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Judicial Review of Non-Statutory Executive Powers

Published online by Cambridge University Press:  24 January 2025

Chris Horan
Chris Horan*
Affiliation:
Victorian Bar
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Extract

In current times, most executive action affecting individuals involves the exercise of powers conferred by or under statute. Administrative lawyers are familiar with the use of judicial review in order to enforce limits placed on such powers by the empowering legislation. Indeed, the development of the modern principles of administrative law over the latter half of the 20th century has largely taken place in a statutory setting. As recent history demonstrates, however, there are circumstances in which an executive government may seek to rely on non-statutory sources of power. The exercise of non-statutory powers will often raise distinct issues in the context of judicial review. The review of non-statutory powers may involve questions concerning the extent to which governmental actions are justiciable, that is, suitable to be examined by the courts. Further, the application of many of the traditional grounds of judicial review can be problematic without the touchstones of validity that are usually provided by statute.

Type
Research Article
Information
Federal Law Review , Volume 31 , Issue 3 , September 2003 , pp. 551 - 572
Copyright
Copyright © 2003 The Australian National University

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References

1 Dicey, AV, Introduction to the Study of the Law of the Constitution (10th ed, 1959) 424Google Scholar.

2 Thus, Blackstone regarded the prerogative as 'that special pre-eminence which the king hath, over and above all other persons, and out of the ordinary course of the common law in right of his regal dignity', and stated that the term 'can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects': William, Blackstone, Commentaries on the Laws of England (first published 1765, 3rd ed, 1768) bk I, ch 7, 239Google Scholar. See generally William, Wade, Administrative Law (8th ed, 2000) 221–2Google Scholar; Davis v Commonwealth (1988) 166 CLR 79, 108 (Brennan J).

3 See New South Wales v Bardolph (1934) 52 CLR 455, 474–5 (Evatt J).

4 This does not mean that the exercise of common law (as opposed to prerogative) powers cannot be the subject of judicial review proceedings. However, unless the executive oversteps some positive constitutional or statutory limit on its powers, the exercise of its common law powers will more often involve questions arising under private law (for example, contract, property or tort).

5 Barton v Commonwealth (1974) 131 CLR 477, 498; see also Davis v Commonwealth (1988) 166 CLR 79, 93; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410, 424 (Brennan CJ), 438 (Dawson, Toohey and Gaudron JJ), 455, 459 (McHugh J), 463–4 (Gummow J).

6 (2001) 110 FCR 491, 538. Compare the recent use of the term 'constitutional writs' in preference to 'prerogative writs' to describe the remedies provided for by s 75(v) of the Constitution: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 92–3 [20]–[21] (Gaudron and Gummow JJ), 133–6 [138]–[140], 135–6 [144] (Kirby J), 141–2 [165] (Hayne J).

7 Thus, in Ruddock v Vadarlis (2001) 110 FCR 491, 540, 542–3, French J placed primary reliance on 'Australia's status as a sovereign nation' in determining whether there was an executive power to prevent the entry of non-citizens into Australia. Contrast the more historical approach adopted by Black CJ: ibid 496–501. See also Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 368 (Gummow J).

8 Note also that in some areas, under long-standing constitutional principles, the Crown cannot act without positive authority conferred by statute — in other words, there is no scope for the exercise of non-statutory executive powers. For example, the Crown cannot raise taxes or impose fines or penalties without statute: see eg, Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555, 579 (Brennan J), 597–8 (McHugh J); Cam and Sons Pty Ltd v Ramsay (1960) 104 CLR 247, 258 (Dixon CJ). Further, in general terms, statutory authority is required for the detention of citizens in custody by the executive: see Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1, 13 (Mason CJ) , 19 (Brennan, Deane and Dawson JJ), 67 (McHugh J); Re Bolton; Ex parte Beane (1987) 162 CLR 514, 528 (Deane J).

9 Attorney-General v De Keyser's Royal Hotel [1920] AC 508, 526 (Lord Dunedin), 537–40 (Lord Atkinson), 549–50 (Lord Moulton), 561–2 (Lord Sumner), 568–9 (Lord Parmoor); cf Barton v Commonwealth (1974) 131 CLR 477.

10 See, eg, Ruddock v Vadarlis (2001) 110 FCR 491, 501–4 (Black CJ dissenting).

11 Ibid 540–1, 545–6 (French J); cf Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3 [28] (Black CJ and Hill J), in relation to the question whether statute had displaced the non-statutory executive power to define the territorial boundaries of Australia.

12 Border Protection (Validation and Enforcement Powers) Act 2001 (Cth).

13 Cf, in relation to inconsistency for the purposes of s 109 of the Constitution, R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545, 563–64.

14 R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452, 465. See also Judiciary Act s 32; Federal Court of Australia Act 1976 (Cth) ss 21–23.

15 Note that the Federal Magistrates' Court does not have an equivalent jurisdiction. With the exception of jurisdiction under specific enactments (such as s 483A of the Migration Act), its jurisdiction in administrative law matters arises solely under the ADJR Act.

16 The traditional approach to determining whether a person is an 'officer of the Commonwealth' takes into account a range of factors, such as whether the person is appointed, removable and paid by the Commonwealth: see R v Murray and Cormie; Ex parte Commonwealth (1916) 22 CLR 437, 452 (Isaacs J), 464 (Higgins J), 471 (Gavan Duffy and Rich JJ).

17 This limitation would also apply to State courts when exercising federal jurisdiction. Cf Commonwealth v Queensland (1975) 134 CLR 298.

18 See Re Judiciary and Navigation Acts (1921) 29 CLR 257, 265–7; see also Abebe v Commonwealth (1999) 197 CLR 510, 524–5 [25] (Gleeson CJ and McHugh J), 555 [118] (Gaudron J), 570 [164] (Gummow and Hayne JJ), 585 [215] (Kirby J); Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, 388–9 [3]–[4], 396 [25]–[26] (Gleeson CJ), 405–6 [62], 408 [72], 410 [76] (Gaudron and Gummow JJ), 449 [204] (Kirby J), 458–9 [242], 460 [246] (Hayne J); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591.

19 Cf Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767, 777–9 (Kirby J).

20 See Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, 406–7 [65], [67] (Gaudron and Gummow JJ).

21 See, eg, the decision of North J at first instance in the Tampa Case, Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452, 482–5, concerning the standing of the applicants to seek an injunction restraining the allegedly unlawful removal of the asylum seekers from Australia.

22 Croome v Tasmania (1997) 191 CLR 119, 126–7, 132–3; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 262; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 610–12 (Gaudron J), 637 (Gummow J), 659–60 (Kirby J).

23 Australian Conservation Foundation Incorporated v Commonwealth (1980) 146 CLR 493.

24 See, eg, Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 266 [47], 267 [49]–[51] (Gaudron, Gummow and Kirby JJ), 278– 80 [87]–[91] (McHugh J); Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, 449–50 [206] (Kirby J).

25 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 599–600 [2] (Gleeson CJ and McHugh JJ), 627–8 [95] (Gummow J), 652–3 [162] (Kirby J), 669–70 [211] (Callinan J); see also Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452, 469 [56]; Ruddock v Vadarlis (2001) 110 FCR 491, 509 [66], 518 [107], 530 [153].

26 See Supreme Court Act 1970 (NSW) s 69; Supreme Court Act 1986 (Vic) s 3(6) and r 56.01 of the Supreme Court (General Civil Procedure) Rules 1996 (Vic); Judicial Review Act 2000 (Tas) s 43; Judicial Review Act 1991 (Qld) s 41.

27 Judicial Review Act 1991 (Qld) s 4(b).

28 Judicial Review Act 2000 (Tas) s 4.

29 Administrative Law Act 1978 (Vic) s 2.

30 (1981) 151 CLR 170, 218; see also Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 368 (Gummow J).

31 Proclamations (1611) 12 Co Rep 74; 77 ER 1352, 1354 (Sir Edward Coke).

32 Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452.

33 Ruddock v Vadarlis (2001) 110 FCR 491.

34 Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, 242 [30].

35 Ibid.

36 See R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, 218 (Mason J) (‘R v Toohey’), quoting Blackstone's Commentaries ('In the exertion therefore of those prerogatives, which the law has given him, the king is irresistible and absolute, according to the forms of the constitution': Blackstone, above n 2, 251); see also Fiona, Wheeler, 'Judicial Review of Prerogative Power In Australia: Issues and Prospects' (1992) 14 Sydney Law Review 432, 433–5Google Scholar.

37 [1985] AC 374, 398; see also ibid 407 (Lord Scarman). This is analogous to the principle which is applied by courts when examining what takes place in the Parliament, namely that 'it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise': R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157, 162 (Dixon CJ); see also Egan v Willis (1998) 195 CLR 424, 446 [27] (Gaudron, Gummow and Hayne JJ), 460 [66] (McHugh J), 490–3 [133] (Kirby J).

38 [1985] AC 374, 410 (emphasis in original).

39 Ibid 407.

40 Ibid 398 (Lord Fraser), 418 (Lord Roskill).

41 See, eg, Brodie v Singleton Shire Council (2001) 206 CLR 512, 555 [92] (McHugh and Gummow JJ), noting that in Australia the term 'non-justiciability' has been used 'to describe controversies within or concerning the operations of one or other branches of government which cannot be resolved by the exercise of judicial power.'

42 (1987) 15 FCR 274 ('Peko-Wallsend').

43 Ibid 277–9.

44 Ibid 278–9.

45 Ibid 280–1 (Sheppard J); 298–308 (Wilcox J).

46 Ibid 277; see also R v Toohey (1981) 151 CLR 170, 222 (Mason J); FAI v Winneke (1982) 151 CLR 342, 363–4 (Mason J); Sir Gerard, Brennan, 'The Purpose and Scope of Judicial Review' in Michael, Taggart (ed), Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 19Google Scholar.

47 Peko–Wallsend (1987) 15 FCR 274, 278.

48 See Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767, 777–79 (Kirby J).

49 Brennan, above n 46, 20.

50 [2002] EWCA Civ 03.

51 Ibid [38].

52 Ibid.

53 Cf R v Toohey (1981) 151 CLR 170; FAI Insurances Ltd v Winneke (1982) 151 CLR 342.

54 [2002] EWCA Civ 03 (25 January 2002), [40].

55 See Barton v The Queen (1980) 147 CLR 75.

56 See, eg, De Freitas v Benny [1976] AC 239; Reckley v Minister of Public Safety and Information (No 2) [1996] AC 527; cf Lewis v Attorney-General of Jamaica [2001] 2 AC 50; Burt v Governor-General [1992] 3 NZLR 672; see also Von Einem v Griffin (1998) 72 SASR 110.

57 Lewis v AttorneyGeneral of Jamaica [2001] 2 AC 50 [47]–[64].

58 (1997) 71 ALJR 767, 777–9.

59 (1988) 19 FCR 347.

60 Ibid 369.

61 Ibid 370.

62 [2003] FCAFC 3.

63 [2003] FCAFC 3 [9]–[13]; see also New South Wales v Commonwealth ('Seas and Submerged Lands Case') (1975) 135 CLR 337, 388; Mabo v Queensland (No 2) (1992) 175 CLR 1, 31–2. Further, the executive can provide the courts with statements or certificate which are treated as conclusive evidence on certain questions: see Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 368; Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3 [32], [94].

64 [2003] FCAFC 3 [28]–[31].

65 See generally Buttes Gas and Oil Co v Hammer [1982] AC 888; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 370–2; cf Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 WLR 1353.

66 (2000) 78 SASR 251. The High Court refused special leave to appeal on the basis that, quite apart from the questions of standing and justiciability, there were insufficient prospects of success in establishing that the grant of the indemnity was not a proper exercise of power (High Court, Gleeson CJ and McHugh J, 16 August 2001).

67 [1985] AC 374, 408; see also Peko-Wallsend (1987) 15 FCR 274, (Wilcox J).

68 See, for example, Macrae v A-G (NSW) (1987) 9 NSWLR 268, 281, where Kirby P treated a statutory power to appoint magistrates as a 'prerogative' power. Note, however, that the Court held that the exercise of the power was justiciable in the particular circumstances of that case, and not immune from review on natural justice grounds. Cf North Australian Aboriginal Legal Aid Service Inc v Bradley (2001) 192 ALR 625, 639–642 [65]–[81] (Weinberg J) (‘NAALAS v Bradley’) NAALAS v Bradley (2002) 122 FCR 204, 225 [51] (Black CJ and Hely J).

69 (1980) 147 CLR 75, 94; see also Von Einem v Griffin (1998) 72 SASR 110, 129.

70 Wheeler, above n 36, 473; Clive, Walker, 'Review of the Prerogative: The Remaining Issues' [1987] Public Law 62, 71Google Scholar. For a recent discussion of the position in Canada, see Lorne, Sossin, ‘The Rule of Law and the Justiciability of Prerogative Powers: A Comment on Black v. Chretien’ (2002) 47 McGill Law Journal 435Google Scholar.

71 Walker, above n 70, 71.

72 (2000) 78 SASR 251, 265.

73 (1987) 9 NSWLR 268, 282.

74 [2002] EWCA Civ 1598 (6 November 2002).

75 Ibid 58], [107]. The courts in the United States had dismissed several applications for habeas corpus brought on behalf of detainees at Guantanamo Bay, on the basis that United States courts do not have jurisdiction to consider challenges to the detention of aliens who were held outside the sovereign territory of the United States: see eg, Rasul v Bush; Al Odah v United States, 321 F 2d 1134 (2003). On 10 November 2003, the Supreme Court of the United States agreed to hear an appeal from this decision. Note that, while the Court of Appeals (4th Circuit) has accepted jurisdiction to consider a petition for habeas corpus by an alleged 'enemy combatant' who is an American citizen detained within the United States, it has shown considerable deference to the exercise by the executive of its 'war' powers (under Article II section 2 of the Constitution) to detain persons captured in the course of active military operations, including the determination by the executive that such a person is an 'enemy combatant': Hamdi v Rumsfeld, 316 F 3d 450 (2003).

76 [2002] EWCA Civ 1598 [80]–[106].

77 Ibid [98]. This expectation was in part based on leaflets made available by the government to those who travel abroad.

78 Ibid [104]–[105].

79 Ibid [106].

80 Ibid [107].

81 [2002] EWHC 2759 Admin QB (17 December 2002).

82 Ibid [2].

83 Ibid[43], [45]; see also [53]–[55], [59] (Richards J).

84 (1981) 151 CLR 170, 204.

85 Ibid 219.

86 [1985] AC 374, 411.

87 In particular cases, however, considerations of national security can affect the content of the requirements of procedural fairness or even (as in the CCSU Case) displace such requirements entirely.

88 See generally Wheeler, above n 36, 463–66; Brennan, above n 46, 26–27; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 585 (Brennan J).

89 Craig v South Australia (1995) 184 CLR 163, 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 352 [82].

90 R v Ministry of Defence; Ex parte Smith [1996] QB 517, 556 (Sir Thomas Bingham).

91 See Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, 462 [253] (Hayne J).

92 Cf Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1, 12 [48], 22–3 [100].

93 See, eg, Banks v Transport Regulation Board (1968) 119 CLR 222, 241; R v Toohey (1981) 151 CLR 170, 186 (Gibbs CJ).

94 In relation to the latter, see Judiciary Act s 3.

95 See Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452, 468–9; Ruddock v Vadarlis (2001) 110 FCR 491, 509 [66], 517–18 [101]– [108].

96 In relation to the High Court and Federal Court, see Judiciary Act s 32; Federal Court of Australia Act 1976 (Cth) s 22.

97 Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452, 460 [30], 466–67 [42].

98 Of course, the same focus also results in the enactment of legislation in order to confer additional and broader statutory powers on the executive.

99 The Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) conferred powers to take persons to a place outside Australia: see Migration Act s 245F(9); Customs Act 1901 (Cth) s 185(3A).

100 Convention relating to the Status of Refugees opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Protocol relating to the Status of Refugees opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

101 At least where acting in the capacity of an officer of the Commonwealth, and not in a personal capacity or as an agent of a foreign state.

102 Cf the position in the United States, where the courts have to date declined to entertain proceedings to challenge the legality of the detention of foreign nationals at Guantanamo Bay in Cuba: Rasul v Bush; Al Odah v United States, 321 F 2d 1134 (2003). In Abassi v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 [15], the Court of Appeal noted that '[o]n the face of it we find surprising the proposition that the writ of the United States courts does not run in respect of individuals held by the government on territory that the United States holds as lessee under a long term treaty.'

103 In the proceedings arising out of the Tampa incident, the High Court refused special leave to appeal on the basis that the 'rescuees' had since been taken to Nauru or New Zealand, and were no longer detained on the MV Tampa: High Court (Gaudron, Gummow, Hayne JJ, 27 November 2001). However, the Court was not required to decide whether proceedings could be brought to challenge the legality of any detention of the 'rescuees' on Nauru.

104 Cf R v Secretary of State; Ex parte O'Brien [1923] 2 KB 361, 381, 391–92, 397–98 (appeal dismissed as incompetent: [1923] AC 603); see also Ex parte Mwenya [1960] 1 QB 241.

105 Apart from some of the initial asylum seekers detained on Nauru, the United Nations High Commissioner for Refugees has not been involved in processing the asylum seekers who have been taken by the Commonwealth to places outside Australia.

106 Church of Scientology v Woodward (1983) 154 CLR 25, 70 (Brennan J); Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24, 34 [31] (Gleeson CJ); see also Attorney-General v Quin (1990) 170 CLR 1, 36–7 (Brennan J).

107 Plaintiff S157/2002 v Commonwealth (2003) 195

LR 24, 52 [104] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

108 Sir Anthony, Mason, 'The High Court as Gatekeeper' (2000) 24 Melbourne University Law Review 784, 788Google Scholar: see generally 787–94.