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Published online by Cambridge University Press: 01 January 2025
This article analyses the normative structure of Australian administrative law through the prism of two distinct intellectual approaches to the law of judicial review: the ‘grounds approach’ and the ‘statutory approach’. We explore the development of both approaches and track the contemporary ascendance of the statutory approach in light of the political and constitutional context within which the practice of judicial review is situated. We then reflect on the ways that each responds to two central legitimacy problems which must be confronted by modern administrative law: the democratic legitimacy of judicial review and the legitimacy of the forms of law associated with contemporary administrative government.
Thanks to Peter Cane, Christos Mantziaris and Kristen Rundle for helpful comments and conversations.
1 Only from the second half of the twentieth century has it made sense to speak of a coherent body of ‘administrative law’. That body of law consists of norms applied by courts, and norms applied by bureaucratic institutions (which include merits review tribunals as well as complaints and investigation bodies like the Ombudsman). While there will be overlap between those bodies of law, our focus is on the norms applied by courts in exercise of their judicial review jurisdiction. For ease of expression, we give them the title ‘legal norms’.
2 The language of ‘norms’ and ‘normative structure’ will be familiar to readers of High Court judgments (but, our use of those terms is, at times, broader than the Court’s): Houghton v Arms (2006) 225 CLR 553, 563 [25]; Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 610 [74]; Crimmins v Stevedoring Committee (1999) 200 CLR 1, 59–60 [162]; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 655 [97]; Wong v Commonwealth (2009) 236 CLR 573, 594 [65]; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 23 [72].
3 Open any administrative law text in the UK or Australia and a chapter or series of chapters on the various grounds of judicial review will be discovered.
4 (1985) 159 CLR 550, 576–7 (‘Kioa’).
5 Ibid.
6 (2005) 228 CLR 294.
7 Ibid 353–4 [205].
8 We acknowledge that the application of some grounds are typically more sensitive to textual and contextual details of statutory power than others.
9 Cf CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 (relevant considerations); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (unreasonableness); Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336 (improper purpose).
10 There may, of course, be much uncertainty about precise connections between an intellectual approach to understanding the law and results in particular cases. But these uncertainties should not be used as a reason to ignore the influence of ideas and attitudes on the development of legal thought. Cf Edward L Rubin, Soul, Self, and Society: The New Morality and the Modern Administrative State (Oxford University Press, 2015) 22.
11 We begin this task in Part IV.
12 Christopher, Forsyth (ed), Judicial Review and the Constitution (Hart Publishing, 2000)Google Scholar collects many of the key contributions.
13 Signal contributions (both appending a constitutional coda to the ultra vires debate in Australian administrative law) are Stephen, Gageler, ‘The Underpinnings of Judicial Review of Administrative Action: Common Law or Constitution?’ (2000) 28 Federal Law Review 303Google Scholar; Bradley, Selway, ‘The Principle behind Common Law Judicial Review of Administrative Action—The Search Continues’ (2002) 30 Federal Law Review 217Google Scholar.
14 Kioa (1985) 159 CLR 550, 584 (Mason J), 609–610 (Brennan J).
15 (2012) 246 CLR 636, 666 [97] (‘Plaintiff S10’). Further, we bracket the suggestion that the High Court might resolve or has resolved the ultra vires-common law debate (see, eg, Mark, Aronson, ‘Private Bodies, Public Power, and Soft Law in the High Court’ (2007) 35 Federal Law Review 1, 2Google Scholar). If the debate is to have any significance, it must be understood as raising theoretical questions over which courts have no exclusive jurisdiction.
16 (‘ADJR Act’).
17 Unlike that debate, our principal concern is not with juristic dichotomies, as we labour to explain. Although we deal with some of the cases often linked to that debate (especially, Kioa) as part of the story we develop of the transition towards the statutory approach, we are conscious not to simply repeat the work of others. We note that our review of case law extends far beyond the last time that debate received significant attention, and includes cases which are not associated with it.
18 Although we invoke the two approaches as justificatory modalities which are grounded in the law, we do not claim that either have been authoritatively accepted under the banners we adopt. The approaches represent distinct ‘ways of thinking’ about the norms which are, or should be, recognised by doctrinal propositions in Australian administrative law.
19 David Sugarman, ‘Legal Theory, the Common Law Mind and the Making of the Textbook Tradition’ in William, Twining (ed), Legal Theory and Common Law (Basil Blackwell Press, 1986) 26Google Scholar; Martin, Loughlin, Public Law and Political Theory (Clarendon Press, 1992) 22Google Scholar.
20 As Hohfeld later demonstrated, there are multiple types of rights which generate distinct varieties of correlative duties: See W N, Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Yale University Press, 1919)Google Scholar.
21 Edith, G Henderson Foundations of English Administrative Law: Certiorari and Mandamus in the Seventeenth Century (Harvard University Press, 1963)Google Scholar.
22 S A, de Smith, Judicial Review of Administrative Action (Oceana Publications, 1959) 269Google Scholar.
23 Ibid 270.
24 For an Australian example of this usage, see R v Arndel (1906) 3 CLR 557.
25 Michael, Fordham, ‘Surveying the Grounds: Key Themes in Judicial Intervention’ in Peter, Leyland and Terry, Woods (eds), Administrative Law Facing the Future: Old Constraints and New Horizons (Blackstone Press, 1997) 199Google Scholar.
26 Peter, Cane, Administrative Law (Oxford University Press, 5th ed, 2011) 13Google Scholar.
27 Stephen, Gageler, ‘Administrative Law Judicial Remedies’ in Matthew, Groves and H P, Lee (eds), Australian Administrative Law (Cambridge University Press, 2007) 54Google Scholar.
28 See J A G, Griffith and H, Street, Principles of Administrative Law (Sir Isaac Pitman & Sons, 1952)Google Scholar; de Smith, above n 22; H W R, Wade, Administrative Law (Oxford Clarendon Press, 1961)Google Scholar.
29 The increasing emphasis on general grounds of judicial review became more marked in subsequent editions and texts. On the changing emphasis in successive editions of de Smith's seminal text, see Dean, Knight, Vigilance and Restraint in the Common Law of Judicial Review: Scope, Grounds, Intensity, Context (PhD Thesis, London School of Economics and Political Science, 2014)Google Scholar.
30 W, Friedmann, Principles of Australian Administrative Law (Melbourne University Press, 1950)Google Scholar.
31 D, Benjafeld and H, Whitmore, Principles of Australian Administrative Law (Law Book, 3rd ed, 1966)Google Scholar.
32 Harry, Whitmore and Mark, Aronson, Review of Administrative Action (Law Book, 1978)Google Scholar. That text appeared under the same title with Aronson as lead author (and two co-authors) in 1987. It next appeared under the title Judicial Review of Administrative Action in 1996, when Aronson was joined by a new co-author, and has subsequently appeared under that longer title with various co-authors. The current edition is Mark, Aronson, Mathew, Groves and Greg, Weeks, Judicial Review of Administrative Action and Government Liability (Law Book, 6th ed, 2017)Google Scholar.
33 Timothy, Endicott, Administrative Law (Oxford University Press, 3rd ed, 2015) 62Google Scholar. As Endicott recognises, many key principles had been recognised centuries earlier.
34 Stephen, Sedley, Lions under the Throne: Essays on the History of English Public Law (Cambridge University Press, 2015) 24Google Scholar.
35 See, eg, Commonwealth Administrative Review Committee, Parliament of Australia, Commonwealth Administrative Review Committee Report (1971) 5–6.
36 The language through which the substantive principles enunciated by the ADJR Act is expressed: ss 5–7, 11.
37 Committee of Review, Parliament of Australia, Prerogative Write Procedures: Report of Committee of Review (1973) 6 (‘Ellicott Committee Report’). The ADJR Act's grounds of review are more particularised than Lord Diplock's famous tripartite statement of them as ‘illegality’, ‘irrationality’ and ‘procedural impropriety’: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410. While his classification remains popular in England, we see no reason attempt to encapsulate the grounds of review in ‘three big words’: Endicott, above n 33, 358. The grounds necessarily state abstract norms but dialling up the level of abstraction may diminish their capacity to provide judges or administrators with meaningful guidance.
38 For a perceptive discussion, see Peter, Bayne, ‘Judicial Review and Good Administration’ (1990) 64 Australian Law Journal 715Google Scholar.
39 Chief JusticeR S, French AC, ‘Administrative Law in Australia: Themes and Values Revisited’ in Matthew, Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014) 37Google Scholar.
40 Mark, Aronson, ‘Public Law Values in the Common Law’ in Mark, Elliott and David, Feldman (eds), The Cambridge Companion to Public Law (Cambridge University Press, 2015) 134, 138Google Scholar.
41 Endicott, above n 33, 70. Lord Diplock referred to the general developments in judicial review as the ‘great achievement’ of the English courts in his judicial lifetime: R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 641. Arvind and Stirton argue that Lord Diplock's claim neglects his own role in nipping the development of a more thoroughgoing administrative law reform project in the bud. The judges, they argue, directed legal development along a narrow, primarily procedural, channel, turning their backs on a mid-twentieth century ‘juristic consensus’ that substantive common law principles to balance private interests and the public interest should be formulated. See T T, Arvind and L, Stirton, ‘The Curious Origins of Judicial Review’ (2017) 133 Law Quarterly Review 91Google Scholar.
42 Matthew, Groves and Janina, Boughey, ‘Administrative Law in the Australian Environment’ in Matthew, Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014) 10Google Scholar. See Kioa (1985) 159 CLR 550, 577 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39.
43 Ellicott Committee Report, above n 37, 9.
44 Jason, N E Varuhas, ‘The Public Interest Conception of Public Law: Its Procedural Origins and Substantive Implications’ in John, Bell, Mark, Elliott, Jason, N E Varuhas and Philip, Murray (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Hart Publishing, 2016) 45Google Scholar; Jason, N E Varuhas, ‘Against Unification’ in Hanna, Wilberg and Mark, Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart's Rainbow (Hart Publishing, 2015) 91, 108Google Scholar.
45 Diana, Woodhouse, In Pursuit of Good Administration: Ministers, Civil Servants and Judges (Clarendon Press, 1997) 147Google Scholar. We acknowledge that the recent adoption of proportionality as a standard of review associated with the protection of human rights complicates this picture.
46 Margaret, Allars, Introduction to Australian Administrative Law (Butterworths, 1990) 24Google Scholar.
47 Queensland Electoral and Administrative Review Commission, Judicial Review of Administrative Decisions and Actions, Issues Paper, (1990) [11.11].
48 See, eg, Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 13.
49 Arthur Yates & Company Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37, 81, quoting Stark v Wickard, 321 US 288, 312 (1944) (Frankfurter J). On the contemporary US debate over the existence of a federal common law of judicial review, see Gillian, E Metzger, ‘Embracing Administrative Common Law’ (2012) George Washington Law Review 1294Google Scholar.
50 (1982) 151 CLR 342.
51 (1985) 159 CLR 550.
52 (1990) 170 CLR 1 (‘Quin’).
53 (1998) 194 CLR 355 (‘Project Blue Sky’).
54 Itself following in the footsteps of R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 which refused to follow Dixon J in Australian Communist Party v The Commonwealth (1951) 83 CLR 1, 179.
55 (1982) 151 CLR 342, 348 (Gibbs CJ), 355 (Stephen J), 372 (Mason J), 380 (Aickin J), 390 (Wilson J): since at least 1863, natural justice had been understood as a duty imposed by the common law: Cooper v Wandsworth Board of Works (1863) 143 ER 414. Justice Murphy was characteristically vague: Winneke (1982) 151 CLR 342, 373.
56 Winneke (1982) 151 CLR 342, 407.
57 Ibid 409.
58 Ibid.
59 Kioa (1985) 159 CLR 550, 611.
60 Which is now, apparently, heretical: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326.
61 Quin (1990) 170 CLR 1, 35–6, quoting Marbury v Madison, 5 US 137, 177 (1803) (‘Marbury’). Although Brennan J does not expressly mention the Constitution, the analysis is clearly ‘permeated with constitutional principles’ and offers ‘a conception of the judicial role as part of a wider understanding of government in which the function of each arm was clearly defined’: Matthew, Groves, ‘Federal Constitutional Influences on State Judicial Review’ (2011) 39 Federal Law Review 399, 402Google Scholar.
62 Michael, Taggart, ‘“Australian Exceptionalism” in Judicial Review’ (2008) 36 Federal Law Review 1Google Scholar.
63 We make no claim that recourse to the separation of powers principle for the purpose of articulating the boundaries of judicial review is unique to Australia. Cf R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2015] AC 945, 965 [22].
64 Whether attributed to Brennan J in Quin (See, eg, Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 157 [2]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 160 [25]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 153–4 [44]) or not (Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 24–25).
65 Quin (1990) 170 CLR 1, 36.
66 As a response to the encroachment of the doctrine of legitimate expectation.
67 We observe the double entendre in describing the process of expositing implied common law limitations on legislative power as ‘sophisticated’.
68 That reading is bolstered by Brennan J's judgment in Annetts v McCann, which opened by stating that ‘[t]he focus of judicial review is a power created by statute conferred on an authority prescribed by statute’: (1990) 170 CLR 596, 604.
69 For his honour's post-retirement reflections on his development of the statutory approach to judicial review, see SirGerard, Brennan, ‘The Review of Commonwealth Power: Some Current Issues’ in Robin, Creyke and Patrick, Keyzer (eds), The Brennan Legacy: Blowing the Winds of Legal Orthodoxy (Federation Press, 2002) 62Google Scholar.
70 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272, quoting Quin (1990) 170 CLR 1, 35–6 (Brennan J), adopting Marshall CJ Marbury, 5 US 137, 177 (1803). In the longer term, the idea that natural justice is a common law duty disappeared in the slip stream created by Brennan J's approach to the legality/merits distinction: see, Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 666 [97] andAronson, ‘Private Bodies, Public Power, and Soft Law in the High Court’, above n 15. See also Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 (27 July 2016) [75].
71 Project Blue Sky (1998) 194 CLR 355, 388–9.
72 Ibid 375. Justice Brennan cast a dissenting vote in Project Blue Sky, but there was no clash between his reasoning on high principle and the majority’s.
73 At which worthy criticism has been levelled: Justice Nye Perram, ‘Project Blue Sky: Invalidity and the Evolution of Consequences for Unlawful Administrative Action’ (2014) 21 Australian Journal of Administrative Law 62.
74 Perhaps the distinction makes most sense when applied in the context of the review of legislative decisions (in Project Blue Sky the application related to delegated legislation). If, however, some res judicata arises from such a declaration which prevents any consequential action being taken in reliance on an unlawful administrative decision, then the decision in Project Blue Sky appears to be wholly contradictory. We think quibbles about such matters concern angels dancing on pin heads. We also think the question of what consequences should flow from a decision affected by legal error are too subtle to be subdued by a blunt conceptual dichotomy: cf David, Feldman, ‘Error of Law and Flawed Administrative Acts’ (2014) 73 Cambridge Law Journal 275Google Scholar.
75 Graeme, Hill, ‘Applying Project Blue Sky—When Does Breach of a Statutory Requirement Affect the Validity of an Administrative Decision’ (2015) 80 AIAL Forum 54Google Scholar. The cases reviewed by Hill do not appear to have included any significant clarification of the circumstances in which equitable relief may be granted for cases of (merely) unlawful decisions. Although Hill identifies ‘other means of giving effect to a provision’ as a factor why breach may not result in invalidity, the availability of declaratory relief for an ‘unlawful’ does not appear to have figured in the cases discussed.
76 (1998) 194 CLR 355, 388–9 [91].
77 Ibid 390–1 [93].
78 Because Blue Sky thinking purports to operate within the four corners of the statute it differs fundamentally from the meaning of ‘blue sky thinking’ in ordinary parlance, namely, ‘thinking outside of the box’, unconstrained by authority and orthodoxy.
79 Project Blue Sky (1998) 194 CLR 355, 374–5 [41].
80 Mason J, often at odds with Brennan J, never responded to those views. Perhaps Mason J kept silent because he never considered the constitutionalisation of administrative law to be a worthy project, or, at least, insufficiently worthy to risk jeopardising his own vision for the role of the Constitution in the development of Australian law.
81 (1995) 184 CLR 163, 175–6, 179–80 (‘Craig’).
82 Nothing of present import turns on the fact that two lists were given, a broad one applicable to ‘administrative tribunals’ and a narrower one applicable to ‘a court of law’. The distinction was tenuously drawn in Craig and it has since come under sustained attack: Kirk v Industrial Court (NSW) (2010) 239 CLR 53.
83 (1995) 184 CLR 163, 176.
84 That emergence is fastidiously recorded in Stephen, Gageler, ‘Impact of Migration Law on the Development of Australian Administrative Law’ (2010) 17 Australian Journal of Administrative Law 92Google Scholar.
85 (2002) 209 CLR 597 (‘Bhardwaj’).
86 Ibid 612 [44].
87 (2003) 211 CLR 476 (‘S157’).
88 Ibid 505 [73], 506 [76], 508 [82]–[83]. When one steps away from the distracting influence of the Constitution, the approach to privative clauses adopted in S157 was, it must be said, no more than an unattributed adoption of Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147 without the later glosses identified by English courts (cf Re Racal Communications Ltd [1981] AC 374).
89 The major efforts are cited in Will, Bateman, ‘The Constitution and the Substantive Principles of Judicial Review: the Full Scope of the Entrenched Minimum Provision of Judicial Review’ (2012) 39 Federal Law Review 463, 464Google Scholar n 5.
90 S157 (2003) 211 CLR 476, 488–9 [20], quoting Project Blue Sky (1998) 194 CLR 355, 390.
91 Ibid 489 [22].
92 Ibid 506 [76], quoting Bhardwaj (2002) 209 CLR 597, 614–5 [51] (Gaudron and Gummow JJ).
93 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212, 225 [44]. Justice McHugh arrived at the same conclusion: 227 [55].
94 (2010) 239 CLR 531.
95 Ibid 573–4 [71]–[73].
96 Ibid 574 [73].
97 Some the issues which arise in that context are identified in Peter, Cane and Leighton, McDonald, Principles of Administrative Law: Legal Regulation of Governance (Oxford University Press, 2nd ed, 2012) 92–3Google Scholar.
98 See, eg, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 350 [26], 363–4 [67], 370–1 [90]. See the discussion in Leighton, McDonald, ‘Rethinking Unreasonableness Review’ (2014) 25 Public Law Review 117Google Scholar.
99 See, eg, Coco v The Queen (1994) 179 CLR 427.
100 X7 v Australian Crime Commission (2013) 248 CLR 92.
101 See, eg, North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569.
102 Legislative responses to unanticipated judicial interpretations of legislative powers may not, in practice, be able to overturn particular consequences of the invalidation of an administrative decision. See Brendan, Lim, ‘The Normativity of the Principle of Legality’ (2013) 37 Melbourne University Law Review 372, 400Google Scholar.
103 Though the phenomenon is not seriously disputed, the literature on the causes of these changes, and their significance for understanding the nature of law in society, remains complex and contested terrain. For one account, see, R M, Unger, Law in Modern Society: Towards a Criticism of Social Theory (Free Press, 1976)Google Scholar.
104 See Leighton, McDonald, ‘The Rule of Law in the ‘New Regulatory State’’ (2004) 33 Common Law World Review 197Google Scholar.
105 The meaning of each term carries different shades of meaning, but drawing bright lines between them is not necessary for our purposes.
106 See, eg, F A, Hayek, The Constitution of Liberty (University of Chicago Press, 1971)Google Scholar. Whether that view of legal certainty is empirically accurate has been critiqued (John, Braithwaite, ‘Rules and Principles: A Theory of Legal Certainty’ (2002) 27 Australian Journal of Legal Philosophy 47Google Scholar), as has the notion that it is incompatible with the modern administrative state (Bill, Scheuerman, ‘The Rule of Law and Welfare State: Towards a New Synthesis’ (1994) 22 Politics and Society 195Google Scholar).
107 See, eg, David, Schoenbrod, Power without Responsibility: How Congress Abuses the People Through Delegation (Yale University Press, 1993)Google Scholar; Theodore, J Lowi, The End of Liberalism: Ideology, Policy and the Crisis of Public Authority (Norton, 1969)Google Scholar.
108 Lord Hewart's hyperbole notwithstanding: see The New Despotism (Ernest Benn Ltd, 1929).
109 Peter, Cane, Controlling Administrative Power: An Historical Comparison (Cambridge University Press, 2016) 311Google Scholar.
110 On the transmission belt model of administrative law in the US, see Richard, Stewart, ‘The Reformation of Administrative Law’ (1975) 88 Harvard Law Review 1669, 1675Google Scholar.
111 Cf Jerry, L Mashaw, ‘Small Things Like Reasons are Put in a Jar: Reason and Legitimacy in the Administrative State’ (2001) 70 Fordham Law Review 17, 21Google Scholar.
112 Since 1981, it has been the law that it is not: R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170.
113 Though each problem raises quite distinct issues, each arises from a commitment to some form of collective self-government.
114 The statutory approach also locks neatly into the purposive approach to statutory interpretation which is now stated to be the orthodoxy in Australia, if not the common law world.
115 See Martin, Krygier, ‘The Rule of Law: Pasts, Presents, and Two Possible Futures’ (2016) 12 Annual Review of Law and Social Science 199Google Scholar.
116 Jeremy, Waldron, ‘The Rule of Law and the Importance of Procedure’ in James, E Fleming (ed), Getting to the Rule of Law, Nomos, no 50 (New York University Press, 2011) 3Google Scholar.
117 Lon, L Fuller, The Morality of Law (Yale University Press, Revised ed, 1969)Google Scholar.
118 Kenneth, Culp Davis, Discretionary Justice: A Preliminary Inquiry (Louisiana State University Press, 1969)Google Scholar. We acknowledge that the common law grounds of review also preserve discretion, recognising that discretion and rules both have costs and benefits the balance of which is context-dependent.
119 For an illuminating discussion, see D J, Galligan, Discretionary Powers: A Legal Study of Official Discretion (Clarendon Press, 1990)Google Scholar.
120 For an excellent discussion of the extent to which American administrative law norms do, or may be developed to, instantiate identified rule of law principles, see Kevin, Stack, ‘An Administrative Jurisprudence: The Rule of Law in the Administrative State’ (2015) 115 Columbia Law Review 1985Google Scholar.
121 In 2000, Geoff Airo-Farulla argued that administrative rationality was the key to understanding judicial review in Australia—in particular, that rationality explained and justified the legality-merit distinction: ‘Rationality and Judicial Review of Administrative Action’ (2000) 24 Melbourne University Law Review 543. Looking back on that article, it seems to us that it reflects a grounds of review approach to thinking about administrative law norms. For example, Airo-Farulla points to cases which ‘demonstrate judicial willingness to explicitly articulate rationality as a common law standard of good administrative decision-making’ (ibid 555) in support of his interpretation.
122 The extent to which administrative law norms (however conceptualised) do in fact guide administrative decision-making is an empirical question about which there remains relatively little research. For an instructive study which suggests hypotheses about the impact of judicial review (in the context of homelessness decision-making by local authorities in the UK), see Simon, Halliday, Judicial Review and Compliance with Administrative law (Hart Publishing, 2004)Google Scholar.
123 Some argue that the principles of administrative law ‘are not sufficiently precise to offer any meaningful guidance to administrators in their day-today decision making’: Richard, Rawlings, ‘Judicial Review and the Control of Government’ (1986) 64(2) Public Administration 135, 140Google Scholar.
124 Jerry, L Mashaw, ‘Between Facts and Norms: Agency Statutory Interpretation as an Autonomous Enterprise’ (2005) 55 University of Toronto Law Journal 497, 508Google Scholar.
125 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 265.
126 Zheng v Cai (2009) 239 CLR 446, 455–6 [28].
127 Cf Adrian, Vermeule, ‘The Judiciary is a They, Not an It: Interpretive Theory and the Fallacy of Division’ (2005) 14 Journal of Contemporary Legal Issues 549Google Scholar.
128 Not to mention the fact that legal theorists of varying stripes (including, legal positivists) recognise the reality of not insignificant levels of indeterminacy in the context of common law reasoning and statutory interpretation.
129 See, eg, Plaintiff M70 /2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144.