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The Limits of Judicial Review of Executive Action—Some Comparisons between Australia and the United States

Published online by Cambridge University Press:  24 January 2025

Ronald Sackville
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Extract

The new administrative law in Australia dates from the implementation, over a period of more than a decade, of the substance of the proposals advanced by the Kerr Committee and its successors in the early 1970s. The now familiar legislation swept away many of the procedural obscurities associated with the prerogative writs, codified the general principles governing judicial review of administrative action and provided for independent merits review of administrative decisions. These reforms paved the way for the emergence of what commentators have described as a “distinctively Australian jurisprudence in public law”. It is hardly necessary to say that Sir Anthony Mason played a pivotal role in the development of the distinctive jurisprudence, both through his membership of the Kerr Committee and his judgments in the leading administrative law cases of the 1980s and 1990s.

Type
Article
Information
Federal Law Review , Volume 28 , Issue 2 , June 2000 , pp. 315 - 330
Copyright
Copyright © 2000 The Australian National University

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References

1 Commonwealth Administrative Review Committee, Report (P P No 144, 1971) (Kerr Committee Report) reprinted in Creyke, R and McMillan, J (eds), The Making of Commonwealth Administrative Law (1996)Google Scholar. This volume includes the reports of the Bland Committee (Final Report of the Committee on Administrative Discretions (P P No 316, 1973) and the Ellicott Committee (Prerogative Writ Procedures: Report of Committee of Review (P P No 56, 1973)).

2 The Administrative Appeals Tribunal Act 1975 (Cth) came into force on 1 July 1976; Administrative Decisions Oudicial Review) Act 1977 (Cth) (ADJR Act) came into force on 1 October 1980; Freedom of Information Act 1982 (Cth) came into force on 1 December 1982.

3 Creyke, R and McMillan, J, “Administrative Law Assumptions... Then and Now”, in R Creyke and J McMillan (eds), The Kerr Vision of Australian Administrative Law-At the Twenty-Five Year Mark (1998) at 1Google Scholar.

4 Ibid at 5.

5 Kerr Committee Report, above n 1 at para 11.

6 Ibid at para 10.

7 Pearce, D, “The Fading of the Vision Splendid” (1989) 58 Canb Bull of Pub Admin 15 at 18Google Scholar, cited in R Creyke and J McMillan, above n 3 at 9.

8 Kerr Committee Report, above n 1 at para 12.

9 Ibid at para 247. See also Chapter 4.

10 R Sackville, “The Boundaries of Administrative Law-The Next Phase” in R Creyke and J McMillan, above n 3 at 89-90.

11 Allars, M, “Private Law But Public Power: Removing Administrative Law Review from Government Business Enterprises” (1995) 6 PLR 44Google Scholar.

12 Sir Brennan, Gerard, “The Purpose and Scope of Judicial Review” in M Taggart (ed), Judicial Review of Administrative Action in the 1980s (1988) at 19Google Scholar. Of course, legislative control over (or at least scrutiny of) executive action varies depending on the political make-up of the houses of Parliament, especially the upper house: cf Egan v Willis (1998) 195 CLR 424; Egan v Chadwick (1999) 46 NSWLR 563.

13 The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 222.

14 See generally R Sackville, above n 10 at 93-97.

15 (1985) 159 CLR 550.

16 Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ. The scope of the duty was expanded further by the recognition in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 that ratification of a treaty could give rise to a legitimate expectation that the Minister would act in conformity with it.

17 (1986) 162 CLR 24 at 39-42.

18 For example, Commonwealth v Pharmacy Gujld of Australia (1989) 91 ALR 65 (Shephard and Ryan JJ, Woodward J dissenting).

19 For example, Chaudhary v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 84 (FC);

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 (FC) reversed by the High Court Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577.

20 “Efficiency” in administrative decision-making is itself an ambiguous concept. It can be defined to include adherence to procedural safeguards and the making of correct decisions: Wilenski, P, “Social Change as a Source of Competing Values in Public Administration” (1988) 47 Aus J of Pub Admin 213 at 218CrossRefGoogle Scholar.

21 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 per Mason CJ.

22 Compare Breyer, S, “Judicial Review of Questions of Law and Policy” (1986) 38 Admin L Rev 363Google Scholar at 390 pointing to the practical difficulty of courts closely scrutinising agency decisions involving thousands of pages of material.

23 R Sackville, above n 10 at 98-101.

24 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

25 See, for example, New South Wales v Canellis (1994) 181 CLR 309 reversing Canellis v Slattery (1994) 33 NSWLR 104.

26 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577.

27 Abebe v Commonwealth (1999) 162 ALR 1.

28 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 12 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ.

29 Ibid at 18-19.

30 Kable v Director of Public Prosecutions (1996) 189 CLR 51 at 107 per Gaudron J. Despite the views of the High Court, one suspects that a very substantial majority of the population of New South Wales, if asked, would express approval of legislation designed to keep an apparently dangerous person in custody beyond the period of his sentence, with or without a further conviction.

31 Sir Anthony Mason, “Reflections on the Development of Australian Administrative Law” in R Creyke and J McMillan (eds), above n 3 at 122.

32 Ibid at 123.

33 See, as one example among many, the criticism of the decision in Lam v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Sackville J, 4 March 1998, unreported): B Walkley, “$3m Heroin Cache-But He Can Stay”, Daily Telegraph 5 March 1998 at 5 and Editorial, Daily Telegraph, 5 March 1998 at 10. In Lam, the decision of the Administrative Appeals Tribunal deporting the applicant was set aside on the principle of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, since the Tribunal had failed to alert the applicant to its intention not to give effect to the best interests of the applicant's child as a “primary consideration” consistently with the requirements of Art 3 of the United Nations Convention on the Rights of the Child. There was no appeal from the decision of the Federal Court. The Tribunal subsequently set aside the decision to deport the applicant: Re Lam and Minister for Immigration and Multicultural Affairs (1999) 28 AAR 431. On the tensions generated by the Federal Court's jurisdiction to review immigration decision-making, see generally McMillan, J, “Federal Court v Minister for Immigration” (1999) 22AIAL Forum 1Google Scholar.

34 Compare Posner, RA, The Problematics of Moral and Legal Theory (1999) ch 4Google Scholar.

35 (1996) 185 CLR 259.

36 Ibid at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Court also accepted the need for the reviewing court to adopt a “beneficial construction” of the reasons of the decision-maker, so that the reasons are “not construed minutely and finely with an eye keenly attuned to the perception of error”. The language approved by the High Court is that of a Full Court of the Federal Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280at287.

37 (1990) 170 CLR 1 at 35-36.

38 Ibid at 35-38.

39 1 Cranch 137 at 177; 5 US 87 at 111 (1803).

40 ADJR Act, s 5(2)(g).

41 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ (want of logic is not synonymous with error of law); Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 (FC) at 420-421.

42 Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 (FC) at 574-578 per Gummow J; Bayne, .P, “Reasonableness, Proportionality and Delegated Legislation” (1993) 67 ALf 448Google Scholar.

43 South Australia v Tanner (1989) 166 CLR 161 at 168 per Wilson, Dawson, Toohey and GaudronJJ.

44 Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 (FC) at 384 per Lockhart J.

45 For example, is a court better equipped than an agency to determine whether a particular bulk iron ore rail track transportation service should be regarded as a “service” as defined bys 44B of the Trade Practices Act 1974 (Cth), so that other iron ore producers are entitled to gain access to it? Cf Hammersley Iron Pty Ltd v National Competition Council [1999] FCA 867.

46 467 us 837 (1984).

47 See, for example, Cass Sunstein, R, “Law and Administration After Chevron” (1990) 90 Colum L Rev 2071 at 2073-2075CrossRefGoogle Scholar; S Breyer, above n 22 at 372-373.

48 Breyer, S G, Stewart, RB, Sunstein, Cass R and Spitzer, ML, Administrative Law and Regulatory Policy (4th ed 1998) at 256Google Scholar.

49 467 US 837 at 842-843 (1984) (citations omitted).

50 C R Sunstein, above n 47 at 2075.

51 Merrill, T W, “Judicial Deference to Executive Precedent” (1992) 101 Yale LJ 969 at 980CrossRefGoogle Scholar-993. See generally S G Breyer and others, above n 48 at 250-345.

52 Pierce, R J Jr, “The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State” (1995) 95 Colum L Rev 749 at 752CrossRefGoogle Scholar.

53 138 L Ed (2d) 724 (1997).

54 Ibid at 754.

55 143 L Ed (2d) 590 (1999).

56 Art l(F)(b).

57 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1979). The Handbook is frequently referred to in Australian decisions, although its value as an aid to construction is generally regarded as limited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392 per Mason CJ.

58 It must be said that it is not easy to reconcile INS v Aguirre-Aguirre with the Court's earlier decision in Immigration and Naturalization Service v Cardoza-Fonseca 480 US 421 (1987). There the Court rejected the BIA's construction of the asylum statute which would have required an applicant for asylum to demonstrate the “clear probability” that he or she would face persecution if returned to the country of nationality.

59 S Breyer, above n 22 at 368-369 (describing, but not necessarily endorsing, the argument). This article was written when Justice Breyer (now of the Supreme Court) was a Judge of the US Circuit Court of Appeals for the First Circuit.

60 Scalia, A, “Judicial Deference to Administrative Interpretations of Law” [1989] Duke LJ 511 at 514-516CrossRefGoogle Scholar. Justice Scalia rejects this rationale, on the ground that policy evaluation is ”part of the traditional judicial tool-kit” (at 515).

61 S G Breyer and others, n 48 above, at 257.

62 A Scalia, above n 60 at 517. Sunstein sees Chevron as resting on the desirability of forcing Congress to speak with clarity if it wishes to avoid administrative interpretation of statutes: Sunstein, Cass R, “Must Formalism Be Defended Empirically?” (1999) 66 U Chicago L Rev 636 at 656CrossRefGoogle Scholar.

63 401 us 402 (1971).

64 463 us 29 (1983).

65 Compare Baltimore Gas and Electric Co v National Resources Defense Council Inc 462 US 87 at 103 (1983), referring to the need for the reviewing court to defer to factual determinations within an agency's area of expertise.

66 The case was decided by a majority of 5:4.

67 S Breyer, above n 22 at 384.

68 Ibid at 385-387.

69 S G Breyer and others, above n 48 at 346-347.

70 The highway proposal in Overton Park never went ahead. While, in the aftermath of State Farm, the NIITSA ultimately adopted a passive restraint rule: ibid at 362-363 and 382.

71 S Breyer, above n 22 at 388 ff.

72 Ibid at 397.

73 For an example of a restrained approach, see the opinion of Posner J in American Dental Association v Martin, 984 F 2d 823 (7th Cir 1993).

74 S Breyer, above n 22 at 398.

75 Bayne, P, “Fuzzy Drafting and the Interpretation of Statutes in the Administrative State” (1992) 66 ALJ 523 at 524Google Scholar.

76 (1945) 70 CLR 598.

77 The question concerned the jurisdiction of a Local Reference Board established under the National Security (Coal Mining Industry Employment) Regulations.

78 (1945) 70 CLR 598 at 614-615 per Dixon J.

79 See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 607- 609 per Gummow J.

80 P Bayne, above n 75 at 525.

81 R v Hickman; Ex parte Fox (1945) 70 CLR 598 at 614.

82 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577; Guo v Minister for Immigration and Ethnic Affairs (1997) 191 CLR 559. See J McMillan, above n 33.