The Constitution and the Substantive Principles of Judicial Review: The Full Scope of the Entrenched Minimum Provision of Judicial Review

AuthorWill Bateman
Published date01 September 2011
Date01 September 2011
Subject MatterArticle
Will Bateman*
The High Court has held that the Constitution entrenches a 'minimum provision of
judicial review'.
In the context of privative clauses, the contours of that minimum
provision are settled the supervisory jurisdic tion of the High Court and the State
Supreme Courts to review for jurisdictional error cannot be excluded.
In respect of
privative clauses contained in Commonwealth le gislation, c onflict w ith s 75(v) of the
Constitution provides the constitutional anchor for the minimum provision, while in
State jurisdiction the textual anch or is found in the co nstitutional definition of a 'court',
as that term is used in Ch III.
In respect of other elements of judicial review,
particularly the substantive principles of review, the position is radica lly unclear. One
commentator has observed that, if the Constitution does contain principles prohibiting
the exclusion of the substantive principles of judicial review, 'it is not obvious where
they lie or what the justification for them might be.'
* BA/LLB (Hons) (ANU), LLM (Hons) (Cantab), La wyer of the Supreme Court of New
South Wales. I would like to thank Dr John Allison of the University of Cambridge for his
supervision of a dissertation on which this article is based and Leighton McDonald of the
Australian National University and the anonymous referee for their comments made in the
referring process. I would a lso like to thank Cameron Miles for his comments on an earlier
draft and Clara and Selena Bateman for their editorial assistance.
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 (Gaudron, McHugh, Gummow,
Kirby and Hayne JJ) ('S157'); Bodruddaza v Minister for Immigration and Multicultural Affairs
(2007) 228 CLR 651, 6689 (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ)
S157 (2003) 211 CLR 476; Kirk v Industrial Court of New South Wales (20 10) 239 CLR 531
Kirk (2010) 239 CLR 531.
Cheryl Saunders, 'Plaintiff S157/2002: A Case-Study in Common Law Constitutionalism'
(2005) 12 Australian Journal of Administrative Law 115, 124.
464 Federal Law Review Volume 39
The slate is not, however, entirely blank.
In the infamous privative clause case
S157, the Commonwealth argued that it could successfully exclude the Court's
supervisory jurisdiction without using a privative clause by simply delegating
to the Minister 'the power to exercise a totally open-ended discretion as to what aliens
can and what aliens cannot come to and stay in Australia', subject only to this Court
deciding any dispute as to the 'constitutional fact' of alien status. Alternatively the Act
might be redrawn to say, in effect, '[h]ere are some non-binding guidelines which
should be applied', with the 'guidelines' being the balance of the statute.
In obiter, Gaudron, McHugh, Gummow, Kirby and Hayne JJ indicated that such
mechanisms 'might well be ineffective'
. After noting that 'the structure of the
Constitution does not preclude the Parliament from authorising in wide and general
terms subordinate legislation under any of the head s of its legislative power', their
Honours held that 'what may be "delegated" is the power to make laws with respect to
a particular head in s 51 of the Constitution.'
In this light, their Honours noted that the
mooted provisions appeared
to lack that hall mark of the exercise of legislative power namely, the determination of
'the content of a law as a rule of conduct or a declaration as to power, right or duty'.
Moreover, there would be delineated by the Parliament no factual requirements to
connect any given state of affairs with the constitutional head of power. Nor could it be
for a court exer cising the judicial power of the Commonwealth to supply this connection
in deciding litigation said to ar ise under tha t law. That would in volve the court in the
rewriting of the statute, the function of the Parliament, not a Ch III court.
These principles were considered recently in Plaintiff M61/2010E v Commonwealth,
where a provision providing tha t 'the Minister does not have a duty to consider
whether to exercise a power'
was impugned as an 'effectively unfettere d and
unreviewable statutory power.'
In their attack on the impugned provision, the
applicants invoked the obiter comments made in S157 and certain comments made in
Kirk concerning the importance of avoiding 'islands of power immune from
supervision and restraint.'
The Court dismissed this a rgument, holding that
'maintenance of the capacity to enforce limits on power does not entail that
consideration of the exercise of a power must always be amenable to enforcement'.
Some scholarly efforts to identify the relevant principles have been made: Jeremy Kirk, 'The
Entrenched Minimum Provision of Judicial Review' (200 4) 12 Australian Journal of
Administrative Law 64; Susan Kneebone, 'What is the Basis of Judicial Review?' (2001) 12
Public Law Review 95; John Basten, 'Constitutional Elements of Judicial Review' (2 004) 15
Public Law Review 187; Leighton McDonald, 'The Entrenched Minimum Provision of
Judicial Review and the Rule of Law' (2010) 21 Public Law Review 14.
(2003) 211 CLR 476, 512 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ)..
Ibid 51213.
Ibid 513 (citations omitted).
(2010) 85 ALJR 133 ('M61').
Migration Act 1958 (Cth) s 46A(7).
M61 (2010) 85 ALJR 133, 138 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and
Bell JJ).
(2010) 239 CLR 531, 581 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
M61 (2010) 85 ALJR 133, 144 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and
Bell JJ). The applicants were, however, successful on other grounds they obtained a
2011 Provision of Judicial Review 465
The Court's careful language did not preclude the future development of the principles
invoked by the applicant, but simply denied that the mere consideration of whet her to
exercise a statutory power, as opposed to the exercise of that power, must be subject to
identifiable limitations. As such, the perfunctory reasons of the Court, on this point,
did not clarify the principles mooted in S157. Rather, they indicate the pressing need
for a more detailed study into the precise constitutional ba sis of the principles that
limit the capacity of Parliament to exclude the substantive principles of judicial r eview.
This article respond s to that need. It is directed towards identifying a secure
constitutional foundation for the principles protecting certain substan tive principles of
judicial review and, thus, illuminating the 'harder-edged and substantive'
that f low fro m the entrenched minimum provision of review. The proposed
constitutional foundation lies in the non-arbitrariness principle implied int o Ch III.
Part I introduces several key c oncepts the importance of drawing a firm
distinction between procedural and substantive exclusions of review and the unique
contours of the concept of jurisdictional error. It then investi gates the Court's privative
clause case law and identifies a number of key doctrinal fea tures that impact on the
formulation of constitutional principles concerning substantive exclusions of judicial
review: chief among which are the importance of ensuring parity between federal and
State administrative law and avoiding arbitrary a nd uncontrolled power. Part II
analyses and problematises the response of administrative law to legislative attempts
to exclude substant ive principles of review. That Part assesses the strengths and
weaknesses of administrative law d octrine in confining very broad discretions and
responding to exclusions of particular substantive gr ounds of judicial review. It also
considers the strengths and weaknesses of the principle of legality as a mechanism for
confining broad discretions and respo nding to attempted exclusions of review.
argues that, notwithstanding the undoubted success of administrative law and the
principle of legality in confining broad discretions and protecting certain fundamental
rights, effect must ultimately be given to clearly expressed statutory language that
excludes the principles of judicial review. Part II also places this argument in the
broader context of t he ultra vires and common law debate and the ef fect of the
constitutional separation of judicial power on administrative law. Finally, the viability
of alternative approaches, particularly common law constitutionalism a nd the
principle proposed by Jeremy Kirk,
are analysed. Part II concludes b y observing that,
notwithstanding its attractive features, a theory of common law constituti onalism
ought not be relied upon to overcome the most ambitious substantive exclusions of
review, and that a number of problems exist with Kirk's proposed principle. Part III
investigates the possible limitations on substantive exclusions of review embedded in
the text and structure of the Constitution. It begins by teasing out the principles mooted
in the obiter comment by t he Court in S157 and considers whether they are well-suited
to respond to substantive exclusions of review. It concludes, by observing that there
declaration that they had not been afforded procedural fairness in the processing of their
applications by departmental staff and an outsourced review team: see at 14952.
McDonald, above n 5, 32.
Often expressed as the presumption that legislation does not abrogate or interfere with
fundamental rights except in the clearest possible terms: see generally James Spigelman,
'Principle of Legality and the Clear Statement Principle' (2005) 79 Australian Law Journal
See Kirk, above n 5.

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