point is made also by Kamvounias and Varnham, above n 108, 10.

126 The majority avoided discussing the issue: (2005) 221 CLR 99, 105 [3] (Gleeson CJ), 114 [32] (Gummow, Callinan and Heydon JJ). For a helpful speculation on why either side did not raise the contract argument see Cassimatis, above n 108, 174–5.

127 Some of the commentaries state that complaint to the Queensland Ombudsman is an alternative remedy: see, eg, Gangemi, above n 108, 575–6. The plurality, however, did note the absence of a University Visitor, which in the older, ‘established’ universities exercise some role in complaint resolution: Tang (2005) 221 CLR 99, 116 [40] (Gummow, Callinan and Heydon JJ).

128 See Mantziaris and McDonald, above n 28, 44–5. The expression ‘black hole’ is most often used these days in relation to Guantanamo Bay. See, eg, Johan, Steyn, ‘Guantanamo Bay: The Legal Black Hole’ (2004) 53 International and Comparative Law Quarterly 1Google Scholar.

129 The Administrative Decisions (Judicial Review) Act 1977 (Cth) has three State/Territory counterparts: Administrative Decisions (Judicial Review) Act 1989 (ACT); Judicial Review Act 1991 (Qld); Judicial Review Act 2000 (Tas). Victoria has a statute but it differs in some important respects from the Commonwealth model: Administrative Law Act 1978 (Vic). See Aronson, Dyer and Groves, above n 43, 19–23. Nearly ten years ago, Lindsay Curtis started to address what he called ‘the comparative failure of the gospel of the new administrative law to take root’ in other Australian State/Territory jurisdictions and overseas (Curtis, above n 8, 52–3), and that remains an interesting but neglected topic.

130 Mantziaris and McDonald, above n 28, 32–6; Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’, above n 108, 14–17.

131 Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’, above n 108, 12, 23.

132 Ibid.

133 (1993) 45 FCR 164.

134 Margaret, Allars, ‘Private Law but Public Power: Removing Administrative Law from Government Business Enterprises’ (1995) 6 Public Law Review 44, 56–68Google Scholar.

135 Peter Bayne and Margaret Allars blew the whistle early. See Peter, Bayne, ‘Administrative Law and the New Managerialism in Public Administration’ (1988) 62 Australian Law Journal 1040Google Scholar; Margaret, Allars, ‘Administrative Law, Government Contracts and the Level Playing Field’ (1989) 12 University of New South Wales Law Journal 114Google Scholar.

136 Mercury Energy Ltd v Electricity Corporation of New Zealand [1994] 2 NZLR 385. See generally Janet, McLean, ‘Contracting in the Corporatised and Privatised Environment’ (1996) 7 Public Law Review 223Google Scholar; Michael, Taggart, ‘Corporatisation, Contracting and the Courts’ [1994] Public Law 351Google Scholar; Michael, Taggart, ‘State-Owned Enterprises and Social Responsibility: A Contradiction in Terms?’ [1993] New Zealand Recent Law Review 343Google Scholar.

137 (2003) 216 CLR 277 (‘NEAT Domestic’).

138 See Linda, Courtenay Botterill, ‘Doing it for the Growers in Iraq?: The AWB, Oil-for-Food and the Cole Inquiry’ (2007) 66 Australian Journal of Public Administration 4, 11–12Google Scholar; Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’, above n 108, 8–9.

139 NEAT Domestic (2003) 216 CLR 277, 297 [51], 299 [61], 300 [63].

140 Ibid 297 [50].

141 [1987] 1 QB 815 (‘Datafin’).

142 See the case law discussed by Colin, Campbell, ‘The Public/Private Distinction in Australian Administrative Law’ in Matthew, Groves and H P, Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 34Google Scholar; Daniel, Stewart, ‘Non-Statutory Review of Private Decisions by Public Bodies’ (2005) 47 AIAL Forum 17Google Scholar; Aronson, Dyer and Groves, above n 43, 127–32.

143 There is no space to refer to all the sources. See SirGerard, Brennan, ‘The Purpose and Scope of Judicial Review’ in Michael, Taggart (ed), Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 18Google Scholar; Belinda, Baker and Stephen, Gageler, ‘Brennan, (Francis) Gerard’ in Tony, Blackshield, Michael, Coper and George, Williams (eds), The Oxford Companion to the High Court of Australia (2001) 66Google Scholar; the contributions to Creyke and Keyzer, above n 63.

144 Most prominently in Kioa v West (1985) 159 CLR 550, 582 (Mason CJ), 609 (Brennan J), but see the treatment in Holloway, above n 105, ch 7.

145 Gageler, ‘Sir Gerard Brennan and Some Themes in Judicial Review’, above n 63. This issue has dominated the law review literature in the Northern hemisphere over the last ten years or so. See the contributions to Christopher Forsyth (ed), Judicial Review and the Constitution (2000): that book was meant to bring the debate to a head but simply stirred some of the protagonists on to new heights of abstraction and vituperative. Bradley Selway rightly pointed out the debate has been taken up in Australia (as it has in New Zealand) but ‘perhaps not with the same vigour that it has been pursued in England’: above n 13, 222. See also Gageler, ‘The Underpinnings of Judicial Review of Administrative Action’, above n 37. For my view of the debate, see Michael, Taggart, ‘Ultra Vires as Distraction’ in Christopher, Forsyth (ed) Judicial Review and the Constitution (2000) 427Google Scholar.

146 See generally Peter, Cane, ‘Accountability and the Public/Private Distinction’ in Nicholas, Bamforth and Peter, Leyland (eds), Public Law in a Multi-Layered Constitution (2003) 247Google Scholar.

147 SirGerard, 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 (2002) 9, 19–37Google Scholar; SirGerard, Brennan, ‘The Mechanics of Responsibility in Government’ (1999) 58(3) Australian Journal of Public Administration 3, 10Google Scholar. Sir Gerard indicated also a path through the constitutional thicket of ss 75(iii) and 75(v) with their unhelpful limitations to ‘the Commonwealth’ and ‘officers of the Commonwealth’. Cf Gleeson, ‘Outcome, Process and the Rule of Law’, above n 10, 7 (‘Privatisation, and outsourcing of functions, have placed many activities affecting the interests of citizens outside the scope of the legislative scheme conceived of in the 1970s (cf NEAT…)’).

148 See Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’, above n 108, 11–12. Cf JusticeJ J, Spigelman, ‘Foundations of Administrative Law: Toward General Principles of Institutional Law’ (1999) 58(1) Australian Journal of Public Administration 3, 7–10Google Scholar.

149 Botterill, above n 138.

150 The literature is elephantine, see the summation and references in Michael, Taggart, ‘The Nature and Function of the State’ in Peter, Cane and Mark, Tushnet (eds), The Oxford Handbook of Legal Studies (2003) 101Google Scholar.

151 See Stephen, K Vogel, Freer Markets, More Rules: Regulatory Reform in Advanced Industrial Countries (1996)Google Scholar; Martin, Shapiro, Who Guards the Guardians? Judicial Control of Administration (1988) 96Google Scholar; Peter, Shuck, ‘Law and Post-Privatization Regulatory Reform: Perspectives from the US Experience’ in L, Manzetti (ed), Regulatory Policy in Latin America: Post-Privatization Realities (2000) 25, 27, 30Google Scholar; Michael, Taggart, ‘From “Parliamentary Powers” to Privatization: The Chequered History of Delegated Legislation in the Twentieth Century’ (2005) 55 University of Toronto Law Journal 575Google Scholar.

152 Mark, Aronson, ‘A Public Lawyer’s Responses to Privatisation and Outsourcing’ in Michael, Taggart (ed) The Province of Administrative Law (1996) 40, 53Google Scholar.

153 Daly [2001] 2 AC 532.

154 The case is R v Ministry of Defence; Ex parte Smith [1996] QB 517. Other commentators share my view that despite what the judges said they did not subject the policy to genuine heightened scrutiny: Michael, Fordham and Thomas, de la Mare, ‘Identifying Principles of Proportionality’ in Jeffrey, Jowell and Jonathan, Cooper (eds), Understanding Human Rights Principles (2001) 27, 68–70Google Scholar.

155 Smith & Grady v United Kingdom (1997) 29 EHRR 493, [137]–[139]. The decision was delivered on 27 September 1999. The Human Rights Act 1998 (UK) was passed in 1998 and came into force on 2 October 2000. In the earlier case of Soering v UK (1989) 11 EHRR 439 the European Court of Human Rights held Wednesbury review satisfied art 13.

156 See, however, Susan, Kneebone, ‘A Commentary on Proportionality: Protection of Common Law Rights or “Chipping Away at the Diceyan Edifice“’ in Linda, Pearson (ed), Administrative Law: Setting the Pace or Being Left Behind? (1997) 145Google Scholar.

157 Daly [2001] 2 AC 532, 547–8 [27] (Lord Steyn), citing the point well made earlier by David, Feldman, ‘Proportionality and the Human Rights Act 1998’ in Evelyn, Ellis (ed), The Principle of Proportionality in the Laws of Europe (1999) 117Google Scholar, 127–9.

158 Daly [2001] 2 AC 532, 548 [28] (Lord Steyn), citing Jeffrey, Jowell, ‘Beyond the Rule of Law: Towards Constitutional Judicial Review’ [2000] Public Law 671, 681Google Scholar.

159 See Human Rights Act 2004 (ACT); Victorian Charter of Rights and Freedoms 2006 (Vic). See generally Priyanga, Hettiarachi, ‘The Sacred and the Profound: Judicial Review and Rights, Proportionality and Deference to Executive Conduct’ (2007) 29 Australian Bar Review 223Google Scholar.

160 Mason, ‘Judicial Review’, above n 9, 341–3; Margaret, Allars, ‘Proportionality, Tradition and Constitutional Framework: Borrowing Foreign Legal Notions in Australian Public Law’ in Guenther, Doeker-Mach and Klaus, A Ziegert (eds), Law, Legal Culture and Politics in the Twenty First Century (2004) 357Google Scholar; Robert, Thomas, Legitimate Expectations and Proportionality in Administrative Law (2000)Google Scholar. The German influence has been dominant in the evolution of proportionality. See generally Mahendra, P Singh, German Administrative Law in Common Law Perspective (2001) 160Google Scholar; Dieter, Grimm, ‘Proportionality in Canadian and German Constitutional Jurisprudence’ (2007) 57 University of Toronto Law Journal 383Google Scholar.

161 See Bruce v Cole (1998) 45 NSWLR 163, 185 (Spigelman CJ); SirAnthony, Mason, ‘The Tension between Legislative Supremacy and Judicial Review’ (2003) 77 Australian Law Journal 803, 809Google Scholar. See the sophisticated treatment in Chris, Hilson, ‘The Europeanization of English Administrative Law: Judicial Review and Convergence’ (2003) 9 European Public Law 125Google Scholar.

162 Proportionality terminology is a feature of Australian constitutional law. See H P, Lee, ‘Proportionality in Australian Constitutional Adjudication’ in Geoffrey, Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (1994) 126Google Scholar; Allars, ‘Proportionality, Tradition and Constitutional Framework’, above n 160.

163 Mason, ‘Judicial Review’, above n 9, 342.

164 Chief JusticeMurray, Gleeson, ‘The Influence of the Privy Council on Australia’ (2007) 29 Australian Bar Review 123, 133Google Scholar; Susan, Kiefel, ‘English, European and Australian Law: Convergence or Divergence?’ (2005) 79 Australian Law Journal 220, 231Google Scholar.

165 Jason, Varuhas, ‘Keeping Things in Proportion: The Judiciary, Executive Action and Human Rights’ (2006) 22 New Zealand Universities Law Review 300Google Scholar; Jason, Varuhas, ‘Powerco v Commerce Commission: Developing Trends of Proportionality in New Zealand Administrative Law’ (2006) 4 New Zealand Journal of Public and International Law 339Google Scholar.

166 See Wolf v Minister of Immigration [2004] NZAR 414.

167 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 367 (Deane J); Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation (1990) 96 ALR 153, 168 (Gummow J); Margaret Allars, Introduction to Australian Administrative Law (1990) [5.10]; Isaac v Minister of Consumer Affairs [1990] 2 NZLR 606, 636 (Tipping J); Institute of Chartered Accountants of New Zealand v Bevan [2003] 1 NZLR 154; Wolf v Minister of Immigration [2004] NZAR 414; Waikatere City Council v Lovelock [1997] 2 NZLR 385, 408 (Thomas J).

168 R v North and East Devon Health Authority; Ex parte Coughlan [2001] 1 QB 213; R v Secretary of State for Education and Employment; Ex parte Begbie [2000] 1 WLR 1115. Søren Schønberg, Legitimate Expectations in Administrative Law (2000); Craig, Administrative Law, above n 58, 639–86. For subsequent developments see: R (Bibi) v Newham London Borough Council [2002] 1 WLR 237; R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744; R (A) v Secretary of State for the Home Department [2006] EWHC 526; R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363.

169 I am not going to consider the doctrine of substantive unfairness due to space constraints. The UK and New Zealand recognise it, and Canada and Australia do not. In the Australian context, compare Cameron, Stewart, ‘The Doctrine of Substantive Unfairness and the Review of Substantive Legitimate Expectations’ in Matthew, Groves and H P, Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 280Google Scholar (against adoption) with Stern, above n 47 (in favour).

170 See Attorney-General (NSW) v Quin, (1990) 170 CLR 1; Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Daihatsu Australia Pty Ltd v Deputy Commissioner of Taxation (2000) 46 ATR 129; Lam (2003) 214 CLR 1, 23–4 [73], 24–5 [76]. See also Spigelman, above n 13.

171 Mount-Sinai Hospital Center v Quebec (Minister of Health and Social Services) [2001] 2 SCR 281. Although in that case relief was given on a more technical ground that had the effect of preventing the Minister from going back on his previously stated position, and it has been argued that the Supreme Court adopted the UK approach in all but name. See Geneviève, Cartier, ‘A “Mullanian” Approach to the Doctrine of Legitimate Expectations: Real Questions and Promising Answers’ in Grant, Huscroft and Michael, Taggart (eds), Inside and Outside Canadian Administrative Law: Essays in Honour of David Mullan (2006) 185Google Scholar.

172 Brierley Investments Ltd v Bouzaid [1993] 3 NZLR 655; Attorney-General v Steelfort Engineering Co Ltd (1999) 1 NZCC 61, 130. For the tangled law at High Court level, see: Tay v Attorney-General [1992] 2 NZLR 693; Northern Roller Milling Co Ltd v Commerce Commission [1994] 2 NZLR 747; Lumber Specialties Ltd v Hodgson [2000] 2 NZLR 347, 59–64 [125]–[139] (Hammond J); Challis v Destination Marlborough Trust Board Inc [2003] 2 NZLR 107 (the Court of Appeal refused leave to appeal: CA 37/03, 8 December 2003); Staunton Investments Ltd v Chief Executive Ministry of Fisheries [2004] NZAR 68; New Zealand Association for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (decided in 2003); Ch’elle Properties (NZ) Ltd v Commissioner of Inland Revenue [2004] 3 NZLR 274.

173 Of course, there is a large debate about the meaning of terms like principle and policy, and the differences between them. This debate cannot be pursed here.

174 Selway, above n 13, 235, 237. I rather like Sir Anthony Mason’s comment that ‘the Constitution seems to play a similar role in Australian administrative law to that dark cloud that constantly hovers over the head of Joe Btfsplk in the American comic strip “Li’l Abner”’: Mason, ‘Procedural Fairness’, above n 101.

175 SirAnthony, Mason, ‘The Evolving Role and Function of the High Court’ in Brian, Opeskin and Fiona, Wheeler, The Australian Federal Judicial System (2000) 95, 116Google Scholar. See also John, McMillan, ‘The Academic Contribution to Australian Administrative Law’ (2001) 8 Australian Journal of Administrative Law 214Google Scholar, 214, 216–17. I have advocated similarly in respect of my own country, New Zealand/Aotearoa; which once in the colonial past was part of Australia and still with an opening in the Commonwealth Constitution to become so again. See Michael, Taggart, ‘The New Zealandness of New Zealand Public Law’ (2004) 15 Public Law Review 81Google Scholar; JusticeMichael, Kirby and Philip, Joseph, ‘Trans-Tasman Relations — Towards 2000 and Beyond’ in Philip, Joseph (ed), Essays on the Constitution (1995) 129Google Scholar.

176 See Gummow, ‘The Constitution’, above n 42.

177 (1990) 170 CLR 1, 35–6. See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). There is no space to refer to all the sources. See generally the contributions to Sir Gerard’s Festschrift: Creyke and Keyzer, above n 63.

178 Stephen, Gageler, ‘The Legitimate Scope of Judicial Review’ (2001) 21 Australian Bar Review 279Google Scholar.

179 See Aronson, Dyer and Groves, above n 43, 165. For a very forceful view, see Peter, Cane, ‘Merits Review and Judicial Review — The AAT as Trojan Horse’ (2000) 28 Federal Law Review 213Google Scholar.

180 Spigelman, above n 13, 732–3.

181 Chief JusticeMurray, Gleeson, ‘Judicial Legitimacy’ (2000) 20 Australian Bar Review 4, 11Google Scholar (citations omitted). See also Mason, ‘Administrative Review’, above n 123, 139 (‘The difference between merits review and judicial review, though perhaps not as great as some people think, is nevertheless significant’); Pat, Keane, ‘Judicial Power and the Limits of Judicial Control’ in Peter, Cane (ed), Centenary Essays of the High Court of Australia (2004) 295Google Scholar (‘while the line may not always be a bright one, it is there’).

182 See Aronson, Dyer and Groves, above n 43, 164.

183 Hanns, Peter Nehl, ‘Administrative Law’ in Jan, M Smits (ed), Elgar Encyclopedia of Comparative Law (2006) 18, 23–4Google Scholar.

184 See Jürgen, Schwarze, European Administrative Law (1992)Google Scholar; Jürgen, Schwarze (ed), Administrative Law under European Influence: On the Convergence of the Administrative Laws of the EU Member States (2nd ed, 2001)Google Scholar; K H, Ladeur (ed), The Europeanisation of Administrative Law: Transforming National Decision-Making Procedures (2002)Google Scholar; R, Seerden and F, Stroink (eds), Administrative Law of the European Union, Its Member States and the United States: A Comparative Analysis (2002)Google Scholar. See generally John, Bell, ‘Comparative Administrative Law’ in Mathias, Reimann and Reinhard, Zimmermann (eds), The Oxford Handbook of Comparative Law (2006) 1259Google Scholar.

185 Robin, Cooke, ‘The Struggle for Simplicity in Administrative Law’ in Michael, Taggart (ed), Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986)Google Scholar ch 1; New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544, 522 (Cooke P).

186 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410.

187 See generally Sir Stephen Sedley, Freedom, Law and Justice (1999) ch 2. This has the advantage (or disadvantage, depending on one’s point of view) of slipping over the public/private divide.

188 Lam (2003) 214 CLR 1, 23 [72] (McHugh and Gummow JJ); Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd [1994] 2 NZLR 641, 654 (McKay J), 654 (Fisher J). See also Gummow, ‘The Constitution’, above n 42, 176–7.

189 See Brennan, ‘The Purpose and Scope of Judicial Review’, above n 143, 34.

190 As Judge Richard Posner asserts is the case: ‘Legal Reasoning from the Top Down and Bottom Up: The Question of Unenumerated Constitutional Rights’ (1992) 59 University of Chicago Law Review 433CrossRefGoogle Scholar, 433, quoted and discussed in Mason, ‘What Is Wrong with Top-Down Legal Reasoning?’, above n 37, 577.

191 It does seem bizarre to me that some Australian judges can declare that administrative law is not about ‘good administration’ and that the Constitution positively prohibits them from allowing any such idea to influence the development of judicial review. Lam (2003) 214 CLR 1, 11–12 [32] (Gleeson CJ). Note that Sir Anthony Mason preferred ‘good administration’ to ‘administrative efficiency’ because it ‘clearly takes account of the impact of the decision on the interests of individuals’: SirAnthony, Mason, ‘Reflections on the Development of Australian Administrative Law’ in Robin, Creyke and John, McMillan (eds), The Kerr Vision of Australian Administrative Law (1998) 122, 123Google Scholar.

192 Michael, Ignatieff, ‘Introduction: American Exceptionalism and Human Rights’ in Michael, Ignatieff (ed), American Exceptionalism and Human Rights (2005) 1Google Scholar, 3–4, 8–11.

193 For a very clear articulation that Australian administrative law will not be as influential around the common law world because of its distinctive features, see Sir Anthony Mason’s contribution to the Festschrift celebrating the centenary of the founding of the High Court of Australia: Mason, ‘The Break with the Privy Council and the Internationalisation of the Common Law’, above n 21.

194 See Frank, Michelman, ‘Integrity-Anxiety?’ in Michael, Ignatieff (ed), American Exceptionalism and Human Rights (2005) 240Google Scholar. Otto thinks exceptionalism is ‘a claim to singular superiority or uniqueness’ that transcends simple isolationalism: above n 1, 219–20.

195 Claire, L’Heureux-Dubé, ‘The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court’ (1998) 34 Tulsa Law Journal 15Google Scholar, 23–6.

196 Ibid 27, 37.

197 See James, Allan and Grant, Huscroft, ‘Constitutional Rights Coming Home to Roost? Rights Internationalism in American Courts’ (2006) 43 San Diego Law Review 1Google Scholar.

198 See generally Bruce, Topperwein, ‘Foreign Precedents’ in Tony, Blackshield, Michael, Coper and George, Williams (eds), The Oxford Companion to the High Court of Australia (2001) 280Google Scholar. But note the study by Brian Opeskin showing that there has been less citation of overseas authority in constitutional law than in other areas: Brian, Opeskin ‘Australian Constitutional Law in a Global Era’ in Robert, French, Geoffrey, Lindell and Cheryl, Saunders (eds), Reflections on the Australian Constitution (2003) 171Google Scholar.