CONSTITUTIONAL FREEDOMS AND STATUTORY EXECUTIVE POWERS.

• Date: 01 August 2022
• Author: Boughey, Janina,Carter, Anne
• Published date: 01 August 2022
• Author: Boughey, Janina

CONTENTS I Introduction II The High Court's Legislation-Centric Approach A The Early Cases: Limits on Legislative and Executive Powers B The Court's Legislation-Centric Approach: Recent Cases III A Critique of the Legislation-Centric Approach A The Constitutional Freedoms Do Constrain Statutory Executive Power B Judicial Review of Administrative Action Does Not Turn Legal Limits into Rights C The Bifurcation of Administrative and Constitutional Law D Practical Implications and Challenges IV Approaches in Canada and New Zealand A Focusing on the 'Prescribed by Law' Requirement B Relying on Existing Administrative Law Grounds and Ignoring Rights C Structured Proportionality Testing of Discretionary Decisions D Incorporating Rights into Reasonableness Review V Conclusion I INTRODUCTION

In a series of recent judgments, the High Court has taken the position that constitutional freedoms--specifically the implied freedom of political communication and the s 92 freedom of interstate trade, commerce and intercourse--operate as direct limits on the scope of legislative power only, and do not directly constrain the exercise of statutory executive powers. (1) Under this approach (which we will call a 'legislation-centric approach'), when a statutory discretion has been exercised in a manner that limits a constitutional freedom, the Court will review the statutory provision which confers discretion for constitutional validity. The majority prefers a structured proportionality test to do so. (2) There is no separate or further inquiry as to whether the limits the decision-maker chose to place on constitutional freedoms in the particular case exceeded these constitutional limits.

In this article, we analyse the rationales for, and possible implications of, this legislation-centric approach. We argue that the approach is unclear and will not always be workable, sufficient or justified. In Part II, we examine the line of cases in which the approach has developed, setting out the Court's explanations for it and highlighting several key unresolved and disputed questions for the scope and review of the exercise of statutory executive powers. In Part III, we critique the legislation-centric approach on four bases. First, it is inconsistent with other constitutional principles and precedent. Secondly, the main rationale for the approach does not hold up to scrutiny: reviewing an administrative decision on the ground that it unlawfully infringes a constitutional freedom does not transform the freedom into an individual right. Thirdly, it bifurcates the substance of (and not just the process of applying for) judicial review of legislation and administrative action. Fourthly, we argue that, while a legislation-centric approach may work in many situations, review of the statute should not always be the end of the constitutional inquiry as it is not well suited to dealing with the full variety of statutory discretionary powers. In particular, where executive discretions are very broad, a legislation-centric approach can either overly constrain executive power or inadequately protect constitutional freedoms.

In the final Part we look at how courts might approach review of administrative decisions alleged to have infringed a constitutional freedom. We do this by examining the solutions developed in Canada and New Zealand. While, in Australia, the High Court has repeatedly emphasised that neither the implied freedom nor s 92 confers individual rights, (3) in Part IV we show that the issues confronting Canadian and New Zealand courts in the rights context are the same as those which currently confront the High Court. We argue that some of the methods adopted in those jurisdictions can offer solutions which are consistent with Australia's existing constitutional and administrative law frameworks.

II THE HIGH COURT'S LEGISLATION-CENTRIC APPROACH

A The Early Cases: Limits on Legislative and Executive Powers

The origins of the legislation-centric approach are found in the Court's jurisprudence on s 92 of the Constitution. Section 92 relevantly provides that 'trade, commerce, and intercourse among the States ... shall be absolutely free' The section makes no explicit reference to whom it prohibits from restricting free trade, commerce and intercourse. It is not expressed as a limit on the powers of only the states, or only the Commonwealth--nor on only legislative or only executive power. As Brennan J observed in Miller v TCN Channel Nine Pty Ltd ('Miller'), s 92

does not in terms withdraw legislative or administrative power from the Commonwealth or any State, that section invalidates the operation of a law or an administrative action to the extent to which it would prohibit, restrict or burden an activity or transaction within the scope of the protection. (4) From early on, s 92 has consistently been described as a limit on the exercise of both legislative and executive power. In 1935, Evatt and McTiernan JJ explained that the provision 'necessarily binds all parties and authorities within the Commonwealth.' (5) In the landmark case of Cole v Whitfield ('Cole'), a unanimous Court described its task as determining whether 'particular legislative or executive measures constitute discriminatory interference with interstate trade'. (6) Indeed, the particular act of government being challenged in Cole was one of the executive branch: the making of delegated legislation. (7)

Cole marked a 'revolution' in s 92 jurisprudence, and turned it from the most litigated section of the Constitution to a far less problematic one. (8) But prior to Cole, the High Court had considered on a number of occasions how s 92 affected the scope of administrative discretions. As James Stellios has explained, however, these cases were decided in a quite different legal context to the one we inhabit now. (9) Prior to the expansion of judicial review and the administrative law reforms of the 1970s, administrative law was 'unsophisticated]' and 'presented real challenges for keeping discretionary decision-making within constitutional limits'. (10) Thus, the Court took the approach of reviewing the legislation itself and invalidating provisions which conferred broad discretionary powers that might be exercised in a manner inconsistent with s 92.

In the late 1970s and the 1980s, the expansion of administrative law's 'grounds' and remedies 'began to ease the Court's concerns'. (11) In a series of cases, judges indicated that if a discretionary power were sufficiently constrained such that 'its exercise [could not] be obnoxious to the freedom guaranteed by s 92', the legislative provisions would be valid. (12) However, the judgments were not clear as to whether express limits were required, or whether implications could be read into the statute. In the most substantial treatment of the issue prior to the recent cases, Brennan J explained in his dissent in Miller that a wide discretion could

be destructive of the validity of the scheme only if the exercise of the discretion conferred by the statute [could not] be restrained by judicial review so that its exercise [was] within constitutional power. (13) He said:

[A] discretion must be exercised by the repository of a power in accordance with any applicable law, including s 92, and, in the absence of a contrary indication, 'wide general words conferring executive and administrative powers should be read as subject to s 92' ... If judicial review were not available to ensure that the discretion [was] confined within constitutional limits, an exercise of the power outside those limits could not be restrained. In effect, the power would be wider than the Constitution could support ... (14) In the context of the power under consideration--the discretion to grant a licence under the Wireless Telegraphy Act 1905 (Cth)--Brennan J noted that judicial review was available pursuant to s 75(v) of the Constitution or under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act'). (15) This meant:

The discretion [was] effectively confined so that an attempt to exercise the discretion inconsistently with s 92 [was] not only outside the constitutional power--it [was] equally outside statutory power and judicial review [was] available to restrain any attempt to exercise the discretion in a manner obnoxious to the freedom guaranteed by s 92. (16) It is clear from these passages that Brennan J saw s 92 as a constraint on the scope of the discretion. And he saw judicial review of administrative action (17) as providing the proper process through which a person affected by the exercise of discretion in breach of that constraint could seek remedies from a court. (18) However, contrary to the High Court's current trajectory (which we explore below), this does not mean that s 92 is relevant only in constitutional proceedings challenging the statutory provisions conferring discretion.

Similarly, the early cases which established the constitutional implication of free communication about political matters referred to that freedom as a limit on both legislative and executive power. For example, in Theophanous v The Herald & Weekly Times Ltd, the joint judgment of Mason CJ, Toohey and Gaudron JJ, and Brennan J's separate judgment, both stated that 'the implied freedom is a restriction on legislative and executive power'. (19) In Lange v Australian Broadcasting Corporation ('Lange'), the unanimous Court said that ss 7 and 24 of the Constitution 'preclude the curtailment of the protected freedom by the exercise of legislative or executive power. (20) Similar statements can be found throughout the Court's implied freedom jurisprudence. In McCloy v New South Wales ('McCloy'), for instance, the Court confirmed that the implied freedom operates as a limit on legislative and executive power. (21) Justice Gageler was even more definitive, noting that there was an 'ever-present' risk that an informed electoral choice would be...