‘Australian Exceptionalism’ in Judicial Review

DOI10.22145/flr.36.1.1
Publication Date01 Mar 2008
AuthorMichael Taggart
SubjectArticle
'AUSTRALIAN EXCEPTIONALISM' IN JUDICIAL REVIEW
Michael Taggart
The phrase 'Australian exceptionalism' is most often used these days in relation to
Australia's stand with the United States in the war against terror and the Australian
government's attitude to international human rights law.1 Australia is exceptional also
in being now the only English-speaking democracy without a judicially enforceable bill
of rights at the federal level.2 Although not unrelated, here I want to explore whether
the part of Australian public law that deals with judicial review of administrative
action is also 'exceptional'.3 I will identify the features that are commonly said to set
Australia apart from other common law jurisdictions and justify Australia taking a
different path in the elaboration of the principles of judicial review of administrative
action.
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Alexander Turner Professor of Law, Faculty of Law, University of Auckland, New Zealand.
mb.taggart@auckland.ac.nz>. A shortened version of this paper was delivered as the 10th
annual Geoffrey Sawer Lecture at the Australian National Museum on 9 November 2007. It
retains something of the conversational tone of a delivered lecture. I thank Kim Rubenstein
and the Centre for International and Public Law at Australian National University for
inviting me. As far as I know any Australian administrative law, it is due to what I have
learnt from the writings of a large number of Australian legal scholars, too many to name. I
would be remiss, however, if I did not record long-standing intellectual debts to Mark
Aronson, Peter Bayne, Enid Campbell, Peter Cane, Robin Creyke, Matthew Groves, John
McMillan, Dennis Pearce and Cheryl Saunders. That does not mean any of them will
necessarily agree with what I say here. It would be truly exceptional if they did.
1 See, eg, Dianne Otto, 'From "Reluctance" to "Exceptionalism": The Australian Approach to
Domestic Implementation of Human Rights' (2001) 26(5) Alternative Law Journal 219. See
also in relation to the US, Michael Ignatieff (ed), American Exceptionalism and Human Rights
(2005). The phrase also crops up in Australian economic and labour market analyses. See
Geoffrey Brennan and Francis G Castles (eds), Australia Reshaped: 200 Years of Institutional
Transformation (2002).
2 Brian Galligan and F L Morton, 'Australian Exceptionalism: Rights Protection without a Bill
of Rights' in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting
Rights without a Bill of Rights: Institutional Performance and Reform in Australia (2006) 17; Nick
O'Neill, Simon Rice and Roger Douglas, Retreat from Injustice: Human Rights Law in Australia
(2nd ed, 2004) 1.
3 To some extent I am treading ground well covered by Peter Cane: see Peter Cane, 'The
Making of Australian Administrative Law' (2003) 24 Australian Bar Review 114. I have to
admit I chose my lecture topic in ignorance of this piece — which also explains the
omission of the institutional Festschrift from Michael Taggart (ed), An Index to Common Law
Festschriften: From the Beginning of the Genre up to 2005 (2006). At the end of the piece, Peter
Cane refers to 'Australian exceptionalism' in relation to judicial review: Cane, 133.
2 Federal Law Review Volume 36
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This is a very large and complex topic and I will have to skip quickly and
selectively over the terrain; no doubt, this will entail a degree of superficiality and
caricature. I approach this task as a common law comparativist from a small place with
an interest in the intellectual history and development of Anglo-Commonwealth
administrative law. I acknowledge at the outset that the idea of a nation's
jurisprudence in any area of law being exceptional is problematic because it
presupposes there is a norm elsewhere against which it can be measured, compared
and judged. This is problematic for at least three reasons. First, a nation's public law is
a reflection of the distinct history and evolution of that society and this can make
comparative study of public law more challenging than in relation to private law.4
Secondly, in former colonies such as Australia and New Zealand, if the law of the
former imperial power — the United Kingdom — is taken as the norm or the
comparator then this can result in a form of 'recolonialisation' of the legal mind and
imagination.5 Thirdly, it might be thought to presuppose a unified and uniform
common law for the Commonwealth; something that if it ever existed in the
hegemonic heyday of Privy Council appeals no longer does.
The common law emanating from all the common law jurisdictions I will be
looking at — Australia, the UK, New Zealand and Canada6 — has 'persuasive'
authority in the other countries.7 So, notwithstanding the difficulties, it seems to me
useful to examine the ways Australian administrative law is out of step with some or
all of these other common law countries, and to identify the 'distinctive' features
(perhaps even exceptional features) that are said to explain that and to make a start to
see whether those explanations hold water.
I use the phrase 'administrative law' in the narrow sense of 'judicial review of
administrative action'. As everybody knows there is far more to administrative law
these days than litigation in the Courts. This is especially so in Australia, the home of
the so-called 'new Administrative Law' package of the 1970s — which at the federal
level ushered in the Administrative Appeals Tribunal system, the office of
Ombudsman, codified the grounds of review and reformed judicial review procedures
in the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'), established
the Federal Court (which has become the dominant administrative law court in
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4 See generally Cheryl Saunders, 'Apples, Oranges and Comparative Administrative Law'
[2006] Acta Juridica 423; Andrew Harding, 'Comparative Public Law: A Neglected
Discipline?' in Ian Edge (ed), Comparative Law in a Global Perspective: Essays in Celebration of
the Fiftieth Anniversary of the Founding of the SOAS Law Department (2000) 101; John Bell,
'Comparing Public Law' in Andrew Harding and Esin Örücü (eds), Comparative Law in the
21st Century (2002) 235; Edward Eberle, 'Comparative Public Law: a Time That Has Arrived'
in Ulrich Hübner and Werner F Ebke (eds), Festschrift für Großfeld zum 65.Geburtstag (1999)
175; David Nelken (ed), Comparing Legal Culture (1997).
5 I owe the term 'recolonialisation' to James Belich, Paradise Reforged: A History of New
Zealanders: From the 1880s to the Year 2000 (2001) 29.
6 I realise this concentration on the former imperial power and selected so-called 'white'
settler colonies is open to the charge of ignoring the contribution of the other former
colonies in Africa, the Mediterranean, West Indies and Asia. See Upendra Baxi, 'Book
Review' (2004) 14 Law and Politics 799, 804. All I can say is that space constraints preclude a
full review of the jurisprudence of courts from around the entire common law world.
7 See generally H Patrick Glenn, 'Persuasive Authority' (1987) 32 McGill Law Journal 261.

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