Tang (2005) 221 CLR 99, 133 [100] (citations omitted). 9 Ibid. His Honour's respect for ADJR was not new. He said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, 94 [157] that the Act was 'overwhelmingly beneficial', although he did have one complaint, which was that he thought that ADJR's codification of the grounds of review might have 'retarded' (at 94 [157]) or 'arrested' (at 97 [166]) the common law's development. The author disagrees with that complaint. See Aronson, above n 6. 10 Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1, 22-3 [67]-[68]. His Honour thought the term might retain some value, as indicating an objective judicial assessment of the content of procedural fairness. Federal Law Review Volume 35 ____________________________________________________________________________________ overtly or via natural justice principles. 11 The natural justice consequences which Australian courts give to soft law are strictly procedural, so that soft law can be 'broken' if procedural unfairness is avoided (usually by giving prior warning). 12 England's case law has been handling soft law issues for over 40 years now. 13 Perhaps the greatest accelerant to their case law was the overthrow of their once-total prohibition against estoppel in public law. 14 Decisions under the soft law of public authorities have been judicially reviewed on a number of grounds. These include procedural unfairness, error of law or misinterpretation of the rules, 15 irrationality, abuse of power, and (very occasionally) substantive unfairness. The soft law decisions of private bodies exercising large disciplinary powers are also subject to judicial supervision in England on the same grounds, although procedurally that exercise is not called 'judicial review', 16 because the soft law is given a somewhat fictional contractual status. Speaking very broadly, the critical issue for Australia concerns judicial review's adaptability to the changing forms of public power. This article would not advocate following all of the English developments. Our courts should nevertheless recognise that public power is increasingly exercised from places within the private sector, by non-government bodies, and according to rules found in management manuals rather than statute books. If judicial review is about the restraint of public power, it will need to confront these shifts in who exercises public power, and in the rules by which they exercise it. PART II-LAM The issues in Lam are too well known to need more than a very brief sketch. Whilst serving a lengthy prison sentence for heroin trafficking, Mr Lam was officially warned that he might be deported because of his undoubtedly 'bad character'. He was given a chance to explain why he should not be deported, and he presented a comprehensive submission. This included material from the woman caring for his two children. The Department had told him that they wanted to contact the carer, but ...
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