Between form and Substance: Minimising Judicial Scrutiny of Executive Action

Date01 December 2017
Published date01 December 2017
Subject MatterArticle
Mark Aronson*
The privative clause is dead, but there are other ways of reducing meaningful judicial
scrutiny of government illegality. Pushed to t he extreme, these threaten to hollow out
judicial review’s much-vaunted promise of protecting the rule of law, even on such a
basic issue as the interpretation of an Act of Parliament. Other mechanisms for judicial
supervision have also become more fragile. These include collateral challenge, and the
potential for holding public officers to account through tort liability and criminal
responsibility. ASIO officers, for example, have prospective immunities from tort law
and criminal responsibility. Courts can act upon government evidence kept entirely
secret from the opposing party. This article asks whether there is any stopping point for
Acts that effectively remove government officers from legal controls.
When it comes to judicial review of administrative action, the High Court holds these
truths to be self-evident. First, judicial review is here to stay. It is a constitutionally
entrenched jurisdiction of both the High Court and the State Supreme Courts.
Secondly, what is entrenched is more than just a jurisdiction. We are told that it is no
mere formalism; it is a matter of some substance. We have, indeed, an entrenched
minimum provision of judicial review.
Thirdly, judicial review’s essential warrant, according to Brennan J, is to declare and
enforce the law’s limits to the exercise of public power.
Quoting a canonical passage
from the judgment of Marshall CJ in Marbury v Madison,
his Honour said in an extended
passage that has itself achieved canonical status in Australia, ‘ It is, emphatically, the
province and duty of the judicial department to say what the law is.
Most Americans
* Law Faculty, University of New South Wales. I am grateful to this journals anonymous
reviewers, and to Sean Brennan, Matthew Groves, Simon Halliday, Michael Legg, Keith
Mason, and Greg Weeks, for their comments and help.
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 (Gaudron, McHugh, Gummow,
Kirby and Hayne JJ).
Attorney General (NSW) v Quin (1990) 170 CLR 1, 35.
5 US 87, 111 (1803).
Attorney General (NSW) v Quin (1990) 170 CLR 1, 35.
Cf H Monaghan, ‘Marbury and the Administrative State’ (1983) 83 Columbia Law Review 1.
520 Federal Law Review Volume 45
have confined that passage to constitutional law, as opposed to judicial review of
administrative action for breach of valid statutory law,
but Brennan J was using
Marbury in that latter (and wider) context.
This leads to speculation as to the constitutional basis of a fourth proposition (whose
relationship to the third proposition has yet to be explained), namely, that Australian
constitutional law allows non-judicial bodies to make non-jurisdictional errors of law. If
jurisdictional error flows only from statutory interpretation, one must then ask whether
there might be constitutional limits to Parliaments competence to legislate that of some
of its provisions may be misinterpreted without affecting the validity of either the
process or the outcome.
Fifthly, with a possible exception regarding errors of law,
the legislatures are also
competent to declare the limits to the lawful exercise of public power.
Indeed, it could
hardly be otherwise, because most public power these days is sourced to legislation.
Provided they are expressed with sufficient clarity, legislative stipulations as to the
limits of public power take precedence ov er limits derived from the common laws
techniques of statutory interpretation, and they c an even provide that administrative
transgressions of legislated limits can at one and the same time be unlawful and yet
Sixth, the legislatures are competent to impose procedural restraints upon judicial
review, such as deadlines and restrictions upon the admissibility of the evidence needed
to establish that a public authority has exceeded the statutory limits to its power.
Six truths bumping into each other not only diminishes their force, but calls for some
way of resolving their apparent conflicts, whether by ranking them, or by modifying
their apparent generality, or by coming up with even grander principles, such as the rule
of law. Preserving judicial review does not do much for the rule of law if Parliament can
hollow out the bases for judicial review. Legislative attempts to judge-proof Executive
action have not stopped at the now-failed privative clause. Tighter deadlines for
challenge, and one-sided exclusionary rules of evidence are now more common, and we
are even seeing prospective Acts of Indemnity releasing public officers from cr iminal
and civil liability. These developments call for further exploration of ways to preserve
what one might loosely call judicial scrutiny. A constitutionally embedded rule of law
That might change. By Executive action, President Trump has embarked upon a massive
down-sizing of the administrative state. Multiple Bills originating in the House and the
Senate seek the same broad outcome, and some of them also seek to amend, or even overturn,
Chevron deference. At the time of writing, it is too early to warrant focus on the details here.
Senate Bill 951 (Regulatory Accountability Act of 2017) proposes the following insertion into 5
USC § 706: ‘(3)(e): Agency interpretation of rules.The weight that a reviewing court gives
an interpretation by an agency of a rule of that agency shall depend on the thoroughness
evident in the consideration of the rule by the agency, the validity of the reasoning of the
agency, and the consistency of the interpretation with earlier and later pronouncements.’
House of Representatives Bill 5 (Regulatory Accountability Act 2017) passed the House and is
now in the Senate. That Bill proposes amending § 706 to insert a provision requiring courts
to resolve any difficulties flowing from apparent gaps or ambiguities in legislation without
according any deference to agency interpretations. The headline for that amendment is the
Separation of Powers Restoration Act 2017.
See below, text to fns 4043.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 3889.

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