Executive Discretion and the Adequacy of Judicial Remedies to Uphold the Constitution
| Date | 01 June 1971 |
| Published date | 01 June 1971 |
| Author | Leslie Zines |
| DOI | 10.1177/0067205X7100400203 |
| Subject Matter | Article |
EXECUTIVE DISCRETION AND THE ADEQUACY
OF
JUDICIAL REMEDIES
TO
UPHOLD THE
CONSTITUTION
By
LESLIE ZINES*
The
power of the Commonwealth
to
confer authority on members
of
the
Executive
or
Administration is restricted
by
the
Constitution
in
two
major
respects-first,
by the principle
of
the separation of powers,
and
secondlY,by
the doctrine
that
no
law
can
give power
to
any
person
(other
than a
court)
to
determine conclusively _any issue upon
'Yhich
the
constitutional validity
of
the
law depends.
The
second
doctrine is sometimes metapholically summed
up
in the maxim
"the
stream
cannot
rise above its source".1
The
separation
of
powers principle
affects awider
·range
of
decision-ma~g.
than
the "source
and
stream"
doctrine;
but
the
latter doctrine, within
the
area .of its operation,
appears
to
be
agreater limitation
on
legislative power.
For
example, the principle
of
the
separation of powers seems
to
prevent
an
Act
from validly conferring .power
on
an
administrator
to
make conclusive determinations
of
law
(and
possibly findings
of
fact). in
the
course
of
settling adispute about existing rights and duties.
But
where the power confided
to
the administrator
to
make findings
of
existing law
or
fact is merely preliminary
to
the creation of new
rights and duties, then,
in
some.circumstances
at
any rate, such power
of
detennination will
not
breach
the
separation of powers principle.2
If,however,
the question
to
be
determined involves
the
interpretation
of
aCommonwealth head of p·ower
or
the finding
of
"constitutional
fact" (for example, whether
an
article has been imported), the law
will
be
invalid even though the main function
of
the administrator is
to .create future rights and duties. Thus, Parliament could
not
give
to the Conciliation and Arbitration Commission conclusive power to
determine whether
in
law
or
in
fact
an
industrial dispute extending
beyond the limits
of
one
State existed
in
any particular case.
It
is
the
purpose
of
this
article
to
examine the "source
and
stream"
doctrine rather than the broader question of what constitutes the
judicial power
of
the Commonwealth. within the principle of the
*LL.B. (Syd.), LL.M. (Harv.), Barrister-at
..
law (N.S.W.), Professor
of
Law,
School
of
General Studies, Australian National
Urtiver~ity.
.
1Per Griffith C.J. in Heiner
v.
Scott (1914)
19
C.L.R. 381, 393.
2The Queen
v.
Trade Practices Tribunal;
Ex
parte Tasmanian Breweries Ply
Ltd. (1970) 44 A.L.J.R. 126.
236
1971] Executive Discretion; Adequacy
of
Judicial Remedies
237
separation of powers.
At
times
the
two notions are difficult to dis-
tinguish. Both involve the responsibility of the courts
to
uphold
the
law. Nevertheless the responsibility of deciding questions
of
con.;.
stitutionality has. always been treated
as
aseparate category involving
distinct principles and consequences. Why this is so is readily under-
standable. Some judges, aware of the complexity of
modem
government,
might, for example,
be
prepared to allow the legislature considerable
latitude in conferring power
on
ministers
or
public servants
where
the law is otherwise clearly within power. The only relevant policies
are governmental efficiency and the rule
of
law. Where, however,
the source of legislative power is involved, the issue is
not
merely
how
agovemnlent
may
order relations between its subjects
or
between
itself and its subjects,
but
concerns the demarcation
of
power between
the Commonwealth and the States.
The
Court win, for these reasons,
feel that asimilar latitude should not be allowed the Commonwealth
Parliament
or
government regarding determination
of
those questions
..
The High Court has
on
numerous occasions emphasised its role as
arbiter
of
constitutional questions.
But such are the problems of society that
it
has been
found
necessary at times to confer, and to uphold the validity of, administrative
powers which involve constitutional interpretation, constitutional fact
findings and the making of decisions whose validity depends
"on
a
constitutional purpose. Of course the conferring of these powers will
not necessarily be inconsistent with principle
if
the
Court
has
the
means to review the administrative decisions
to
ensure that they are
made within constitutional power. Whether the Court
can
effectively
carry
out its function
in
this regard depends largely on rules
of
administrative
"law
and,
in
particular,
on
the remedies available for
the judicial control of administrative action.
In
most cases,
the
only
relevant remedies
will"
be the ·writ
of
mandamus
and
the declaratory
judgment.
The law dealing with the prerogative writs and the declaration is
in
arather fluid state at the moment. Anumber
of
recent decisions
in the United Kingdom
may
have extended the degree
of
judicial
control over
the
administration and may have taken the law
beyond
that laid down in several earlier High Court cases
that
have involved
the meshing of constitutional law and
adm.iIDstrative
law.
It
is
not
my
purpose to examine this trend
in
detail
..
Whether one takes a
broad
or
anarrow view of judicial control.
of.
administrative action,
it
is clear
that the Court, on
an
application for awrit
of·
mandamus
or
a
declaration, is not, generally speaking, in the position of atribunal
hearing the entire matter de novo.
It
is concerned with such matters
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