Institutional Values in Judicial Review of Administrative Action: Re-Reading Attorney-General (NSW) V Quin
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
| DOI | 10.1177/0067205X211039892 |
| Author | Lynsey Blayden |
| Subject Matter | Articles |
Article
Federal Law Review
2021, Vol. 49(4) 594–619
© The Author(s) 2021
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DOI: 10.1177/0067205X211039892
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Institutional Values in Judicial
Review of Administrative Action:
Re-Reading Attorney-General (NSW)
V Quin
Lynsey Blayden*
Abstract
Owing to its focus on statutory interpretation, judicial review of administrative action in Australia has been
perceived to be ‘formalist’,particularlywhencomparedwithreviewincomparablenationssuchas
England. This led Michael Taggart to characterise review in Australia as ‘exceptionalist’. The judgment of
Brennan J in Attorney-General (NSW) v Quin, in which Brennan J emphasised the importance of courts
remaining away from ‘the merits’of administrative decision-making while exercising the supervisory
jurisdiction has become closely associated with the view that review in Australia is rigid and formalist. In
this article, I re-evaluate the judgment of Brennan J and place it in the context of its facts and of its time. This
helps to reveal that the approach to judicial review of administrative action set out by Brennan J in Quin
should not be seen as formalist. Rather, both Brennan J’s approach and the contemporary ‘statutory
approach’to judicial review can be seen as informed by values connected with what are understood to be
the appropriate functions of each institution of government found within the Australian political system.
Keywords
Judicial review, administrative law, constitutional law, values
Received 8 September 2020
Indeed, if one thing is clear in Australian administrative law, it is that judicial review does not entail
review on the merits.
Sir Anthony Mason
1
*PhD, UNSW Law, Kingsford, New South Wales, Australia. I would like to thank Mark Aronson, Rosalind Dixon, Harry
Hobbs and the two anonymous reviewers for their very generous and helpful comments on this article. Thanks are also
due to Mark Aronson, Lisa Burton Crawford, Gabrielle Appleby, Andrew Lynch, Arthur Glass, Robin Creyke and Kristen
Rundle for their comments on earlier versions of this work as it appeared in my doctoral thesis. Any errors are my own. I
gratefully acknowledge the support of the Sir Anthony Mason PhD Award in Public Law for partly funding this research.
The author may be contacted at llblayden@gmail.com
1 Anthony Mason, ‘The Kerr Report of 1971: Its Continuing Significance’(Whit more Lecture, Council of Australasian
Tribunals NSW Chapter, 19 September 2007) 5.
I Introduction
In a series of recent decisions, Australian courts have made more explicit reference to values in
judicial review of administrative action.
2
This has been perceived to be a new development, given
the ostensibly ‘formalist’structure of Australian review of administrative action.
3
However, in this
article I suggest that these recent developments should not be regarded as a break with any previous
approach, but are better understood as the ordinary refinement of principles of review we should
expect to occur over time. Australian courts have always been drawing upon values when artic-
ulating the limits of executive power. These values are those of the common law, but they are also
values derived from the constitutional and political system of Australia. These values have shaped
the way in which the roles of each institution of government in Australia have been understood by
the judiciary, and in turn the judiciary’s approach to review of administrative action.
Writing more than a decade ago, Michael Taggart described review in Australia as ‘ex-
ceptionalist’.
4
The divergence between the principles of review of administrative law in Australia
and those of England became apparent following the debate which occurred in the English context
over whether the ultra vires doctrine was the foundation of judicial review of administrative action.
This debate was centred on the question of whether the principles of judicial review were derived
from the common law, or whether they could be said to be matters of statutory intention.
5
In his well-
known and provocative article,
6
Taggart argued the emerging difference between review in
Australia and elsewhere could not be attributed simply to the Australian Constitution (‘the
Constitution’), but was rather the product of judicial ‘formalism’or conservativism. In this article I
suggest that the primary source of the difference is instead these institutional values.
Taggart,
7
and subsequently others,
8
identified the key judgment of Brennan J in Attorney-
General (NSW) v Quin (‘Quin’),
9
as a primary example of the attachment to formalism in Australia.
I consider, however, that an alternative reading of this judgment is available. By placing Quin in the
context of its facts and its time, it is possible to recognise that the approach to judicial review that is
embraced by the judgment of Brennan J is not conditioned by ‘formalism’, but by an understanding
of the judicial role within the Australian Constitution as ‘co-ordinate’,
10
with that of the other
branches of government established by the Constitution. The focus of this article is on the ar-
rangements for the national government of Australia, the values that might be said to be a part of
them, and the way these may have influenced the development of doctrine by the High Court. I have
2 See, eg, Probuild v Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, 22 [58] (Gageler J)
(‘Probuild’);Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 133–134 [27]–[29] (Kiefel
CJ, Gageler and Keane JJ) (‘Hossain’); Minister for Immigration and Border Protection v Stretton(2016) 237 FCR 1, 4–6
[7]–[11] (Allsop CJ); Hands v Minister forImmigration and Border Protection (2018) 267 FCR 628, 630 [3] (Allsop CJ).
3 See, eg, Lisa Burton Crawford, ‘Immaterial Errors, Jurisdictional Errors and the Presumptive Limits of Executive Power’
(2019) 30 Public Law Review 281.
4 Michael Taggart, ‘‘‘Australian Exceptionalism”in Judicial Review’(2008) 36(1) Federal Law Review 1.
5 Many of the key contributions to this debate are collected in Christopher Forsyth (ed) Judicial Review and the Con-
stitution (Hart Publishing, 2000).
6 See Mark Aronson, ‘Process, Quality and VariableStandards: Responding to an Agent Provocateur’in David Dyzenahus,
Murray Hunt and Grant Huscroft (eds) A Simple Common Lawyer: Essays in Honour of Michael Taggart (Hart
Publishing, 2009) 5, 6.
7 Taggart (n 4) 27.
8 See, eg, Dean Knight, Vigilance and Restraint in the Common Law of Judicial Review (Cambridge University Press,
2018) 43.
10 Ibid 37 (Brennan J).
Blayden 595
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