The Entrenched Minimum Provision of Judicial Review and the Limits of ‘Law’
| DOI | 10.22145/flr.45.4.5 |
| Date | 01 December 2017 |
| Published date | 01 December 2017 |
| Author | Lisa Burton Crawford |
| Subject Matter | Article |
REVIEW AND THE LIMITS OF ‘LAW’
Lisa Burton Crawford*
ABSTRACT
The Australian Constitution constrains the scope of executive power that Parliament is
capable of conferring in several ways. This article examines whether any constraints
flow from the inherent requirements of ‘law’ itself. That is, is Parliament incapable of
conferring executive power of a certain kind or breadth, because the statute that would
be required to do so is simply not a ‘law’ for the purposes of the Australian Constitution?
More broadly, the article explores the connection between constitutional doctrine and
legal theory, and the ways in which statutory conferrals of very broad executive powers
can diminish the rule of law.
I INTRODUCTION
The Australian Constitution provides an ‘entrenched minimum provision of judicial
review’ of executive action.1 Australian Parliaments cannot oust the protected review
jurisdictions of the State Supreme or High Courts, in substance or in form.2 In light of
the recent decision in Graham v Minister for Immigration and Border Protection (‘Graham’),3
we might also say that Parliaments cannot substantially impede the ability of a court
exercising judicial review jurisdiction to ascertain whether an executive officer has acted
within the legal limits of her power.4
* Senior Lecturer, University of New South Wales. I give special thanks to Associate Professor
Patrick Emerton and Dr Triantafyllos Gkouvas for lengthy discussions on the subject of this
article. I also thank Professor Matthew Groves for very helpful comments on an earlier draft.
This article is derived from a paper presented to the Monash University Faculty of Law Work
in Progress seminar, and the Melbourne Law School Legal Theory Workshop. I thank the
organisers and attendees of those workshops for their help in formulating these ideas,
especially Dr Janina Boughey, Professor Jeffrey Goldsworthy and Associate Professor Kristen
Rundle. Finally, thank you to the anonymous referees for their insightful and constructive
comments.
1 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 [103] (Gaudron, McHugh,
Gummow, Kirby and Hayne JJ).
2 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651.
3 [2017] HCA 33 (6 September 2017).
4 We may, however, question whether the legislative provision considered in that case (s
503A(2) of the Migration Act 1958 (Cth)) impeded judicial review to such an extent as to
render it invalid. As Edelman J explained in his powerful dissent, legislation which restricted
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Yet, Australian administrative law is now5 generally conceptualised as a means of
enforcing the legal limits on executive power imposed by statute (from which most
executive powers now derive).6 Unlike in other common law jurisdictions, concepts
such as ‘good government’ or the prevention of ‘abuse of power’ have not become the
organising principles of judicial review.7 It is understood that judicial review plays an
important role in protecting individuals from the unlawful use of government power,
but courts profess no authority to protect individuals from government action that,
though unjust or otherwise deleterious to their interests, is within the boundaries of the
power that has been validly conferred.8 This is not to say that courts ‘must proceed in a
normative vacuum; but it is to say that the courts can only proceed for’ the purpose of
enforcing the law which determines the limits and governs the exercise of the
repository’s power.9 Thus the ambit of judicial review in any given case depends upon
the scope of executive power that has been conferred.10 The full scope of the entrenched
minimum provision of judicial review depends, in large part, upon the scope of
executive power that Parliament is capable of validly conferring.
We know that the Australian Constitution constrains the scope of executive power that
Parliament is capable of conferring in many different ways (which I outline in Section
II). The particular focus of this article is a further, more fundamental constraint, the
existence of which has been suggested but remains uncertain. It asks: is Parliament
incapable of conferring executive power of a certain kind or breadth, because the statute
that would be required to do so is simply not a ‘law’ for the purposes of the Australian
Constitution?
This question has been raised before in other constitutional contexts. 11 Its
significance for our understanding of the entrenched minimum provision of judicial
the courts’ access to information or otherwise impeded judicial review of executive action to
a far greater extent than s 503A(2) had been upheld in the past: Graham [2017] HCA 33 (6
September 2017), [80]–[84], [123]–[167]. This recent case will require further analysis, and is
revisited briefly below.
5 I say ‘now’, as it took time for any such organising theory to emerge: Stephen Gageler, ‘The
Underpinnings of Judicial Review of Administrative Action: Common Law or Constitution?’
(2000) 28 Federal Law Review 303. This is not to say that this theory is entirely clear, or
uncontested.
6 Of course, executive actors also enjoy certain non-statutory powers, but these are not the
focus of this article.
7
Matthew Groves, ‘Substantive Legitimate Expectations in Australian Administrative Law’
(2008) 32 Melbourne University Law Review 470, 506–23. See also Michael Taggart, ‘’Australian
Exceptionalism’ in Judicial Review’ (2008) 36 Federal Law Review 1.
8 For the canonical statement of this approach, see A-G (NSW) v Quin (1990) 170 CLR 1, 35–6
(Brennan J). This has become orthodoxy; the ‘root principle’ that informs judicial review:
Justice Kenneth Hayne, ‘Deference: An Australian Perspective’ [2011] Public Law 75, 77. See
also Matthew Groves, ‘Legitimate Expectations in Australia: Overtaken by Formalism and
Pragmatism’ in Matthew Groves and Greg Weeks (eds), Legitimate Expectations in the Common
Law World (Hart Publishing, 2017) 319, 323.
9 Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901, 914 [81].
10 Stephen Gageler, ‘The Legitimate Scope of Judicial Review’ (2001) 21 Australian Bar Review
279.
11 For example, it has been questioned whether a statute that abrogates fundamental rights can
be properly called a ‘law’. Some of the case law to consider this question is discussed below.
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The Entrenched Minimum Provision of Judicial Review and the Limits of ‘Law’
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review was highlighted in Plaintiff S157/2002 v Commonwealth (‘Plaintiff S157’).12 In that
case, the High Court confirmed that the federal Parliament cannot prevent the Court
from exercising the jurisdiction conferred on it by s 75(v) of the Constitution13—to,
roughly speaking, review the actions of ‘officers of the Commonwealth’—or otherwise
empower a non-judicial body to ‘determine conclusively the limits of its own
jurisdiction’. 14 Yet, the Solicitor-General of the Commonwealth suggested that the
Parliament had other tricks up its sleeve beside the privative clause, should it wish to
evade judicial review: Parliament could (for example) give the Minister for Immigration
‘a totally open-ended discretion as to what aliens can and what aliens cannot come to
and stay in Australia’.15
Though it was not necessary to consider in order to resolve the case before the Court,
the plurality in Plaintiff S157 warned that a statute of the kind mooted by the
Commonwealth ‘might well be ineffective.’16 One reason suggested for this was that it
‘would appear to lack that hallmark of the exercise of legislative power identified by
Latham CJ in Commonwealth v Grunseit, namely, the determination of “the content of a
law as a rule of conduct or a declaration as to power, right or duty”.’17
The passage from Plaintiff S157 has been relied upon by several applicants seeking to
challenge the constitutional validity of statutory conferrals of executive power—
sometimes, it seems, as an argument of last resort. 18 These arguments have not
succeeded, but the High Court has not clearly rejected their premise. Some judges have
clearly stated that there are no inherent constraints on what counts as ‘law’.19 Others
have suggested that there are some, though their nature and location remains unclear.20
In several cases, the question has been raised or else noted as extant by members of the
Court, but not answered.21 And while the scope of the entrenched minimum provision
12 (2003) 211 CLR 476.
13 Ibid 482 [3] (Gleeson CJ), 498 [53], 505 [73], 512 [98] (Gaudron, McHugh, Gummow, Kirby
and Hayne JJ).
14 Ibid 484 [9] (Gleeson CJ), 505 [73] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
15 Ibid 512 [101].
16 Ibid 512 [102].
17 Ibid 513 [102]. The plurality suggested that Parliament’s power to enact this kind of statute
might also be confined by separation of powers principles, or ss 51 and 52 of the Constitution.
The Solicitor-General of the Commonwealth suggested other ways in which a statutory
conferral of power could be designed, so as to make it impervious to judicial review (for
example, stipulating that the limitations imposed by that statute were in the nature of non-
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