ADMINISTRATIVE LAW IN A CHANGING STATE
INTRODUCTION
The Hon Justice Michael Kirby AC CMG*
THE HONORAND
Mark Aronson was born in May 1946 just after the conclusion of
the great and terrible war that caused so much suffering, including for
his ancestral family in Europe. That war demonstrated for all time the
imperative need to impose checks upon the state, its leaders and
officials. Efficiency and even democratic popularity were not enough.
New and further restraints, including legal restraints, were essential to
safeguard freedom and justice.
Out of the ashes of the war came the energy to create new
international institutions.
From those institutions emerged the global
movement for peace and security, economic equality and respect for
fundamental human rights. Even amongst the victors in the war, who
had long been suspicious of checks other than electoral democracy and
(in some cases) natural law notions of fundamental rights, it came to be
recognised that new controls were essential and urgent if the human
*
Justice of the High Court of Australia.
One-time Chairman
Australian Law Reform Commission (1975-84).
Foundation
Member of the Administrative Review Council (1976-84).
2
species was to survive, the biosphere to be protected and human dignity
to be safeguarded. It was into this world, in Ballarat, Australia, that Mark
Aronson was born.
It was soon evident that the young Mark was blessed with large
intellectual talents. He took his B Juris degree from Monash University
in 1967 and two years later graduated LLB with First Class Honours. In
1970, he won the prestigious Supreme Court Prize in Victoria as the top
graduating law student in his university. His brilliant academic results
won him a Commonwealth overseas postgraduate scholarship.
He
opted for Oxford University. There he took the D Phil degree, studying
under the formidable Professor (later Sir) William Wade.
Initially, Mark Aronson's special interest was privative clauses. It
was rumoured that he was one of only three persons who fully
understood the mystery of the law about those parliamentary attempts to
oust the jurisdiction of the courts from the review of administrative
action. The others having died stopped caring, now he alone survives to
explain the riddle that is Justice Dixon's opinion in Hickman's Case1.
Returning to Australia from Oxford in 1973, Mark Aronson opted
for Sydney and the new University of New South Wales. He applied to
the Foundation Dean of Law, Professor Hal Wootten, and became one
1
(1945) 70 CLR 598.
See now Plaintiff S157/2002 v The
Commonwealth (2003) 211 CLR 476 at 499 [54] ff.
3
of a group of brilliant young academics recruited to establish Sydney's
second university law school.
Others in that intake included John
Basten (now a Judge of Appeal in New South Wales), Julian Disney,
Susan Armstrong and many future leaders of the academic discipline of
law in Australia.
In 1973, Hal Wootten recognised Mark Aronson's talents and
offered him tenure as a lecturer in law.
Once accepted, this post
afforded him the chance, together with Professor Harry Whitmore, to
build a centre of excellence in public and administrative law. He was
fortunate in his choice of scholarly mentor. Whitmore was later to serve
as Dean of the law school from 1973 to 19762. He exuded experience,
maturity and wisdom. Mark Aronson supplemented these fine qualities
with youthful energy, enthusiasm and brilliance.
Two years later, in February 1975, I was busily establishing the
Australian Law Reform Commission in Sydney. The Commission's first
project concerned reform of the procedures for the handling of
complaints against police3 and reform of the rules governing federal
officers engaged in criminal investigations4.
The Commissioner in
charge of the latter project was Mr Gareth Evans, later to be Federal
2
Marion Dixon, Thirty Up - The Story of the UNSW Law School 19712001, UNSW, 2001, 141.
3
ALRC 1, 1975.
4
ALRC 2, 1975 (Interim).
4
Attorney-General
and
Minister
for
Foreign
Affairs.
Another
Commissioner working with us was Mr F G Brennan QC, later to be a
Justice and Chief Justice of the High Court of Australia.
It was a
formidable team. It required researchers of great talent. Mark Aronson
accepted part-time secondment to the Commission where his work was
invaluable. A feature of the project on Criminal Investigation was the
ALRC's initiation of empirical research into what actually happened at
police stations and in police vans. To take law reform beyond legal texts
and judicial opinions was a step forward for Australia. Mark Aronson
contributed to this step. In turn, it left its imprint on him.
Within a few years Mark Aronson had published two major studies
that were to become the foundations of his academic life. In 1976 he
authored his text Litigation5. In 1978 came Review of Administrative
Action6, which ultimately gave way to the magnificent work Judicial
Review of Administrative Action7, for which he is justly famous. Each of
these books was published with co-authors. It does not diminish their
contributions to say that the idiosyncratic style of Mark Aronson's writing
is visible on most pages.
5
Butterworths, 1976 (1st ed), 1979 (2nd ed), 1982 (3rd ed), 1988 (4th
ed), 1995 (5th ed) 1998 (6th ed).
6
Law Book Co, 1978.
7
LBC Info Services (1st ed, 1996)), (2nd ed, 2000), 3rd ed, 2004),
(4th ed 2008 [forthcoming]).
5
Mark Aronson's life as a scholar continued to flourish. He was a
popular lecturer, devoted to his students. In 1975 he was promoted to
senior lecturer. In 1979 he became an Associate Professor. In 1993 he
was appointed Professor of Law. It was a golden path that was assured
to him from the moment of his arrival.
For almost three years after 1988, Mark Aronson worked as senior
policy adviser to the then Attorney-General of New South Wales, the
Hon John Dowd QC MP. During this time, on leave from the university,
he devoted himself to several tasks in the field of law reform. These
included a review of laws relating to transport accident compensation,
and criminal procedure.
He also renewed his association with the
ALRC, labouring on the legislation that ultimately emerged as the
Evidence Act 1995 (NSW).
The adoption of that law in New South
Wales stimulated its acceptance in other Australian State and Territory
jurisdictions. The prospect of a truly national evidence law in Australia
edged closer to reality. He also worked with the ALRC as a consultant
on its projects on the Trade Practices Act8 and on group proceedings in
federal jurisdiction9.
In his chosen field of administrative law, Mark Aronson was to
prove extremely lucky. His academic career coincided with astonishing
8
ALRC 68, Compliance with the Trade Practices Act (1994).
9
ALRC 46, Grouped Proceedings in the Federal Court (1998).
6
changes in the Australian federal laws that resulted in the establishment
of the Administrative Appeals Tribunal, the Administrative Review
Council, the office of the Commonwealth Ombudsman and the passage
of the Administrative Decisions (Judicial Review) Act 1977 (Cth), and the
Freedom of Information Act 1982 (Cth). He could not have known that
these developments would come to pass when he elected to study
privative causes at Oxford in 1969. Yet come they did.
Mark Aronson appeared with John Basten QC in an important
High Court case concerned with the Hickman principle: Re Minister of
Immigration and Multicultural Affairs; Ex parte Applicants S 134/200210.
His published works have been cited in many decisions of the High
Court in recent years.
The list reads like a catalogue of modern
Australian administrative law11. He is much loved by his colleagues and
10
(2002) 211 CLR 411.
11
Re Minister for Immigration and Multicultural Affairs; Ex parte
Epeabaka (2001) 206 CLR 128 at 148 [58] See also at 140 [37] fn
46; Ousley v The Queen (1997) 192 CLR 69 at 131 fn 270 (Aronson
and Dyer, Judicial Review of Administrative Action, (1996));
Abebe v Commonwealth (1999) 197 CLR 510 at 587 [223] fn 209
(Aronson and Dyer, Judicial Review of Administrative Action
(1996)); Re Refugee Review Tribunal; Ex parte Aala (2000) 204
CLR 82 at 129 [126] fn 175 (Aronson and Dyer, Judicial Review of
Administrative Action, 2nd ed (2000)); Minister for Immigration and
Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 116 [191
fn 158, 116 [192] fn 163, 117 [194] 169, 118 [195] fn 171, 123 [211]
fn 186 (Aronson and Dyer, Judicial Review of Administrative Action,
2nd ed (2000)); Minister for Immigration and Multicultural Affairs v
Yusuf (2001) 206 CLR 323 at 359 [110] fn 110 (Aronson and Dyer,
Judicial Review of Administrative Action, 2nd ed (2000)); Re
Minister for Immigration and Multicultural Affairs; Ex parte PT
(2001) 75 ALJR 808 at 813 [27] fn 15 (Aronson and Dyer, Judicial
Review of Administrative Action, 2nd ed (2000)); Re Minister for
Immigration and Multicultural Affairs; Ex parte Holland (2001) 185
Footnote continues
7
those who have worked with him, as I have done. In one chapter of this
volume Professor Robyn Creyke and John McMillan describe him as the
Prince Charming of Australia’s administrative law – a description I can
confirm. It is an indication of his high reputation that this book in his
honour has attracted so many distinguished contributors from three
continents.
THE CONTEXT
In his chapter12, Professor J M Beerman likens Mark Aronson's
influence upon administrative law to that enjoyed in the United States, in
an earlier generation, by Kenneth Culp Davis. There could be few more
worthy, or accurate, accolades.
This anthology celebrates Professor
ALR 504 at 509 [22] fn 8 (Aronson and Dyer, Judicial Review of
Administrative Action, 2nd ed (2000)); Re McBain; Ex parte
Australian Catholic Bishops Conference (2002) 209 CLR 372 at 440
[173] fn 221 (Aronson and Dyer, Judicial Review of Administrative
Action, 2nd ed (2000)); Minister for Immigration and Multicultural
Affairs v Rajamanikkam (2002) 210 CLR 222 at 250 [96] fn 60
(Aronson and Dyer, Judicial Review of Administrative Action, 2nd ed
(2000)); Goldsmith v Sandilands (2002) 76 ALJR 1024 at 1034-1035
[56] fn 57 and 58; 190 ALR 370 at 384-385 (Aronson and Hunter,
Litigation: Evidence and Procedure, 6th ed (1998)); (2003) 211 CLR
441 at 472 [90] fn 92 (Aronson and Dyer, Judicial Review of
Administrative Action, 2nd ed, (2000)); Griffith University v Tang
(2005) 221 CLR 99 at 133 [100] fn 133 (Aronson and Franklin,
Review of Administrative Action, (1987)), 146 [142] fn [214];
Ruddock v Taylor (2005) 79 ALJR 1534 at 1560 [160] fn 145; 221
ALR 32 at 67 (Aronson, Dyer and Groves, Judicial Review of
Administrative Action, 3rd ed (2004)); NAIS v Minister for
Immigration and Multicultural and Indigenous Affairs (2005) 80
ALJR 367 at 388 [96] fn 106; 223 ALR 171 at 194 (Aronson, Dyer
and Groves, Judicial Review of Administrative Action, 3rd ed
(2004)).
12
J M Beerman, Ch ….. p ….. [ms p 3].
8
Aronson's contributions and achievements.
It acknowledges his
influence in the discipline of administrative law that he has made his
own. It points to the significance of his opinions not only in Australia but
also in four other common law jurisdictions that have impinged on our
own progress (the United Kingdom, the United States of America,
Canada and New Zealand). And it explores current controversies that
point the way to the future. Isaac Newton once wrote that "If I've seen
further it is by standing on the shoulders of giants"13. Such has been
Mark Aronson's gift to administrative law.
He has seen further and
deeper than most others. We are his beneficiaries.
Fortunately, Mark Aronson's research and teaching continue.
Accordingly, this book describes a staging post in his life. The collection
affords a suitable moment to pause and take stock. To reflect upon the
honorand's life. And to seek to draw together a few themes from the
excellent essays that are collected here.
Administrative law generally, and judicial review of administrative
action in particular, are inherently fascinating topics.
concerned with the control of public power.
They are
How we exercise and
discipline the deployment of such power has been a constant theme in
Mark Aronson's life. It represents the golden thread, woven through all
of these essays.
13
Letter to Robert Hooke, 5 February 1675/6, with allusions to
Bernard of Chartres c 1130.
9
Because of the commonalities of the five inter-connected
jurisdictions represented in this work (and also their differences) the final
product is a fascinating study of the unifying idea that has engaged Mark
Aronson. As Anita Stuhmcke reminds the reader, that unifying idea has
been concerned with the desire for "… a legal system which addresses
the ideals of good government according to law"14.
Sharpening the
objective, Elizabeth Fisher suggests that a central concept that has
attracted Mark Aronson's attention from the start has been the
establishment of administrative law as an "important institutional
component in the attempt to achieve a just society"15. Unsurprisingly,
such a struggle has its roots deep in the shared history of the Englishspeaking peoples.
Peter Cane, with a typical flourish, starts his historical survey of
that law with the Norman Conquest of England of 106616. Chief Justice
James Spigelman detects several motive forces in early equitable
principles that can be traced back to the more flexible approach of
English Chancery judges, freed from undue common law rigidities17.
14
A Stuhmcke, Ch ….. p….. [ms 43] quoting Aronson et al, Judicial
Review of Administrative Action (3rd ed, 2004) at 1.
15
E Fisher, Ch ….. p …. [ms 43] citing Aronson et al, Judicial Review
of Administrative Action (3rd ed, 2004) at 8.
16
R Rawlings, Ch ….. p …..
17
J J Spigelman, Ch …. p …. [ms 5].
10
From the perspective of constitutional developments in the United
States, Jack Beerman reminds us of how profoundly the ideas of
Montesquieu (especially his doctrine of separation of powers) affected
the legal arrangements in that country. Peter Cane suggests that this
notion of power separation is probably the most potent constitutional
idea ever conceived18. Certainly, it has greatly affected administrative
law in Australia and the United States.
In Australia, federal administrative law can never wholly escape
the "gravitational pull" of constitutional arrangements - especially the
great importance of the constitutional writs for which s 75(v) of the
Australian Constitution provides19.
If anything, in recent years, the
significance and pre-eminence of those writs has increased so that they
are now seen as entrenched protections of the rule of law in the
Australian Commonwealth20.
In the United States, the purer (but still only partial) separation of
powers doctrine has led to different and distinctive developments.
Professor Alfred Aman explains the constant American anxiety to avoid
"democratic deficits"21. Jack Beerman recounts the Chevron22 doctrine
18
Cane, op cit p ….. [ms 9].
19
Spigelman, Ch …. p ….. [ms 5].
20
Plaintiff S 157/2002 v The Commonwealth (2003) 211 CLR 476 at
513 [103].
21
A Aman, Ch …. p ….. [ms 1].
11
of "deference" to a governmental agency's "reasonable interpretation"23
of its powers.
Thomas Poole, surveying the horizon from Britain,
reminds us that Chevron has been rejected in Australia24. Ultimately,
that rejection can probably be explained by rule of law notions to be
found in the way that the Australian Constitution has been interpreted as
a consequence of the ready availability of the federal constitutional writs,
with the immediate access that they potentially afford to a challenger in
the highest court.
These are fascinating, varied and important subjects. But there is
more besides. Sir Jack Beatson describes the interpretative principle in
the Human Rights Act 1998 of the United Kingdom, s 3. That innovative
statute points the way to the future because two jurisdictions of the
Australian Commonwealth (the Australian Capital Territory and the State
of Victoria) have now adopted general human rights legislation that
draws inspiration from the enactment of such a statute in the United
Kingdom.
David Mullan takes us through the way in which the general
provisions for fundamental rights in Canada and in New Zealand drive
22
After Chevron USA Inc v Natural Resources Defense Council Inc
467 US 837 (1984).
23
Beerman, op cit, p …. [ms 24].
24
T Poole, Ch ….. p …. [ms 17] citing City of Enfield v Development
Assessment Commission (1999) 199 CLR 135 at 151-152 [41]-[42].
12
the operation of judicial review of administrative action, given the new
legitimacy of a "rights-oriented" approach in each country25. When the
United Kingdom, so long resistant to natural and civil law notions of
fundamental rights, took the step of enshrining such rights in its laws, it
is unsurprising that derivative legal cultures, such as those of Canada,
New Zealand and Australia, should start following suit.
However, whereas New Zealand (like Canada and South Africa)
embraced the move to legally protected fundamental rights some time
back, the idea still remains controversial in Australia. To some extent
this is because of concerns over a feared "democratic deficit", about
which Professor Aman has written so eloquently26.
But in Australia,
federal constitutional questions have also been raised concerning the
permissibility of copying the powers allocated to courts under the United
Kingdom legislation27.
Could such legislation be enacted federally?
Could it give rise to a constitutional "matter", apt for disposition in a
federal court such as the High Court? Whether the doubts expressed
over these questions represent genuine legal doubts or just the latest
instance of excessive Australian formalism over the judicial role28 are
questions that have to be left to the future.
25
D J Mullan, Ch …… p ….. [ms 19].
26
A C Aman, Jr, The Democracy Deficit: Taming Globalisation
Through Law Reform (NYU Press, NY, 2004).
27
Attorney-General (Cth) v Alinta Ltd (2008) 82 ALJR 382 at 389-391
[22]-[33]; cf 396-397 [65]-[68].
28
Poole, op cit, p …. [ms 18].
13
There are ground-breaking studies here as befits a collection of
essays to honour a scholar lauded by Peter Cane for his oftdemonstrated capacity "to throw new light on familiar topics"29. Thus, by
standing back from the history of administrative law in Britain, the United
States and Australia, Professor Cane surveys the largest themes and
seeks to explain the different directions that administrative law has taken
in each of those jurisdictions.
Elizabeth Fisher, remembering Mark Aronson's instruction that, in
administrative law, the "devil is nearly always in the detail, and the
legislative detail in particular"30, tackles the much neglected topic of
"merits review" and the extent to which that topic is truly a study suitable
for lawyers or just a wilderness of individual cases depending entirely on
their own evidence.
Carol Harlow, Mark Aronson’s close collaborator from the London
School of Economics, explores the role of tort law as a means of
affording effective sanctions for negligent, oppressive or unlawful
conduct by persons in public office. She reminds us, as the late John
Fleming often did, that tort law is not only about compensation but is
also concerned to stimulate appropriate conduct out of a desire of
29
Cane, op cit, p …. [ms 39].
30
Fisher, Ch ….. p ….. [ms 43].
14
potential tortfeasors to avoid liability for damages verdicts. If her thesis
is right, that tort actions are commonly 'the embodiment of public
morality'31, her chapter poses the question whether tort law has a future
in reinforcing or complimenting administrative law32. The High Court of
Australia has expressly recognised that, in certain respects (for example
in the tort of misfeasance in public office), an affinity has long existed
between tort law and public law33.
Linda Pearson's essay on fact-finding in administrative tribunals
explores a new, cutting edge issue. I have never been able to accept
that a completely irrational exercise of fact-finding by a public decisionmaker is immune from judicial correction, even where such correction is
limited to errors of law. However that was the view that prevailed in the
Court of Appeal of New South Wales in Azzoppardi v Tasman UEB
Industries Pty Ltd34. Later examinations of this topic have, I believe,
justified my dissenting opinion in that case. Professor Enid Campbell's
31
C Harlow, Ch ….. [last page] citing A Linden, "Reconsidering Tort
Law as Ombudsman" in Steel and Rodgers-Magnet (eds) Issues in
Tort Law (Toronto, Carswell, 1983), 477.
32
cf New South Wales v Fahey [2007] 81 ALJR 1021 at 1055-6 [169][173]; Roads and Traffic Authority (NSW) v Dederer (2007) 81 ALJR
1773 at 1802-1803 [148]-[154]; Roads and Traffic Authority (NSW) v
Royal [2008] HCA 19 at [114]; cf Neindorf v Junkovic (2005) 80
ALJR 341 at [84]-[85].
33
Commissioner of Australian Federal Police v Propend Finance Pty
Ltd (1997) 188 CLR 501 at 558; Re Refugee Review Tribunal; Ex
parte Aala (2000) 204 CLR 82 at 106-107 [53].
34
L Pearson, Ch ….. p …..[ms 9] citing Azzopardi v Tasman UEB
Industries Ltd (1985) 4 NSWLR 157 per Glass JA.
15
proposed principle that official acts must reach "minimum standards of
rationality" expresses the point very well35. In effect, such a principle
amounts to nothing more than the application to administrative factfinding of the equitable principle that persons possessed of relevant
power (such as public officials) cannot lawfully exercise the power "for
personal gain or motive, or irrationally, or for purposes which exceed the
reasons for [its] conferral"36.
The mass of migration decisions that has descended upon
officials, tribunals and courts in Australia in recent years has obliged us
to recognise the critical importance for true administrative justice of
factual determinations.
As Elizabeth Fisher points out, this is what
ultimately persuaded the Kerr Committee in Australia to move towards
solutions involving merits review37. There had been precedents for that
type of review in previous Australian federal taxation tribunals. But when
the Administrative Appeals Tribunal commenced operation38, it became
a model that, at once, inspired copies and precipitated alternatives, most
especially in the contentious and politically sensitive area of refugee
decisions.
35
Cited Pearson, op cit, p ….. [ms 25] quoting E Campbell, "Principles
of Evidence and Administrative Tribunals" in E Campbell and L
Waller (eds), Well and Truly Tried: Essays on Evidence (Sydney,
LBC, 1982), 36 at 87.
36
Aronson et al, Judicial Review of Administrative Action (3rd ed,
2004), 85 cited in Spigelman, op cit, p …. [ms 1].
37
Fisher, op cit, p …. [ms 6].
38
Administrative Appeals Tribunal Act 1976 (Cth).
16
Several other themes run through these essays. They include
contributions dealing with the impact of human rights law upon the
principles governing contemporary administrative decisions39; the effect
of privatisation and out-sourcing on administrative law remedies40; the
potential of other legal remedies and institutions to respond to
administrative wrong-doing and to promote good administration41; the
role of political theory in underpinning what we do in this field of law42;
and the highly original chapter by Professors Robyn Creyke and John
McMillan on the difference between so-called "soft law" and "hard law" in
Australian administrative law43.
THE QUESTIONS
Every chapter of this book inspires many more questions:

Thomas Poole's sparkling chapter, having reviewed such recent
Australian decisions as Al-Kateb v Godwin44 and Thomas v
39
See Sir Jack Beatson, Ch …..; Mullan, Ch …; and Poole op cit.
40
See Chapters by Aman, Beerman, Rawlings op cit and M Taggart,
Ch ….
41
See Harlow, op cit, …. [last page].
42
Aman, op cit, p …. [ms p23] and Janet McLean, Ch ….., p ….
43
See R Creyke and J McMillan, Ch ……
44
Al-Kateb v Godwin (2004) 219 CLR 562. See Poole, op cit, p ….
[ms 18-19].
17
Mowbray45, concludes that the present High Court of Australia is
antagonistic both towards the language of human rights and the
contents of international law on that subject. He predicts that, one
day, Australia will "resume the path of judicial righteousness"46.
Yet how will this come about, given the entrenched cultural of
formalism in Australian law that he describes:
a culture long
preceding the current court and one that often begins in legal
education?

Jack Beerman's essay prompts the question whether the decision
of the United States Supreme Court in the Vermont Yankee Case,
that he describes47, was anything more than a reminder (common
in Mark Aronson's writing and in countless recent decisions of the
High Court of Australia) that the starting point for contemporary
court decisions is usually a close analysis of governing
legislation48;
45
Thomas v Mowbray (2007) 81 ALJR 1414.
46
Poole, op cit, p ….. [ms 32]; cf M Taggart, “‘Australian
Exceptionalism’ in Judicial Review”, (2008) 36 Federal Law Review
1.
47
Vermont Yankee Nuclear Power Corp v Natural Resources Defense
Council, Inc, 435 US 519 (1978).
48
Central Bayside General Practice Association Ltd v Commissioner
of State Revenue (Vic) (2006) 228 CLR 168 at 199 [84] fn 86 where
the authorities are collected.
18

James Spigelman's essay on the overlap between the core
doctrines of administrative law and notions developed in equity
courts for the fulfilment of fiduciary duties presents at least one
large and controversial question.
If, in the genius of our legal
system, equity can offer beneficial principles to administrative law
and to the common law, why is such borrowing confined to a oneway street?
Why is it impermissible to import into equity,
reciprocally, notions derived from the common law or, at least,
from common law techniques of analogous reasoning?49;

In the context of an examination of the entitlement of persons to
claim a denial of natural justice for errors caused by that person’s
agent50, Matthew Groves’ chapter on “The Surrogacy Principle
and Motherhood Statements in Administrative Law” asks how
conflicts between written and unwritten constitutional principles
may be solved. He ascribes Sir Owen Dixon’s adherence to strict
literalism to his desire to insulate the Australian High Court from
the abrasive conflict of politics. Yet is such isolation ever truly
possible in a final national court interpreting a written constitution?
And was Dixon being fully candid? Was there a gulf between
what he said was his philosophy and what he actually did in
49
cf Pilmer v Duke Group Ltd (In Liq) (2001) 207 CLR 165; Farah
Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.
50
Referring to SZFDE v Minister for Immigration and Citizenship
(2007) 81 ALJR 1401 contrasted with R v Home Secretary; Ex parte
Al-Mehdawi [1990] 1 AC 876.
19
greatest of conflicts – as in the Bank Nationalisation Case (1948)
or the Communist Party Case (1951)?

Sir Jack Beatson’s essay on the provisions of the United Kingdom
Human Rights Act and David Mullan's chapter dealing with the
Canadian Charter naturally present questions of whether similar
statutory provisions would be constitutionally acceptable, or likely
to be adopted, in an Australian judicial context.
Could the
Parliament in Australia tell a court, in effect, to strain a natural
interpretation of legislative language so as to produce an outcome
"as far as possible" conforming to international human rights law?
Can the judicial power be deployed to enjoin courts to make
declarations
that
particular
laws
are
incompatible
with
fundamental human rights, inferentially so as to prompt legislative
action? Will we ever reach the day, in Australia, where a legally
enforceable charter of rights influences the "protection of the
powerless against the (comparatively) powerful state"51?

Fred Aman's concern about the "democratic deficit" presents us
with a puzzle about the extent to which modern democratic
governance is truly responsive to popular opinion. To what extent
are elected officials really accountable to the people? Does the
51
Mullan, op cit, p …. [ms 2] citing Professor Holloway's chapter on
"Legitimate Expectations, Human Rights and the Rule of Law" in an
earlier compilation.
20
so-called "democratic deficit" truly count at the level of review of
individual decisions? Indeed, as in some immigration decisions,
do "democratic responses" actually get in the way of objectively
just and principled outcomes?

Richard Rawlings's chapter on the privatisation of the London
Tube plunges us into a detailed study of how, with great
complexity and expense, the object of the underground take-over
was achieved. Yet how can accountability to the needs of the
travelling public continue to be assured?
Where such an
expensive infrastructure, originally funded from taxes raised from
the public, is transferred to private concerns, does there remain a
legitimate role for administrative law to protect the residual public
interest?
This is also one of the issues that the redoubtable
Michael Taggart reviews in his chapter. Yet he is candid enough
to acknowledge that, once privatisation has been attained, most
courts seem loath to reimpose systems of public law redress52;

Carol Harlow's chapter on tort law suggests a requirement for
empirical research, in this and other areas of the law's operation,
to ascertain the actual impact of court decisions, whatever their
category, upon the day to day conduct of administrative officials
and tribunals;
52
Taggart, op cit, p ….. [last unnumbered page].
21

Janet McLean's scrutiny of the contemporary status of the Crown
in the courts prompts a question, initiated in my mind by the
analysis of that great Irish judge, Brian Walsh53. At least in the
Australian context, should we now drop the fiction that
governmental action is that of the "Crown in right of" the State or
the Commonwealth (or most absurdly of the Territories)?
Are
each of these units of our government not themselves
constitutional corporations or entities sui generis, deriving their
authority ultimately from the Australian people and expected to
tailor their conduct and liabilities accordingly54? These questions
do not appear to worry British, New Zealand and still less postRevolutionary American lawyers.
But they are legitimate
questions for the political and legal theory of contemporary
Australian law;

Peter Cane's historical tour d'horizon reminds us of the practical
importance for truly independent outcomes in controversial cases
of the assured tenure of the service of decision-makers.
It
prompts in my mind a desire to see more empirical examinations
of the actual results of migration tribunals after "performance
53
Byrne v Ireland [1972] IR 241 at 272-273.
54
The Commonwealth v Mewett (1997) 191 CLR 471 at 542-544;
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 374-375
[99]; British American Tobacco Inc v Western Australia (2003) 217
CLR 30 at 82-86 [141]-[153].
22
targets" were imposed55 and when members, reputedly with too
many outcomes sympathetic to applicants, failed to secure
reappointment to their tribunal positions;

Linda Pearson's examination of fact-finding in administrative
tribunals stimulates questions about to the extent, at least in
federal courts in Australia, to which the Parliament can tell such
courts how to decide facts.
A general statute on the law of
evidence may seem innocuous and familiar enough. But what of
statutory provisions that interpose between an individual and
government factual presumptions and conclusive recitals56?
Given the importance of fact-finding for outcomes, is it permissible
for legislators to stack the evidentiary cards? Could a legislature,
for instance, instruct the courts not to take international or
transnational law into account in performing their judicial
responsibilities? Laugh not. This was recently attempted in the
Congress of the United States57;
55
Cane, op cit, p …. [ms 33].
56
cf Chief Executive Officer of Customs v El Hajje (2005) 224 CLR
159 at 181-185 [59]-[73].
57
J Resnick, "Law on affiliation: 'Foreign' law, democratic federalism
and the sovereigntism of the nation-state" ]2007] International
Journal of Constitutional Law (ICON) 1 discussing the Constitution
Restoration Bill 2004 (US) purporting to instruct federal courts in
that country not to have regard to foreign law with a few specified
exceptions.
23

Elizabeth Fisher's invocation of closer study of merits review and
her reminder that tribunals and officials cannot avoid interpreting
and applying the law when reaching their decisions, prompt
questions about the qualifications of, and training for, such
officers.
And about securing effective rights of access to the
courts so that lawyers can, where necessary, correct repeated
legal error when it is exposed;

Anita Stuhmcke's chapter on the office of Ombudsman reminds us
that administrative tribunals and judicial review constitute part only
of the legal revolution achieved in Australia in the 1970s and
1980s. So what of freedom of information laws after the decision
of the High Court of Australia in McKinnon v Secretary,
Department of Treasury58? What of the penetration of the new
ideas into State and Territory administrative law, the former at
least dating back to colonial times and usually more traditional?
Has the legal revolution in FOI actually made a noticeable
contribution to better public administration? Has it helped to fill
the "accountability deficit" that may be even more pressing and
urgent as a practical concern than the "democratic deficit" that
worries Professor Aman? Has the formalism that Thomas Poole
detects in the Australian judiciary needlessly cut Australian judges
and lawyers off – separating them from doctrinal developments in
58
(2006) 228 CLR 423.
24
the law of judicial review happening elsewhere, especially in the
United Kingdom and New Zealand?

Having so painstakingly built the edifice of legal controls over
administrative actions of the traditional kind, the chapter by
Professors Creyke and McMillan prompts the questions: how are
appropriate checks to be introduced for the new "soft-law"? How
is that law to be rendered transparent and accountable? What, if
anything, is the law of the future to say about "grey-letter law",
"quasi-regulation" and "soft law policy" as they play an ever
greater role in the actual operations of the agencies of public
administration59?
How do we go about responding to these questions?
THE FUTURE
It will be apparent that there is more than enough left unsaid in the
chapters of this book, and in the questions that these chapters provoke,
to inspire a further book. Perhaps Mark Aronson may be stimulated by
what his admirers have written of him to respond with new insights of his
own.
59
Creyke and McMillan, op cit. p ….. [Ch ….].
25
It would, for example, be timely if he were to undertake new
empirical research together with administrators, federal and State, to
describe how administrative law in Australia actually operates in
government offices, at public counters and in tribunal deliberations.
What actually happens when an administrative decision is quashed and
the administrator is ordered to start again?
To what extent are the
assumptions of administrative law and judicial review vindicated in
practice?
How can we quantify the impact of the administrative law
revolution in Australia? All of these would be topics worthy of enquiry by
Mark Aronson, for he has an unrivalled grasp of the governing law and
its principles60.
Perhaps Mark Aronson could turn his attention more specifically to
constitutional law. Recognising its "gravitational pull" upon Australian
administrative law, it could be a timely enterprise to pursue the political
theories that, he suggests, underpin what we do in administrative law,
specifically in judicial review. As the law of human rights expands in
Australia, there will be large opportunities to examine, and describe, its
impact on administrative law and on public administration.
60
Trail-blazing work in this respect has been performed by two other
leaders in Australian administrative law who are contributors to this
book.
See Robin Creyke and John McMillan, "Executive
Perceptions of Administrative Law - An Empirical Study" (2002) 9
Australian Journal of Administrative Law 163 and ibid, "Judicial
Review - An Empirical Study" (2004) 11 Australian Journal of
Administrative Law 82.
26
We also need explorers who will study the strengths and
weaknesses of administrative law as it operates in civil law countries.
We have now surely overcome Dicey's negative attitudes towards
continental administrative law that Peter Cane describes so vividly61.
Having belatedly faced the requirement for checks and balances of our
own on the burgeoning public administration, are there no lessons for us
to learn from the other great European legal tradition? After all, it has
been embraced by more countries than accept the common law
tradition.
A long sabbatical in France is what the doctor orders.
Brimming with new ideas, Mark Aronson could return to enliven, instruct,
cajole and stimulate us as never before.
Administrative law is indeed about the control of power. In the
theory of the modern state, power derives ultimately from the people62.
The control of it is therefore, in the end, for the benefit of the people.
There is no part of the law's discipline that is a more worthy subject for
devotion in life than this.
Mark Aronson has repaid his privileges
handsomely. The contributors to this volume have sought to repay our
debt to him with gratitude, affection and proper recognition.
61
Cane, op cit, p ….. [ms 29].
62
See eg McGinty v Western Australia (1996) 186 CLR 140 at 230
and cases there cited.
27
High Court of Australia
Canberra
22 June 2008
Michael Kirby
ADMINISTRATIVE LAW IN A CHANGING STATE
INTRODUCTION
The Hon Justice Michael Kirby AC CMG