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The Rule of Law in the Age of Statutes

Published online by Cambridge University Press:  01 January 2025

Lisa B Crawford
Lisa B Crawford*
Affiliation:
University of New South Wales
*
The author may be contacted at l.b.crawford@unsw.edu.au.
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Abstract

This article provides an empirical analysis of the legislative practice of the Australian Parliament and considers its implications for the rule of law. Federal legislation is so voluminous, complex and changeable that it risks diminishing the rule of law, in the sense that it makes the law difficult to know. This could be potentially ameliorated by Australian courts embracing Chevron-style deference, or an administrative law doctrine of legitimate expectations, but neither option is ideal. More broadly, the article comments upon the way in which the rule of law and legislation should be understood in a modern administrative state.

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Articles
Information
Federal Law Review , Volume 48 , Issue 2 , June 2020 , pp. 159 - 185
Copyright
Copyright © 2020 The Author(s)

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Footnotes

Previous versions of this article have been presented at numerous fora, and I am grateful to all those who have commented on it, especially Professor Gabrielle Appleby, Professor Mark Aronson, Justice John Basten, Dr Janina Boughey, Professor Rosalind Dixon, Justice Mark Leeming, Professor Adrienne Stone, Professor Anne Twomey and Professor Mark Tushnet, along with the anonymous referees for their most helpful comments.

References

1. There are too many examples to sensibly cite, but see Guido Calabresi, A Common Law for the Age of Statutes (Harvard University Press, 1982); Andrew Burrows, ‘The Relationship Between Common Law and Statute in the Law of Obligations’ (2012) 128 Law Quarterly Review 232, 233; Paul Finn, ‘Statutes and the Common Law’ (1992) 22(1) University of Western Australia Law Review 7; Anthony Connolly and Daniel Stewart (eds), Public Law in the Age of Statutes: Essays in Honour of Dennis Pearce (Federation Press, 2015). As this range of citations indicates, the phenomenon is not unique to any one jurisdiction.

2. Mark Leeming, ‘Equity: Ageless in the “Age of Statutes”’ (2015) 9(2) Journal of Equity 108.

3. Research of this kind has been undertaken in some other jurisdictions, but not Australia. For an example which employs a similar methodology to that adopted here, see Lorne Neudorf, ‘The Supreme Court and Parliament: Evolving Roles and Relationships’ in Matthew P Harrington (ed), The Court and the Constitution: A 150 Year Retrospective (LexisNexis, 2017) 3.

4. Edward Rubin, ‘Law and Legislation in the Administrative State’ (1989) 89(3) Columbia Law Review 369.

5. See especially Joseph Raz, The Authority of Law (Oxford University Press, 2009) 210–32. In more recent work, Raz acknowledged that the rule of law serves other broader purposes: ‘The Law’s Own Virtue’ (2019) 39(1) Oxford Journal of Legal Studies 1.

6. Lon Fuller, The Morality of Law (Yale University Press, 2nd ed, 1969) 33–91. This aspect of Fuller’s theory is highlighted and explored at length in Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Hart, 2012). See also Colleen Murphy, ‘Lon Fuller and the Moral Value of the Rule of Law’ (2005) 24(3) Law and Philosophy 239.

7. Richard Ekins, The Nature of Legislative Intent (Oxford University Press, 2012); Jeremy Waldron, Law and Disagreement (Oxford University Press, 1999).

8. See Lisa Burton Crawford, ‘The Rule of Law’ in Rosalind Dixon (ed), Australian Constitutional Values (Hart, 2018) 77; Lisa Burton Crawford, The Rule of Law and the Australian Constitution (Federation Press, 2017).

9. These include, but are certainly not limited to, questions regarding the proper approach to statutory interpretation (and the notion of parliamentary intention), the health of our democratic system and the normative weight we should ascribe to statute law.

10. Parliament of Australia, House of Representatives Statistics (25 October 2018) <https://www.aph.gov.au/Parliamentary_Business/Statistics/House_of_Representatives_Statistics>; Parliament of Australia, Senate StatsNet (24 October 2018) <https://www.aph.gov.au/Parliamentary_Business/Statistics/Senate_StatsNet#fndtn-Legislation>; Senate Statistics (25 October 2018) <https://www.aph.gov.au/Parliamentary_Business/Statistics/Senate_StatsNet_New#/>. The data presented are correct as of these dates. They do not distinguish between amending and principal legislation.

11. First and foremost, the rejection of the reserved state powers doctrine, which historically saw the provisions of the Constitution which demarcate the scope of federal legislative power read narrowly so as to preserve the legislative autonomy of the States: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 133.

12. For example, income taxation. This was engineered by the federal government through a package of legislation, including the States Grants (Income Tax Reimbursement) Act 1942 (Cth), which provided for financial grants to be made to the States on the condition that they did not impose income tax. Other legislation made it practically impossible for the States to continue collecting income tax, for example, by compulsorily transferring the equipment, records and staff of State income taxation departments to the Commonwealth. These various pieces of legislation were found to be constitutionally valid in South Australia v Commonwealth (The First Uniform Tax Case) (1942) 65 CLR 373.

13. This conclusion is drawn from data published in databases by each of the Australian States, documenting the Acts enacted each year, in addition to the historical information published by AustLII. See, eg, AustLII, New South Wales Act as Made (25 October 2018) <https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/num_act/>; NSW Government, New South Wales Legislation <https://www.legislation.nsw.gov.au/#/>; Victorian Legislation and Parliamentary Documents, Victorian Statute Book <http://www.legislation.vic.gov.au/>; Queensland Government, Acts as Passed <https://www.legislation.qld.gov.au/browse/aspassed>; Government of Western Australian Department of Justice, Western Australian Legislation <https://www.legislation.wa.gov.au/>; Government of South Australia Attorney General’s Department, Acts of the Parliament of South Australia <https://www.legislation.sa.gov.au/browseActs.aspx>; Tasmanian Government, Tasmanian Legislation <https://www.legislation.tas.gov.au/>.

14. For an extraordinary perspective on the former, see the discussion in Chief Justice Wayne Martin, ‘When Too Much Law is Barely Enough’ (Speech, 2014 Australasian Drafting Conference, 30 July 2014). Martin recounts anecdotes from Justice Nye Perram and Hilary Penfold QC (former First Parliamentary Counsel). Penfold is said to have ‘related a story that she was at her desk at lunchtime eating a bowl of noodles when she was summoned to the Prime Minister’s office to draft a Bill and told to bring a laptop. She arrived with noodles and a laptop, and she was told that what they were going to do was excise part of Australia from the migration zone and she should start drafting, which she did. Apparently, they had the screens up where you could see what was going on in the House, and as she was tapping away on her laptop she saw the Prime Minister rise and announce the introduction of the Bill that she was still typing out on her laptop’ (at page 9).

15. During this period, the federal Parliament enacted 3652 statutes, and sat for a total of 13 477 hours. See Parliament of Australia, Legislation Statistics (25 October 2018) House of Representative Statistics <https://www.aph.gov.au/Parliamentary_Business/Statistics/House_of_Representatives_Statistics>.

16. According to the statistics kept of the 45th Parliament, ‘government business’ includes government sponsored legislation and motions (including motions to suspend standing orders) and ministerial statements. ‘Private Members’ business’ includes legislation and motions (including motions to suspend standing orders) sponsored by private Members and statements by Members comprised of 69% of parliamentary business: Parliament of Australia, House of Representatives Statistics < https://www.aph.gov.au/Parliamentary_Business/Statistics/House_of_Representatives_Statistics>.

17. See also Calabresi (n 1).

18. JE Finn, ‘Sunset Clauses and Democratic Deliberation: Assessing the Significance of Sunset Provisions in Antiterrorism Legislation’ (2010) 48(3) Columbia Journal of Transnational Law 442; Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Edinburgh University Press, 2004) 51; Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in the Age of Terrorism (Yale University Press, 2006) 80.

19. Indeed, a legal system which lacked the means for legal change would be positively defective: ‘[i]t is characteristic of a legal system that new legal rules can be introduced and old ones changed or repealed by deliberate enactment’: HLA Hart, The Concept of Law (Oxford University Press, 1997) 175.

20. Which presently run to 11 929 pages. This and the figures that follow pertain to the current PDF versions of the statutes prepared by the Office of Parliamentary Counsel and published on the Federal Register of Legislation and are correct as at 31 October 2018: Federal Register of Legislation <https://www.legislation.gov.au>.

21. There are eight other statutes beginning with the phrase ‘Income Tax’ alone, and of course the A New Tax (Goods and Services Tax) Act 1999 (Cth), which is 736 pages long and has tens of related statutes.

22. See, eg, the Migration Agents Registration Application Charge Act 1997 (Cth), the Migration (Health Services) Charge Act 1991 (Cth), the Migration (Sponsorship Fees) Act 2007 (Cth) and the Migration (Visa Application) Charge Act 1997 (Cth).

23. Preparing these statistics alone was instructive: I updated them several times over the course of working on this article, and each time, the statutes listed typically grew.

24. ‘Reducing Complexity in Legislation’ (Document Release No 2.1, June 2016, Australian Government Office of Parliamentary Counsel) 2 (‘Reducing Complexity in Legislation’).

25. Ibid 5. The Office of Parliamentary Counsel also noted that it contained ‘no subsection headings, a number of very long sentences, sub-subparagraphs, definitions and extensive cross-references’. The provision still contains 32 subsections.

26. Paul Yowell, ‘Legislation, Common Law and the Virtue of Clarity’ in Richard Ekins (ed), Modern Challenges to the Rule of Law (LexisNexis NZ, 2011) 101, 118.

27. See, eg, the Social Security Act 1991 (Cth), which as at 25 October 2018 contains 50 definitional sections (ss 3A–23), most of which run to several paragraphs. Part 15 of the Native Title Act 1993 (Cth) is another striking example.

28. Reducing Complexity in Legislation (n 24) 6–7.

29. (2012) 87 ALJR 131.

30. (2012) 248 CLR 378. See also New South Wales v Williamson (2012) 87 ALJR 154, and further the discussion of R v Hughes (2000) 202 CLR 535 in Section III.

31. [2011] NSWCA 136.

32. Rubin describes this as a difference between ‘transitive’ and ‘intransitive’ legislation (see Rubin (n 4) 380) as I explain below.

33. [2017] 250 FCR 474 (‘ARJ17’).

34. Ibid 487 [50]–[51].

35. Specifically ss 46A and 195A. The following refers to the legislation as it stood at the time considered in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319.

36. As confirmed in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 347 [59].

37 Section 198AB(2). Section 198AB empowers the Minister to designate another country as a ‘regional processing country’; s 198AD permits ‘unauthorised maritime arrivals’ to be removed to a designated regional processing country.

38. See Carmel Meiklejohn, Fitting the Bill: A History of Commonwealth Parliamentary Drafting (Office of Parliamentary Counsel, 2011), 213–14, 238–9, 268–9.

39. At the very least, legislation may be regarded as less interesting than the common law: as Andrew Burrows put it, ‘[c]ases are fun’, in large part due to the ‘immediate human interest supplied by the facts’, whereas ‘statutes are perceived to be dully, dry and difficult’: Burrows (n 1) 232.

40. FA Hayek, Law, Legislation and Liberty (University of Chicago Press, 1973) vol 1, 72–3, 124–44. Hayek acknowledged there were instances in which legislation was appropriate, but these do not seem relevant here. See also Jeremy Waldron, ‘Legislation and the Rule of Law’ (2007) 1(1) Legisprudence 91, 95. Of course, there have also been those who have taken the opposite position, arguing that the common law is antithetical to the rule of law. See, eg, Jeremy Bentham, Truth Versus Ashurst; or, Law As It Is, Contrasted with What It Is Said to Be (R Carlile, 1823); Jeremy Bentham, Of Laws in General, ed HLA Hart (Athlone Press, 1970) and further Gerald J Postema, Bentham and the Common Law Tradition (Oxford University Press, 1986).

41. Jeremy Waldron, The Dignity of Legislation (Cambridge University Press, 2009) 9; Yowell (n 26) 122–3.

42. Allan Beever, ‘The Declaratory Theory of Law’ (2013) 33(3) Oxford Journal of Legal Studies 421.

43. Waldron (n 41) 12.

44. Waldron (n 40) 101–2.

45. This may not fully capture the natural law tradition, but even those who subscribe to that school of thought accept the place of human agency within the legal system.

46. A v Hayden (No 2) (1984) 156 CLR 532.

47. Hart (n 19) 202.

48. Fuller (n 6).

49. Raz, The Authority of Law (n 5) 210.

50. Martin Krygier, ‘Why the Rule of Law is Too Important to Be Left to Lawyers’ (2012) 2(2) Prawo i Więź (Law & Social Bonds) 30.

51. Raz, The Authority of Law (n 5) 218. See also Martin Krygier, ‘The Rule of Law: Legality, Teleology, Sociology’ in Gianlugi Palomblla and Neil Walker (eds), Relocating the Rule of Law (Hart Publishing, 2009) 45.

52. Raz, The Authority of Law (n 5) 224.

53. A point which Rubin emphasises: (n 4) 377.

54. Though even if we accept that the ordinary member of the public is the intended audience of this type of communication, it is still questionable whether they are ‘listening’: Heidi Hurd, ‘Sovereignty in Silence’ (1990) 99(5) Yale Law Journal 945, 977–81. Below, I argue that even if some statutes are not intended to communicate directly to the public, their complexity will inevitably have consequences for the public.

55. Rubin (n 4) 374–5. See also Hart (n 19) 28; Scott Shapiro, Legality (Harvard University Press, 2011) 64; Philip Mullock, ‘Nullity and Sanction’ (1974) 83(331) Mind 439.

56. Rubin (n 4) 372–4. Others have also made the point that different statutes have different audiences: see Meir Dan-Cohen, ‘Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law’ (1984) 97(3) Harvard Law Review 625, 626–30; Colin Diver, ‘The Optimal Precision of Administrative Rules’ (1983) 93(1) Yale Law Journal 65, 76–7; Yowell (n 26) 116–17 and literature discussed therein.

57. Rubin (n 4) 372.

58. Ibid 374.

59. Ibid 380–5.

60. Ibid 405.

61. Ibid 407.

62. Ibid 405.

63. Ibid 406.

64. Reducing Complexity in Legislation (n 24) 1–2.

65. Rubin’s focus—and that of this article—is executive agencies. However, it is likely that other intermediaries play a crucial role in translating statutes and communicating the broader content of the law to the public. These would include the media, public intellectuals and other organisations such as community legal groups and unions.

66. See Australian Securities and Investments Commission, Regulatory Guides (20 October 2014) <https://asic.gov.au/regulatory-resources/find-a-document/regulatory-guides>.

67. Taxation Administration Act 1953 (Cth) sch 1 ch 5 div 358 (public rulings), div 359 (private rulings). Private rulings are made on application: s 359-10. The Commissioner may only decline to make a private ruling in certain circumstances: s 359-35(2). The Commissioner is also empowered to make oral rulings: div 360.

68. Ibid div 357–60(1).

69. Ibid div 357–70.

70. Bellinz Pty Ltd v Commissioner of Taxation (Cth) (1998) 84 FCR 154, 169. Previous iterations did not state that rulings were legally binding. As the Australian Taxation Office (ATO) stated in a since withdrawn ruling: ‘Taxation Rulings do not have the force of law and…each decision affecting the taxation liability of a taxpayer can only be made in the light of the established facts of particular transactions. Moreover, no conduct on the part of the Taxation Office can operate as an estoppel against the operation of taxation legislation (see Federal Commissioner of Taxation v Wade (1951) 84 CLR 105, 116–17 (Kitto J).’ However, it is questionable whether Parliament can empower the ATO to make legally binding rulings. This issue is discussed below.

71. Taxation Administration Act 1953 (Cth) div 357–5(1).

72. Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Government Action and Government Liability (Lawbook, 6th ed, 2017) 389.

73. In particular, the precise form of the statement may inform how it is treated by administrative law doctrine. See further Jason NE Varuhas, ‘In Search of a Doctrine: Mapping the Law of Legitimate Expectations’ in Matthew Groves and Greg Weeks (eds), Legitimate Expectations in the Common Law World (Hart Publishing, 2017) 17; Paul Daly, ‘A Pluralist Account of Deference and Legitimate Expectations’ in Matthew Groves and Greg Weeks (eds), Legitimate Expectations in the Common Law World (Hart Publishing, 2017) 101.

74. Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Re Minister for Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 22 (McHugh and Gummow JJ); A-G (NSW) v Quin (1990) 170 CLR 1, 17 (Mason CJ) (‘Quin’); Annetts v McCann (1990) 170 CR 596, 605 (Brennan J). See also Aronson, Groves and Weeks (n 72) 388. Estoppel may be available against government actors performing non-governmental functions (see, eg, Verwayen v Commonwealth (1990) 170 CLR 394) but this exception is not relevant here.

75. See especially Re Minister for Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 36 [111]–[113] (Hayne J); Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 658 (Gummow, Hayne, Crennan and Bell JJ); Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 34–5 [28]–[30] (Kiefel, Bell and Keane JJ), 343 [61] (Gageler and Gordon JJ). In contrast, in the United Kingdom the legitimate expectations engendered by executive action may receive procedural or in certain circumstances substantive protection: R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213. See also Mark Elliott, ‘From Heresy to Orthodoxy: Substantive Legitimate Expectations in the United Kingdom’ in Matthew Groves and Greg Weeks (eds), Legitimate Expectations in the Common Law World (Hart Publishing, 2017) 217. While the US does not have a directly analogous doctrine, if an executive agency departs from its own precedent without prior justification it will likely be found to have abused its discretion: Richard J Pierce, Administrative Law Treatise (Wolters Kluwer, 5th ed, 2010) 1037. See, eg, Atchision, Topeka & Santa Fe Railway Co v Wichita Board of Trade, 412 US 800, 808, 32 (1973). See also Greater Boston Television Corp v FCC, 444 F2d 841, 852 (DC Cir, 1971). As to the divergent treatment of legitimate expectations more broadly, see Matthew Groves and Greg Weeks (eds), Legitimate Expectations in the Common Law World (Hart Publishing, 2017).

76. See Aronson, Groves and Weeks (n 72) 300–1; Greg Weeks, Soft Law and Public Authorities: Remedies and Reform (Hart Publishing, 2016) 120–4; Searle v Commonwealth [2019] NSWCA 127, see especially [249]–[254] (Basten JA). As Basten JA makes clear, the application of this principle depends on the scope of the power conferred. The result would differ if the statute in question required the decision-maker to act in accordance with a policy direction of the responsible Minister: see, eg, CPCF v Minister for Immigration and Border Protection (2013) 255 CLR 514.

77. This would depend on the construction of the empowering statute. See Aronson, Groves and Weeks (n 72) 391; Adam Sharpe, ‘Policy as a Mandatory Relevant Consideration: A Reflection on Jacob v Save Beeliar Wetlands (Inc)’ (2017) 90 AIAL Forum 98.

78 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

79. See, eg, Jacob v Save Beeliar Wetlands [2016] WASCA 126.

80. See, eg, Bellinz v Federal Commissioner of Taxation (1998) 84 FCR 154, 167 (Hill, Sundberg and Goldberg JJ); Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121, 130 (Pincus J); Dilatte v MacTiernan [2002] WASCA 100, [61]–[63] (Malcolm CJ).

81. For example, Matthew Groves explains that ‘[t]here have been many cases in which applicants for refugee status have complained that different members of the [Refugee Review Tribunal] have reached different conclusions about the same country information in cases that seem to have no material difference. The Federal Court has rejected the suggestion that there may be legal error in the differing conclusions reached in such cases’: Matthew Groves, ‘Substantive Legitimate Expectations in Australian Administrative Law’ [2008] 32(2) Melbourne University Law Review 470, 505–6. Groves suggests that this may be because refugee decision-making is simply too complex for the courts to sensibly apply an equality principle—somewhat ironic, in the context of the present discussion.

82. Aronson, Groves and Weeks (n 72) 389. A similar view has been expressed in the US: see Heckler v Community Services of Crawford County, 467 US 51 (1984) 60.

83. I describe this as a more secure foundation, but this is not to say the point is incontrovertible: see further the discussion of deference below.

84. Quin (n 74) 35–6 (Brennan J). In 2001, now High Court Justice Stephen Gageler stated that this passage had ‘come to be endorsed by all current members of the High Court with the possible exception of Kirby J’: ‘The Legitimate Scope of Judicial Review’ (2001) 21(3) Australian Bar Review 279, 279. See also City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5, 153 [43] (Gleeson CJ, Gummow, Kirby and Hayne JJ) (‘Enfield’).

85. See also Stephen Gageler, ‘Deference’ (2015) 22 Australian Journal of Administrative Law 151, 154; Enfield (n 84)153 (Gleeson CJ, Gummow, Kirby and Hayne JJ), 158 [59] (Gaudron J); Quin (n 74) 35–6 (Brennan J). Boughey explains that, while in Enfield the plurality did not reject deference expressly, ‘the clear implication’ to be drawn from their analysis ‘is that it does not fit in the Australian Constitutional context’: Janina Boughey, ‘Re-Evaluating the Doctrine of Deference’ (2017) 45(4) Federal Law Review 605 and cases discussed therein.

86. In addition to the case law discussed below, see Week’s discussion of the limits to which misstatements by public authorities may give rise to an action in negligence: Greg Weeks, ‘Estoppel and Public Authorities: Examining the Case for an Equitable Remedy’ (2010) 4(3) Journal of Equity 247. While this may provide an important form of protection in some circumstances, it would be difficult to argue that (for example) providing guidance based on a mistaken reading of the relevant statute amounted to a lack of reasonable care. There is also a scheme established under the Public Governance, Performance and Accountability Act 2013 (Cth) which permit members of the public to apply for compensation if they suffer loss as a result of the actions of a Commonwealth entity, but only if those actions amount to ‘defective administration’.

87. Re Bevillesta Pty Ltd [2011] NSWSC 417 [29]. As the Court acknowledged here, it may give weight to the executive’s view; the result is that the courts’ interpretation will always prevail when there is a difference of opinion, which is the point with which I am concerned.

88. Though this case did not concern the income tax rulings system, the decision in Macquarie Bank Limited v Federal Commissioner of Taxation [2013] FCA 887 tends to support that view.

89. The constitutional foundation of this rule is said to be that the Australian Constitution only confers jurisdiction on the High Court to hear ‘matters’: Re Judiciary 1903-19020; Navigation Acts 1912-1920 (1921) 29 CLR 257. A similar result appears to be mandated by the Courts’ interpretation of statutory judicial review jurisdiction: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230. In this respect, as others, Australian doctrine appears to differ from that of other jurisdictions. For example, UK courts have been willing to make a declaration as to the ‘correctness’ of an executive actor’s public statement of the meaning of a statute: Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112. See further Kristen Walker, ‘Judicial Review of Governmental Publications’ (Paper presented at the Australian Institute of Administrative Law National Conference, Sydney, 27–28 September 2018).

90. ARJ17 (n 33) 487 [50]–[51].

91. ‘Corporate Law: The Challenge of Complexity’ (1992) 2(1) Australian Journal of Corporate Law 1, 1.

92. (2002) 213 CLR 401, 453 [126], quoting Re E W Hawkins (1948) 49 SR (NSW) 114, 118.

93. ‘Simplification: Enough to Give You a Complex’ (1991) 26(5) Taxation in Australia 244.

94. Rubin (n 4) 384–5, 395.

95. Ibid 396–7.

96. For a more recent (and controversial) exploration of the topic, see Aaron Patrick, ‘In the Federal Court, Speed of Justice Depends on the Judge’ Australian Financial Review (online), 25 October 2018 <https://www.afr.com/business/legal/in-the-federal-court-speed-of-justice-depends-on-the-judge-20181014-h16mk9> and Aaron Patrick, ‘Who Will Judge the Judges?’, Australian Financial Review (online), 25 October 2018 <https://www.afr.com/business/legal/who-will-judge-the-judges-20181024-h171su> in which Patrick compared and implicitly critiqued the time taken by Federal Court judges to write their judgments—and the marked variations between various judges’ ‘speed’. To be clear, I am not endorsing this mode of ‘ranking’ judges, merely indicating that the speed of judicial decision-making is an issue of public concern.

97. In other jurisdictions, there is some empirical research to substantiate this kind of claim—albeit in relation to judges’ ability to ascertain the limits of their own powers. As Burrows explains, in the UK the law relating to criminal sentencing ‘is so difficult to find and understand that, in a random survey of 262 cases reaching the Court of Appeal (Criminal Division), it was found that in it over a third the judge has mistakenly passed an unlawful sentence’: Andrew Burrows, Thinking About Statutes: Interpretation, Interaction, Improvement (Cambridge University Press, 2018) 113.

98. See also Raz, The Authority of Law (n 5) 216–17.

99. Chevron USA Inc v Natural Resources Defense Council Inc, 468 US 837 (1984); City of Arlington v FCC 133 S Ct 1863, 1880 (2013) (Roberts CJ).

100. Marbury v Madison 5 US (1 Cranch) 137 (1803) (Marshall CJ).

101. Pierce (n 75) 160–1, 163. See similarly Larry Alexander, ‘Goldsworthy on Interpretation of Statutes and Constitutions: Public Meaning, Intended Meaning, and the Bogey of Aggregation’ in Lisa Burton Crawford, Patrick Emerton and Dale Smith (eds), Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy (Hart Publishing, 2019) 5. Alexander distinguishes between ‘norms that are rules and norms that are standards’, and explains: ‘When those with authority to enact legal norms enact standards, they are entrusting other actors—citizens, administrators, judges—to engage in first-order practical reasoning within the interstices of existing rules. That reasoning is not interpretation. Interpretation is at an end when the interpreters conclude that the authorities enacted a standard. That is the original intended meaning of the norm. Giving substance to that standard is not itself interpretation, however’ (at 7–8).

102. Adrian Vermeule, Law’s Abnegation: From Law’s Empire to the Administrative State (Harvard University Press, 2016) 52–3. See also Rubin (n 4) 388–9, 397; Mistretta v United States 488 US 361 (1989), 372 (‘our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives’). As these passages suggest, it is also necessary in the US to square deference with the (underenforced) constitutional rule against the delegation of legislative power.

103. See Pereira v Sessions 138 S Ct 2105 (2018) (Kennedy J), and cases cited therein. See also Gary Lawson, ‘The Rise and Rise of the Administrative State’ (1994) 107(6) Harvard Law Review 1231; Cass Sunstein et al, ‘Judicial Review of Administrative Action in a Conservative Era’ (1987) 39(3) Administrative Law Review 353, 366–71; Stephen Breyer, ‘Judicial Review of Questions of Law and Policy’ (1986) 38(4) Administrative Law Review 363, 372; Philip Hamburger, Is Administrative Law Unlawful? (University of Chicago Press, 2014).

104. See Quin (n 74) 37 (Brennan J).

105. See Australian Communist Party v Commonwealth (1951) 83 CLR 1, 187 (Dixon J); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531, 582 [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

106. See, eg, the observations made by the former Commonwealth Ombudsman John McMillan in ‘Ten Challenges for Administrative Justice’ [2010] 61 AIAL Forum 23.

107. Ekins (n 7) 113.

108. (2000) 202 CLR 535.

109. Ibid 563 [59].

110. Ibid [60]. As this makes clear, the proliferation of statutes and the complexity of their drafting raises questions about the proper approach to statutory interpretation, as does the broader claim that statutes do not attempt to ‘speak’ to the people. Though important, I do not explore those questions here. It should also be noted that Kirby J was in dissent here, which may cast a particular light upon his Honour’s comments.

111. Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, especially 137–8 [18] (Gummow and Hayne JJ).

112. See Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69], 382 [71].

113. Toni Walsh, ‘Complexity Through Process—Finding Common Solutions to Common Problems’ [2018] 3 Loophole 9, 11.

114. Ibid 10. Another example was identified in the Fighting Words report, which acknowledged significant overlap between various statutory provisions which criminalised sedition: Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia, Report No 104 (2006).

115. The imperative to avoid this position was articulated in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514, 564–5 [141] (Hayne and Bell JJ).

116. Justice Stephen Rares, ‘Legality, Rights and Statutory Interpretation’ (Speech, Australian Government Solicitors Administrative Law Conference, Canberra, 20–21 June 2013) [57]–[58].

117. Rubin (n 4) 399.

118. This idea of path-dependence in legal design is explored, albeit in a constitutional context, in Rosalind Dixon and David Landau, ‘Tiered Constitutional Design’ (2018) 86(2) George Washington Law Review 438.