Retreating to the History of Judicial Review?
| Author | Mark Aronson |
| DOI | 10.1177/0067205X19831811 |
| Published date | 01 June 2019 |
| Date | 01 June 2019 |
| Subject Matter | Articles |
Federal Law Review
2019, Vol. 47(2) 179–202
Retreating to the History
ª The Author(s) 2019
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DOI: 10.1177/0067205X19831811
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Mark Aronson*
Abstract
Less than a decade ago, the High Court said, in effect, that State Supreme Courts have substantially
the same entrenched jurisdiction to issue relief in the nature of the prerogative writs as the
Constitution confers on the High Court. The New South Wales Court of Appeal reads this
narrowly, holding that only three specific remedies are protected, together with the rules and
limitations that existed at federation. If correct, we might see the emergence of two bodies of
doctrine, the old law of remedies and the new law of ‘judicial review’ (a concept that emerged only
after federation). In an unrelated case, six High Court judges implied a limited privative clause
ousting non-jurisdictional certiorari. The seventh judge said that this was unnecessary, because in his
view, that branch of certiorari conflicts with judicial review fundamentals, is historically mis-
conceived, and should apply only where the reviewing court can try the matter afresh. This article
reviews these developments, discusses their rationales and questions both the history and its
importance.
Introduction
Judicial review of administrative action is such an established feature of the Australian legal
system that its existence might be taken for granted. Indeed, the High Court assured us that we
have ‘an entrenched minimum provision of judicial review’,1 and that was in a case which
deployed traditional interpretive tools to render a privative clause virtually pointless. That was
in 2003, when privative clauses needed to be pellucidly clear before the courts would take them as
meaning to have any impact on the availability of judicial review. In 2017, the High Court implied
a limited privative clause into an Act that had none.2 What has changed?
Legislative drafters have devised several methods to undermine the ‘entrenched minimum
provision’. Clauses that oust specific grounds of review have met with mixed success. Provisions
stipulating that ‘no invalidity’ results from breach of specified statutory requirements have fared
better, as have provisions making it more difficult to get at the evidence needed to establish a
review ground,3 and provisions requiring litigants to pursue their claims in the High Court’s
original jurisdiction.4 The drafting for each of these methods needs to be very clear, however,
* Law Faculty, University of New South Wales. I am indebted to Janina Boughey, Lisa Burton, and this journal’s anonymous
reviewers for their helpful comments. The author can be contacted at m.aronson@unsw.edu.au.
180
Federal Law Review 47(2)
because until recently, judicial resistance has been palpable. That may also change, although it is
impossible to generalise from a single decision. In 2017, the New South Wales Court of Appeal
upheld the effectiveness of provisions designed to protect the Ombudsman from judicial review
from any challenge other than for acting in bad faith.5 Once again, what has changed — the
relevant Acts or judicial attitudes?
The history of judicial review was important for one of the judgments in the first case
(Probuild)6 and critical for both of the principal judgments in the second case (Kaldas).7 The
issue in the first case concerned judicial review for non-jurisdictional error of law apparent on the
face of the record, which was never envisaged as within the protection of the ‘entrenched minimum
provision’. The second case alleged jurisdictional errors, and that did require a consideration of
what exactly was entrenched. In broad terms, the court found its answer in history, saying that the
Constitution entrenched only orders in the nature of the prerogative writs, and only so far as they
would have lain against the respondent according to the law as it was at the time of federation. This
could open up a Pandora’s Box. Well-devised privative clauses could presumably eliminate the
possibility of judicial review for anything that would not have been subject to the supervisory
jurisdiction in 1901, at a time when the principles of the prerogative writs had not been synthesised
into ‘judicial review’ and when the legal system had yet to recognise the emergence of an
administrative state. If that were to occur, we would need to learn two sets of laws — the 1901
version for statutory powers protected by more cunningly devised privative clauses and the current
version for the rest.
Each of the two cases under review in this article also introduced a further (and more pragmatic)
factor into the mix, namely, whether the Act in question gave would-be challengers a trade-off,
replacing standard judicial review with a bespoke statutory remedy. What matters for that factor is
not the fact of the courts’ traditional hostility to privative clauses, but the reason for that approach,
which is to protect access to the courts for those seeking protection from unlawful administrative
power.
It is still early days. This article will argue that the turn to history is misconceived and could do
far more mischief than good. The pragmatic factor is attractive for responding to the underlying
reasons for resisting privative clauses, although its deployment in the second of the cases here
under review was unconvincing.
Recognising ‘Judicial Review’
Judicial review on non-constitutional grounds is a creature of the common law. Created in a form
that starts to become recognisable to the modern reader by the end of the 17th century, the
common law courts have also been the direct authors of its ebbs and flows since that time. In
the early days, they might have disguised some of their more creative moves behind a veil of
technicality and dubious precedent, but it has always been possible to ascribe some purpose to
the developments, some rationales or justifications that go beyond the existing precedents.
Precedents are important, of course, because the application of the law should be reasonably
predictable. However, judicial review has never been simply about its precedents, or, indeed,
itself. Framed originally as a set of remedies, judicial review always needed to ask itself what
needed a remedy, and the answers have always been dynamic, whether the movements be
contractionary or expansionary.
Generalised concepts of ‘judicial review’, ‘public law’ and ‘administrative law’ emerged only
in the 20th century. The antecedents of ‘judicial review’ stretch back to the Stuart era, although
Aronson
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Jason Varuhas argues that their common threads were not drawn together until well into the 20th
century; before that, it was a collection of remedies sharing distinctive procedures.8 Varuhas was
writing of the English history of the common law of judicial review. In a sense, the Australian
history bears him out more clearly, with the enactment of the Administrative Decisions (Judicial
Review) Act 1977 (Cth) (‘ADJR’). ADJR is long on grounds of review, but has only one remedy,
the ‘order of review’. ADJR reflected a general impatience with remedial technicalities and a shift
of focus to the grounds of review.
Varuhas also argues that the prerogative writs were originally focused on the supervision of
inferior courts (in the case of certiorari) and the restitution of private property (in the case of
mandamus). Controlling ‘government’, the ‘state’ or ‘public power’ as such were not conceived
as judicial review’s core concern.9 If he is right, then this could become important, because there
is a view that Australia’s constitutional entrenchment of judicial review is limited in two ways.
First, some argue that it is limited to the named remedies — prohibition, mandamus and injunc-
tion. Secondly, some people argue that the law that is entrenched is that which existed at the time
of federation.
Modern-day judicial review has two broad components. First, it consists of a number of judicial
remedies for the unlawful exercise of government power, and secondly, it comprises a set of
general standards or principles for the exercise of that power. In Australia, those standards or
principles are treated as presumptions of statutory interpretation, to be implied into statutory grants
of administrative power unless the Act gives some reasonably clear indication to the contrary. The
standards are not tied to the remedies, but they are most commonly discussed and elaborated in that
remedial context. As principles of statutory interpretation, they are a gloss on statutory powers that
make no reference to the requirements of reasonableness, adherence to natural justice and so forth.
The gloss is often justified on the ground that legislation is drafted on the understanding that the
gloss will apply — some things go without saying. At other times, however, the judicial glossator is
at odds with the drafters, leading to a situation recently described as a ‘power struggle’ between the
courts and Parliament.10
All sorts of high-level theories are on offer to explain, justify or rationalise both the remedies
and their underlying standards. ‘Control’ of government power is often advanced,11 as is the rule of
law,12 but these prompt questions as to the purposes of control and the content of the rule of law.
The answers all contain functionalist and pragmatic elements, because the administrative state
which lies at its centre is itself so variable. Further, judicial review varies not only between...
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