Book forum: Jackson Wherrett

Jackson Wherrett provides the third post in our book forum on Amanda Sapienza’s Judicial Review of Non-Statutory Executive Action. To see all posts, please click here.

Jackson Wherrett

27.10.2021

On one level, Dr Amanda Sapienza’s Judicial Review of Non-Statutory Executive Action is a novel examination of an under-explored area of administrative law. At the same time, it joins a very long line of scholarship that considers the principle of the separation of powers. More particularly, it draws on the vast literature on the common law separation of powers to provide an account of when courts can review the exercise of non-statutory executive power, and when they cannot.

Dr Sapienza characterises the common law separation of powers as a principle that provides that ‘the powers of each branch are to be exercised conformably with the institutional competence that the common law assigns to each branch’ (p 60). In addition, ‘each branch will respect the institutional competence of the other branches … by not trespassing on or interfering with their functions’. She distinguishes this principle from the separation of powers mandated by the Australian Constitution (eg the separation of judicial power from executive and legislative power at the Commonwealth level).

Although she does not use this term, this characterisation of the common law principle is consistent with what some refer to as the ‘efficiency model’ of the separation of powers. Under that model, the purpose of the separation of powers is to allocate the powers of government to the body best suited to exercise them. It is often contrasted with the ‘liberty model’, which identifies the purpose of the separation of powers as being the protection of liberty by making State action more difficult (see, eg, Barendt, ‘Separation of Powers and Constitutional Government’ [1995] Public Law 599).

The liberty model is the popular understanding of the separation of powers, there being a rhetorical force to calls for a brake on the State. However, for the reasons set out more fully by Professor Barber in Ch 3 of The Principles of Constitutionalism (2018), the efficiency model is a more complete account of the separation of powers. It is the efficiency model, not the liberty model, that explains why certain powers are characterised as legislative, executive or judicial, and why those powers should (generally speaking) be exercised by their corresponding branch of government.

For example, in our system of government, courts are given the power to resolve particular legal disputes brought to them by litigants because they are institutionally equipped to perform that role. The judge, an expert in the law, receives submissions from the disputing parties and provides an authoritative resolution of the legal issues in the case.

However, there are also institutional constraints on courts, meaning that there are legal disputes which they cannot resolve. For example, a court may be unable to decide a case without the benefit of certain information which cannot be provided to it (eg because of national security concerns). In those cases, according to the efficiency model, the subject matter of the dispute is the province of another branch of government.

The efficiency model assists in understanding why identifying when courts can and cannot review the exercise of non-statutory executive power is necessarily nuanced. It is not the case that courts are always either ill-equipped or well-equipped to review those exercises of power. Rather, courts will be well-equipped to perform that review role sometimes.

The difficult question, then, is when are courts able to review the exercise of non-statutory executive power? Consistently with the concerns of the efficiency model, the question is whether the application for review requires ‘an extension of the court’s true function into a domain that does not belong to it’ (Re Ditford (1988) 19 FCR 347 at 370 (Gummow J)). The growing case law on the reviewability of non-statutory executive power is, in essence, a search for the court’s ‘true function’.

The conclusion of Dr Sapienza’s book is that, on the current state of law, the scope for judicial review of non-statutory executive action is limited. She explains that, in many cases, a court will conclude that it has no jurisdiction, or the matter is non-justiciable, because the exercise of power sought to be challenged is not limited by judicially-enforceable standards (p 193). In those cases, the court decides that it does not have the institutional competence to perform the review role requested by the applicant.

The scope for disagreement about the appropriate role of courts in this context was well-illustrated by the UK Supreme Court’s recent decision in R (Miller) v Prime Minister [2020] AC 373. In that case, Ms Miller challenged the lawfulness of a decision to prorogue Parliament for a five-week period. The UK Government argued that the matter was non-justiciable because there were ‘no judicial or manageable standards by reference to which the Court could review or control an exercise of the prerogative of the present kind’. The decision was ‘inherently political in nature’.

The Supreme Court disagreed, holding unanimously that a decision to prorogue Parliament would be unlawful where it would frustrate or prevent the ability of the Parliament to carry out its constitutional functions ‘without reasonable justification’ (at [50]). Applying that test, the Court concluded that the decision was unlawful because the UK Government did not provide ‘any reason at all – let alone a good reason’ for the prorogation (at [61]). The Court did not need to consider how it would assess the ‘reasonableness’ of any justification had one been given.

In the wake of Miller, it seems likely that – in the event that a decision to prorogue the Commonwealth Parliament were challenged in the High Court of Australia – the Government would provide some justification for its decision to the Court. In that event, it is not clear whether, and if so how, the Court would assess the lawfulness of the decision having regard to the justification proffered. What is clear is that any review role that it assumes would need to be consistent with the common law separation of powers, taking into account the relative institutional competence of each branch of government.

Even if the High Court never needs to consider this particular question, it is likely that Australian courts will be confronted with challenges to non-statutory executive power more regularly in the future. In a footnote in her conclusion, Dr Sapienza leaves open a tantalising question: ‘This book leaves for another forum the normative question of whether an expanded role for the court is desirable’ (p 193).

The analysis in Dr Sapienza’s book setting out why the scope for judicial review of non-statutory executive action is currently limited suggests that any expansion is likely to be modest. As she lucidly explains, the limited role of courts in this context reflects an allocation of functions in terms of institutional competence and expertise that seem appropriately calibrated to those competencies and expertise.

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Jackson Wherrett is a barrister at Eleven Wentworth Chambers in Sydney.

Suggested citation: Jackson Wherrett, ‘Book forum: Jackson Wherrett’ on AUSPUBLAW (27 October 2021) <https://auspublaw.org/blog/2021/10/book-forum-jackson-wherrett/>