Alan Robertson SC provides the first post in our book forum on Amanda Sapienza’s Judical Review of Non-Statutory Executive Action. To see all posts, please click here.

Alan Robertson SC

27.10.2021

Dr Amanda Sapienza’s Judicial Review of Non-Statutory Executive Action is an important work because it has as its centre of attention non-statutory executive action, rather than dealing with it, however well, in a more general context of public law. In this second category I would include, for example, the classic Judicial Review of Administrative Action and Government Liability (6th ed., 2017) by Aronson, Groves and Weeks, especially at [3.60]-[3.70] and [3.110]-[3.120]. There the learned authors deal in their characteristically succinct but precise prose, comprehensively but shortly, with the major issues the subject of the present book.

Dr Sapienza makes the fundamental point (p 2) that the Commonwealth Constitution requires review of the manner of exercise, not merely the existence, of executive power to ensure that the repository of a power does not exercise it in a way that breaches the limits of the power. This should no longer be controversial.

The book concludes that Australian judicial review principles are capable of application to an exercise of non-executive power only to a limited extent and demonstrates why this conclusion is correct.

The book seeks to answer, methodically and thoroughly, the question what are the laws that govern the exercise of non-statutory executive power. In my view, the book succeeds in this aim.

The book is largely drawn from Dr Sapienza’s PhD dissertation, but this is not a negative characteristic: not only is it thorough, but the book also reads well.

Dr Sapienza is also realistically aware that judicial review is only one aspect of seeking to ensure that the executive is responsible for its actions. She points out (p 6) that her book does not consider the availability and sufficiency of other accountability mechanisms, such as a relevant Ombudsman, parliamentary committees and any available internal merits review mechanism.

Because of s 75 of the Constitution, as Dr Sapienza discusses in Chapter 6, we do not have the present UK problem where, as the Attorney General, Suella Braverman QC MP, wrote on 27 January 2020:

Yes, courts should operate to curb abuse of power by government but if a small number of unelected, unaccountable judges continue to determine wider public policy, putting them at odds with elected decision-makers, our democracy cannot be said to be representative. Parliament’s legitimacy is unrivalled and the reason why we must take back control, not just from the EU, but from the judiciary.

Recently I published a paper: ‘Supervising the legal boundaries of executive powers’ (2021) 50 Aust Bar Rev 12, based on my earlier 2020 Spigelman Oration, given on 12 November 2020, but before Dr Sapienza’s book was published. I shall not repeat what I there said.

In relation to the so-called prerogative of mercy, considered by Dr Sapienza in Chapter 4, since the publication of Dr Sapienza’s book, the High Court has refused special leave to appeal in the Queensland case Holzinger v Attorney-General (Qld) (2020) 385 ALR 158: see Holzinger v Attorney-General for the State of Queensland [2021] HCASL 20 (11 February 2021).

The High Court has also refused special leave to appeal in Attorney-General (Cth) v Ogawa (2020) 384 ALR 474, where the Full Court of the Federal Court had followed Holzinger. The applicant sought that the Governor‑General grant a pardon and/or that the matter be referred back to the Queensland Court of Appeal pursuant to s 672A of the Criminal Code (Qld). After some four years, the Commonwealth Attorney-General finally considered the application. He refused the referral application and recommended to the Governor‑General that the petition for mercy be rejected, which duly happened. Special leave was refused on the basis that there were no real prospects of success on appeal.

So the continued correctness of the breadth of what was said in Horwitz v Connor (1908) 6 CLR 38, examined by Dr Sapienza at pages 87-91 of her book, is yet to be considered by the High Court in modern times.

In Horwitz v Connor, Griffith CJ, Barton, O’Connor, Isaacs and Higgins JJ said:

… a mandamus to the Governor in Council will not lie, and no Court has jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy. The application will be refused.

But as Dr Sapienza points out (pp 87-88), the case was not in fact a case in which review was sought of an exercise by the vice-regal officer of the prerogative of mercy but was an application for special leave to appeal from a decision of the Supreme Court of Victoria that the applicant was not entitled to be released pursuant to regulations, which regulations conferred discretion on the Governor in Council to remit terms of imprisonment in certain circumstances.

One of the matters which favours Dr Sapienza’s approach to judicial review of non-statutory powers is the difficulty of disentangling whether what is done is or is not an exercise of statutory power.

This is illustrated by a series of cases in the Federal Court concerning whether (arguably) non-statutory actions of public servants were amenable, at all, to judicial review. These actions of public servants were not to refer requests for ministerial intervention under s 351 of the Migration Act 1958 (Cth) to the Minister for his decision whether to consider exercising his power under that section. The Minister had published guidelines, which did not have statutory force, indicating when the Minister wished to consider requests for ministerial intervention, the statute making it clear that the Minister did not have a duty to consider whether to exercise the power under s 351 in respect of any decision, whether he or she was requested to do so by the applicant or by any other person, or in any other circumstances.

As a Federal Court Judge, I had earlier addressed some of these issues in a judgment considered by Dr Sapienza in her book, Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438. I had concluded that the actions were amenable to judicial review on the ground of legal unreasonableness, although the contention failed on the facts.

In two recent appeals, argued on 26 May 2021 in the Full Court of the Federal Court of Australia, with five Judges sitting, the Commonwealth has contended that Jabbour wrongly decided that the actions of the public servants were so amenable to judicial review. Those appeals are: No. NSD 831 of 2020 DCM20 v Secretary, Department of Home Affairs and Another and: No. VID 399 of 2020 Martin John Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Others. Judgment is reserved.

One issue in those appeals is whether individual rights or interests are affected by what the public servants did or whether no more than an executive capacity was involved. This is essentially the focus of Dr Sapienza’s book, the so-called prerogative (relevantly, non-statutory powers that affect the rights or interests of a member of the public) and that part of the executive power which reflects the capacities of the legal person.

Interestingly, as I understand it, and relevantly to Dr Sapienza’s book, the Commonwealth Solicitor-General in these two appeals made no general claim to the effect that it was impossible to review any exercises of non-statutory power on any grounds. R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 appears to have been accepted as a starting point.

As I understand it, the Solicitor-General accepted that one looks at the subject-matter of the decision and, probably, its effects on individual rights or interests as one indicator of whether judicial review may be available. One looks also at the status or position of the decision-maker.

The major battle lines appear to have been drawn as follows. On the one hand, the Commonwealth contended that what the public servants did had no effect on the rights or interests of the persons concerned: whatever the public servants did, the rights and interests of the persons concerned were exactly as they otherwise were and were governed by the statute. The appellants, on the other hand, contended that there was a potential right, interest or privilege which was the subject of the requests, and that if the Minister made a personal procedural decision and a personal substantive decision, that would directly affect, in a substantial way, the interests of the appellants.

It remains to see what conclusions the Full Court reaches in its judgments in DCM20 and Davis and, after that, whether any party seeks to interest the High Court in the cases.

Alan Robertson SC is the President of the Australian Academy of Law, an Honorary Professor at the ANU College of Law, and a former Judge of the Federal Court of Australia.

Suggested citation: Alan Robertson SC, ‘Book Forum: Alan Robertson SC’ on AUSPUBLAW (27 October 2021) <https://auspublaw.org/blog/2021/10/book-forum-alan-robertson-sc/>

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