Amanda Sapienza: Judicial Review of Non-Statutory Executive Action in Australia

Are we still at the point where it’s controversial to say that a government may be required to afford a person procedural fairness before exercising a non-statutory power that affects the person?

This was the question that prompted my PhD research and, ultimately, this book, which was published by the Federation Press at the end of 2020.  I asked myself this question as I read the 2010 decision of the High Court of Australia in Plaintiff M61/2010E v Commonwealth.  It was a decision about processes, themselves not provided for in a statute, that are undertaken prior to a Minister deciding to exercise a non-compellable power conferred by statute.  There was nothing ‘high policy’ about the processes or the power.  They were processes directed to consideration of whether to lift a statutory bar preventing each plaintiff from making a valid application for a visa.

One of the plaintiffs had argued that, even if the processes were non-statutory, they were nevertheless attended by an obligation to provide procedural fairness.  The High Court, in a unanimous single judgment (which is rare), determined that the processes, being directed to the exercise of a power conferred by statute, themselves had a statutory foundation from which an obligation to afford procedural fairness derived.  This conclusion prompted the following remark (at [73]):

Those being the circumstances in which the inquiries were conducted, it is not necessary to examine the submissions advanced on behalf of Plaintiff M69 and the Commonwealth and the Minister about whether exercise of non-statutory executive power is or may be limited by a requirement to afford procedural fairness.

It was an unremarkable comment; typical of the High Court when the resolution of a matter before it does not require a particular point to be decided.  But the particular processes in question in this case seemed so typically administrative, so typically limited by an obligation to afford procedural fairness to the person affected, and the High Court’s phrasing so broad – it wasn’t limited to whether this particular exercise of non-statutory executive power was limited by a requirement to afford procedural fairness, but any exercise – that the comment intrigued me.  I knew about the GCHQ case and its in-principle reception by the Full Court of the Federal Court of Australia in the 1987 decision in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd.  Had Australian law in relation to the amenability of non-statutory executive action to judicial review not moved on since 1987?

The short answer appeared to be no, and the question certainly had not been examined by the High Court.  But, led by the High Court, Australian judicial review principles generally had indeed moved on since 1987, with a return to focus on what Australia’s written constitution requires of courts at both the Commonwealth (national) level and courts at the State level and, with that, a return to focus on jurisdictional error, which focus has been much documented elsewhere.  What did the development of these principles – indeed, the development of a theory of Australian judicial review – by the High Court mean for judicial review of non-statutory executive action?

That is the question that my research sought to answer.  It’s an unashamedly doctrinal question, as I had to keep reminding myself when I got carried away by various theories of judicial review and questions of what ‘adequate’ judicial review looked like.  And it’s an unashamedly Australian question, though, given the colonial heritage of the Australian legal system, some attention to cases decided by courts in the United Kingdom, not least the Prorogation Case, was always going to be required. (Readers looking for treatment of this topic with a UK focus can look forward to the publication of Dr JG Allen’s ‘The Supervisory Jurisdiction over Non-Statutory Executive Powers’ by Cambridge University Press later this year).  The aim of my book is, indeed, both doctrinal and Australian: to be a resource for practitioners and the judiciary in Australia when grappling with judicial review of non-statutory executive action.

By the time I finished the PhD in 2019, there were cases in which the High Court had espoused a theory of judicial review and cases in which the High Court had explored the limits of the Commonwealth’s non-statutory executive power, but no case in which the High Court had, or been required to, reconcile the two.  Lower appellate and first instance courts occasionally had cause to do so, with mixed results in terms of doctrinal coherence.  And even less had been written about the non-statutory executive power of the Australian States.

This book is my attempt to bring doctrinal coherence to this area of law.  I have endeavoured to take the principles of judicial review as espoused by the High Court and work out what would happen if those principles were sought to be applied to an exercise of non-statutory executive power.

Following an introductory chapter that provides an overview of the ‘lay of the land’ in terms of Australian judicial and academic exploration of the topic, Chapter 2 considers in depth the types of non-statutory executive power exercised by the Commonwealth and the Australian States.  It divides non-statutory executive power into three types: prerogative powers, which are unique to the government and are able, of their own force, to affect a person’s domestic rights and/or obligations; prerogative capacities, which are unique to the government but unable, of their own force, to affect a person’s domestic rights and/or obligations (the most notable example being entering into treaties); and non-prerogative capacities, being the capacities to take action that the Australian governments share (in nature, if not in respect of their ability to exercise) with their residents, but which rely on an additional legal mechanism – such as a contract, lease or gift – to produce legal consequences.  Treating each type of power separately was essential for the legal analysis that followed, as different features of each type of power engaged different considerations when it came to judicial review.

The book then works through each element of judicial review.  Chapter 3 examines the requirements of jurisdiction, particularly federal jurisdiction, and establishes that there is, at the Commonwealth level and in every Australian State, a court with jurisdiction to conduct judicial review of non-statutory executive action, at least for jurisdictional error.  It includes an explanation of how, by conceiving of jurisdictional error as any error that breaches the limits of a power (as opposed to being dependent on a statute conferring the power), the concept can be given meaning in a non-statutory context.  Chapter 4 commences with a discussion of the Australian conceptions of the separation of powers and goes on to discuss what the common law separation of powers means for justiciability of each type of non-statutory executive power.  Chapter 5 takes that discussion further with an examination of statutory initiatives in respect of non-statutory executive power, and what those initiatives mean for amenability to judicial review.  The initiatives include statutory alternatives to the prerogative of mercy, ‘non-statutory’ inquiries of the kind at issue in M61 and statutory judicial review procedures.

The book then turns to grounds of judicial review.  Chapter 6 establishes a juridical basis for imposing limitations on the exercise of non-statutory executive power, in the context of the High Court’s focus on parliamentary sovereignty (Australian-style) and common law principles of statutory interpretation as the basis for the limitations that it is the judiciary’s role to enforce.  Chapter 7 explores how content can be given to the common law grounds of judicial review in the non-statutory context and examines how each one could, or could not, work in practice.  Chapter 8 tackles judicial review remedies and whether their requirements at common law preclude, or at least greatly minimise, their availability in respect of non-statutory action, particularly action to refuse a payment to which a person has no legal entitlement.

Conclusions are drawn in Chapter 9, where I observe that, although there remain non-statutory actions in respect of which judicial review will not yield a remedy, such is consistent with the prevailing limited approach to judicial power in Australia and its reliance on the common law separation of powers.  It leaves wide open for future research and discussion the normative question of whether such an approach to judicial power is desirable and whether it is unrealistically reliant on a functioning system of political accountability.

Aspects of the book (perhaps my suggestion in Chapter 4 that ‘manner of exercise’, in judicial statements that the manner of exercise of a prerogative power is not reviewable, is properly understood as referring to the merits or outcome of exercise, rather than precluding review for legal errors) may be too progressive for some.  Other aspects (perhaps my suggestion later in Chapter 4 that whether a power of a vice-regal officer was required to be exercised on advice is a matter of convention and, of itself, unlikely to be amenable to review) may be too conservative.  But it is hoped that the book will start these discussions, rather than conclude them.  My aim was to collect the authorities and conduct the analysis of Australian judicial review principles required to provide a foundation for arguments as to whether or not a particular non-statutory action is amenable to judicial review, on what grounds, and to what end.  It won’t provide the answer in every, or perhaps in any, case.  But if it has done the ‘background work’ required to enable judges and practitioners to engage meaningfully with cases of this kind and provided the doctrinal foundation for discussions of whether the ‘level’ of judicial review available for particular kinds of non-statutory executive action is sufficient, it will, I think, have made a useful contribution to the development of the law.


Dr Amanda Sapienza is presently a Senior Solicitor in the Crown Solicitor’s Office (NSW).  The book and this piece were written in a personal capacity and neither necessarily reflects the views of the Crown Solicitor or the NSW government.

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