Anthony Frank Mason came to the notice of many in the legal profession early in his career. He was admitted to the New South Wales Bar in 1951 and three years later had his first significant success in a constitutional challenge to provisions of the Bankruptcy Act, arguing that provisions purporting to give power to the registrar were contrary to Chapter III of the Constitution. Shortly afterwards he endeavoured to appear for Fitzpatrick in the proceedings before the House of Representatives against his client and Browne for contempt of Parliament but he was denied permission. He has said that that experience had a considerable effect on his outlook in respect of the principles of natural justice and the importance of the courts in protecting the citizen.

In 1964 he was appointed Solicitor-General of the Commonwealth. While he was the fourth person to hold that position (the others being Garran, Knowles and Bailey) he was the first Solicitor-General who was not also Secretary of the Attorney-GeneralIs Department. His main duties were, therefore, to act as counsel and adviser to the Commonwealth. This gave him insights into the institutions and organisation of government which no doubt played their part in the formation of his later judicial views on public law.

I begin by reminding you that in 1964 Sir Anthony was appointed Commonwealth Solicitor-General and that he continued in that office until 1969. This is a matter of some importance in charting his legacy in administrative law.

The Solicitor-General Act 1916 (Cth) (the 1916 Act) provided in s 2 for the appointment by the Governor-General of a person to be the Solicitor-General of the Commonwealth and to have such duties and functions as prescribed by or under any statute or as were delegated to him by the Attorney-General. The 1916 Act was repealed by the Law Officers Act 1964 (Cth) (the 1964 Act). This provided for the reconstitution of the office of Solicitor-General as the second Law Officer of the Commonwealth and made detailed provisions with respect to that office.

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.

This paper examines the relationship between so-called “merits review” of administrative decision-making, and “judicial review” of administrative action as that term is used in the title of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), for instance. In particular, it assesses and, in some respects, challenges the widely held view that there is a qualitative difference between merits review and judicial review. The main thrust of my argument will be that the differences between judicial review and merits review are not as stark as they are often portrayed. More provocatively, I will suggest that merits review can plausibly be described as judicial review in disguise.

Section I considers the constitutional underpinnings of merits review, and concludes that from a functional point of view, the exclusion of merits review from the judicial power of the Commonwealth is hard to justify. Section II examines various suggested distinctions between judicial review and merits review. Its main conclusion is that merits review is characterised by the power to exercise afresh the decisionmaking power invested in the original decision-maker.

“…the concept of the Crown is…deeply ambiguous.”

The ambiguity surrounding the concept of the Crown stems from the very many functions that it has been required to perform. One tends to forget that it is merely a type of hat, as Maitland and Lord Simon have observed, so bound up in the symbolism of that headgear has the word become. So important was this symbolism that Oliver Cromwell ordered that the regalia should be totally broken. This symbolism, in its turn, metamorphosed from representing the person of the king or queen to the artificial person of a corporate body, though it was not clear whether the Crown was a corporation sole or corporation aggregate. This corporate manifestation was needed to explain how it was that government continued without being dependent on the person of the sovereign. The Crown was the government occupying a role not dissimilar to the Holy Trinity, being the executive, judicial and legislative arms of government in one. Each of these arms to this day, both in England and Australia, does things in the name of the sovereign.

The principal focus of this essay is review of administrative decisions taken in the course of co-operation between governments in a federation or in a constitutional system with some federal characteristics.

The nature of the problem is illustrated, albeit in a different context, by a decision of Sir Anthony Mason in Tasmanian Wilderness Society v Fraser. The decision concerned an inter-governmental body, the Australian Loan Council. The Loan Council was established pursuant to the Financial Agreement, authorised by s 105A of the Australian Constitution. Its members were the Prime Minister and the Premiers of each of the States, or their nominees who were often, in practice, their Treasurers. As it then stood, the Financial Agreement provided for approval of the combined borrowing program of all Australian governments by the Loan Council, under weighted majority voting rules that gave the Commonwealth two votes and a casting vote. In practice, the Loan Council had long since assumed the function of approving the aggregate borrowing program for “larger” semi-government authorities as well, under the socalled “Gentlemen's Agreement”.

My subject is the extent to which the federal features of the Constitution restrict the power of Parliaments in Australia to legislate to confer discretionary powers on executive and administrative officers. I shall also examine the relevance of the ayailability and scope of administrative law remedies to that issue.

By “the federal features of the Constitution” I mean the distribution of powers between the Commonwealth and the States and provisions that deal with the relationship of the several States with each other and with the Commonwealth, such as ss 92 and 117; and those limitations on federal powers designed to prevent State favouritism, for example ss 99 and 51(ii), (iii).

I will not be dealing with the effect of the separation of the judicial power of the Commonwealth on the administration, under Chapter III of the Constitution. While an independent and separate central judiciary may be regarded as an essential ingredient of a federal state, its role and function extend further, providing a guarantee of the rule of law, which is, of course, just as applicable to non-federal states.

There was published in the University of Chicago Law Review some years ago a debate between Professor Dworkin and Judge Posner in the course of which Judge Posner drew a distinction between “top down” and “bottom Up” reasoning. He accused Professor Dworkin of being a “top downer” and professed himself to be an unashamed “bottom upper”.

Let me explain the distinction. In “top down” reasoning the judge or legal analyst adopts a theory about an area of law. The theory is then used to organise and explain the cases; to marginalise some and to canonise others. In “bottom up” reasoning the judge or legal analyst starts with the mass of cases or the legislative text and moves only so far as necessary to resolve the case at hand. According to Judge Posner “[t]he top downer and the bottom upper do not meet”.

The distinction is useful although the dichotomy is not complete. The “bottom upper” would be lost in the wilderness of the single instance without some organising theory.

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.

Administrative law forms an important part of public law. Public law also includes and is subject to the prescriptions of constitutional law. In shaping the principles of public law within the limits that necessarily apply to the judicial process, the courts, notably the High Court, have a large responsibility. There is the responsibility to ensure that the principles so shaped protect and enhance the form of democratic government for which the Constitution provides, as well as the rights and freedoms recognised by the common law, the common law being the foundation of the Australian Constitution. Professor Allars has succeeded in painting a broad picture of what that has entailed in the area of administrative law, so far as I was concerned.

Justice Gummow is unquestionably right in reminding us that judicial review has roots in the Constitution itself. Whether he is also right in saying that there has been a failure to realise this by some who teach administrative law not comparatively, but through English spectacles, I am unable to judge.