Janina Boughey

Among English-speaking common law jurisdictions Australia has been the most resistent to doctrines of deference in the administrative law context. It is often said that Australia’s High Court has rejected deference. In fact, a majority of the High Court has rejected Chevron deference, but only in obiter. Nevertheless, it is true that Australia has no ‘doctrine’ of deference, that Chevron deference specifically is generally thought to be inconsistent with the Australian conception of the separation of powers, and that the very mention of the word ‘deference’ seems to provoke the ire of some judges.

Narelle Bedford

Darren O’Donovan

The Final Report of the Robodebt Royal Commission was released on 7 July 2023, in a landmark moment for Australian public administration. The report makes searing findings against senior public servants and politicians. In this post I discuss how, in her report, Commissioner Catherine Holmes AC SC effectively inverts a generation of public service thinking about cabinet confidentiality and the duty to give frank and fearless advice. I argue that the Report’s final two recommendations – suggesting reform to cabinet confidentiality and record creation – are the lynchpins for successful public service reform after Robodebt.

Craig Lenehan

Scott Stephenson

Samuel Naylor

On 2 December 2022, the Full Federal Court unanimously dismissed an appeal brought by Santos NA Barossa Pty Ltd (Santos) against a decision of Bromberg J: Santos NA Barossa Pty Ltd v Tipakalippa. This set aside the decision of the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) to accept Santos’ Drilling EP. On appeal, all judges held that Santos and in turn NOPSEMA had failed to understand the correct meaning of the statutory language and the decision of the regulator was set aside.

In this case note, I discuss how the parties and, in turn, the Court in this case approached the issue of whether a decision maker had lawfully reached a state of ‘reasonable satisfaction’: a subjective jurisdictional fact, or precondition, to the acceptance of the Drilling EP prepared by Santos. I suggest that while the Full Court took an orthodox approach, the judgment at first instance illustrates the uncertainties which trouble this form of judicial review.