Ellen Rock: Enforcing Limits on Non-Statutory Executive Action

Judicial review of executive action is regarded by many as the cornerstone of a government accountability system. Leading political scientist Richard Mulgan has described judicial review as “the most powerful form of external review of executive action” and a “fundamental prerequisite for effective executive accountability” (Holding Power to Account: Accountability in Modern Democracies (Palgrave Macmillan, 2003)). It involves “the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law” (Church of Scientology Inc v Woodward (1982) 154 CLR 25, 70). In Australia, judicial review largely fulfils this promise by providing an irremovable mandate for the courts to contain the exercise of power attended by jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This mandate has been extended so as to apply at both Commonwealth and State levels (Kirk v Industrial Court (NSW) (2010) 239 CLR 531).

If judicial review is the bedrock on which Australian government accountability rests, we might be reluctant to accept an approach to judicial review which would “create islands of power immune from supervision and restraint” (Kirk at [99]). However, until the Australian courts chart the detailed boundaries of executive power and its susceptibility to judicial review, the extent of those immunities will remain unseen. One area that is in particular need of attention in this respect is the control of non-statutory executive action. While the vast majority of executive power in Australian is conferred or defined by statute, there are many examples of non-statutory executive action. These include prerogative powers, such as the establishment of a Royal Commission and the declaration of war; prerogative capacities, such as entry into treaties and the conferral of honours; and other general capacities, such as the power to enter into contracts.

To what extent is the performance of these various types of non-statutory executive action amenable to judicial review, and by reference to what standards might that action be judged? In her recent book, Amanda Sapienza shines a bright light on this topic in the Australian jurisdiction, and ultimately concludes that administrative law doctrine only has a limited reach to the exercise of non-statutory action. What becomes clear, on reading this book, is that squarely addressing the scope of judicial review of non-statutory action challenges us to reconsider and deepen our understanding of the nature and purpose of judicial review in all its contexts. Three examples make this point.

The first aspect of administrative law doctrine which takes prominence in the non-statutory context is that of justiciability. Questions of non-justiciability can of course arise in any judicial review case. However the examination of non-statutory power is perhaps more likely to give rise to justiciability concerns for two reasons. First, many exercises of non-statutory power involve the types high-level political decision-making that engage justiciability concerns (eg the declaration of war). Secondly, when reviewing an exercise of non-statutory power, the courts cannot draw on processes of statutory construction to identify and enforce legal standards. Without those legislative guideposts, there is an increased risk of trespass into political terrain and greater caution must therefore be exercised.

The second aspect of doctrine which requires close consideration is entitlement to relief. In all administrative law cases, questions of standing are relevant both to an applicant’s entitlement to commence judicial review proceedings, and in defining the types of available relief (for example, some remedies are limited to those with a legal specific right or special interest in the subject matter of the action as opposed to ‘strangers’—R v Whiteway; Ex parte Stephenson [1961] VR 168). This is important because the exercise of many non-statutory powers (for example, an exercise of a power to enter into a treaty or to establish a Royal Commission), will not be apt to affect individuals directly, or to affect them in a manner different from the wider community. Even assuming this hurdle can be overcome in individual cases, access to administrative law remedies is again complicated by the lack of statutory foundation. To take an example, the writ of mandamus allows the courts to compel the performance of a duty. This remedy is inapposite to an exercise of prerogative power, which by its nature is inherently discretionary.

A third example is the determination of jurisdictional error, which in the Australian constitutional context affords the courts a mandate to enforce the legal limits that apply to executive power. In practical terms, the Australian High Court’s current approach to the identification of jurisdictional error is premised on the apparent intention of Parliament, and, more recently, the practical impact—or materiality—of the error (Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421). While administrative lawyers will attest to the difficulty of predicting whether an error is jurisdictional or not, at least the statutory context allows access to tools of statutory construction with a view to ascertaining the limits on power (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355). The difficulty is that “since [a prerogative power] is not derived from statute, its limitations cannot be derived from a process of statutory construction” (R (Miller) v Prime Minister [2019] UKSC 41, [49]). When uncoupled from statutory power jurisdictional error is left somewhat out to sea—what does jurisdictional error look like in that broader context, and how can it be identified?

What these three examples demonstrate, along with many others highlighted in Sapienza’s book, is that focussing our attention on the amenability of non-statutory executive action to judicial review challenges us to step back and take a critical view of accepted administrative law doctrine. While issues of justiciability, access to relief and the determination of jurisdictional error are by no means simple or straightforward in the statutory context, our reliance on tools of statutory interpretation is underscored when we are forced to consider cases in which we cannot use them.

More broadly, this book challenges the conception of judicial review as a “fundamental prerequisite” to executive accountability, and asks us to consider whether the inapplicability of judicial review to many exercises of non-statutory executive action represents the type of “island of immunity” that agitated the Australian High Court in Kirk. Sapienza concludes her thoughtful review of administrative law principles with the observation that their inapplicability to much of the non-statutory landscape reflects the substance of the relationships between the branches of government and the Australian conception of the separation of powers. On this view, the inapplicability of judicial review in this space would not truly be an island of immunity—instead, this aspect of government administration is attended by different limits on power than those reflected in our traditional administrative law catalogue. If this is so, it is logical that we would look elsewhere to enforce those limits. This book reminds us that assessing government accountability requires a wholesale rather than piecemeal approach, and that we should not be afraid to look beyond public law to achieve that broader objective.

Ellen Rock is a Lecturer at University of Technology Sydney, Faculty of Law.

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