In 1958 Kenneth Culp Davis said of the common law principles of judicial review of administrative action:
An imaginary system cunningly planned for the evil purpose of thwarting justice and maximising fruitless litigation would copy the major features of the extraordinary remedies. For the purpose of creating treacherous procedural snares and preventing or delaying the decision of cases on their merits, such a scheme would insist upon a plurality of remedies, no remedy would lie when another is available, the lines between the remedies would be complex and shifting, the principal concepts confusing the boundaries of each remedy would be undefined and undefinable, judicial opinions would be filled with misleading generality, and courts would studiously avoid discussing or even mentioning the lack of practical reasons behind the complexities of the system.
While much has changed in the common law of judicial review since 1958, most would agree that there remain many ‘treacherous procedural snares’ in Australian administrative law and that the remedies are still somewhat ‘undefined and undefinable’. I need only mention the phrase ‘non-jurisdictional error of law on the face of the record’, or the question of whether certiorari and prohibition only apply to judicial and ‘quasi-judicial’ decisions to illustrate these complexities.
In a recent decision, the High Court, and Gageler J in particular, has begun to clarify some of the thorniest of these snares. If Gageler J’s comments receive wider support from the Court in future cases, I think Australia may be approaching a more settled and coherent understanding of the purposes and scope of judicial review of administrative action.
The case to which I am referring is Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd  HCA 4 (heard together with Maxcon Constructions Pty Ltd v Vadasz  HCA 5). The case centred on the question of whether the NSW Supreme Court has jurisdiction to issue certiorari to quash determinations affected by non-jurisdictional errors of law on the face of the record made by adjudicators under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the ‘Security of Payment Act’). The Security of Payment Act provides for a statutory right to progress payments for construction work and establishes a scheme for the determination and payment of progress payment claims. The scheme allows contracting parties to refer any disputes to an adjudicator. Adjudicators are required to determine disputes within ten business days, and the amount determined by an adjudicator becomes an enforceable debt. There is no right of appeal from an adjudicator’s determination and if a respondent wishes to have an adjudicator’s determination set aside, they are prevented from bringing cross claims, raising any defences to matters arising under the contract, or to challenge the adjudicator’s determination. Importantly, the Act expressly provides that payments under the scheme do not affect the rights of the parties under the contract, and that in determining those rights courts can make orders for the restitution of any amounts paid under the Acts.
Despite the lack of any statutory provision expressly stating that the Supreme Courts could not quash an adjudicator’s determination on the grounds that the adjudicator had made an error of law within jurisdiction, the plurality comprised of Kiefel CJ, Bell, Keane, Nettle and Gordon JJ, held that the Acts did evince
a clear intention to exclude the review jurisdiction of the Supreme Court to the extent that the Parliament had the power to do so: relevantly, to prevent an order in the nature of certiorari being made on the basis of non-jurisdictional error of law. (at ).
This ‘clear intention’ was found by an examination of the text, context and purposes of the statutory scheme. This in itself is interesting, because it suggests that the presumption that legislatures do not intend to oust judicial review is not a clear statement rule as earlier judgments have indicated. It also confirms the principle in Kirk, that the Constitution only entrenches the supervisory jurisdiction of State Supreme Courts for jurisdictional errors of law, and not for non-jurisdictional errors. Edelman J agreed with the plurality’s conclusion, but wrote his own judgment which focussed on the strength of the principle that legislation should be read so as not to oust the courts’ supervisory jurisdiction in different circumstances.
Of particular note, in my view, is Gageler J’s separate, expanded discussion of some of the central principles which underpin this conclusion (with which he agreed). His Honour makes the point that:
The common law principles of interpretation applicable to determining whether legislation manifests an intention that a decision or category of decisions not be quashed or otherwise reviewed are not static. As with other common law principles or so-called “canons” of statutory construction, they have contemporary interpretative utility to the extent that they are reflective and protective of stable and enduring structural principles or systemic values which can be taken to be respected by all arms of government. And as with other common law principles of statutory construction, they are not immune from curial reassessment and revision. (at ).
His Honour goes on to explain that this means that Australia is not stuck with the procedural complexities and technicalities historically associated with the prerogative writs if they are inconsistent with our contemporary understanding of judicial review. This includes the ‘anomalous’ presumption that certiorari is available to quash administrative decisions not only when they are affected by jurisdictional errors, but also when a court finds a non-jurisdictional error of law on the face of the record (at –). Gageler J sets out the history of certiorari’s application to non-jurisdictional errors and notes that certiorari was not used to quash administrative (as opposed to judicial) decisions affected by a non-jurisdictional error of law on the face of the record before 1951 (at –). He contends that the rule should be regarded as ‘a failed mid-twentieth century experiment of the common law’ (at ). His Honour also explains that it is quite incoherent for a court to determine that Parliament authorised a decision-maker to make a decision and evinced an intention that the decision be valid irrespective of any errors made within that authority, and to then quash the decision (at ). He therefore suggests that the presumption that courts can issue certiorari with respect to non-jurisdictional errors of law can and should be abandoned by Australian courts (at ).
Does this mean that Australian courts are free to dispense with all of the inconvenient technicalities of the common law writs? The distinction between jurisdictional and non-jurisdictional errors would doubtless spring to the minds of many in response to this question.
Sadly for those who have expressed disdain for the distinction, Gageler J’s precise and coherent explanation of the nature and scope of judicial review in Australia makes it quite clear that it cannot be abandoned. But, as Dr Lisa Burton Crawford and I argue in this forthcoming book chapter, the reason the distinction between jurisdictional and non-jurisdictional errors cannot be abandoned is not any of those commonly given in passing by the High Court. It is not explained by the exclusion of certiorari from the list of remedies under s 75(v), the scope of the protected jurisdiction of superior colonial courts immediately prior to federation, or the separation between judicial and executive power. Rather, we need the distinction between jurisdictional and non-jurisdictional errors of law because Australian parliaments are empowered (within the constitutional limits of their own powers) to determine the scope of an administrator’s statutory authority.
As Gageler J explained in Probuild, there is a common law presumption that:
a statutory conferral of decision-making authority on a person or body other than a court is conditioned by an implied statutory requirement that the person or body can validly exercise that authority only on a correct understanding of the law applicable to the decision to be made. (at ).
However, it is accepted that Parliament has the power to rebut this presumption via clear words or necessary implication. The result of such rebuttal is that it is within the scope of the power granted to the administrative decision-maker to make a decision irrespective of whether or not they correctly interpret and apply the relevant law. Any error that the decision-maker makes remains an error of law, but the error is non-jurisdictional in nature. Provided that we continue to accept that it is possible for Parliament to place legal limits on administrative powers breach of which does not result in invalidity, and to define the scope of administrative power in this way, then the distinction between jurisdictional and non-jurisdictional errors must remain (or be replaced with some other label for this concept).
Gageler J’s judgment in Probuild highlights a fundamental point that sometimes gets lost in the details of judicial review of administrative action. That is, the role of courts in reviewing administrative action is to determine whether a decision-maker has exceeded the powers (or jurisdiction) granted to them by the legislature. No less and no more. The reason why this is properly the role of courts under our Constitution is because it involves determining finally and conclusively what the law is, and what Parliament has authorised (expressly and by implication) a decision-maker to do. The curious list of remedies in s 75(v) of the Constitution, their application at particular points in time, and the historical jurisdiction of State Supreme Courts are frequently a distraction from this central focus. They are important, of course, for explaining (at least partially) why the review jurisdiction of courts is entrenched by the Constitution. But they do not explain or define the scope and nature of the judicial power to review the lawfulness of administrative action. Nor do they necessarily mean that all of the legal and procedural rules which were once affiliated with the prerogative writs are themselves constitutionally protected.
Janina Boughey is a Senior Lecturer at the University of New South Wales Faculty of Law.
Suggested citation: Janina Boughey, ‘Resolving some ‘anomalies’ and ‘snares’ in judicial review: Probuild Constructions’ on AUSPUBLAW (5 April 2018) <https://auspublaw.org/2018/04/resolving-some-anomalies-and-snares-in-judicial-review/>