In 2008, Michael Taggart famously described Australian administrative law as ‘exceptional’. The description has stuck — and it has a hint of the pejorative. It captures a certain sense of frustration if not disapproval: that Australian administrative law has failed to keep pace with international developments, that it is overly technical, that it is, quite simply, dry. Let us accept that all this is true. Even so, there seems to be little that can be done about it, as most of the ‘exceptional’ features of Australian administrative law appear to be caused by the specificities of the Australian Constitution, which can only be amended by an onerous process that includes a referendum. Moreover, Australian administrative law may provide something of a model to those who believe that judicial review ought to be confined. This post explores two unique features of Australian administrative law, and the ways in which they constrain the powers of the courts to invalidate administrative actions.

Australian administrative law and human rights

Australian administrative law has not been affected by the adoption of a national Bill of Rights, not least because we do not have one — or at least, not one that confers new and novel interpretative powers on the courts. The Australian Constitution is one of the few that lacks a comprehensive statement of individual rights or freedoms. On the whole, it is a prosaic and lawyerly text, which says very little about the relationship between the individual and the State. It does impose important limitations on the legislative power of the Commonwealth, and that of the States, but by world standards those limitations are thin. They were primarily designed to assuage the jealousies of the former colonies (now the Australian States), and thus prevent inter-state discrimination, or else ensure the proper functioning of the Federation. Within these limits, it is accepted that Australian Parliaments have plenary power. The High Court of Australia will often state that the misuse or abuse of that power is to be guarded against by the political process, and not the courts.

In 2011, the federal Parliament did enact a statutory “bill of rights”. However, it is a novel one. It is not a “strong” model of rights protection of the kind found (for example) in the United States. It does not prevent Parliament from enacting rights-restricting laws, or require administrative decision makers to act compatibly with rights.  Nor is it a “dialogue” model, of the kind enacted in the UK and elsewhere. Indeed, the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) does not confer any new or additional powers on the courts whatsoever. It is entirely self-policing. It directs parliamentarians to table a statement of each proposed law’s compatibility with the listed rights (and establishes a new parliamentary committee to supervise them), but does not impose any legal sanctions for failing to do so, let alone for enacting legislation which is contrary to those rights. As such, the Act is best described as a unique “parliamentary rights” model of protecting rights . It is a design that takes seriously the claim that Parliament can be trusted to legislate compatibly with rights. It attempts to enhance Parliament’s capacity to do so, without involving the courts.

This should not be taken to suggest that the Act is without its flaws. It has significant weaknesses. But while the Act could undoubtedly be improved, it is doubtful that it could be replaced altogether  — or at least, not by a dialogue model of rights protection of the kind enacted in the UK.

Dialogue models typically empower courts to make a declaration, if a statute cannot be interpreted in a way that is rights-compliant. These declarations trigger certain political obligations, but they do not have any legal consequences: they do not determine the rights or interests of the parties before the court, and they do not render the statute in question invalid. In Australia, such a power would be described as “non-judicial”, and it is well-established doctrine that non-judicial powers cannot be conferred on Australia’s federal courts. For the same reason, it is quite clear that Australia’s federal courts could not be given power to change the meaning or effect of legislation in order to ensure that it is rights-compliant (as s 3(1) of the Human Rights Act 1998 (UK) was found to do). The position at the State level is somewhat more complex.

Judicial Review and the Rule of Law

Australia also differs from the UK in that our written Constitution clearly gives the High Court jurisdiction to review the actions of federal officers. For example, s 75(v) states that ‘[i]n all matters: …. in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction.’ Being constitutionally conferred, this jurisdiction is entrenched. Thus the federal Parliament clearly cannot prevent judicial review (in the circumstances described in s 75(v)) by way of a “privative” or “ouster” clause.

The entrenched jurisdiction of the High Court is increasingly described as an essential element of the rule of law, as are other components of the Constitution. This was not always the case. References to the rule of law were infrequent in the past, but now pepper much High Court case law. In this respect, Australia is not unique. Across the common law world, it seems that the rule of law is being rebranded: moving out of the philosophy textbooks and into the courtroom. This might be taken as a sign that the Australian High Court is starting down the path travelled by its counterparts in the UK, Canada and India, which have hinted (if not held) that this concept called the rule of law imposes new and expansive limitations on legislative power.

However, it is doubtful how far the High Court can travel down this road — at least not without radically upsetting many established rules of constitutional law and interpretation. Justice Dixon did once state that the rule of law ‘forms an assumption’ of the Constitution: a statement which has been repeated with apparently increasing frequency by Australian commentators and courts. But Dixon J also warned against confusing the ‘unexpressed assumptions’ that the framers of the Constitution may have had with the legal meaning of that text. And of course, Dixon J is best known for advocating the legalistic style of constitutional interpretation to which the High Court has remained largely devoted ever since. On this approach, the power of Australia’s Parliaments are subject to no limitations besides those expressed or implied by the text or structure of the Constitution. Our courts recognise “fundamental common law rights”, and protect them from legislative incursion via the presumption of statutory interpretation known as the principle of legality. But there is little to no support for the idea (advocated by UK scholars such as TRS Allan) that certain rights associated with the rule of law are so fundamental that Parliament can never limit them. Contra Allan, it is accepted that the common law of Australia must conform to the Constitution, and not the other way round.

For its part, the Australian High Court has given very little indication of what exactly it understands the rule of law to mean, or its place in the Australian constitutional framework. However, the phrase appears to be being used in a relatively thin sense, as the case law concerning judicial review demonstrates. Judicial review is described as the enforcement of the rule of law, but the law here means that laid down in the Constitution, or else enacted by Parliament. It does not connote broader notions of fairness or justice. As Brennan J put it, in what is often cited as the canonical statement of the purpose and scope of judicial review in Australia:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.

This is not altered by the fact that the High Court is given judicial review jurisdiction by the Constitution. Section 75(v) of the Constitution may guarantee the High Court’s ability to ensure that officers of the Commonwealth do not exceed the legal limits of their power. However, it is for Parliament to enact the law which determines what those limits are. Indeed, the High Court insists that not all the legal limits of statutory power will be judicially enforced. This is because Australia retains the distinction between jurisdictional and non-jurisdictional errors of law.

This distinction used to be applied in other common law jurisdictions, but most of them have now abandoned it, in substance if not form. A jurisdictional error of law is one that Parliament intended to invalidate the underlying decision. A non-jurisdictional error of law is one that Parliament did not so intend. In somewhat counter-intuitive terms, a non-jurisdictional error of law is one which the decision-maker had legal authority to make. This distinction constrains the scope of judicial review. While non-jurisdictional errors of law can still be reviewed by the courts, they do not attract the full range of remedies. Furthermore, Parliament can prevent judicial review on non-jurisdictional grounds, whereas judicial review on jurisdictional grounds is constitutionally entrenched. The High Court insists that the task of categorising an error of law as jurisdictional or otherwise is one of statutory interpretation. Therefore, it is Parliament who determines the jurisdictional limits of statutory power — and thus the gateway to the entrenched jurisdiction of the High Court.

This reveals a great deal about the relationship between Parliament and the courts. It concedes that there may be legitimate reasons for Parliament to empower some decision makers to err in law, and thus that we should not presume that all legal errors require the intervention of the courts. However, it is increasingly rare for the courts to classify an error of law as non-jurisdictional in nature. So while there is no definitive list of jurisdictional errors, it seems possible to say that that concept has expanded over time. And though it is ostensibly up to Parliament to determine the jurisdictional limits of statutory power, that position is complicated by the approach to statutory interpretation advocated by the current High Court (exemplified in cases such as Lacey v Attorney-General (Qld) (2011) 242 CLR 573, and critically analysed by other contributors to this Project).

While the High Court’s approach to statutory interpretation may have changed, it arguably remains committed to a more fundamental principle, which must continue to constrain the scope of judicial review. That is, Australia’s courts still concede that the scope of statutory power is determined by statute. While the courts might fill Parliament’s silences, or presume that generally worded conferrals of administrative power are subject to implied limitations, they accept that they cannot rewrite a statute. That acceptance is deeply rooted in Australian judicial culture, and it has a constitutional foundation: to rewrite a statute is to exercise legislative (not judicial) power, which a Chapter III court cannot do.

Thus it is still accepted doctrine that Parliament can empower an administrative decision maker to proceed in a manner that is procedurally unfair, even if his or her decision is apt to affect an individual’s rights or interests. Parliament could authorise an administrative decision maker to act unreasonably, or in a manner that is biased. Indeed, if taken to its logical conclusion, it would seem that Parliament can give plenary power, free from any legal limitations of the kind that the courts could enforce. The High Court has from time to time questioned whether this could be done. But if there are limits on the scope of administrative power that Parliament is capable of conferring, they must be found in the text and structure of the Constitution — and for that reason, they too are likely to be ‘exceptional’.

Lisa Burton Crawford
Monash University

This post draws on research to be published in The Rule of Law and the Australian Constitution (Federation Press, forthcoming)