Book forum: Amanda Sapienza

Amanda Sapienza replies to reflections from Alan Robertson, Cheryl Saunders, and Jackson Wherrett on her book Judical Review of Non-Statutory Executive Action. To see all posts, please click here.

Amanda Sapienza

27.10.2021

Between the pandemic and my post-PhD career choices, an in-person launch of Judicial Review of Non-Statutory Executive Action, which was published by the Federation Press at the end of 2020, was out of the question. So I’m indebted to the editors of AUSPUBLAW for hosting this online book forum and for their efforts in securing three eminent commentators. I’m honoured and humbled that Alan Robertson SC, Laureate Professor Emeritus Cheryl Saunders and Jackson Wherrett agreed to participate and have engaged so thoughtfully with the book and its subject matter, and I’m grateful for their thought-provoking contributions. This is particularly so in light of Saunders’ past and ongoing work in relation to executive power and accountability (by which my work has been greatly enriched) and Robertson’s engagement with the issues explored in the book through the decision in Jabbour and his 2020 Spigelman Oration. As I use this opportunity to explain the book’s purpose and structure, I’ll respond to some of the points made by each commentator.

Essentially, the book aims to be a resource for practitioners and the judiciary in Australia when grappling with judicial review of non-statutory executive action (see here for more on the source of inspiration for the research that became the book).

It seeks to answer the question: What has the development of judicial review principles by the High Court meant for judicial review of non-statutory executive action? There are cases in which the High Court has espoused a theory of judicial review, and cases in which the High Court has explored the limits of the Commonwealth’s non-statutory executive power (and capacities, though for brevity here I will refer to ‘power’ as encompassing both ‘power’ and ‘capacities’ except where the context suggests otherwise). But, as noted by Saunders, there has been no case in which the High Court has been required to reconcile the two. Lower appellate and first instance courts have occasionally had cause to do so, with mixed results in terms of doctrinal coherence. And even less has been written about the non-statutory executive power of the Australian states.

This book is my attempt to bring doctrinal coherence to this area of law. I have endeavoured to take the principles of judicial review as espoused by the High Court and work out what would happen if those principles were sought to be applied to non-statutory executive action.

Following an introductory chapter that provides an overview of the ‘lay of the land’ in terms of Australian judicial and academic exploration of the topic, Chapter 2 considers in depth the types of non-statutory executive power exercised by the Commonwealth and the Australian states. It divides non-statutory executive power into three types:

• prerogative powers, which are unique to the government and are able, of their own force, to affect a person’s domestic rights and/or obligations;

• prerogative capacities, which are unique to the government but unable, of their own force, to affect a person’s domestic rights and/or obligations (the most notable example being entry into treaties); and

• non-prerogative capacities, being the capacities to take action that the Australian governments share (in nature, if not in respect of their ability to exercise) with their residents, but which rely on an additional legal mechanism – such as a contract, lease or gift – to produce legal consequences.

I considered that the separate treatment of each type was essential for the legal analysis that followed, as different features of each type of power engaged different considerations when it came to judicial review.

Saunders takes the view (possibly shared by Robertson) that the time has come to do away with the terminology of ‘prerogative’. Her view may be fortified by the Full Court of Federal Court’s apparent eschewing of the label ‘prerogative’ in respect of mercy in Attorney-General (Cth) v Ogawa (2020) at [68], preferring to refer to the petition in question in that case as ‘an application for an exercise of Constitutional executive power under s 61 of the Constitution’. It may well be that new nomenclature in this regard is overdue, and I will happily jump on that bandwagon once we have found a label that at once indicates that an executive power or executive capacity is both unique to the government and is not sourced in statute. ‘Executive power’ covers both non-statutory and statutory powers. The use of ‘non-statutory executive power’ and ‘non-statutory executive capacity’ does not distinguish between ‘prerogative capacities’ and ‘non-prerogative capacities’. For the purposes of the book, due to my doctrinal approach and the retention (to date) by the High Court of the label ‘prerogative’ for that category of executive powers that are unique to the government but are not sourced in statute, the term ‘prerogative’ seemed to be the term with which readers would most readily identify that kind of power.

When it comes to the scope of the non-statutory executive power of Australian governments, the relationship between the Constitution and the common law is, as Saunders observed, a vexed issue. Given the ambiguity in s 61, I am uneasy with any further constitutionalisation of the meaning of the executive power of the Commonwealth, such that the Parliament becomes unable to abrogate it. Perhaps it bridges what might appear to be a gap between our respective understandings of the role of the common law in understanding the scope of the executive power of the Commonwealth to note that the common law on which I rely is the common law of Australia, the content and development of which takes account of, and must be consistent with, Australia’s constitutional context (see, eg, Lange v ABC (1997)).

Following the exposition of non-statutory executive power in Chapter 2, the book then works through each element of judicial review. Chapter 3 examines the requirements of jurisdiction, particularly federal jurisdiction, and establishes that there is, at the Commonwealth level and in every Australian state and mainland territory, a court with jurisdiction to conduct judicial review of non-statutory executive action, at least for jurisdictional error. It includes an explanation of how, by conceiving of jurisdictional error as any error that breaches the limits of a power (as opposed to being dependent on a statute conferring the power), the concept can be given meaning in a non-statutory context. It is to this analysis (as well as that in relation to the amenability to judicial review of non-statutory action) that I see the two forthcoming decisions of the Full Court of the Federal Court referred to by Robertson as potentially making a contribution. I’m hoping those cases will provide a vehicle by which the Court can proffer an authoritative view on the scope for jurisdictional error in deciding not to do something that did not have to be done. Depending on the subsection/paragraph of s 39B of the Judiciary Act 1903 (Cth) that was invoked in those cases and the remedies that were sought, the possibility of jurisdictional error in those circumstances could prove critical to the existence of the Court’s jurisdiction and, therefore, to the appellants’ success.

Chapter 4 discusses the justiciability, in the sense of amenability to judicial review, of non-statutory executive action. It commences with a discussion of the Australian conceptions of the separation of powers and goes on to discuss what the common law separation of powers means for justiciability of an exercise of each type of non-statutory executive power. Wherrett saw the analysis in the book as being essentially an application of the common law separation of powers, as indeed it is. It is the common law separation of powers that, it seems to me, dictates the relatively narrow compass within which judicial review occurs in Australian courts, even when the court is not limited to review for jurisdictional error. I’m grateful to Wherrett for his explication of the ‘efficiency’ v ‘liberty’ models of the separation of powers and suggest that, in Australia, the common law separation of powers can be seen in the case law to operate more in the ‘efficiency model’ vein. Where an ‘efficiency model’ of the separation of powers needs to be on guard is where the executive, through the legislature that it is likely to control, takes steps to remove or shield a case from the institutional competence of the court by, for example, denying it information it might otherwise have, or through legislative provisions such as ‘no invalidity’ clauses, or ‘no consideration’ clauses of the kind in question in Jabbour and the forthcoming Full Federal Court cases to which Robertson referred. Such measures, being statutory, are beyond the scope of my book but they do raise the questions about the extent of the limits on legislative power to remove or limit the court’s institutional competence to assess the legality of executive action (à la, eg, Graham (2017)). In this regard, in Australia at least, an ‘efficiency model’ of the separation of powers will be tempered by the constitutional requirement that a Supreme Court of a state/the High Court be able to determine and enforce the limits of executive power, and the correlative limitation on legislative power to remove a court’s competence to perform that task (see, eg, Graham (2017) at [64]-[66]).

It is in Chapter 4 that I consider the amenability to judicial review of exercises of the non-prerogative capacities, such as entry into contracts or expenditure decisions. I there indicate that such capacities, being shared with the government’s subjects, can be understood as ‘private powers’, a label that Saunders rejects in that context. Indeed, the use of public funds to undertake what might be seen as ‘private’ functions (such as the hiring of contractors to clean offices or prepare meals) muddies the waters somewhat. But the public funding aspects of those decisions are, it seems to me, accountable in a different way – through procurement policies and the like to the Auditor-General and similar bodies. Those decisions are, in my view, different to the decisions to make grants to sporting bodies etc, which are expenditure decisions for (ostensibly) public purposes. These decisions are, since Williams[No 1] (2012), required to be supported by legislation (at least at the Commonwealth level, but also, I argue in the book, likely at the state level). The accountability issue then becomes about the high-level nature of the legislation and the accountability mechanisms required in respect of spending that falls within a very broad statutory power. This brings us back to the well-known administrative law mechanisms available to scrutinise the legality of such decisions, and the sufficiency of non-judicial mechanisms to monitor their merits.

Chapter 5 takes that justiciability discussion further with an examination of statutory initiatives in respect of non-statutory executive power, and what those initiatives mean for amenability to judicial review. The initiatives include statutory alternatives to the prerogative of mercy (of the kind examined in Holzinger (2020) and Ogawa (2020)), ‘non-statutory’ inquiries of the kind at issue in Jabbour and the other Full Federal Court cases discussed by Robertson, and statutory judicial review procedures.

The book then turns to grounds of judicial review. Chapter 6 establishes a juridical basis for imposing limitations on the exercise of non-statutory executive power, in the context of the High Court’s focus on parliamentary sovereignty and common law principles of statutory interpretation as the basis for the limitations that it is the judiciary’s role to enforce. Chapter 7 explores how content can be given to the common law grounds of judicial review in the non-statutory context and examines how each one could, or could not, work in practice. Chapter 8 tackles judicial review remedies and whether their requirements at common law preclude, or at least greatly minimise, their availability in respect of non-statutory action, particularly action to refuse a payment to which a person has no legal entitlement.

Conclusions are drawn in Chapter 9, where, as the commentators note, I observe that, although there remain non-statutory actions in respect of which judicial review will not yield a remedy, such is consistent with the prevailing limited approach to judicial power in Australia and its reliance on the common law separation of powers. As Wherrett notes, my conclusion leaves wide open for future research and discussion the normative question of whether such an approach to judicial power is desirable and whether it is unrealistically reliant on a functioning system of political accountability.

My aim was to collect the authorities and conduct the analysis of Australian judicial review principles required to provide a foundation for arguments as to whether or not a particular non-statutory action is amenable to judicial review, on what grounds, and to what end. The book won’t provide the answer in every, or perhaps in any, case. But if it has done the ‘background work’ required to enable judges and practitioners to engage meaningfully with cases of this kind and provided the doctrinal foundation for discussions of whether the ‘level’ of judicial review available for particular kinds of non-statutory executive action is sufficient, it will, I think, have made a useful contribution to the development of the law. I’m gratified that the contributors to this forum appear to think that it has done so.

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Amanda Sapienza is presently a Senior Solicitor in the Constitutional and Administrative Law team at the Crown Solicitor’s Office (NSW). The book and this piece were written in a personal capacity and neither necessarily reflects the views of the Crown Solicitor or the NSW government. In 2022, Amanda will join the NSW Bar.

Suggested citation: Amanda Sapienza, ‘Book forum: Amanda Sapienza’ on AUSPUBLAW (27 October 2021) <https://auspublaw.org/blog/2021/10/book-forum-amanda-sapienza/>