Private Bodies, Public Power and Soft Law in the High Court

AuthorMark Aronson
Published date01 March 2007
Date01 March 2007
DOIhttp://doi.org/10.22145/flr.35.1.1
Subject MatterArticle
PRIVATE BODIES, PUBLIC POWER AND SOFT LAW IN THE
HIGH COURT
Mark Aronson*
PART I — INTRODUCTION
For the last 40 or more years, academic administrative lawyers have advocated an
ever-more expansionary role for judicial review of administrative action, and their
urgings have usually been well-attuned to similarly expansionist tendencies on the
part of the judges. Expansionists grew accustomed to being on the winning side, both
in Australia and England, but we in Australia are beginning to learn that nothing lasts
forever, even while the English expansions continue at almost break-neck speed. Three
High Court cases are especially noteworthy. They are Re Minister for Immigration and
Multicultural and Indigenous Affairs; Ex parte Lam1 ('Lam'); NEAT Domestic Trading Pty
Ltd v AWB Ltd2 ('NEAT Domestic'); and Griffith University v Tang 3 ('Tang').
There will be ups and downs, of course, and it would take more than just three
High Court decisions to turn around the ship of judicial review. There is nevertheless
some considerable portent in those decisions. This article will examine only three sets
of issues arising from the cases.
The first set of issues derives from Lam, so far as it scorned the language of
legitimate expectations. That was entirely understandable and need have been nothing
more than a repudiation of inarticulacy, were it not for the way it was used in Tang.
The second set of issues derives from NEAT Domestic, which ruled that the
statutory privileges of Australia's monopolist bulk wheat exporter were unrestrained
by any considerations of public interest. That was said to follow from the premises that
the company concerned was subject neither to review under the Administrative
Decisions (Judicial Review) Act 1977 (Cth) ('ADJR') nor common law judicial review. Both
the premises and their relevance to the conclusion need examining.
The third set of issues is more complicated, because it comes bundled up with a
number of other issues from which this article will attempt to keep its distance. Tang
denied ADJR coverage of university decisions made under contract or any other
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* University of New South Wales. The author would like to thank Peter Cane, Carol Harlow,
Rachel Harris, Martin Krygier, Christos Mantziaris, Leighton McDonald, Linda Pearson,
and this Journal's anonymous referee for their helpful comments and suggestions, and for
their references to material which I would otherwise have missed.
1 (2003) 214 CLR 1.
2 (2003) 216 CLR 277.
3 (2005) 221 CLR 99.
2 Federal Law Review Volume 35
____________________________________________________________________________________
consensual arrangement. That was relatively uncontroversial because ADJR is limited
to decisions made under enactments, and there was a long line of authority that this
meant (in part) that the enactment itself must be the source of the decision's force or
effect. A contract's legal force comes from the general law, not statute. However the
Court added a minimum force requirement — the decision's force or effect must be
such that it creates or alters legal rights or obligations. That requirement was said to
come from Queensland's equivalent of ADJR, but the Court suggested that in the field
of federal judicial review, it could also be found in the constitutional concept of
'matter'. That need not have raised concerns either, because there can be no 'matter'
before a federal court in a constitutional sense unless some kind of legal rights, duties
or liabilities are at stake, and there can be no federal jurisdiction without a 'matter'.
However Tang ruled that while the University's non-statutory student misconduct
code promised natural justice, the Court would not enforce that promise, which was
(applying Lam) a mere expectation rather than a legal entitlement.
Tang spells long-term trouble in two respects. First, it is the strongest indication so
far that the High Court will resolve the long-running debate about the provenance of
natural justice against the 'common law' school led originally by Mason CJ and in
favour of the 'implied or imputed intention of Parliament' school, led originally by
Brennan CJ. This is because Tang's result would have been different if the misconduct
code had been subordinate legislation. Secondly, and following on from this, Tang also
signals doubts about the possibility of seeking judicial protection of any kind under
relationships covered only by 'soft law' — guidelines, procedure manuals, internal
disciplinary codes, and so forth.
Lam, NEAT Domestic and Tang have already generated an unusually large number
of articles and comments, each presenting a somewhat different take on what the cases
decided and therefore on their possible consequences. Many of the comments on Lam
focused on its reversal of an earlier decision's attempt to patch over the dualist divide4
between domestic and international law, and they are irrelevant to this article.5 In any
event, Lam can no longer be called a recent case. Even if one were to focus only on
NEAT Domestic and Tang, however, there have been over 25 articles and comments so
far,6 the great bulk of them extremely critical of the majorities' reasoning, both in
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4 Namely, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.
5 See In re McKerr [2004] 1 WLR 807.
6 For example: Christos Mantziaris, 'A "Wrong Turn" on the Public/Private Distinction:
NEAT Domestic Trading Pty Ltd v AWB Ltd' (2003) 14 Public Law Review 197; Madeline
Campbell and Peter Nicholas, 'Public Law Remedies and Private Bodies' (2003) 10 Litigation
Notes 10; Ron Fraser, 'Developments in Administrative Law' (2004) 40 AIAL Forum 1;
Andrew Buckland and Jayne Higgison, 'Judicial Review of Decisions by Private Bodies'
(2004) 42 AIAL Forum 37; Neil Arora, 'Not so Neat: Non-statutory Corporations and the
Reach of the Administrative Decisions (Judicial Review) Act 1977' (2004) 32 Federal Law Review
141; Graeme Hill, 'The Administrative Decisions (Judicial Review) Act and "Under an
Enactment": can NEAT Domestic be reconciled with Glasson?' (2004) 11 Australian Journal of
Administrative Law 135; Mark Aronson, 'Is the ADJR Act Hampering the Development of
Australian Administrative Law?' (2004) 15 Public Law Review 202; Caspar Conde,
'Accountability for the Exercise of "Public" Power: a Defence of NEAT Domestic' (2005) 46
AIAL Forum 1; Margaret Allars, 'Public Administration in Private Hands' (2005) 12
Australian Journal of Administrative Law 126; Graeme Hill, 'Griffith University v Tang:
Comparison with NEAT Domestic, and the Relevance of Constitutional Factors' (2005) 47
AIAL Forum 6; Daniel Stewart, 'Griffith University v Tang, "Under an Enactment" and

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