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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
4 See generally Cheryl Saunders, 'Apples, Oranges and Comparative Administrative Law'
 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.