Judicial Review of Non-Statutory Executive Action: Australia and the United Kingdom

• Author: Amanda Sapienza
• Position: PhD Candidate, University of Sydney, Sydney Law School
• Pages: 67-102

JUDICIAL REVIEW OF NON-STATUTORY

EXECUTIVE ACTION: AUSTRALIA AND THE

UNITED KINGDOM REUNITED?

Amanda Sapienza*

Unlike that of the United Kingdom, the Australian law on judicial review of

exercises of non-statutory executive power is undeveloped. This article proposes a

constitutional basis for judicial review of such power in Australia. It then argues

that, despite their constitutional differences, there remain principles of common

law constitutionalism that are applicable in both the United Kingdom and

Australia that can provide guidance to Australian courts and lawyers as to the

content of limitations on non-statutory executive action.

I INTRODUCTION

!

The applicability of principles of judicial review to exercises of non-statutory

executive power is unclear in Australia. Whether a particular non-statutory

power exists (‘the constitutional question’) is accepted as reviewable. But the

High Court of Australia has never been required to decide whether the manner

of exercise of non-statutory powers (‘the administrative law question’) is

examinable by the courts. The Federal Court of Australia, as well as several

State Supreme Courts and Courts of Appeal, have determined that there is

nothing in the non-statutory source itself that shields non-statutory action

from judicial review in the administrative law sense.1 But they have done so

without any elaboration on the constitutional warrant for subjecting non-

statutory action to judicial review, or on the basis on which standards for lawful

government decision-making (being the rules that manifest as grounds of

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* PhD Candidate, University of Sydney, Sydney Law School. I am grateful for the financial assistance I

receive from an Australian Government Research Training Program Stipend Scholarship. Parts of this

article are based on a paper presented at the 2016 Public Law Conference, held at the University of

Cambridge from 12-14 September 2016. This article, and my broader research, also benefitted from

my attendance at the executive power workshop hosted by the Institute of Advanced Studies, The

University of Western Australia, on 7 April 2017. I thank the organisers of and participants at both

events for the excellent programs and fruitful discussions. Attendance at both events was made

possible by grants from the University of Sydney Postgraduate Research Support Scheme. For their

comments on earlier versions of this article, I thank Professor Margaret Allars (my supervisor), Dr

Dominique Dalla Pozza and fellow student Raymond Brazil. Any errors are my own.

1 See, eg, the cases cited at below n 61.

2 See, eg,

Youssef v Secretary of State for Foreign and Commonwealth Affairs

[2016] UKSC 3 (27

1 See, eg, the cases cited at below n 61.

68

University of Western Australia Law Review

Vol 43(2):67

judicial review, and hereafter referred to as ‘judicial review standards’) are to be

imposed.

Courts of the United Kingdom, on the other hand, including the House

of Lords and the Supreme Court, have long accepted that the manner of

exercise of non-statutory power is susceptible to judicial review and have

conducted such review in a number of cases.2 In these circumstances, one

might expect that the British cases would provide a fertile source of assistance

to Australian courts when they are called upon to conduct judicial review of

non-statutory action.

However, the administrative law jurisprudence of Australia and that of

the United Kingdom have been diverging since the later decades of the 20th

century. The High Court of Australia, in particular, has been very cautious

about transplanting English judicial review doctrines to Australian law, citing

the significant constitutional differences between the two jurisdictions. When

what is being reviewed is an exercise of executive power conferred by a statute,

this is not necessarily a problem as the common law of Australia is very well-

developed in that regard. However, when the executive action being reviewed

is non-statutory action, Australian courts may find themselves in a different

position.

This article demonstrates that, in the midst of seemingly intractable

differences between the law of judicial review in the United Kingdom and its

counterpart in Australia, there remain principles of common law

constitutionalism that are applicable in both jurisdictions and these principles

are capable of providing guidance to Australian courts and lawyers as to the

content of limitations on non-statutory executive action. Limitations on

executive action are usually derived from the language of the statute conferring

the power to act, but such an approach is obviously inadequate for the task in

respect of non-statutory action. The superior courts of the United Kingdom

have had many more occasions than Australian courts to examine non-

statutory executive action and establish its limits. This article explains how

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2 See, eg,

Youssef v Secretary of State for Foreign and Commonwealth Affairs

[2016] UKSC 3 (27

January 2016) (‘

Youssef

’);

R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs

[No 2]

[2009] 1 AC 453;

R v Ministry of Defence; Ex parte Smith

[1996] QB 517;

Council of Civil

Service Unions v Minister for the Civil Service

[1985] 1 AC 374 (‘

GCHQ case

’);

R v Criminal Injuries

Compensation Board; Ex parte Lain

[1967] 2 QB 864 (‘

Lain

’).

[2018]

Judicial Review of Non-Statutory Executive Action

69

legitimate regard can be had to British legal developments in this area when

considering judicial review of non-statutory executive action in Australia. It

demonstrates the ongoing utility of the principles used in the British cases,

despite differences that have appeared between the two jurisdictions in modern

times, so that guidance can be sought from them when Australian courts are

required to address these issues.

This article uses the terminology of ‘executive action’ when discussing

action by the executive branch and judicial review of it, rather than

‘administrative action’. This is simply because the word ‘administrative’ has

connotations of administration of a statutory scheme. And, indeed, most

judicial review is of this kind of ‘administrative’ action. However, the focus of

this article is on the exercise, by members of the executive branch of

government, of power that has not been conferred by statute, or of ‘non-

statutory executive power’. The descriptor ‘executive’ as opposed to

‘administrative’ captures more fully the action that I am exploring.

What is meant in this article by ‘non-statutory executive action’? For

the purposes of United Kingdom analysis, it refers to an exercise of prerogative

power3 and other common law powers of the Crown. In Australian terms, it is

a reference to an exercise of the power of the executive branch of government

that is not conferred by, or referable or incidental to, a statute. At the

Commonwealth level, it is that part of the Commonwealth government’s

executive power that, to use the terms of s 61 of the

Commonwealth

Constitution

, ‘extends to the execution and maintenance of [the]

Constitution’.4 In relation to the Australian States, it refers to the inherent

power that State governments inherited by virtue of their colonial relationship

to the government of the United Kingdom, affected by State constitutions

(where applicable)5 and the

Commonwealth Constitution

. Non-statutory

executive power generally encompasses aspects of prerogative power that are

suitable to Australia’s constitutional context as a federal nation under a written

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3 In my analysis, I utilise the Blackstonian sense of the prerogative being only those powers that the

executive has by virtue of royal or sovereign authority and that are not shared by the sovereign’s

subjects: William Blackstone,

Commentaries on the Laws of England

(Garland Publishing, 1765)

vol 1, 232.

4

Commonwealth Constitution

s 61.

5 For example, the Constitution of Queensland makes explicit provision for the content of state

executive power:

Constitution of Queensland 2001

(Qld) s 51.