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Between form and Substance: Minimising Judicial Scrutiny of Executive Action

Published online by Cambridge University Press:  01 January 2025

Mark Aronson
Mark Aronson*
Affiliation:
Law Faculty, University of New South Wales
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Abstract

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.

Type
Article
Information
Federal Law Review , Volume 45 , Issue 4 , December 2017 , pp. 519 - 540
Copyright
Copyright © 2017 The Australian National University

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Footnotes

I am grateful to this journal's anonymous reviewers, and to Sean Brennan, Matthew Groves, Simon Halliday, Michael Legg, Keith Mason, and Greg Weeks, for their comments and help.

References

1 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

2 Attorney General (NSW) v Quin (1990) 170 CLR 1, 35.

3 5 US 87, 111 (1803).

4 Attorney General (NSW) v Quin (1990) 170 CLR 1, 35.

5 Cf H, Monaghan, ‘Marbury and the Administrative State’ (1983) 83 Columbia Law Review 1Google Scholar.

6 That might change. By Executive action, President Trump has embarked upon a massive down-sizing of the administrative state. Multiple Bills originating in the House and the Senate seek the same broad outcome, and some of them also seek to amend, or even overturn, Chevron deference. At the time of writing, it is too early to warrant focus on the details here. Senate Bill 951 (Regulatory Accountability Act of 2017) proposes the following insertion into 5 USC § 706: ‘(3)(e): Agency interpretation of rules.—The weight that a reviewing court gives an interpretation by an agency of a rule of that agency shall depend on the thoroughness evident in the consideration of the rule by the agency, the validity of the reasoning of the agency, and the consistency of the interpretation with earlier and later pronouncements.’ House of Representatives Bill 5 (Regulatory Accountability Act 2017) passed the House and is now in the Senate. That Bill proposes amending § 706 to insert a provision requiring courts to resolve any difficulties flowing from apparent gaps or ambiguities in legislation without according any deference to agency interpretations. The headline for that amendment is the Separation of Powers Restoration Act 2017.

7 See below, text to fns 40–43.

8 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388–9.

9 R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345. Frankly, the Supreme Court later appeared to back down, when it acknowledged that the new guidelines were still imprecise, but declined (by majority) to require any further revision by the DPP: R (Nicklinson) v Ministry of Justice [2015] AC 657.

10 (2003) 211 CLR 476.

11 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, 615 (Dixon J).

12 R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208, 248 (Dixon J).

13 (2010) 239 CLR 531.

14 Ibid 580–1.

15 J, Basten, ‘Judicial Review in State Jurisdiction’ (2016) 84 Australian Institute of Administrative Law Forum 10, 11Google Scholar.

16 See M, Aronson, M, Groves and G, Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters Sydney, 6th ed, 2017) 916–17Google Scholar, [14.50].

17 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 581.

18 See, eg, Cummings v Claremont Petroleum NL (1996) 185 CLR 124, 132; Palmer v Ayres (2017) 341 ALR 18, [85].

19 Rhinehart v Welker [2012] NSWCA 95; Palmer v Ayres (2017) 341 ALR 18, [84]; Blenkinsop v Herbert [2017] WASCA 87, [72].

20 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 47; Palmer v Ayres (2017) 341 ALR 18, [85].

21 TCL Air Conditioner (Zhongshan) Co Ltd v Federal Court (2013) 251 CLR 533, 557; Rhinehart v Welker [2012] NSWCA 95.

22 Roche v Roche (No 2) [2017] SASC 75, [18].

23 Mobil Oil Australia Ltd v Victoria (2002) 211 CLR 1, 27 [21]; Kelly v Willmott Forests Ltd (in liq) (No 4) (2016) 335 ALR 439, [74]; Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98, [90].

24 The court's ‘supervisory role’ over legal practitioners carries a more ‘hands on’ meaning; see, eg, APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322, 349; Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19.

25 Lyons v Legalese Pty Ltd (2016) 126 SASR 232, 244–6.

26 Ousley v R (1997) 192 CLR 69, 98–9 (McHugh J).

27 (1997) 192 CLR 69.

28 Director of Housing v Sudi (2011) 33 VR 559, 600 [238] (Weinberg JA).

29 (2012) 249 CLR 398.

30 Ibid 424 (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

31 (2011) 33 VR 559, 565 [24], 580 [97]–[98], 597–8, 607.

32 See above, n 3.

33 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 666.

34 Many English judicial review theorists see some generic grounds of review as a mix of statutory interpretation and common law principle, and some of the review grounds (such as natural justice) conceived as entirely common law. They claim thereby to have explained judicial review of non-statutory administrative powers. Their opponents say that this is nothing less than a resort to the common law to ‘amend’ a statute. With the exception of a handful of common law constitutionalists, both sides profess fealty to legislative supremacy. See: M, Elliott, The Constitutional Foundations of Judicial Review (Hart Publishing, Oxford, 2001)Google Scholar; P, Craig and N, Bamforth, ‘Constitutional Analysis, Constitutional Principle and Judicial Review’ [2001] Public Law 763Google Scholar; P, Craig, UK, EU and Global Administrative Law: Foundations and Challenges (Cambridge University Press, 2015) 125–53Google Scholar.

35 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 666.

36 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 389.

37 See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; S, Gageler, ‘Impact of Migration Law on the Development of Australian Administrative Law’ (2010) 17 Australian Journal of Administrative Law 92, 101Google Scholar.

38 See SZFDE v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 232 CLR 189; Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627. The key provision attempting to codify the hearing rule of natural justice for migration tribunals now has a counterweight, namely, Migration Act 1958 (Cth) s 422B(3): ‘In applying this Division, the Tribunal must act in a way that is fair and just.’

39 See, eg, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 342–344, 361–362, 371–372, 374; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, 451 [70]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67, [47]–[54]; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, 3–6; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158.

40 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 571 [65].

41 See above, n 4.

42 (2003) 211 CLR 476, 505 [73].

43 This follows from theorising the judicial review of the exercise of administrative power conferred by statutes as an extended exercise in statutory interpretation; see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388–389. For an example of an effective legislative stipulation that an error would not result in invalidity, see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212.

44 England and Wales now call it ‘permission to proceed’: see Civil Procedure Rules 1998 (UK, SI 3132 of 1998), Pt 54. Because the process is on the papers, and because reasons are not usually given, the process has been described as a ‘permission lottery’, although it may become something ‘akin to an early neutral evaluation of claims …’: S, Nason, Reconstructing Judicial Review (Hart Publishing, 2016) 105–106Google Scholar.

45 It applies to: constitutional writ applications to the High Court (High Court Rules 2004, Part 25); applications for judicial review in the Supreme Courts of Western Australia (Rules of the Supreme Court 1971, O 56); Tasmania (Supreme Court Rules 2000, Part 32, Division 1A); applications in the Federal Circuit Court for judicial review of certain migration decisions (Federal Circuit Court Rules 2001 (Cth) R 44.05).

46 See Migration Act 1958 (Cth), s 486B(4)(a) and ss 486E–486J respectively, inserted into the principal Act by the Migration Litigation Reform Act 2005 (Cth), sch 1.

47 See Migration Act 1958 (Cth), ss 500(6)(L) and (H) respectively, inserted into the principal Act by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth), sch 1.

48 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651.

49 Ibid 672 [56]–[57].

50 Church of Scientology v Woodward (1982) 154 CLR 25, 76.

51 Kable v Director of Public Prosecutions (1996) 189 CLR 51.

52 The very existence of a certificate was kept from an appellant to the AAT in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305. That constituted a breach of procedural fairness because it deprived the appellant of a chance to contest the certificate's validity, whether that challenge be brought in the tribunal, or (if the tribunal lacked the power to entertain a collateral challenge) by way of judicial review.

53 See Condon v Pompano Pty Ltd (2013) 252 CLR 38, reviewing a number of earlier cases, including: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; South Australia v Totani (2010) 242 CLR 1; Wainohu v New South Wales (2011) 243 CLR 181.

54 The Act in Condon v Pompano Pty Ltd (2013) 252 CLR 38 provided for a Criminal Organisation Public Interest Monitor (akin in some respects to Special Advocates), although this does not appear to have been critical. Commissioner of Police v Sleiman and AVS Group of Companies Pty Ltd (2011) 78 NSWLR 340 held that the State's generalist merits appeal tribunal could itself appoint counsel to perform a role akin to an amicus curiae, in a context that forbade access by the appellant or its lawyers to the criminal intelligence material. See more generally: L, Line and D, Plater, ‘Police, Prosecutors and ex parte Public Interest Immunity Claims: the Use of Special Advocates in Australia’ (2014) 33 University of Tasmania Law Review 255Google Scholar.

55 Commissioner of Police v Sleiman and AVS Group of Companies Pty Ltd (2011) 78 NSWLR 340, 389 [226].

56 [2017] HCA 33.

57 Administrative Appeals Tribunal Act 1975 (Cth) s 39A.

58 Those in immigration detention can also submit to an entirely non-statutory review process, conducted by a retired Federal Court judge, who does her best to treat the appellant fairly, in a context where certain evidence is kept from appellants and their lawyers. French CJ mentioned the non-statutory mechanism in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322, 338 [14]. ASIO's Annual Reports are online through asio.gov.au, and those from 2013–2014 onwards describe the mechanism and its caseload.

59 See Migration Act 1958 (Cth) ss 503A–D. These provisions apply to information provided in confidence to migration officers by law enforcement or intelligence agencies. They apply to proceedings in tribunals and courts, and forbid the disclosure to those forums of the confidential information without the consent of the Minister acting personally. That consent can be conditional upon the affected party being kept out of the loop.

60 See Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1; Leghai v Director General of Security (2007) 241 ALR 141, [51]–[55]; and Jaffarie v Director General of Security (2014) 226 FCR 505, 533–536. A procedural fairness challenge succeeded in El Ossman v Minister for Immigration and Border Protection [2017] FCA 636, essentially because ASIO decided not to claim public interest immunity for certain information, and yet failed to warn the applicant that it would be used. The applicant in BSX15 v Minister for Immigration and Border Protection [2017] FCAFC 104 had been known by a number of names. ASIO had asked him whether he was known by names other than those on his immigration forms, but not whether he was in fact the person known by one name. None of the alternate names was disclosed to the applicant, who was therefore in no position to respond to ASIO's fear that he was concealing his real identity. The natural justice challenge succeeded.

61 Migration Amendment (Validation of Decisions) Act 2017 (Cth).

62 Bill of Rights 1688 (Eng) 1 W & M 2, c 1–2.

63 J, Allison (ed), Oxford Edition of Dicey (OUP, 2013)Google Scholar, vol 1, The Law of the Constitution, 32–33 (lect 2, 1st ed, 1885; 10th ed, 1959, 49–50), 135–7 (lect 6, 1st ed, 1885; 10th ed, 1959, 232–237), and 359–361 (lect Note XII, 6th ed, 1902).

64 As part of the deal to deliver a smooth Restoration of the monarchy after the Commonwealth, Charles II consented to An Act of Free and Generall Pardon Indemnity and Oblivion 1660 (England), 12 Car II c 11. Excepting those involved in the trial and execution of Charles I (and their treatment was hideous, even for those who were already dead), the Act basically drew a legal veil over the ‘long and Great Troubles Discords and Warrs’: preamble. Section 24 even forbade for the next three years any words of reproach ‘tending to revive the memory of the late Differences’.

65 J, Allison (ed), Oxford Edition of Dicey (OUP, 2013)Google Scholar, vol 1, The Law of the Constitution, 136–137 (lect 6, 1st ed, 1885; 10th ed, 1959, 235–237).

66 (1870) LR 6 QB 1.

67 P, Handford, ‘Edward John Eyre and the Conflict of Laws’ (2008) 32 Melbourne University Law Review 822Google Scholar. The claim had to arise out of conduct that was wrongful according to the law of the place where it occurred and actionable in the place where the claim was litigated. The ‘double-actionability’ rule no longer applies in Australia: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; and Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331. Much has been written on the Jamaican rebellion; see M, Taggart, ‘Ruled by Law?’ (2006) 69 Modern Law Review 1006Google Scholar.

68 (1870) LR 6 QB 1, 17.

69 Australian Security Intelligence Organisation Act 1979 (Cth), s 35K(1)(e).

70 See Commonwealth, Parliamentary Debates, Senate, 24 September 2014, 6906 (Senator Leyonhjelm); Commonwealth Parliamentary Debates, Senate, 25 September 2014, 7232 (Senator Brandis, Attorney General).

71 See Parliamentary Joint Committee on Intelligence and Security, Report of the Inquiry into Potential Reforms of Australia's National Security Legislation (2013) pp 108–112; Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the National Security Legislation Amendment Bill (No 1) 2014 19–21; Senate Standing Committee for the Scrutiny of Bills, Twelfth Report of 2014, 613–627, and 18–19 of Enclosure 1 to that Report, and Thirteenth Report, 717–722. The government explained its position in a series of documents, namely: the Australian Government Response to Chapters 2 and 3 of the [PJCIS 2013 Report]; four submissions from the Attorney General's Department to the PJCIS in 2014; an ASIO submission; and a summary prepared jointly by the Attorney General's Department and ASIO of their responses to the Joint Committee's concerns.

72 And a corresponding amendment to s 35C(2)(e), which sets boundaries to conduct authorised for a special intelligence operation. The government had argued that there was strictly no need for s 35K(1)(e), because s 35K(1)(b) limits the immunity to conduct that complies with the authorisation for a special intelligence operation. That cannot be right, not just because it would make large parts of s 35K superfluous, but also because the section's immunity extends further than ‘conduct’ that is compliant with the authority under which the officer is acting. The immunity is from liability ‘for or in relation to conduct …’ within the authority's scope (emphasis added).

73 Intelligence Services Act 2001 (Cth) s 14.

74 Ibid ss 6(2)(c), 9(1)(c), 12, 12A, 13E(b).

75 Crimes Act 1914 (Cth) pt 1AB div 3.

76 Ibid s 15GF; Intelligence Services Act 2001 (Cth) ss 9, 9A, 9B; Australian Security Intelligence Organisation Act 1979 (Cth) s 35B.

77 See cases cited in above n 67.

78 Australian Constitution s 51(xxxi).

79 See, eg, Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155, 172–173, 176, 184, 194, 222; ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140, 180, 196.

80 Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297.

81 The following discussion is offered with some trepidation given the recent work of Lisa, Burton Crawford in The Rule of Law and the Australian Constitution (Federation Press, 2017)Google Scholar. Her book constitutes an extended and incisive attack on the theories of TRS Allan, the leading proponent of the rule of law, as an inherent and judicially enforceable limit to public power.

82 R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539, 587.

83 R, Cross, Statutory Interpretation (Butterworths, 1st ed, 1976) 142–143Google Scholar.

84 R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539, 588.

85 Reaffirmed by majority and dissenting judges alike in R (Miller) v Secretary of State for Exiting the European Union [2017] 2 WLR 583, [43], [177].

86 It is unnecessary for the purposes of this article to examine opposing views, propounded by common law constitutionalists.

87 See Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155, 211–212.

88 See Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 508; Federal Commissoner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146, 164–165.

89 The joint judgment in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 [102], suggested that this was one reason for doubting the Commonwealth Parliament's ability to grant virtually plenary power over aliens to the Immigration Minister.

90 See L, Burton Crawford, ‘Can Parliament Confer Plenary Executive Power? The Limitations Imposed by Sections 51 ad 52 of the Australian Constitution’ (2016) 44(2) Federal Law Review 287Google Scholar.

91 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 193; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492 [31], 513 [103]. No majority view emerged from Kartinyeri v Commonwealth (1998) 195 CLR 337. The principle of legality is not advanced here as a separate basis for limiting legislative power, because it appears to comprise a set of principles concerning statutory interpretation, rather than Constitutional principles.

92 M, Krygier, ‘Why Rule of Law Promotion is Too Important to Be Left to Lawyers’ in R, Gaita and G, Simpson (eds), Who's Afraid of International Law? (Monash University Press, 2017) ch 6, 133–168Google Scholar.

93 M, Krygier, ‘Rule of Law’ in M, Rosenfeld and A, Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) ch 10, 233–249Google Scholar.

94 See W, Bateman, ‘The Constitution and the Substantive Principles of Judicial Review: the Full Scope of the Entrenched Minimum Provision of Judicial Review’ (2011) 39(3) Federal Law Review 463Google Scholar.

95 The joint judgment of Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ in Plaintiff M96A/2016 v Commonwealth (2017) 91 ALJR 579, 586 [31] (citations omitted) has an intriguing passage: ‘In other words, Parliament cannot avoid judicial scrutiny of the legality of [immigration] detention by criteria which are too vague to be capable of objective determination. This would include an attempt to make the length of detention at any time dependent upon the unconstrained, and unascertainable, opinion of the Executive.’

96 See J, Mashaw, ‘Public Reason and Administrative Legitimacy’ in John, Bell et al (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Hart Publishing, 2016)Google Scholar ch 2, [17]: ‘The instrumental grounds for reason giving [that] the courts and commentators routinely provide are hardly unimportant. But, I am arguing that there is a deeper ground for reason giving in a democracy and therefore a reason for treating a right to reasons as a fundamental, rather than as a contingent or derivative, human right. Authority without reason is literally dehumanizing. It is, therefore, fundamentally at war with the promise of democracy, which is, after all, self-government.’

97 It must suffice here to refer to the U.S. Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency's Detention and Interrogation Program, 2014, Washington. This is readily available online at https://fas.org/irp/congress/2014_rpt/ssci-rdi.pdf

98 See Mohammed v Ministry of Defence [2017] 2 WLR 287; Mohammed v Ministry of Defence (No 2) [2017] 2 WLR 327; Belhaj v Straw [2017] 2 WLR 456.

99 Mohammed v Ministry of Defence [2017] 2 WLR 287.

100 Belhaj v Straw [2017] 2 WLR 456.

101 See Mohammed v Ministry of Defence [2017] 2 WLR 287, [36], [72], cf [96].

102 Belhaj v Straw [2017] 2 WLR 456.

103 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

104 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 514 [104] (emphasis added).

105 Ibid.

106 Ibid.

107 Ibid 513 [102] (citations omitted).

108 L, Muir, ‘The Function of s 75(v) of the Constitution’ (2017) 24(1) Australian Journal of Administrative Law 21Google Scholar. But see also Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336, 366–367, where Hayne J left the issue unresolved.

109 Muir, above n 108, 39–40.

110 Ibid 40.