The Normative Structure of Australian Administrative Law
| Published date | 01 June 2017 |
| DOI | 10.1177/0067205X1704500201 |
| Date | 01 June 2017 |
| Subject Matter | Article |
THE NORMATIVE STRUCTURE OF AUSTRALIAN
ADMINISTRATIVE LAW
Will Bateman* and Leighton McDonald**
ABSTRACT
This article analyses the normative structure of Australian administrative law through
the prism of two d istinct intellectual approaches to the law of judicial review: the
‘grounds approach’ and the ‘statutory approach’. We explore the development of both
approaches and track the contemporary ascendance of the statutory approach in light of
the political and constitutional context within which the practice of judicial review is
situated. We then reflect on the ways that each responds to two central legitimac y
problems which must be confronted by modern administrative law: the democratic
legitimacy of judicial review a nd the legitimacy of t he forms of law associated with
contemporary administrative government.
I INTRODUCTION
This article offers an interpretation of the development of the rules and principles which
govern the legality of government activity—the development, that is, of what we refer
to as the legal norms of Australian administrative law.
1
Our chief contention is that over
the course of the las t 40 (or so) years there has been a profound reorientation of how
these legal norms are conceptualised in Australian law. The shift has been away from an
approach which gives prominence to the identification and articulation of ‘grounds of
review’ towards an approach which gives increasing emphasis to statutory
interpretation and particulars. We call the first way of thinking about the legal norms of
administrative law the ‘grounds approach’ and the second the ‘statutory approach ’.
Despite dominating the imagination of Australian administrative lawyers in the
1970s and 1980s and animating statutory and doctrinal developments, the grounds
approach is no longer in vogue. The statutory approach began to build steam in the 1990s
and from 2003 the conditions for its ascendance were fixed. Although we do not claim
* Gonville and Caius College, University of Cambridge (PhD candidate).
** Law School, Australian National University. Thanks to Peter Ca ne, Christos Mantziaris and
Kristen Rundle for helpful comments and conversations.
1
Only from the second half of the twentieth century has it made sense to speak of a coherent
body of ‘administrative law’. That body of law consists of norms applied by courts, and
norms applied by bureaucratic institutions (which include merits review tribunals as well as
complaints and investigation bodies like the Ombudsman). While there will be overlap
between those bodies of law, our focus is on the norms applied by courts in exercise of their
judicial review jurisdiction. For ease of expression, we give them the title ‘legal norms’.
154 Federal Law Review Volume 45
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that the grounds approach has been expunged, the statutory approach has become
dominant and is the ‘new normal’. Our primary purpose in mapping this shift of
emphasis in the normative structure
2
of Australian administrative law is explanatory, to
stand back from the morass of cases in an attempt to illuminate the ideas and values that
have shaped the evolution of the law of judicial review in Australia. The identified shift
is aptly described as profound because it carries with it higher order implications for
how we understand the legitimacy of administrative law and administrative
government.
The contrast between the two intellectual approaches to the legal norms of
administrative law is elaborated and illustrated in Part II of the article, where we also
explain the interpretive nature of our argument. We make clear that our task is not to
recite major administrative law holdings in an attempt to demonstrate that the ‘statutory
approach’ has been authoritativel y adopted by the High Court, but to offer an
interpretation of the case law (grounded in the political and constitutional context within
which judicial review is located). We argue that a shift in the formal grammar of the law
of judicial review has resulted in a shift in the basic structure of its justification.
The article then moves to situate our argument in hi storical perspective, surveying
the key historical moments in thinking about the legal norms of m odern administrative
law, particularly the idea of the ‘grounds of review’. Although that idea is an established
part of the contemporary administrative lawyer’s toolkit,
3
the history is murky. Part III
of the article explores the intellectual origins of the concept, acknowledging that the
notion of discrete, albeit overlapping, grounds of judicial re view is relatively modern.
In its pre-moder n guise, judicial review had a strong remedial orientation. The idea of
the grounds of review (abs tracted from the question of the availability of a particular
remedy) enabled jurists on the bench and in the academy to self-consciously identify
and develop a set of general standards of conduct to regulate administrative decision-
makers—basal norms of good administration. The enactment of the Administrative
Decisions (Judicial Review) Act 1977 (Cth) was in lock step with this project.
Part IV charts the movement from the grounds approach to the statutory approach.
This movement was incremental, but it had a discernible chronology which we illustrate
through the identification of important intellectual steps taken in four well-known cases.
Behind the reorientation of the law to reflect the statutory approach lay a number of
political and constitutional questions, the most significant of which has been the
democratic legitimacy of judicial review.
Finally, Part V of the article will examine the gains and losses associated with the
statutory approach to thinking about the legal norms of administrative law. Although
the statutory approach may be thought to bring gains in terms of the legitimacy of
judicial review, it jettisons the normative functions of predictability, app licability and
2
The language of ‘norms’ and ‘normative structure’ will be familiar to readers of High Court
judgments (but, our use of those terms is, at times, broader than the Court’s) : Houghton v
Arms (2006) 225 CLR 553, 563 [25]; Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 610
[74]; Crimmins v Stevedoring Committee (1999) 200 CLR 1, 59–60 [162]; Plaintiff S10/2011 v
Minister for Immigration and Citizenship (2012) 246 CLR 636, 655 [97]; Wong v Commonwealth
(2009) 236 CLR 573, 594 [65]; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam
(2003) 214 CLR 1, 23 [72].
3
Open any administrative law text in the UK or Australia and a chapter or series of chapters
on the various grounds of judicial review will be discovered.
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