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The Court, The Parliament and The Government - Reflections on the Scope of Judicial Review

Published online by Cambridge University Press:  24 January 2025

Peter Bayne
Peter Bayne*
Affiliation:
Faculty of Law, Australian National University
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Extract

Judges often describe their courts as an arm of government. The very arrangement of the Constitution provides some justification for this claim, and it furthermore guarantees a role to the High Court in the review of administrative action. The discharge of this role manifests another dimension of the governmental role of the courts: what they do by way of review has a direct and sometimes profound effect on the business of politics and the administration of government. This is perceived by the judges, who are often at pains to distinguish their role from that of the executive. It is also understood by the politicians, who often criticise the judges for overstepping the mark. All this is not of course solely or even primarily a consequence of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), but in some respects the Act has thrown into sharper relief the tension between judges and politicians which flows from the exercise of judicial review.

Type
Research Article
Information
Federal Law Review , Volume 20 , Issue 1 , March 1991 , pp. 1 - 49
Copyright
Copyright © 1991 The Australian National University

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Footnotes

Revised version of a paper presented at the Conference “Ten Years of the Federal Administrative Decisions (Judicial Review) Act” in September 1990.

References

1 Constitution, s 75(v); see Cowen, Z Zincs, LFederal Jurisdiction in Australia (2nd ed, 1978), 46-58Google Scholar.

2 Bayne, P, “Administrative law and the new managerialism in public administration” (1988) 62 AU 1040, 1042-1043Google Scholar; Pearce, D, “Executive Versus Judiciary” (1991) 2 Public L Rev 179Google Scholar.

3 The word tension is not employed to suggest hostility; see The Hon Mr Justice Brennan, “Reflections (1989) 58 Canberra Bulletin of Public Administration, 32, 33, discussed in text at infra n 5.

4 In Re Ditfort; ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 368-370 Gummow J linked an analysis of justiciability to the concept of “matters” employed in Chapter III of the Constitution. Whether changing the terms of the question in this way adds anything to its resolution is problematic, although it may lead the Australian courts to consider United states case-law more closely.

5 The Hon Mr Justice Brennan, supra n 3, 33; cf Universal Camera Corporation v National Labor Relations Board (1951) 340 US 474, 477 per Frankfurter J.

6 Those familiar with administrative law scholarship of the last I5 years will have little difficulty in tracing the sources of inspiration for some parts of the critique offered in this essay. Some of this writing is cited, but to acknowledge my debt more completely, I should indicate the works of the United States writers R B Stewart, “The Reformation of American Administrative Law” (1975) 88 Harv L Rev 1669 and C R Sunstein, “Interpreting Statutes in the Regulatory State (1989) I 03 Harv L Rev 405; of the Canadians H W Arthurs, 'Without the Law': Administrative Justice and legal Pluralism in Nineteenth-Century England (1985) and “Rethinking Administrative Law: A Slightly Dicey Business” (1979) 17 Osgoode Hall L J I: H Wade Maclauchlan, “Judicial Review of Administrative Interpretations of the Law: How Much Formalism Can We reasonably Bear?” (1986) 36 Univ of Toronto L J 249; and D J Mullan, “Substantive Fairness Review: Heed the Amber Light!” (1988) 18 Vic U Well L Rev 293; and of the United Kingdom writers T Prosser, “Towards a Critical Public Law” (1982) 9 Journal of Law and, Society l; JPWB McAuslan, “Administrative Law, Collective Consumption and Judicial Policy” (1983) 46 Mod L Rev 1; J Griffiths, The Polilics of the Judiciary (3rd ed, 1985); D Galligan, Discretionary Powers (1986); and I Harden and N Lewis, The Noble Lie (1986). P Craig, Administrative Law (2nd ed, 1989) is an accessible introduction to some of the major themes in this essay, and his Public Law and Democracy in the United Kingdom and the United States of America (1990) is a thorough survey of the theoretical underpinnings of Anglo-American administrative law.

7 Cf Sir Owen Dixon"s approach in R v Trebilco; ex parte F S Falkiner & Sons (I 936) 56 CLR 20 to that of his Honour in R v Hickman; ex parie Fox (1945) 70 CLR 598.

8 In panicular, Commonwealth of Auslralia, Commonwealth Administrative Review Commillee: Report August 1971, PP No 144 of 1971 (hencefonh Kerr Commiuee Repon).

9 The Auomey-General's Second Reading speech did however make il clear Lhal Lhe Act was not intended to freeze the law: “[t]o avoid stultifying funher development of the law by the Federal Coun of Australia, each of clauses 5 and 6 contains the comprehensive ground that the decision made or proposed Lo be made would be oLherwise contrary to the law”; H Reps Deb 1977, Vol 105, 1395 (28 April 1977).

10 Kerr Commiuee Report, supra n 8, para 265; although just what was meant is not explained.

11 H Whitmore, “Administrative Law in the Commonwealth: Some Proposals for Reform” (1972) 5 FL Rev 7, 14. Professor Whitmore was a member of the Kerr CommitLee. He also observed that the Committee foresaw “that Members of Parliament would carefully scrutinize powers conferred on the Governor-General knowing that they would be placed substantially ouLside the syslem of review”; id. The Commiuee's observations on this mauer are less clear than WhiLmore's; Kerr Commiuee Repon, supra n 8, para 265.

12 Kerr Commiuee Repon, supra n 8, para 265.

13 “Responsible Government is the constitutional check on arbitrary administration”: Williamson v Ah On (1926) 39 CLR 95, 103 per Isaacs J. R v Arndel (1906) 3 CLR 557 illustrates I.he practical consequences of I.his approach.

14 Waler Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 is illustrative.

15 Snedden, B M, “Ministerial Responsibility in Modem Parliamentary Government”, in R A Woodman (ed), Record of lhe Third Commonweallh and Empire Aw Conference (1966) I, 8Google Scholar.

16 Kerr Committee Repon, supra n 8, para 19.

17 (1978) 142 CLR I.

18 R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170.

19 (1982) 151 CLR 342.

20 See Loo Bread Manufacturers (NSW) v Evans (1981) 56 AUR 89.

21 Other abstentionist devices such as the distinction between jurisdictional and non-jurisdictional error of law had been undermined by English and Australian case-law. It had also become clear that the ultra vires grounds for challenge could be raised in situations where Lhe language of jurisdictional error was more appropriate; see Anisminic v Foreign Compensation Commission [1969) 2 AC 147, and the High Coun decisions in R v Australian Industrial Court; ex parte Maynes (1978) 19 ALR 669, 679 and R v Moore; ex parte Cooperative Bulk Handling lid (1982) 41 ALR 221.

22 The Kerr Committee said LhaL Lhey expected their proposals to “encourage recourse to the Court” (Kerr Committee Repon, supra n 8, para 248).

23 ADJR Act, s 4.

24 ADJR Act, s 5(1)(f).

25 ADJR Act, ss 11 and 16.

26 ADJR Act, s 3(4).

27 ADJR Act, s 13.

28 See the observations of Dixon J in R v Trebilco; ex parte F S Falkiner & Sons (1936) 56 CLR 20, 32.

29 Bennett, D, “The Assimilation of Judicial Review to Review on Lhe Merits” (1989) 58 Canberra Bulletin of Public Administration, 94, 95-96Google Scholar.

30 Say, of whether to deport someone: Hin.di v Minister for Immigration (1988) 20 FCR 1, 12-13; Minister for Immigration v Pashmforoosh (1989) 18 ALO 77, 80.

31 The emergence of this ground of review in recent case-law may perhaps be traced to an appreciation by the judges that some reasons statements are perfunctory and/or reconstructions of the “real” reasons; see P Bayne, “Reasons, evidence and internal review"' (1991) 65 AU 101, 104-105.

32 See, eg, Dodson v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court of Australia, 26 September 1991, unreported decision, 36-37). The fact that several Federal Court judges sit on the AAT (which does of course engage in full merits review) may also have contributed to more interventionist judicial review.

33 This is the sense in which the term is employed in s 5(2)(f) of the ADJR Act; there are points in this paper where policy may be used in this sense.

34 This is implicit in many administrative law decisions, and sometimes made fairly explicit; eg Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 497, 500.

35 The Hon Mr Justice Brennan, supra n 3, 34.

36 H Whitmore, supra n 11, 15. Whitmore was a member of the Kerr Committee and of the Bland Committee.

37 “Towards Administrative Justice” (1972) 46 AU 1, 2. See the Kerr Committee Report supra n 8, paras 19 and 354.

38 RN Spann, Government Administration in Australia (1979) 17-18. The legal approach is not the only (and perhaps not the most significant) underpinning to the dichotomy. It gained a great deal of support from American approaches to public administration in the period from the 1880s to the 1950s; A Dunsire, Administration: The Word and the Science (1973) 87ff is a good short account. As Dunsire intimates, the notion that the administrative anns of government do not make policy was in part a justification for the existence of those arms under a constitution framed according to the separation of powers. It was also inspired by the notion that administration could be scientific and to that extent removed from political influence.

39 “Towards Administrative Justice” (1972) 46 AU 1, 2.

40 R N Spann, supra n 38, 264; these two objections are elaborated ibid 263-264, and see ibid 18.

41 Ibid I 8. His observation at ibid 19 that “[a] depanment often has its depanmental philosophy or 'line'. a body of established policy and a characteristic approach” echoes a similar observation by Sir Ivor Jennings, The British Constitution (1958) 139-140. That there is ample room for the application of the depanmental line is a consequence of the fact that there is necessarily an intermixture of policy-formulation and decision making in individual cases. A United States commentator has encapsulated the two major reasons why this is so: “(t]he first is the manifest difficulty in many instances of formulating a guiding policy in advance of the consideration of individual cases because the issues involved are highly complex and controversial, or involve matters that remain substantially unresolved by existing legislation. The second factor is that many policies cannot be determined or ought not to be decided except in connection with the processing of specific cases of adjudication”: M H Bernstein, “The Regulatory Process: A Framework for Analysis” [1961] Law and Contemporary Problems 329, 332.

42 These repons aimed to give specific content to the recommendations of the Kerr Committee. The Bland Commiuee said that “[o]ur experience leaves us doubting whether any defensible line of demarcation can be drawn between decisions of policy and of administration”(Interim Report para 97(a)). In its Final Report the Bland Commiuee did attempt to refine the distinction, perhaps because its terms of reference assumed that it could be drawn (para 28ff). But it made clear the difficulty. The Bland Commiuee was also aware of a dimension of restraint on administrative decision making which is rarely recognised by the couns. It said that “(p]olicy considerations may not be confined to matters within a Minister's ponfolio. They can, as well, be dictated or circumscribed by the availability of funds which itself reflects policy factors of the highest order. There ought, for example, to be no scope for scrutiny of a failure to develop a programme which Parliament has authorised, if the funds it has voted clearly restrict the kind of development a Minister or depanment may desire”; Interim Report para 97(a). The Committee made these remarks in reference to the question of the jurisdiction of the Ombudsman, but they have a bearing on judicial review too. Since appropriations are by statute, they might indeed form pan of the statutory framework considered by a coun adjudging lawfulness - say on the question of just how far the duty to inquire or some other aspect of procedural fairness applies. To say that there should be no review is more problematic. Another matter (which may or may not have a statutory base) is the imposition of staff ceilings in the decision making agency. These points are wonh considering in the context of immigration decisions, where, post-Kioa, the obligation to accord procedural fairness (see infra Pan 4) and to give “proper, genuine and realistic consideration” to the merits of a matter (see supra n 30) has rendered decision making within the judicially imposed restraints greatly more time-consuming and expensive.

43 Keating, M, “Managing for Results in the Public Interest” (1990) 49 Aust Journal of Public Administration 387, 395-396Google Scholar.

44 P Bayne, supra n 2, 1041-1043.

45 R N Spann, supra n 38, 264ff.

46 Ibid 273-274. It is also the case that while there have been efforts to restore to the Ministers more control of the heights of policy formulation, the same reforms stress devolution of responsibility for program implementation, and in this way policy making (through implementation) is pushed downwards into the middle ranks of the public service.

47 See P Bayne, supra n 2, 1043.

48 Howard, J, “Attacking the Budget problem”, in A Kouzmin and N Scott (eds), Dynamics in Australian Public Management (1990) 72-93Google Scholar.

49 F A Bland had great experience in Commonwealth administration. A modern practitioner/scholar is P Wilenski: see his response to the “new managerialist” instrumentalism in “Social Change as a Source of Competing Values in Public Administration” (1988) 47 Aust Journal of Public Administration 213, 217-218.

50 (1977) 15 ALR 696, 701. His Honour's distinction was of course directed to marking out an approach for the AAT.

51 See the analysis of the nursing home cases in P Bayne, “Do we need a Rationali1y Tesl for Questions of Law?” (1991) 66 Canberra Bulletin of Public Administration 77, 79 ff.

52 M Allars, Introduction to Australian Administrative law (1990) 4-6 summarises some of the public administration literature, and see M H Bernstein, supra n 41. The nursing home cases are illustrative; see P Bayne, supra n 5 I.

53 (1977) 137 CLR 396.

54 Ibid 452, citing Mutton v Ku-ring-gai Municipal Council [1964] NSWLR lll0.

55 FAI Insurance Lld v Winneke (1982) 151 CLR 342, 370.

56 Interim Report para 90.

57 R N Spann supra n 38, 265.

58 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 42 per Mason J.

59 In the recent past, a Minister for Immigration allowed that MPs might in a period of a year bring to his attention no more I.ban 10 cases which in the MP's view required special consideration by the Minister. This was an attempt to put some limit to special pleading of this kind. Many of these cases would not have involved much of an element of policy creation. It is also understood that Cabinet has been called upon to make decisions concerning the allocation of grants to non-government schools. No doubt these examples, drawn from conversations between the author and senior officials, could be multiplied many times. See too infra n 70.

60 Interim Report para 17. Mr John Howard, the former Treasurer, has observed of his years in Cabinet “that it is often by chance and misadventure that some things of seeming irrelevance go before Cabinet whereas others of greater imponance do not..; J Howard, ..Reflections on the Cabinet processes - I'”, in B Galligan, J R Nethercote and C Walsh (eds), The Cabinet & Budget Processes (1990) 26. The recent trend to give more authority to statutory authorities has created significant problems for the government inasmuch as it finds that policy decisions of great moment may no longer be in its hands.

61 See text at supra n 5.

62 I am not suggesting bad faith; the judge may not be very conscious of the desire to abstain.

63 will not consider the function of tests for standing, which can of course be a surrogate for avoidance.

64 Re Di1fort; ex parle Depuiy Commissionu of Taxa1ion (NSW) (1988) 83 ALR 265, 287; see too The Hon Mr Justice Beaumont, “Some Aspects of Federal Administrative Law” (1990) Australian Bar Review 103, 114.

65 (1987) 15 FCR 274.

66 This of course was a factor in the Kakadu. case. To focus on this son of case does not much assist in working out an approach to the general run of case where Cabinet is somehow involved in the making of the decision.

67 H W R Wade, Cons1i1uiional Fundamentals (1980) 46-49 is instructive on this sense of prerogative power.

68 Administrative Review Council, Review of Administrative Decisions (Judicial Review) Acl: The Ambit of the Act, Repon No 32, (1989) para 206.

69 Id.

70 Id.

71 SirAnthony, Mason, “Administrative Review: The Experience of the First Twelve Years” (1989) 18 F L Rev 122, 124Google Scholar.

72 See cases cited in Bayne, P, “Justiciability: the Repon of the Administrative Review Council (ARC)” 63 AU 767Google Scholar.

73 Ibid 768-769.

74 Supra n 68, para 372..

75 Cf South Australia v O'Shea (1987) 163 CLR 378 at 411, per Brennan J to Kakadu case (1987) 15 FCR 274, 227 per Bowen CJ. Enhancing the control of the Cabinet is a component of the “new managerialism”; see P Bayne, supra n 2.

76 Erny, H V Hughes, O E, Australian Politics: Realities in Conflict (1988), ch 9 passimGoogle Scholar.

77 Ibid 304-305, and see the Freedom of Information Act 1982 (Cth).

78 SirAnthony, Mason, supra n 71, 124Google Scholar.

79 It is respectfully suggested however that it may not from this perspective be fruitful to see a “decision [which] is determinative of the rights or interests of an individual” as the justiciable side of the coin; a decision which has that quality may nevertheless be unsuited to review because of its nature.

80 (1987) 15 FCR 274.

81 Ibid 278-279.

82 Ibid 307.

83 Ibid 304.

84 Supra n 68, para 93.

85 Ibid, citing P Cane, An Introduction to Administralive Law (1986) 150. The origins of the Lenn lie further back in the public administration literature.

86 Allorney-General (UK) v Heinemann Publishers Auslralia Pty Lid (No 2) (1988) 62 AUR 344, 350.

87 Galligan, D, Discretionary Powers (1986) 240-251Google Scholar for a general discussion, and for Australian comparisons, see Hughes, C A, “Government action and the judicial model"” in A Erb-Soon Tay and E Karnenka (eds), Law-making in Australia (1980) ch 11Google Scholar, and Masel, L, “Regulatory Commissions and the Courts'” (1989) 58 Canberra Bulletin of Public Administration 166Google Scholar.

88 Cf Sowh Auslralia v O'Shea (1987) 163 CLR 378.

89 Williams, D G T, “Justiciability and the Control of Discretionary Power”, in Taggart, M(ed), Judicial Review of Administralive Action in the 1980s (1986) 103, 121Google Scholar.

90 Salemi v MacKellar (No 2) (1977) 137 CLR 396, 442 per Stephen J, citing Commissioner of Police v Tanos (19S8) 98 CLR 383, 396.

91 (198S) 1S9 CLR SSO.

92 Ibid S82, and at 632 per Deane J.

93 Ibid 622-623.

94 Ibid 622

95 Cf Tribe's critique of Ely's (J H Ely, Democracy and Distrust (1980 “process-perfecting view of constitutional law”: “... the Constitution's most procedural prescriptions cannot be adequately understood, much less applied, in the absence of a developed theory of fundamental rights that are secured to persons against the state .....” : L H Tribe, “The Puzzling Persistence of Process-Based Constitutional Theories” (1980) 89 Yale L J 1063, 1067.

96 ADJR Act s 5(2)(g).

97 As has followed from Kioa; see Conyngham v Minister for Immigration and Ethn.ic Affairs (1986) 68 ALR 423, 431 per Wilcox J.

98 Renevier v Tuong Quang Luu and Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 614. Spender J gave great emphasis to the affect of the adverse decision on the individual, although he acknowledged that in the balance was Australia's “self-interest in the exercise of its immigration policies”; ibid 620.

99 ADJR Act s 5(2)(a).

100 ADJR Act s 5(2)(b).

101 ADJR Act s 5(2)(g).

102 ADJR Act s 5(l)(f).

103 Walerford v Commonwealth (1987) 163 CLR 54, 77 per Brennan J.

104 (1990) 170 CLR 321.

105 Ibid 328.

106 Ibid 355; Brennan J agreed with Mason CJ's analysis (ibid 365), and in this respect Toohey and Gaudron JJ indicated their “general agreement” (ibid 387).

107 Ibid 358, and see ibid at 357.

108 Ibid 355-356; but compare to the passage at ibid, 359-360, discussed below.

109 Ibid 356.

110 [1968] AC 192.

111 (1990) 170 CLR 321, 356.

112 Ibid 359-360; emphasis added. Moreover, Mason CJ noted without comment the rederal Coun view, based on R v Hillingdon London Borough Council [1986] AC 484, 510, 5 I 8, that a public body will act perversely if it acts without any probative evidence ((1970) 170 CLR 321, 358-359).

113 Some State judges clearly do take a much wider view of the scope of review of facts; see Keefe v Mcinnes [1991] 2 VR 235, 242.

114 (1990) 170 CLR 321, 356.

115 Ibid 359-360.

116 Ibid 356, quoting Mahon v Air New Zealand [1984] AC 808, 821.

117 (1980) 44 FLR 41, 67-68.

118 Aronson, M Franklin, N, Review of Administrative Action (1987) 95Google Scholar.

119 (1990) 170 CLR 321, 366.

120 Ibid 368.

121 Ibid 357-358.

122 In Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR SI 1, 520 Wilcox J examined the legislative history and concluded that s S(3)(b) requires the applicant for review “to show more than that there was no evidence before the decision-maker of the fact found, or assumed, as the basis for the decision. The applicant [is] required to negative the fact. This may constitute a heavy burden, especially where the facts are obscure”. Other judges have accepted a far less onerous test. In Ruangrong v Minister for Immigration and Ethnic Affairs (1988) 14 ALO 773, 774-775 Davies J said that s 5(3)(b) “refers to the situation where [the] fact was not open on the evidence or other factual material that was, or ought to have been, before the decision-maker when the decision was made”.

123 (1990) 170 CLR 321, 358.

124 Id.

125 Ibid 359.

126 (1989) 18 ALO 77 (partial repon).

127 (1990) 170 CLR 321, 359-360.

128 Bennett, D M, “The Assimilation of Judicial Review to Review on the Merits” (1989) 58 Canberra Bulletin of Public Administration 94, 95Google Scholar, citing Akpan v Minister for Immigration and Ethnic Affairs (1982) 58 FLR 47, 50.

129 See eg, Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363, where it was held that although the decision maker has addressed the particular question of fact, an irrelevant consideration is Laken into account if he, she or it has proceeded upon a “misapprehension of matters material Lo I.he decision.. (ibid 373), or “has proceeded Lo an incorrect conclusion after relying on misunderstood information .. (ibid 373-374). In Akers I.he decision-maker was found Lo have misunderstood cenain factual matter in drawing an inference from that matter. The axiom Slated in Akpan, and Brennan J's dictum in Waterford v Commonwealth (1987) 163 CLR 54, 77 (“[T)here is no error of law simply in making a wrong finding of fact”), were dealt with by Lee J by his saying t.haL “(i)t is not a mauer of equating an incorrect fact with an error of law bul of recognising that a mistaken fact has been 1aken inLo account in a material respect in arriving at the decision” (ibid 375). Other Federal Court judges have argued that to disbelieve an imponant fact without reason will amount to failing Lo Lake a relevant consideration into account; Singh v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4, 10, and to the same point, GTE (Australia) Pty Lid v Brown (1986) 76 ALR 221, 249.

130 Minister for Aboriginal Affairs v Peko-Wallsend Lid (1986) 162 CLR 24. See too Sezdirmnoglu v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561, 572-573, citing Minister for Immigration and Ethnic Affairs v Haj-lsmail (1982) 57 FLR 133, 142.

131 Sykes, , Lanham, Tracey, , General Principles of Administrative Law (3rd ed, 1989) 156Google Scholar, an approach supponed by R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Company Ply Ltd ((1953) 88 CLR 100, 120; see too BHP Petroleum l..ld v Balfour (1987) 71 ALR 711.

132 (1990) 21 ALO 139, 141. Pincus J postulated the exercise of a power on the basis of an ultimate finding of fact (A) which in tum was based upon other findings of fact (X, Y and Z). His Honour's view was tentatively (“may be”) that unreasonableness could attach to A but not to X, Y and Z (id). On this point, see too Commissioner of Taxation v McCabe (1990) 26 FCR 431, 440-441.

133 In the passage at (1990) 170 CLR 321, 359-360.

134 (1989) 169 CLR 379.

135 (1990) 21 ALD 139, 141. On the facts in this case, Pincus J held that there was some basis for the inference (A) drawn by the decision maker and that therefore the ground of unreasonableness was not made out. Commissioner of TOJCation v McCabe (1990) 26 FCR 431 endorses and elaborates on the analysis of Pincus J, and see too Hamera v Minister for Immigration, Local Government and Ethnic Affairs (1990) 22 ALD 436, 439. Other Federal Coun judges have discussed review of factual findings without any reference to the unreasonableness ground; for example, Van Grieken v Veilands (unreponed, Federal Coun of Australia, 26 April 1991 unreponed decision of Gummow J).

136 cf J M Evans (ed), De Smith's Judicial Review of Administrative Action (4th ed, 1980) 137.

137 (1990) 170 CLR 321, 356.

138 Ibid 335.

139 (1990) 21 ALO 139, 141.

140 (1989) 89 ALR 185, 201. The Full Court of the Federal Court argued that common law developments bearing on review of fact findings might be accommodated within the ADJR Act through the residual category of s 5(l)U), which it appears to have seen as a means to “provide for cases in which review was available at common law ... on grounds not fully appreciated when the ADJR Act was introduced, and would avoid a rigidified operation of that statute”. This approach finds support in the legislative history; see supra n 9.

141 (1990) 170 CLR 321, 341.

142 Ibid 357.

143 Cf R vs Perry (No 4) (1981) 28 SASR 111, 123 ff.

144 Lloyd's Introduction to Jurisprudence (5th ed, 1985) 685. Trankell identifies three conditions which shape the way an individual comes to a picture of the surrounding world... “1. The selective character of perception, which limits the interpretation of the external signals to that which has foundation in the individual's earlier experiences. 2. The logical completion mechanism, which often results in a false picture of the series of events. 3. Attitudes, personal wishes and preferences, which prejudice our interpretation of sense data”: A Trankell, Reliability of Evidence (1972), 20, quoted in J Allen, ..“The Working and Rationale of the Hearsay Rule and the Implications of Modem Psychological Knowledge”(1991) 44 Current Legal Problems 217, 218-219.

145 Cf Secretary of Stale for Education and Science Tameside Me1ropoli1an Borough Council [1977] AC 1014.

146 Legomsky, S H, Specialized Justice (1990) 9-10 (citation omitted)Google Scholar.

147 Jennings, W I, “In Praise of Dicey” (1935) Public Administration 123, 133CrossRefGoogle Scholar.

148 Cf Oliver Wendell, Holmes, “The Path of the Law” (1897) 10 Harv L Rev 457, 465-466Google Scholar.

149 Jennings, W I, “Courts and Administrative Law - The Experience of English Housing Legislation” (1936) 49 Harv L Rev 426Google Scholar; McAuslan, JP W B, “Administrative Law, Collective Consumption and Judicial Policy” (1983) 46 Mod L Rev lGoogle Scholar; Griffith, J A G, The Politics of the Judiciary (3rd ed, 1985)Google Scholar; and Bayne, P, supra n 51Google Scholar. Looking al the matter historically, Anglo-Australian judges have tended to construe powers conferred, on state officials against the interests of the state, in particular where those powers intrude upon the exercise of the rights of propeny, broadly understood. An eminent historian of nineteenth-century government in England has observed that the two traits of the nineteenth-century judiciary were “'a contractualisl view of society and a professional hostility to statute” (O McDonagh, “The Nineteenth Century Revolution in Government: A Reappraisal” (1958) 1 Historical Journal 52, 62). These traits may in part be traced to Blackstone's statement of the rules of statutory construction (W Blackstone, Commentaries on the Laws of England (9th ed, 1783) 89) and Lockean political philosophy (for example in the seminal decision in Entick v Carrington (1765) 19 St Tr 1030). These standpoints are apparent in the writings of Dicey, whose influence on the Anglo-Australian judiciary has been very great. Cenainly, in the late twentieth century, the judges have accorded weight lo forms of the “new property”, and have expanded their notion of rights beyond those of propeny. They are nevertheless engaged in making political choices which in many respects favour orthodox propeny rights.

150 (1990) 170 CLR 321.

151 Ibid 347.

152 Ibid 348.

153 Id.

154 Ibid 348-349.

155 Ibid 382, per Toohey and Gaudron JJ.

156 R v Trebilco; exp F S Falkiner & Sons Lid (1936) 56 CLR 20, 32, and see R v Bromhead; exp Miss Daveney P1y Ltd (1946) 73 CLR 237, 253.

157 (1979) 144 CLR 45, 49.

158 (1986) 162 CLR 24, 39-41.

159 Ibid 40.

160 Id.

161 Ibid 41.

162 Justice Mason did however cite 2HD as authority for proposition (b); ibid 40.

163 (1989) 168 CLR 210.

164 Ibid 216; per Mason CJ, Brennan, Dawson and Gaudron JJ.

165 Re Coldham; u parte Brideson (1988) 166 CLR 338, 347 per Wilson, Deane and Gaudron JJ; cited with approval at (1989) 168 CLR 210,216.

166 Ibid 42.

167 P Bayne, supra n 51; the technique employed to discern a positive obligation to have regard to some factor not specified in the relevant legislation is nicely illustrated in Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65, 84ff per Sheppard J.

168 (1986) 70 ALR 10.

169 Ibid 24.

170 SirGerard, Brennan, “The Purpose and Scope of Judicial Review”, in Taggart, M (ed), Judicial review of Administrative Action in the 1980s (1986) 33Google Scholar (and see at 20); quoted at (1986) 70 ALR 10, 26. Legomsky makes similar points in his summation of the advantages of specialised discretionary decision-making: “[t]he greater the scope of the decision-maker's choice, the more essential become several qualities: a deep understanding of the relevant policy objectives, a reduced probability of simple inadvertence, the pursuit of coherence, and the minimizing of dependence on the views and comparative adversarial skills of opposing counsel. All those qualities are more likely to be found in specialists who possess knowledge and experience in the specific field”: Legomsky, S H, supra n 145, 22Google Scholar. At an earlier point, Legomsky made another point: “... consistency would seem especially vital in matters of policy, and ... expertise breeds consistency within a specialized field”: ibid 12.

171 Legomsky, SH, supra n 145, 23Google Scholar.

172 (1986) 70 ALR 10.

173 See Bayne, P, supra n 51 for analysis of the nuning home casesGoogle Scholar.

174 Why this may have occurred is also a maller for speculation. Sir Anthony Mason is concerned that Australia and New Zealand are virtually alone in standing outside the movement to provide for the constitutional guarantee of human rights: “A Bill of Rights for Australia?” (1989) 5 Australian Bar Rev 79, 80, (but see now the Bill of Rights Act 1990 (NZ)). It may also be that the judges are concerned that the 'new managerialism' undervalues process and rights values; cf P Bayne, supra n 2.

175 Bayne, P, “Human rights and administrative law” (1991) 17 Commonwealth Law Bulletin 320CrossRefGoogle Scholar.

176 In Church of Scienzology v Woodward (1982) 154 CLR 25, 70, Brennan J said that “U)udicial review is neither more nor less than the enforcement of the rule of law over executive action; il is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of lhe individual are protected accordingly ...”. The courts are slrongly inclined to protecl certain rights; illustrative of the High Cous tradition are ex parle Walsh and Johnson (1925) 37 CLR 36, lOOff per Isaacs J, and 128 per Rich J, and R v Bollon: u parle Beane (1987) 162 CLR 514, 523 p,r Brennan J, and 531 per Deane J.

177 Quoted in Brest, P, Processes of ConstituJional Decision Making: Cases and Materials (1975), 958Google Scholar.

178 Brest, P, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship” (1981) 90 Yale Law Journal 1063, 1091CrossRefGoogle Scholar.

179 Rights may be invoked in the application of other administrative law principles too, such as the unreasonableness doctrine, in a determination of procedural fairness doctrine, or in measuring “simple excess of power; see Bayne, P, supra n 174Google Scholar.

180 The Hon Justice M D Kirby, “The Role of the Judge in Advancing Human Rights by reference to International Human Rights Norms” (1988) 62 AU 514, 530. His Honour advocates resort lo international human rights norms as a yardstick to make the choices permitted in the development of the common law.

181 Ibid 527.

182 What of say “the right to security in the event of unemployment”, (Art 25(1) of the Universal Declaration of Human Rights)? But an argument that a provision of the Social Security Act 1947 (Cth) should be read in the light of this Article was dismissed by Davies Jin Harradine v Secretary, Department of Social Security (1988)ALD 346, 347 with the observation that the application of the provision in the Act was not a matter of fundamental human rights”. See further Bayne, P, supra n 174, 326-328Google Scholar.

183 Kerr Commiuee Report, supra n 8, para 33. There are other senses of the notion (ibid para 35) which are not directly relevant to the issues discussed here. See too Aronson, M Franklin, N, Review of Administrative Action (1987) 35-36Google Scholar.

184 Although not addressed exaclly lo the quesl.ion considered here, the words of Brennan J in Allorney-General (NSW) v Qu;n (1990) 170 CLR I, 37 are apposite: “[W]hal is the law? ... that question, of course, must be answered by the court itself'.

185 Cf Sunstein's analysis of the agency theory of judicial review; Sunstein, C R, supra n 6, 460-461Google Scholar.

186 (1803) 5 us 87, 111.

187 Allorney-General (NSW) v Quin (1990) 170 CLR 1, 35; cfto Scalia J ;nfra n 218.

188 Section S(1)(f) of the ADJR Act enables the Federal Court to make an order of review on the ground that “the decision involved an error of law, whether or not the error appears on the record of the decision”

189 Section 4 of the ADJR Act; cf to R v Hickman; ex parte Fox (1945) 70 CLR 598, infra n 224.

190 Wilson v Commissioner of Stamp Duties (1988) 88 ATC 4,307, 4,308. The question was whether the hiring of video tapes to the public was a “hiring arrangement” within s 74D of the act.

191 (1955) 29 AU 191, 221-222. CJR v Bolton; ex parte Beane (1987) 162 CLR 514, 517: “[t]he process of construction is in this case a difficult one and it is not surprising that reasonable minds may differ in the conclusions to which Lhey come. as indeed has happened here”. This insight was a premise for the adoption of a rationality test by Lhe Supreme Coun of Canada in Lhe seminal decision in C. U .P .E. Local 963 v New Brunswick Liquor Board (1979) 93 DLR (3d) 417, 425-426.

192 SirAnthony, Mason, “The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience” (1986) 16 F L Rev 1, 5Google Scholar.

193 Id.

194 Quoted in J M Bennett, The Keystone of the Federal Arch (1980) 67. In a perhaps less serious vein Sir Owen wrote in a note to Justice Evatt that he (Dixon) was having difficulty with his draft reasons in a particular case: “I have been spending so much time in finding conclusions for reasons and reasons for conclusions in the very many cases now awaiting judgment that without a mental purgation I am unequal lo the Lask” (26 November 1935, Evatt Collection, Flinders University Library).

195 (1990) 170 CLR 1, 35-36.

196 Id.

197 Pearce, D Geddes, H, Statutory lnzerpretation in Aus1ralia (3rd ed, 1988)Google Scholar and Gifford, DJ, Statutory Inlerpretation (1990)Google Scholar.

198 They allow the interpreter to choose between approaches, and the more specific canons or maxims are doubtful guides; see Eskridge, W N Frickey, P P, Cases and Materials on Legislation: Statutes and the Creation of Public Policy (1988) 689-695Google Scholar. In a particular case, a maxim pointing to a limited view of the scope of an administrative power can be set against another which points to an expansive view of the scope of the power; see Bromhead, R v; ex parle Miss Daveney Ply Ltd (1946) 73 CLR 237, 253Google Scholar. Sections 15 AA and 15AB of the Acts Interpretation Act 1901 (C1h) have not much reduced the choices available to the judge, and might indeed have increased them.

199 “'Judicial review of administrative action is inevitably sporadic and peripheral”: Evans, J M (ed), De Smith's Judicial Review of Administrative Aczion (4th ed, 1980) 1Google Scholar.

200 Bennion, F A, Statutory Interpretation (1984) 5Google Scholar quotes W WBuckland's observation (in A Textbook of Roman Law (2nd ed, 1950) 2) that “[the Twelve Tables of Ancient Rome) stated general rules: the countless details, especially of form, were left to be elucidated by officials”.

201 (1945) 70 CLR 598.

202 Ibid 613.

203 Id.

204 Ibid 614.

205 For earlier suggestions to like effect, see Australian Broadcasting Commission Staff Association v Bonner (1984) 54 ALR 653, 668-669 per Kirby J, and D Pearce, “Judicial Review of Tribunal Decisions: The Need for Restraint” (1981) 12 F L Rev 167, 175ff. In contrast to Sir Owen Dixon's approach in Hickman, Sir Isaac Isaacs held (in dissent) in Baxter v New South Wales Clickers' Association (1910) 10 CLR 114, 161-162 that the Court should prefer to find that an industrial tribunal might deLennine questions arising before it other than according to “'the strict rules of common law prohibition of industrial arrangements"'. Isaacs J thought that Lhis preference could be accommodated by finding that the tribunal's determinations were within its jurisdiction. This approach is still open to a court which applies the common law of judicial review, but it is not open under the ADJR Act (see s 5(1)(f)). This essay suggests that it is more satisfactory to apply the kind of reasoning employed by Isaacs J through a general principle that in some circumstances (to be assessed through a functional balancing) a court should judge the correctness of an agency's understanding of the law according to a test of rationality. This test is as much capable of application under the ADJR Act as it is under the common law of judicial review. It is of interest to note that Isaacs J's observations on the unsuitability of common law concepts appertaining to the employment relationship are of a similar kind to !he justification offered by the Supreme Court in the National Labor Relations Board v Hearst (1944) 322 US 111 for the adoption of a rationality test.

206 Marbury v Madison (1803) 5 US 87, 111.

207 The Hon Antonin Scalia, “Judicial Deference to Administrative Interpretations of the Law” [1989] Duke L J 511,513.

208 Cf Bond Corporalion Holdings Ltd v Grace Bros Holdings Ltd (1983) 8 ACLR 61, 84 per Sheppard J.

209 Diver, C S, “Statutory Interpretation in the Administrative State” (1985) 133 U of Penn L Rev 549, 564-566CrossRefGoogle Scholar.

210 (1984) 467 US 837. Homemakers Norlh Shore, Inc v Bowen (1987) 832 F 2d 408 is a good illustration of lhe deference principle. See too Administrative Conference of the United States, Recommendation 89-5, “Achieving Judicial Acceptance of Agency Statutory Interpretations” (Adopted June 16, 1989), and R A Anthony, “Which Agency Interpretations Should Bind Citii.ens and Courts?” (1990) 7 Yale Journal on Regulation I.

211 Supra n 207, 511. It is necessary to add that Scalia J has a very generous view of the scope of the deference doctrine, and on occasion some of his colleagues differ, (see lmmigration and Naturalization Service v Cardoza-Fonesca (1987) 480 US 421), but his Honour's approach is the one dominant in US practice.

212 Ibid 520-521.

213 This is as much true of the potential for the application Lo Australia of English administrative law principle, much of which has been forged out of conflicts between central and local government which have no real parallel in Australia, and which when applied transposes to Australia the social and political values of the English judges.

214 C R Sunstein, , “Constitutionalism After the New Deal” (1987) 101 Harv L Rev 421CrossRefGoogle Scholar passim, and for a succinct account of the policies of US administrative law which indicates the modern justifications for deference and hard-look doctrines, see R K Rasmussen, , “Bankruptcy and the Administrative State” (1991) 42 Hastings L J 1567, 1578-1584Google Scholar.

215 Motor Vehicle Manufacturers Association of the Uniled S1a1es Inc v S1a1e Farm (1983) 463 US 29.

216 Udall v Tallman (1965) 380 US 1, 16; Michigan Cilizens for an lndependenl Press v Thornburgh (1989) 868 F 2d 1285, 1292-1293; R A Anthony, , supra n 209, 42-43Google Scholar.

217 Perhaps Dixon J's observations in R v Hick.man; ex parle Fox (1945) 70 CLR 598 infra n 224 were inspired by the seminal decision of the US Supreme Coun in NLRB v Hearsl (1944) 322 US 111, which was decided during Sir Owen's tenure as Australian Ambassador to Washington.

218 CS Diver, , supra n 208Google Scholar; H P Monaghan, , “Marbury and the Administrative State” (1983) 83 Colum L Rev IGoogle Scholar.

219 Or, it needs to be added, some uncertainty.

220 Supra n 206, 516Google Scholar.

221 C R Sunstein, , supra n 6, 445, criticising Chevron for making this assumptionGoogle Scholar.

222 In Swan Hill Corpora1ion v Bradbury (1937) 56 CLR 746, 757, in the context of an undefined discretion, Dixon J offered two other explanations. First, “that legislative foresight cannot trust itseU to formulate in advance standards that will prove apt and sufficient in all the infinite variety of facts which may present themselves”, and, secondly, “it may be because no general principles or policy for governing the particular matter it is desired to control are discoverable”. Either explanation provides a basis for recognising the authority of the administrative agency to interpret the statutory provision.

223 Supra n 206, 517. Compare to the now accepted common law basis in Australia for the application of natural justice: Attorney-General (NSW) v Quin (1990) 170 CLR 1, 57 per Dawson J. In effect, many other approaches to statutory interpretation operate as background rules rather than as statements of what Parliament must have intended, and the couns do at times change the thrust of the presumption; see for recent illustrations George II Rockell (1990) 170 CLR 104, and Bropho II Wes1ern Aus1ralia (1990) 171 CLR I.

224 Kerr Commiuee Report, supra n 8, paras 54 and 55.

225 (1945) 70 CLR 598, 615; compare to the slightly different formulations at ibid 616 and 617. On the facts in that case, Dixon J found no room for consideration of this pnnciple. It is curious that the Kerr Committee did not pursue the implications of this line of authority, for it was put to them that “in the area of interpretation of words and concepts in governing statutes an administrative decision should not be upset unless it is one at which no reasonable body of men could arrive”: Kerr Committee report, supra n 8, para 33. But apan from noting the argument, the Report did not address it in any way. On the current status of the Dixon approach, see Sykes, E I, Lanham, D Tracey, R R S, General Principles of Adminislrative Law (3rd ed, 1989) para 2915Google Scholar, adding OToole v Charles David Pty Lid (1990) 171 CLR 232.

226 (1945) 70 CLR 598, 614 and 616.

227 The Canadian Supreme Court's rationality test for questions of law has been influenced by the presence in the relevant statute of a privative clause (Re Alber/a Union of Provincial Employees and Board of Governors of Olds College (1982) 136 DLR (3d) 1, 4 and 6), but the Court has nevertheless applied the test in the absence of such a clause (SI Luc Hospital v Lafrance (1982) 136 DLR (3d) 577, 584-587). I am indebted to D J Mullan, “Judicial Deference to Administrative Decision-Making in the Age of the Charter” (1988) 50 Saskatchewan L Rev 203, 206 for these references.

228 See the cases cited in D Gifford, Statutory Interprelation (1990), 148-150. The question of the relevance of administrative practice to the interpretation of legislation was raised before the Court of Appeal of New Zealand in Bay Milk Products Ltd v Earthquake and War Damage Commission [1990) 1 NZLR 139, but apart from saying that “'(t]here are cases where the way in which an Act has been administered may have some influence in resolving an ambiguity” (ibid 142), the Court declined to address the issue in general terms. Compare to Coleshi/1 and District lnvestmenl Co Ltd v Minisler of Housing and Local Governmenl (1969) 2 All ER 525, 528 per Lord Wilberforce, and Bristol District Council v Clark [1975] 3 All ER 976, 982 per Scarrnan U. Elements of a deference doctrine may be seen in the judicial attitude to the application of the legal test of unreasonableness to delegated legislation laid before Parliament, see Octet Nominees Pty Lid v Grimes (1986) 68 ALR 571, 581-583, and Aban v Minister for Immigration Local Government and Ethnic Affairs (1991) 23 ALO 207. See too South Australia v Tanner (1989) 63 AUR 149, 151.

229 M Aronson and N Franklin, supra n 182, 39.

230 R v Williams; ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1982) 153 CLR 402, 411.

231 Eclipse Sleep Products v Registrar of Trade Marks (1957) 99 CLR 300, 321, applied in Registrar of Trade Marks v Muller (1980) 144 CLR 37, 41. In the latter case, the Court appears to have seen the question as one of fact only.

232 This was the approach taken by Murphy J in R v Williams supra n 229, 413.

233 Illustrative is the judgment of Mason and Jacobs JJ in Stevenson v Barham (1977) 136 CLR 190, 196ff. Their Honours concluded that some errors of law would be within jurisdiction by a process of reasoning which looked primarily to the words of the statutory provision and to earlier precedents. They do appear to acknowledge that the decision-maker would bring expertise to bear on the question in issue (ibid 199), but this is unexplained. In many cases, there is not even so slight a reference to functional considerations.

234 ln a jurisdiction where the court applies the common law of judicial review, a rationality test would enhance the scope of review of questions of law to be decided within the jurisdiction of the decision-maker, or at least provide a more rational and clearer basis for such review. Under the ADJR Act, the courts would reduce the intensity of their review of some questions of law.

235 Of course, the appeal of this line of argument turns on the extent to which one is persuaded that the doctrines of ministerial responsibilty are efficacious.

236 (1979) 2 ALD 634, 644.

237 In our system of responsible government, there is little room for objection to the delegation of legislative power: Viclorian Stevedoring and General Contracting Co Pty lld v Dignan (1931) 46 CLR 73. From a constitutional perspective there is less objection to a delegation of some authority to interpret the law subject lo a rationality test than there is to the delegation of power to make the law through delegated legislation. Moreover, the process for exercise of authority to interpret is capable of being subject to judicial review to a greater extent than the making of delegated legislation, inasmuch as there is more room (though admittedly rarely taken by the couns) for the application of procedural fairness lo the former than to the latter.

238 Supra n 219.

239 C S Diver, , supra n 208Google Scholar, 562 states a partial list of factors found persuasive by the United States couns, and for a more extensive survey which concentrates on the formal in which an interpnation is expressed see R A Anthony, , supra n 209Google Scholar, and the references al 29. For a comment on Canadian law, see DJ Mullan, , “The Re-Emergence of Jurisdictional Error” (1985) 14 Administrative Law Reports 326, 328Google Scholar.

240 CR Sunstein, , “Constitutionalism After the New Deal” (1987) 101 Harv L Rev 412, 466CrossRefGoogle Scholar

241 Cf Homemakers North Shore, Inc v Bowen (1987) 832 F 2d 408, 412.

242 Chevron U.S.A. Inc v NRDC (1984) 467 US 837, 865-866.

243 See supra Pan 2Google Scholar.

244 (1979) 2 ALD 634.

245 Cf Re MT, KM, NT and JT and Secretary, Department of Social Security (1985) 9ALD 146,150 (AAT).

246 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 is illustrative; the threshold question being whether the person was an immigrant. This is of course a way of putting the jurisdictional/non-jurisdictional error distinction, and introduces the difficulty of just how it should be drawn in a particular case. But what is suggested is merely a factor to be weighed, not the ultimate touchstone. Sunstein advocates a version of the jurisdictional principle as a control to the deference principle; C R Sunstein, “Law and Administration After Chevron” (1990) 90 Colum L Rev 2071, 2097-2101. A distinction between jurisdictional and non-jurisdictional questions of law is central to the Canadian doctrine; see D J Mullan, , “The Re- Emergence of Jurisdictional Error” (1985) 14 Administrative Law Repons 326Google Scholar.

247 INS v Cardoza-Fonesca (1987) 480 US 421, 448; contrast Scalia J in dissent on this point, ibid 453. Other questions of law which might not be subject to a rationality test are those which penain to the composition of the decision-maker, or which concern its power to make an order consequent upon a decision.

248 Cf Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644.

249 R v Bohon; ex parie Beane (1987) 162 CLR 514, 517 per Mason CJ, Wilson and Dawson JJ. It is also the case that many of the onhodox presumptions incorporate value judgments and there is thus overlap with “rights” limits to a rationality test; see infra n 251.

250 C R Sunstein, supra n 6, 426. It is now more common for the judges to seek an answer in the legislative history, (and see s lSAB of the Acts Interpretation Act 1901 (Cth)), but this has its severe limits. Insofar as it is relevant, it may be said that the administrative agency is better placed than a coun to appreciate what that history says about the meaning to be given to the words of the statute; F A Bennion, Statutory Interpretation (1984) 12.

251 C S Diver, , supra n 208, 596Google Scholar.

252 See text commencing supra n 173.

253 Supra n 6, 411, and see 460-463 for a summary statement. Another stimulating attempt to spell out a full picture of interpretive principles is W N Eskridge, , “Public Values in Statutory Interpretation” (1989) 137 Univ Penn L Rev 1007, 1017-1019CrossRefGoogle Scholar especially. Eskridge means by public values the “legal nonns and principles that fonn the underlying precepts for our polity - background nonns that contribute to and result from the moral development of our political community. Public values appeal to conceptions of justice and the common good, not to the desires of just one person or group”; ibid 1008. This reveals that at bottom, questions of political philosophy arise. Eskridge is less sanguine than Sunstein about the viability of the project.

254 See P Craig, Public Law supra n 6, 160-161 on the limited reach of natural justice principles; 162 on the absence of any indication that the courts will find that relevant considerations embrace a consideration of interest groups in the administrative process; and 162 for the point that liberalisation of standing principles will affect only participation in the judicial rather than the administrative process. The recent Australian cases in which the Federal Court has focussed on whether there was proper, genuine and realistic consideration of the merits of the mauer (supra n 30) could be a

basis for a review of the process which preceded an administrative decision. In the US

doctrine, substance review by the hard-look doctrine is far less common than process review; see CR Sunstein, “Deregulation and the Hard-Look Doctrine” [1983) Supreme Court Rev 177, 181.

255 Assuming that there is some sense in distinguishing a question of law from one of discretion, the argument applies as well to an approach to review of an exercise of discretion, although in this context the granting of some deference to agencies is less problematic.

256 W N Eskridge, supra n 252, 1044; or when it is a post hoc rationalisation; id. See further the observations in Homemakers North Shore, Inc v Bowen (1987) 832 F 2d 408, 412.

257 Homemakers North Shore, Inc v Bowen (1987) 832 F 2d 408, 412 illustrates the connection drawn between the deference and the hard-look doctrines; see too P Strauss, “One Hundred and Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action” (1987) 87 Colum L Rev 1093, 1129-1135, discussing the link between the Chevron case and Motor Vehicle Manufacturers Association v State Farm Mutual Automobile Insurance Co (1983) 463 US 29, and on the significance of the State Farm case for the hard-look doctrine, see C R Sunstein, supra n 253.

258 P Craig Public Law supra n 6, 182-183 (citations omitted).

259 (1987) 6 AAR 171.

260 Ibid 177.

261 Id.

262 P Craig Public I.Aw supra n 6, 116-136; 160-191.

263 186.

264 (1990) 170 CLR 1.

265 Ibid 24.

266 Ibid 60.

267 U7 (1985) 7 FCR 415.

268 Ibid 430.

269 (1988) 83 ALR 530, 552.

270 P Craig, Public Law supra n 6, 173-175.

271 H W Arthurs, supra n 6, x.

272 Ibid xi.

273 Kerr Committee Repon, supra n 8, 27, citing the opinion of the Statute Law Revision Committee of Victoria.

274 Church of Scientology v Woodward (1982) 154 CLR 25, 70, per Brennan J. To say lhat judicial review is concerned 10 protect the individual is also to raise lhe question: which individuals? How far is account taken of lhose who cannot afford to seek review? Or of those affected by the ripple effects of the particular decision? Eg in migration matters, how are the interests of those in the queue prejudiced by decisions in favour of those who jumped the queue? Justice Brennan, it must be said, is aware of these considerations; see supra n 93.

275 In a different but comparable context, the point is made by Sir Gerard Brennan, “Comment: The Anatomy of an Administrative Decision” (1908) 9 Syd L Rev I, 10, and see P Bayne, “Judicial Review and Good Administration” (1990) 64 AU 715.

276 Cf the theme in Sir Gerard Brennan, “The Purpose and Scope of Judicial Review”, in M Taggan (ed), Judicial Review of Administrative Action in the 1980's (1986) 18, 2lff.

277 Supra n 222.

278 The importance which is attached to this obligation is underlined by s 10 of the Freedom of Information Act 1982, which in effect introduces a principle of estoppel.

279 Kelly, D St L, “The Osmond Case: Common Law and Statute Law” (1986) 60 AU 513, 515Google Scholar. Sometimes referred to as the doctrine of the equity of a statute. Of course, the doctrine was not applied in Osmond v Public Service Board of NSW (1986) 159 CLR 656, but that was a situation in which the High Coun was in effect asked to apply the equity of the Commonwealth reasons requirements in the jurisdiction of New South Wales.