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The Law and its study is inherently preoccupied with the exercise of power and control, administrative law in particular with relation to the parliament, executive and government bodies. Administrative law operates as a supplementary form of check and balance in the democratic process and allows us to hold decision makers, and their decisions in question, accountable. In its nature is perhaps more akin to equity in that it seeks to fill a void for individuals allowing them dignity and justice in the face of institutional decisions and remains one of the few areas of public law where the exercising of its judicial power explicitly provides for the protection of the individual. Allsopp CJ in his Whitmore Lecture address raises two two key considerations. The first, should power be explicitly delineated? My answer to this is no. There is an inherent need for our understanding of power within administrative law to be fluid and informed by fact and circumstance, a boundary capable of growth and recession with evaluation. Secondly his honour posits that we should eschew abstract definitional language for more “human” terms. With this statement I also agree, with reference to the embodiment of human concepts such a natural justice and reasonableness within statute and case law, specifically recent immigration case rulings in the High Court. The risk in perfect legal definition is that unjust rulings may be given. Justice is an inherently human concept and thus just has humans learn and unlearn and develop so to do the mores and concepts that we use to govern and understand our place in the world. Power, depending on area of study or academic practice can be defined in a multiplicity of ways, the consideration of every aspect of which is beyond the limits of this essay. For the purposes of this essay the most fruitful way to understand power in relation to administrative law is perhaps best surmised by Sir William Wade who stated that “to exempt a public authority from the jurisdiction of the court of law, is to that extent, to grant dictatorial power”. Power in relation to administrative law can thus be argued is the enforcement of rule of law over executive and government administrations, as to provide check and balance and limit to an otherwise potentially inexhaustible source of power. It is important to note that within the scope of admin law there are two key areas through which control is exerted when it comes to the review of administrative decision making. Merits review is concerned with whether the decision reached by an administrator or decision maker is correct or preferable- considering the facts, law and policy underlying a decision, and potentially substituting a fresh decision where the new decision is correct or preferable. Judicial review on the other hand considers the lawfulness of a decision, whether the decision maker has the power to make the decision, whether a legal error has occurred in making the decision and whether rules of procedural fairness were complied with. Judicial review is about setting the boundaries of government power and ensuring that government representatives and administrators act within their prescribed powers. As Brennan J notes “it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and [that] the interests of the individual are protected accordingly”. Due to the limits of this essay, I will forgo in depth discussion of merits review, focusing instead on judicial review and how examples of statute and case law pertaining to issues of judicial review support the arguments put forward by Justice Allsop in his address.

1.1 Boundaries of Power - Separation of Powers At first glance there seems to be a strong delineation in regards to the limits of the separation of power within our constitution. Physically each of the three powers - the executive, legislature and judicature are given their own chapter within the Constitution, outlining their roles, and imbibing them with particular powers, responsibilities and functions that exist in some instances beyond the recall of others. Furthermore the separation of powers doctrine is entrenched within legal teaching and theory and is not specific to the Australian context. Indeed similar notions of separation are found within the other common law jurisdictions such as the United Kingdom, the United States, Canada and New Zealand. In Australia however the Constitution is generally construed as establishing a much more firm and rigid separation of powers, more so than other common law jurisdictions such as Canada and the US. The result of this system is the creation of good governance, a system of checks and balances that allows society and our governing institutions to function effectively. As Topperwien notes “adherence to its principles in structuring governmental institutions prevents abuse of power through limiting under accretion of power in any one organ of government”. The distinction between merits review and judicial review is evidence of this. Under the separation of powers doctrine, the Constitution, within s75, imparts only the Judicature with the power and jurisdiction to review the legality decision of the government, its institutions and officers. This separation of powers within the Constitution is reflective of its temporal space. At the time of the Constitution's creation and adoption, the government enforced a system of private rights as defined by the common law but otherwise was limited in its function in relation to the public sphere. However, as will also be discussed further on in this paper, the government since this time has created more entitlements and assumed responsibility for enforcing a broader range of legal rights. Increasingly there are examples to support the fact that this separation, whilst still venerable, is not as linear as often articulated, and lends itself to conceptualisation as a boundary, fluid and changing based upon evaluation. One such example would be the concept of what is justiciable within judicial review.

1.2 Boundaries of Power - Prerogative Power and Justiciability Finkelstien notes that “judicial review represents the most important element in the executive administrative justice system” as it guarantees that executive action is not absolute but rather subject to legal constraint. He furthers this by positing that it is the duty of the courts to determine those constraints. Traditionally, judicial review confined to the exercise of power conferred by statute. Key areas of policy creation and sovereignty were considered beyond the remit of the judicature system including the recognition of other nation states, the waging of war, issues of national security. Currently there exists still some areas of decision making beyond the courts reach, such as the power to enter into war. However the principles of judicial review and those matters which could be considered amenable to judicial review have not remained stationary. Whilst the supervisory jurisdiction of both the Federal Court and the High Court, being constrained by the Constitution, is somewhat narrower in scope that that enjoyed by the State Court, changes to what can be considered amenable to judicial review , particularly in relation to prerogative legislation, shows that the boundaries of power are better understood as a flexible, moveable and capable of re-evaluation. Precedent for these changes come from the adoption of the ruling in the UK case of Council of Civil Service Unions v Minister for the Civil Service (herein the CCSU case). The case involved the Minister for Civil Service exercising the prerogative to vary terms of employment for staff at within

a branch of the government to prevent them from being part of any national trade unions sans prior notification. Within this case the House of Lords found that executive action was beyond judicial review merely because it was carried out in the pursuit of prerogative power. Within Australia the precedent in CCSU was accepted by the ruling in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd. The case involved a challenge to the Cabinet’ decision at the time to nominate part of the Kakadu National Park for inclusion in the World Heritage List. The Federal Court found that courts should accept responsibility for reviewing executive decisions, notwithstanding that the decision may be carried out in pursuance of common law or prerogative power. It is important to note however that the ruling in the CCSU did find that an executive decision may be immune from judicial review should the subject be non-justiciable in nature. This was the conclusion similarly reached in PekoWallsend. Given that the decision related to issues of environment, indigenous rights, mining and the economy, it was considered beyond the ambit of judicial review and deference was given to the government. Nonetheless, this example highlights that rather than harsh delineations, limits of power are better understood as a boundary that can shrink or grow depending on the circumstance and the decision in question.

2.1 Human Terms - Natural Justice: This feeds into the second point raised by Chief Justice Allsop that abstractly definitional language should be avoided in preference for more fluid human terms when understanding the law. The common law rules relating to the judicial review of administrative decisions are well established. They apply when administrative action is not authorised or where an administrator or decision maker misunderstands the authorisation or exceeds it. It requires a fair hearing, through both an unbiased decision-maker and a fair process etc. Underpinning this are central concepts of natural justice and procedural fairness - the definition of which is not some precise legal instrument but rather a collection of human concepts inherent to the delivery of proper justice. I argue that, whilst framed as procedural measures, at its core the concept of natural justice and procedural fairness are inherently human values, and that rather than purely abstract definitional terms, they are practical components to the delivery of proper justice informed by human experience. The development of case law which considers the concept of natural justice further supports that idea that this legal concept is best understood as a human value and reflects the increasing concern with individual rights within administrative law. It is well established amongst most legal commentators, theorists and practitioners that admin law specifically is primarily concerned with the improvement of decision making, and stands to hold governments, administrators and decision makers accountable. “The emphasis on procedure rather than substance, in the sense that the judiciary is concerned with the legality of how an executive decision is reached, not the factual merits of the actual decision… The Court’s role is not to question the decision made but rather to ensure that decision-maker made their decision within jurisdiction”. Hooper notes however that since the 1970’s and 1980s the relationship between the government and its citizens has been recast. This is partly due to the fact that increasingly governments and administrative bodies have come to impact more upon and be more closely entwined with private life. The nature of the way that individuals interact with government and administrators has changed as a result of expansion in government benefits and support systems, subsidies, licences, taxes, sanction penalties etc. The result being that a ‘culture of justification’ has started to emerge which has removed some of the anonymity from the administrative decision-making process, and whilst judicially driven, has required governments to become more accountable to its citizens, beyond the derivative responsibility to Minister and Parliament. It is important to note here that Australia does not subscribe to a specific bill of rights, like our US or South African counterparts endowing citizens with individual freedoms and protected rights against the sovereign. Rather it is established that certain rights and freedoms are implied within the Constitution and subsequent statute. Natural justice, a concept grounded in fairness, accountability and dignity of the individual which thus supports the argument that the way power is imposed should be understood in relational human terms and not be considered some abstract legal principle, devoid of its human context. Natural justice stipulates standards and procedures to be observed in administrative decision making, traditionally comprised of the prior hearing rule; that a decision maker must give a person prior notice that a decision may be made, the information on which the decision may be based and their right to reply, and the bias rule; that a decision maker must be free of bias or preconceptions. As the ruling in Kioah’s case states there is a common law duty to act fairly, according to procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to a clear manifestation of a contrary intention. This is further codified within statute. S75(v) of the Constitution grants constitutional remedy for breach of natural justice by a commonwealth official, whereas the ADJR provides explicit for the availability of judicial review within S5(1)(a) should a breach of natural justice occur in connection with the making of a decision. Furthermore the high court has ruled that the existence of statutory procedure for making a decision will not automatically evince an intention to exclude additional procedural requirements deriving from natural justice. As McHugh J notes an attempt to “replace the uncodified principles of natural justice with clear and fixed procedures” will not necessarily overrule the availability of natural justice to an applicant. The result of this is not that the administrative decision in these instances will be automatically invalidated, but the right to seek remedy, review and reasons is available to the individual. It therefore empowers individual citizens to the extent that reasons are required for the decisions that impact them, these decisions cannot be made in vacuum absent the right of reply or clarification. The power of the government to make decisions without good standing, based on relevant information remains checked. As noted by Mason J “what is required by procedural fairness is a fair hearing, not a fair outcome”, and always natural justice objectives must be balanced against the practical demands of administrative decision making. This is not to say that this approach favours the abstract legal over the humanly practicable. The promotion of natural justice ensures that relevant information is considered, promotes impartiality and public confidence and provides individuals with the opportunity to be heard. As Gleeson J noted famously in Lam’s case “fairness is not an abstract, but a practical concept; the concern of the law is to avoid practical injustice”. Furthermore it was discussed at length in Plaintiff S10/2011 that common law principles are not derived from logic alone and thus cannot be treated as abstractions disconnected from the subject matter to which they are applied. Power, in this instance the power of an administrator to make a decision, and the welding of that power, against a subject of that the administrator must therefore be assessed for fairness based on measures that are not “divorced or seen as part of separate universes” from its real-world function.

2.2 The Impact of the ADJR: Perhaps the best example of the codification of these “human” common law concepts is through the introduction of the Administrative Decisions (Judicial Review) Act. This is supported by case law, specifically the ruling of Mason J in Kioa v West whom states “the statutory grounds of review..in S5(1) are not new - they are a reflection in summary form of the grounds on which administrative decisions are susceptible to challenge at common law”. S5 of the AJDR specifically lists instances where judicial review is available. To list all the grounds is beyond the limits of this essay however analysis of listed reasons highlights that they can be grouped via and draw upon a dichotomy of procedure and substance. Overarchingly the statutory reasons come down more on the side of substance rather than procedure, the vast majority touching on matters where administrators may have overstepped the bounds of their jurisdiction such as instances where the person has purported to make a decision did not have jurisdiction, where there as been the improper exercise of the power conferred, or where the decision made is not allowed within the scope of the enactment in question. This is not to say that the ADJR has been without its criticisms, nor that it is a perfect encapsulation of human-centric legal ideals. Criticism has been leveled by some legal minds that the tests for reasonableness/unreasonableness within the act are too narrow. Reasonableness is captured within the ADJR under S5(2)g. It can be considered a statutory codification of the Wednesbury unreasonableness test which was outlined by Lord Greene. Namely the test posits that there are two types of unreasonableness. Either it involves a decision that took into account irrelevant considerations or did not take into account relevant considerations; or where a discretionary decision was "so unreasonable that no reasonable authority could ever have come to it" – and that required "something overwhelming". Lord Greene MR explained that the Court’s role was "to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose". It has been suggested that the courts, when reviewing decisions under this ground, essentially look at the substance result of the decision rather than the process by which the decision is made. By holding that an actual decision reached by an administrative body is deficient on its face rather than considering the way in which the decision was made, the courts are arguably usurping the power of Parliament. However case law has continued to evidence the fact the reasonableness should not be considered in purely statutory or arbitrary linguistic form. Recent key imigration cases evidence the High Courts movement away from the dogmatic strictures of Wednesbury unreasonableness. In Minister for Immigration and citizenship v Li (2013) the High Court adopted a less stringent approach to the reasonableness as outlined in the ADJR. The majority found that unreasonableness could be established where a decision lacked an evident and intelligible justification, where no reasons were provided or where it was not possible for a court to understand how the decision was arrived at. Furthermore Gageler J in the case of SZVFW noted that reasonableness is a “traditional conception of the common law - a translation of “the human into the legal”. His honour goes on to say “reasonableness is not exhausted from reationality; it is inherently sensitive to context; it cannot be reduced to formulary”. These decisions represent a normative shift away from the stricter adherence to purely statutory definitions of key legal concepts, further supporting Allsop’s assertion that a more general humanistic approach rather than blind adherence to definational language can help shape the limits of power and control. The Wednesbury principle as espoused in s5(2)g thus continues to be relevant, just not the sole basis of reasonableness. Therefore it can be argued that the reasonableness test outlined in S5(2)g of the ADJR, particularly when considered in conjunction to recent High Court findings, can still be considered another example of the inherent acceptance of humanist language and understanding when it comes to concepts of law.

Conclusion: The comments of Chief Justice Allsop go to the heart of what is the inherent purpose of administrative law. Whilst in form and through the procedure it exists as a stream of legal practise that keeps in check the power of governments and administrations, its substance goes to the in...