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2 of 2 DOCUMENTS: Australian Bar Review/(2003) 24 Aust Bar Rev No 2/Articles/The making of Australian administrative law (2003) 24 Aust Bar Rev 114

Articles
The making of Australian administrative law Professor Peter Cane* The foundations of Australian administrative law have British and American elements. In its first century the High Court has built on both of these elements, and in the process has made significant contributions to a distinctively Australian administrative law system. This article maps and assesses those contributions and speculates on future directions. The Australian system of government has mixed parentage -- on the one side, the British unitary constitutional monarchy, a product of 800 years of largely evolutionary institutional development; and on the other, the American federal republic, forged at a great constitutional moment in the revolutionary cauldron of the late eighteenth century. Australia's hybrid governmental system is reflected in its Constitution, and also (I suggest) in its administrative law. By exploiting and developing this heritage, the High Court has made central contributions to the development of a distinctively Australian administrative law characterised by a unique set of institutions and a strongly conceptual approach to substantive issues. The aim of this paper is to identify and evaluate those contributions. Section 1 examines the British heritage of Australian administrative law; and Section 2 surveys its US antecedents. Section 3 analyses the High Court's contribution by dividing the court's first century into three periods: 1903 to the late 1970s; the late 1970s to the late 1990s; and the late 1990s to the present. Finally, in Section 4, I speculate briefly about possible paths of development of Australian administrative law in the next decade or so. At the beginning of its second century, the court has an opportunity to make major renovations to the fabric of administrative law. Exploiting this opportunity would, however, require a move away from the austere legalism typical of the court's jurisprudence for most of its first 100 years.

1 The British heritage

1.1 Then and now in England As they are understood today, the prerogative writs of certiorari, mandamus and prohibition were products of judicial activism in the late middle ages. With the growth of central government in the nineteenth century the prerogative writs came to play an increasing role in the control of administrative, as opposed to judicial, power. The prerogative writs were the forms of action of public law. As such, they escaped the great procedural reforms of the nineteenth century that transformed the forms of action into causes of action and shifted the law's conceptual centre of gravity from procedure to substance. In 1938 the prerogative 'writs' became 'orders' obtainable by notice of motion; and in 2001 they were renamed as 'quashing orders' (certioriari), 'mandatory orders' (mandamus) and 'prohibiting orders' (prohibition). These public-law remedies have still not been assimilated into the general scheme of the Civil Procedure Rules. To this extent, English public law is still based on forms of action, but they now operate in a very different juridical environment. Dissatisfaction with the procedural and technical limitations of the prerogative orders in the mid-twentieth century led to increasing use of the declaration and injunction as public-law remedies. Having been developed by the courts of equity, these remedies, like the prerogative orders, were discretionary; but in other respects, they were hedged about by many fewer restrictions. In 1978, public-law declarations and injunctions were brought under the same procedural

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regime as the prerogative orders; and a single, remedy-neutral standing rule of 'sufficient interest in the matter to which the application [for judicial review] relates' was introduced. More importantly, applications for public-law remedies were channelled to a single forum which, in 2001, was renamed the Administrative Court. A perhaps-unanticipated result of this institutional specialisation was the development of a substantive, functionally-based, distinction between public law and private law. These rapid and fundamental changes in both the institutions and substance of English administrative law have almost eliminated the influence of its formulary remedial element. In English public law, remedies generally follow grounds of review; and standing requirements are no longer remedy-related. In Britain, as elsewhere, the emergence and growth of the welfare and regulatory state brought with them an elaborate system of administrative tribunals that adjudicated the many types of dispute to which the activities of large bureaucracies inevitably give rise. In its 1957 Report,1 the Franks Committee aligned administrative tribunals with the judicial branch of government in terms of their procedures and the ideal of independence from the executive. In the latter respect, Art 6 of the European Convention on Human Rights has fundamental implications for administrative decision-making processes in tribunals and more generally. The requirement, of a 'fair and public hearing ... by an independent and impartial tribunal' of claims against public agencies, applies to the activities of many administrative decision-makers who are not independent in the traditional judicial sense. The House of Lords, following the European Court of Human Rights, has adopted a general principle that the requirements of Art 6 may be satisfied, even if a first-tier decision-maker is not independent in the relevant sense, provided the decision is subject to a sufficient degree of scrutiny (appeal or review) by an independent tribunal. 1.2 In Australia The prerogative writs were part of the inheritance that the Commonwealth of Australia received at Federation.2 Not surprisingly, s 75(v) of the Constitution defines the entrenched judicial review jurisdiction of the High Court in terms of remedies -- mandamus, prohibition and injunction. Right from the start, judicial review actions under s 75(v) formed a significant part of the court's caseload, especially in industrial-law matters. Section 75(v) confers jurisdiction to hear applications for the named remedies, but it says nothing about the grounds on which that jurisdiction should be exercised. The court naturally made much use of relevant English case-law, which it developed to meet local needs. But the Australian system of judicial review remained, like its English counterpart, essentially remedial in orientation. Growing dissatisfaction with this state of affairs found expression, most importantly for present purposes, in the 1971 report of the Kerr Committee,3 which was followed up in this respect by the report of the Ellicott Committee on Prerogative Writ Procedures.4 The result was the enactment of the Administrative Decisions (Judicial Review) (ADJR) Act in 1977 and the conferral of extensive judicial review jurisdiction (both under s 39B of the Judiciary Act 1903 and the ADJR Act) on the newly created Federal Court. The ADJR Act decisively shifted the focus of judicial review from procedure to substance, and from remedies to grounds of review. Grounds of review are given pride of place in s 5, while a menu of remedies is set out in s 16; and whereas, under the common law, the scope of judicial review was a function of the availability of the various remedies, under the ADJR Act it is defined in terms of the subject of review, namely decisions of an administrative character made under an enactment. However, this reform did not touch the remedy-focused jurisdiction of the High Court under s 75(v) of the Constitution (or that of the Federal Court under s 39B of the Judiciary Act). As we will see later, this conceptual difference of approach between the ADJR Act regime and s 75(v) has recently assumed a significance that no-one could have foreseen when the new federal administrative-law system was introduced. 1.3 Rule of law There is one other aspect of the British heritage that deserves mention. The nineteenth century jurist, A V Dicey, was famously critical of the French system of droit administratif centred on the Conseil d'Etat.5 The Conseil was a product of executive suspicion of the judiciary.6 Dicey, by contrast, placed the 'ordinary courts' at the centre of the system of external control of administrative power in the name of the rule of law. Together with representative democracy and separation of powers, the rule of law provides the conceptual foundation of modern administrative law. Under Dicey's influence, rule-of-law thinking has dominated the English approach to judicial review for more than a century. In

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contemporary Australian law, Sir Gerard Brennan is perhaps the leading advocate of a rule-of-law justification for judicial review of administrative action;7 although the concept informs much of the High Court's judicial-review jurisprudence.8

2 The US heritage
2.1 Federal judicial power The Australian Constitution, like the US Constitution, embodies a formal separation of legislative, executive and judicial powers and institutions. Whereas the ideal of the rule of law is concerned with the relationship between governor and governed, the ideal of separation of powers is a principle of institutional design that recommends disaggregation of power and a system of checks and balances. The welfare and regulatory state presents two major challenges to the ideal of separation of powers: delegated legislation and administrative adjudication. In the United States, multi-functional regulatory agencies made both challenges, earning them descriptions such as 'governments in miniature' and the 'fourth branch of government'. In the United States, the non-delegation doctrine -- restraining conferral of legislative power on the administration -- soon ran out of steam in the face of the imperatives of big government.9 It also received short shrift from the High Court in 1931.10 Practicalities aside, the opposite result would have been hard to explain or justify given the institutional interpenetration of the legislature and the executive in a system of responsible government such as the Australian. The issues surrounding conferral of judicial power on executive agencies are rather more complex, and their examination alerts us to a central feature of the High Court's approach to separation of powers. The US Supreme Court has never prohibited statutory conferral of federal judicial power on non-judicial bodies. In 1856, it suggested that a distinction between public and private rights might be used to specify the permissible limits of 'outsourcing' of federal judicial power, adjudication of private rights -- but not of public rights -- being the sole (and traditional) preserve of judicial bodies.11 However, the court resiled from this suggestion in 1932 when it unanimously upheld a statute conferring power on the US Employees' Compensation Commission conclusively to decide questions of non-jurisdictional fact relevant to an assertion of private rights in a personal injury claim.12 The majority also held that the Constitution required decisions by non-judicial bodies on questions of jurisdictional fact to be subject to review by a 'constitutional' (ie, an Art III) court by way of a de novo hearing.13 The public-private distinction was further undermined in Northern Pipeline Construction Co v Marathon Pipe Line Co.14 Brennan J (speaking for a plurality of the Justices) argued that it is because public rights are creatures of Statute that Congress may commit the adjudication of such rights to non-judicial bodies, provided the constitutional requirements of due process are observed.15 So private rights, he said, may be dealt with in the same way, but only if they are creatures of statute. Consistently with this reasoning, the court held unconstitutional a provision that conferred on bankruptcy judges (who are not Art III judges) power to decide disputes about non-statutory contractual rights. Burger CJ and White and Powell JJ dissented on the basis that decisions of bankruptcy judges were subject to review by a federal court, and the arrangement did not raise any of the the separation of powers concerns underlying Art III. Their approach was adopted and developed by O'Connor J (writing for a seven-member majority) in Commodity Futures Trading Commission v Schor.16 Article III of the Constitution, the majority said, protects litigants' 'personal' interest in having claims decided by an independent tribunal, and a 'structural' principle that the power of the judicial branch should not be emasculated to the benefit of the executive. In protecting this latter interest, the appropriate approach is a flexible one that assesses the risk to the power of the judicial branch in the particular case, not one that depends on any distinction between public and private rights. The underlying issue of institutional design in these cases is, of course, precisely that which Dicey identified in his discussion of the French Conseil d'Etat:17 to what extent should the adjudication of disputes between citizen and citizen, and between the citizen and the state, be the exclusive province of the 'ordinary courts', and to what extent is it acceptable that this function be exercised by tribunals, government agencies, administrative courts, and so on? As the US jurisprudence shows, there are two ways of approaching this question, which might be called 'formal' and

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'functional' respectively. The formal approach identifies a class of disputes or issues that are the exclusive preserve of the judicial branch, and (subject to exceptions) prohibits the allocation of this class to non-judicial bodies. By contrast, the functional approach identifies the reasons for separation of judicial from executive power, and only insists on the allocation of particular disputes or issues to the judicial branch to the extent required by those reasons. As we will see later, the High Court has adopted a formal approach. 2.2 Institutional design The concern with institutional design that underlies the separation-of-powers ideal is reflected in various aspects of US administrative law. In US jurisprudence, 'due process' is understood in terms of preventing abuse of power. In Australian jurisprudence, by contrast, the requirements of natural justice are viewed primarily in terms of protecting individual rights. This helps to explain why Australian law recognises no general right of interested parties to be consulted in the process of making delegated legislation (because legislation is normally not addressed to particular individuals); and why, by contrast, US courts developed an elaborate common-law procedural code to regulate agency rule-making and, in that context, adopted an 'interest-representation' rationale for judicial review.18 In the jurisprudence of the US Supreme Court, the choice between narrow and broad standing rules is presented as an issue of institutional design: is it better that regulatory law be enforced by public agencies or by private individuals? In the High Court jurisprudence, by contrast, the choice is more related to the sorts of interests that courts ought to protect against government encroachment, thus echoing rule-of-law concerns. The institutional-design perspective can also explain perhaps the US Supreme Court's most famous administrative law decision: Chevron USA Inc v Natural Resources Defense Council Inc.19 The court held that where a statute regulating administrative-agency action is reasonably open to more than one interpretation, the court should defer to the agency's interpretation of the legislation. From an Anglo-Australian perspective, this decision runs contrary to the rule-of-law ideal: if there is any core judicial function, it is to decide what the law is. But from an institutional-design perspective it may be argued that in terms of their expertise and experience as well as their links with the political institutions of government, agencies are better equipped than courts to interpret statutes in a way that promotes the policy and purposes of the legislation. Whether this is a good argument or not, its focus on comparative institutional competence contrasts with the rights-based, rule-of-law thrust of the standard Anglo-Australian justification for allocating conclusive resolution of questions of 'law' (as opposed to questions of 'fact' and issues of 'policy') to the judicial branch.

3 The High Court's contribution to Australian administrative law

In the light of this discussion of formative influences in the Australian governmental and constitutional system, we are now in a position to assess the contribution of the High Court to Australian administrative law. For this purpose, the first century of the court's activities can be usefully divided into three periods: 1903 to the late 1970s; the late 1970s to the late 1990s; and the late 1990s to the present -- and beyond. An implicit theme of the analysis will be the interplay between the rule-of-law ideal, which informs many aspects of the court's approach to substantive principles of judicial review, and the ideal of separation of powers, which informs its approach to the institutions of administrative law. 3.1 The first 70 years
3.1.1 Constitution s 75(v)

The High Court is a creature of the Constitution, and the Constitution is the source of its jurisdiction. From an administrative-law point of view, the most significant provision is s 75(v), which confers on the High Court 'original jurisdiction' in 'all matters in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth'. In its terms, s 75(v) confers jurisdiction on the court but says nothing about the grounds on which that jurisdiction can be exercised. These are found in 'the general law'.20 We have seen that at the time the Constitution was drafted, the law of judicial review was remedy-based. Success in a judicial-review claim was conditional on choosing a remedy that was available against the particular respondent, in respect of the particular decision or (in)action, and for which the applicant had standing. What we would now call the 'grounds' of judicial review were

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inextricably intertwined with the law governing the availability of the various remedies. Each of the remedies named in s 75(v) had a long history; and in 1903 there was a complex body of common law surrounding them which the court could not ignore.21 In broad terms, it can be said that the High Court accepted the existing law subject only to such modifications as were considered necessary to accommodate the Constitutional environment in which the s 75(v) remedies were now operating.22 One significant modification concerned possible targets of the remedies. In England, 'superior' courts are not amenable to judicial review, whereas in Australia, superior federal courts23 are, being courts of limited jurisdiction.24 Thus, the phrase 'officer of the Commonwealth' has been held to include justices of superior federal courts. On the other hand, it has been held not to include a judge of an inferior court of a State invested with, and purporting to exercise, federal jurisdiction.25 So far as concerns the available grounds of review in s 75(v) suits, the thrust of the High Court's approach is captured in a much-repeated statement of Dixon J in Bank of New South Wales v Commonwealth (the Bank Nationalisation case)26 that 's 75(v) ... was written into the [Constitution] to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power'. This statement, of course, raises the further question of what amounts to 'excess of Federal power'. In this respect, the court did not, in this first period, make any truly distinctive contribution to administrative law. It adopted and elaborated well-established concepts of jurisdictional and non-jurisdictional error, well-established principles of natural justice,27 well-established principles governing the exercise of discretion, and so on -- in the context, of course, of determining questions about the availability of one or another remedy.28 So far as the grounds of review are concerned, no clear distinction was drawn between common law and statutory judicial review jurisdiction of State courts exercising State jurisdiction, statutory judicial review under Commonwealth legislation, and Constitutional judicial review under s 75(v).29 A major issue confronting the court was what to make of the fact that certiorari is not mentioned in s 75(v). This is important not only because certiorari performs a remedial function that no other remedy performs, but also because it is the only prerogative remedy that can be used in relation to non-jurisdictional errors -- namely, errors of law 'on the face of the record'. Sections 32 and 33 of the Judiciary Act give the court extremely broad remedial power. In the face of s 32 of the Judiciary Act, it would be difficult to argue that the court lacked power to award certiorari in the case of a 'bona fide' and 'colourable'30 claim for one of the remedies named in s 75(v).31 But the importance of s 75(v) is that it provides an avenue, for enforcing the Constitution and federal law against officers of the Commonwealth, that is not subject to the will of the legislature. As far as I can discover, the issue only floated to the surface in the late 1960s. In 1966 the court dismissed an application for prohibition and certiorari in relation to a decision that the beliefs of an army conscript, who claimed to be a conscientious objector, allowed him to perform non-combatant duties.32 Windeyer J queried whether the court had power to award certiorari 'as a substantive remedy not ancillary to some proceeding otherwise within the original jurisdiction of the court'.33 More interestingly, all of the Justices seemed to assume that the court had power to award certiorari for error of law on the face of the record. In Pitfield v Franki,34 another application for prohibition and certiorari, the court issued certiorari on the basis that it, rather than prohibition, was the 'appropriate order'. Barwick CJ's explanation for this conclusion35 was couched in terms of the respective nature of the two remedies and the common law rules about their availability. In all of these cases, the issue uppermost in the minds of the Justices appears to have been not whether the court had jurisdiction to award certiorari, but whether the non-Constitutional requirements for the availability of the remedy were met. In a comment on Pitfield v Franki, Mason J both raised the issue of the source of the court's jurisdiction, and questioned the basis on which certiorari was issued, given that the error in question appeared to be non-jurisdictional.36 In 1980, however, in an application for certiorari and prohibition in relation to a holding of contempt of court by the Family Court, the court awarded certiorari in preference to prohibition precisely because the Family Court's error was not jurisdictional.37 Gibbs, Stephen and Mason JJ were prepared to brush under the carpet doubts about the court's power to award certiorari. Murphy J thought that s 32 of the Judiciary Act gives the court power to award certiorari or a quashing order with similar effect. Aickin J was not happy with either approach and held that the court has power to award certiorari 'in a case in which prohibition would be available and in which certiorari is necessary in order to make more effective or complete the remedy which prohibition would provide'.38

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I have discussed this issue at some length not because it shows the High Court making a significant contribution to administrative law but because, on the contrary, it demonstrates how the Constitutional overlay of Australian administrative law can add to its technicality and remedial focus. It also shows how little progress was made in the first period of the court's life in resolving a question that, although technical, is of considerable importance to the role of the High Court in the administrative law system.
3.1.2 Judicial power and the AAT

The roots of what must be considered the court's most significant contribution to a distinctively Australian administrative law, not only in the first period of its life but to date, are found as far back as 1909. In Huddart Parker & Co Pty Ltd v Moorehead, Griffith CJ expressed the principle, thought to be implicit in the structure of the Constitution, that parliament has no power to invest the judicial power of the Commonwealth 'in any hands' other than those of a court established under s 72.39 The implications of literal application of this principle for the creation of administrative tribunals and the conferral of adjudicatory functions on the executive branch of government are obvious. As Isaacs J said in Federal Commissioner of Taxation v Munro:
if a legislative provision of the present nature [allegedly conferring judicial power on a non-judicial body] be forbidden, then ... [a]dministration must be hampered, and either injustice suffered or litigation fostered.40

Geoffrey Sawer's pithy headnote to the opinion of the Privy Council41 in the appeal from the High Court's decision in Munro neatly captures what was at stake: 'The Constitution does not forbid the creation of administrative tribunals'.42 Unlike the US Supreme Court which, as we have seen, has been prepared to find in the provision of appellate or supervisory review adequate compliance with the constitutional injunction to keep the judicial and executive powers separate, the High Court has sought to accommodate the necessities of the welfare and regulatory state primarily by distinguishing between functions that are the sole preserve of the judicial branch and functions that may be performed by either branch.43 The second main element of the court's interpretation of the ideal of separation of judicial power is to be found in R v Kirby; Ex parte Boilermakers' Society of Australia.44 This case added to the Huddart Parker principle, that the judicial power of the Commonwealth may be exercised only by a Chapter III court, the converse proposition that a non-judicial function may not be exercised by a Chapter III court unless it is incidental to judicial functions. Once again, some flexibility is injected into the rule by distinguishing between functions that are the sole preserve of non-judicial bodies and functions that may be performed by either judicial or non-judicial bodies. It was against this doctrinal background that the Kerr Committee was established in 1968 inter alia to 'consider what jurisdiction (if any) to review administrative decisions ... should be exercised by the proposed Commonwealth Superior Court ... the procedures by which review is to be obtained ... [and] the substantive grounds of review ...'. Two key arguments of the committee were that the remedial orientation of administrative law made it unnecessarily complex and technical, and that a new method of reviewing administrative decisions on their merits was needed. The basic thrust of Ch 4 of the Kerr Report is that most administrative decisions raise non-justiciable issues, and that reviewing the merits (as opposed to the legality) of such decisions is not a judicial function, and therefore cannot be committed to Chapter III courts.45 It was this view that underpinned the committee's recommendation of the establishment of an Administrative Appeals Tribunal (AAT), which was implemented in the Administrative Appeals Tribunal Act 1975 (Cth). The AAT was charged with what is called 'merits review'. The High Court's interpretation of the ideal of constitutional separation of powers has had profound effects on the institutional structure of Australian administrative law. On the one hand, the principle that judicial power may not be conferred on non-judicial bodies, coupled with the court's interpretation of the concepts of judicial power and judicial function, constrains the ability of parliament to create a flexible system of administrative adjudication.46 On the other hand, the principle that non-judicial power may not be conferred on judicial bodies, coupled with the Kerr Committee's understanding of the nature of administrative decision-making, led to the establishment of the AAT and the introduction

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into Australian law of a sharp distinction between merits review and judicial review.47 The AAT is a distinctively Australian institution, and it is arguably the High Court's most important (if indirect) contribution to Australian administrative law.
3.1.3 The ADJR Act

The other 'contribution' the High Court made in this first period to the development of administrative law is negative, but no less significant for that reason. The court inherited a complex, technical and remedially-focused system of judicial review. In its first 70 years it played a part in perpetuating that system not only in its s 75(v) jurisprudence, where it was constrained by the text of the Constitution, but also in its role as final court of appeal from decisions of State courts exercising common-law judicial-review jurisdiction. 48 The widespread judgment made by various bodies in the late 1960s and early 1970s, that the Australian judicial review system was in urgent need of reform, applied as much to the common law of the States as to federal judicial-review law. It was this judgment that inspired the second major reform proposal made by the Kerr Committee,49 which came to fruition in the Administrative Decisions (Judicial Review) (ADJR) Act 1977. The ADJR Act decisively re-oriented judicial-review law from remedies to grounds of review, at one stroke dissolving the tangled web of remedial law, that had dominated administrative law for so long, by redefining the availability of judicial review by reference to decisions of an administrative nature made under an enactment. 3.2 The late 1970s to the late 1990s
3.2.1 Grounds of review

By the late-1970s the conceptual framework of administrative law had been radically altered. The 1970s also saw changes of personnel on the court with the appointment, in 1972, of Sir Anthony Mason and, in 1975, of Lionel Murphy. Both brought with them fresh ideas and approaches. An early sign of new modes of thought is the 1980 decision in Australian Conservation Foundation Inc v Commonwealth of Australia.50 The issue was whether the foundation had standing to seek injunctions51 and other orders aimed at hindering the development of a tourist resort in Central Queensland. Although a remedially-oriented approach to standing is still in evidence -- the idea that standing requirements are remedy-specific is simply taken for granted -- the judgments show the Justices coming to grips with the substantive issue of the desirable role of citizens and interest groups in enforcing principles of administrative law. There are significant discussions not only of English cases but also of Canadian and US jurisprudence; and the proper role of the High Court in developing and changing the common law is firmly on the judicial agenda. The judgments in Onus v Alcoa of Australia Ltd (1981),52 focus entirely on the concept of a sufficient interest in the subject matter of the claim, and ignore the relationship between standing and remedy. Nevertheless, these decisions did not purge the Australian law of standing of its remedial orientation because the 'special interest' rule that they enunciate is not of universal application. For instance, it never applied to applications for prohibition. The court was not given another opportunity for a major exploration of standing until 1998 -- in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd.53 Although the majority judgment contains hints of a willingness to create a remedy-neutral law of standing, it also makes much of the equitable origins that distinguish the injunction from the prerogative writs. One can only regret that the judgments in this case are not alone in failing to provide a clear sense of the likely direction of development of the court's administrative-law jurisprudence. An area in which the court was particularly active in the 1980s and 1990s was natural justice.54 A major pre-occupation was what to make of the new-fangled concept of 'legitimate expectation' -- usually attributed to the arch-enemy of technicality, Lord Denning.55 Coming in the wake of the Franks Report in 1957 (in which administrative tribunals had been aligned with the judicial branch of government),56 the decision of the House of Lords in Ridge v Baldwin57 was seen as marking the beginning of a new era in which administrative adjudication would be fashioned in the image of court proceedings. The challenge it presented was how best to expand the requirements of natural justice to encompass the multifarious administrative activities of the welfare and regulatory state. One technique was to de-emphasise the curial associations of natural justice by reconceptualising it as procedural fairness. Another was to stress the

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long-established principle that the requirements of natural justice are flexible and, therefore, adaptable to decision-making contexts far-removed from the curial. A third was to argue that the requirements of natural justice did not protect only traditional 'common-law rights', such as property and contract, but also statutory benefits such as welfare payments and licences,58 the initial award and renewal of which was often a matter of discretion rather than entitlement; and what we would now call 'third-generation human rights' such as 'the right to earn one's living'.59 The term 'legitimate expectation' was first used to refer to such interests. Some Justices were sceptical that the concept of legitimate expectation added value to the basic principle that public functionaries who have power to make decisions affecting the interests of others must (subject to any relevant statutory provisions) act fairly.60 Nevertheless, 'legitimate expectation' became firmly entrenched in the court's jurisprudential lexicon, and proved particularly useful in situations where public authorities departed from undertakings, announced policies and well-established courses of conduct, without giving the person affected an opportunity to argue for the status quo.61 The court's most radical and controversial application of the concept is found in its 1995 decision in Teoh,62 which stands for the proposition that ratification of a treaty can give an individual a legitimate expectation that the government will act in accordance with the terms of the treaty and, hence, a right to argue that it should so act, even if the individual knows nothing of the treaty or its ratification. On the other hand, the court has declined to follow the English courts in recognising ('substantive') legitimate expectations of being treated in a particular way as opposed to being given the opportunity to argue for such treatment.63 The judicial activism of this middle period also found expression in expansions of the scope of judicial review to decision-makers hitherto considered beyond its reach. In the natural justice cases, the High Court for much of the time swam in the wake of English developments. But in extending judicial review into traditional no-go areas, the court was ahead of the game. It was not until 1984 that the House of Lords held that the reviewability of exercises of public power depends on the substance of the decision in question, not on the source of the power to make it.64 Already in 1981 the court had held that the fact that a statutory power was exercisable by a representative of the Crown, rather than a minister or some other public functionary, did not immunise it from judicial review.65 Mason J, foreshadowing the approach taken by the House of Lords three years later, argued that the principle underlying the traditional unwillingness of courts to review acts of the Crown, especially exercises of the prerogative, was that there are certain issues that the courts should leave to the executive -- the waging of war, for instance.66 In 1982, the court held that the power of the Victorian Governor-in-Council to issue a statutory licence to carry on insurance business had to be exercised in accordance with the requirements of natural justice.67 In South Australia v O'Shea in 1987,68 Mason CJ and Deane J expressed the opinion that the fact that a decision was made by Cabinet did not prevent the court examining the decision-making processs for compliance with rules of procedural fairness. The overall impression conveyed by the High Court's general administrative law jurisprudence in the 1980s and 1990s is that the remedially-oriented technicality and complexity of earlier years gave way to a politically and socially-alert concern with the proper role of the courts in providing an external check on the activities of the executive branch. The court, it seemed, was in sympathy and in tune with the spirit of the 1970s reforms.
3.2.2 Judicial power

The same cannot be said of its approach to constitutional separation of powers. In Brandy v Human Rights and Equal Opportunity Commission69 certain provisions of the Racial Discrimination Act 1975 (Cth) were held invalid on the ground that they vested judicial power in the commission, a non-judicial body. The basis for the decision was that determinations of the commission were analogous to decisions of a court in a criminal or civil matter, and that upon registration of a determination in the Federal Court, it had effect as if it were an order of the court, even though the respondent could apply to the court for a review of the determination, and even though the determination could not be enforced pending institution (or completion) of a review. In light of the discussion in 2.1 of the formal and functional approaches to separation of powers, the pertinent aspect of the judgments in Brandy concerns the review provisions. The Commonwealth's argument was that by virtue of the Federal Court's power of review, registration of the determination initiated rather than completed a judicial process. This argument was rejected for two reasons: first, the review was not an exercise of the Federal Court's original jurisdiction, but was in the nature of an appeal; and secondly,

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a registered determination had the effect of an order of the court even if the review process was not activated. It might be thought that these holdings give the careful drafter considerable scope for developing models of administrative adjudication that would escape the strictures of the Constitution by providing adequate recourse, by way of review, to a Chapter III court exercising the judicial power of the Commonwealth. On the other hand, Brandy can be read as a self-conscious refusal to adopt a more functional and less formal approach to the requirements of constitutional separation of powers. Brandy can be contrasted with Harris v Caladine70 in which arguments with a strongly functional flavour were used to support delegation of court-like functions to non-judicial officers. A noteworthy distinction between the two cases is that the repositories of power in Harris were officers of a Chapter III court, not members of an administrative agency.
3.2.3 The ADJR Act

Surprisingly, perhaps, the court was presented with few opportunities in this period to consider the operation of the ADJR Act. It told us that the Act was essentially a procedural measure designed to make it easier to apply for judicial review rather than to change the substantive law.71 On the one hand, therefore, the Act should be read as altering the common law grounds of review only to the extent that its language requires such an interpretation. On the other hand, s 16 -- dealing with remedies -- should be generously interpreted and applied,72 provided a ground for relief has been established.73 Section 13 of the ADJR Act embodies the important principle that effective accountability depends on the giving of reasons for decisions. In Kioa v West,74 the question was whether natural justice had to be observed in the making of a deportation order under the Migration Act 1958 (Cth). Earlier decisions of the court suggested a negative answer to this question; but the majority held that subsequent legislative changes fatally weakened the force of those decisions. One of those changes was the enactment of s 13, which was applicable to the decisions challenged in Kioa. Of course (as Gibbs CJ argued in dissent), a statutory obligation to give reasons for a decision on request does not directly support the imposition of a (non-statutory) obligation to observe procedural fairness in making the decision. However, the attribution by the majority of gravitational force to s 13 reflects unwillingness to allow basic considerations of justice to be hijacked by technicality, and a desire to renovate administrative law to bring it into line with changing ideas about the proper relationship between citizen and state.75 In this light, one can only marvel at the decision in Public Service Board of New South Wales v Osmond76 handed down two months after the decision in Kioa. Four of the Justices who sat in Osmond also sat in Kioa: Gibbs CJ (who dissented in Kioa), Wilson, Brennan and Deane JJ. The fifth judge in Kioa was Mason J, and in Osmond, Dawson J. The unanimous holding in Osmond was that there is no general common law duty to give reasons for 'administrative' decisions. Perhaps the most surprising argument for this reactionary conclusion, deployed by Gibbs CJ in his leading judgment, was that such a duty 'would undermine the rule ... that reasons do not form part of the record, for the purposes of certiorari, unless the tribunal chooses to incorporate them'.77 The key to understanding Osmond may lie in Gibbs CJ's frank admission that he had dealt 'at what may be regarded as tedious length' with a question, the answer to which he thought obvious and unarguable, 'in deference to the judgments of the majority of the [New South Wales] Court of Appeal', and in particular, the judgment of Kirby P, whose reasoning was analysed and rebutted by Gibbs CJ in great detail. It seems unlikely, even in the current climate of judicial caution, that the rule laid down in Osmond could survive a direct onslaught totally unscathed. The aspect of the ADJR Act on which the court has had most to say is its scope, which is defined in terms of decisions of an administrative character made under an enactment. One of the issues confronted by the court under this rubric is the reach of Commonwealth administrative law in a federal system.78 More importantly, however, the question of scope has been used to explore the proper role of courts vis--vis the executive in the system of checks and balances inherent in the constitutional ideal of separation of powers. For example, a provision that a determination of refugee status is a condition of the grant of an entry permit was read as conferring power to make the determination, rendering the determination a decision made under the provision.79 The court's major consideration of the issue, and its major contribution to the jurisprudence of the ADJR Act, is found in Australian Broadcasting Tribunal v Bond.80 The issues in the case revolved around the meaning of the term 'decision'

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and its relationship to the concept of 'conduct engaged in for the purposes of making a decision'. Three themes permeate Mason CJ's leading judgment. One is the need to navigate betweeen the Scylla of too little judicial review and the Charybdis of too much. On the one hand, the ADJR was part of a package of measures designed to improve accountability mechanisms; but on the other, judicial control of executive decision-making carries risks of unduly fragmenting, and reducing the efficiency of, the administrative process. A second theme is the need to establish a sound relationship between judicial review and merits review of administrative decisions81 especially in relation to questions of fact.82 A third theme is the relationship between the ADJR Act and the common law. In discussing the meaning of s 5(1)(f) of the ADJR Act ('error of law'), Mason CJ argued that the grounds of review in the Act should be understood in terms of their common-law counterparts as they existed immediately before the ADJR Act was passed. This third theme perhaps reflects a desire that the Act should not be interpreted in such a way as to fragment Australian administrative law by creating a distinctive substantive regime of federal statutory judicial review. On the other hand, tying the application of the ADJR Act to a 1977 baseline threatens just such fragmentation. This is particularly important in the light of developments, tracked in 3.3, which have revitalised judicial review under s 75(v) of the Constitution. On closer examination than it can be given here, Bond strikingly illustrates the complexity and technicality that has been introduced into Australian administrative law by the statutory codification of the grounds of review.83 It is as if the legal universe contains a fixed quantity of technicality, and if it does not attach to the law about remedies, it will show up in the law about grounds of review.84
3.2.3 The court and the tribunal system

The court has had even less opportunity to contribute to the development of the merits-review system than to that of the statutory system of judicial review.85 There are, however, two noteworthy dicta about the relationship between merits review and judicial review. One is Mason CJ's comment in Bond86 to the effect that the availability of merits review supports a relatively narrow interpretation of the scope of judicial review of findings of fact under the ADJR Act -- at least (it should be added) in cases where both forms of review are, in principle, available. The other is the explanation given by Mason CJ and Brennan J in Cunliffe v Commonwealth87 of the impact of the availability of merits review on the constitutionality of provisions conferring wide discretionary powers capable, in their terms, of being exercised for purposes foreign to any head of Commonwealth legislative power. The basic idea is that if review mechanisms are available to prevent statutory discretions being exercised for unconstitutional purposes, there is less reason to hold the provision conferring the discretion unconstitutional on the ground that the discretion is wider than the head of legislative power supporting it. This analysis has intriguing implications. For instance, it might be suggested that availability of review by a Chapter III court weakens the argument that prohibition of conferral of judicial power on non-judicial bodies is the only or best way of promoting the values expressed in the ideal of separation of powers. 3.3 The last five years or so With the benefit of hindsight it can be seen that land-clearing for the third phase of the court's life began quite early in the second. Ground-preparation began in 1992; formwork was put in place in 1998; the foundation stone was laid in 1999, and the edifice was topped out in 2003. Interior decoration continues. Despite the court's various efforts to discourage aggressive judicial review88 by stressing the proper limits of the judicial role and the distinction between merits review and judicial review, the Federal Court in the 1980s and 1990s entered into the spirit of the reforms of the 1970s with much more gusto than successive governments found acceptable, most notably in the area of immigration. The Migration Reform Act 1992 (Cth) was the first of a series of statutes designed (by the strategic use of privative clauses, for instance) to reduce the capacity of the Federal Court to interfere with immigration decision-making. In 1998, Murray Gleeson succeeded Sir Gerard Brennan as Chief Justice. At the risk of oversimplification, it might be said that the ideological centre of gravity of the 'Gleeson court' rests at a different point from that of the 'Mason court' of the period from 1987-1995.89 More importantly, perhaps, one can detect in many more-recent judgments a return to the more formalistic and less openly policy-oriented style of reasoning that is often associated with the first period of the court's life. In 1999 in the Abebe case, the court (by a 4:3 majority) held the scheme of the 1992 Migration Reform Act to be constitutional;90 and in 2003 it announced that a privative clause which

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purports to oust the court's judicial review jurisdiction under s 75(v) will not be read literally, but in such a way as to preserve the 'minimum provision of judicial review' entrenched in the Constitution.91 This series of events has ushered in a new dynamic phase of development in Australian administrative law. The 1999 decision in Abebe fundamentally realigned the institutional scheme put in place by the 1970s reformers. Under that scheme, the High Court was effectively relieved of most of its case-load under s 75(v) of the Constitution,92 and the Federal Court operated as the primary forum for judicial review of decision-making by Commonwealth agencies, subject only to a trickle of appeals to the High Court.93 The practical effect of the decision in Abebe was to revitalise the court's s 75(v) jurisdiction in relation to immigration decision-making. Judicial review under s 75(v) is, of course, not governed by the ADJR Act. The development of s 75(v) jurisprudence had been more or less in abeyance since the 1970s. Suddenly faced with a flood of applications under s 75 (v), the court needed to re-interpret that jurisprudence against the backgound of the previous 20 years of development of administrative law. Like the jurisprudence of the court's first period, the 'new common law' of Constitutional judicial review is remedy-focused and technical.94 The basic question in any case brought under s 75(v) is whether one of the named remedies is available. If so, unnamed remedies -- notably certiorari and declaration -- may also issue if this is necessary for the 'effective exercise' of the s 75(v) jurisdiction. Prohibition and mandamus are 'constitutional writs',95 not 'prerogative writs'; but still they are 'writs' (to be issued), not 'remedies' (to be granted). Grounds of judicial review are incidental to remedies. It is settled, for instance, that prohibition may issue for procedural unfairness. The basic principle is that s 75(v) is designed to ensure that officers of the Commonwealth do not exceed or fail to exercise their 'jurisdiction'.96 However, it has been suggested that the 'constitutional injunction'97 may not be confined to matters of jurisdiction. Difficult questions have been asked, but not answered, about the place of the concept of legitimate expectation in the remedial scheme of s 75(v).98 The distinction between the constitutional writs of prohibition and mandamus and the 'equitable remedy' of injunction remains important.99 For instance, prohibition may issue at the suit of a 'stranger', but an injunction will be awarded only to an applicant with a 'special' or 'material' interest. At the same time, parliament has wide power to create statutory remedial schemes incorporating generous standing rules.100 While it is clear that the judicial review jurisdiction of the High Court is constitutionally entrenched, it is also clear that parliament is free, within the limits of its enumerated legislative powers, to define the powers and duties of officers of the Commonwealth widely and in such a way as to reduce the possibility of successful judicial review applications.101 This interaction, between the statutory scheme under which a challenged decision is made by an officer of the Commonwealth and the provisions of s 75(v), is the driving force behind development of a new Constitutional administrative law. Fundamental to this process is the principle that s 75(v) jurisprudence is not frozen in time as at 1900, but can be developed to deal with new situations. Important, too, is the unsettling proposition that the scope and principles of judicial review under s 75(v) do not necessarily coincide with those at common law or under the ADJR Act.102 This raises the unattractive spectre of a trifurcation of Australian administrative law into common law, statutory and constitutional regimes, with all the complexity and confusion that such fragmentation would inevitably entail. So far as concerns the administrative law system more widely, despite stirrings of discontent,103 a radical reconsideration of the impact of the court's understanding of judicial power on administrative adjudication seems unlikely any time soon.

4. The future
Physical geography has been a significant factor in the cultural history of white settlement in Australia. But physical isolation is not the only type of distance. In the recent history of administrative law various factors have combined to remove Australia from the mainstream of developments in the rest of the common-law world. Four stand out. One is the unique system constituted by the Federal Court, the ADJR Act and the AAT. Although the transformation wrought by the ADJR Act paralleled similar developments in England (for instance), it also discouraged Australian judges from taking an open-textured, common-law approach to administrative law and encouraged a more technical style of reasoning focused on statutory interpretation.104 The establishment of the AAT fragmented administrative law by giving the distinction between judicial review and merits review a unique and rigidifying significance. A second factor

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contributing to 'Australian exceptionalism' is that the judicial review jurisdiction of the High Court is remedially focused, and contained in a document which is, by its very nature, tradition-bound.105 This makes it harder for the court to refashion the inheritance of the common law than it has been for English courts. A third factor is the lack of an Australian bill of rights. One only has to look at the impact the UK Human Rights Act 1998 is having to appreciate the potency of a bill of rights as a force for renovation of administrative law. Fourthly, the new Constitutional administrative law is informed by a strong commitment to conceptualism and historicism on the part of intellectually influential members of the Gleeson court. It is not impossible that, just as the English courts used the initially unpromising 1978 procedural reforms of the Supreme Court Rules to refashion English administrative law, s 75(v) could be used as a platform for an entirely new Australian administrative law, inspired by the spirit of the reforms of the 1970s but free of the constraints imposed by a set of detailed statutory provisions. For better or for worse, however, such an outcome seems unlikely in the foreseeable future.

* Research School of Social Sciences, Australian National University. 1 Report of the Committee on Administrative Tribunals and Enquiries, Cmnd 281, 1957. 2 They were, of course, received much earlier in the colonies that became the States. 3 Report of the Commonwealth Administrative Review Committee, Parliamentary Paper No 144 of 1971. 4 Parliamentary Paper No 56 of 1973. 5 In his Introduction to the Study of the Law of the Constitution, Macmillan, London, 1889. 6 L N Brown and J S Bell, French Administrative Law, 5th ed, Oxford, 1998, pp 44-7. 7 Eg, Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 70; 43 ALR 587. 8 Most recently Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. 9 S G Breyer et al, Administrative Law and Regulatory Policy, 4th ed, New York, 1999, pp 39-70. 10 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73. 11 Murray's Lessee v Hoboken Land and Improvement Co (1856) 18 How 272 at 284. 12 Crowell v Benson 285 US 22 (1932). 13 Brandeis J dissented on the issue of the intensity of review required by the Constitution. 14 458 US 50 (1982). 15 Compare the approach of the House of Lords discussed at the end of 1.1. 16 478 US 833 (1986). 17 There is a strand of rule-of-law reasoning in the High Court's jurisprudence that derives from the US rather than the British heritage: eg, Abebe v Commonwealth (1999) 197 CLR 510 at 560 per Gummow and Hayne JJ; 162 ALR 1. 18 R B Stewart, 'The Reformation of American Administrative Law' (1975) 88 Harvard LR 1669. 19 467 US 837 (1984). 20 Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 178 per Mason CJ; 127 ALR 21. 21 If only because its decisions were appealable to the Privy Council.

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22 See, eg, R v Wright; Ex parte Waterside Workers' Federation of Australia (1955) 93 CLR 528 at 540-2. 23 Except the High Court: Federated Engine Drivers' and Firemen's Association of Australasia v The Colonial Sugar Refining Company (1916) 22 CLR 103 at 117 per Isaacs, Gavan Duffy and Rich JJ. 24 Eg, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1. 25 R v Murray and Cormie; Ex parte Commonwealth (1916) 22 CLR 437. 26 (1948) 76 CLR 1 at 363. 27 I Holloway, Natural Justice and the High Court of Australia, Aldershot, 2002, Chs 1-4. 28 See, eg, R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-3 concerning mandamus. 29 Eg, regarding common law and statutory mandamus: see Royal Insurance Co Ltd v Mylius (1926) 38 CLR 477. 30 R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 26 per Gibbs J; 31 ALR 353. 31 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219 at [45] per Gaudron and Gummow JJ. 32 R v District Court of the Metropolitan Court of Sydney; Ex parte White (1966) 116 CLR 644. 33 Ibid, at 655. The court answered this query in the negative in R v Bowen; Ex parte Federated Clerks Union of Australia (1984) 154 CLR 207 at 211. 34 (1970) 123 CLR 448. 35 Ibid, at 459-60. 36 R v Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR 595 at 609; 6 ALR 707. In Philip Morris Inc v Adam P Brown Fashions Pty Ltd (1981) 148 CLR 457 at 477; 33 ALR 465, Barwick CJ expressed the view that Pitfield was a case of jurisdictional error. 37 R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 27-8 per Gibbs J; 31 ALR 353. 38 (1980) 147 CLR 15 at 34; 31 ALR 353. 39 (1909) 8 CLR 330 at 355. 40 (1926) 38 CLR 153 at 178. 41 Shell Company of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530. 42 G Sawer, Cases on the Constitution of the Commonwealth of Australia, Law Book Co of Australasia, Sydney, 1948, p 614. 43 This approach originated in the judgment of Isaacs J in Federal Commissioner of Taxation v Munro (1926) 38 CLR 153. This distinction has generated an extremely complex body of law: L Zines, The High Court and the Constitution, 4th ed, Butterworths, Sydney, 1997, ch 10. 44 (1956) 94 CLR 254. 45 Even though membership of a merits-review tribunal is not incompatible with being a Chapter III judge: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 17-18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ; 138 ALR 220. 46 Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 83 at 113 per Kirby J; 163 ALR 576. See also 3.2.2. 47 P Cane, 'Merits Review and Judicial Review: The AAT as Trojan Horse' (2000) 28 Federal LR 213. 48 A striking example from the first period of self-conscious impassivity in the face of an administrative decision that McTiernan J said was 'likely to be received with incredulity by the uninitiated' is Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492.

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49 See Kerr Report, ch 12. 50 (1980) 146 CLR 493; 28 ALR 257. 51 Concerning declarations see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11; Shop Distributive & Allied Employees' Association v Minister for Industrial Affairs of the State of South Australia (1995) 183 CLR 552; 129 ALR 191. 52 (1981) 149 CLR 27; 36 ALR 425. 53 (1998) 194 CLR 247; 155 ALR 684. 54 Another notable area of activity was freedom of information: Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505; Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39; 32 ALR 485. 55 In Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149. The High Court first discussed the concept in Salemi v MacKellar (No 1) (1976) 137 CLR 388. 56 See above n 1. 57 [1964] AC 40; [1963] 2 All ER 66. 58 On licences see FAI Insurances Ltd v Winneke (1982) 151 CLR 342; 41 ALR 1. 59 Sanders v Snell (1998) 196 CLR 329; 157 ALR 491. 60 Eg, Kioa v West (1985) 159 CLR 550 at 626-7; 62 ALR 321 and Annetts v McCann (1990) 170 CLR 596 per Brennan J; 97 ALR 177. 61 See, eg, Kioa v West (1985) 159 CLR 550 at 582-4 per Mason J; 62 ALR 321. 62 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; 128 ALR 353. The decision is perhaps better understood as a contribution to human rights law than to the law of natural justice. 63 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [67] per McHugh and Gummow JJ. 64 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 3 All ER 935. 65 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; 38 ALR 439. 66 (1981) 151 CLR 170 at 219-20; 38 ALR 439. See also Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219 at [42] per Gummow and Gaudron JJ. 67 FAI Insurances Ltd v Winneke (1982) 151 CLR 342; 41 ALR 1. 68 (1987) 163 CLR 378; 73 ALR 1. 69 (1995) 183 CLR 245; 127 ALR 1. 70 (1991) 172 CLR 84; 99 ALR 193. 71 Kioa v West (1985) 159 CLR 550; 62 ALR 321; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J; 66 ALR 299: s 5(2)(b) of the Act is 'substantially declaratory of the common law'. 72 Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637; 88 ALR 517; Minister for Immigration and Ethnic Affairs v Guo (1998) 191 CLR 559 at 598-600 per Kirby J; 144 ALR 567. 73 Johns v Australian Securities Commission (1993) 178 CLR 408; 116 ALR 567. 74 (1985) 159 CLR 550; 62 ALR 321. 75 The gravitational field of s 13 may be much wider than this: Cunliffe v Commonwealth (1994) 182 CLR 272 at 303 per Mason CJ; 331 per Brennan J; 124 ALR 120.

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76 (1986) 159 CLR 656; 63 ALR 559. 77 Ibid, at CLR 667. 78 Glasson v Parkes Rural Distributions Pty Ltd (1984) 155 CLR 234; 55 ALR 179. 79 Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290; 61 ALR 609; Chan Yee Kin v Minister for Immigation and Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412. 80 (1990) 170 CLR 321; 94 ALR 11. 81 This theme is central to the decisions in Craig v South Australia (1995) 184 CLR 163; 131 ALR 595 concerning errors of law, and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490 concerning failure to implement statutory purposes. Both rest on a distinction between decisions that are retrospectively 'invalid' (see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117) and decisions that are prospectively 'unlawful' (ie, unenforceable). 82 See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; 136 ALR 481. 83 See also Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; 190 ALR 402. 84 T H Jones, 'Judicial Review and Codification' (2000) 20 Legal Studies 517 at 535. 85 Rarely has the court been called upon to consider directly the powers of the AAT (still less of other merits-review tribunals); and on the occasions it has (eg, Repatriation Commission v O'Brien (1985) 155 CLR 422; 58 ALR 119; Minister for Immigration and Ethnic Affairs; Ex parte Pochi (1981) 149 CLR 139; 36 ALR 561), little of general significance has emerged. 86 (1990) 170 CLR 321 at 341; 94 ALR 11. 87 (1994) 182 CLR 272 at 303 and 331 respectively; 124 ALR 120. 88 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 372 per Kirby J; 180 ALR 1. 89 This shift has been documented in the area of tort law: H Luntz, 'Torts Turnaround Downunder' (2001) 1 Oxford University Commonwealth L Jnl 95. 90 Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1. 91 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. 92 There was a small number of cases against bodies, such as the Family Court, that were not amenable to the original jurisdiction of the Federal Court to issue prohibition, mandamus and injunction, under s 39B of the Judiciary Act 1903. 93 On the relationship between the High Court and the Federal Court, see R v Federal Court of Australia; Ex parte Pilkington ACL (Operations) Pty Ltd (1978) 142 CLR 113 at 126-7 per Mason J; 23 ALR 69; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; 188 ALR 1. 94 The leading case is Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219. 95 Certiorari is not a constitutional writ. 96 'Jurisdiction' and its antonym 'merits' are notoriously unstable concepts. Their application to fact-finding is particularly tricky: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. 97 Ie, the s 75(v) injunction: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [65] per McHugh and Gummow JJ. 98 And more generally in Australian administrative law: Ex parte Lam (2003) 195 ALR 502. 99 Enfield City Corporation v Development Assessment Commision (2000) 199 CLR 135; 169 ALR 400. 100 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; 169 ALR 616.

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101 Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 205 per Deane and Gaudron JJ; 127 ALR 21. 102 Eg, Abebe v Commonwealth (1999) 197 CLR 510 at 522 per Gleeson CJ and McHugh J; 568-9 per Gummow and Hayne JJ; 162 ALR 1. For instance: (1) at common law and, perhaps, in cases brought under ss 75(iii) and 76(i) of the Constitution (Plaintiff S157/2002 (2003) 195 ALR 24 at [80] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ), error of law on the face of the record is a ground of review, but not under s 75(v) (eg, Muin v Refugee Review Tribunal (2002) 190 ALR 601; but see above n 97 and text); and under the ADJR Act error of law is a ground of review regardless of whether the error appears on the face of the record. (2) '... where the jurisdictional error said to attract a remedy under s 75(v) is that of judges of a federal court, "jurisdiction" is not simply a concept of the general law. It is a constitutional term': Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland (1995) 184 CLR 620 at 653 per Toohey, McHugh and Gummow JJ; 132 ALR 198. (3) The precise status of 'unreasonableness' as a ground of review under s 75(v) is unclear: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; 162 ALR 577. 103 Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 83 at 113 per Kirby J; 163 ALR 576. 104 In Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; 190 ALR 402 at [16], Gleeson CJ referred to the 'surprisingly oblique manner' in which judges of the Federal Court disagreed with one another as a result of the need 'to express their conclusions in a fashion that brought them within the statutory rubric'. See also Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [162]-[168] per Kirby J. The decision in NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179 powerfully illustrates that the ADJR presents a significant barrier to the subjection of new forms of governance to rule-of-law values. 105 Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238 at [211]-[212] and Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; 188 ALR 1 at [173]-[175] per Kirby J.