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Published online by Cambridge University Press: 24 January 2025
It seems natural, almost inevitable, that courts should perceive their role in judicial review as protection of the rights of citizens. Presented with litigation between citizens, the court protects the rights of the party .entitled to win. In the case of litigation between citizen and government, if there are any rights at all to protect, they will be rights of citizens. We can hardly speak of rights of government. Yet government, in exercising powers conferred by the parliament which represents the people in accordance with the will of the majority, claims a mandate to make policy and implement it. Perhaps this mandate is also a right deserving of the protection of the courts. It could be argued, after all, that the public interest consists in the collective rights of the majority.
Thanks are due to Tim Stephens for research assistance funded by the Australian Research Council.
1 The term “citizen” is employed in this essay, not with the technical meaning found in migration and citizenship laws, but rather in the wider and jurisprudential sense of a person in a reciprocal relationship with government defined by political and civil rights and duties. See Marshall, TH, Citizenship and Social Class and Other Essays (1950) at 8Google Scholar; Kymlicka, W and Norman, W, “Return of the Citizen: A Survey of Recent Work on Citizenship Theory” in R Beiner (ed), Theorizing Citizenship (1995) at 283Google Scholar.
2 See generally Craig, P P, Public Law and Democracy in the United Kingdom and the United States of America (1990) at 159-162CrossRefGoogle Scholar.
3 Retirement of Chief Justice Sir Anthony Mason (1995) 183 CLR vat vi. See also Sir Mason, Anthony, “The Future of the High Court of Australia” (1996) 12 QUTLJ 1 at 3Google Scholar.
4 Sir Mason, Anthony, “The Wilfred Fullagar Lecture: Future Directions in Australian Law” (1987) 13 Monash ULR 149 at 158Google Scholar; “The Future of the High Court of Australia” (1996) 12 QUTLJl at 5.
5 Justice M Kirby, “Sir Anthony Mason Lecture 1996: AF Mason-From Trigwell to Teoh” (1996) 20 MULR 1087 at 1095-1097 and 1098-1099. For Sir Anthony's views, see Sir Mason, Anthony, “The Role of the Courts and the Turn of the Century” (1993) 3 JJA 156 at 163-166Google Scholar.
6 Sir Mason, Anthony, “The Judges. The Community and the Media” (1997) 12 Commonwealth Judicial Journal 4 at 5Google Scholar; “No Place in a Modern Democratic Society for a Supine Judiciary” (1997) 50 Law Soc Jo 51.
7 See Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 where Mason CJ elaborated the principle of representative government. For an example of commentary which eschews this popular argument see The Hon Justice G F K Santow, “Aspects of Judicial Restraint” (1995) Aus Bar Rev 116.
8 These political perceptions have themselves been distorted by their neglect of decisions other than Mabo v Queensland (No 2) (1992) 175 CLR 1 and the free speech cases, noted at n 27 below. For a variety of views regarding the contribution of the Mason Court, see Saunders, C (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996)Google Scholar.
9 Commonwealth Administrative Review Committee, Report (PP No 144 of 1971).
10 Personal communication by Sir Anthony, 29 September 1999, which included the observation that the largest share of the writing of the report was carried out by another member of the Committee, Professor H Whitmore.
11 Commonwealth Administrative Review Committee, Report (PP No 144 of 1971) paras 5, 11, 12, 16, 58 and 105. See also Sir Mason, Anthony, “Administrative Review: The Experience of the First Twelve Years” (1989) 18 FL Rev 122 at 128-130Google Scholar; “Twelve Years of Administrative Review in Australia” (1990) Commonwealth Law Bulletin 1011 at 1015-1018.
12 Sir Mason, Anthony, “Where to Now?” (1975) 49 ALJ 570 at 572Google Scholar.
13 (1978) 142 CLR 1.
14 Ibid at 96.
15 Ibid at 97-98.
16 Ibid.
17 (1992) 176 CLR 604.
18 Ibid at 619.
19 Ibid at 615.
20 Egan v Willis (1998) 195 CLR 424 at448-453 per Gaudron, Gummow and Hayne JJ.
21 (1980) 147 CLR 39.
22 Interlocutory injunctions were, however, granted to restrain the publishers from a threatened infringement of copyright.
23 (1980) 147 CLR 39 at 51.
24 Ibid at 52. See also Attorney-General (UK) v Heinemann Publishers Australia Pty (1988) 78 ALR 449at458.
25 See Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at 75; Hamilton v Environment Protection Authority (District Court of New South Wales, Ainslie-Wallace J, 5 August 1998, unreported).
26 See, for example, the United Kingdom decisions of Derbyshire County Council v Times Newspapers Ltd [1992] 1 QB 770; Attorney-General v Guardian Newspapers [1990] AC 109; Lord Advocate v Scotsman Publications Ltd [1990] AC 812; Hyde Park Residence Ltd v Yelland [1999] RPC655.
27 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 139 per Mason CJ in relation to representative government: “the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and action in government and to inform the people so that they may make informed judgment on relevant matters”; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 34 per Mason CJ: “In deciding an issue of proportionality... the Court must take account of and scrutinize with anxiety the adverse impact, if any, of the impugned law on such a fundamental freedom as freedom of expression, particularly when that impact impairs freedom of expression in relation to public affairs and freedom to criticize public institutions.”
28 (1981) 151 CLR 170.
29 (1982) 151 CLR 342.
30 (1987) 163 CLR 378.
31 (1980) 147 CLR 75.
32 (1981) 151 CLR 170.
33 (1982) 154 CLR 25.
34 (1985) 157 CLR 91.
35 (1990) 170 CLR 321.
36 (1980) 147 CLR 75 at 92-93.
37 Australian Courts Act 1828 (9 Geo IV c 83), s 5.
38 (1980) 147 CLR 75 at 90-91. There was also some indication in old New South Wales cases that the courts assumed the power to enter an ex officio indictment is not justiciable: at 93.
39 (1980) 147 CLR 75 at 100.
40 Ibid at 101. The rights of the accused to a fair trial were to be balanced against the Crown's interest in bringing them to trial quickly, after serious delay, on serious charges of conspiracy which would have to be proved by the testimony of overseas witnesses. It was for the Supreme Court to decide whether the trial should be stayed.
41 (1981) 151 CLR 170.
42 As a result, in Toohey itself an exercise of delegated law-making power by the Administrator of the Northern Territory to make a regulation specifying a large area of land near Darwin as “town land” was in principle justiciable. The Northern Land Council argued that the regulation was made in order to defeat a land claim which was known to be pending and which by virtue of the regulation now fell outside the jurisdiction of the Aboriginal Land Commissioner. It was therefore permissible for the Aboriginal Land Commissioner to inquire into the motives of the Administrator in exercising the power.
43 (1981) 151 CLR 170 at 218 per Mason J quoting from Blackstone, W, Commentaries on the Laws of England (1809) Bk 1 at 251Google Scholar.
44 (1951) 83 CLR 1.
45 Ibid at 179.
46 Toohey (1981) 151 CLR 170 at 219.
47 Ibid at 220.
48 Ibid at 219.
49 Ibid.
50 Ibid.
51 Ibid at 220.
52 Ibid.
53 Ibid at 222. Wilson J reached a similar view, pointing out that the views of Dixon and Fullagar JJ in the Australian Communist Party Case were influenced by the context of national security: at 280-281 and at 283.
54 (1978) 142 CLR 1.
55 (1981) 151 CLR 170 at 220.
56 Ibid at 222.
57 Ibid.
58 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ).
59 (1981) 151 CLR 342 at 364-365.
60 While the duty to afford a fair hearing rested upon the Governor in Council, in practice this could be delegated to the relevant minister or a committee of the Executive Council.
61 (1981) 151 CLR 342 at 365.
62 (1982) 154 CLR 25.
63 Mason, Murphy and Brennan J. Gibbs CJ in dissent held that the question whether ASIO obtained intelligence that was not relevant to security was not justiciable because ASIO's statutory function of obtaining intelligence was neither a power nor a duty: ibid at 52.
64 Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 62.
65 Ibid at 59.
66 Ibid at 55.
67 Ibid at 56.
68 The courts may determine whether intelligence is relevant to security and whether a communication of intelligence is for purposes relevant to security, and therefore within the purposes of the ASIO's empowering statute. Claims of Crown privilege would almost certainly exclude some evidence from consideration in making this assessment. A claim of privilege would make the task of ascertaining whether an excess of power occurred more difficult and make the onus resting upon a plaintiff a heavier one: Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 61. See also at 74-75 per Brennan J. The result was that the appellant organisation failed to show that intelligence initially obtained by ASIO established that it was not a security risk; or that intelligence about the organisation was not relevant to security.
69 (1985) 157 CLR 91. The concurrence was with the caveat that no duty to afford procedural fairness arose only when the power to dismiss was exercised for discretionary reasons independently of the regulation which specified the basis of termination on medical grounds: at 94.
70 (1985) 157 CLR 91 at 115. According to Deane J the common law rules developed long ago to apply to military forces of the Crown or the East India Company and “reflected notions of the Royal prerogative of the command of the army which are of little or no contemporary relevance in this country”: at 108-109. In the leading judgment for the majority, Wilson J held that at common law an office such as this, held at the pleasure of the Governor-General, could be terminated at any time, and without having a reason or giving a reason. He drew attention to the “heavily entrenched principles, supported by tradition, authority and public policy, attaching to the concept of an appointment in the armed services being held at the pleasure of the Crown”: at 105.
71 (1987) 163 CLR 379.
72 Ibid at 404 per Wilson and Toohey JJ, at 412 per Brennan JJ.
73 For further discussion of 0'Shea see text accompanying nn 136-141 below. That larger question was addressed directly a week after 0'Shea was decided, in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218, where the Full Federal Court held, for varying reasons, that a Cabinet decision to list Kakadu Stage 2 on the World Heritage list was not justiciable at general law.
74 (1990) 170 CLR 321.
75 Brennan J concurred, Deane J agreed with this aspect of the judgment and Toohey and Gaudron JJ reached a similar conclusion, placing greater emphasis upon another requirement which forms part of the test of justiciability under the ADJR Act, namely whether the decision was made “under an enactment”. Bond reversed the jurisprudence of the Federal Court, established since Lamb v Moss (1983) 49 ALR 533, of treating the expression “decision” as not requiring a final or operative decision.
76 (1990) 170 CLR 321 at 337-338 and 340-342.
77 Ibid at 335.
78 Ibid at 336.
79 Ibid at 336-337.
80 Ibid at 338-339.
81 Ibid at 355-365. See ADJR Act, ss 5(1)(f),(h), 5(3).
82 Sir Mason, Anthony, “Administrative Law-Form Versus Substance” (1996) 79 Canb Bull Pub Admin 15 at 15, 17-18Google Scholar.
83 (1990) 170 CLR 321 at 341 and 357.
84 Ibid at 337 per Mason CJ (Brennan and Deane JJ agreeing), contra at 379 per Toohey and Gaudron JJ, rejecting the substance/procedure distinction.
85 Ibid at 377 per Toohey and Gaudron JJ
86 An eventuality contemplated by Mason CJ: ibid at 338.
87 There may be something to be said for recent dicta of the Federal Court that review of “conduct” is restricted to situations where a “decision” has not yet been made. Once a decision as understood in Bond has been made, then it subsumes conduct. Review of the decision exposes the conduct to review as part of the process which may have involved an error of law.
88 See Administrative Decisions Oudicial Review) Bills 1986, 1987 (Cth), cl 10 (2)(c),(d), discussed in Allars, M, Introduction to Australian Administrative Law (1990) at 106 and 110Google Scholar.
89 ADJR Act, s 10(2)(b)(ii), which the Bills would have strengthened. The point of the last mentioned mechanism is that the administrative review avenue may only become available when a final decision has been reached. A parallel is found in the Migration Act 1958 (Cth) Part 8, which excludes judicial review of primary decisions but permits review, on limited grounds, of those which have been reviewed on the merits by the Migration Review Tribunal or Refugee Review Tribunal. a finality clause is ineffective to oust judicial review.90 A comprehensive privative clause is ineffective to oust judicial review for jurisdictional error but is effective to oust review for non-jurisdictional error of law on the face of the record.91
90 Hockey v Yelland (1984) 157 CLR 124 at 130 per Gibbs CJ, Mason J concurring; Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 at 633 per Gaudron and GummowJJ.
91 Hockey v Yelland (1984) 157 CLR 124 at 130 per Gibbs CJ, Mason J concurring; Houssein v Under Secretary Department of Industrial Relations and Technology (1982) 148 CLR 88 where Mason J joined in a joint judgment. It was held further in Houssein that the coupling of the comprehensively expressed privative clause with another privative clause limited as to subject matter did not operate so as to limit the comprehensive one.
92 (1945) 70 CLR 598 at 615. A hint of this revival in found in Houssein v Under Secretary Department of Industrial Relations and Technology (1982) 148 CLR 88 at 95 where the joint judgment observed that the “elucidation of established doctrine” contained in Hickman may have brought the comprehensive privative clause and the privative clause limited as to subject matter closer together in their effect.
93 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616-617.
94 O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 248-249 per Mason CJ, at 275 per Brennan J, at 287 per Deane, , Gaudron, and JJ, McHugh; Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191Google Scholar CLR 602 at 631,634 per Gaudron and Gummow JJ.
95 O'Toole v Charles David Pty Ltd (1991) 171 CLR 232; Deputy Commissioner of Taxation (Cth) v Richard Walter Pty Ltd (1995) 183 CLR 168.
96 Deputy Commissioner of Taxation (Cth) v Richard Walter Pty Ltd (1995) 183 CLR 168 at 194.
97 Ibid at 195 per J, Brennan; Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191Google Scholar CLR 602 at 631 per Gaudron and Gummow JJ.
98 Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602.
99 Ibid at 635 per Gaudron and Gummow JJ; Flight West Airlines Pty Ltd v Ross (Full Federal Court, O'Connor, Kiefel and Dowsett JJ, 4 May 1999, unreported).
100 Deputy Commissioner of Taxation (Cth) v Richard Walter Pty Ltd (1995) 183 CLR 168 at 233 per Toohey J. The availability of judicial review also depends upon whether a provision in a statute which limits the scope of judicial review is characterised not as a privative clause but as a provision limiting the jurisdiction of a superior court of limited jurisdiction: Abebe v Commonwealth (1999) 162 ALR 1 at 44 per Gummow and Hayne JJ. In the case of a federal court, statutory limitation of the grounds of review which may be argued does not render the jurisdiction constitutionally invalid for lack of a “matter”: Abebe per Gleeson CJ, McHugh, Kirby and Callinan JJ.
101 Yet in Darling Casino the very typical privative clause hitherto treated as ineffective to protect against jurisdictional error has been accepted as falling within the former category, where the Hickman test is available.
102 Twist v Randwick Municipal Council (1976) 136 CLR 106 (although the judgment of Mason J in that case is not to be characterised in that way).
103 (1990) 170 CLR 596.
104 (1992) 175 CLR 564.
105 See, for example, Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149.
106 Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 402-403.
107 (1977) 137 CLR 396 at 404.
108 (1977) 137 CLR 461. The Court was unanimous in Ratu although they differed in their reasons, with Mason J joining a joint judgment holding that the statute left no room for implication of procedural fairness.
109 (1977) 137 CLR 487 at 494.
110 Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 513 per Aickin J.
111 FAI Insurances Ltd v Winneke (1981) 151 CLR 342 at 366.
112 (1981) 151 CLR 342 at 368-369.
113 Ibid at 370.
114 Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222.
115 (1981) 151 CLR 342 at 372.
116 (1985) 159 CLR 550.
117 Mason J rejected a submission that the delegate had failed to take into account relevant consideration of the status of the Kioa's young daughter, who was an Australian citizen. Mason and Deane JJ held that on the facts the delegate had taken this into account and the daughter had no separate right to be heard: ibid at 588, 634. Mason J did not consider the fuller version of this submission, namely that the delegate failed to take into account the relevant consideration of the Declaration of the Rights of the Child. Wilson J rejected this submission on the facts: ibid at 604. Brennan J held that it was permissible for the delegate to take the Declaration into account but it was not a relevant consideration the delegate was bound to take into account: ibid at 630. Gibbs CJ, who dissented, held in relation to this issue that the Declaration and the International Covenant on Civil and Political Rights were not part of domestic law in Australia and in any event there was no breach of its provisions: ibid at 570-571.
118 (1985) 159 CLR 550 at 579. Amendments to the Migration Act 1958 (Cth) itself were also held to be relevant: at 579-82.
119 Later restricted by the decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, discussed at text accompanying nn 74-89 above.
120 In this respect Kioa re-affirmed the approach in Commissioner of Police v Tanos (1958) 98 CLR 383.
121 (1985) 159 CLR 550 at 584.
122 (1990) 170 CLR 596.
123 The Court held that this view, for which Testro Bros Pty Ltd v Tait (1963) 109 CLR 353 was authority, would no longer prevail: (1990) 170 CLR 596 at 600.
124 (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ.
125 (1992) 175 CLR 564.
126 Testro Bros Inc v Tait (1963) 109 CLR 353 was confined to its own facts: ibid at 577.
127 Annetts v McCann (1990) 170 CLR 596 at 604; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 584-585.
128 Coco v R (1994) 179 CLR 427 at 437; Re Bolton; Ex parte Beane (1987) 162 CLR 514; Balog v Independent Commission Against Corruption (1990) 169 CLR 625; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287.
129 This has been the subject of debate in the United Kingdom. See, for example, Oliver, D, “Is the Ultra Vires Rule the Basis of Judicial Review?” [1987] PL 543Google Scholar; Forsyth, C, “Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, The Sovereignty of Parliament and Judicial Review” (1996) 55 CLJ 122CrossRefGoogle Scholar; Craig, PP, “Competing Models of Judicial Review” [1999] PL 428Google Scholar; Jowell, J, “Of Vires and Vacuums: The Constitutional Context of Judicial Review” [1999] PL 448Google Scholar.
130 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ); Minister for Arts, Heritage and the Environment v Peko-Wallsend Ltd (1987) 75 ALR 218.
131 For example, Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242.
132 Cooper v Wandsworth Board of Works (1863) 14 CBNS 180; 143 ER 414.
133 S Allen, TR, “Fairness, Equality, Rationality: Constitutional Theory and Judicial Review” in C Forsyth and I Hare (eds), The Golden Metwand and the Crooked Cord (1998) 15 at 20Google Scholar.
134 Raz, J, The Authority of Law (1979) at 211-223Google Scholar; Jowell, J, “The Rule of Law Today” in J Jowell and D Olvier (eds), The Changing Constitution (3rd ed 1994) at 57Google Scholar.
135 (1987) 163 CLR 378.
136 (1990) 170 CLR 1.
137 South Australia v 0'Shea (1987) 163 CLR 378 at 389.
138 Ibid at 387. However Sir Anthony has elsewhere acknowledged the evidentiary difficulties to be surmounted in any attempt to mount such an action: Sir Mason, Anthony, “Judicial Independence and the Separation of Powers-Some Problems Old and New” (1990) 13 UNSWLJ 173 at 183-184Google Scholar. Sir Anthony has also pointed out, referring to the High Court's refusal to grant leave to appeal from the Full Federal Court decision in Minister for Arts Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274, that irrespective of 0'Shea the issue of justiciability of Cabinet decisions has not yet been determined by the High Court: “Administrative Review: The Experience of the First Twelve Years” (1989) 18 FL Rev 122 at 124-125; “Twelve Years of Administrative Review in Australia” (1990) Commonwealth Law Bulletin 1011 at 1012-1013.
139 (1987) 163 CLR 378 at 387. Wilson and Toohey JJ held the decision not subject to procedural fairness, distinguishing FAI Insurances as a case where the power of the Governor in Council was more analogous to a ministerial power: at 404. The close structuring of the discretion by reference to criteria removed any general discretion relating to the public interest. The power of detention in the present case was not structured by reference to criteria and was more in the nature of a political decision. Wilson and Toohey JJ distinguished FAI Insurances on the additional basis that in that case the insurance company had been given no hearing at all, while in O'Shea a full hearing had been given by the parole board which made the recommendation to the Governor in Council, whose decision was not influenced by any fresh material.
140 See text accompanying nn 13-20 above.
141 South Australia v 0'Shea (1987) 163 CLR 378 at 385.
142 Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268.
143 (1990) 170 CLR 1 at 18. Compare the test proposed by Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 at 115-116.
144 (1990) 170 CLR 1 at 18.
145 See also Sir Mason, Anthony “Administrative Law-Form Versus Substance” (1996) 79 Canb Bull Pub Admin 15 at 15-16Google Scholar.
146 (1986) 162 CLR 24.
147 Ibid at 40.
148 Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441.
149 See also discussion of Bond in text accompanying nn 82-83 above; Sir Mason, Anthony “Twelve Years of Administrative Review in Australia” (1990) Commonwealth Law Bulletin 1011 at 1013-5Google Scholar.
150 (1995) 183 CLR 273.
151 Ibid at 291.
152 The governmental response consisted of attempts to reverse the effect of Teoh by the issue of policy statements and Bills directed to destroying the generation of legitimate expectations, culminating in the introduction into Commonwealth Parliament of the Administrative Decisions (Effect of International Instruments) Bill 1999 (Cth).
153 R v Secretary of State for the Home Department; Ex parte Ahmed [1998] INLR 570. However, public policies which were already in place prevented any legitimate expectation inconsistent with them from arising. Cf R v Director of Public Prosecutions; Ex parte Kebline; R v Same; Ex parte Rechachi [1999] 3 WLR 175; R v Uxbridge Magistrates' Court; Ex parte Adimi (Queen's Bench Division, The Times,12 August 1999).
154 See, for example, the decision of Sedley J in R v Secretary of State for the Home Department; Ex parte Singh (Balwant) [1997] Imm AR 331, accepting that Teoh, “that highly controversial decision”, provided a “respectable argument” and that “any argument accepted by the High Court of Australia must be respectable”, but not applying it because it had been “effectively pre-empted” by the House of Lords decision in R v Secretary of State for the Home Department; Ex parte Brind [1991] 1 AC 696.
155 Department of Immigration and Ethnic Affairs v Ram (1996) 41 ALD 517; Fang v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 583 at 603-605; Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 50 ALD 690; Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405; Browne v Minister for Immigration and Multicultural Affairs (1998) 52 ALD 550.