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Judicial Review: A View from Constitutional and other Perspectives

Published online by Cambridge University Press:  24 January 2025

Anthony Mason
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Extract

Administrative law forms an important part of public law. Public law also includes and is subject to the prescriptions of constitutional law. In shaping the principles of public law within the limits that necessarily apply to the judicial process, the courts, notably the High Court, have a large responsibility. There is the responsibility to ensure that the principles so shaped protect and enhance the form of democratic government for which the Constitution provides, as well as the rights and freedoms recognised by the common law, the common law being the foundation of the Australian Constitution. Professor Allars has succeeded in painting a broad picture of what that has entailed in the area of administrative law, so far as I was concerned.

Justice Gummow is unquestionably right in reminding us that judicial review has roots in the Constitution itself. Whether he is also right in saying that there has been a failure to realise this by some who teach administrative law not comparatively, but through English spectacles, I am unable to judge.

Type
Article
Information
Federal Law Review , Volume 28 , Issue 2 , June 2000 , pp. 331 - 343
Copyright
Copyright © 2000 The Australian National University

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References

1 City of Enfield v Development Assessment Committee [2000] HCA 5 at [43].

2 1 Cranch 137 at 177 (1803): 5 US 87 at 111.

3 (1990) 170 CLR 1 at 35-36 per Brennan J. See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

4 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254; affd sub nom Attorney General for Australia v The Queen; Ex parte Boilermakers' Society of Australia (1957) 95 CLR 529; R v Joske; ex parte Shop Distributive and Allied Employees' Association (1976) 133 CLR 194 at 216.

5 Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J, cited with approval in City of Enfield v Development Assessment Committee [2000] HCA at [44].

6 Dixon, O, “The Common Law as an Ultimate Constitutional Foundation” (1957) 31 ALJ 240Google Scholar.

7 (1990) 170 CLR 1 at 36.

8 Dawson v Commonwealth (1946) 73 CLR 157 at 182.

9 Administrative Decisions Qudicial Review) Act (Cth) 1977, s 13.

10 [1990] ECR 1-2433; [1990] 3 CMLR 1.

11 Re Becker and Minister for Immigration and Ethnic Affairs (1977) 15 ALR 696; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Johnson v Federal Commissioner of Taxation (1986) 72 ALR 625 at 628.

12 Hamblyn v Duffy (1981) 35 ALR 388; Johnson v Federal Commissioner of Taxation (1986) 72 ALR 625 at 628.

13 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577; City of Enfield v Development Assessment Committee [2000] HCA 5 at [44].

14 See, for example, R v Secretary of State for Trade and Industry; Ex parte Lonrho [1989] 1 WLR 525 at 535.

15 See McMillan, J, “Federal Court v Minister for Immigration” (1999) 22 AIAL 1Google Scholar where the author advocates that administrative review should be undertaken principally by tribunals rather than courts.

16 Historically the common law set its face against review for error of fact. This attitude has influenced the interpretation of the unreasonableness ground. The consequence is that a demonstrably unsound finding of fact does not amount to an error of law: R v District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

17 See R v Chief Constable of Sussex; Ex parte International Trader's Ferry Ltd [1998] 3 WLR 1260 at 1288-1289 per Lord Cooke of Thomdon; Craig, P, “Unreasonableness and Proportionality in UK Law” in E Ellis (ed), The Principle of Proportionality in the Laws of Europe (1999) at 94-96Google Scholar.

18 Brind v Secretary of State for House Department [1991] 1 All ER 720.

19 R v Chief Constable of Sussex; Ex part International Trader's Ferry Ltd [1998] 3 WLR 1060 at 1227 per Lord Slynn of Hadley and at 1288-1289 per Lord Cooke of Thomdon.

20 See Federal Commission of Taxation v Lewis Berger & Sons (Australia) Ltd (1927) 39 CLR 468; Jafferjee v Scarlett (1937) 57 CLR 115 at 126; Commissioner of Taxation v Finn (1960) 103 CLR 165; Farbenfabriken Bayer AG v Bayer Pharma Pty Ltd (1959) 101 CLR 652; Kaiser Aluminium and Chemical Corporation v Reynolds Metal Co (1969) 120 CLR 136.

21 Farbenfabriken Bayer AG v Bayer Pharma Pty Ltd (1959) 101 CLR 652 at 657 per Dixon CJ.

22 (1957) 100 CLR 277.

23 Ibid at 291.

24 Ibid at 290.

25 Ibid at 289 per Dixon CJ.

26 Ibid at 310 per Taylor J.

27 (1957) 100 CLR 312.

28 The Queen v Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 at 291. See also R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Sectio n (1%0) 103 CLR 368; R v Joske; Ex parte Australian Building Construction Employees and Builders' Labourers' Federatio n (1974) 130 CLR 87 at 94.

29 (1991) 173 CLR 167 at 189.

30 [1996] AC 923.

31 Caltex Oil (Aust) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 at 567 per Stephen J.

32 See Zines, L, The High Court and the Constitution (4th ed 1997) at 198Google Scholar.

33 (1997) 189 CLR 1.

34 (1996) 189 CLR 51.

35 R v Joske; Ex parte Shop Distributive and Allied Employees' Association (1976) 133 CLR 194 at 216 per Mason and Murphy JJ.

36 (1947) 74 CLR 492 at 505; Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 757 and 758.

37 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.

38 Chevron USA, Inc v Natural Resources Defense Council, Inc 467 US 837 (1984).

39 City of Enfield v Development Assessment Committee [2000] HCA 5 at [41] and [42].

40 Ibid at [44].

41 [1981] AC 371 at 384.

42 (1945) 70 CLR 598.

43 Ibid at 614-615.

44 Ibid at 617.

45 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 at 136 per Cooke J.

46 See Bayne, P, “Administrative Law” (1992) 66 AL/ 523 at 524-526Google Scholar.

47 See, for example, Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.

48 The Queen v Duncan; Ex parte Australian Iron & Steel Pty Ltd (1983) 158 CLR 535 at 589.

49 (1999) 163 ALR 270.

50 Ibid.

51 Tridimas, T, “Proportionality in Community Law: Searching for the Appropriate Standard of Scrutiny” in E Ellis (ed), The Principle of Proportionality in the Laws of Europe (1999) 65 at 66Google Scholar.

52 Ibid.

53 R v Chief Constable of Sussex; Ex parte International Trader's Ferry Ltd [1997] 2 All ER 65 at 80 per Kennedy LJ; affd [1998] 3 WLR 1260.

54 Ibid at 81 per Kennedy LJ but cf T Tridimas, above n 51 at 67 where the author suggests that the European standard of scrutiny is higher than that acknowledged by Kennedy LJ.

55 [1998] 3 WLR at 1288-1289.