The Rights of Citizens and the Limits of Administrative Discretion: The Contribution of Sir Anthony Mason to Administrative Law
| Published date | 01 June 2000 |
| Author | Margaret Allars |
| DOI | 10.22145/flr.28.2.3 |
| Date | 01 June 2000 |
| Subject Matter | Article |
THE RIGHTS OF CITIZENS
AND
THE LIMITS OF
ADMINISTRATIVE DISCRETION: THE CONTRIBUTION OF
SIR ANTHONY
MASON
TO ADMINISTRATIVE LAW
MargaretAlIars*
INTRODUCTION
It
seems natural, almost inevitable,
that
courts
should
perceive their role
in
judicial
review
as protection
of
the
rights of citizens.1Presented
with
litigation
between
citizens,
the
court
protects the rights of the
party
.entitled to win.
In
the
case
of
litigation
between
citizen
and
government,
if
there
are
any
rights
at
all to protect,
they
will
be
rights of citizens. We
can
hardly
speak
of
rights of government. Yet
government,
in
exercising
powers
conferred
by
the
parliament
which represents
the
people
in
accordance
with
the will of
the
majority, claims a
mandate
to
make
policy
and
implement
it.
Perhaps
this
mandate
is also a
right
deserving
of
the protection
of
the
courts.
It
could
be argued, after all,
that
the public interest consists
in
the
collective
rights
of
the majority.
The
response to
the
counter-majoritarian
argument
is well known.
Even
if
we
accept
that
the
legislature
IS
will expressed
by
conferral of
power
upon
the
executive
branch
reflects
the
majority's interests,
any
representative nexus is
interrupted
by
the
exercise
of
administrative discretion to choose
and
interpret policy. The
assumption
that
discretionary decisions of the executive
branch
simply
reflect a
pursuit
of
the
public interest
in
accordance
with
the will of the legislature is misconceived. Public
law
academics
have
sought
to dispel the notion
that
there is one public
interest
pursued
by
government;
and
to identify the competing interests of sectors
of
the
community
which
are
affected
by
discretionary decision-making.2Acceptance
of
this
pluralist
argument
has
important
implications for reform of administrative processes
and
the principles
applied
in
judicial review,
such
as rules of standing. Yet
if
*
1
2
Thanks
are
due
to
Tim
Stephens
for research assistance
funded
by
the
Australian
Research
Council.
The
term
"citizen" is
employed
in
this essay,
not
with
the
technical
meaning
found
in
migration
and
citizenship laws,
but
rather
in
the
wider
and
jurisprudential
sense
of
a
person
in
areciprocal relationship
with
government
defined
by
political
and
civil
rights
and
duties.
See THMarshall, Citizenship and Social Class and Other Essays (1950)
at
8;
WKymlicka
and
W
Norman,
"Return of
the
Citizen: A
Survey
of Recent
Work
on
Citizenship
Theory"
in
RBeiner (ed), Theorizing Citizenship (1995)
at
283.
See
generally
P P Craig, Public Law and Democracy in the United Kingdom and the United
States
of
America (1990)
at
159-162.
188
Federal
Law
Review
Volume
28
participative processes
were
introduced to structure discretionary decision-making
in
a
manner
conducive to achieving
an
accommodation
of
competing interests of
groups
of
citizens,
it
would
still
be
contestable whether the executive branch of
government
has aright to
pursue
the
policies selected
through
the process.
In
the context of judicial review the
group
interests
at
stake
are
often easily
discerned
by
reason of the representative role of the applicant, which
may
be federal
or
state government, adepartment, agency,
trade
union, local
councilor
public interest
group.
More
frequently the applicant is
an
individual
and
group
interests
are
subdued,
perhaps
attracting attention only as a
matter
of indirect consequence. The issue before
the
court
is blatantly aconflict
between
the
rights of acitizen
and
the claimed "right"
of
government
to
act
in
the public interest. To safeguard the rights of the citizen,
whether
represented
or
not,
the
court
must
identify the limits of
the
discretion of the executive
branch.
This
paper
seeks to develop
an
understanding
of the background theory
which
might
explain Sir
Anthony
Mason's conception of
the
relationship
between
the
citizen
and
the
state.
That
relationship is defined
by
the limits placed
upon
administrative
discretion, limits
which
may
be
defined by reference to rights of citizens. Sir
Anthony
has
demonstrated
aclear conception of the role
of
the
High
Court
as
an
institution
operating
within
aparticular social
and
historical context, influencing
and
responding
to
community
values.
In
his extra-judicial writings Sir
Anthony
has expressed
the
view
that
although
judges
are
appointed
indirectly
by
the elected representatives of
the
people,
they
should
not
expect to function as representatives of
the
people themselves:
U]udicial
independence
is
an
essential
element
of
modern
democracy
in
which
the
citizen's
rights
and
interests, enforceable
against
government,
are
of
vital
importance.
3
What
then
is
the
function of the courts? This enterprise cannot
hope
to identify
with
precision aparticular version of democratic theory which one
might
attribute to Sir
Anthony. But
it
will
be
argued
that
the general parameters of
such
atheory encompass
astrengthening of citizenship, tempering the claim
that
the doctrine of parliamentary
sovereignty sanctions
the
exercise of unlimited administrative discretion. Sir
Anthony
has
long cherished avision of aresponsive
and
deliberative form of democratic
government.4
During
the
period
from the early 1970s to the
mid
1990s, as formal
reasons for adherence to English precedent were removed
and
shy
judicial confessions
to arole
of
making
new
law
in
hard
cases were first uttered,S Sir
Anthony
played
a
central role
in
the
transformation of administrative
law
to distinctively Australian
principles
which
could
nurture
that
vision.
In
the course of extra-judicial
comment
since his retirement
he
asserted
that
"[t]here is
no
place in the
modern
democratic
world
for a
supine
judiciary."6 This
was
not, however, ajurisprudence of rights
run
3
4
S
6
Retirement
of
Chief
Justice Sir
Anthony
Mason
(1995) 183 CLR
vat
vi. See also Sir
Anthony
Mason,
"The
Future
of
the
High
Court
of
Australia" (1996)
12
QUTLJ 1
at
3.
Sir
Anthony
Mason, "The Wilfred
Fullagar
Lecture:
Future
Directions
in
Australian
Law"
(1987)
13
Monash
ULR
149
at
158; "The
Future
of
the
High
Court
of
Australia" (1996)
12
QUTLJl
at5.
Justice MKirby, "Sir
Anthony
Mason
Lecture 1996: A F
Mason-From
Trigwell
to
Teoh"
(1996) 20 MULR 1087
at
1095-1097
and
1098-1099.
For
Sir
Anthony's
views, see Sir
Anthony
Mason,
"The Role of
the
Courts
and
the
Tum
of
the
Century" (1993) 3
JJA
156
at
163-166.
Sir
Anthony
Mason, "The Judges.
The
Community
and
the
Media" (1997)
12
Commonwealth
Judicial
Journal
4
at
5;
"No Place
in
a
Modem
Democratic Society for a
Supine
Judiciary"
(1997) 50
Law
Soc
Jo
51.
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