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Ford, Jolyon --- "The Brennan Legacy: Blowing the Winds of Legal Orthodoxy by Robin Creyke & Patrick Keyzer (editors)" [2003] SydLawRw 20; (2003) 25(3) Sydney Law Review 413


Federation Press, Sydney, June 2002; hardback, $75, 224pp, ISBN 1 862874190

The Brennan Legacy is not, as its main title might suggest, a full biography of Sir Gerard Brennan, nor is it a comprehensive assessment of his outstanding contribution to the law generally in Australia. With some later papers added, it is largely a collection of papers presented at a special conference convened by the editors[1] in 1998 in order to honour the contribution of Sir Gerard to administrative law in Australia.

The nine essays in the collection are promoted as having three themes: judicial review, human rights (including the impact of international law) and administrative tribunals.

One might consider the value of the publication partly in terms of whether it contains worthwhile novel contributions to current significant debates on these themes. My opinion is that this collection is somewhat limited by its origins in a conference (of a particular kind) that took place some five years ago. However, on balance I think it contains enough of value. Any survey of current issues in Australian administrative law might include the following as ‘hot topics’: the treatment of privative clauses in relation to attempts through the legislature to narrow the scope of judicial review; the distinction between jurisdictional and non-jurisdictional error; and the content of the ‘legitimate expectations’ principle. Wider debates in the field include the effect on the availability of public law remedies of ‘outsourcing’ of government functions, and the future composition and function of merits review bodies. While I consider the extent of treatment of some of these themes below, that Sir Anthony Mason, Sir Gerard himself and other distinguished public lawyers offer background, comment and reflection on these and other issues is perhaps a recommendation in itself.

Readers whose interests lie outside administrative law should not be too quick to pass over the publication. True, the first major theme of the collection is a chronicle of the obstacles facing the realisation of the package of reforms that gave birth to the Commonwealth Administrative Appeals Tribunal (the AAT) in the 1970s, and the significance of Sir Gerard’s inaugural presidency of that tribunal. However, the essays address profound political and societal issues. Sir Gerard’s own essay discusses elemental principles of law and government in a way that is both of general interest and that gives particular force to the other essays on the administrative review theme. Sir Gerard’s argument is well worth a rough description.

The necessary mechanism to review the exercise of power in a democracy is part political, part legal. Generally, the mechanisms for review of legislative power (judicial review of defined and limited law-making powers) and of judicial power (appellate procedures) have worked well, but the review of executive power is more problematic. The Constitution provides for legal review of the executive by the courts (to effectuate the rule of law). It also provides for political review of executive power, whereby the executive is responsible to Parliament. This political review and scrutiny of the executive is appropriate because issues of policy are appropriately reviewed in a political forum. But, partly as a result of two World Wars, executive power has grown massively and well beyond the practical capacity of Parliament to review. This led to recommendations that resulted, by way particularly of the Kerr Committee and its report, in the ‘new administrative law’ package[2] including the AAT, in order both to provide some opportunity, outside the court system, for the citizen to challenge the ‘vast range of powers and discretions ... which may detrimentally affect the citizen’[3] and to produce ‘better decisions’ all round.

In their affectionate and entertaining contributions, Daryl Davies, Justice Margaret Balmford and Stephen Skehill all relate the early, uncertain days of the AAT, the existence of which (and of the many bodies modelled on its success) many of us will have come to take for granted. Skehill reminds us that challenge by the average citizen to the government ‘simply was not a frequent or effective part of Australian public administration ... it would not have been unprecedented for the new regime to be quietly emasculated either overtly by the Parliament ... or through the subterranean machinations of the bureaucracy’. He usefully shows how the change that the package represented in the culture of government was so profound and ‘its implications for ministerial and bureaucratic powers were so far-reaching ... that it is truly remarkable that the package ever became a reality.’

The success of the new regime depended upon balance between the rights and interests of the public and those of the bureaucracy. The essayists all show that it was not altogether clear whether the AAT was to follow a more administrative model (simply another decision-making tier in the bureaucracy) or whether, and if so in what degree, it would take on more independent, process-based judicial features. The Act establishing the tribunal was remarkable for how little it contained about the intended character of the tribunal. What all three essays emphasise is how, through administrative leadership and actual decisions,[4] and through establishing a relaxed, less formal but overall judicial model, Sir Gerard set the culture of the AAT and earned its acceptance with citizens and bureaucrats alike. It is in this sense that (as the subtitle of the collection indicates) Sir Gerard enabled legal orthodoxy to open up the corridors of administrative power, in a way that would to help ensure that decisions are not made in excess of power and are made according to the conditions governing the exercise of the power.[5] Sir Gerard was also acutely conscious of the tribunal’s dual, longer-term purpose: to have the normative effect of improving the quality of governmental primary decision-making generally.

The various essays on the history and early years of the AAT and merits review are valuable as a record of Sir Gerard’s immeasurable contribution in this area. However, Sir Gerard is substantially alone among the contributors in discussing the future of merits review and review bodies in Australia, on which aspect the other essays constitute merely interesting background.[6] Having in his essay documented some of the problems faced by the AAT, Sir Gerard considers critically the attempted transformation of mechanisms for administrative review following the Better Decisions report of 1995,[7] opining that the proposed reforms would impair the independence, competence and legal capacity of the AAT.

A second core theme of the collections is judicial review. Sir Anthony Mason’s paper documents Sir Gerard’s contributions in this area, considering Sir Gerard’s preferred theory of the justification for review by reference to major controversial issues in administrative law. This is useful (and authoritative), given that the High Court has, since the date of this publication, considered a number of these issues. For example, there is discussion of Sir Gerard’s views on the protection of individual rights in a system of legislative supremacy. Sir Gerard’s approach of proper deference and his opposition to a Bill of Rights are discussed.[8]

Another important current issue discussed is the Teoh legitimate expectations principle.[9] Sir Anthony observes that ‘Sir Gerard has been a stern opponent [of the Teoh principle] ... on the grounds that judicial review provides no remedies to protect interests falling short of enforceable rights’. Sir Anthony considers the principle ‘firmly entrenched but in need of refinement’, to avoid the result reached in recent English case law. Recently, the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam[10] has chilled the tendency to read the Teoh principle for more than it really is. The Court emphasised that although the distinction between substantive and procedural expectations is not clear-cut, a legitimate expectation is not a rule of law and cannot convert a procedural expectation into something substantive. Sir Anthony’s position in the essay has been affirmed: that the principle remains only an entitlement to procedural fairness and cannot generate a right to any particular substantive outcome.

Administrative lawyers and students may find useful comments from Sir Anthony, made by reference to Sir Gerard’s contributions, on other topical issues such as the scope and method for judicial identification and application of common law and other ‘external’ values in reformulating legal principle, including the extent of the legitimate normative influence of international law on the common law.[11] The doctrines of procedural fairness and abuse of process are considered. And both Sir Anthony and Stephen Gageler SC (whose essay is a reply to Sir Anthony’s) treat the often-misconceived distinction between jurisdictional and non-jurisdictional errors of law (maintained in Craig v South Australia notwithstanding Anisminic)[12] in a way that one may find dispels any lingering confusion.

The proper theoretical basis and justification of judicial review[13] is a question of some significance, and I found the discussion by Sir Anthony and Stephen Gageler of Sir Gerard’s approach to be valuable, in particular in the light of current debate surrounding privative clauses and the Hickman principle:[14] what is the approach in judicial review of the exercise of an administrative decision-making power if the relevant statute, by use of ‘privative’ clauses, purports to exclude or immunise the decision from judicial review? Do such clauses protect the decision from review provided the three Hickman grounds of review remain open: whether the constitutional grant of power has been exceeded, whether there has been a ‘narrow’ jurisdictional error, whether the decision is infected with mala fides? Such issues raise difficult questions of how to accommodate separation of powers with any theory of constitutional entrenchment of judicial review, and wider debates about open government.

Sir Anthony’s essay emphasises Sir Gerard’s ‘strong convictions concerning the paramountcy of the rule of law’ and the centrality to his thinking of Sir Owen Dixon’s notion of the proper judicial method: the separation of powers and the limits inherent in the judicial role. The basic constitutional Marbury v Madison premise, that it is ‘the [whole or only] province and duty of the judicial department to say what the law is’,[15] is demonstrated by Gageler to underlie and inform Sir Gerard’s notion of the source, nature and limitations of judicial review. He considers how one might see section 75(v) of the Constitution as an ‘outworking of the general principle in Marbury v Madison’ and so a Constitutional entrenchment of judicial review.

In his own essay Sir Gerard expresses concern at the recent withdrawal of some statutory review jurisdiction from the Federal Court in relation to Migration Act 1958 (Cth) decisions (‘a conscious incursion [by Parliament] upon the rule of law’). Sir Gerard’s concerns are ‘not least at the possible embarrassment of the High Court’, but essentially because ‘to the extent that the courts are impeded from exercising judicial review of administrative decisions, the rule of law is negated ... [and a] charter of arbitrariness is thereby created’.

The Hickman principle as it affects the construction of privative clauses has recently been considered at length by the High Court in relation to clauses inserted into Part 8 of the Migration Act in late 2001 that have had the effect of narrowing the grounds of review: Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 195 ALR 24. The exchange between Sir Anthony and Gageler, which pre-dates the Court’s decision, will nevertheless be of interest to those following this issue. Sir Anthony Mason noted his own, and Sir Gerard’s, continued support for the Hickman principle despite the paucity of elucidation of the ‘inherent uncertainties’ of its three conditions. Privative clauses enable the legislature to confine the scope of judicial review by a privative clause because such clauses are taken by the courts, not as ousting jurisdiction or immunising invalid acts from review, but as enlarging the authority of the decision-maker to make (non-jurisdictional) errors of law. Sir Anthony asked whether in this context ‘such a complex and artificial principle [as the Hickman principle] contributes to the integrity of the legislative and political process’.

Gageler accepts that if privative clauses were ‘taken literally’, they would permit the executive to ignore (because the courts could not enforce these) legal limits to its authority and would fundamentally undermine or challenge the rule of law. But, since the courts approach these clauses as a matter of construction and, rather than reading down judicial review power, they read up the statute so that limits to the power (to make errors) are expanded, there is in fact no complexity and the integrity of the system is preserved. The courts are not deprived of their duty. The executive is not free to trespass across the limits set by the legislation. ‘It is all just a matter,’ Gageler rather airily concludes, ‘of interpreting precisely where legal limits have been set ... .’ The debate in these essays is useful as background to the High Court decision, and Sir Anthony’s reference to uncertainties is still instructive. It might be argued that the fact that courts are now familiar with these devices and their wording does not mean it is not desirable that, if the legislature is to include a privative clause widening decision-making power, the legislature might at least spell out the particular ways in which (it has intended that) the power has been expanded, for instance so that it can be determined whether that part of the statute effecting the widening still falls within power.

I found one of the most valuable aspects of the collection to be Sir Gerard’s fairly lengthy discussion of the problems of external review of public power when government enlists a non-governmental entity to perform certain of its functions. Obtaining review of governmental power is one thing: what if the functions (and so decisions) are ‘outsourced’? Particularly where the function is carried out by a private entity under a contract with the government, but in a way that affects the interests of third parties (members of the public), Sir Gerard points out that there may be ‘little incentive for the government to be astute to protect those interests’. And, has a member of the public not lost the possibility of any public law remedy in relation to their affected interest? It would be for the government to seek enforcement of the contract, Sir Gerard explains, if it felt so inclined. Not only would the public be without public law remedy, they would also be without a contractual remedy, unless they could establish themselves as beneficiaries of the contract entitled to sue for performance. Now statutory-based merits review might be inherently susceptible to variation, but what would have happened, in an outsourcing situation, to judicial review, which is not wholly dependent on statute? One could simply state that any exercise of public power attracts (or should attract) public law whether or not the actor wielding the power is a public entity or not. What are the essential features that reveal a power as ‘public’? It is beyond the scope of this review to describe further how Sir Gerard proceeds in his essay to discuss these very interesting issues by reference to judicial attempts in common law countries to identify public power and its actors and source, in order to establish if, when and why a public remedy might be available.

Is a paper on any particular topic missing, the inclusion of which might have made the collection more complete? It is difficult to say, the collection is somewhat of a mixed bag. I have not found space in this review for consideration of the essays on Sir Gerard’s contribution to human rights law, nor Robin Creyke’s discussion of Sir Gerard’s extra-curial statements on issues of public law and administration.[16] The editors intend this book as a form of tribute. Deep affection and respect for Sir Gerard is clearly apparent in the various essays. A clear impression is left with the reader of Sir Gerard’s contributions and achievements not simply as a judge but also as a leader and administrator of courts and tribunals, and a leading ‘public lawyer’ in the profounder sense of that phrase. Sir Gerard has made both a direct and an indirect contribution to Australian society and its law and government. However, I was left uneasy that the work merited such an ambitious main title as ‘The Brennan Legacy’. That legacy goes well beyond what this collection covers, and the title would suit a more broad and substantial publication.

The editors also intended the collection to ‘represent a striking account of the nascence of modern Australian administrative law’. That one can consider embarking on any account of the flowering of administrative law in this country by tracing the singular contributions of Sir Gerard, goes some way towards illustrating the significance of his contribution.

Open and transparent government may be a political entitlement or expectation, at least, of those living in a constitutional representative democracy. Plainly, the executive government must act according to law,[17] but how is this statement made effective? The collection helps show that Sir Gerard’s legacy endures in what should always be an area of great public concern: the balance between citizen and governmental interests,[18] and the measures for ensuring the exercise of public power is open and in accordance with the rule of law, and accountable to what is its political, moral and perhaps its ultimate legal source,[19] the public itself.

I have described how Sir Gerard in his essay notes the great increase in executive power necessitated by, in particular, the 1939–1945 World War, and the practical problems this created for supervision of the executive. The new administrative law was an attempt to reduce this political review deficit. Whether or not one considers government as effectively an ‘elected dictatorship’, in my opinion it is possible (without being alarmist) to observe the potential and temptation for an incremental, steady ‘creep’ in executive power in an age defined by, amongst other things, vulnerability to remote globalised economic and other forces, and a war on terrorism. By its very nature, any struggle against terrorism will be a long-term one and, like the Cold War, is likely to pervade many aspects of life. No doubt the people do not wish their executive to be hamstrung in matters essential to the conduct on our behalf of its anti-terror campaign.[20] There exist of course some powers of a prerogative nature in this area.[21] But in most areas of life, transparent and open government should not be undermined, even if inadvertently, in the course of this struggle. Nourishing the rule of law in such an environment is a display of grace under fire. It is preferable that Parliament prescribes for necessary governmental action through law, than that long-term, undefined necessities lead to closing up of government and a creeping widening of the general province roamed by the executive.

Despite what one might see as some drawbacks, in addition to including reflective authoritative contributions on issues of current significance, the collection under review is, in conclusion, valuable in helping to record aspects of Sir Gerard’s legacy in the field of Australian administrative law.

Lecturer, Faculty of Law, University of Sydney

[1] Robin Creyke and Patrick Keyzer are both well-known Australian public lawyers and are on the academic staff of the Law Faculty, the ANU, Canberra, and the Law Faculty, the University of Technology, Sydney, respectively. The conference formed part of the annual Public Law weekend of the Australian National University.

[2] Administrative Appeals Tribunal Act 1975 (Cth), Ombudsman Act 1976 (Cth), Federal Court of Australia Act 1976, Administrative Decisions (Judicial Review) Act 1977 (Cth), Freedom of Information Act 1982 (Cth), see also section 39B Judiciary Act 1903 (Cth).

[3] The Kerr Committee Report, as cited in Sir Gerard’s essay; Commonwealth Administrative Review Committee Report (Plt Paper 144 of 1971) at 3.

[4] Such as Re Becker v Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158, 161, and on issues on which the Act was silent, such as the meaning of ‘merits review’, onus of proof, standing or the need for interests to have been affected, the need for assistance to the Tribunal by the decision-maker including the departmental advocate as a quasi-amicus curiae, the taking of evidence, and the vexed Drake issue of the proper place for governmental policy in AAT determinations: (1978) 2 ALD 162 (Tribunal), (1979) 2 ALD 60 (Federal Court Full Bench), (1979) 2 ALD 162 (Tribunal, rehearing).

[5] Collector of Customs v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307.

[6] There is also very little discussion of tribunals other than at the Commonwealth level, although one is given to infer that the example and tone set at AAT and Commonwealth level have had positive effects in the State government arena in terms of the balance, if one is necessary, between open and efficient government.

[7] Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals Report 39 of 1995.

[8] The essays by Justice Murray Wilcox and Gerard Carney consider Sir Gerard’s contribution to the place of human rights in our law. The place of fundamental human rights in construing legislation has recently been clarified: Plaintiff S157/2002, supra, [30] (Gleeson CJ), and see Minister for Immigration, Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70 (15 April 2003) at [82]ff.

[9] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.

[10] [2003] HCA 6; (2003) 195 ALR 502 (12 February 2003); Gleeson CJ [28], McHugh & Gummow JJ [61]ff, Hayne J [121]–[122], Callinan J [140]–[148].

[11] Mabo (No 2) [1992] HCA 23; (1992) 175 CLR 1, 42 (Brennan J).

[12] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Compare Anisminic v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147.

[13] Various justifications are discussed including the powers of judicial review as constitutionally entrenched, the ultra vires theory, as an implied limitation in the relevant statute, or as a creation of the common law.

[14] R v Hickman; ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598.

[15] Marbury v Madison 5 US 87 (1803), 111 (Marshall CJ); see Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J). See also Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25, 70 (Brennan J): the Australian Constitution is framed upon the assumption of the rule of law, the enforcement of which is the province (no more nor less) of the judiciary (see Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 195 ALR 24, [31] (Gleeson CJ)).

[16] Appended to the essays is a (select) bibliography of Sir Gerard’s speeches (1978–1998) on public law topics. Creyke’s introductory opinion is that ‘a judge’s contribution to the law and to the community is to be measured as much by [public and community participation and speaking] as by his or her judgments’. I do not agree with this view. I doubt that Sir Gerard would agree.

[17] Eastern Trust Co. v McKenzie Mann & Co Ltd [1915] AC 750 (Privy Council).

[18] ‘Critical to a free society ...’: Sir Gerard Brennan, ‘Foreword’ in Administrative Review Council, First Annual Report 1977 (Canberra: AGPS, 1977).

[19] Compare Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 74; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 171; McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 274.

[20] See on this Secretary of State v Rehman [2001] UKHL 47; [2001] 3 WLR 877, especially at [49]ff (Lord Hoffmann), albeit with the caution expressed by Lord Steyn at [31]. See also Al Masri, above n8 [130].

[21] See Ruddock v Vardalis [2001] FCA 1329; (2001) 183 ALR 1; see (2002) 13 Pub LR 89. While it may be for the courts to define the limits of prerogative executive power, its actual exercise might still be non-reviewable in some areas. The source and scope of the modern executive power and its justiciability I think requires more attention by constitutional scholars, as does the notion of ‘deference’ by the judiciary in relation to both the executive and the legislature.

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