Book Review: Key Issues in Judicial Review

Editor: Neil Williams
Publisher: The Federation Press 2014
Reviewer: Patricia Feeney, Queensland Bar

This publication is a collection of essays prepared for the Constitutional and Administrative Law Section of the New South Wales Bar Association. In each essay, the author discusses an issue of uncertainty or controversy in current Administrative or Constitutional Law. 

The volume is introduced by a paper delivered by the Honourable Patrick Keane to the New South Wales Bar Association: “Some Reflections on the Role of Courts in Public Law”.  With his faultless precision of perception, tempered by his accessible style and humour, Justice Keane confronts the boundaries of judicial intervention into the provinces of the executive and legislative branches of government. 

The issue is explored further in “Judicial Review of Executive Action: Tiers of Scrutiny or Tears of Frustration?” by the Honourable John Basten and “The Rationale for the Grant of Relief by Way of Judicial Review and Potential Areas for Future Development”  by Kristen Stern QC.  In different but equally informative ways, these two essays provide analyses of the aetiology of judicial review and the capacity for development of the jurisdiction as may be suggested by recent decisions both in Australia and overseas. 

The topic of the progression of Administrative Law is expanded in the Honourable Alan Robertson’s studied and insightful essay “Nothing Like the Curate’s Egg”, a consideration of the Administrative Review Council’s 2012 Report which deals with the relationship between the Administrative Decisions (Judicial Review) Act 1977 (Cth) and section 75(v) of the Constitution. 

Several of the essays focus on topics directly relevant to the practical aspects of Administrative Law and judicial review.  These essays include “The Concept of Jurisdictional Error” by Jeremy Kirk SC; “Satisfaction as a Jurisdictional Fact — A Consideration of the Implications of SZMDS” by James Hutton; Theresa Baw’s paper “Illogicality, Irrationality and Unreasonableness in Judicial Review”; “The Use of the Blue Pencil — Partial Invalidity” by Stephen Lloyd SC and Houda Younan; and “Evidence in Public Law Cases” by Neil Williams SC and Alan Shearer. In concert, these essays provide a comprehensive analysis of recent case law and the developments in interpretation of relevant legislation.  The pragmatic approach taken by all the authors provides constructive guidance for the resolution of problems faced in daily practice and demonstrates the extensive experience of those authors.

Two of the essays appear to address very specific sub-sets of Administrative Law, namely, “Constitutional and Administrative Law Aspects of Tax” by Geoffrey Kennett SC and David FC Thomas and “The Relevancy Grounds in Environmental and Administrative Law” by Richard Lancaster SC and Stephen Free.  However, in addition to the niche topics to which they are addressed, the information provided in these essays remains relevant to a much broader range of subjects.

First Parliamentary Counsel Peter Quiggin PSM focuses on various aspects of legislative drafting in his essay “Statutory Construction: How to Construct and Construe, a Statute”.  The commentary on this paper by Justice Nye Perram ably addresses the challenges faced by those charged with interpreting legislation in the context of individual cases rather than the eclectic policy considerations paramount in the minds of those drafting and introducing it.

The essays collected in this publication are uniformly well considered and well written. The authors focus on matters directly relevant to daily practice.  The volume has been intelligently edited by Neil Williams SC and contains an erudite forward by Chief Justice Allsop of the Federal Court of Australia.  It provides an invaluable resource to any practitioner whether highly experienced in public law or coming to it as a beginner.

Patricia Feeney
Chambers