BY JOE MCINTYRE
Administrative Law has always exposed difficult constitutional fault lines. As the role of the State expanded, courts improvised responses to affect a broadly effective system of legal accountability for executive action. This evolution has, however, left a number of fundamental concepts unresolved, including whether the core objective of administrative law is the protection of legal rights and interests, or the restraint of government power.
That evolutionary history, the result of the willingness of the judiciary to actively impose themselves in the constitutional landscape, makes administrative law a useful lens to analyse judicial culture. How courts now approach fundamental administrative law issues reveal deeper insights into judicial conceptions of their role in the broader judicial culture at a given time.
The decision of the Full Court of the South Australian Supreme Court in L v South Australia is one of these cases that expose those deep fissures in administrative law. In determining whether or not the internal investigative procedures of a government department could be amenable to judicial review, the Court grappled with many of the most controversial aspects of administrative law including judicial review of prerogative and non-statutory powers, the principle of legality, and legitimate expectations. Perhaps the single most noted aspect of this case has been a statement from Kourakis CJ that:
The principle of legality operates as a rule of statutory construction and is not a free-standing substantive common law rule limiting the power of all administrative decision makers unless Parliament provides to the contrary (at ).
This quote quickly spread through the Twittersphere and brought the case itself to the attention of many who would otherwise not have seen it.
I equivocated for a long time as to whether this case was of more than simply passing interest to a national audience, beyond its potential chilling effect for foster-carers (as the facts will reveal).
In the end, I think the judgment usefully reveals an insight into the judicial culture now dominant in this country, with its rejection of the spirit of improvisation that supported the development of administrative law.
There has been a creeping cultural shift in our judiciary over the last decade, evident in suppression of dissenting voices in the Kiefel High Court with its drive to ‘efficient’ judgments and its pervasive assumption of an obtainable correctness of judicial decisions. As a judicial theorist, L v SA is of particular interest to me in the way it illustrates the adoption of this new cultural paradigm by our intermediate appellate courts.
This case is about more than just how judicial review is viewed by the courts, and whether the mechanism should be treated as dynamic and responsive, or fixed and technical; it is an illustration how our intermediate courts see the judicial role itself.
The Facts of the Case
The decision of the Court dealt with two sets of foster carers who had concerns raised against them for the way in which they had been providing care to their foster children. This judgment arose out of actions for judicial review brought by 3 plaintiffs in two related proceedings. For the purposes of this post, I will focus on the facts of the first plaintiffs, Mr and Mrs L.
Mr and Mrs L had cared for two children, C and M, since May 2011, and received $800 a fortnight to cover expenses. Both Mr and Mrs L worked at the school the children attended.
In late October 2014, the Care Concern Investigations Unit (CCIU) of the South Australian Department for Education and Child Development (the Department) commenced an investigation into Mr and Mrs L. The primary criticism made in the CCIU’s report was the unwillingness of Mr L and Mrs L to engage with the Department’s social workers or to allow the children to see their biological parents.
Within the week, a meeting of officers of the Department determined that C and M were at risk in the care of Mr and Mrs L and resolved to remove the children from their care. Meetings of that kind are regulated by Families SA Divisional Circular No 131 which notes that:
The carer family may also be severely impacted. Such decisions must be made with the utmost consideration of the child’s safety, life-long security and future emotional wellbeing, as well as the natural justice rights of carers and their emotional wellbeing.
Subsequently, and in accordance with a decision made by a delegate of the Minister, the children were taken from their placement with Mr and Mrs L. The removal took place during school time, with no prior warning given as to the removal.
As a result of the removal, Mr L was directed not to attend the school by the regional Education Director on the basis that the children had been removed and that there was an ongoing investigation into their care (though he was to remain on full pay).
Some three weeks later, in late November, Mr L received a letter from a CCIU setting out five allegations against him. In February 2015, after interviewing Mr and Mrs L, the CCIU finalised its report, finding that C and M had suffered emotional abuse by virtue of exposure to Mr and Mrs L’s marital conflict, and that such conflict had led to a deficit in the quality of care. None of the original allegations made in November were found to be substantiated.
The report was forwarded to a number of government departments, including the South Australian Employment Tribunal for the purposes of proceedings taken against Mr L. In May 2015, and relying upon information provided in the CCIU reports, a delegate of the Minister determined not to return the children to the care of Mr and Mrs L.
Following these events, Mr and Mrs L initiated judicial review proceedings seeking a declaration that the findings of the CCIU (and the Chief Executive’s endorsement of those findings) were unlawful and beyond power, and orders in the nature of certiorari quashing those findings. They also sought a declaration that the removal of the children was unlawful.
The question of whether the actions of the CCIU were amenable to judicial review was referred to the Full Court.
The Finding of the Court
The lead judgment of Chief Justice Kourakis (which was followed by Judges Parker and Doyle) effectively held that actions of the CCIU, and the decision to remove the children, were not amenable to review as ‘… neither the CCIU reports nor their endorsements were made in the exercise of any statutory, or prerogative, power or function and did not affect any legal right, power, privilege or interest of the plaintiffs’ (at ). Rather, those reports were held to be ‘the product of the exercise of the personal faculties of public servants albeit performed in the course of their employment as officers of the Department’ (at ).
There is something deeply artificial about this finding. Can it be that a report that leads to foster children being removed from school, and a person being suspended from work, has no legal consequences, and does not affect that person’s reputation? The fact that the Chief Justice in his reasons worked through the full gambit of judicial review, touching upon its origins, scope and purpose, may suggest a degree of unease with the final decision reached.
Administrative Law, Legal Rights and the Exercise of Public Power
The focal point of the Chief Justice’s decision was the concept of legal power, and its ability to directly alter legal rights and interests. As His Honour articulated, at its core, judicial review ‘is concerned with ensuring that decision makers do not exceed, or breach the conditions of, the legal power that they exercise’ (at ). In this case, while there may have been a statutory basis for the removal of children, neither a CCIU report nor its endorsement had, in itself, any legal consequence (at ). The investigation was not coercive. No parties were compelled to give evidence; all volunteered information. The fact that compulsive measures may have been taken was beside the point (at ).
The conduct of the inquiry and the completion and endorsement of the report was held to be neither an exercise of statutory or prerogative power. In reaching this conclusion, his Honour examined the extent to which prerogative powers may be amenable to judicial review, displaying a palpable scepticism for such review in concluding:
The art of government exercised by the executive at its highest echelons requires the unswerving pursuit of the national, or State, interest. … In the exercise of what remains of the true and unregulated prerogative there are no mandatory relevant considerations, and no considerations which are irrelevant, other than those so deemed by the Executive Council. … A judicial declaration that a decision of the executive council in the exercise of the prerogative should be set aside as irrational would transform our system of responsible government into a system of government by judges (at ).
Following a detailed discussion of Council of Civil Service Unions v Minister for the Civil Service  1 AC 374 – the seminal UK decision that held that the exercise of certain prerogative decisions may be amenable to judicial review – and the development and applicability of that decision in Australia, His Honour paused to reflect on the meaning of the word ‘power’ in the context of judicial review. His Honour reiterated his central proposition that ‘power’ means ‘the legal authority to affect a legal right or interest by abrogating, diminishing, limiting or extending it’ and does not ‘refer to the financial, human and other resources of a person, or the executive government, to influence conduct in fact, nor to any imbalance between the power, in that sense, of one person when pitted against another’ (at ).
Building on this point, His Honour observed that the ability of persons (other than the executive government) to affect legal rights is highly limited – other than through contract. Where statutes do grant ministers, officers of their departments, or even private persons the ability to affect legal rights, the ‘common law rule of construction referred to as the principle of legality will generally condition such powers on an obligation to accord procedural fairness and a proviso that the act, conduct or decision not be unreasonable’ (at ). His Honour then articulated his conception (reproduced above) of the principle of legality as a rule of statutory construction (at ).
As with so much of this judgment, there is nothing demonstrably wrong or erroneous with this conception. Rather, the adoption of such a narrow conception of the principle of legality without alluding to the possibility – let alone plausibility – of broader conceptions, for example that would treat the principle of legality as a more substantive limit on legislative power, reflects a constrained and (self)-restrained view of the judicial role.
Datafin and ‘Public Power’
This approach of looking for specific statutory provision with resultant concrete legal effects inevitably required the Court to deal with the elephant in the room that is R v Panel on Take-overs and Mergers; Ex parte Datafin plc  QB 815 (‘Datafin’). In that case, the UK Take-overs and Mergers Panel, a body founded exclusively on contractual arrangements, was held to be amenable to judicial review as it exercised a ‘public law function’ and had ‘public law consequences’ (at 847 per Lloyd LJ). In essence, a private body exercising non-statutory power fell within the ambit of judicial review as a consequence of the ‘public element’ of its role. This approach emphasised the accountability of public power as the driving ambition of judicial review.
Australian courts have long displayed scepticism towards that decision, while nonetheless remaining reluctant to remove its weaponry from their potential armoury. The ambition of that case, in expanding review to ensure the exercise of de facto public power was reviewable, stands in stark contrast to the approach of the Chief Justice in L v SA, who constrained the reviewability of a clearly governmental decision. To justify this restrictive approach, it was necessary for the Chief Justice to grapple with the various Australian cases that have sought to apply Datafin.
The most significant of these was the case of The State of Victoria v The Master Builders’ Association of Victoria  2 VR 121 (‘MBA’). In that case, an issue arose as to whether or not the Victorian government was obliged to give building contractors an opportunity to be heard before including them in a ‘blacklist’ list of contractors not to be engaged by government departments and councils. The list was compiled by a non-statutory task force. In holding that the Court could review the listing decision, Eames J concluded:
[T]here can be no doubt that the state, in acting through the task force, is acting pursuant to a perceived public duty. The task force is applying the coercive force of the state, thus benefiting from the position of dominance in the industry which the state has and which no individual corporation, of whatever size, or any individual, possesses. In pursuing this course the state is undoubtedly seeking to address a matter of public importance. … Furthermore, the impact of the decisions of the task force upon public companies must have public law consequences, if only because the well-being of the corporate sector is related to the financial stability of the state (at 164).
The Chief Justice in L v SA is almost scathing in his dismissal of this approach; noting that ‘the decision of the Full Court in the MBA case appears to conflate the question of practical economic and social power with a legal power to affect existing rights and interests’ (at ).
What is Administrative Law About?
The divide between the two courts in L v SA and MBA goes to the heart of the issue: what is administrative law really about? At its core, is it concerned with the restraint of public power, or the protection of legal rights and status?
The Victorian decision of MBA, following the approach of Datafin, adopted the broader proposition, adopting a flexible and responsive approach with a pragmatic focus on the impact of the decision. In contrast, the court in L v SA adopted a far more technical and constrained approach, holding that in order ‘to be amenable to judicial review an administrative act must not only be an exercise of public power but must also affect a right, obligation or interest or privilege’ (at ).
As the report of the CCIU could not alter any legal rights or interest, but rather would inform the decisions of other decision-makers, it followed that the report making process could not be amenable to judicial review. The only impact of the CCIU report was to aid relevant government officers in performing their public duties.
Moreover, His Honour held that even if he was wrong on that point, there could be no judicial review because no legal interest was affected. Even if there had been an impact on reputation (which was not determined), damage to reputation must give way to higher public law interests ‘in the free exchange of information between persons who have a duty to evaluate that information’ (at ). Similarly, there was no legal interest as loco parentis (at ) nor did any interest arise from the fact that foster carer payments would cease (at ). Finally, there was no interest in respect of the impact of the decision on Mr L’s employment, as ‘the continuation of the plaintiffs’ employment could only be affected … if the reports were disclosed to an employer or prospective employer by the Screening Unit’ (at ).
The final, plaintive, argument put by the plaintiffs in L v SA was that they were legally entitled to procedural fairness by reason of the departmental statements made in Circular 131. In rejecting that submission (at ) His Honour hammered another nail into the doctrine of legitimate expectation, effectively consigning it to another era.
In many respects, this final footnote to the case is emblematic of the entire decision. Where previously (and relevantly recently) the judicial culture permitted an expansive striving for a richer and deeper accountability, finding ways to expand review of governmental and quasi-governmental action, the current modality is far more nominal and self-restrained. From the ‘brutal literalism’ of the High Court down, there is an unwillingness to acknowledge – let alone exercise – the unavoidable and inevitable responsibility of courts in shaping and developing the law in response to changing social conditions.
There in nothing in the decision of L v SA that is clearly wrong or even particularly unexpected. Each component part appears sufficiently persuasive. It is not until one steps back to view the result as a whole that a sense of unease takes hold.
We may assume that Mr and Mrs L did not cooperate with the CCIU investigation in order to be helpful; they did so as they knew that failure to cooperate would effectively ensure a decision against their interest. While the decisions that directly affected legal rights were subsequently made by other actors and agencies, this report sat at the heart of the web of legal processes and decisions (including caring decisions, screening disclosures, and Employment Tribunal proceedings). Subsequent decision-makers relied upon the CCIU report, with its content effectively determining those decisions. It is unrealistic to suggest that the Minister, or other decision-makers captured in that web, would go beyond the findings of the report, nor is it clear that it would be appropriate for them to do so. The report was more than simply a step in a decision-making process: it was a foundation – complete and stable in itself – upon which a range of other decision-makers built their decisions. The approach of the Court means that there is no effective means of reviewing or challenging this invasive and consequential process.
While it may not have been an exercise of conventional statutory or prerogative power, there was nevertheless an exercise of de facto government power. While there was no single source of the authority, and no direct legal consequences, for the decision there should be little doubt that the actions constituted governmental power, and that the consequences were real and substantial. The CCIU report was the central finding of fact upon which a range of other decisions depended. There is certainly an argument that the fact that the absence of clear legal authority for the exercise of this power was a reason for greater judicial scrutiny, not less. Such an approach may appear more consistent with the rational of administrative law of ensuring accountability of government actions.
It does not necessarily follow from the fact that the investigation of the CCIU did not rely upon statutory or prerogative power that the action was beyond effective judicial review. There is an unease with the substantive decision that occasionally surfaces in the judgment. When viewed with some distance, that unease should be an invitation to explore alternatives. The MBA decision suggests one such alternative, with a focus on governmental power and broad aspirations of government accountability. There are, of course, also good policy reasons to adopt the narrower conception espoused by Kourakis CJ. Unfortunately, these policies are left unexamined, as potential alternative pathways are hidden from view.
These hidden paths are emblematic of a deeper fissure in the Australian judiciary. The current judicial culture in Australia risks falling into neo-formalism. The legitimate and unavoidable choices judges are required to make in every judicial decision are, in the dispositive judgment, hidden from view. The consensualism of the Kiefel High Court obscures such choices. Justices Gageler and Gordon appear transgressive when they explicitly acknowledge that judges make law (Prince Alfred College Incorporated v ADC  HCA 37 at ). There is high degree of deference exposed in the judicial attitude of this case that is reflective of that broader judicial mood. This is not a decision, I suggest, that would be made by the UK Supreme Court or any Canadian Court. Indeed, the MBA decision of 20 years earlier illustrates the shift of Australian judicial culture in that period. This attitudinal shift is particularly evident in this context of judicial review, with its antecedents as an inherently common law creature built up slowly over time through the accretive decisions of judges. The stasis of which the decision of L v SA speaks contrasts starkly with the dynamic evolution inherent in the supervisory capacity of courts.
At its best, judicial decision-making possesses an inherent humility, an awareness of fallibility that allows reflection, discourse and change. It is this quality that has made judicial review such an effective tool – it recognises that mistakes may be made, but allows both a dignified means for their correction and a spur for their avoidance. The decision in L v SA shields mistakes and promotes absolutism. That this is evidence of a broader trend should be of concern to us all.
Dr Joe McIntyre is a Senior Lecturer at the University of South Australia School of Law.
Suggested citation: Joe McIntyre, ‘What is Administrative Law About? Power, Rights, and Judicial Culture in Australia‘ on AUSPUBLAW (23 April 2018) <https://auspublaw.org/2018/04/what-is-administrative-law-about/>