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Administrative Review Council - Admin Review |
Stephen Gageler SC[*]
When is an action taken in fact characterised in law as an exercise of statutory power subject to judicial review? The answer suggested is where a statute attaches to the action legal consequences for the rights of another, but only if the action is of a nature or quality that falls within limits prescribed expressly or by implication in the statute.
Four years ago, at the National Conference of the Australian Institute of Administrative Law, I presented a paper that examined the modern jurisprudence of the High Court on the topic of jurisdictional error.[1] The starting point for the paper was the now often repeated statement of Brennan J in Attorney-General (NSW) v Quin. The statement refers to a ‘repository’ of a power, conferred either by statute or the prerogative, and goes on to define the province of judicial review in terms limited to ‘the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power’.[2]
The thesis of my earlier paper was that the content of judicial review is most profitably recognised as being that determined by the legislature in its formulation of the law by which the limits (explicit or implicit) of the statutory power of the ‘repository’ are set and by which the exercise of the statutory power is governed. The traditional grounds of judicial review, I argued, are in truth no more than the default position to be applied in the absence of a legislative intention to define differently the limits of the statutory power or jurisdiction of the ‘repository’.
This present paper constitutes a ‘prequel’ to the 2001 paper. It examines the modern jurisprudence of the High Court on a topic logically anterior to the topic of jurisdictional error. It explores the circumstances in which a person or body of persons will be properly identified as the ‘repository’ of statutory power so as to be capable of falling into jurisdictional error. The answer it suggests is not simply where the legislature has attached a legal consequence to an action of the person or body. More precisely, the answer is where the legislature, expressly or by implication, has placed a limit or qualification on the nature or quality of the action of the person or body to which it attaches a legal consequence. The unifying theme is legislative intention.
Ours is a constitutional system of parliamentary democracy founded on the twin pillars of the common law and the separation of judicial power.
In a constitutional system founded on the common law ‘everybody is free to do anything, subject only to the provisions of the law’.[3] The underlying premise is that a person has freedom to do what is not prohibited. Save for those few vestiges of extraordinary executive power we call ‘the prerogative’, the only provision of the law that can limit the freedom permitted by the common law is one enacted by the legislature.
A legislative provision limiting the freedom permitted by the common law can be absolute or conditional. If it is conditional, the imposition or the removal of the limitation might or might not involve some action on the part of another person. Where the imposition or removal of a limitation is conditional on some action on the part of another person, that other person exercises ‘power’ over the person whose freedom is thereby limited. The power comes not from the capacity to take action: it comes from the legal effect given to that action by statute.
The same is true of a legislative provision making the conferral of some statutory entitlement or benefit conditional on some action on the part of another person. That other person exercises power over the person who seeks the entitlement or benefit. Again, the power comes not from the capacity to take action but, rather, from the legal effect given to that action by statute.
Although there is a borderland in which judicial and administrative functions overlap, in a constitutional system founded on the separation of judicial power it is the exclusive province of the judiciary to declare and enforce the provisions of the legislation that confers such power. Indeed, the unique and distinguishing feature of judicial power is the power to make a binding and authoritative declaration of the legal consequences of an action, including whether or not legal effect is given to that action by statute.[4]
The scope of the judicial power to make a binding and authoritative declaration is limited to the legal consequences of an action. A judicial determination that an action is ‘void’ or ‘invalid’ or a ‘nullity’ is not a determination that the action has not occurred: it is a determination that the action has no legal consequence under statute. Thus, in Minister for Immigration v Bhardwaj Gaudron and Gummow JJ expressed the following view:
it is neither necessary nor helpful to describe erroneous administrative decisions as ‘void’, ‘voidable’, ‘invalid’, ‘vitiated’ or, even, as ‘nullities’. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made.[5]
The nature of judicial power is such that, although in some circumstances the grant of relief is discretionary, a court faced with a properly constituted suit within the limits of its jurisdiction cannot act or be prevented from acting other than by way of declaration and enforcement of the law as judicially determined. In R v Hickman; Ex parte Fox & Clinton, Dixon J said that it was ‘quite impossible’:
for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition. [6]
The language and context of this statement make clear that his Honour was referring to the original and entrenched jurisdiction of the High Court under s 75(v) of the Constitution in matters calling into question the validity or legality of some action of an ‘officer of the Commonwealth’. More recent cases have served only to underline the centrality of that provision in the federal constitutional structure.
Yet the jurisdiction of the High Court under s 75(v) of the Constitution has also been placed in a broader context. Its entrenchment of judicial supervision of the legality of Commonwealth officers’ actions has been seen as a manifestation of the separation of judicial power effected by Chapter III of the Constitution. Even more generally, it has been seen as an aspect of the ‘rule of law’ that has long been identified as forming an assumption on which the Constitution was framed.[7] Indeed, two Chief Justices have now adopted the description of ‘[j]udicial review’ as ‘neither more nor less than the enforcement of the rule of law over executive action’ and as ‘the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law’.[8]
In the context of a matter arising wholly within state jurisdiction, in Corporation of the City of Enfield v Development Assessment Commission Gaudron J made the following general statement:
Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligations to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less. [9]
That general statement has been repeated by other members of the High Court, and in one case it was described as expressing the ‘animating principle’ of judicial review.[10]
Given that an administrative power exists only because a legislative provision attaches a consequence to an action, the question that arises is how and in what sense will a legislative provision limit or govern the taking of the action and therefore the ‘exercise’ of the power?
Take the typical legislative formula: A shall not do B unless X does Y. A shall not transfer a lease unless X gives consent. A shall not drive a taxi unless X gives permission in the form of a licence. A shall not remain in Australia unless X gives permission in the form of a visa.
A court faced with the question of whether A can do B must determine, bindingly and authoritatively in the exercise of judicial power, whether X has done Y. The doing of Y by X is the fact—call it the ‘jurisdictional fact’—on which the right of A to do B turns.
Does the court have any role beyond simply determining as a fact whether X has done Y? The traditional answer to that question is ‘no’. The court is limited to determining the existence or non-existence of the jurisdictional fact Y. But in so doing the court must scrutinise carefully the action of X to determine whether it truly meets the statutory description Y.
On a traditional analysis—at least where X occupies an official government position—it has been treated as implicit in the statutory description of Y that the description encompasses only those cases in which X acts within certain bounds. So, for example, in R v Anderson; Ex parte Ipec-Air Pty Ltd[11] the High Court was concerned with a customs Regulation that explicitly did no more than prohibit the importation of an aircraft other than with the permission of the Director-General of Civil Aviation. Justice Kitto said:
Neither in the Regulations nor elsewhere is there to be found any express provision as to the principles which the Director-General is to observe, or the matters which he is to take into consideration, when deciding whether to grant or to refuse a permission to import aircraft. But from the fact that he is designated by the title of his office the intention appears, as it seems to me, that the power of lifting the general prohibition is not given him for his own benefit or otherwise than for purposes relevant to his office. It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself: Sharp v Wakefield [[1891] AC 173, 179]. The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed.[12]
This is consistent with the now frequently repeated statement of Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2):
where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. [13]
The Chief Justice continued:
It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide. [14]
The focus in each of these statements is not the ‘source’ of the power of X to do Y: it is whether what has been done by X has all the characteristics implicit in the statutory description of Y. It is taken for granted, at least in a case where X is a natural person, that X will have the capacity in fact to take action by way of giving or withholding consent or permission or forming or not forming an opinion or state of satisfaction. The question of jurisdictional fact is confined to determining whether the action taken in fact in the exercise of that inherent capacity meets the description of the action to which the legislation in question attaches a legal consequence. If so, the action taken in fact is a valid exercise of power having such force and effect as the statute in question gives to it. If not, the action taken in fact is without legal consequence for the purposes of that statute.
In many instances the existence of a power conferred by statute has been treated as carrying with it an implied duty to exercise the power. This is the point of the famous and often repeated statement of Earl Cairns LC in Julius v Bishop of Oxford:
There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. [15]
That principle as so expressed is not a free-standing rule of law but a guide to statutory interpretation. A power is taken to be coupled with a duty where, in all the circumstances, that is the intention to be discerned from the legislative conferral of that power.
Both the scope and the existence of a power conferred by legislation are therefore determined by the characteristics of the action to which a legislative provision attaches consequences. They are not determined by the character of the ‘repository’ alone. The repository may or may not be a governmental official and, if a governmental official, may or may not hold an office of the Commonwealth. The repository may or may not be a natural person. If a corporation, it may or may not be incorporated under general corporations law. Under Part 3 of the Migration Act 1958 (Cth), for example, a person is prohibited from giving migration assistance if not registered as a migration agent. Registration or the continuance of registration is in some instances made to turn on the action of the Migration Agents Registration Authority, which is in fact the Migration Institute of Australia Limited.[16] In the numerous cases in which actions of that body have been called into question in the Federal Court, it has rightly never been suggested that those actions lie beyond the scope of judicial review.
In state and territory legislation there are numerous examples of similar statutory powers that are capable of being exercised by privately constituted bodies.
The situation becomes more complicated when the action of a third person is also given a statutory consequence as a condition of an exercise of power by another.
Take the typical legislative formula: A shall not do B unless X does Y, and X cannot do Y unless C does D. A shall not remain in Australia unless X gives permission in the form of an entry permit, and X cannot give permission in the form of an entry permit unless the Minister has determined, by instrument in writing, that A has the status of a ‘refugee’ within the meaning of the relevant international convention. A shall not export wheat from Australia unless B consents, and B cannot consent without the prior written approval of a nominated company. The first of these examples is drawn from the subject matter of the decision of the High Court in Minister for Immigration and Ethnic Affairs v Mayer.[17] The second is drawn from the subject matter of the decision of the High Court in Neat Domestic Trading Pty Ltd v AWB Ltd.[18]
In Mayer the specific question dealt with was whether a decision of the Minister not to determine that a person had the status of a refugee was a decision ‘under an enactment’ for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth), so as to require the Minister to provide a statement of reasons on request. That question lies outside the scope of this paper. It is the mode of analysis adopted by the members of the High Court that has broader implications. In Griffith University v Tang, Mayer was said to be authority for the proposition that ‘a power to make a determination may be discerned as a matter of implication in a particular statute’.[19] The majority in Mayer saw the relevant legislative provision as impliedly conferring on the Minister the function of determining whether a particular person had refugee status.[20] The minority was unable to construe the provision in that way. According to Gibbs CJ (dissenting):
The Minister needs no statutory authority to execute an instrument in writing by which he determines that someone has the status of a refugee. If he does execute such an instrument, it will not have the force of law, although it may operate as sufficient (although it is not a necessary) direction to the Minister’s department to treat the person named as having the status of a refugee. [The provision] does not authorize the Minister to make any determination of the kind to which it refers, and does not give the determination any legal effect. The existence of the instrument in writing is an objective fact which, if the person in question is the holder of a temporary entry permit which is in force, will satisfy [the condition set out in the provision].[21]
To similar effect, Brennan J (dissenting) said:
A determination made for the purposes of the Convention … neither has nor requires a statutory authority or power to make it. Such a determination produces a legal effect in international law, but in domestic law it affects no rights, privileges or immunities though the fact that it is made … satisfies the condition.[22]
In Neat, although a question arose as to the application of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the fundamental question was whether the action of the nominated company, AWB International Ltd, in comprehensively refusing to give written approval for the export of wheat, could be said to have been beyond the scope of what was specifically authorised by the legislation, which made the giving of such an approval a precondition to the grant of consent to export by the relevant Commonwealth authority. According to the joint judgment of three members of the majority:
neither a decision of AWBI not to give approval to a consent to export, nor a failure to consider whether to give that approval, was open to judicial review under the AD(JR) Act or to the grant of relief in the nature of prohibition, certiorari or mandamus.[23]
The following is the crucial passage in the reasoning of the joint judgment:
Unlike the Authority, AWBI needed no statutory power to give it capacity to provide an approval in writing. As a company, AWBI had power to create such a document. No doubt the production of such a document was given statutory significance by [the legislative provision] but that subsection did not, by implication, confer statutory authority on AWBI to make the decision to give its approval or to express that decision in writing. Power, both to make the decision and to express it in writing, derived from AWBI’s incorporation and the applicable companies legislation. Unlike a statutory corporation, or an office holder such as a Minister, it was neither necessary nor appropriate to read [the legislative provision] as impliedly conferring those powers on AWBI.[24]
The joint judgment in Neat made clear that it was concerned only with the role of AWB International under the particular legislation. It noted, but said it did not deal with, the more general question of ‘whether public law remedies may be granted against private bodies’.[25]
In Griffith University v Tang, Neat was explained as a case in which ‘the statutory condition precedent was a decision made dehors the federal statute, although, once made, it had a critical effect for the operation of the federal statute’.[26]
The legislation considered in Neat was extreme but in its broad structure not unique. Not only in the form in which it was considered in Mayer but also in its current incarnation the Migration Act 1958 (Cth) and the Regulations made under it give rise to many circumstances in which the power to grant permission (now in the form of a visa) to enter or remain in Australia is conditional on the action of a third party, such as the certification of an academic qualification or the certification of a medical condition.[27]
What, then, is the criterion by reference to which an action that has a particular legal consequence by virtue of a statutory provision can be said on one hand to involve an exercise of power that is subject to judicial review or on the other to be dehors the legislative provision, notwithstanding that it might be given ‘critical effect’ by the provision?
In trying to answer this question, it is not particularly profitable to focus on the supposed ‘source’ of the power to take the action to which the legislative provision attaches a legal consequence. Just as the Minister in Mayer required no grant of statutory authority under domestic law to perform the action of executing an instrument in writing determining a person to have the status of a refugee, neither a Minister nor any other natural person requires a grant of statutory authority to execute an instrument in writing purporting to grant an entry permit or a visa or an export permit or a warrant for another person’s arrest or anything else. It is the consequence that the legislative provision attaches to the action—rather than the capacity of the person to take the action—that matters.
The majorities in both Mayer and Neat placed emphasis on the character of the person upon whose action the legislation fastened. Would it have made a difference in Mayer if that person had been not the Minister but the United Nations High Commissioner for Refugees? Would it have made a difference in Neat if that person had not been a company incorporated under the corporations legislation but instead a statutory corporation or the holder of an official position established by Commonwealth or state law? The reasoning in both cases suggests that it would, but as an indicium of legislative intention rather than as a determining factor.
The answer to the broadest question must lie in discernment of the nature of the action on which the legislation fastens. Does the legislation fasten on the bare occurrence or non-occurrence of the action to which the legislative provision expressly refers? Alternatively, is the legislative provision to be interpreted (if necessary, by implication) as requiring that the action not only occur but also have some or all of the particular qualities traditionally associated with administrative decision making?
Among the factors relevant to characterisation of the nature of the action on which the legislation fastens are doubtless the status of the person on whose action the legislative provision fastens, whether the action has any utility or serves any purpose apart from the legal consequence given to it by the legislative provision, and the existence or non-existence of express legislative criteria governing the circumstances in which, or the process by which, the action can be taken.
The exercise is, however, ultimately one of statutory interpretation. The role of a court is to discern the content and operation of the legislation in question as an aspect of determining the consequence in law, if any, of an action taken in fact.
There is nothing new about this approach. It is reflected in the general principle stated by Kitto J in Ipec-Air, which in turn derives from the expression of principle in the late-nineteenth-century decision of the House of Lords in Sharp v Wakefield.[28] It is reflected in the same principle stated in other words by Latham CJ in Hetton Bellbird Collieries. The value of those statements lies not only in their longevity but also in their expression of a strong presumption that a legislative provision is not ordinarily to be interpreted as attaching a consequence to an action that is arbitrary, capricious, irrational or not bona fide. That presumption ought not lightly be departed from.
The presumption probably now goes further. The modern view, expressed in the majority judgment in Plaintiff S157/2002 v Commonwealth, is that ‘[p]eople whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness’.[29] For a legislative provision to attach a consequence to an action taken without regard to procedural fairness might be said now ordinarily to require a clear expression of legislative intention—perhaps even rising to the level of ‘unmistakable and unambiguous language’.[30]
The subject matter of this paper can perhaps be described, at one level, as the ‘public–private’ distinction. Its burden, however, is to elide that distinction, at least in its application to statutory power.
The distinction between the ‘merits’ and the ‘legality’ of an action that is the subject of judicial review falls more readily into place when it is borne in mind that the limited purpose of judicial review is the declaration and enforcement of the law that defines, and thereby limits or governs, the action to which it attaches a consequence. So, too, the distinction between an action that is the subject of judicial review and an action that is not the subject of judicial review falls more readily into place when the same limited purpose is borne in mind.
The modern jurisprudence of the High Court on judicial review is for the most part a return to, a reinforcement of and an incremental development of the mode of analysis it has traditionally adopted well before the administrative law explosion of the 1970s. The traditional legal analysis of the High Court is, of course, incapable of yielding precise answers to the myriad problems that have emerged and will continue to emerge as processes of privatisation and corporatisation break down what might once have been seen as the somewhat clearer divide between private action and public administration. But it is capable of providing a stable and principled framework within which answers can be worked out.
[*] Stephen Gageler SC was a member of the Administrative Review Council from 8 December 2002 to 7 December 2005. This is an edited version of a paper presented at the National Conference of the Australian Institute of Administrative Law on 30 June 2005 in Canberra. An unedited version has already been published in Australian Bar Review (2005, vol. 26, p. 303).
[1] Gageler, S 2001, ‘The legitimate scope of judicial review’, Australian Bar Review vol. 21, p. 279; also in Creyke, R & McMillan, J (eds), Administrative Law: the essentials. Papers presented at the 2001 National Administrative Law Forum, p. 27.
[2] (1990) 170 CLR 1, 35–6.
[3] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 564.
[4] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 375–6.
[5] (2002) 209 CLR 597, 613 [46].
[6] [1945] HCA 53; (1945) 70 CLR 598, 616.
[7] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 193 (Dixon J).
[8] Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25, 70 (Brennan J); quoted in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492 [31] (Gleeson CJ).
[9] [2000] HCA 5; (2000) 199 CLR 135, 157 [56].
[10] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 107–8 [55] (Gummow and Gaudron JJ).
[11] [1965] HCA 27; (1965) 113 CLR 177.
[12] Ibid 188–9.
[13] [1944] HCA 42; (1944) 69 CLR 407, 430. See generally the cases referred to in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (1999) 199 CLR 135, 150 [34] [footnote 57].
[14] [1944] HCA 42; (1944) 69 CLR 407, 432.
[15] (1880) 5 App Cas 215, 222–3; applied, for example, in Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 52.
[17] [1985] HCA 70; (1985) 157 CLR 290.
[18] [2003] HCA 35; (2003) 216 CLR 277.
[19] [2005] HCA 7; (2005) 213 ALR 724, 742 [74].
[20] [1985] HCA 70; (1985) 157 CLR 290, 303.
[21] Ibid 295.
[22] Ibid 307.
[23] [2003] HCA 35; (2003) 216 CLR 277, 300 [64] (McHugh, Hayne and Callinan JJ).
[24] Ibid 298 [54] (McHugh, Hayne and Callinan JJ).
[25] Ibid 297 [49]–[50].
[26] [2005] HCA 7; (2005) 213 ALR 724, 745 [87].
[27] See, for example, Silveira v Australian Institute of Management [2001] FCA 803; (2001) 113 FCR 218.
[29] (2003) 211 CLR 476, 494 [37] (Gleeson CJ).
[30] (2003) 211 CLR 476, 492 [30] (Gleeson CJ).
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