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A New Constitutional Settlement for Australia

Published online by Cambridge University Press:  24 January 2025

L. J. Curtis
L. J. Curtis*
Affiliation:
Commonwealth Attorney-General's Department
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Extract

In his 1974 Hamlyn Lectures, Lord Scarman urged:

[a] new constitutional settlement that makes use of judicial power … to use the rule of law in resolving the conflicts that will arise between the citizen and the state in the newly developed fields of administrativelegal activity upon which the quality of life in the society of the twentieth century already depends.

The theme was taken up in Australia by Mr Justice Brennan in 1979:

But first, let me define what a constitutional resettlement of power may involve. It would not be merely an improvement in the procedures of judicial review. It would interpose the courts (or the judiciary, for I use the terms interchangeably) to control the exercise of some administrative powers, with jurisdiction to set right decisions affecting the interests of citizens which the courts think are wrong decisions, or not the preferable decisions in the circumstances of particular cases. The courts would have the power to substitute their own decisions for the decisions of the administrators.

Information

Type
Research Article
Information
Federal Law Review , Volume 12 , Issue 1 , March 1981, pp. 1 - 16
Copyright
Copyright © 1981 The Australian National University

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Footnotes

The views expressed in this article are the personal views of the author and do not necessarily reflect those of the Department in which he serves.

References

1 Lord Scarman, English Law-The New Dimension (1974) 75.

2 Brennan, , “New Growth in the Law-The Judicial Contribution” (1979) 6 Monash University Law Review 1, 15-16Google Scholar.

3 [1976] 1 Q.B. 629.

4 [1977] A.C. 1014.

5 (1977) 1 A.L.D. 209.

6 “Change and Chance in England” (1981) 55 A.L.J. 383, 383-384.

7 E.g. Churches, , “Justice and Executive Discretion in Australia” [1980] Public Law 397, 426: “Administrative discretion is exercised with a view to policy and expediency, while the judicial function is to do that which is dictated by law and obJectivc factors”Google Scholar.

8 Commonwealth Administrative Review Committee: Report (1971) (the Kerr Report).

9 E.g. Justice (Society) Report, The Citizen and the Administration (1961); Orr,Report on Administrative Justice in New Zealand (1964).

10 E.g. Steele v. Defence Forces Retirement Benefits Board (1955) 92 C.L,R. 177.

11 Kerr Report, op. cit. para. 225.

12 Id. paras 283, 284.

13 Committee on Administrative Discretions: Final Report (1973) (the Bland Report).

14 Not all of these changes have resulted from published reports of the Committee. Some have been agreed on in correspondence between the Committee and the Minister concerned.

15 Health Insurance Amendment Act 1977 (Cth).

16 Repatriation Acts Amendment Act 1979 (Cth).

17 Australian Security Intelligence Organisation Act 1979 (Cth).

18 Freedom of Information Bill 1981 (Cth).

19 Cited in Schwartz, French Administrative Law and the Common-Law World (1954) 193.

20 Kirby, , “Administrative Review on the Merits: The Right or Preferable Decision” (1979) 6 Monash University Law Review 171, 175Google Scholar.

21 Little, if any, of this criticism has been published, but it has been referred to by His Excellency the Rt Hon. Sir Zelman Cowen in his opening address to the 21st Australian Legal Convention of The Law Council of Australia, reported in (1981) 55 A.L.J. 369.

22 Schwartz and Wade, Legal Controls of Government (1972) 37.

23 Senator the Hon. P. D., Durack, Freedom of Information Bill 1981, Second Reading Speech, S. Deb. 1981, 1058-1062Google Scholar.

24 Id. 2384-2388.

25 (1977) 51 A.L.J.R. 463.

26 Pennant Hills Restaurants Pty Ltd v. Barrell Insurances Pty Ltd (1981) 55 A.L.J.R. 258.

27 Bland Report, op. cit. para. l 72(g) (iii); cf. Kerr Report, op. cit. para. 297.

28 E.g. Re Jeropoulos and Minister for Immigration and Ethnic Affairs (1980) 2 A.L.D. 891.

29 Kirby, “Administrative Review: Beyond the Frontier Marked 'Policy-Lawyers Keep Out'” (1981) 12 F.L.Rev. 121.

30 E.g. Re Gungor and Minister for Immigration and Ethnic Affairs (Administrative Appeals Tribunal 30 May 1980, unreported decision of Smithers J.).

31 Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 A.L.R. 577,590 per Bowen C.J. and Deane J.: “Indeed, the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power”.

32 Atchison, Topeka and Santa Fe Railway Co. v. Witchita Board of Trade (1972) 412 U.S. 800.

33 R. v. Port of London Authority; ex parte Kynoch, Ltd [1919] 1 K.B. 176.

34 [1971] A.C. 610.

35 Kirby, op. cit. n. 29.

36 E.g. Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 A.L.D. 158.

37 Davis, Discretionary Justice-A Preliminary Inquiry (1969) 17.

38 Ombudsman Act 1976 (Cth), s. 15(l)(a)(iii), s. 17.

39 [1971] A.C. 610.

40 Customs (Prohibited Imports) Regulations (Cth), Third Schedule.

41 R. v. Anderson; ex parte Ipec-Air Pty Ltd (1965) 113 C.L.R. 177.

42 Cf. Ombudsman Act 1976 (Cth), s.15(1)(a)(ii) and Kerr Report, op. cit. para. 297.

43 [1977] A.C. 1014.

44 [1977] 1 Q.B. 643.

45 Kirby, op. cit. n. 29.

46 Bland Report, op. cit. para. 183.

47 Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 A.L.D.158, 162.

48 Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 A.L.R. 577.

49 Kirby, op. cit. n. 29.

50 Disco-Vision Trade Mark [1977] R.P.C. 594.

51 Ansett Transport Industries (Operations) Pty Ltd v. The Commonwealth (1977) 139 C.L.R. 54, 61-62 per Barwick C.J.; 87 per Murphy J.; Salemi v. Mackellar (No. 2) (1977) 137 C.L.R. 396, 403 per Barwick C.J.

52 Cf. the considerations canvassed in Bushell v. Secretary of State for the Environment [1980] 3 W.L.R. 22, particularly per Lord Diplock, 31 and 32.