Re-evaluating the Collateral Challenge in the Era of Statutory Interpretation

Date01 March 2020
Published date01 March 2020
Subject MatterIn Focus: Interpretation
FLR890443 69..91 Article
Federal Law Review
2020, Vol. 48(1) 69–91
Re-evaluating the Collateral
ª The Author(s) 2019
Article reuse guidelines:
Challenge in the Era of
DOI: 10.1177/0067205X19890443
Statutory Interpretation
Jules O’Donnell*
A collateral challenge impugns the validity of an administrative decision in a proceeding that is not
specifically designed for the modification or setting aside of that decision. On the current state of
the law, there is a presumption in favour of collateral challenge in an inferior court, which can be
displaced by a contrary legislative intention. I argue, however, that the current presumption lacks a
clear doctrinal basis, and that it places too much emphasis on statutory interpretation as a useful
tool for rebutting, or indeed vindicating, the starting presumption (let alone determining what
administrative law ‘grounds’ a collateral challenge might encompass). I suggest a rearticulation of
the presumption as an expression of a defendant’s entitlement to vindicate legal rights. I point out,
however, that contemporary norms of administrative law may otherwise demand a stricter
approach to permitting collateral challenges. On this alternative view, a challenger must identify
clear legislative authorisation for what is essentially a judicial review function.
I Introduction
A person whose interests are affected by an administrative decision can seek judicial review in a
superior court. If, however, the legal status of the decision is relevant to proceedings against that
person—whether civil or criminal—they may attempt to have the decision reviewed in that
proceeding. In this scenario, the party is said to have mounted a ‘collateral challenge’. By initiating
a judicial review-like process within the ordinary course of civil or criminal procedure, the chal-
lenger asks the adjudicator to engage in the type of legal supervision typically undertaken through
formal judicial review. A question thus arises as to whether the adjudicator is empowered to
assume this supervisory role as an adjunct to their ordinary functions.
In this article, I explore the complex role of the collateral challenge in Australia. On the current
state of the law, there is a presumption in favour of collateral challenge in an inferior court, which
can be displaced by a contrary legislative intention. But this presumption holds an uncertain place
in Australian law. Why, for example, is it presumed that Parliament intended collateral challenge
* BA (Hons), JD. An earlier draft of this article was submitted as part of coursework undertaken for the JD at Melbourne
Law School, the University of Melbourne. The author may be contacted at

Federal Law Review 48(1)
to be available? How is the presumption rebutted? In circumstances where a collateral challenge is
available, what ‘grounds’ does it encompass?
The collateral challenge has not been the subject of critical attention for some time—indeed, the
High Court has not addressed the issue in detail for over 20 years. Its reconsideration is timely,
however, in light of recent commentary about doctrinal shifts in Australian administrative law. As
Will Bateman and Leighton McDonald recently argued in this journal, the ‘normative structure’ of
administrative law has undergone a significant shift of emphasis from a common law ‘grounds’
approach, to a ‘statutory’ approach.1 Bateman and McDonald suggest that an increasing reliance
on statutory interpretation as a guide to the limits of executive power risks engendering ‘techni-
cality and specificity in the identification of operative norms’.2 This shift occurs at the expense of
the ‘grounds’ approach, which relied on a set of well-known, system-wide principles that guided
administrative conduct. The collateral challenge is, I suggest, an under-explored site of adminis-
trative law that has also come to increasingly rely on techniques of statutory interpretation. It thus
provides a platform on which to further evaluate whether statutory interpretation is being relied on,
perhaps inappropriately, to answer questions that require engagement with deeper doctrinal
My principal contention is that the legal principles governing the availability of collateral
challenge require revision. First, the presumption in favour of collateral challenge, as it currently
stands, lacks doctrinal foundation: it is unclear whether it emanates from an entitlement to vindi-
cate legal rights, the need to avoid the fragmentation of proceedings or the need to hold public
officials to account. Second, instead of filling this doctrinal vacuum, courts have deferred to
legislative intent. This has further complicated the inquiry. In almost all cases, the techniques of
statutory interpretation will not yield a satisfactory answer to the question of whether a challenge
should be permitted. Parliament rarely—if ever—indicates the availability (and extent) of collat-
eral challenge when conferring jurisdiction on statutory courts and tribunals. A judge called upon
to determine this question cannot—within the textualist confines of statutory construction—arbi-
trate the complex issues that arise: whether an administrative decision ought to be susceptible to
challenge outside judicial review, what grounds a permissible challenge might encompass, and
what orders or consequences flow from a successful challenge. There is room for the common law
to reassert itself in this area by establishing a baseline presumption that is more coherent and
I also aim to initiate discussion about how the principles governing the availability of collateral
challenge might be rearticulated. To this end, I identify two competing approaches which are likely
to force a difficult compromise. First, a practical, rights-oriented narrative strongly supports
retaining the current presumption—that is, allowing an inferior court to dispose of an administra-
tive law issue as an adjunct to its ordinary functions (especially where this is necessary to ensure a
fair criminal trial). The presumption could, in this regard, be rearticulated in terms of the principle
of legality. On this view, Parliament would not prevent a person—especially a person accused of
committing a crime—from defending themselves on a relevant point of law when vesting the
relevant inferior court with jurisdiction over that matter. A decision about what grounds the
challenge might encompass could then be made by reference to the rights-based content of
1. Will Bateman and Leighton McDonald, ‘The Normative Structure of Australian Administrative Law’ (2017) 45(2)
Federal Law Review 153, 153.
2. Ibid 178.

the presumption: that is, what do the principles of access to the courts, and to a fair trial, require in
the circumstances? This is to be preferred to the current approach which, as will become clear,
involves overlapping and sometimes contradictory considerations.
The second narrative, however, derives from a strict textualist approach to identifying the
powers of inferior courts and draws support from a constitutional hierarchy of judicial review.
On this view, the challenger bears the onus of identifying an express or implied statutory power to
make an order which is, in substance, a species of certiorari. The High Court has prescribed a strict
approach to ‘reading in’ statutory provisions and has also ruled that ‘supervisory jurisdiction’ is a
core function of superior courts in Australia. This jurisdiction is inherited by State Supreme Courts
from the Court of King’s Bench in the United Kingdom and conferred upon the High Court by the
Constitution. The power to set aside decisions of public officials is arguably an institutional
function that only inheres in those superior courts, meaning Parliament would not be presumed
to vest that function in inferior courts and tribunals.
Part II of the article examines key Australian cases and commentary relating to collateral
challenge, focusing on the last 30 years. Here, I draw attention to the recurring principles that
have shaped judicial reasoning. In Part III, I argue that statutory interpretation alone cannot provide
sufficient instruction for whether collateral challenge is available, thus revealing the need for a
system-wide principle. Finally, in Part IV, I address the principle of legality as a foundation for
permitting collateral challenge in inferior courts and consider whether this approach can be
reconciled with a constitutional history in which judicial review has been treated as typically a
function of superior courts.
II The Uneven Narrative of Collateral Challenge in Australia
A When Is a Challenge a ‘Collateral Challenge’?
Collateral challenge—alternatively referred to as ‘collateral review’ or ‘collateral attack’—is best
defined as an attempt by a party to assert the unlawfulness of an administrative act in a proceeding
that is neither an application for judicial review, nor any other type of statutory appeal mechanism
which permits direct complaint about the decision.3 The latter type of statutory appeal would
include, for example, merits review in a forum such as the Administrative Appeals Tribunal. As
Mark Aronson has pointed out, ‘collateral’ review is to be distinguished from ‘direct’ judicial
review (being the typical ‘direct’ method of challenge).4
This definition is consistent with McHugh J’s account in Ousley v The Queen (‘Ousley’).5 His
Honour defined collateral challenge as a challenge to an act arising...

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