‘Australian Exceptionalism’ in Judicial Review

Abstract

The phrase 'Australian exceptionalism' is most often used these days in relation to Australia's stand with the United States in the war against terror and the Australian government's attitude to international human rights law. 1 Australia is exceptional also in being now the only English-speaking democracy without a judicially enforceable bill of rights at the federal level. 2 Although not unrelated, here I want to explore whether the part of Australian public law that deals with judicial review of administrative action is also 'exceptional'. 3 I will identify the features that are commonly said to set Australia apart from other common law jurisdictions and justify Australia taking a different path in the elaboration of the principles of judicial review of administrative action. _____________________________________________________________________________________

Moving Beyond the Common Law Objection to Structured Proportionality

“…101 As Taggart has observed, 'many in Australia seem fearful of it and think it foreign to the common law tradition'. 102 This can be seen in the constitutional context where McHugh J suggested that Deane and Toohey JJ's reference to the freedom of political communication as a doctrine underlying the Constitution was an illegitimate form of top-down reasoning. 103 According to McHugh J, in an approach that was later endorsed by a unanimous Court in Lange, any implications must be firmly grounded in the text and structure of the Constitution.…”

Between the Devil and the Deep Blue Sea : Administrative Law in an Age of Rights

“…64 The decision has been criticised by commentators on a number of grounds. 65 For present purposes, the following features of the decision are worth noting: a reiteration of the type of approach discarded in Datafin but followed in NEAT Trading; a narrow construction of the statute against the interests of the complainant; and the addition of requirement that a right sourced in 'hard' law (general law or statute) must be affected before judicial review may be sought -reminiscent, as Taggart points out, 66 of the pre-Ridge v Baldwin requirement that a decision-maker had to be acting judicially or quasi-judicially before natural justice could lie. 67 When we turn to examine the English cases, we will see that there has been a sharp increase in the scope of 'substantive' judicial review.…”