Private Bodies, Public Power and Soft Law in the High Court

Abstract

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 ...

‘Australian Exceptionalism’ in Judicial Review

“…In his insightful and highly critical essay on (inter alia) Tang, Mark Aronson described the 'outcome' or 'result' as 'entirely predictable…because if ADJR's restriction to statutory decisionmaking is to mean anything, then the odds are that it excludes coverage of government's commercial powers so far as these are truly consensual.' 131 Perhaps commercialisation of universities has proceeded so far in Australia that readers here were not shocked by the inference that a public university's relationship with a doctoral student is a 'commercial' one or with the equation of a university to government (so much for academic freedom!). But if one puts all that to one side, I can understand (even if I do not agree with) the proposition that contracting by government should not be colonised by judicial review if -and it is a crucial ifthere are adequate protections and remedies available as a matter of private law.…”

“…I am aware that Mark Aronson has argued, contrary to what many other commentators and I have just said, that this 'right affection' requirement was not intended to be taken literally and that it will not apply to statutory decision-making but only in non-statutory decision-making settings. 116 He may be right: but I am not so sure -at any rate, why should it be so unclear? But if I am right then the High Court's 'superadding' to the ADJR Act a requirement that rights be affected under the State equivalent to the ADJR Act is reminiscent of another much earlier 'wrong turn' in the twentieth century history of AngloAustralasian administrative law.…”

“…122 This takes the 'constitutionalisation' of Australian administrative law to a new level: and is an example of 'Australian exceptionalism' at work.…”

“…I am aware that Mark Aronson has argued, contrary to what many other commentators and I have just said, that this 'right affection' requirement was not intended to be taken literally and that it will not apply to statutory decision-making but only in non-statutory decision-making settings. 116 He may be right: but I am not so sure -at any rate, why should it be so unclear?…”

The ‘Fatal Conundrum’ of ‘No-Consideration’ Clauses after Plaintiff M61

“…This liberal approach stands in contrast to Griffith University v Tang, 115 where Gummow, Callinan and Heydon JJ appeared to suggest that declaratory relief is limited to situations in which legal rights and obligations, but not 'interests', are at stake. 116 In that case, their Honours relied on the constitutional requirement of a 'matter' to support their conclusion that the University's decision was not 'made … under an enactment'. 117 Ms Tang's relationship with the University was merely 'consensual' and did not involve any legal rights or obligations.…”