In Egan v Willis, the High Court declared that the New South Wales Legislative Council had a common law power to call for state papers from Ministers in the House. The case's greatest constitutional significance, however, may be its effect on the relationship between the Parliament and the Court. By making declarations about the relationship between a Minister and the House, the Court appears to have taken on a new role of arbitrating internal parliamentary proceedings independent of any substantive issue outside the House. While such intervention may help secure the rule of law within the legislature, it has traditionally been held that the internal proceedings of the legislature should be subject to the control of the people's elected representatives alone. The need for independence between the legislative, judicial and executive arms of government and their effective operation has, within the British and American constitutional traditions, led to the identification of certain issues as being outside the jurisdiction of the courts or otherwise not justiciable.

There was published in the University of Chicago Law Review some years ago a debate between Professor Dworkin and Judge Posner in the course of which Judge Posner drew a distinction between “top down” and “bottom Up” reasoning. He accused Professor Dworkin of being a “top downer” and professed himself to be an unashamed “bottom upper”.

Let me explain the distinction. In “top down” reasoning the judge or legal analyst adopts a theory about an area of law. The theory is then used to organise and explain the cases; to marginalise some and to canonise others. In “bottom up” reasoning the judge or legal analyst starts with the mass of cases or the legislative text and moves only so far as necessary to resolve the case at hand. According to Judge Posner “[t]he top downer and the bottom upper do not meet”.

The distinction is useful although the dichotomy is not complete. The “bottom upper” would be lost in the wilderness of the single instance without some organising theory.

Australian freedom of information (FOI) specialists, on first encounter with New Zealand's Official Information Act 1982, tend to scratch their heads about this quaint and quixotic variant of access legislation. Viewed from a trans-Tasman perspective, the Official Information Act appears riddled with extremely flexible provisions which would offer hard-bitten bureaucrats easy escape routes to avoid providing requested information. An initial glance at the history of the Official Information Act merely confirms this observation. When it was launched, the Official Information Act was seen by many New Zealanders as a poor compromise between an Official Secrets Act and freedom of information legislation. Indeed, Sir Robert Muldoon referred to it as a “nine day wonder”. The final passage of the Australian FOT Act was accompanied by an initial belief in the creation of a nascent regime of openness, whereas the introduction of the Official Information Act was depicted by the Public Service Association as “Not a freedom of information law...nor a secrecy law...but an uneasy compromise between the two”.

The new administrative law in Australia dates from the implementation, over a period of more than a decade, of the substance of the proposals advanced by the Kerr Committee and its successors in the early 1970s. The now familiar legislation swept away many of the procedural obscurities associated with the prerogative writs, codified the general principles governing judicial review of administrative action and provided for independent merits review of administrative decisions. These reforms paved the way for the emergence of what commentators have described as a “distinctively Australian jurisprudence in public law”. It is hardly necessary to say that Sir Anthony Mason played a pivotal role in the development of the distinctive jurisprudence, both through his membership of the Kerr Committee and his judgments in the leading administrative law cases of the 1980s and 1990s.

Administrative law forms an important part of public law. Public law also includes and is subject to the prescriptions of constitutional law. In shaping the principles of public law within the limits that necessarily apply to the judicial process, the courts, notably the High Court, have a large responsibility. There is the responsibility to ensure that the principles so shaped protect and enhance the form of democratic government for which the Constitution provides, as well as the rights and freedoms recognised by the common law, the common law being the foundation of the Australian Constitution. Professor Allars has succeeded in painting a broad picture of what that has entailed in the area of administrative law, so far as I was concerned.

Justice Gummow is unquestionably right in reminding us that judicial review has roots in the Constitution itself. Whether he is also right in saying that there has been a failure to realise this by some who teach administrative law not comparatively, but through English spectacles, I am unable to judge.