Edited by Justice Debra Mortimer , Federal Court of Australia
Publisher: The Federation Press
Reviewed by Kate Blackford Slack
Administrative Justice and its Availability is a collection of papers that were presented at a joint conference of the Federal Court of Australia and the Law Council of Australia held in Melbourne in August 2014.
The profundity of each of the papers demonstrates the important contribution to the practice of public law that this conference provides. A brief summary of each of the papers is outlined below.
First in the collection is an address titled ‘Administrative Law: The Challenges of the 21st Century’ that was written and presented by Justice Dennis Davis, a judge of the Western Cape High Court and President of the Competition Appeal Court of South Africa.
In his paper, Davis J sought to address whether there are core values of judicial review that transcend national boundaries and constitutional frameworks. After acknowledging that ‘context is everything in law’, Davis J identified that the South African executive government and its administration are ‘neither well-resourced nor experienced’ which, he believed, placed the South African courts under increasing pressure to step in to make up for the administration’s shortcomings.
This expanded role for the courts means that there is not an equal distribution of what Davis J identified as being ‘critical to the process of review’, namely, participation and accountability.
A result of the administration bearing less than its fair share of the load is that government officials ‘make little effort to implement legal decisions or to adhere to the specific terms of court orders’.
While Davis J considered that his country’s experience was less than optimum, he was keen not to encourage a complete judicial withdrawal from regulating public life. Using the example of the Roberts court in the United States, His Honour concluded that extracting courts from their role in providing administrative remedies ignores the continuous tension between the ‘legitimate province of the legislature and the executive, and the framework of rights within which the democracy must operate.’
In his address titled, ‘Rationality and Reasonableness as Grounds of Review’, The Hon William Gummow AC discussed the principles of rationality and reasonableness and their implication for the scope of judicial review powers. His Honour conducted an analysis of applicable constitutional principles, considered the distinctions between public and private law and addressed the Australian systems of statutory review.
The address ends with an assessment of the current terrain. In doing so, His Honour provided a suitable introduction to the two addresses that follow, namely, those delivered by Justice Gleeson SC and Kristen Walker QC, respectively titled ‘Taking Stock after Li’and ‘Judicial Review for Unreasonableness or Irrationality: The Role of Proportionality’.
In his address, Gleeson J comprehensively analysed Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and concluded that, as a result of the majority’s reasoning in Li, there is effectively an onus on administrative decision-makers to provide reasons that demonstrate how they have weighed the evidence to avoid both express and inferred error.
In her address, Kristen Walker QC discussed the role of proportionality post-Li and the distinction between power and discretion and the implications for rationality, reasonableness and proportionality.
Justice Alan Robertson, in his address, ‘The Contemporary Approach to Jurisdictional Error’ draws on the views of Sir Stephen Sedley to remind the reader that unreasonableness, in the Associated Provincial Picture Houses Ltd v Wednesday Corporation [1948] 1 KB 223 sense, was not a radical invention of 20th century jurisprudence but was the result of a long line of authority ‘belonging to a depressing catalogue of abdication and as another example of failure to apply an elementary rule of public law (pursuant of a collateral purpose — text book ultra vires) …’
A comprehensive overview of the authorities that apply to the issue of whether a decision-maker’s failure to provide adequate reasons means that a decision is infected by jurisdictional error, is provided by Stephen McLeish SC in his contribution, ‘Reasons, Reasoning and Jurisdictional Error’.
Margaret Allars SC, in her address titled, ‘The Distinction between Jurisdictional and Non-jurisdictional Errors: Its Significance and Rationale’, examines the distinction between jurisdictional and non-jurisdictional errors in the seminal cases of Craig v South Australia (1995) 184 CLR 163 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531.
Using the no evidence ground as an example, Ms. Allars then evaluated how the distinction operates in practice and concluded that there is little support for the distinction.
In her address titled, ‘Accessibility, Merits Review and Self-represented Litigants’, Melinda Richards SC addressed the accessibility of merits review for self-represented litigants. She pondered the following four areas that bear on that question: practical measures to improve accessibility; the role of the model litigant; the obligation to afford a fair hearing; and inquisitorial versus adversarial justice.
In the final address titled ‘Constitutional Writ Review and the ADJR Act’, Neil Williams SC provided a concise synopsis of the scope of review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) compared with constitutional writ review at common law. The reader is gently reminded that ‘each mechanism of review has its own complex limitations, and the prudent pleader would plead, or at least consider, all available avenues of relief’. That is especially so given, for example, the gradual elasticity of the test of unreasonableness at common law compared to the static statutory test provided in the ADJR Act.
The compilation ends with in-depth summaries of four panel sessions that contemplated: the contemporary approach to jurisdictional error; administrative review in other jurisdictions; federal administrative law and accessibility; and, constitutional writ review and the ADJR Act: ships in the night?
All contain insightful perspectives offered by practitioners and jurists, well qualified to comment.
This collection is highly recommended to those interested in the current state of public administrative law principles.
Kate Blackford Slack
