Allsop, Justice James --- "The Control of the Executive by the Courts" (FCA) [2002] FedJSchol 17

The Control Of The Executive
By The Courts

Paper delivered at the Australian National University on 1 November 2002 by Justice James Allsop of the Federal Court of Australia

Introduction

1. I am grateful to be invited to deliver this paper, and to be given the opportunity of viewing matters from a somewhat wider perspective than one is usually afforded.
   
2. The title of the paper suggests, at once, a scope of subject matter unable to be covered in a paper such as this. It is necessary, therefore, to confine discussion to specific topics or themes, which I hope will be of interest.
   
3. What I have sought to do is, first, give a reminder as to the reach of the topic – that is the multi-contextual role of the courts in dealing with the executive. Courts “control” or influence not merely by undertaking judicial review of administrative action, but by the exercise of judicial power in resolving disputes involving, for instance, contracts, torts and restitution. Secondly, I have sought to expose some of the interrelated questions underlying the relationship between judicial and executive power and the place of parliamentary authority within that relationship. These questions: the basis of judicial intervention, the role of the courts, the constitutional context thereof, the rule of law and justiciability – concern not only the two arms of government which frequently meet in court in the resolution of individual disputes (the courts and the executive), but also Parliament itself. This is generally so for an uncontroversial reason: often the dispute concerns the ascertainment of the will of Parliament in the words of a statute. However these questions can raise more profound and difficult questions than statutory construction and interpretation.
   
4. For instance, presently before the High Court[1] is the debate about the interpretation, function and constitutional validity of s 474 of the Migration Act
   
   
   1958 (Cth), a so-called “privative clause”[2]. The debate before the High Court has raised some resounding questions: Is there a limit to Parliament’s power to clothe the executive with lawful authority in relation to a given task? If so, what is that limit? Or, to pose a distinct, but related, question: What is the extent of Parliament’s lawful authority to remove a subject of executive action from judicial scrutiny?
   
5. I will return to these questions in due course, in their context. However, it is appropriate for me to say the following at the outset. In canvassing these questions I do not seek to be controversial. Rather, with the benefit of the opportunity to view matters with a somewhat broader perspective than is available in the day-to-day deciding of cases, it is appropriate, I think, to raise such fundamental issues, which are presently presenting themselves for consideration. There is an almost innate (and generally healthy) tendency of practising lawyers in Australia to eschew theory, in favour of the practical application of common sense. However, from time to time, questions arise which require for their resolution the assistance of legal theory. It is unnecessary to delay to debate the validity of the first sentence of chapter 1 of Professor Friedmann’s Legal Theory[3]. However, it is well to remind oneself of the need to expose the postulates or assumptions by reference to which, and with the assistance of which, the resolutions to such questions are reached.
   
6. I have not sought to express any answers to any hard questions. It would be inappropriate and presumptuous to do so, in particular in the absence of argument. Also, in large part, if not wholly, these questions are ultimately for the High Court. (Though, perhaps, by the last sentence, some would say that, with the assistance of a suppressed premiss, I have already answered one hard question.)
   
7. The nature of the discussion ranges over the role and position of the courts, executives and parliaments at both Commonwealth and State levels. At times, specific express consideration needs to be given to one or the other. I have not always differentiated the different constitutional positions of each polity. I apologise in advance.
   

The Nature and Identification of Executive Power

8. It goes without saying that at all times the executive must act according to law[4]. To the extent that the courts themselves are the institutions in society identifying, interpreting and, at times enforcing[5] the law, they can be said to control the executive, insofar as that role affects the exercise of executive power.
   
9. One point at which this control can manifest itself is the identification of the existence and nature, of the executive, which task may entail identification of the boundaries of executive power.
   
10. Executive power can simply be seen as power, other than legislative and judicial, conferred by law[6]. This commences the discussion with a given framework of analysis as a premiss – the tripartite division of governmental authority upon which, in important respects, the Australian Constitution and system of government is founded[7].
    
11. Executive power derives from the Constitution, from statute, and from the prerogative of the Crown. The vesting of all executive power in the Sovereign[8], leads to the exercise of almost all executive power by the executive government, through a minister responsible to Parliament[9].
    
12. Part of the executive power owes its legitimacy to the prerogative of the Crown[10]. To say as much identifies the need, at times, to recognise the difficulty and vagueness of the enquiry as to the nature of that prerogative (involving sometimes arcane historical enquiry[11]); it also reminds one that the extent of that prerogative and its claimed foundation of natural and divine law[12] were the subject matter of sectional and constitutional struggles in England from the early thirteenth century. However, the executive, certainly at least the Commonwealth executive, has, apart from statute, a modern source of its authority: the Constitution, especially s 61[13], which is to be interwoven with the residue of the exercise of regal power. The expressions that one sometimes sees that it is to the Constitution (and in particular s 61) that one looks to identify the executive power of the Commonwealth, and not to the Royal prerogative[14], do not, it seems to me, make historical enquiry necessarily irrelevant. That constitutional context is vital, but it will not necessarily make irrelevant the ascertainment of an historical prerogative, at least as at 1901. Of course, any historical prerogative will need to be placed into the framework of the constitutional compact as it has evolved. In ascertaining the nature of that compact and the place in it of executive power which had its origins in the prerogative an understanding of history is essential to understand the present, and not to bedevil the future[15].
    
13. The historical source of the prerogative in the regal person brought not only authority to act, but also attributes or characteristics special to the Crown’s position. These inherent attributes of the Crown, subject to statutory destruction or modification, are recognised, delineated and enforced by the courts.
    
14. Whilst the extent of the prerogative is less than clear[16] some categorisation and delineation is possible. Dr Evatt, in Ch III of his work[17], divided the prerogative into (a) a right on the part of the Sovereign to do certain acts without statutory authority, for example declare war and peace, coin money, seize property of a subject in time of war, incorporate by royal charter, issue letters patent in respect of inventions, pardon offenders and confer honours, (b) immunities and privileges arising from the regal position, for example the priority of payment over other creditors, immunity from suit and costs (absent, of course, statutory intervention), and (c) property rights, for example the right to escheat, to mines, to treasure trove, foreshores and the sea bed. The role of the courts in dealing with these immunities and the proprietorial prerogative can be seen in A-G for New South Wales v Butterworth & Co (Australia) Ltd[18], Federal Commissioner of Taxation v Official Liquidator of EO Farley Ltd[19], New South Wales v The Commonwealth[20] and the body of law dealing with “the shield of the Crown” and its relationship with statutory interpretation[21].
    
15. In addition to the powers to act referred to in Dr Evatt’s first category referred to above, deriving from the special person or position of the Sovereign, there are what might be termed “governmental powers”. Maitland enumerated these in 1888 as follows:[22]
    • (a) powers relating to the Constitution, assembling and dissolving of Parliament, and of assenting to statutes,
    • (b) powers relating to foreign affairs, to peace and war,
    • (c) powers of appointing and dismissing officers, civil and military, executive and judicial,
    • (d) powers relating to the collection and expenditure of the revenue,
    • (e) powers relating to military and naval forces,
    • (f) powers connected with the administration of justice,
    • (g) powers connected with the maintenance of order,
    • (h) powers connected with social and economic affairs, such as public health, education, trade, etc, and
    • (i) powers connected with religion and the national church.
      
16. A similar extraction of powers can be made under s 61 and attributed to the Sovereign: for example, defence of government institutions and property[23], defence of the realm, declarations of war and peace, requisitioning land and goods for the defence forces, emergency[24] and border control or protection[25].
    
17. Over the years, a number of these powers, for example the executive power to make treaties, have developed, and their changing nature and acceptance can be seen in the attitude of the courts, as political and constitutional changes occurred. In 1916 the question of war and peace was for the Imperial Sovereign[26], by 1951 the Commonwealth Solicitor-General could advise to the opposite effect[27]; by 1983 the High Court had expressed the foreign affairs and treaty making powers of the executive in wide terms[28] consistent with Australia’s position in the community of nations.
    
18. An issue being put forward in some cases in the Federal Court in recent times reflects the interwoven relationship, between the prerogative analysed from an historical perspective and the executive drawn from the modern fabric and structure of the Constitution, to be found in the task of identifying the content and limits of the executive power in s 61 of the Constitution. In Teoh[29] Gaudron J, whilst in agreement with Mason CJ and Deane J as to the status of the relevant international Convention[30] in Australian law (and thus its effect on the rules of natural justice), also grounded her decision on the proposition that the best interests of a child who was an Australian citizen were obligatory considerations for a decision-maker to take into account at common law if the decision could adversely affect the child and his or her interests[31]. According to her Honour, such were relevant considerations in the sense described in Peko-Wallsend[32], that is, mandated by law to be taken into account. Gaudron J called in aid of that conclusion the notion of parens patriae[33], as an aspect of the historical prerogative, and the bilateral obligations of citizen and state in a modern “civilized democratic society”[34], as an aspect of the modern constitutional compact. It would seem that if such an obligation at law is to be found to exist (subject to any contrary statute), it is an aspect of the content of the executive power under s 61 of the Constitution, as an immanent circumscription of the executive power (at least insofar as the Commonwealth executive is concerned), and so is a question involving the interpretation of the Constitution[35].
    
19. The lack of clarity in the delineation of the prerogative power highlights the role of the courts in enquiring into the existence, and extent, of any claimed prerogative[36]. At the same time, the course of constitutional and political development from and after the First World War[37] and the recognition of the development of Australian sovereignty, with the concomitant recognition of executive power, without the role of the courts, should not be ignored.
    
20. Although the courts have the jurisdiction to decide on the existence and limits of the prerogative, the question of the review of its exercise, and the ability and willingness of the courts to undertake that task are different matters, with which I deal below[38].
    
21. The relationship between the prerogative and statute reflects, of course, the constitutional supremacy of Parliament[39]. The nature of that relationship has been recently the subject of attention by the Full Court of the Federal Court in Ruddock v Vadarlis[40]. The judgments in that case reveal the historically based enquiry and the modern constitutional enquiry, both of which are part of an examination of the existence, and limits, of executive power, and its affectation by statute. The subject was also dealt with by the House of Lords, Court of Appeal and the Privy Council in a number of cases[41], by the High Court in 1935 in R v Bradley and Lee[42], and in 1974 and 1975 in Barton v The Commonwealth[43] and Johnson v Kent[44], by the New Zealand Court of Appeal in 1950[45] and 1955[46] and, after very full (and reported) argument, by Long Innes CJ in Eq in New South Wales in 1938[47].
    
22. The principles governing that interaction were dealt with in Ruddock v Vadarlis. The circumstances of Ruddock v Vadarlis are well known. The action of the Commonwealth executive in preventing the persons on board the MV Tampa from landing in Australia were not the subject of any particular statutory authorisation. A prerogative power, or more accurately, executive power under s 61 was relied upon.
    
23. The first question, leaving to one side the effect of the Migration Act, was whether there was executive power, absent statute, to support the acts done. Black CJ first examined the matter from an historical perspective. His Honour concluded (at [29]) that it was, at best, doubtful whether the asserted prerogative continued to exist. He proceeded on the basis that its existence was uncertain. Section 61 of the Constitution was not seen as a source of any firmer authority. French J (with whom Beaumont J agreed) expressed a stronger view about the prerogative (leaving aside the effect of the statute). He referred to the “gate-keeping function”. His Honour was stronger than Black CJ in his expression of the power, in particular as incident of the sovereignty of Australia. He said:[48]

In my opinion, the executive power of the Commonwealth, absent statutory extinguishment or abridgement, would extend to a power to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion. This does not involve any conclusion about whether the executive would, in the absence of statutory authority, have a power to expel non-citizens other than as an incident of the power to exclude. The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australia community, from entering.

[emphasis added]

24. This difference in view as to the robustness of the power, contributed to the difference in view reached by Black CJ and French J as to whether the Migration Act had driven the prerogative from the field. There was a degree of agreement on the enunciation of legal principle as to the relationship between the statute and the prerogative or executive power. Where a statute expressly or by necessary intendment purports to regulate an area of activity of a prerogative or executive power or right, the statute governs: AG v De Keyser’s Royal Hotel[49]. This is an aspect of the supremacy of Parliament. French J emphasised, however[50], that the executive power, under s 61 of the Constitution, should not be seen as a species of prerogative – that is as a relic having survived history, waiting to be obliterated by parliamentary will. Rather, it is a part of the constitutional fabric in ch II. This perspective led to an emphasis by French J on the need for clarity in the displacement of the prerogative. His Honour referred to Barwick CJ in Barton v The Commonwealth who said:[51]

the rule that the prerogative of the Crown is not displaced except by a clear and unambiguous provision is extremely strong.

25. Their Honours disagreed as to the construction of the Migration Act. Black CJ was of the view that the statute covered the intended field; French J was of the view that there was not an express or necessarily implied intention to displace the executive. Relevant to the view of Black CJ that there was a displacement was the perceived weakness of the very existence of the prerogative[52].
    
26. Another recent case, in the United Kingdom, dealing with the relationship of Parliament, legislation and the executive was R v Secretary of State; Ex parte Fire Brigades Union[53]. (It is also relevant as to the question of justiciability and the role of the courts, with which I deal below.) A fault-based criminal compensation scheme had been set up and administered under the prerogative since 1964. In 1988, it was substantially embodied in statutory form, being enacted to take effect “on such day as the Secretary of State may... appoint”. No such appointment was made. In December 1993 a White Paper was published on the topic, giving details of a proposed tariff (non-fault) based scheme to be run on an ex gratia basis exercising the prerogative power. The White Paper drew attention to the advantages of this course. The following is recorded in the judgment about the advantages:[54]

The White Paper gave details of a proposed tariff scheme under which awards would be based upon a tariff according to the injuries received without any separate or additional payments being made for loss of earnings or other past or future expenses. The White Paper drew attention to the rise in the number of awards and cost of the old scheme and concluded that the new scheme would be more readily understood and enable claimants to receive their compensation more quickly and in a more straightforward matter. It also pointed out that the cost of administration should come down and that claimants should receive a better service.

27. The apparent policy (political and administrative) considerations are manifest.
    
28. The White Paper also gave notice of a decision of the government to seek repeal of the statute. Parliament subsequently voted moneys in appropriation to administer the proposed scheme.
    
29. This conduct of the government was successfully challenged in both the Court of Appeal and the House of Lords, by majority in both[55]. It was held to be an abuse of power.
    
30. In the House of Lords their Lordships agreed that the statute, not being put into effect, did not displace the executive. However, the majority held that to exercise the prerogative in a manner contrary to an unrepealed statute was in effect to frustrate the will of Parliament. The powerful dissenting judgments of Hobhouse LJ (in the Court of Appeal), and Lord Keith of Kinkell and Lord Mustill stressed the ability of Parliament to remedy any offence to Parliament and the lack of role for the courts in the matter.
    
31. The notion of the prerogative In Australia must, of course, be fitted within, and conform to, the federal compact. The need to identify the legitimate extent of Commonwealth and State executive power in the federal polity gives rise again to the role of the courts in identifying and delimiting executive power.
    
32. Section 51 of the Constitution defines the legitimate area of the exercise of legislative power by the Commonwealth Parliament[56]. No division of executive power between the Commonwealth and the States is made expressly in the text of the Constitution. The courts have recognised a similar division of executive authority by reference to the division of legislative power[57]. After early views that s 61 was limited to execution and maintenance of the Constitution and the laws of the Commonwealth[58], it is now accepted that s 61 confers on the Commonwealth all the prerogative powers of the Crown except those that are necessarily exercisable by the States under the allocation of responsibilities made by the Constitution and those derived otherwise from the Constitution itself[59]. The implication of parliamentary authority arising from the status of the Commonwealth as a nation leads to the implication of like executive authority.
    
33. The purpose of this paper is not to explore the limits of Commonwealth or State executive power, but rather to highlight the role of the courts in “controlling” the executive, at this point, by identifying its limits. The role of the courts has been important in identifying and setting limits to various kinds of executive action: for example, the need for statutory authority and appropriation for contracts entered by the executive outside ordinary administrative conduct[60], the control of discretionary expenditure of public funds[61] and the power to request extradition of someone from a country absent an extradition treaty[62].
    
34. The federal nature of the polity may require the answering of a question as to whether only one or both of the Commonwealth or the States are possessed of an aspect of executive authority[63]; and, consequently, whose parliament is authorised to destroy, replace or otherwise affect the executive power[64]. For example, the executive power as to defence and war is for the Commonwealth[65], as is the executive power concerning external affairs[66]. The affectation of executive power legitimately within the sphere of one polity by legislation of another might attract the implied prohibition enunciated by Dixon J in the Melbourne Corporation Case[67].
    

Litigation Controlling or Affecting How the Executive Acts

35. The role of the courts in “controlling” the executive may also be examined from at least two other perspectives. First, the courts have a supervisory role of “judicial review” in relation to acts and decisions of the executive – essentially to restrain the unlawful or unauthorised exercise of power. Secondly, the courts enforce rights and obligations between the executive and the person in contract, tort, restitution and other areas of private law[68].
    
36. Before dealing briefly with the second of those perspectives, it is worth noting, at this point, that the question of the justiciability of a matter, which is discussed below[69], is not limited to the question of judicial review of executive action. It is a subject which can pervade more widely the examination of executive conduct and it consequences.
    

Private Law Control or Influence

37. The subject of the executive’s power to contract is, as I have said, a topic in itself. It is sufficient to say at this point that, save for contracts between governments not intended to create legal regulations[70], but rather political relations, the courts will decide the rights and obligations of the executive.
    
38. In the law of torts, important constraints, of a practical nature, are placed on the executive by the courts and the law. Intentional abuse of power may sound in damages[71]. More importantly, perhaps, is the control, or affecting, of governmental decision-making by the imposition of liability in damages for conduct or omission to act which is otherwise in good faith, and indeed within power. The (almost imperial) march of the law of negligence has had a particularly strongly felt effect on public administration, perhaps more particularly at State level[72]. The mere fact that an exercise of power or the absence of an exercise of a power is lawful and authorised[73] by the governing statute or aspect of the prerogative, does not answer the question as to whether there exists, nevertheless, a liability in damages for the negligent exercise or non-exercise of the power.
    
39. In a series of cases[74] the High Court has discussed the role played not only by the governing statute in identifying the powers, duties and responsibilities of a public authority, but also by the elements of control over the safety of the person, property and economic well-being of the plaintiff, and of the vulnerability of the plaintiff, to impose a duty of care on a public authority in the way powers are exercised or not exercised. In some circumstances, that may transform a power into a duty, if liability is to be avoided.
    
40. I deal with “justiciability” later[75]. However, at the level of practical litigation, and every-day human affairs, there is something to be said for the proposition that, in some cases, the open-ended enquiry into matters relevant to why an authority did or did not act (and so to questions of the formation and breach of a duty of care) including relationship, proximity, control, responsibility, feasible available alternatives, funding and policy choices for the use of available scarce funds, puts the courts in the position of assessing decisions which might be said to be peculiarly for the executive[76].
    
41. With the growth of restitution, both as an area of study[77] and as the foundation of claims for recovery of money[78], the executive has become exposed to claims for repayment of moneys exacted without lawful authority[79], with interest[80].
    

Supervisory Jurisdiction – Judicial Review

42. Whilst recognising the important role now played by judicial review of administrative action in the exercise of jurisdiction conferred by statute, and the difference, which may be necessary to recognise, between the position of State courts and federal courts, it is essential to appreciate the common law and constitutional framework of the role of the courts in judicial review.
    
43. Judicial review at common law is concerned with the legality of the exercise of power or its purported exercise[81]. The essential warrant for the exercise of judicial power in respect of administrative action is to declare and enforce the law affecting the extent and exercise of power[82]. This involves ensuring that executive action does not exceed constitutional warrant, or the limits of statutory or prerogative authority; and the duty of the court extends to the review of executive action otherwise not in conformity with the law[83]. It is the limits of the authority, and the legality of the exercise of the authority, which the High Court has firmly held is the basis, and the only basis, for judicial intervention[84]. Nevertheless, the march land separating legal and factual questions sees a constant struggle of evolving legal theory. For instance, the law of legitimate expectations has evolved over but 30 years to a point where, at least in England and Hong Kong, it has absorbed and synthesised the law of estoppel into the public law questions of procedural fairness and compulsorily relevant considerations: Ng Sin Tung v Director of Immigration[85] adopting the English law on substantive legitimate expectation. A familiarity with the task of pleading the relevant facts in an estoppel by representation case, or conventional estoppel case, leads to an appreciation of the inroad into factual matters raised by this legal question.
    
44. In Enfield[86] the High Court rejected the proposition that the courts should defer to tribunals or administrators in the statement of the law, in particular the construction of statutes with which the tribunal or administrator has a particular familiarity or expertise. This was a rejection of what is referred to in the United States as the “Chevron doctrine”[87]. In Canada, for many years, the Supreme Court maintained the view expressed by the High Court in Enfield[88]. Then a change came about reflecting a view comprehending deference in legal questions[89].
    
45. Accepting that the courts are the repository for the identification and enforcement of the law, one needs, of course, to ascertain the law, and to understand the circumstances in which the courts will intervene.
    

“Common law” review

46. Leaving aside the statutory[90] jurisdictional basis for exercising judicial review, the structure of the methods for curial intervention in Australia appears to be as follows.
    
47. There would appear to be a division in analysis between, on the one hand, administrators and tribunals, and, on the other hand, inferior or statutory courts. The division reveals itself in the scope of the notion of “jurisdiction”. In respect of administrators and tribunals, in the absence of a contrary intent in the relevant legislation[91], an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law[92]. In that context, the well-known statement in Craig as to administrative jurisdictional error was made[93]:

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

48. The error is jurisdictional because the authority is to act or decide according to law. This is to be contrasted with the position of courts whose authority or jurisdiction is to hear and adjudicate[94], within which jurisdictional activity there is authority to decide questions of law and fact. Correction is available for these errors within jurisdiction by the appeal process, or the non-jurisdictional scope of certiorari for error on the face of the record[95].
    
49. A reading of Craig[96] might have led one to conclude that, in relation to administrative tribunals and decision-makers, Australian law was conformable with the approach of the House of Lords in Anisinimic Ltd v Foreign Compensation Commission[97], and that, in relation to administrative tribunals and decision-makers, the distinction between jurisdictional and non-jurisdictional error of law had been eliminated; and that to decide otherwise than according to law was an error going to jurisdiction[98].
    
50. However, that would appear not to be the case. In Coal & Allied[99] Gleeson CJ, Gummow J and Hayne J in dealing with the Australian Industrial Relations Commission[100] limited the scope of jurisdictional error as follows[101]:

There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council[102], it “misunder[stood] the nature of [its] jurisdiction... or ‘misconceive[d] its duty’[103] or ‘[failed] to apply itself to the question which [s 45 of the Act] prescribes’[104] ... or ‘[misunderstood] the nature of the opinion which it [was] to form’[105]”. The Full Bench did none of those things.

51. That this seems to be a narrower formulation than Craig was reinforced by the following paragraph[106] in their Honours’ reasons:

In his reasons for decision, Giudice J proceeded on the basis that the Full Bench could intervene only if there was error on the part of Boulton J. In this his Honour was correct. Giudice J held that there was error on the part of Boulton J. If he was wrong in that view (a matter upon which it is unnecessary to express an opinion), that was an error within jurisdiction not an error in respect of which relief could be granted by way or prohibition or mandamus under s 75(v) of the Constitution.

52. This apparently narrower formulation than in Craig may be explained by a narrower jurisdictional analysis for some tribunals, such as the “court-like” AIRC and their status as quasi-judicial tribunals equivalent to courts, or it may be a general recognition of the need to examine decisions of all tribunals and decision-makers as to jurisdictional and non-jurisdictional error in their particular statutory context.
    
53. The former view may well have the effect of reintroducing the “administrative”, “quasi-judicial” and “judicial” categorisations and the distinction between jurisdiction and ultra vires[107]. The latter is probably the better view[108].
    
54. The decision whether an error is jurisdictional or non-jurisdictional often gives rise to differences of opinion[109]. Of course any relevant statute will be vital in any consideration of this question. The emphasised words in Craig in [47] above should be recognised. Within the confines of constitutional limitations[110], arising, in particular, from the separation of judicial and executive powers[111], the statute will assist in the task of understanding whether an error in approach is to be seen as one within or outside its jurisdiction. After all, “jurisdiction” of a tribunal or administrator is no more and no less than his, her or its authority to act[112] – the authorisation, if it comes from statute, should be assessed by reference to that statute[113].
    
55. The nature, function and responsibilities of the administrative agency (whether a decision-maker or a tribunal) will generally be found in the relevant statute. The nature, function and responsibilities of the tribunal may reveal it to be charged with the tasks of answering legal questions as part of its deliberative and adjudicative tasks (even if it does not purport to exercise judicial power). If so, that may lend weight to a characterisation as “quasi-judicial”, but, more importantly, it may lead to the conclusion that, as a matter of the intention of Parliament, a tribunal with those attributes is to be taken as having (like the AIRC in Coal & Allied) the authority to decide some legal issues (and err in that task). This same conclusion might not be reached about a delegate of a minister charged with making a decision of a similar kind. From the two different statutory regimes one might well find different conditions, and a different statutory intention, governing the exercise of the power[114]. In Returned & Services League of Australia (Victoria Branch) Inc v Liquor Licencing Commission[115], Phillips JA (with whom Charles and Buchanan JJA agreed) saw the distinction between courts, on the one hand, and tribunals and decision-makers, on the other, as not finally presumptive of the enquiry, but of assistance in the process of statutory interpretation in ascertaining what authority had been committed to the decision-maker, tribunal or court[116].
    
56. The criteria for distinguishing between jurisdictional and non-jurisdiction error of law and the place of the character of the decision-maker in that assessment, perhaps, awaits authoritative exposition. Although, as I have said, to the extent that the decision is made pursuant to statute, the close examination of the statute in order to ascertain the nature of the authority to make the decision and the nature and extent of any conditions on the exercise of the authority and the intended consequence of failure to meet such conditions is essential, and the first, and probably controlling enquiry.
    
57. Also, it can be safely said that the enquiry is not purely a temporal one. The authority which must be conformed with is to act or decide; it is not an analysis of whether he, she or it was doing the task which it had authority to embark on, unless the statue so identified the nature of the authority.
    
58. Sometimes said to be of assistance in distinguishing between jurisdictional and non-jurisdictional error is the assessment whether the error made is the very issue for decision, and if not, its proximity to the very issue for decision[117]. The closer the error to the very question for decision, the more likely it is to be within jurisdiction – as an error doing the very task committed.
    
59. This discussion perhaps highlights one of the clear advantages of the use of statutory foundations of jurisdiction such as the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act) – legal error leads to review. It also highlights the clear fault-line of errors of law and errors of fact. Of course, some factual matters, including states of mind or satisfactions can be jurisdictional[118]. Also, factual matters may raise legal questions and betray legal error. The nature of fact finding might betray an error of approach of the kind described in Craig or Coal & Allied. There may be an entire absence of evidence to support the finding[119] or the decision may be “Wednesbury unreasonable”. But generally, fact finding and weighing of material and policy are the tasks of the administrator.
    
60. Whilst the High Court was adamant in Enfield that there was no deference to the executive on questions of law, in dealing with factual questions made necessary by the existence of a jurisdictional fact, the High Court made equally clear that there would be great weight attached to the fact finding of a specialised tribunal[120]. The Court recognised that even in jurisdictional enquiries a significant degree of deference to appropriate decision-makers may be accorded in respect of fact finding. This may be relevant to other contexts where the question whether a legal requirement or standard has been met involves, in part, a factual question. For example, if the procedures of a specialised tribunal are thrown into question in a natural justice case, it may be that the satisfaction of the legal standard comes down to whether, in the circumstances, the person was given a fair opportunity to meet the allegations. If the Tribunal is dealing with a specialised field, for example, medicine, legal practice, science, it may be that the persons best equipped to judge “fairness” are the people on the tribunal, who have that specific expertise.
    
61. The above is, of course, an inadequate discussion of all aspects of relief under the prerogative (or constitutional) writs of prohibition, mandamus and certiorari. Its purpose is to seek to expose the continuing essential role of jurisdictional error and its distinction from non-jurisdictional error as the foundation for those writs[121].
    
62. The role of the injunction and declaration must be considered in the context of these underlying issues. The injunction is a remedy available at common law[122] and in equity[123], it is a remedy constitutionally provided for[124] and statutorily provided for[125].
    
63. Equitable relief in the form of the injunction and declaration has played, and is playing, an important part in the development of public law[126]. In particular, it is useful in ameliorating the effects of technicalities involved in the prerogative writs[127].
    
64. Equitable intervention is not tied to the foundations of relief of the prerogative writs. Important to the issue of such relief will be the question of standing. I do not propose to analyse this in detail. Suffice it to say that, in the federal sphere, standing is limited by, and to a significant degree subsumed within, the concept of matter[128]. However, standing in relation to the constitutional or prerogative writs is very wide[129].
    
65. Leaving standing to one side, what is the relevance of the distinction between jurisdictional and non-jurisdictional error in the award of these remedies? To the extent that the “equity”[130] involves some alleged maladministration and breach of the law, it must be remembered that the two remedies do different things. An injunction orders someone to do or to refrain from doing something. A declaration tells parties, in a binding way, what the law is or that something has, or has not, in the circumstances, a particular status.
    
66. If an error of law is propounded as the “equity”, it will be necessary to assess whether there was, or is, authority to do that which was done or is proposed and which is the subject of the injunction. If there was, or is, such authority, that is, if the error was not jurisdictional, and especially if the authority comes from statute, by what “equity” does the court order that what is authorised not be done? It is difficult to see in these circumstances any basis for injunctive relief.
    
67. Nevertheless, a declaration may lie whether or not a prerogative writ would lie[131]. Also, declarations have long been given as the sole relief, and modern superior court enabling statutes generally provide for this. Declaratory relief should be all that is needed against the Crown. As the Privy Council said in 1915:

It is the duty of the Crown and of every branch of the Executive to abide by and obey the law. If there is any difficulty in ascertaining it the Courts are open to the Crown to sue, and it is the duty of the Executive in cases of doubt to ascertain the law, in order to obey it, not to disregard it[132].

68. If a declaration were granted and there was the threat of the executive continuing with the conduct, in the face of the statement of the law (albeit covering non-jurisdictional error) an issue would arise as to review of the decision to persist with the conduct as an abuse of power, recognising the obligation of the executive to obey the law. As Griffith CJ said in Melbourne Steamship & Co v Moorehead[133] (in the context of the conduct of litigation):

the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary,

69. In cases where declaratory relief alone is claimed, the Federal Court would obtain jurisdiction in respect of a federal matter by par 39B(1A)(c) of the Judiciary Act and, via the notion of “associated” in s 32 of the Federal Court of Australia Act, jurisdiction under s 75(iii) if the Commonwealth is sued.
    
70. Paragraph 39B(1A)(c) is in the following terms:

(1A) The original jurisdiction of the Federal Court of Australia also included jurisdiction in any matter:

...

(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

71. The significance of the introduction of this provision in 1997 has escaped many people. The meaning of “arising under” is wide. It does not merely mean a cause of action provided by statute or a directly disputed federal issue (although these are obviously included). It includes a claim for common law or equitable relief in respect of, or over, a right which owes its existence to federal law. This is a matter arising under federal law[134]. In LNC Industries v BMW[135] the property over which the parties were fighting comprised import quotas. The fight was about contractual and equitable rights and obligations. The subject matter was a bundle of rights owing their existence to federal law.
    
72. The joint reasons of the High Court in LNC Industries v BMW also approved of what Dixon J had said in Federal Capital Commission v Laristan Building and Investment Co Pty Ltd[136]. Dixon J was dealing with Territory jurisdiction, but part of what he said related directly to the notion of “arising under” a law of the Parliament. Dixon J said:

...It may well be that all claims of right arising under the law in force in the Territory come within this description, because they arise indirectly as the result of the Seat of Government Acceptance Act 1909 (see sec 6), and the Seat of Government (Administration) Act 1910 (see secs 4 to 7 and 12). But it is at least clear that a claim to a right conferred by or under ordinances made by the Governor-General in Council under sec 12 of the Seat of Government (Administration) Act is a matter arising under an enactment of the Parliament.

[emphasis added]

73. So, there, Territory ordinances and claims to rights under Territory ordinances arose under the Commonwealth Act providing for those ordinances.
    
74. In an administrative law context this may widen the reach of the Federal Court beyond “officers of the Commonwealth” under s 39B(1), if a decision is made to cause a matter to “arise under” a law of the Parliament.
    
75. In Greiner v The Independent Commission Against Corruption[137] the New South Wales Court of Appeal, whilst declining to issue prerogative writs, made declarations that the determination was wrong in law.
    
76. A contrary view as to the availability of the declaration was taken in Punton v Minister of Pensions and National Insurance (No 2)[138] (which has been followed in England and Australia) to the effect that declaratory relief should not be given if the error be non-jurisdictional[139].
    

Statutory Review

77. The AD(JR) Act has been a template for similar legislation in the Australian Capital Territory[140], Queensland[141] and Tasmania[142]. The Victorian Act[143], is somewhat more limited[144]. The AD(JR) Act is the template for legislation recommended by the Law Reform Commission of Western Australia[145].
    
78. Not to be forgotten are the various provisions in State Supreme Court Acts[146] which deal with mandatory orders. I will deal only with New South Wales, and only briefly. Section 69 of the Supreme Court Act 1970 (NSW) (SCA) recognises the existence of the prerogative writs:
    69. Proceedings in lieu of writs

(1) Where formerly:

(a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or

(b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course,

then, after the commencement of this Act:

(c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but

(d) shall not issue any such writ, and

(e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and

(f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.

(2) Subject to the rules, this section does not apply to:

(a) the writ of habeas corpus ad subjiciendum,

(b) any writ of execution for the enforcement of a judgment or order of the Court, or

(c) any writ in aid of any such writ of execution.

(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

(5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.

79. The SCA also deals with ouster from office in the nature of quo warranto (s 70) and habeas corpus (s 71). But there is also s 65, which reads:
    65. Order to fulfil duty

(1) The Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested.

(2) The Court may, on terms, make an interlocutory order under subsection (1) in any case where it appears to the Court just or convenient so to do.

(3) The powers of the Court under this section are in addition to any other powers of the Court.

80. Section 65 has been seen as the successor to s 165 of the Common Law Procedure Act 1899 (NSW) where “duty” meant public duty or quasi-public duty. It was intended to be free of any technicalities of the prerogative writs. The reach of the section has not been decided authoritatively and, in the light of the regular expression by the High Court that grants of jurisdiction to courts should not be restricted or read down by reference to factors not present in the words of the statute[147], it may yet see some modern development.
    
81. The overwhelming advantage of the statutory mechanisms for review such as the AD(JR) Act is the lack of technicality in application. The irrelevance of the jurisdictional and non-jurisdictional distinction is an example. Also, there is no need to identify “the record” in certiorari. However, it would, I think, be a mistake to underestimate the living nature of the common law remedies and their utility in supplementing and complementing statutory based schemes.
    
82. The statutory schemes generally identify the “administrative” character of the decision and its being made “under an enactment”. Those matters do not, in terms, constrain the issue of constitutional or prerogative writs. There must be, in the federal sphere, an “officer of the Commonwealth”[148]; not so at State level. Thus, to the extent that decisions or acts are made or done by bodies such as the Takeovers Panel[149] which are seen to be beyond the conception of an officer of the Commonwealth and which do not make decisions “under an enactment” it will be important to allow the common law to subsist and develop[150].
    
83. Also, the limitation of statutory review to “administrative” decisions “under enactment”, leaves the not unimportant review of prerogative power or non–statutory executive power to the constitutional and prerogative writs and injunctions and declarations.
    
84. The remedial alternatives under provisions such as s 16 of the AD(JR) Act are wide and flexible. However, the flexibility and malleability of injunctive relief should not be overlooked. Injunctions can always be issued conditionally and appropriately moulded.
    

85. One issue of possible difference which can arise is a useful, and often used, aspect of relief under s 16 of the AD(JR) Act. In Northern NSW FM Pty Limited v Australian Broadcasting Tribunal[151] the Full Court of the Federal Court gave the discretion in par 16(1)(b)[152] content to permit a direction that a particular person not deal with the matter on remitter, even though the circumstances were not such as to show apparent bias[153]. It is not plain that, absent such a provision, the court can likewise restrain someone from dealing with the matter on remitter, short of proof of apprehended bias[154]. However, it may be that the kinds of considerations underlying decisions concerning the disclosure of credible, relevant and significant material even if it is disavowed as the basis for the decision[155] may provide a foundation for such an order. It may be that, as part of the judicial function, and in order to maintain confidence in the utility of judicial review, there is an equity to restrain further conduct of someone short of apparent bias being shown.

86. There may well be a greater flexibility in the act or decision able to be reviewed at common law, to the extent that the decision can be seen as preliminary or by way of recommendation, but nonetheless attracting certiorari[156], as long as legal rights will ultimately be affected[157], rather than being limited to the conception of “decision” and “conduct” in the AD(JR) Act as discussed in Bond[158].
    

What is the Lawful Authority of the Executive?

87. The demand that the executive conform with the law is, on its face, uncontroversial. As, generally, is the proposition that it is for the courts to tell the executive when it has gone beyond its lawful warrant or when it is threatening to do so.
    
88. But what is the law? Obviously, first and foremost is the Constitution[159] and the Constitutions of the States[160]. Secondly, and equally obviously, there are statutes of the parliaments of the Commonwealth, States and Territories, passed within constitutional authorisation. Thirdly, there is delegated legislation validly falling within the authorisation of parliaments. Fourthly, there is the general law.
    
89. In most circumstances, the authority of Parliament to pass legislation within an available head of power is unquestioned. Equally unquestioned is the authority of courts to pass upon the constitutional validity of laws if properly brought before them[161].
    
90. Broadly speaking, as discussed earlier, the availability of relief either by recourse to a constitutional writ (if s 75(v) is invoked), a prerogative writ or an injunction depends upon the executive agent going beyond authorisation; if the act is clothed with parliamentary authority, or falls within the legitimate scope of the prerogative, it will not be able to be prevented and it cannot be said not to have been done[162].
    
91. Are there identifiable limits to the power of parliaments to authorise their executives to act? It may be that an entirely different analysis attends the question of State, as opposed to Commonwealth, parliamentary power[163].
    
92. First, the Commonwealth Parliament’s authority is constrained by the Constitution. There are limitations of subject matter in s 51, as expanded by reference to the matters discussed earlier[164]. Such limitation on subject matter is a sufficient foundation for the proposition that Parliament has no power to confer an entirely unconstrained discretion[165]. An entirely unconstrained discretion would, by its intended lack of limitation, flow beyond the power authorising the legislation. Thus, leaving aside the defence power in wartime or true emergency[166], the opinion of Parliament or the executive that the law or act is within power, or relates to a head of power, cannot be decisive and cannot be the constitutional foundation of the law or act[167].
    
93. Secondly, the Commonwealth Parliament has no power to confer authority on the executive to exercise the judicial power of the Commonwealth.
    

94. Thirdly, there would seem to be from R v Hickman; Ex parte Fox and Clinton[168] and the High Court cases thereafter[169], a limitation that the executive must make an attempt in good faith to exercise the power. Thus, it is probable that the Parliament cannot authorise an exercise of executive power in bad faith[170].

95. Fourthly, and really related to the first limitation, there is a requirement that the authority be exercised in a manner relating to the subject with which the legislation deals and a requirement that the decision be reasonably capable of being referred to the power possessed by the decision-maker[171].
    
96. Fifthly, and again perhaps as part of the first limitation, the conferral of authority must not be contrary to any other prohibition or restriction within the Constitution.
    
97. Dixon J in Hickman and Murray was ostensibly engaging in a process of statutory construction, part of which involved the reading down of what otherwise would have been plain words directed, not to the authority of the executive, but to the authority of the court to review the exercise of power[172]. The latter would have been bad by reason of s 75(v)[173]. A process of statutory construction and reconciliation of the whole of the Act in question was engaged in, in effect to mark out what Dixon J saw as the available limits of power. Thus, provisions of the kind in Hickman and Proctor can be seen as widening the authority of the executive, not cutting back the authority or jurisdiction of the courts[174].
    
98. Are there any further limits? Is honest incompetence producing a decision wrong in law (absent the privative clause), being a product of answering the wrong question (absent the privative clause), taking into account considerations expressly forbidden by statute (absent the privative clause), ignoring considerations expressly required by statute to be considered (absent the privative clause), being arbitrary and capricious and devoid of connection with any evidence or probative material, lawful, as long as it is made bona fide? It is, I would suggest, bad administration. Also, all these deficiencies may be factors that lead a court to conclude that the decision-maker was not bona fide. But, in a sense, the more egregious the decision, perhaps the greater the likelihood of the inference of incompetence, rather than bad faith.
    
99. Also, if as a matter of statutory construction, that is construing the so-called privative clause with the rest of the Act, there can be found, despite the clause in question, a provision of the Act which cannot be breached – “inviolable” or “structural” – then the clause will not cure such a breach.
    
100. Unnecessary detritus in the debate is caused by the question of statutory interpretation of the formula of words before Dixon J in Hickman and which has come to be employed[175], by argument over the sometimes different linguistic formulae used to describe the process of analysis – “validation” as opposed to “authorisation”, and by debating whether Dixon J in Hickman was entitled, on the authorities, to do precisely what he did. Leave aside these matters. A more important question seems to me to be: can Parliament pass an Act to clothe the executive with authority to make any error whatsoever as long as there is a bona fide attempt to deal with a subject matter admittedly within a constitutional head of power and as long as there is a sufficient connection with a lawful legislative power as referred to at [95] above?
     
101. Within or underlying the text and fabric of the Constitution, there are presumptions or assumptions of a basal kind, the existence and effect of which become apparent only in the working through of difficult contextual problems. It is in the interplay of these constitutional assumptions (which can, perhaps, be seen as externalities, or, as the foundation of the text) with the creation of a federal polity embodying representative democracy and responsible government and in the text of the compact that one must find such a limitation, if it is to exist, upon Parliament’s power.
     
102. Before returning to the Australian context, it is worth reflecting upon the debate that has taken place in other places, in recent times, about the role of the Courts and the power of Parliament, in legal systems similar to ours[176].
     
103. In the United Kingdom, in 1995, Lord Woolf said that courts could refuse to recognise and give effect to legislation which sought to undermine the rule of law by removing or substantially impairing the powers of judicial review of the Courts[177].
     
104. In 1995 Laws J invoked a species of natural law as a limitation on parliamentary sovereignty[178]:

The democratic credentials of an elected government cannot justify its enjoyment of a right to abolish fundamental freedoms ... The need for higher order law is dictated by the logic of the very notion of a government under law ... the doctrine of Parliamentary sovereignty cannot be vouched by Parliamentary legislation; a higher-order law confers it and must of necessity limit it.

105. In the same article, Laws J identified sovereignty not in Parliament alone, but in the framework of fundamental principles, including democracy and respect of human rights, which is the Constitution.
     
106. In 1995 Sedley LJ wrote of the Diceyan doctrine of the sovereignty of Parliament giving way to “a bi-polar sovereignty of the Crown in Parliament and the Crown in its Courts to each of which the Crown’s Ministers are answerable – politically to Parliament, legally to the Courts[179].”
     
107. Sir Robin Cooke expressed not dissimilar views in New Zealand, twenty years ago: that a free democracy requires judicial limitation on the power of Parliament. Some rights are so fundamental as to be incapable of parliamentary destruction[180].
     
108. These expressions hark back to a pre-Glorious Revolution view of the supremacy of natural law[181]:

“when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.” [182]

“even an act of parliament made against natural equity ... is void in itself; for jura natural surt inmutabilia, and they are leges legum.”[183]

109. In contrast, other distinguished English judges and writers have spoken in the clearest Diceyan terms of the democratic supremacy of parliament[184].
     
110. This discourse is, to a degree, timeless. The questioning as to whether right is right by nature, or only by enactment and convention, takes us back to the fifth century BC, at least[185].
     
111. The Australian orthodoxy for many years was that the express absence of a bill of rights in the Constitution was by reason of a choice, and flowed from the placement of faith in a Parliament supreme[186]. However, some implied constitutional guarantees have been identified[187].
     
112. In the context of the Australian Constitution, the “bi-polarity” of sovereignty and the answerability of the executive to Parliament and the courts referred to by Sedley LJ above may, perhaps, be said to be found within the very text of the Constitution in the enshrinement in the High Court of the mechanisms of control within s 75(iii) and (v)[188]. Of course, the constitutional grant of a remedy may say nothing as to the power of Parliament to decree the substantive law within which the executive is free to operate[189].
     
113. Relevant to this discussion may also be the constitutional conception of a court and the related conception of judicial power. The latter has been oft discussed; the former less so. In Residual Assco Group Ltd v Spalvins[190] in the resolution of post-Wakim issues, Kirby J dealt with the question as to whether orders of the Federal Court made without jurisdiction were nullities[191]. He said that they were not. This flowed not just from the calling of the Federal Court a superior court of record in the Federal Court of Australia Act 1976 (Cth), but also from s 71 of the Constitution. The “courts” under s 71, at least superior courts, were to have the attendant characteristics of such courts in England, and the United States in a federal context under Art III of the United States Constitution. The conception included the authority to decide its own jurisdiction, and, even if wrong, orders of such a court were valid until set aside.
     
114. The High Court had the issue before it again in Re Macks[192] . Gleeson CJ[193] said the orders made without jurisdiction were not nullities, relying on ss 71, 77 and 51(xxxix) of the Constitution. Gaudron J[194] after referring to ss 71, 76(ii) and 77(i), said that it was “incidental to [the judicial power of the Commonwealth] for a federal court to decide whether or not it has jurisdiction in a matter and to make a binding determination in that regard.” This was, of course, subject to relief under s 75(v). McHugh J[195] was of the view that the orders were nullities. Gummow J[196] said that by reason of ss 71, 77(i) and, especially 51(xxxix), Parliament had power to endow the Federal Court with the characteristics of a superior court of record as understood in 1900. Kirby J[197] remained of the view that he had expressed in Residual Assco. Hayne and Callinan JJ[198] did not find the authority in Parliament to provide for the effect of orders made without jurisdiction in the power to create courts under s 71. Rather they saw the authority flowing from the full content of the Federal Court of Australia Act and the Judiciary Act and the assertion of jurisdiction there under until set aside.
     
115. This discussion may seem less that directly connected with the present problem. But to the extent that some of these reasons look to s 71 and the notion of the powers or attributes of a court by reason of its conception as a court, they may underpin the notion that ss 75(iii) and (v) were meant to have substantive effect, not merely remedial status.
     
116. It remains to be seen whether the clear and express answerability of the executive to the High Court in terms of the legality of its conduct says anything about the authority of Parliament to define the scope of the executive’s authority to act, according to law.
     
117. If Parliament can authorise a decision of the character referred to at [98] above, the practical extent of the ability of the Commonwealth Parliament to do so will probably vary from topic to topic. In any given, topic the constitutional constraints of the available head of power may throw up constitutional questions, whether of a factual or legal nature, which cannot be withdrawn from the courts[199]. Nevertheless, for a Court to be placed in the position of declaring a decision lawful which has the characteristics described above may, perhaps, raise questions about the conception of a court within the constitutional compact, the nature and content of the rule of law on which the Constitution is founded[200] and the ultimate singularity of political answerability of Parliament to the people of Australia.
     
118. To a significant degree, the equanimity with which such attempts to insulate decision-making from judicial scrutiny are taken by commentators depends on the context of the attempt. In circumstances of dire emergency or national security, judgments affecting the very existence of the federal compact itself may arise. This may not be limited to the application of the defence power proper. This raises the question of the relationship of this issue with justiciability and deference[201]. Courts have shown a willingness to recognise real deference in the area of national security in which executive power may, to a degree, be seen as the appropriate governmental response. Notions of deference merge into justiciability[202]. A real difference would be obvious between powers concerned with national security being exercised dishonestly for personal malice or corruptly, on the one hand, and being exercised in a way able to be described as incompetently, on the other. The former may well raise justiciable issues, in the deciding of which a court would be in no way disadvantaged or embarrassed. The latter may be more difficult to engage in, and form a judgment about, given the subject matter, as long as honesty of approach is not in issue[203].
     
119. In other contexts, where specialist tribunals of trusted calibre and expertise conduct their affairs in areas of decision-making in a quasi-judicial matter, though not exercising the judicial power of the Commonwealth, trust and experience may allay the fear of narrow judicial review[204].
     
120. Ultimately, the Diceyan view of ultimate parliamentary supremacy rests on deep and abiding trust and faith in the protection of parliamentary power and the role of the courts. This alliance of power, and the ultimate sovereignty of Parliament, could be seen as necessary when the parties invoking higher law in justification of the subordination of parliamentary sovereignty and domestic positive law were (until the sixteenth century) a foreign spiritual ruler, and (until the end of the seventeenth century) a domestic temporal ruler, both calling upon the higher laws of natural and divine order in legitimation of their respective positions of supremacy. During the seventeenth century there was also the brief experience of pious militarism. We have moved on. Though, an abiding faith in the democratic process should not be seen as other than fundamental. Yet, to say as much is not to juxtapose Parliament (as democratic) with the courts (as undemocratic). The courts (State and federal) are an integral part of the democratic framework of the Constitution embodying responsible government and representative democracy.
     
121. It is not inappropriate to be reminded, at this point, of the conclusion of Professors Friedmann and Benjafield to their chapter on “The Rule of Law and the Citizen” in Principles of Australian Administrative Law (2nd Ed) written in 1962:

The criticisms and analyses set out above indicate that it is harmful to, if not destructive of, the notion of the rule of law to treat it as a legal principle. It is, at most, a political principle or a theory of government. As such, it has had immense influence in the past and will doubtless continue to lead those who live in democratic communities to resist harsh and oppressive, capricious and arbitrary exercises of governmental power. But it is suggested that the influence of “the rule of law” is enhanced, rather than diminished, by recognising that it is a way of life, dependent upon intelligent and responsible use of governmental power, rather than a legal principle capable of precise application. Writing in the early nineteenth century de Tocqueville epitomised the situation: “In the United States and in England there seems to be more liberty in the customs than in the laws of the people. In Switzerland there seems to be more liberty in the laws than in the customs of the country.”[205]

122. Nevertheless, it might be said that there may come a point at which to grant access to the courts to review the legality of an act by the executive, when the only effective substantive requirement be bona fides (translating, in a litigious forum, to proof of dishonesty of mental process), is to engage in an exercise seen as other than “judicial” review[206]. If the litigant comes to a court, he or she may expect the court to have within its power the authority to pass upon what most people would consider to be illegalities of the kind described at [98] above, at least in respect of subject matters which do not bespeak a lack of judicial capacity to assess[207]. To be told that these things are authorised by law (at least by a section which in terms is directed to the court’s jurisdiction or power and not, on its face, to the authorisation of the executive) and that the decision will only be found to be unlawful if it can be proved that the decision-maker approached the task lacking “bona fides”, might lead to questioning of what the court is actually doing.
     
123. It may be one thing not to give a statutory court jurisdiction. Responsibility for the lack of an avenue of review is clear. It may be another to grant “full” jurisdiction to a court to review the legality of a decision, but in circumstances where there the executive has the widest of authorisations and the notion of “legality” has had drained from it many of the elements that might be expected to inhere in the concept.
     
124. In large part, a response such as this flows from a tendency to equate law with predictable non-arbitrary rule based organisation of society, not with wide virtually unchallengeable discretion without a framework of compulsorily applicable requirements.
     
125. The struggles in the development of the parliamentary system before, and after, 1688 were dominated by the struggle for parliamentary control over, and judicial independence from, unconstrained, capricious, arbitrary and personal exercise of prerogative power.
     
126. Jurisprudentially, there is the world of difference between, on the one hand, a Sovereign claiming right and power from divine or higher law and acting from caprice in stripping someone of a licence to sell goods and awarding the licence to a court favourite and, on the other hand, a duly authorised executive acting honestly, but arbitrarily and capriciously in stripping someone of a licence to sell goods and awarding it to a competitor in apparent breach of the governing statute (if one were to view the matter absent the privative clause)[208]. The former acts without (post 1688) lawful authority, the latter acts, if bona fide, with full parliamentary authority in the presence of a “Hickman clause”. The erstwhile vendor may not see the difference, if it were pointed out to him or her.
     
127. In these circumstances, the Parliament is certainly accountable to the electorate. However, it is perhaps not entirely fanciful to say that there is a subtle danger of undermining the authority of the courts, by the device of expansion of executive authority. The court becomes unable to declare as unlawful conduct which can be expected by a citizen to be wrong. Courts, which purport independently to uphold the rule of law[209] and which take up a given act of the executive to be assessed and tested, but which find to be lawful and authorised an act of the kind described earlier, may begin to lose respect as a constitutional conception exercising judicial power. This conception of what a court is, and from it what a court (to be a court) must be able to do, may be embedded within Ch III, especially from ss 71 and 75(iii) and (v).
     
128. To the extent that this form of constitutional limitation on the power of Parliament might be said to be derived otherwise than from Ch III, as an incident of “fundamental” rights somehow informing the Constitution and otherwise than from its text and structure, that would seem to have been dealt a significant blow by Durham Holdings Pty Limited v New South Wales[210].
     
129. Apart from any other difficulty, the identification of the limit of Parliament’s power is not easy to draft. Is it to be expressed in Wednesbury unreasonableness terms or some variant thereof? The legitimate question as to whether the currency of Wednesbury has become, over time, somewhat debased, may give pause for thought as to the nature of any limit on Parliament’s authority by an entrenched constitutional circumscription based on a test so capable of different results, depending upon the identity and disposition of the judge in question[211]. Wednesbury is not a discretion, but it is one of those areas in respect of which minds often differ. Should such a test or a linguistic variant thereof be “constitutionalised”? What has been referred to as a “super-Wednesbury test”[212] can, perhaps, be seen as a test not unlike that set out in Hickman[213].
     
130. It may be that if the legitimacy of authorisation of the executive to the width expressed in Hickman is re-affirmed, that Parliament should, at least, be required to express that in transparent language. This is not a present criticism. The language used in s 474 of the Migration Act and other privative clauses has been construed by the High Court on many occasions. Parliament sought to use a well-known “coded” body of words. However, if the executive is to be authorised to make an honest attempt at exercising a power with liberty to make such mistakes as happen to occur, however fundamental, that is to transform the process into a discretion with non-compulsory guidelines. There is something to be said for the proposition that this should be clear and transparent and not effected by the use of a linguistic formula with an accretion of meaning drawn from successive curial glosses. If a decision could thus be seen to be, in truth, the exercise of a wide discretion, the appropriateness and legality of that course could, perhaps, be better assessed. For instance, if decisions became in that sense discretionary by reference to guidelines, departure from which was authorised, one could see more clearly, for instance, whether the authorisation fell within a head of power; and if it did, whether the legislation conformed with any obligations that Australia may have under a relevant treaty to enact legislation of a certain kind.
     
131. The connective requirements in Hickman and Murray[214] reflect the inability of the Parliament to clothe the executive with authority, beyond the relevant source of power. The limitations of the usual kind upon the formation of a relevant opinion or satisfaction – that it not be arbitrary or capricious – are generally said to be derived from the presumed intention of parliament[215]. However, it may be that an entirely erroneous or disconnected decision will not be protected by a “Hickman” clause, not because of the presence of arbitrariness or caprice per se, but because such a decision cannot be seen to be a decision having a reasonable connection with the source of power. A decision so erroneous and disconnected may not be seen to be an attempt at the power, even though bona fide. Any limitation on Parliament’s power may come, not from some imposition or implication of a fundamental right, but by the necessity to have decisions objectively capable of a reasonable and non-arbitrary connection with a head of power in the context of, at least, the High Court (if not all Ch III federal courts[216]) having a duty to ensure that reasonable, non-arbitrary connection between the head of power and the act or decision. This way of examining the question may provide a flexible connection with the head of power in question and the issues of justiciability and deference, to which I now turn.
     

Justiciability

132. The notion of “justiciability” is used in a number of contexts and in different senses which include an absence of jurisdiction, circumstances where, though possessing jurisdiction, the court chooses not to exercise it or part of it and circumstances in which the court can otherwise resolve the case without dealing with the issue[217]. The question can arise in contexts not limited to the exercise of domestic executive power.
     
133. The non-justiciability of certain questions has long been recognised. Courts will not try an action which would require them to pronounce, directly or indirectly, on rights on immovable property situate abroad[218]. There exists the doctrine of sovereign immunity which prevents or impedes actions concerning ownership, possession or control of property by a foreign state[219]. There is also the general rule that courts will not entertain cases requiring the ascertainment or interpretation of transactions or obligations between foreign sovereign states or involving the questioning of the effectiveness of foreign legislation or involving challenge to the legality of acts of the executive government outside the country[220].
     
134. In the domestic context, until 1981, the orthodox view in Australia was that the exercise of the prerogative was not reviewable[221]. In Duncan v Theodore[222] Isaacs J and Powers J rejected the proposition that mala fides could be imputed to the King or his representatives. The Privy Council on appeal said[223]:

The question is one not of property or of prerogative in the sense of the word in which it signifies the power of the Crown apart from statutory authority, but is one of Ministerial administration, and this is confided to the discretion in the present instance of the same set of Ministers under both Acts. With the exercise of that discretion no Court of law can interfere so long as no provision enacted by the Legislature is infringed. The Ministers are responsible for the exercise of their functions to the Crown and to Parliament only, and cannot be controlled by any outside authority, so long as they do nothing that is illegal.

[emphasis added]

135. Isaacs J in James v Cowan[224] also said that the act of the Governor or a Minister was immune from attack on the grounds of bad faith. On the other hand, Dr Evatt argued[225] that the courts could examine such a question; but, as Zines points out[226], Evatt J, as a judge, was more cautious in his expression of the matter in Victoria Stevedoring and General Contracting Co v Degran[227]. Dixon J, in the Communist Party case[228], was clear and uncompromising in his view:

Two things appear to me to be clear about this. The first is that it leaves to the opinion of the Governor-General in Council every element involved in the application of the proposition. Thus it would be for the Governor-General in Council to judge of the reach and application of the ideas expressed by the phrases “security and defence of the Commonwealth”, “execution of the Constitution”, “maintenance of the Constitution”, “execution of the laws of the Commonwealth”, “maintenance of the laws of the Commonwealth” and “prejudicial to”. In the second place the expression by the Governor-General in Council of the result in a properly framed declaration is conclusive. In the case of the Governor-General in Council it is not possible to go behind such an executive act done in due form of law and impugn its validity upon the ground that the decision upon which it is founded has been reached improperly, whether because extraneous considerations were taken into account or because there was some misconception of the meaning or application, as a court would view it, of the statutory description of the matters of which the Governor-General in Council should be satisfied or because of some other supposed miscarriage. The prerogative writs do not lie to the Governor-General. The good faith of any of his acts as representative of the Crown cannot be questioned in a court of law (Duncan v Theodore [1917] HCA 38; (1917) 23 CLR 510, at p 544: cf (1919) A.C. 696, at p 706.) An order, proclamation or declaration of the Governor-General in Council is the formal legal act which gives effect to the advice tendered to the Crown by the Ministers of the Crown. The counsels of the Crown are secret and an inquiry into the grounds upon which the advice tendered proceeds may not be made for the purpose of invalidating the act formally done in the name of the Crown by the Governor-General in Council. It matters not whether the attempt to invalidate an order, proclamation or other executive act is made collaterally or directly. One purpose of vesting the discretionary power in the Governor-General is to ensure that its exercise is not open to attack on such grounds...

[emphasis added]

136. A body of authority developed in conformity with these views to the effect that acts of the Crown and its representatives, whether acting under a statute or pursuant to the prerogative, were not examinable[229]. As Zines pointed out[230] by the early 1980s powers given to ministers of the Crown, by statute, were reviewable, but decisions of a Crown representative, who could only act on the advice of a responsible minister were not, even if acting pursuant to statute.
     
137. The element of importance to Dixon J in the Communist Party case (highlighted in [135] above), as to secrecy of communications with the Crown, was dealt with in Conway v Rimmer[231] and Sankey v Whitlam[232]. The question of Crown privilege in disclosure of documents was held to be a justiciable question for the courts, balancing public policy and the proper administration of justice[233]. Prior to this point, the secrecy of Crown documents was an aspect of the prerogative (by way of immunity) of the Crown[234]. A fundamental pillar of the immunity of decisions of the Crown and its representatives was thereby removed.
     
138. Thus, until the 1980’s there was, in large part, no call for the development of principles of “justiciability” in relation to judicial review of acts of the Crown and its representatives. All were free from review.
     
139. Then, in 1981, the High Court in R v Toohey; Ex parte Northern Land Council[235] made clear that the courts can examine the exercise of power granted by a statute whether to a representative of the Crown or a minister, at least in the award of declaratory relief. Mason J (with whom Wilson J agreed) extended his comments to the exercise of the prerogative power, thought recognising that some elements of the prerogative were not susceptible to judicial review[236]. The matter was taken further in FAI Insurance v Winnecke,[237] where it was held that the Victorian Governor[238], or the Minister[239] were obliged to accord the complainant natural justice. Each of R v Toohey and FAI concerned the exercise of power by the Crown pursuant to a statute. However, as Mason J[240] pointed out, there could be no rational distinction between the exercise of statutory and prerogative executive power, only between some powers as less appropriate for review than others because of their nature.
     
140. Shortly thereafter in England in 1985, the House of Lords in Council of Civil Service Unions v Minister for the Civil Service[241] held that the exercise of prerogative power by the Prime Minister pursuant to an Order in Council signed by the Queen, was reviewable for a failure to accord natural justice. Three of their Lordships[242] were prepared to deal with the matter on the basis of judicial review of prerogative power. However, it was made clear that some exercise of prerogative power would be immune, or only reviewable in certain respects, by reason of “justiciability”.
     
141. The notion of justiciability had thus replaced the identity of the decision-maker for the purposes of assessing review. The question as to whether a question is justiciable is itself a justiciable issue to be decided by the courts. Professor Wade expressed the view that this process of stripping part of the prerogative of its protection from judicial review merely exposed what was, properly understood, the real and more limited notion of the true prerogative, which had been inappropriately expanded by Dicey[243].
     
142. Nevertheless, the courts in England and Australia were faced with the task of fashioning what was, and what was not, reviewable, and in what circumstances. Examples were given in CCSU of what would not be justiciable. Lord Roskill[244] gave the following list:

Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another.

143. Lord Diplock[245] described susceptibility of an act of the executive to legal review as dependent upon a test referable to the affectation of rights:

“To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either: (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either

(i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance form the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn...”

144. These two approaches reflect related, but distinct, aspects of the problem, which can be further illuminated by reference to the United States “doctrine of the political question.”[246] In its earliest, and perhaps classic, formulation it was an express recognition that within the text of the United States Constitution there were matters not for the Supreme Court. This was not prudent abstention, but constitutional mandate. Marshall CJ in Marbury v Madison said as much:

“Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”[247]

145. These matters were not part of the judicial power. Marshall CJ described the guiding factors in their determination as the political subject matter, respecting the nation and not individual rights[248]. The redolence with Lord Diplock’s framing of the question can be seen. Marshall CJ said[249]:

“The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.”

146. Related to this approach based upon the text of the Constitution and the inherent nature of the judicial function was a broader approach based on prudent abstention (as opposed to a recognition of constitutional incompetence). As it developed, in addition to the guidance provided by the matters referred to by Marshall CJ referred to above, notions such as the appropriateness of the judicial process of dealing with the matter and the existence or not of legal standards by which to judge the question came forward[250]. These questions began to be referable not merely to the question of the existence of judicial power, but also the exercise of discretion[251]. Frankfurter J put the matter (by way of jurisdiction or competence) in Colgrove v Green broadly as follow:

We are of opinion that the appellants ask of this Court what is beyond its competence to grant. This is one of those demands on judicial power which cannot be met by verbal fencing about “jurisdiction.” It must be resolved by considerations on the basis of which this Court, from time to time, has refused to intervene in controversies. It has refused to do so because due regard for the effective working of our Government revealed this issue to be of a peculiarly political nature and therefore not meet for judicial determination.

...

To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket.

147. In 1962, in Baker v Carr[252], Brennan J engaged in a detailed discussion of justiciability. He recognised a degree of lack of coherence in the subject matter[253]:

...the attributes of the doctrine ...in various settings, diverge, combine, appear, and disappear in seeming disorderliness.

148. Brennan J dealt with foreign relations[254], date of duration of hostilities[255], validity of enactment[256], the status of Indian tribes[257] and the republican form of government[258]. Dealing with the matter generally, Brennan J listed six elements, any of which, if inextricably linked with the matter, would lead to non-justiciability[259]:

...a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need or unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

[emphasis added]

149. In dealing with foreign relations, Brennan J reflected an approach very much requiring the specific analysis of the controversy in question and the issues raised by it, before a an assessment of justiciability could be made[260]:

“There are sweeping statements to the effect that all questions touching foreign relations are political questions [Oetjon v Central Leather Co 246 US 297, 302]. Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single voiced statement of the Government’s views. Yet it is error to support that every case or controversy which touches foreign relations lies beyond cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.”

[emphasis added]

150. It is beyond this paper to examine the development of United States law in more detail or the current approach of the United States Supreme Court in this area. It suffices to say that in Bush v Palm Beach County Canvassing Bd[261] and Bush v Gore[262] the Court engaged in issues well into what Frankfurter J might have described as the “political thicket”[263].
     
151. However, the elements identified by Brennan J in [148] above, and the emphasis by Marshall CJ on the need for rights as the constitutional foundation for the exercise of judicial power, are valuable tools of analysis which recur in the examination of the topic.
     
152. The notion of justiciability is broad and multi-faceted. A difference in approach may be required depending on the nature, or basis, of review sought. For instance, one can readily see different considerations applying to a decision by Cabinet or a minister involving considerations of foreign affairs and even national security, depending upon whether the complaint was a denial of natural justice or Wednesbury unreasonableness, even if the conclusion in both respects is that the decision is not reviewable.
     
153. Before examining some of the major examples of the notion of non-justiciability it should be noted at this point that the universe of discourse is not limited to the judicial review of the exercise of domestic prerogative power. The issue arises in enforcement of contracts or disputes about property matters or alleged torts which involve foreign or domestic political considerations or matters of sovereignty or local questions peculiarly the reserve of the executive by reference to their nature or their history or custom.
     
154. The issue was dealt with in the United Kingdom in relation to exercising jurisdiction in connection with international relations. Buttes Gas and Oil Co v Hammer[264] concerned a suit for slander in which matters were raised in the defence which concerned a dispute over oil concessions in the Gulf involving rival companies. The cross-claim illuminated the problem. The defendants/cross-claimants alleged a conspiracy between the plaintiff and the ruler of Sharjah to cheat and defraud them of oil concessions which they had a right to. The issues on these pleadings arguably required the ascertainment of foreign rights and the legitimacy of, and circumstances surrounding, acts of sovereign governments in relation to those rights. Lord Wilberforce stated, as a general principle, not of discretion, but inherent in the very nature of the judicial process, that the courts will not adjudicate upon the transactions of sovereign states[265]. Importantly, Lord Wilberforce relied on the United States doctrine of “act of state” non-justiciability in Underhill v Hernandez[266], Oetjen v Central Leather Co[267] and Banco Nacional de Cuba v Sabbatino[268]. He referred[269] to the lack of “judicial or manageable standards” by reference to which to judge the issues, in that the review would involve examining a settlement reached after diplomacy and the use, and threat, of force.
     
155. More recently, Lord Nicholls in R v Bow Street Magistrates; Ex parte Pinochet[270] stated the principles concerning act of state non-justiciability with somewhat less sweeping certainty. He said that it was a principle of domestic, not international law, and of uncertain application. He noted the narrowing in the United States of the doctrine from the refusal to consider “acts of government of another country in its own territory”[271] to the refusal to deal with the case if it requires a decision on the legality of sovereign acts of foreign states[272].
     
156. Even more recently, Buttes was considered and distinguished by the House of Lords in Kuwait Airways Corporation v Iraqui Airways Co[273]. There, in a case for damages for conversion of aeroplanes which had been taken by Iraq from Kuwait after the invasion in 1990, the House of Lords refused to accede to the submission that the alleged illegality and wrongfulness of the Iraqi conduct (the assessment of which was said would include an examination of the Iraqi laws ratifying the conduct being said to be sovereign domestic acts of state by Iraq) made the subject matter one which could not be passed upon by the courts in the United Kingdom because there were raised matters of international law and the sovereign acts of a foreign state. Lord Nicholls said[274] that in “appropriate circumstances” it is legitimate for a Court to have regard to the content of international law in deciding whether to recognise a foreign law. This was so if there was a clear (and, by the time of the hearing, acknowledged) breach of international law. The standard in such a case was “clear and manageable”. Lord Steyn[275] described the above submission as an “austere and unworkable” interpretation of Buttes. Lord Steyn also made reference to the existence of “judicial and manageable standards” by which to judge the issues.
     
157. Before turning to the Australian position, it is worth contrasting with these cases how the House of Lords has recently dealt with the cognate issue of domestic subject matter raising questions of justiciability or at least deference. The House of Lords has expressed the recognition of the acute position of responsibility to the public of the minister responsible to Parliament in matters of early release of prisoners[276]. However, this has not prevented curial control of the decisions in this area on the basis that they were akin to the undertaking of a sentencing function[277]. The House of Lords has also recently given generous scope to the extent of judicial deference to executive decisions in the area of national security. In R v DPP; Ex parte Kebilene & Ors[278] Lord Hope of Craighead recognised and utilised the notion of the “discretionary area of judgment”. The case concerned the decision to prosecute in relation to the Prevention of Terrorism (Temporary Provisions) Act 1989 (UK). In an important paragraph, his Lordship said[279]:

In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. This point is well made at p. 74, para 3.21 of Human Rights Law and Practice (1999), of which Lord Lester of Herne Hill and Mr Pannick are the general editors, where the area in which these choices may arise is conveniently and appropriately described as the “discretionary area of judgment.” It will be easier of such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection. But even where the right is the stated in terms which are unqualified the courts will need to bear in mind the jurisprudence of the European Court which recognises that due account should be taken of the special nature of terrorist crime and the threat which it poses to a democratic society: Murray v United Kingdom [1994] ECHR 39; (1994) 19 E.H.R.R 193, 222, para 47.

158. Secretary of State v Rehman[280] concerned a challenge to a deportation order which had been made based on the view that the person’s presence was a risk to national security. Lord Steyn[281] made clear the deference to the factual judgment of the executive in this area; though he sounded a warning as to the need for the courts, where necessary, to address the legitimacy and necessity of conduct in a democratic society[282]. Whilst weight and deference were recognised, non-justiciability was not[283]. Lord Hoffmann[284] dealt with the underlying notion of separation of powers and in that context powerfully expressed the deference to the executive in an area so closely related to foreign policy. He added a postscript to his speech written after 11 September 2001:

“I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters, It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.”

159. In Australia, the question of the act of state doctrine reflected in the rule in Moçambique has recently been the subject of reservation by the High Court “for future consideration in an appropriate case”[285]. However, the High Court has employed the notion of “manageable standards” in connection with the assessment of the enforcement of the interests of a foreign government[286]. In Horta v The Commonwealth[287] the question of justiciability in an action for declaration as to the invalidity of the Timor Gap Treaty and domestic legislation to put it into effect was unnecessary to decide.
     
160. The question of justiciability and its relationship with the reviewability of action by the executive was dealt with by the Full Court of the Federal Court in Minister for Arts Heritage and Environment v Peko-Wallsend Ltd[288]. There the Court accepted the Commonwealth’s argument that the claim for judicial review, primarily on the ground of a denial of natural justice[289], of the decision of the executive (Cabinet) to nominate Stage II of Kakadu National Park for listing under the World Heritage Convention was not reviewable. The potential consequence to the claimant was the loss of the ability to mine in the area, though the decision did not immediately and directly affect the claimant’s rights.
     
161. The Court[290] recognised, unequivocally, the amenability of ministers and the Governor-General in Council to judicial review – whether making decisions under statute or the prerogative[291]. Bowen CJ refused to accept that the decision was taken under the treaty-making power of the Commonwealth or that it was a decision taken in accordance with an obligation binding under international law under the relevant Convention. Nevertheless, these matters were relevant as context to a view taken that[292]:

[T]he decision involved complex policy questions relating to the environment, the rights of Aborigines, mining and the impact on Australia’s economic position of allowing or not allowing mining as well as matters affecting private interests such as those of the respondents to this appeal. It appears to me that the subject-matter of the decision in conjunction with its relationship to the terms of the Convention placed by the decision beyond review by the court.

[emphasis added]

162. Bowen CJ also considered the role and position of Cabinet in this context. His Honour referred to it being “inappropriate” for the Court to intervene. Bowen CJ said[293]:

It is to Cabinet that the highest decisions of policy affecting Australia are brought. Often the questions arising involve intense conflict of interests or of opinion in the community. In Cabinet these conflicts have to be resolved. Decisions have to be taken in the public interest, notwithstanding that the lives, interests and rights of some individual citizens may be adversely affected by the decision.

This is not to say that Cabinet should decide matters without considering all relevant material. But there are recognised channels for communicating arguments or submissions. Each Minister has the support and advice of a department of State. Representations may be made to the relevant department or in appropriate cases to the Minister. Every citizen has access to a local Member of Parliament or a Senator in the particular State, who can assist in the advancement of the individual citizen’s point of view. The prospect of Cabinet itself, even by delegation, having to accord a hearing to individuals who may be adversely affected by its decisions, is a daunting one. It could bring the proceedings of Cabinet to a grinding halt.

After a decision of Cabinet is made it may require for its implementation an Act of the Parliament or a decision of a particular Minister or of the Governor-General in Council. There is generally further scope for submissions or representations at some stage even after a Cabinet decision and always scope for political action.

In the present case it would, in my view, be inappropriate for this Court to intervene to set aside a Cabinet decision involving such complex policy considerations as does the decision of 16 September 1986, even if the privative interest of the respondents was thought to have been inadequately considered. The matter appears to my mind to lie in the political arena.

163. Sheppard J expressed real concern about Cabinet decisions being reviewable, and distinguished them from acts or decisions of Minister or the Crown. He said[294]:

...The way in which Cabinet operates as described in the authorities and texts to which I have referred would pose difficulties for a court in endeavouring to determine whether a decision was arrived at in accordance with law. The decision-making process does not readily lend itself to this type of review or investigation. Furthermore, there seem to me to be public policy reasons which make it quite undesirable that a court should embark on such an exercise.

I should emphasise that the question is not whether the Cabinet is bound to act according to law; it is whether its decisions are amendable to the supervisory jurisdiction of the court. In other words, are its decisions justiciable? In my opinion, the Cabinet being essentially a political organisation not specifically referred to in the Constitution and not usually referred to in any statute, there is much to be said for the view that the sanctions which bind it to act in accordance with the law and in a rational manner are political ones with the consequence that it would be inappropriate for the court to interfere with what it does.

164. Wilcox J posited two elements to the enquiry: first, what his Honour referred to as Lord Diplock’s “formulation of justiciability”[295], and, secondly, whether there was some feature, such as national security or a relationship to international relations, which would make judicial review “inappropriate”[296]. The test of “justiciability” of Lord Diplock was almost a requirement of standing. See [143] above. It also was not dissimilar to the emphasis on rights placed by Marshall CJ (see [144] and [145] above).
     
165. Wilcox J found that Peko failed both limbs of the analysis. As to the second limb, Wilcox J said[297]:

[P]assing to the second aspect of reviewability, although the decision had possible municipal legal significance, the decision primarily involved Australia’s international relations. Issues arising out of international relations have widely been regarded as non-justiciable: see Buttes Gas and Oil Co v Hammer (No 2) [1982] AC 888 at 937-938; Gerhardy v Brown [1985] HCA 11; (1985) 57 ALR 472; 59 ALJR 311 at 341; Ex parte Molyneaux [1986] 1 WLR 331 at 336; Chicago & Southern Air Lines Inc v Waterman Steamship Corp [1948] USSC 46; (1948) 333 US 103 at 111. In particular the courts have disclaimed the entitlement to adjudicate upon decisions by the Executive concerning the exercise of its treaty-making power.

166. The approaches of Bowen CJ and Wilcox J were different. Bowen CJ had a wider group of connecting features making up the reasons for non-justiciability; Wilcox J, in the application of the second limb of his approach, characterised the decision as connected with the external affairs power and so inappropriate for review. However, each took a broad view as to the features which could affect or determine the relevant questions.
     
167. In South Australia v O’Shea[298] the justiciability of Cabinet decisions arose once again. The Governor-in-Council, contrary to the recommendations of the Parole Board, but, as it must have been, in conformity with a Cabinet decision, refused to release Mr O’Shea on licence. Mason CJ[299] rejected the proposition that Cabinet could never be obliged to act fairly. He said[300]

But in some instances Cabinet is called upon to decide questions which are much more closely related to justice to the individual than with political, social and economical concerns. The fact that Cabinet ordinarily directs its attention to concerns of this kind is not a reason for denying the existence of a duty to act fairly in a matter which turns not on such concerns, but on considerations peculiar to the individual.

168. Mason CJ also referred to the secrecy of cabinet discussions. This was recognised as affecting how any duty might manifest itself and what the courts could legitimately do. He said[301]:

It could scarcely be supposed that a court could require Cabinet to give particulars to an interested person of its possible objections to his application or submission so that he might meet them or that a court could pronounce a decision invalid because Cabinet had not given such particulars. Nor would a court ordinarily require the Minister to disclose his submission to Cabinet, because to do so would compel disclosure of material considered by Cabinet. But I can find no persuasive reason why the courts should not, in an appropriate case, require as an incident of natural justice or the exercise of a duty to act fairly that there be placed before Cabinet by the responsible Minister the written submissions of the individual affected by the decision to be made or an accurate summary of such submissions. Such a requirement could not amount to an intrusion into Cabinet’s control of its own proceedings and it would in all probability conform to existing practice. If at some later stage it were to appear that the Parliament was entrusting the Governor in Council with the making of decisions affecting individuals so as to avoid the need to act fairly the court might be compelled to go further, but at this stage such a course is not warranted.

[emphasis added]

169. Gummow J examined the question of justiciability in Re Ditfort; Ex parte Deputy Commissioner of Taxation[302]. The case concerned a bankrupt who sought the annulment of his sequestration on the ground that his extradition to Australia from Germany had been effected by false or misleading statements by the Australian Government to the German Government. It was alleged that this question was non-justiciable. Gummow J noted Peko, and then cited the passage from the judgment of Brennan J in the United States Supreme Court in Baker v Carr[303] referred to in [149] above which identified a more particular and less sweeping approach to that exhibited in Peko.
     
170. Gummow J, after pointing out that the question of non-justiciability may refer to distinct legal principles, including the question of the evidential conclusiveness of certificates by the executive in matters peculiarly its concern[304], cautioned against the application of approaches based on analysing the prerogative in the United Kingdom, rather than the content of s 61 of the Constitution. He also stressed the relationship between the claimed rights of the parties and the existence of a “matter” under Ch III. This analysis is closely related to standing[305]. For example, a breach of Australia’s international obligations of itself will not be a matter justiciable at the suit of a private citizen[306]. However, where a party has standing to complain about the acts of the executive Gummow J said that the matter should be analysed by reference to whether the court was being asked to undertake a function which was[307]:

“ an extension of the court’s true function [ie judicial] into a domain that does not belong to it, namely the consideration of undertakings and obligations depending entirely on political sanctions.”

[emphasis added]

171. This perhaps takes one back to the notion that the issue, at least the primary issue, is one not of discretion, but one inherent in the nature of the judicial process[308].
     
172. This would seem to be a narrower characterisation than that of either Bowen CJ or Wilcox J in Peko, resting on the entirety of the matter as political[309], such as to deny the dispute in its context the character of a “matter”.
     
173. However, Gummow J also suggested a role for discretion involved in the grant of equitable relief in the public law injunction and declaration[310]. To the extent that the constitutional or prerogative writes are discretionary, similar considerations may arise there. This should be seen as distinct from the more problematic course of deciding not to exercise jurisdiction if there is a “matter” presented for disposition[311].
     
174. This analysis provides a two-stage framework for analysis, as did the approach of Wilcox J in Peko, but, for federal judicial review, it provides a framework conformable with the Constitution and the exercise of federal jurisdiction. It is not appropriate merely to state that some questions are not “justiciable”. Rather one asks whether there was a “matter” in respect of which the claimant had standing. There will be no such matter if the dispute is about an entirely political question; but there will be if there is an allegation of exceeding the authority conferred by s 61. If there is a matter, bound up with that will be the question of standing. Even if all these aspects are present so as to engage the judicial power of the Commonwealth, considerations of the kind mentioned by Bowen CJ and Wilcox J in Peko and Brennan J in Baker v Carr may affect the discretion to grant the relief.
     
175. If I may respectfully suggest, the impact or relevance of these questions of political or international questions, at least in the exercise of federal jurisdiction, should be approached in the way suggested by Gummow J and, I would have thought, differentially by reference to the particular issues raised and the relief sought. For instance, there may be a world of difference as to whether there is a matter for which the applicant has standing or in respect of which relief should be given between a claim that a decision of the executive was made without according someone natural justice and a claim that the decision was perverse or Wednesbury unreasonable. The latter might well be a real intrusion into entirely political questions, which the former may not be. Equally, the existence or not of a real threat to property or rights (depending on their character) to ground quia timet relief may transform circumstances into a matter. If there were no threat from a decision of Cabinet to affect immediately an otherwise recognisable and justiciable right of a party, an application to restrain Cabinet from making a decision without according natural justice may be seen as no more than an attempt to interfere in the process of an elected government making policy – and so not a matter under ch III of the Constitution, and a subject in respect of which there would be no standing of the party concerned.
     
176. The process of assessment as to what is justiciable is partly intuitive, and certainly value laden. It is also partly historical. This is shown by the prerogative of mercy The grant of mercy[312] and pardon were aspects of the historical prerogative. However, are they to be viewed today as affecting the rights of a prisoner and on a basis similar to the English early release case, especially if it is alleged that the decision has been activated by an improper purpose? Or is the notion of mercy different from the sentencing function, as being personal and something to which “rights” do not adhere? The distinction perhaps raises the question whether in modern times the singular right to act on such personal conceptions as mercy is not now to be seen as an exercise of political power within the legal framework of sentencing and the administration of justice. The argument to the contrary is strong. Just as the Sovereign in Council had this power, so the leaders of a democratic nation or polity should have it as an act of political will based on considerations within the breast of the leaders of the polity. This is what Greig J was referring to in Burt v Governor General[313] when he referred to the “unique extra-legal, extra-judicial and extraordinary power”[314]. I will return to this shortly.
     
177. In Everett[315] the decision to refuse a passport was held to be reviewable, lacking any “policy” element. Taylor LJ referred to “high policy”[316] and illustrated the phrase by reference to making treaties, making law, dissolving Parliament, mobilising the armed forces, not granting or refusing passports.
     
178. The judgmental nature of the enquiry is perhaps illustrated by the manner of disposition of a number of English cases dealing with the prerogative on treaties and mercy since the courts began to view the prerogative as more open to review. In Blackburn v A-G[317] the Court of Appeal had little difficulty in refusing to question the treaty making power in circumstances where a declaration was sought that the signature to the Treaty of Rome would be unlawful as a surrender of sovereignty. In Ex parte Molyneaux[318] a challenge to the implementation of the Anglo Irish Agreement of 1985 was dealt with by Taylor J (ex tempore) on the basis of the lack of merit in the arguments put forward (though it should be said, in short order) that there was a fetter placed on the Secretary of State and that there was a conflict with a provision of the Anglo-Irish Acts of Union. Though Taylor J did say that it was not the function of the courts to enquire into the exercise of the prerogative in entering into such an agreement on the choice of method of implementation, Hadfield[319] has taken from the manner of disposition on the merits a greater willingness of the courts to look at the merits of arguments which previously would have been clearly protected. I doubt this. The matter was despatched ex tempore and the lack of reference to Blackburn is probably a function of brutal despatch, rather than considered omission. Also, it does not seem to have been cited in argument. In Ex parte Rees-Mogg[320] judicial review of the decision of the Foreign Secretary to sign the Maastricht Treaty was sought by a member of the House of Lords with an interest in constitutional affairs. The arguments were, relevantly, that by execution of the Treaty domestic law in the United Kingdom had been altered, without the intervention of Parliament, and that by signing the Treaty part of the Royal prerogative was being transferred to Community institutions without parliamentary authority. The arguments were dealt with on their merits, but in the context of the recognition of Blackburn which had recently been affirmed in the House of Lords in J H Rayner (Mincing Lane) Ltd v Department of Trade[321].
     
179. Greater debate has taken place in relation to pardons and mercy. The grant or pardon is not a judicial act in the sense that it leaves the conviction untouched[322]. The pardon remitts the consequences of the crime. It is an extension of “grace and mercy”[323]. In 1971, in Hanratty[324], Lord Denning had said this prerogative was unreviewable. In 1994, in Bentley[325], a Divisional Court engaged in a species of judicial review. Bentley was hanged in 1953, aged 19. A policeman had been shot by his 16 year old accomplice while both were engaged in a criminal enterprise. He was convicted of murder. The jury recommended mercy. Despite widespread protests and contrary advice of civil servants, Bentley was hanged. His sister campaigned for 40 years for a posthumous pardon for him. The Home Secretary refused the pardon on the basis of a policy, long in place, that free pardons should only be issued in cases of moral and technical innocence. The statement of Lord Roskill in CCSU[326] that the prerogative of mercy was not reviewable was put to one side as obiter. Hanratty was put to one side as pre-CCSU and not concerned with the notion of justiciability used in CCSU. The Court relied on the comments of the New Zealand Court of Appeal in Burt[327] that the power was not beyond judicial reach. Cooke P, Gault and McKay JJ there said[328]:

There is nothing heterodox in asserting, as counsel for the appellant do, that the rule of law requires that challenge shall be permitted in so far as issues arise of a kind with which the courts are competent to deal. ... In the end the issue must turn on weighing the competing considerations, a number of which we have stated. Probably it cannot be said that any one answer is necessarily right; it is more a matter of a value or conceptual judgment as to the place in the law and the effectiveness or otherwise of the prerogative of mercy at the present day. In attempting such a judgment it must be right to exclude any lingering thought that the prerogative of mercy is no more than an arbitrary monarchical right of grace and favour. As developed it has become an integral element in the criminal justice system. A constitutional safeguard against mistakes.

180. The English Divisional Court accepted this. What was to be examined was whether the nature and subject matter of the decision was amenable to the judicial process[329]. It was a question of the nature of the complaint and what was known about the decision. Thus, it was concluded that some aspects of the prerogative of mercy were amenable to the judicial process. The development of what aspects and to what degree was left to future cases. The court clearly considered that the policy of successive Home Secretaries failed to deal with all aspects of the available mercy. Other types of pardons, other than a “free” pardon could have been considered. In a sense, the “jurisdiction” available to the Home Secretary had not been fully exercised. Recognising the delicacy of the matter, the court refused to make orders or declarations, but “invited” the Home Secretary to look at the matter again, expressing its views as to the merits fairly strongly. This reticence to grant relief may betray a lingering intuitive recognition of the nature of the power, not mere courtesy.
     
181. Later, in 1996, the Privy Council [330] in Reckley[331] held that the exercise of mercy (in respect of a capital crime) under the constitution of the Bahamas was not subject to judicial review. The Privy Council applied de Freitas v Benny[332] where Lord Diplock said, amongst other things, in delivering the judgment of the Privy Council[333]:

At common law this has always been a matter which lies solely in the discretion of the Sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion. Mercy is not the subject of legal rights. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy. In tendering his advice to the Sovereign the Home Secretary is doing something that is often cited as the exemplar of a purely discretionary act as contrasted with the exercise of quasi-judicial function.

182. Bentley and Burt were put aside as not concerned with capital punishment and “no assistance was derived from them”. Doody[334] was distinguished as dealing effectively with rights of the prisoner in the sentencing regime.
     
183. Thus, there is plainly room for debate as to what is justiciable or what should form the basis of any exercise of discretion not to grant relief[335]. Political considerations, policy, high policy, or foreign relations, consideration of matters for which the courts have no judicial means of assessment, the degree to which rights of a party whether as to custody or human rights or other are affected, the context in which the matter arises and the relief sought will all play a part in what is probably best described in most circumstances, absent rules such as act of state, as a value judgment.
     

The Relationship Between Justiciability and the Clothing of the Executive With Wide Authority

184. There is also an important connection between these questions of justiciabilty, deference and discretion and any debate about the legitimacy of the clothing of the executive with very wide authority.
     
185. The High Court in Enfield has recognised the deference due to at least some kinds of executive fact finding. Relevant to the assessment of the appropriateness and extent of such deference was “the field in which the tribunal operates”[336]. The perceived “legitimacy” of Parliament allowing the executive to form an opinion about a matter as free as possible from judicial supervision will be likely to be greater the closer the subject matter of the opinion comes to an area within which the courts lack manageable standards to judge the issue, or which by tradition and custom are seen to be the exclusive domain of the Crown or the executive. Further, the context in which the “matter” arises is, it seems to me, vital. Professor McMillan has argued[337] that in the Tampa case the nature of the action of the executive, its setting and timing, the difficulty of fashioning a remedy and the plaintiffs’ position made it a non-justiciable dispute. It seems to me the primary difficulty with that proposition is that the primary claim sought was a writ in the nature of habeas corpus[338], in relation to people within Australian territorial waters. The issue was raised on appeal on the question of costs where Black CJ and French J said[339]:

The Commonwealth, it was said, was exercising an aspect of executive power central to Australia’s sovereignty as a nation. The litigation was “... therefore an interference with an exercise of executive power analogous to a non-justiciable ‘Act of State’”. The proposition begs the question that the proceedings raised. That question concerned the extent of executive power and whether there was a restraint on the liberty of individuals which was authorised by the power. It is not an interference with the exercise of executive power to determine whether it exists in relation to the subject matter to which it is applied and whether what is done is within its scope. Even in the United Kingdom, unencumbered by a written constitution, the threshold question whether an act is done under prerogative power is justiciable. See Re Ditfort; Ex parte DCT (1988) 19 FCR 347; 83 ALR 265 per Gummow J at FCR 368-9 ...

186. The question might be different, however, if the restraint or action was being undertaken outside Australian territory or territorial waters[340].
     
187. Also, one of the arguments underlying the opposition to the widening of executive power in the manner discussed earlier, is based on the inability of the executive to found its exercise of power on its own opinion of a necessarily existing constitutional fact. Thus, as Fullagar J said in the Communist Party case[341]:

power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.

188. To the extent that the jurisdictional fact is a constitutional fact or a fact upon which the lawful operation of legislation depends, its existence cannot be removed from judicial review. Dixon CJ, McTiernan and Webb JJ in Hughes and Vale Pty Limited v New South Wales (No 2)[342]:

[U]nder the rigid federal Constitution of the Commonwealth a provision is not valid if it would operate to withdraw form the courts of law, and so ultimately from this Court, the decision of any question as to the consistency of a statute or an executive act with the Constitution. So far as facts are concerned, the point is covered by the succinct statement of Williams J: “it is clear to my mind that it is the duty of the Court in every constitutional case to be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation.”: Australian Communist Party v Commonwealth[343]. It is unnecessary to add that the correctness of the legal basis upon which the operation of the legislation depends likewise must be for the determination of the Court. If legislation is framed so that its consistency with s 92 would depend upon the opinion of an administrative officer as to fact or law it cannot be upheld.

189. However, if a decision maker has in fact decided that the “lighthouse” exists, the courts may be constrained in the constitutional and jurisdictional review of that factual issue by reference to the deference referred to in Enfield or, by the difficulty of finding manageable standards upon which to decide the question, or by questions of the evidential effect of statements by the executive of a certain kind[344], such as statements by the executive as to matters of status of foreign powers[345], or statements that the interests of Australia would be or not be served by a certain course[346].
     
190. The place within this area of constitutional or jurisdictional fact finding for questions of deference and non-justiciability was touched on in Queensland v The Commonwealth[347]. The remarks there reinforce the importance of the competent authority of the executive to judge such questions as “outstanding universal cultural value.” In such factual areas embodying matters of opinion and degree, it may be that the existence of the constitutional or jurisdictional fact will be assessed not by the making of a curial judgment on the question, but by assessing whether it was reasonably open for such a finding to be made[348].
     
191. This relationship between the subject matter at hand and the existence or degree of judicial review can be seen in R v Secretary of State; Ex parte Nottinghamshire County Council[349] where judicial review was sought as to the report of the Secretary of State, laid before and approved by, the House of Commons, setting guidelines for public expenditure by local authorities. Lord Scarman saw the issue as political and non-justiciable, but did leave room in an exceptional case for judicial review – if a prima facie case of bad faith, or an improper motive, or the decision was so absurd that he must have taken leave of his senses. This can be seen in the context of the judgment as more attenuated than Wednesbury[350], and comes close to Hickman.
     
192. The implicit place of a given legal theory in the debate not only as to the width of available power to the executive, but also as to the notions of non-justiciability can be seen in the comments by TRS Allan[351] on Reckley and related issues. In speaking of the prerogative of mercy he said[352]:

Now, the exercise by ministers of unfettered power in their relations with the private citizen is radically inconsistent with constitutional principle: the notion of a purely administrative or discretionary act that determines a citizen’s fate, without recourse to legal safeguards, is a flagrant contradiction of the rule of law. The principle of equality that forbids unjustified discrimination between persons is absolute; and the denial of enforceable rights of procedural fairness and due process therefore leaves the prerogative of mercy open to abuse without any constitutional justification. No proper exercise of a valid legal power, whether in a person’s favour or against him, can accurately be called a ‘departure from the law’: there is no distinction between leniency in the present context and any other case in which a person’s treatment is subject to ministerial discretion. If the constitution grants the prisoner recourse to the executive to relieve him of the ordinary consequences of a criminal conviction, he is entitled to precisely the same quality of impartial consideration and treatment as would be accorded any other citizen in similar circumstances. The criteria for the grant or denial of a pardon must be as capable of justification, in terms of the general interest, as those which govern the allocation or distribution of any other public benefit or good: it cannot be denied on arbitrary or capricious grounds. Thr prisoner must therefore be treated fairly in accordance with those criteria, an obligation whose fulfilment would normally be assisted by considering his representations, enabling him to make his case for clemency.

...

No one, even if convicted of serious crimes, should in any circumstances be subject to the unfettered discretion of a public official, or be dependent on grace or favour, bestowed on idiosyncratic grounds, and vulnerable to personal antagonism or caprice. The prerogative of mercy is wrongly so called: there is only prerogative of justice, exercised by, or under the close supervision of, the Queen’s courts.

...

Where the most important interests of the citizen are at stake, the executive should be required to meet the highest standards of fairness and rationality. To treat a decision about the execution of a prisoner as a matter of unfettered discretion is a betrayal of the rule of law in a context where its demands are especially onerous. It is quite mistaken to seek to identify a field of executive power whose nature makes it unsuited to judicial review: the correct approach is always to examine the requirements of equality and procedural fairness, as they apply in the context of the decision-making process in question. Where important issues of public policy arise for which the ‘political’ branches must take responsibility, the courts must be careful to ensure that the requirements of fairness do not operate to deprive ministers or officials of their legitimate freedom of decision and action. The proper balance between individual right and public interest can only be determined, however, by analysis and argument: it cannot be obtained by wielding the blunt tool of ‘justiciability’, or designating heads of governmental power as inherently ‘political’.

193. The emboldened passages exemplify the standards against which these assertions are made. Whilst dealt with elsewhere in his work, the contents of the phrases such as “the rule of law”, “unjustified discrimination”, “procedural fairness and due process” and the balance of the paragraph have within them the elements of the justiciability of every act of the executive affecting persons in a way demanding equality, predictability, rationality and fairness. If the law mandates such an approach in all circumstances the source of that approach must be found within the fabric of the Constitution. The task is not one of assertion, but textual constitutional analysis, assisted by the exposure and application of any relevant legal postulate against which to assess and interpret that text.
     
194. The development of the law in this area poses important questions as to method and approach. The answers to questions as to whether there are aspects of a dispute which take it outside the concept of a “matter” or which are such as to otherwise require an exercise of a judicial discretion not to award relief are not likely to be arrived at entirely by the application of syllogistic logic. The element of will and choice inherent in the determination of such questions is apparent from the subject matter involved. That this is so makes it all the more important, it seems to me, that the approach to the resolution of the questions be informed by the recognition that analysis should be shorn of assertion and the recognition that the exercising of control over some executive functions may (perhaps inevitably when recognised rights are affected) draw the judicial arm close to, if not into, the political process.[*]

---

[1] In Plaintiff S157 of 2002 v The Commonwealth of Australia and In re the Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 heard 3 and 4 September 2002 and reserved.

[2] I leave to one side what might be a debate as to whether the phrase “privative clause” is a misnomer in this context. Subsection 474(1) is in the following terms:

A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

[3] “All systematic thinking about legal theory is linked at one end with philosophy and, at the other end, with political theory.”

[4] Eastern Trust Company v McKenzie Mann & Co Limited [1915] AC 750, 759 (P.C.)

[5] As to the enforcement of court orders and the role of the executive in aid thereof, see New South Wales v Commonwealth [1932] HCA 7; (1932) 46 CLR 155, 185. (Like the Pope (now) the courts have no divisions.)

[6] See Renfree The Executive Power of the Commonwealth of Australia (Legal Books, 1984). As to the lack of an accepted definition, see Davis v The Commonwealth [1988] HCA 63; (1988) 166 CLR 79, 92-3 and 107 and M Sunkin and S Payne The Nature of the Crown: A Legal and Political Analysis (Oxford 1999) pp 78-87.

[7] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Limited [1970] HCA 8; (1970) 123 CLR 361, 389-97 per Windeyer J.

[8] Evatt The Royal Prerogative (Law Book Co, 1987) p 7; s 61 of the Constitution see n. 13

[9] See Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, 494 at [70] and [71]; Ryder v Foley [1906] HCA 61; (1906) 4 CLR 422, 432-33; see the instructions to various State governors referred to in Hogg “Judicial Review of Action by the Crown Representative” (1969) 43 ALJ 215; and see the Australia Act 1986 (Cth) and The Australia Act 1986 (UK)

[10] Dicey defined the prerogative as “the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown.”; and see [141] and ftnt 243, below.

[11] See generally Evatt op.cit. n. 8 pp 7-17

[12] See E Kantorowicz The King’s Two Bodies; A Study in Mediaeval Political Theology (Princeton 1981) and especially Chs III and IV; JN Figgis The Divine Right of Kings (Harper 1965); and Holdsworth A History of English Law (3rd Ed) Vol 4 pp 18-9, 192-9; (2nd Ed) vol 6 pp 11-31, 203-301

[13] Section 61 is in the following terms:

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

[14] For example, Re Ditfort; Ex parte DCT (1988) 19 FCR 347, 369 (per Gummow J); Ruddock v Vadarlis [2001] FCA 1329; (2001) 183 ALR 1, 48 [179] per French J.

[15] “Today we study the day before yesterday, in order that yesterday may not paralyse today, and that today may not paralyse tomorrow.” Maitland Collected Papers vol (iii) pp 438-9; cited in Shannon Roman Law in the Modern World (Rothman 1993 Ed) vol 1 p11; and see Sunkin and Payne op.cit. n. 6 pp 101 ff

[16] Burmah Oil Company (Burma Trading) Ltd v Lord Advocate [1964] UKHL 6; [1965] AC 75, 99-100 (per Lord Reid); and Davis v The Commonwealth, supra at 92-3 and 107

[17] Evatt op. cit. n. 8 pp 29-31

[18] [1938] NSWStRp 9; (1938) 38 SR (NSW) 195, dealing with the Crown prerogative of copyright in State Acts of Parliament.

[19] [1940] HCA 13; (1940) 63 CLR 278, dealing with Crown priority over other creditors.

[20] (The Seas and Submerged Lands case) [1975] HCA 58; (1975) 135 CLR 337, dealing with ownership of, and sovereignty over, the sea bed.

[21] See generally Hogg Liability of the Crown (2nd Ed) pp 210 ff, and such cases as Townsville Hospitals Board v Townsville City Council [1982] HCA 48; (1982) 149 CLR 282; and Superannuation Fund Investment Trust v Commissioner of Stamps [1979] HCA 34; (1979) 145 CLR 330; and the related, but distinct, questions as to the meaning of State and Commonwealth for the purposes of the Constitution and the Judiciary Act 1903 (Cth), as to which see State Bank of NSW v Commonwealth Savings Bank [1986] HCA 62; (1986) 161 CLR 639 and DCT v State Bank of NSW [1992] HCA 6; (1992) 174 CLR 219.

[22] As set out in Renfree op. cit. n.6 p 395. Of course, many of these topics have been the subject of statute.

[23] R v Kidman [1915] HCA 58; (1915) 20 CLR 425, 440-45; Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 188, In re Neagle [1890] USSC 136; 135 US 1 (1885) and Renfree op. cit.n. 6 pp 457-61

[24] As to all of which see Renfree op. cit. n. 6 pp 466-69.

[25] Ruddock v Vadarlis [2001] FCA 1329; (2001) 183 ALR 1

[26] Farey v Burvett [1916] HCA 36; (1916) 21 CLR 433, 452

[27] Zines Commentary on Evatt op. cit. n. 8 p C6

[28] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168; Commonwealth v Tasmania (The Tasmanian Dams Case) [1983] HCA 21; (1983) 158 CLR 1

[29] Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273

[30] The Convention on the Rights of the Child which was ratified by Australia in 1990 and entered into force for Australia on 16 January 1991.

[31] Teoh, supra at 304; Mason CJ and Deane J did not deal with the point as it had not been the subject of argument: Teoh, supra at 292.

[32] Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 182 CLR 24, 39-42

[33] As to parens patriae doctrine, see Beverley's Case [1598] EngR 5; (1603) 4 Co Rep 123b; 76 ER 1118; Fitz-Herbert's Natura Brevium (9th Ed) 1794 [232]; Chitty Treatise on the Prerogatives of the Crown 1820 p 155; Seymour 'Parens Patriae and Wardship Powers: Their Nature and Origin' (1994) 14 Oxford Journal of Legal Studies 159; Carter 'The Origins of the Doctrine of Parens Patriae' (1978) 27 Emory Law Journal 195; Abramowicz 'English Child Custody Law, 1660-1839: The Origins of Judicial Intervention in Paternal Custody' (1999) 99 Columbia Law Review 1344; Eve, by her Guardian ad litem, Fitzpatrick v Mrs E 1986 CanLII 36 (SCC); [1986] 2 SCR 388, 407-417 per La Forest J; Secretary, Department of Health and Community Services (NT) v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218; Wellesley v Duke of Beaufort [1827] EngR 268; (1827) 2 Russ 1; 38 ER 236 and on appeal Wellesley v Wellesley (1828) I Bligh NS 124; [1827] EngR 268; 4 ER 1078; In re X (a Minor) [1975] Fam 47, 51, 57, 60; Pomeroy A Treatise on Equity Jurisprudence (5th Ed) (1994 Reprint) Vol 4 pp 869 ff

[34] Gaudron J imposed the obligation not only on the government (the executive) but also the courts.

[35] See Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281 at [113] to [115]; and cf Re Ditfort, supra at 369.

[36] See Renfree op.cit. n. 6 pp 395-400

[37] Zines op.cit. n. 27 pp C4 - C6

[38] See [132] ff below

[39] As to this, see [87] ff below

[40] [2001] FCA 1329; (2001) 183 ALR 1

[41] See in particular A-G v De Keyser’s Royal Hotel Ltd [1920] UKHL 1; [1920] A.C. 508; Théberge v Laudry (1876) 2 App Cas 102, 106; Woolley v A-G of Victoria (1877) 2 App Cas 163, 167-168; The Odessa [1916] 1 AC 145, 162; Jamieson v Downie [1923] AC 691, 694; R v Secretary of State; Ex parte Northumbria Police Authority [1989] 1 QB 26; R v Secretary of State; Ex parte Fire Brigade Union [1995] UKHL 3; [1995] 2 AC 513; and see generally Sunkin and Payne op. cit. n. 6 pp 106 ff

[42] [1935] HCA 72; (1935) 54 CLR 12

[43] [1974] HCA 20; (1974) 131 CLR 477; and see Goldring “The Impact of Statutes on the Royal Prerogative” (1974) 48 ALJ 434

[44] [1975] HCA 4; (1975) 132 CLR 164

[45] Deynzer v Campbell [1950] NZLR 790, 824-25;

[46] Simpson v Attorney-General [1955] NZLR 271

[47] A-G for New South Wales v Butterworth and Co (Australia) Ltd [1938] NSWStRp 9; (1938) 38 SR (NSW) 195.

[48] 183 ALR at 52 [193]

[49] [1920] AC 908

[50] citing Gummow J in Re Ditfort, supra at 369

[51] [1974] HCA 20; (1974) 131 CLR 477 at 488; see also French J 183 ALR at 49 [184]

[52] See, in particular, 183 ALR at [64].

[53] [1995] UKHL 3; [1995] 2 AC 513

[54] ibid at 547

[55] 2:1 in the Court of Appeal; 3:2 in the House of Lords

[56] Though, extended by the power able to be deduced from the establishment and nature of the Commonwealth as a polity: Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 187-88; Davis v The Commonwealth, supra at 93.

[57] Bonanza Creek Gold Mining Co Ltd v R [1916] 1 AC 566, 587; and Davis v The Commonwealth, supra at 93; but see the different opinions expressed in Victoria v The Commonwealth (The Australian Assistance Plan Case) [1975] HCA 52; (1975) 134 CLR 338 as to the executive power of spending moneys appropriated by Parliament.

[58] Renfree op. cit. n. 6 pp 410 ff

[59] Davis v The Commonwealth, supra at 93

[60] The Commonwealth v Colonial Combing, Spinning and Weaving Co (The Wooltops case) [1922] HCA 62; (1922) 31 CLR 421. The extent of the executive power to contract, whether derived from the prerogative, or otherwise from the Constitution, is a topic in itself. See generally JDB Mitchell The Contracts of Public Authorities (1954): P W Hogg Liability of the Crown (2nd Ed) pp 159-177.

[61] Brown v West (1990) 169 CLR 195

[62] Barton v The Commonwealth [1974] HCA 20; (1974) 131 CLR 477

[63] Davis v Commonwealth, supra at 93-4

[64] See for example JJ Doyle “1947 Revisited the Immunity of the Commonwealth from State Law” in Lindell (ed) Future Directions in Australian Constitutional Law pp 47-72

[65] Joseph v The Colonial Treasurer [1918] ArgusLawRp 47; (1918) 25 CLR 32

[66] Seas and Submerged Lands Act case [1975] HCA 58; (1975) 135 CLR 337.

[67] [1947] HCA 26; (1947) 74 CLR 31, 79-81; but see Barwick CJ in Victoria v Commonwealth [1971] HCA 16; (1975) 122 CLR 353, 380-83; Commonwealth v Cigamatic Pty Ltd [1962] HCA 40; (1962) 108 CLR 372; and Re Residential Tenancies Tribunal of New South Wales; Ex parte the Defence Housing Authority (1997) 190 CLR 410.

[68] I leave crime to one side.

[69] See [132] ff below

[70] South Australia v The Commonwealth [1962] HCA 10; (1962) 108 CLR 130; and cf State Bank of New South Wales v Commonwealth Savings Bank of Australia (1985) 60 ALR 73

[71] Northern Territory v Mengel (1995) 185 CLR 307; Three Rivers DC v Bank of England (No 3) [2000] 3 All ER 1; Sanders v Snell (1998) 198 CLR 329

[72] See generally Brennan “Liability in Negligence of Public Authorities: The Divergent Views” in Donoghue v Stevenson and the Modern Law of Negligence – the Paisley Papers at pp 79-115; Allars “Tort and Equity Claims Against the State” in PD Finn (Ed) Essays on Law and Government (Vol 2) pp 49-100, esp pp 52-86.

[73] Otherwise than in the sense that the specific conduct in the specific circumstance was directly authorised by statute.

[74] See, in particular: Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424; Northern Territory v Mengel (1995) 185 CLR 307, 352-53 and 359-60; Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330; Romeo v Conservation Commission (1998) 192 CLR 431; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1; and Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512

[75] See [132] ff below

[76] See Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, 527 and 538 per Gleeson CJ (in dissent).

[77] By way of selection: Goff and Jones Restitution (5th Ed); Mason and Carter Restitution Law in Australia; Birks An Introduction to the Law of Restitution; Zimmermann The Law of Obligations; Jackman Varieties of Restitution; Grantham and Rickett Enrichment and Restitution; Burrows The Law of Restitution; Jaffey The Nature and Scope of Restitution; Beatson The Use and Abuse of Unjust Enrichment; and Finn (Ed) Essays on Restitution

[78] Pavey & Matthews Pty Limited v Paul [1987] HCA 5; (1987) 162 CLR 221, 256-57; Australian & New Zealand Banking Group Limited v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662, 673; and David Securities Pty Limited v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353, 375

[79] Woolwich Equitable Building Society v IRC [1993] AC 70; Commissioner of State Revenue v Royal Insurance Australia Ltd [1994] HCA 61; (1994) 182 CLR 51; and see generally K. Mason “Money Claims By and Against the State” in Finn (Ed) Essays on Law and Government Vol 2 at pp 101 ff.

[80] State Bank of NSW v FCT (1995) 132 ALR 653

[81] A-G for New South Wales v Quin (1990) 170 CLR 1, 26

[82] Quin at 35

[83] Quin at 35-36; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73]

[84] Quin at 35-7

[85] [2002] 1 HKLRD 561 (Final Court of Appeal, which included Sir Anthony Mason)

[86] Corporation of the City of Enfield v Development Assistance Commission [2000] HCA 5; (2000) 199 CLR 135

[87] From Chevron USA Inc v Natural Res Def Council, Inc [1984] USSC 140; 467 US 837 (1984) which held that subject to statute, courts should accord deference to reasonable administrative interpretation by agencies of ambiguous statutory provisions.

[88] Port Arthur Shipbuilding Co v Arthurs [1969] SCR 85; Metropolitan Life Insurance Co v International Union of Operating Engineers Local 796 [1969] INSC 127; [1970] SCR 425; and Bell v Ontario Human Rights Commission [1971] SCR 756

[89] Canadian Union of Public Employees Local 963 v New Brunswick Liquor Corporation [1979] 2 SCR 227; and see L’Heureux-Dubé “The ‘Ebb’ and ‘Flow’ of Administrative Law on the ‘General Question of Law’” in M Taggart (Ed) The Province of Administrative Law.

[90] By which I mean statutes such as the Administrative Decisions (Judicial Review) Act 1977 (Cth). I leave aside the source of the power of the courts – whether common law or statutory: see Kneebone “What is the Basis of Judicial Review?” (2001) 12 PLR 95

[91] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 – a qualification important for the discussion at [87] ff below.

[92] Craig, supra at 179

[93] Craig, supra at 179. This “list” is not exhaustive: Yusuf, supra at 21 [82].

[94] Though sometimes expressed as “authority to decide”: Jackson v Sterling Industries [1987] HCA 23; (1987) 162 CLR 612, 627, this needs to be seen in the light of the importance of non-colourable assertion of claims that the matter is within the court’s authority to deal with. The task is adjudication and decision, not just decision.

[95] Craig, supra at 179-80

[96] especially 184 CLR at 176-80

[97] [1968] UKHL 6; [1969] 2 AC 147

[98] Finn Vol 3 Aust. J. of Admin Law 179, though cf Allars 24 Fed L R 235, 250; and see Allars “Chevron in Australia: A Duplicitous Rejection?” (2002) Admin L.R 569, 572-73; cf Eshugbayi v Nigeria [1931] UKPC 37; [1931] AC 662, 670

[99] Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194, 208-9

[100] A tribunal, by orthodox jurisprudence by reference to Ch III and the judicial power of the Commonwealth; but one which would plainly be characterised as quasi-judicial.

[101] Coal and Allied, supra at 208-9

[102] (1947) 47 SR (NSW) 416 at 420

[103] referring to R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243

[104] referring to R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243

[105] referring to R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 432.

[106] Coal & Allied, supra at 209; to be contrasted with the view of Kirby J at 226-30

[107] As to which, see generally the discussion in Enright Federal Administrative Law (2001) p 377.

[108] CFMEU v AIRC [1999] FCA 847; (1999) 164 ALR 73 at [63] to [71] (Full Court); and see Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 9; (1999) 198 CLR 334 at [145]; though for a contrary view see Edwards v Giudice [1999] FCA 1386.

[109] As in Craig itself, since Kirby J at [80] did see in the Act a contemplation that some errors of law would be within jurisdiction; and see the examples of dissents as to this question given by Kirby J in Craig at ftn 184: R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 at 373 per Mason J; at 383 per Deane J; at 392 per Dawson J; Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393 at 398; [1987] HCA 27; 72 ALR 1 at 11 per Brennan J; at 399 and 23 per Deane J; Public Service Association (SA) v Federated Clerks’ Union [1991] HCA 33; (1991) 173 CLR 132 at 152-153 per Deane J; at 165-165 per McHugh J

[110] At least within the federal sphere, though Kable is relevant here.

[111] See Craig, supra at 179

[112] The “sphere” within which there exists a privilege to bind even though some error or irregularity has occurred: Rubenstein Jurisdiction and Illegality (1965) at p 18.

[113] See in this context Project Blue Sky v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355; and cf Nakkuda Ali v Jayaratne [1951] AC 66, 75.

[114] cf R v Gray; Ex parte Marsh [1985] HCA 67; (1981) 157 CLR 351, 371 per Brennan J.

[115] [1999] VSCA 37; [1999] 2 VR 203 at [27]

[116] Other courts have made sharper, more categoric use of the curial/administrative distinction: see Aronson and Dyer Judicial Review of Administrative Action (2nd Ed) p 172 ftnt 109 and cases there cited.

[117] See Aronson and Dyer op. cit. p 169; and Dalgety Wine Estates Pty Limited v Rizzon [1979] HCA 41; (1979) 141 CLR 552, 574-75; but of course, as Aronson and Dyer themselves point out, this was the case in Anisiminic itself.

[118] See generally Eshetu v Minister for Immigration [1999] HCA 21; (1999) 197 CLR 611.

[119] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-56; and see Minister v Rajamanikham [2002] HCA 32.

[120] See Enfield, supra at 154-56; and see Allars “Chevron in Australia: a Duplicitous Rejection?” pp 585-87

[121] With the exception of course of certiorari for non-jurisdictional error of law, on the face of the record, as to which see generally: Shawe and Gwynne “Certiorari and Error on the Face of the Record” (1997) 71 ALJ 356

[122] Meagher, Gummmow and Lehane Equity: Doctrines and Remedies (3rd Ed) 1992 pp 539-41

[123] Meagher et al op. cit. pp 531 ff

[124] s 75(v) of the Constitution, Meagher et al op. cit. pp 621-22

[125] s 39B(1) of the Judiciary Act; Meagher et al op. cit. pp 622 ff

[126] Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247; Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] HCA 11; (2000) 200 CLR 591, 611

[127] Bateman’s Bay, supra at 257; Enfield, supra at 157-58

[128] Bateman’s Bay , supra at 202; Truth About Motorways, supra at 611

[129] Bateman’s Bay, supra at 263, 270

[130] See the use of the expression in this context in Bateman’s Bay, supra at 257 [25].

[131] For example, Aimsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564.

[132] Eastern Trust Company v McKenzie Mann & Co Limited supra at 759; and see also P & C Cantarella v Egg Marketing Board [1973] 2 NSWLR, 383-4 (per Mahoney J, as he then was, sitting at first instance)

[133] [1912] HCA 69; (1912) 15 CLR 333, 342

[134] LNC Industries Ltd v BMW (Aust) Ltd [1983] HCA 31; (1983) 151 CLR 575

[135] [1983] HCA 31; (1983) 151 CLR 575

[136] [1929] HCA 36; (1929) 42 CLR 582, 585-6

[137] (1992) 28 NSWLR 125

[138] [1964] 1 All ER 448

[139] See generally Aronson and Dyer op. cit. pp 651-52

[140] Administrative Decisions (Judicial Review) Act 1989

[141] Judicial Review Act 1891 (Qld)

[142] Judicial Review Act (Tas)

[143] Administrative Law Act 1978 (Vic)

[144] See Aronson and Dyer op. cit. pp 20-22

[145] Discussion Paper Project No 95 see p 27

[146] See Supreme Court Act 1935 (SA), s 29; Supreme Court and Civil Procedure Act 1932 (Tas), s 11; Supreme Court Act 1995 (Qld) , s 246; Supreme Court Act 1970 (NSW), s 65

[147] CDJ v VAJ (1998) 197 CLR 172, 201; Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404, 421; PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301, 313 and 316; Knight v FP Special Assets Ltd (1992) 174 CLR 178, 185, 202-3 and 205; FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, 283-84 and 290; David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265, 275-76; Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114, 136-37; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 81; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 56-7; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 586-87; Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184, 201; Commonwealth v SCI Operations Pty Ltd [1998] HCA 20; (1998) 192 CLR 285, 301; Eastman v R (2000) 203 CLR 1 at [81]; Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270 at [17]; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591, 605 at [30]; and Gerlach v Clifton Bricks Pty Ltd (2002) 188 ALR 353, 357 at [14].

[148] S 75(v) and s 39B(1); subject to the above comments on par 39B(1A)(c)

[149] See R v Panel on Takeovers and Mergers; Ex parte Datafin plc [1986] EWCA Civ 8; [1987] QB 815

[150] See P Craig “Public Power and Control over Private Power” in M Taggart The Province of Administrative Law pp 196-216; Forbes v NSW Trotting Club Ltd [1979] HCA 27; (1979) 143 CLR 242; C Harlow “‘Public’ and ‘Private’ Law: Definition without Distinction” (1980) MLR 241 K Mason “The Rule of Law” in Finn (Ed) Essays on Law and Government Vol 1 p 125

[151] (1990) 26 FCR 39, 43,

[152] “an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit” ...(emphasis added)

[153] As to apparent bias in an administrative context see Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352; Webb v R [1994] HCA 30; (1994) 181 CLR 41; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70; Ebner v Official Trustee in Bankruptcy ([2000] HCA 63; 2000) 205 CLR 337; and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [95] to [105] and [177] to [187];

[154] Eaton v Overland [2001] FCA 1834

[155] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 629; Roderick v AOTC [1992] FCA 596; (1992) 39 FCR 134, 145; Johns v Release on Licence Board (1987) 9 NSWLR 103; Bromby v Offenders’ Review Board (1990) 51A Crim R 249, 269, 277; Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550, 552; and NIB Health Funds v PHIAC [2002] FCA 40; (2002) 115 FCR 561, 83-86

[156] Hot Holdings Pty Limited v Creasy [1996] HCA 44; (1996) 185 CLR 149

[157] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

[158] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 341-342

[159] Covering clause 5 of the Constitution:

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.

[160] As to which see s 106 of the Constitution.

[161] S 76(ii) of the Constitution and ss 30, 39 and 39B of the Judiciary Act 1903 (Cth)

[162] There may be a consequence in damages, nevertheless: see [38] above.

[163] See generally Durham Holdings Pty Limited v New South Wales (2001) 205 CLR 399.

[164] see [17] above.

[165] See the Communist Party case 258-61 per Fullagar J; Shrimpton v The Commonwealth [1945] HCA 4; (1945) 69 CLR 613, 629-30 per Dixon J; see Gerlach v Clifton Bricks (2002) 188 ALR 353, 371 per Kirby and Callinan JJ; and even in the context of the defence power: Dawson v The Commonwealth [1946] HCA 41; (1946) 73 CLR 157

[166] Which, within limits, are based on purpose.

[167] Communist Party case at 258

[168] [1945] HCA 53; (1945) 70 CLR 598, in particular 614-18; and see Colonial Bank of Australasia v Willan [1874] UKLawRpPC 8; (1874) LR 5 PC 417, 442.

[169] In particular R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387; see the review of these cases by the Full Court of the Federal Court in NAAV & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; and for a reconciliation of the judgments therein see Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108, (per Sackville J) and approved in NABM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294 and NAAQ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 300. An application for special leave in NAAV has been filed.

[170] The content of bona fides in this context involves an ‘honest’ attempt to deal with the subject matter: Murray, supra at 400 per Dixon J, see also Daihatsu Australia v FCT [2001] FCA 588; (2001) 184 ALR 576 at [36]

[171] R v Murray; Ex parte Proctor, supra; and NAAV supra.

[172] The words used in Hickman, which have been utilised in s 474 of the Migration Act and other legislation were: “the decision of a Local Reference Board shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever.”

[173] To the extent that the court was the High Court.

[174] See NAAV, supra

[175] See subs 474(1) above.

[176] See generally Goldsworthy The Sovereignty of Parliament (Oxford, 1999) Ch 1; and see Lord Bingham of Cornhill “The Old Despotism” (1999) 33 Israel L.R. 169

[177] Woolf “Droit Public – English Style” [1995] P.L 57, 67-71

[178] Laws “Law and Democracy” [1995] P.L 72, 81-93

[179] Sedley “Human Rights: a Twenty-First Century Agenda” [1995] P.L 386

[180] New Zealand Drivers Association v New Zealand Road Carriers [1982] 1 NZLR 374, 390; Fraser v State Services Commission [1984] 1 NZLR 116, 121; Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, 398; Te Runangao Wharekauri Dekohu Inn v A-G [1992] NZCA 503; [1993] 2 NZLR 301; Cooke “Fundamentals” (1988) NZLR 158

[181] Though see Goldsworthy op. cit. n.176 for a discussion as to whether this view of pre-1688 recognition of the limitations on Parliament is valid.

[182] Coke CJ in Bonham’s Case (1610) Co Rep 113b

[183] Hobart CJ in Day v Savadge (1614) Hob 85, 97

[184] Lord Wright in Liversidge v Anderson [1941] UKHL 1; [1942] AC 206, 260-61; Lord Reid in Pickin v British Railway Board [1974] UKHL 1; [1974] AC 765, 782; and in Madzimbamuto v Lardner – not – Burke [1968] UKPC 2; [1969] AC 645, 723; Lord Templeman in R v Secretary of State for The Environment; Ex parte Nottinghamshire CC [1985] UKHL 8; [1986] 1 AC 240, 265; Willes J in Lee v Bude & Toorington Railway [1871] UKLawRpCP 50; (1871) LR 6 CP 576, 582. Lord Irvine of Lairg “Judges and Decision – Makers: The Theory and Practice of Wednesbury Review” [1996] P. L 59, 60-62, 75-78; and see Forsyth “Of Figleaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review” (1996) 55 CLJ 122; and see Goldsworthy op. cit.

[185] Pound An Introduction to the Philosophy of Law (Yale Rep 1982) p l; Stone The Province and Function of Law (1950) ch VIII; Friedmann Legal Theory chs 7 to 14

[186] Dixon Jesting Pilate p 102; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129, 151-52; see also the detailed discussion of the issue of the supremacy of Parliament in BLF v Minister for Industrial Relations (1986) 7 NSWLR 372 esp Street CJ and Kirby P.

[187] Australian Capital Television Pty Limited v The Commonwealth (1992) 177 CLR 106; Nationwide News Pty Limited v Wills [1992] HCA 46; (1992) 177 CLR 1; Theophonous v Herald & Weekly Times Ltd (1994) 184 CLR 104; Stephens v W. A. Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211; Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272; Lange v ABC [1997] HCA 25; (1997) 189 CLR 520; and see generally Williams Human Rights Under the Australian Constitution ch 7; Kirk “Constitutional Implications” Parts I and II (2000) 24 Melb U LR 645, (2001) 25 Melb U LR 24; Kirk “Constitutional Guarantees, Characterisation and the Concept of Proportionality” (1997) 21 Melb U LR 1

[188] Not at the will of Parliament in s 76

[189] Zines “Constitutional Aspects of Judicial Review of Administrative Action” (1998) 1 Constit Law & Policy Review 50

[190] [2000] HCA 33; (2000) 202 CLR 629

[191] See Residual Assco at 652-62. The other members of the Court did not find this issue necessary to deal with. Though it was dealt with later in the year in Re Macks

[192] Re Macks; Ex parte Saint (2000) 204 CLR 158

[193] at 177-78

[194] at 185

[195] at 209-221

[196] at 235-41

[197] at 247-50

[198] at 274-280

[199] For example the question of the extent of the aliens power: Re Patterson; Ex parte Taylor (2001) 182 ALR 657

[200] Communist Party Case at 193; Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 196 (McHugh J). Though it might be said that the deployment of the phrase “the rule of law” in this way is to beg the question of the identification of the legal or political philosophy which is to give context to the phrase, since, without that, the phrase may only mean the organisation of public power: see Friedmann and Benjafield Principles of Australian Administrative Law (2nd Ed 1962) pp 17-8; and K. Mason “The Rule of Law” in Finn (Ed) Essays on Law and Government Vol 1 pp 114 to 143

[201] See [132] ff below.

[202] See [132] ff below.

[203] Though cf Liveridge v Anderson, supra.

[204] The role of privative clauses in industrial and tax legislation is well known. But there is generally a regime of appeal otherwise available.

[205] De Tocqueville, Oeuvres completes, 14th ed. (1864), vol. Viii, 445-457 – quoted in Dicey’s The Law of the Constitution, 9th ed. (1939), 186-187.

[206] Similar considerations, to a degree, seem to underlie the views of the minority in Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510

[207] See below at [132] ff in respect of justiciability.

[208] I accept that “arbitrarily” and “capriciously” in these two juxtaposed examples may mean different things.

[209] Accepting as I have said elsewhere that the phrase, to a degree, masks, rather than illuminates, the debate.

[210] (2001) 205 CLR 399 though dealing with the authority of State Parliament; and see Winterton “Justice Kirby’s Coda in Durham” (2002) 13 Pub. L R 165; and “Constitutionally Entrenched Common Law rights: Sacrificing Means to Ends?” in Sampford and Preston (eds) Interpreting Constitutions (1999)

[211] cf Gleeson CJ in Eshetu, supra

[212] R v Ministry of Defence; Ex parte Smith [1995] EWCA Civ 22; [1996] QB 517, 533

[213] R v Secretary of State; Ex parte Nottinghamshire County Council [1985] UKHL 8; [1986] AC 240 and R v Secretary of State; Ex parte Hammersmith and Fulham London Borough Council [1991] UKHL 3; [1991] 1 AC 521. See also [191] below.

[214] See [95] above

[215] See R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, 430, and see the emphasised words in Craig at [47] above

[216] See Abebe, supra

[217] See generally in relation to this section Lindell “The Justiciability of Political Questions: Recent Developments” in Lee and Winterton (Eds) Australian Constitutional Perspectives; Lindell “Judicial Review of International Affairs” in Opeskin & Rothwell (Eds) International Law and Australian Federalism (1997); Zines Commentary in Evatt op. cit. at C25 - C 34; Williams “Justiciability and Control of Discretionary Power” in Taggart Judicial Review of Administrative Action in the 1980s; B Hadfield “Judicial Review and the Prerogative Powers” in Sunkin and Payne op. cit. pp 197-232; and TRS Allan Constitutional Justice (Oxford 2001)

[218] British South Africa Co v Companhia Moçambique [1893] UKLawRpAC 53; 1893] AC 602

[219] Companhia Naviera Vascongado v SS Cristina (The Cristina) [1938] AC 485

[220] See generally Cook v Sprigg [1899] UKLawRpAC 44; [1899] AC 572; and see [154] ff below

[221] As to the position in the United Kingdom see generally Sunkin and Payne op. cit. pp 202 ff

[222] [1917] HCA 38; (1917) 23 CLR 510, 544

[223] [1919] AC 696, 706

[224] [1930] HCA 48; (1930) 43 CLR 386, 411

[225] In ch xxiv of his thesis: see Evatt op.cit. ch xxiv

[226] Zines Commentary to Evatt op. cit. at C26-C27

[227] (1931) 46 CLR 72, 129

[228] Australian Communist Party v The Commonwealth, supra at 178-79

[229] Those cases were discussed by Mason J in R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 222-23. As to the issue of judicial review of action by the Crown representative as at 1969, see Hogg “Judicial Review of Action by The Crown Representative” (1969) 43 ALJ 215.

[230] Zines Commentary to Evatt op.cit. p C28

[231] [1998] AC 910

[232] [1978] HCA 43; (1978) 142 CLR 1

[233] See generally Byrne and Heydon Cross on Evidence ch. 14; though see the importance of Cabinet confidentiality in South Australia v O’Shea (1987) 163 CLR 378, discussed below.

[234] See Evatt op. cit. p 31 and see [14] above

[235] [1981] HCA 74; (1981) 151 CLR 170

[236] R v Toohey, supra at 219-222

[237] [1982] HCA 26; (1982) 151 CLR 342; see also CREENDZ Inc Governor General [1981] 1 NZLR 172; and South Australia v O’Shea (1987) 163 CLR 378

[238] per Mason J

[239] per Aickin and Brennan JJ

[240] See also Lord Denning in Laker Airways v Department of Trade [1977] 1 Ch 643, 705, with whose views Mason J in R v Toohey agreed.

[241] (CCSU) [1985] AC 374

[242] Lords Scarman, Diplock and Roskill

[243] Wade “Procedure and Prerogative in Public Law” (1985) 101 LQR 180; Sunkin and Payne op. cit. pp 83-85

[244] CCSU, supra at 418

[245] ibid at 408-409

[246] As to which see generally R. E Barkow “More Supreme Than Court? The Fall of The Political Question Doctrine and the Rise of Judicial Supremacy” (2002) 102 Columbia L.R. 237. The political question doctrine should not mislead by its name. Questions of politics intrude, as they always have, into the business of the Supreme Court and the High Court.

[247] 5 U.S (1Cranch) 137, 170 (1803)

[248] at 166

[249] at 170

[250] See in particular Coleman v Millar [1939] USSC 115; 307 US 433 (1939) and Colegrove v Green [1946] USSC 119; 328 US 549 (1946)

[251] For example Rutledge J in Colegrove v Green, supra at 565; and see Ramirez de Arellano v Weinberger [1984] USCADC 384; 745 F (2d) 1500 (1984) at 1521-1533, 1560-1566

[252] [1962] USSC 42; 369 US 186 (1962)

[253] at 210

[254]at 211

[255] at 213

[256] at 214

[257] at 215

[258] at 216

[259] at 217

[260] at 211-2

[261] [2000] USSC 70; 531 US 70 (2000)

[262] [2000] USSC 72; 531 US 98 (2000)

[263] Colegrove v Green, supra at 554; though, as Barkow points out, the question of non-justiciability was not argued.

[264] [1982] AC 888

[265] ibid pp 931-32

[266] [1897] USSC 197; 168 US 250, 252 (1897)

[267] 246 US 297, 304 (1918); said by Brennan J in Baker v Carr to have been stated too broadly, see [149] above.

[268] [1964] USSC 48; 376 US 398 (1964)

[269] at 938

[270] [2000] 1 AC 61

[271] Underhill v Hernandez, supra at 252

[272] Kirkpatrick & Co v Environmental Tectonics Corp International [1990] USSC 11; 110 S.Ct. 701

[273] [2002] 2 WLR 1353

[274] at [26]

[275] at [113]

[276] R v Secretary of State; Ex parte Pierson [1997] UKHL 37; [1998] AC 539 and In re Findlay [1985] 1 AC 318, 332-33.

[277] R v Home Secretary; Ex parte Doody [1993] UKHL 8; [1994] 1 AC 531, 557; R v Secretary of State; Ex parte Venables [1997] UKHL 25; [1998] AC 407; and in Australia see South Australia v O’Shea, supra.

[278] [1999] UKHL 43; [2000] 2 AC 326

[279] ibid at 381

[280] [2001] UKHL 47; [2001] 3 WLR 877

[281] at [26] – [28]

[282] at [31]

[283] at [31]

[284] at [49] to [54]

[285] Renault v Zhang [2002] HCA 10; (2002) 187 ALR 1, at [76] where British South Africa Co v Companhia de Moçambique [1893] UKLawRpAC 53; [1893] AC 602 and Potter v BHP Co Ltd [1906] HCA 88; (1906) 3 CLR 479 were reserved for future consideration.

[286] A-G (UK) v Heinemann Publishers Australia Pty Limited [1988] HCA 25; (1988) 165 CLR 30, 47

[287] [1994] HCA 32; (1994) 181 CLR 183

[288] (1987) 15 FCR 274

[289] The claim succeeded at first instance (1986) 70 ALR 523

[290] Bowen CJ at 278, Sheppard J at 280 and Wilcox J at 300-301

[291] Though, of course, not under the AD(JR)Act.

[292] 15 FCR at 278-79

[293] at 279

[294] at 281

[295] in CCSU at 408-9, and set out at [143] above, referred to by Wilcox J at 306

[296] Peko, supra at 304

[297] Peko supra at 307

[298] (1987) 163 CLR 378

[299] at 387

[300] at 387

[301] at 387-8

[302] (1988) 19 FCR 347

[303] [1962] USSC 42; 369 US 186, 211 (1962)

[304] See the discussion in Re Ditfort at 368

[305] As was Lord Diplock’s analysis CCSU and Marshall CJ’s approach in Marbury v Madison

[306] Re Ditfort supra at 370, citing Tasmanian Wilderness Society v Fraser [1982] HCA 37; (1982) 153 CLR 270, 274

[307]Re Ditfort at 370

[308] Buttes at 932; and Marshall CJ see [144] and [145] above

[309] Such as a “contract” between governments within the federation which was intended to be dealt with by political means (South Australia v The Commonwealth [1962] HCA 10; (1962) 108 CLR 130, 141) or between the Australian and foreign governments (Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 138-39).

[310] Re Ditfort at 371; and see [146] and ftnt 251 above; and see the discussion of the relationship between equity and public law in Bateman’s Bay.

[311] See Lindell “The Justiciability of Political Questions: Recent Developments” at pp 218 ff dealing with the duty to exercise judicial review.

[312] Hanratty v Lord Butler (1971) 115 (1) Sol. J 386; Burt v Governor-General [1992] NZCA 225; [1992] 3 NZLR 672; Reckley v Minister of Public Safety (No 2) [1996] UKPC 1; [1996] 1 AC 527 (P. C. an appeal from the Bahamas); but see below at [179] ff

[313] [1988] NZHC 279; [1989] 3 NZLR 64

[314] ibid at 74; but see the Court of Appeal [1992] NZCA 225; [1992] 3 NZLR 672, 678, 681, post [179]

[315] R v Secretary of State; Ex parte Everett [1988] EWCA Civ 7; [1989] 1 All ER 655

[316] ibid

[317] [1971] 1 All ER 1380

[318] [1986] 1 WLR 331

[319] op. cit. 217

[320] R v Secretary of State; Ex parte Rees Mogg [1994] QB 552

[321] [1990] 2 AC 418, 449-500

[322] R v Foster [1985] 1 QB 115, 127

[323] ibid at 126-7

[324] supra n. 312

[325] R v Secretary of State; Ex parte Bentley [1994] QB 349

[326] supra at 418

[327] [1992] NZCA 225; [1992] 3 NZLR 672

[328] at 678, 681

[329] [1994] QB 349, 363

[330] Comprising Lord Keith of Kinkel, Lord Goff of Chieveley (who delivered the judgment), Lord Browne-Wilkinson , Lord Hoffmann and Sir Michael Hardie Boys

[331] Reckley v Minister for Public Safety [1996] UKPC 1; [1996] AC 527

[332] [1975] UKPC 12; [1976] AC 239

[333] ibid at 247

[334] supra n 277

[335] See R v Secretary; Ex parte Fire Brigades Union supra, referred to at [26] above.

[336] Enfield, supra at 154

[337] “The Justiciability of the Government’s Tampa Actions” (2002) 13 Pub L.R 89

[338] With, therefore, the concomitant lack of a standing requirement.

[339] 188 ALR 143 at [30]

[340] Such as the “turning back” of Haitian boats outside United States’ waters which were heading towards Florida: see Sale v Haitian Centers Council [1993] USSC 89; 509 US 155 (1993), though no reference was made there to non-justiciability.

[341] supra at 258

[342] [1955] HCA 28; (1955) 93 CLR 127, 165-66; and see Richardson v Forestry Commission (1988) 164 CLR 261, 294 and 341; and Queensland v the Commonwealth [1989] HCA 36; (1989) 167 CLR 232, 239

[343] [1951] HCA 5; (1951) 83 CLR 1 at p 222

[344] See the discussion by Gummow J in RE Ditfort, supra at 368

[345] Bradley v The Commonwealth [1973] HCA 34; (1973) 128 CLR 557, 562; Ffrost v Stevenson [1937] HCA 41; (1937) 58 CLR 528, 549

[346] A-G (UK) v Heinemann Publishers Australia Pty Ltd, supra at 53

[347] supra at 239-42; and at an interlocutory stage before Mason CJ see [1988] HCA 1; (1988) 62 ALJR 143, 145; and see the discussion by Lindell in “The Justiciability of Political Questions: Recent Developments” at 208-211.

[348] Richardson v Forestry Commission, supra at 295-96

[349] [1985] UKHL 8; [1986] AC 240

[350] It has been described as “super-Wednesbury” see [129] and ftnt 212 above. See also R v Secretary of State; Ex parte Hammersmith and Fulham London Borough Council [1991] UKHL 3; [1991] 1 AC 521

[351] Constitutional Justice (Oxford 2001)

[352] ibid 174-75, 176 and 177

[*]1 November 2002 I would like to express my thanks to research assistants at the Court Mr Ian Benson, Ms Lydia Clapinska and Ms Fleur Ramsay and to my associate, Ms Lhasa Morgan, for assistance in research and for their helpful discussion in preparing this paper.