Reconceptualising ‘Justiciability’: Crafting a Coherent Framework for Australia’s Unique Constitutional Context
| DOI | http://doi.org/10.1177/0067205X221107408 |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
| Subject Matter | Articles |
Article
Federal Law Review
2022, Vol. 50(3) 371–403
© The Author(s) 2022
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DOI: 10.1177/0067205X221107408
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Reconceptualising ‘Justiciability’:
Crafting a Coherent Framework for
Australia’s Unique Constitutional
Context
Brandon Smith*
Abstract
The concept of ‘justiciability’in Australian federal jurisprudence has been described by the High
Court as a ‘slippery term of indeterminate reference’. With the High Court yet to comprehensively
consider the concept of justiciability, Australia’s jurisprudence has failed to develop a coherent
doctrine which is apt to govern the outer limits of judicial power under Chapte r III of the Con-
stitution. This article argues the transplantation of UK justiciability jurisprudence into Australia’s
constitutional context, as well as doctrinal inconsistencies in UK case law, have resulted in ap-
plications of the doctrine which undermine key principles of federal judicial power. Drawing on
existing case law, this article proposes a reconceptualisation of justiciability into three categories
—constitutional competence, institutional capacity and institutional legitimacy —as a principled
framework to be applied and developed by Australian jurists going forward.
Received 30 April 2021
Introduction
Since Australia’s federation in 1901, the High Court has taken for granted the ‘axiomatic’principles
of judicial power pronounced by Marshall CJ in Marbury v Madison (‘Marbury’).
1
In Australia’s
federal system, the exercise of Commonwealth legislative and executive power is subject to the
Commonwealth Constitution (‘Constitution’)‘as the fundamental and paramount law of the nation,’
and it has been held that it is ‘emphatically the province and duty of the judicial department to say
what the law is.’
2
However, drawing on foreign precedent, Australia’s common law has also sought
*Brandon Smith, Bachelor of Laws (First Class Honours and University Medal), Bachelor of International Security Studies,
Australian National University, Australia. The author may be contacted at brandon.wsmith@outlook.com. All mistakes
are my own. I would like to thank Associate Professor Ryan Goss and Associate Professor Will Bateman for their invaluable
comments and feedback on earlier versions of this manuscript.
1. (1807) 5 US (1 Cranch) 137 (‘Marbury’); Australian Communist Party v Commonwealth (1951) 83 CLR 1, 262 (Fullagar
J) (‘Communist Party Case’).
2. Marbury (n 1) 177; Communist Party Case (n 1) 262 (Fullagar J); Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–
6 (Brennan J); Thomas v Mowbray (2007) 233 CLR 307, 476 [506] (Hayne J) (‘Thomas’); Abebe v Commonwealth (1999)
197 CLR 510, 560 [137] (Gummow and Hayne JJ) (‘Abebe’).
to establish doctrines which restrain and define the limits of judicial power in conformity with the
Constitution, both in litigation concerning government-decision making and private litigation
raising ‘sensitive’or ‘political’matters of state. One such doctrine is the concept of ‘justiciability,’
described by Sir Anthony Mason as:
a concept whose purpose is to confine courts to the exercise of judicial power in relation to issues not
properly assignable to other branches of government under the separation of powers and otherwise
within the institutional competence of the courts.
3
Recently, Gageler and Gleeson JJ in Hobart International Airport Pty Ltd v Clarence City
Council framed the concept of ‘justiciability,’in the context of considering the constitutional
requirement for a ‘matter,’in these terms:
The controversy is justiciable if it is capable of being resolved in the exercise of judicial power by an
order of a court which, if made, would operate to put an end to the question in controversy through the
creation of ‘a new charter by reference to which that question is in future to be decided as between those
persons or classes of persons’.
4
Yetit remains the case, as Gummow and Crennan JJ aptly remarked, that ‘non-justiciable’is a ‘slippery
term of indeterminate reference.’
5
Kirby J has stated that Australia’s justiciability doctrine remains in-
herently uncertain and is still in ‘a state of development,’
6
with ‘different views …exist[ing]as to the scope
of justiciability and the delineation of questions marked off as “not justiciable”’ — remarks which this
author argues remain apposite today.
7
Indeed, justiciability has been employed by Australian courts to
‘mean different things in different contexts,’
8
variously described as a doctrine governing whether a
controversy ‘is apt [for] a court performingcourt-like functions,’
9
encompassing the principle that ‘right of
access to the King’s Court must not be lightly refused,’
10
having ‘special application …to the law of
evidence’
11
and concerning the amenability of administrative decisions to judicial review.
12
Whilst the
High Court has recently had occasion to consider the nature of a ‘justiciable controversy’within the
concept of ‘matter’for the exercise of federal jurisdiction and in particular the question of ‘standing’toseek
declarations,
13
the multi-faceted and at times uncertain use of justiciability can be largely attributed to the
fact that ‘the High Court has not had occasion to discuss justiciability or ‘political questions’in a
3. Sir Anthony Mason, ‘The High Court as Gatekeeper,’(2000) 24(3) Melbourne University Law Review 784, 788.
4. Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5, [47] (‘Hobart International Airport’),
5. Thomas (n 2) 354 [105].
6. Lindon v Commonwealth (No 2) (1996) 136 ALR 251, 259.
7. Thorpe v Commonwealth (No 3) (1997) 144 ALR 677, 691 (‘Thorpe’).
8. Geoffrey Lindell, ‘Justiciability’in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Com-
panion to the High Court of Australia (Oxford University Press, 2001) <https://www.oxfordreference.com/view/10.
1093/acref/9780195540222.001.0001/acref-9780195540222-e-226?rskey=XCpM7N&result=227>.
9. Thorpe (n 7) 692.
10. St Pierre v South American Stores (Gath and Chaves) Ltd [1936] 1 KB 382, 398 (Scott LJ), cited in Oceanic Sun Line
Special Shipping Company Co Inc v Fay (1988) 165 CLR 197, 209 (Wilson and Toohey JJ), 233 (Brennan J), 262
(Gaudron J).
11. Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 368 (‘Re Ditfort’).
12. See Chris Finn, ‘The Justiciability of Administrative Decisions: A Redundant Concept?’(2002) 30(2) Federal Law
Review 239.
13. See Hobart International Airport (n 4) and CGU Insurance Ltd v Blakeley (2016) 259 CLR 339 (‘CGU’).
372 Federal Law Review 50(3)
comprehensive fashion’.
14
This has resulted in a patchwork of disparate judgements by intermediate courts,
which have taken an ad-hoc approach to transplanting particular strands of UK case law on justiciability.
While acknowledging the lack of High Court jurisprudence, this article argues that the application of
UK notions of justiciability in federal jurisdiction by Australian courts has, at times, undermined principles
of federal judicial power under Chapter III of the Constitution. This can be attributed both to existing
incoherencies in UK jurisprudence, and a failure by the federal judiciary to properly account for Australia’s
unique constitutional context. A reconceptualisation of justiciability in Australian law is therefore required.
Before moving on to explain this article’sobjectives, it is important at the outset to make three important
qualifications. First, while certainly a related topic to the concept of justiciability, this article does not seekto
enter into the current debate surrounding the amenability of non-statutory administrative decision-making to
judicial review and on what grounds, particularly in the context of the Migration Act 1958 (Cth). This topic
has been the subject of recent academic literature
15
and a decision of the Full Court of the Federal Court
concerning the amenability of decisions by Departmental officers under non-statutory guidelines to judicial
review for legal unreasonableness (from which the High Court has granted special leave).
16
Secondly, this article’s critique of transplanting UK justiciability jurisprudence does not extend
to more recent applications of justiciability in the context of judicial review of prerogative powe rs,
which is conceptually and doctrinally distinct. This specific doctrine of justiciability has been the
subject of significant academic scholarship both at home
17
and abroad,
18
as well as recent case law
in the UK
19
and to a lesser extent Australia.
20
This includes the recent decision of the UK Supreme
Court (UKSC) in R (Miller) v The Prime Minister (‘Miller (No 2)’),
21
which declared Prime Minister
Boris Johnson’s proroguing of Parliament in the grips of Brexit unlawful. As will be briefly
discussed in Chapter III, Part B, the UK’s modern approach to this distinct concept of justiciability is
consistent with the framework of justiciability sought to be developed in this article. Therefore,
14. Mason (n 3) 788.
15. See, eg, Amanda Sapienza, Judicial Review of Non-Statutory Executive Action (The Federation Press, 2020); the Hon
Alan Robertson SC, ‘Supervising the legal boundaries of executive powers’(2021) 50 Australian Bar Review 12;
Amanda Sapienza, ‘Judicial Review of Non-statutory Executive Action: Australia and the United Kingdom Reunited?’
(2018) 43 University of Western Australia Law Review 67.
16. Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213 (‘Davis’),
affirming Robertson J’s decision in Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438. See also
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors [2022] HCATrans 89
(12 May 2022) and DCM20 v Secretary of Department of Home Affairs & Anor [2022] HCATrans 90 (12 May 2022).
17. Finn (n 12); Fiona Wheeler, ‘Judicial Review of Prerogative Power in Australia: Issues and Prospects’(1992) 14 Sydney
Law Review 432; Anne Twomey,‘The Prerogative and the Courts in Australia’(2021) 3 Journal of Commonwealth Law
55; Mark Leeming, ‘Judicial Review of Vice-regal Decisions: South Australia v O’Shea, Its Precursors and Its Progeny’
(2016) 36 Adelaide Law Review 15; Anne Twomey, ‘The Justiciability of Prorogation’(2019) 93 Australian Law
Journal 913.
18. See, eg, B V Harris, ‘Judicial Review, Justiciability and the Prerogative of Mercy’(2003) 62 Cambridge Law Journal
631; Paul Daly, ‘Justiciability and the “Political Question”Doctrine’[2010] Public Law 160; Margit Cohn, ‘Form,
Formula and Constitutional Ethos: The Political Question/Justiciability Doctrine in Three Common Law Systems’
(2011) 59(3) American Journal of Comparative Law 675; David Feldman, ‘Prerogative Powers, Constitutional
Principles and Legal Wrongs: Constitutional Implications of the Prorogation Judgement’(2020) 25(3) Judicial Review
210; Thomas Poole, ‘Judicial Review at the Margins: Law, Power,and Prerogative’(2010) 60(1) University of Toronto
Law Journal 81.
19. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (‘CCSU’); R (Bancoult) v Secretary of
State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453 (‘Bancoult’); R (Sandiford) v Secretary of State for
Foreign and Commonwealth Affairs [2014] UKSC 44 (‘Sandiford’).
20. Attorney-General (Cth) v Ogawa (2020) 281 FCR 1 (‘Ogawa’); Habib v Commonwealth (2010) 183 FCR 62; Kline v
21. R (Miller) v The Prime Minister; Cherry v Advocate General for Scotland [2020] AC 373 (‘Miller (No 2)’).
Smith 373
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