Administrative Law Jurisdictional Error

Administrative Law Jurisdictional Error Essay Question Consider the following statement: “Concepts such as procedural fairness, reasonableness, rationality, and error of law were well understood before the modern world of law by statute came to dominate. Now, the limits of jurisdiction are usually determined in a statutory context thus requiring the focus of inquiry to shift from somewhat amorphous (or flexible) general law principles to principles of statutory interpretation.” The Hon Justice John Basten, 'Judicial Review of Executive Action: Tiers of Scrutiny or Tears of Frustration?' (Speech delivered at the Constitutional and Administrative Law Section, NSW Bar Association, 14 May 2013 – copy available on Moodle). In light of Justice Basten’s remark, find and critically analyse a case which is not discussed in the Creyke& McMillan case book (you can look here: https://jade.barnet.com.au). Do not choose Minister for Immigration and Citizenship v Xiujuan Li (2013) 87 ALJR 618 for this purpose. With regard to the case you have found and Justice Basten's remark, consider the role of jurisdictional error in Australian administrative law. Is it truly a central concept or might it be discarded “without tears”? What might be the consequences of such a step? CONSTITUTIONAL AND ADMINISTRATIVE LAW SECTION OF NSW BAR ASSOCIATION 14 May 2013 JUDICIAL REVIEW OF EXECUTIVE ACTION: TIERS OF SCRUTINY OR TEARS OF FRUSTRATION? The Hon Justice John Basten Judge of the NSW Court of Appeal Introduction The original intention of this paper was to argue for the adoption of a functional (therefore flexible) approach to judicial review by reference to a variable standard of scrutiny. The Australian fixation with seemingly discrete grounds identified by labels, stubbornly adhered to by courts and legislatures, has proved frustrating and inadequate. Kirk1 showed a willingness to look past labels, but gave little guidance as to how to fill the void. Now, having completed such an analysis, we have the decision of the High Court in Minister for Immigration and Citizenship v Xiujuan Li2 delivered six days ago. On one view, it may mark no more than another step in a continuous process of reformulating public law concepts in this country. On the other hand, if one views the development of the law, like natural evolutionary processes, as a system of punctuated equilibrium in which a period of stasis is followed by a large step, this may mark the commencement of the next large step. I incline to the latter view, for reasons which I will explain. However, if that view is correct, it would be remiss of me to talk about judicial review without paying attention to the most recent development. Before coming to that case, it may be helpful to outline a number of broad propositions as markers in the search for a satisfactory blueprint for judicial review, together with some ideas as to how the search should proceed. The paper will then consider how those views are affected by what the High Court is now saying. First, judicial review of administrative action involves the exercise by the courts of a supervisory role over the executive arm of government. Any expansion of the judicial role tends to diminish the freedom of the Executive and thus affects the relationship between those two arms of government. In constitutional terms, it affects the separation of powers in a practical manner. Secondly, to the extent that the courts find the mandate for a minimum standard of judicial review in the Constitution, they impose a limit on the legislature and thus affect the relationship between the judicial and legislative arms of government. If the minimum content of judicial review is expanded, the power of the Parliament is to that extent diminished. And by Parliament, one refers to both State and Commonwealth legislatures. 1 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531. 2 [2013] HCA 18. Page 2 Thirdly, whatever anxiety the High Court may have about adopting a clear and definitive statement of the grounds of review, these cases are decided on a daily basis by busy trial judges and intermediate appellate courts, which do not have time to consider the potential constitutional implications of their collective decisionmaking. Fourthly, concepts such as procedural fairness, reasonableness, rationality, and error of law were well understood before the modern world of law by statute came to dominate. Now, the limits of jurisdiction are usually determined in a statutory context thus requiring the focus of inquiry to shift from somewhat amorphous (or flexible) general law principles to principles of statutory interpretation. Fifthly, the move away from a set of labels for available grounds of review which appears to be occurring (despite the apparent constitutionalisation of the concept of “jurisdictional error”), is to be welcomed; courts exercising the supervisory jurisdiction should adopt a functional and pragmatic approach, terminology to which I will return. Labels: A brief historical excursus Over the last 35 years the discourse of judicial review has been dominated, some would say blighted, by the influence of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). It applies only to decisions under Commonwealth enactments and then only to decisions of an administrative character. Despite its initial educative value, the list of grounds in s 5 has beguiled both pleaders and judges. It even proved irresistible to the Parliament, which, in enacting and then amending a limited form of statutory judicial review of migration decisions, conferred on the Federal Court power to review on the basis of some ADJR-style grounds, but not on others.3 Thus, whilst permitting review for failure to comply with statutory procedures, it sought to deny the availability of review for breach of general law rules of natural justice. Similarly, whilst purporting to permit review on the basis that the decision-maker “did not have jurisdiction to make the decision”, or that the decision “was not authorised by this Act”, it purported to withdraw the power to review on the basis that the exercise of power was “so unreasonable that no reasonable person could have so exercised the power”. These distinctions were writ in water. The availability of judicial review cannot depend on semantic labels of imprecise scope. Reliance on such an approach will produce arbitrary and capricious results. Judges who have a ‘feel’ for judicial review may well produce consistent outcomes, not by application of labels, but by applying an intuitive understanding of principles derived from experience. The conceptual incoherence of the traditional labels is readily established. That is revealed by two examples. 3 See Migration Act 1958 (Cth), s 476, as introduced by the Migration Reform Act 1992 (Cth), up to the time of its repeal by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). Page 3 First, the exercise under the Migration Act failed in its attempt to corral the grounds and hence diminish the availability of judicial review.4 The second example is more complex but revealing. We are familiar with the propositions from Azzopardi v Tasman UEB5, a case involving an appeal limited to error in point of law. Glass JA stated that perversity of reasoning in determining facts is not a form of legal error. There were statements to similar effect in the judgment of Mason CJ in Bond,6 referring to Menzies J in Ex parte White7, that “want of logic is not synonymous with” error of law. But how are these statements to be reconciled with the willingness of Latham CJ in Hetton Bellbird Collieries8 to set aside a decision where it depended on an opinion found to be “capricious” or “arbitrary”? The answer must lie elsewhere than in the labels. Most powers nowadays find their origins in statutes. Arguably the limits of a statutory power must be found in the constituting statute. But if, as we are consistently exhorted by the High Court, we pay close attention to the words of the statute, we will usually find no reference to the phraseology of judicial review case law. Accordingly, if we need to resolve fine questions about the boundaries of legality in a contested case, it is usually not possible to find any express reference in the power-conferring statute. But if that source is unavailable, the only available alternative is the general law, the language of which is the source of the uncertainty. An alternative explanation The answer is to be found in a combination of three sources. The first is the source we initially rejected but must revisit: namely the statute. An important constraint on the exercise of any power is its purpose. No power may be exercised for a purpose foreign to that for which it was conferred. That purpose can only be derived from the terms of the statute, in accordance with settled principles of statutory interpretation. That in turn has a direct link to the established categories of judicial review, not only by reference to improper purpose, but also to the requirement to take into account relevant (that is mandatory) considerations and ignore irrelevant (that is prohibited) considerations. Identification of such factors will depend intimately upon the relevant purpose. Sometimes these factors are expressly stated (though not usually exhaustively) but otherwise they are to be implied from the statutory context, in the same way that the language and context will elucidate the purpose. 4 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 5 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. 6 Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356. 7 R v District Court; Ex parte White [1966] HCA 69; 116 CLR 644. 8 R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407, 430-432. Page 4 The second source of assistance is found in the judgments of Brennan J. It is impossible to avoid the conclusion that relevant limitations (including the principle just stated in respect of extraneous, foreign or improper purpose) must be located in the general law. However, a third source of assistance is necessary to explain the scope and operation of the general law. It is the functional, institutional or structural (the label is unimportant) underpinning of the constitutional framework described as “the rule of law”, as it operates in the Australian political system. It is that which is captured in the canonical statement of Brennan J in Quin’s case9. It is commonly said that the principle of separation of powers operates at the federal, but not at the state level. However, that is an oversimplification. Not only is the separation of powers blurred at points in the federal system, but it is not entirely absent from state jurisdiction. No one doubts the importance of the independence of the State judiciary, nor was it novel when constitutionally protected characteristics of State Supreme Courts were discovered in Chapter III. Quin was a case in State jurisdiction: the limitation on the role of the court exercising supervisory jurisdiction over administrative action involved an understanding of the respective spheres of executive and judicial power.10 The ‘no evidence’ ground also fits within this analysis. The idea that a decision cannot be arbitrary or capricious rests on two assumptions. One is that the decisionmaker must be affirmatively satisfied as to a particular state of affairs in order to exercise the power in a particular way. The second is that satisfaction as to a particular matter must be based on information or material which could be logically probative of such a state of satisfaction. Thus, if a visa is to be granted only to a person with a well-founded fear of persecution in his or her country of nationality, considerations which have no logical connection with that test must be disregarded, as must be factual material not relevant to that issue. The most coherent way to describe the principles we have been discussing is to identify a purported decision which fails to comply with them as a constructive failure to exercise the power involved. The underlying principles are those of rationality (without which the rule of law is gutted of content) and the separation of powers (which imposes an important limit on judicial power, in circumstances where no right of appeal exists). Remaining issues There remain three questions which are not resolved by this analysis. The first is whether the rationality principle permits (or requires) that a decision be set aside only if the result is “unreasonable” or also if the process is flawed. That is, whether the concepts of irrationality and illogicality apply to an objective analysis by the reviewing court of the information available to the decision-maker and the result, or whether it may or should involve an analysis of the decision-maker’s process of reasoning. The second question, which also arises from the foregoing analysis, is to ask whether, if the review process in fact extends to an analysis of the decision-maker’s 9 Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1, at 35-36. 10 See also Brennan J in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51. Page 5 process of reasoning, that imposes an obligation to provide reasons for a decision and, where such an obligation exists, set a standard as to the ‘adequacy’ of the reasons to be provided. The third question concerns the nature and content of procedural fairness in this analysis. (a) The rationality principle Starting with the first question, the language of “unreasonableness” has a varied and volatile ancestry. To describe a decision as unreasonable, even manifestly unreasonable, may be, as Gleeson CJ and McHugh J have noted, to do no more than express vigorous disagreement.11 If there is a valid distinction between merit review and patrolling the boundaries of legality, scrutinising for unreasonableness risks blurring it into inutility. To expand the label to “conduct so unreasonable that no reasonable person could so conclude” does little more than emphasise that the concept is inherently vague and to demand a strong rather than a weak state of satisfaction to permit intervention. Similarly, to distinguish between an evaluative factual judgment and an exercise of power (true Wednesbury unreasonableness) is to differentiate two areas of operation, without refining the test.12 At times, high level unreasonableness appears to be equated with irrationality: see Crennan and Bell JJ in SZMDS.13 However, despite areas of overlap, the concepts are distinct. The point of distinction may be illustrated by adapting a biblical story.14 Suppose the Pharaoh believed an augury that Jews in Egypt would rebel and that the male leader of the rebellion had just been born. The plan to kill all newborn males in the Jewish population may have been a manifestly unreasonable response, but it was not irrational. The process of reasoning, from perceived problem to proposed solution, was rational; the proposed solution would only be reasonable, however, if deemed to be an appropriate response to the problem; if disproportionate, the solution might be described as “unreasonable”. Unreasonableness draws upon an assumed, but usually unarticulated set of standards, believed to be commonly held within a particular community. No doubt rationality is itself a culturally determined process; we might treat those who believed the Mayans had correctly predicted the end of the world as irrational, but accepting the perceived problem, the solutions some chose were not irrational. In criminal appeals we may ask whether a jury verdict was unreasonable or unsupportable on the evidence. Given the high state of satisfaction to be reached by the jury (beyond reasonable doubt) and the anxiety of the administration of criminal justice to avoid a miscarriage, this exercise is understandable. However, we do not 11 Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611 at [40]. 12 Cf Gummow J in Eshetu at [127]; in other areas of discourse the functional distinction is disregarded – Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 211. 13 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611. 14 Exodus, Ch 1. Page 6 describe the verdict as a “purported verdict”, nor as a nullity, nor as invalid: it is a decision which is effective until set aside on appeal. In Australia we have not adopted proportionality as a test of legality of administrative decisions,15 as opposed to delegated legislation.16 To be consistent, we should also be sceptical of “unreasonableness”, and for the same reason – that is because each requires an assessment by the reviewing court of the material available to the decision-maker, by a flexible, if not undefinable, standard of community values. The concept of proportionality has recently been described as imported into the currently contentious ‘second limb’ of Lange.17 That has much to recommend it: but judging the constitutional validity of legislation which impinges on the implied freedom of political speech is a far cry from judicial review of administrative action. (b) Reasons and reasoning This brings me to the second question, namely review of the process of reasoning. Once it is accepted that review for irrationality applies to the reasoning process, one must infer a legal obligation for a decision-maker to act rationally. But it is not possible to assess such a process accurately without a record of the decisionmaker’s reasons. It would seem to follow that effective judicial review requires a duty on all decision-makers to give reasons. However, the High Court has not accepted that conclusion.18 That judgment constituted an exercise, not of logic, but of pragmatism. The giving of reasons, at least for decisions which determine disputes, is seen as an essential characteristic of judicial power as exercised by judges, (though not by juries). A line is drawn between judicial and administrative decision-making, although it is somewhat porous.19 But the rationale for that distinction is not explained in terms of principle, but of history, tradition and, ultimately, pragmatism. The Court declined in Osmond to impose what might have been a significant economic and resource intensive obligation on all decision-makers within executive governments across the country. If that were to be done, the Court held, it was to be done by legislatures. Section 13 of the ADJR Act was not to be applied to the State executives by osmosis (or trickle-down, depending on one’s perspective). Absent reasons, the scope for judicial review is restricted, but not destroyed. In clear cases, a reviewing court is able to decide that an impugned decision could not have been made on the available information if the law had been correctly understood and 15 Aronson & Groves “Judicial Review of Administrative Action” (5th ed, 2013) at 373-377; Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at ; Dawson J in Cunliffe v Commonwealth (1994) 182 CLR 272 and James v Military Rehabilitation and Compensation Commission [2010] FCAFC 95; 186 FCR 134 at [37]-[40] (Keane CJ, Middleton and Gordon JJ) . 16 South Australia v Tanner [1989] HCA 3; 166 CLR 161at 168. 17 Wotton v Queensland [2012] HCA 2; 86 ALJR 246 at [77] (Kiefel J). 18 Public Service Board (NSW) v Osmond [1986] HCA 7; 159 CLR 656. 19 Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [20]-[27]. Page 7 rationally applied.20 However, when reasons are available a new problem arises: if the declared reasoning is flawed, but the same result could have been reached by a logical and rational process, is the decision to be set aside? The answer given by the courts is that it must be, unless it was the only one reasonably open. Further, what if the reasons are inadequate to allow the reviewing court to determine whether the law has been correctly understood and logically applied? Assuming the decision was open or available, should the court conclude that error has not been demonstrated? There may be two answers to this question, depending upon the relief sought. If the relief sought is mandamus, the court might well conclude that, a legal duty not having been fully exercised, the matter should be sent back to the decision-maker for completion of the task. On the other hand, if the relief sought is a quashing of the decision, the court may have to consider, according to Project Blue Sky21 principles, whether the statutory obligation to give reasons was accompanied by a sanction rendering the decision invalid in the absence of “adequate” reasons. (c) Procedural fairness The third question involved procedural fairness. The duty to accord procedural fairness is undoubtedly a central element of the rule of law. It is concerned, not so much with the process of decision-making, as with the institutional process. Affected parties are entitled to an assessment of their claims or defences by an impartial tribunal. They must have an opportunity to present their respective cases and an opportunity to rebut matters material to the outcome and adverse to their interests. In Dranichnikov,22 in a passage affirmed in SZJSS23, Gummow and Callinan JJ said: “To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.” To call that a constructive failure to exercise jurisdiction is entirely appropriate, in accordance with the preceding analysis; to call it a failure to accord procedural fairness is to intrude procedural fairness into the decisional process where it has no justifiable role and can blur functional roles of the repository of the power and of the reviewing court. It is necessary now to add a footnote: there has been a major omission from the preceding discussion – no mention has been made of “jurisdictional error”. That is not only deliberate: it is part of my thesis. The phrase “jurisdictional error” has been 20 Avon Downs Pty Ltd v Commissioner of Taxation (Cth) [1949] HCA 26; 78 CLR 353. 21 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355. 22 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389. 23 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164. Page 8 described as a conclusory term, but none the worse for that.24 For some time I have accepted that view, but I no longer do. Casting a cloak over the body of principles governing judicial review is to obscure the functional analysis which must be understood and applied to ensure judicial review stays within its proper constitutional boundaries. Jurisdictional error is a label now used in the courts daily by those who do not realise that there can usually be judicial review for non-jurisdictional errors of law.25 Jurisdictional error has been cast adrift from its original function in administrative law and is now a freestanding constitutional concept encapsulating a limit on the legislative powers of the States. Kirk’s case, which caused this loss of direction, went further; it dismissed the semantic labels by which the heads of jurisdictional error had been identified in Craig,26 as non-exhaustive examples. That step may be applauded, but no alternative analysis was provided. I have expressed concern as to that omission in the past.27 The universal response, however, is a demand for an articulated alternative. This discussion is offered as a possible next step in the exercise. Xiujuan Li Against this background, it is necessary to consider how the High Court addressed these topics in Minister for Immigration and Citizenship v Xiujuan Li.28 This was not a promising case, on one view, for a restatement of fundamental principle. The applicant first applied for a visa on 10 February 2007. Her entitlement turned on an assessment of her skills as a cook. That assessment was to be made by a specified authority and depended upon her work experience in Australia. Her first application contained false information, although it seems not to have been determined whether the responsibility lay with the applicant or her migration agent. When challenged, she conceded the falsity of the information and then sought a further assessment. That assessment was unfavourable, but she claimed that it was based upon an error and sought time to seek a review of the assessment. The Migration Review Tribunal, considering her visa application, three years after it had been made, decided that she had had enough time to demonstrate compliance with the criteria. In January 2010, it rejected her application. It gave some brief reasons for proceeding to determine the application, noting that she had “been provided with enough opportunities to present her case”, apparently considering that it was entitled to rely upon the assessment which had been provided, albeit the unfavourable assessment had been challenged.29 24 M Aronson, “Jurisdictional error without the tears”, in Groves and Lee, Australian Administrative Law – Fundamentals, principles and doctrines (Camb UP, 2007) Ch 21 and Aronson and Groves, n 15 above, at [1.140] and [10.20]. 25 Absent an effective privative clause. 26 Craig v South Australia [1995] HCA 58; 184 CLR 163. 27 “The supervisory jurisdiction of the Supreme Courts”, (2011) 85 ALJ 273. 28 [2013] HCA 18. 29 At [3]. Page 9 The High Court unanimously held that that decision was so unreasonable as to demonstrate invalidity. Presumably the only decision reasonably available to the Tribunal was to grant the adjournment. On the facts, some might think the outcome surprising, but it is sufficient for present purposes to focus on the reasoning of the Court, which delivered three separate judgments. Hayne, Kiefel and Bell JJ wrote together, whilst French CJ and Gageler J each wrote separately. Although this was a straightforward case involving the exercise of a discretionary power, which invited consideration according to the well-established principles of Wednesbury unreasonableness, no member of the Court was satisfied to adopt that approach. In the result, the reasoning extends to 125 paragraphs and 50 pages. In the search for an authoritative statement of principle, it is necessary to focus on the joint reasons. There are four aspects of the joint reasons which invite consideration. First, the joint reasons drew upon the background and language found in Wade & Forsyth, Administrative Law.30 This course required caution. Not only is English public law significantly affected, in sometimes unarticulated ways, by the Human Rights Act, but more fundamentally in general law terms, by the abandonment of a discrete concept of ‘jurisdictional error’, usually traced to Anisminic.31 In reliance on Wade & Forsyth, the joint reasons adopted the language of “the rule of reason” and the “legal standard of reasonableness”, which is largely the language of Lord Greene in Wednesbury Corporation. However they continued at [68]: “The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury.” The reasons then refer to a passage in Wednesbury Corporation which is identified by Wade & Forsyth as demonstrating that “[t]he rule of reason has thus become a generalised rubric covering not only sheer absurdity or caprice, but merging into illegitimate motives and purposes, a wide category of errors commonly described as ‘irrelevant considerations’, and mistakes and misunderstandings which can be classified as self-misdirection, or addressing oneself to the wrong question”.32 The joint reasons appear to accept this explanation at [72] in the following terms: “The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness.” A footnote to that passage refers to s 5(2) of the ADJR Act, as an example of the tabulation of “more specific errors”. Whether or not that is helpful, may be doubted. 30 (10th ed, 2009). 31 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. 32 Wade & Forsyth, pp 303-304. Page 10 It appears to abandon the distinction between jurisdictional error and other errors of law. Secondly, the joint reasons referred to Minister for Aboriginal Affairs v Peko- Wallsend33 stating that Mason J “considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is ‘manifestly unreasonable’.” It should perhaps be assumed that there is a typographical error in this passage: to the administrative lawyer familiar with Peko-Wallsend, an “irrelevant” consideration is a prohibited consideration, namely the taking into account of an extraneous factor. Mason J actually referred to giving “excessive weight to a relevant factor of no great importance”. The joint reasons then continued: “Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.” This passage adds “error in reasoning” and “reasoned illogically or irrationally” as if these were self-evidently grounds of invalidity, and regardless of the statutory context. If they are to become such, it is surely necessary at least to acknowledge the fact that there is, as earlier noted, authority in the High Court which is squarely to the contrary. Thirdly, the joint reasons noted Mason J’s remark that “guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion”, referring to House v The King.34 The principle derived from that authority was in fact limited to the proposition that “unreasonableness” may be an inference “drawn from the facts and the matters falling for consideration”. What the High Court actually said in House v The King35 was as follows: “It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” 33 [1986] HCA 40; 162 CLR 24 at 41. 34 Li at [75]; Peko-Wallsend at 42. 35 [1936] HCA 40; 55 CLR 499 at 505. Page 11 This principle is well-understood in the area of judicial review of administrative action, especially in cases where no reasons are available.36 This is not so much a principle of judicial review, or the specification of a ground of review, but rather identification of a process by which error may be inferred from a patent mismatch between the material available to the decision-maker and the result. It is worth reminding oneself in this context that analogies are fraught with risk, if contextual difference is not borne in mind. Whatever the similarities of language used by the courts in respect of appellate jurisdiction and judicial review of administrative action, the functions in each case are separate. House, and similar cases dealing with civil jurisdiction, are not applied in relation to appeals limited to questions of law, but operate where the appellate court is conducting an appeal by way of rehearing on the facts. Secondly, although the language of discretion is commonly applied to a binary decision (such as granting or refusing an adjournment), where based on considerations requiring evaluative judgment, it is being applied to decisions which could legitimately fall anywhere within a range. These exercises are different. House was dealing with a sentencing appeal and therefore fell into the latter category. Fourthly, there is a passage in the middle of the discussion referred to above in the joint reasons where there is apparent endorsement, albeit obiter, of “a proportionality analysis by reference to the scope of the power”.37 Giving “excessive weight – more than was reasonably necessary” to a particular consideration, was described as “an obviously disproportionate response … by which a conclusion of unreasonableness may be reached”. Because the reasoning was undeveloped it might be unnecessary to say more about it, except that it will undoubtedly be relied upon by counsel in future cases. Again, there was no reference to the doubts cast on the use of proportionality as a basis of review in earlier authority. Nor was there acknowledgement of two important considerations in this area: first, proportionality review requires an assessment of the merits and thus, at least in Australian jurisprudence, strays beyond the proper scope of judicial review, as a matter of principle. Secondly, it involves heightened scrutiny of administrative decisions. The reason why these dicta cannot be entirely disregarded is that one senses a lowering of the barrier to judicial review of administrative decisions, except in the reasons of Gageler J. What is intriguing in Li’s case is that her challenge to the adverse assessment by the authority was ultimately successful: had it not been, there would have been no purpose in the judicial review of the adjournment decision, because without a favourable assessment she could not have ultimately succeeded in her visa application before the Tribunal. Of course, to rely upon a later event to challenge the refusal of the adjournment would not be permissible reasoning. On the other hand, the later event raises a question as to whether the real issue was the failure of the Tribunal to undertake some assessment of the strength of her claim which was, not merely that she was challenging the adverse assessment, but that she had good 36 See Avon Downs at 360. 37 At [73]-[74]. Page 12 prospects of success. (That challenge was made to a different body.) One might infer from the brief reasons given by the Tribunal (in effect, that “enough was enough”) that the Tribunal not only did not undertake that task, but thought it unnecessary or inappropriate. That might require the reviewing court to ask two further questions, namely: first, whether if the Tribunal did adopt that approach, it erred in law and, secondly, assuming it was in error, whether that was the kind of error which constituted a failure of the Tribunal to exercise its statutory jurisdiction. If, as the Court reminded us, the consequence of a failure involves an exercise in statutory interpretation, in accordance with Project Blue Sky, then might not the legislative provisions vesting procedural control in the Tribunal, taken with the privative clause in s 474 of the Migration Act, provide a strong statutory indication that such procedural errors were not intended to carry with them the consequences of invalidity? The judgments of French CJ and Gageler J might be thought to accord more closely with conventional authority in this country, with respect to both the statutory provisions and judicial review generally. However, each adopted a course which sought to establish a grand unifying theory based on what was described by French CJ as “the framework of rationality”. French CJ also flirted with concepts of “proportionality”,38 whilst eschewing the need to consider either the gap, or the bridge, between that concept and rationality. Gageler J, whilst referring at one point to the rather more flexible approach adopted in Canada in Dunsmuir v New Brunswick39 was emphatic in adhering to the limited degree of scrutiny undertaken under Wednesbury unreasonableness.40 Referring to the family law cases of Lovell v Lovell41 and Norbis v Norbis,42 Gageler J noted that “failure to give adequate weight to relevant considerations really amounts to a failure to exercise the jurisdiction actually entrusted to the Court”. He noted, by reference to Norbis, that it was harder to satisfy that standard “particularly when the administrative discretion is wide in its scope or is affected by policies of which the Court has no experience”. He was disinclined to think that those difficulties affected the decision of the Tribunal to refuse an adjournment.43 Gageler J (and I paraphrase), held that no great deference (my word) need be accorded to the Migration Review Tribunal reviewing an adjournment application, because that is close to the exercise of a judicial function. I am troubled by that approach: in some cases it may work, but in others, by abstracting a highly particular aspect from a broader context, there is a risk that vibrant colour will be reduced to a flat sepia. Why, then, is Xinjuan Li an important decision? First, because all members of the Court sought to locate broad underpinning principles of judicial review, which are 38 At [30]. 39 [2008] 1 SCR 190. 40 At [108]. 41 [1950] HCA 52; 81 CLR 513. 42 [1986] HCA 17; 161 CLR 513. 43 At [112]. Page 13 often somewhat glibly, described simply as inherent in the rule of law. That exercise is to be welcomed. Secondly, Gageler J drew attention to an insightful discussion by Sir Philip Sales, a member of the English High Court.44 Sales J adopted an approach to the development of the law in this area which is both flexible and incrementalist. He is wary about proportionality. He stated:45 “The adoption of proportionality as a general standard of review would represent a significant change in the law involving a shift in the balance of power between the judiciary and the political branches of government.” That is because, as he recognised, proportionality contemplates “a more intensive form of judicial review than the rationality/Wednesbury reasonableness standard”.46 On the other hand, Sales J emphasised a degree of flexibility implicit in the common law standards and statute law stating:47 “However, the qualifications or conditions which are identified as being presumptively implied into statutory powers may themselves be opentextured (such as the duty to act fairly or in accordance with natural justice or, indeed, the duty to act rationally) rather than narrowly formulated, so allowing the courts a margin of evaluation in working out how they should be applied on particular facts or in the face of changing social expectations and standards.” This element of flexibility was also accepted by Gageler J in Xinjuan Li, referring to the comment of the US Supreme Court in Universal Camera Corp v National Labor Relations Board48 that “[a] formula for judicial review of administrative action may afford grounds for certitude but cannot assure certainty of application”. The formula adopted should not, the Supreme Court suggested, be used “as an instrument of futile casuistry”. Curiously, Universal Camera Corp appears to have been cited in Australian cases on only two previous occasions. The earlier, a judgment of Davies J in the Federal Court, considered whether the “no evidence” ground of judicial review should extend, in accordance with US authority including Universal Camera, to sufficient evidence as a reasonable mind might require as adequate support for a conclusion.49 Davies J accepted that “the Wednesbury principle applies if a decision is so unsupported by the facts that no reasonable decision-maker would have made it”, but nevertheless, 44 “Rationality, proportionality and the development of the law” (2013) 129 LQR 223. 45 At 225. 46 At 226. 47 At 228. 48 340 US 474 at 488-489 (1951). 49 CA Ford Pty Ltd (T/as CA Ford Castors) v Comptroller-General of Customs [1993] FCA 560; 34 ALD 123. Page 14 noting the importance of not usurping the function of fact-finding reposed in the administrative body, declined to adopt a “sufficient evidence” standard.50 The second and much more recent case is a judgment of Robertson J in the Federal Court, relying on Universal Camera for the proposition that jurisdictional error was not to be rejected on the basis that the alleged error did not fall within “fixed categories or formulas”, which were to be seen as servants rather than masters.51 The call for flexibility is revealed as a need for a functional approach. To an extent, this may be recognised in the now frequent admonitions to pay “close attention” to the provisions of the governing statute. That, however, is only part of the exercise. It is also necessary to have regard to the nature of the interest which is in contention, the nature, including possible specialist expertise, of the tribunal or officer in whom decision-making power has been reposed and practical considerations as to the consequences of any tightening or relaxation in judicial control. If courts focus too narrowly on individual cases, they will miss the ramifications for the administration of government generally, which have both practical and constitutional elements.52 Sales J further noted that, “domestic judicial review took off in the 1960s”, referring to the English trilogy of Ridge v Baldwin, Padfield and Anisminic. He continued:53 “In each case the House of Lords took itself to be engaged in the interpretation of the statute in question, but the way in which it gave effect to it was based on values more favourable to individual interests and contrary to the claims of executive bodies than might have been adopted previously.” Similar developments occurred later in Australia but are undeniable. What is lacking in this country is the thorough assessment of the legitimacy of the process and an assessment of whether an appropriate balance has yet been achieved.54 Close attention to the terms of particular statutory provisions will not provide guidance as to broader “rule of law” values, which transparency of approach requires. These values can only be properly articulated by the courts: they set the rules. Xinjuan Li appears to demonstrate a growing consciousness of the need to engage with standards and intensity of review. The development is to be welcomed. Conclusion 50 The American principle derives from the express language of the Administrative Procedures Act 1947, which finds no reflection in the ADJR Act or other similar Australian statutes. 51 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [77]. Mining Universal Camera is becoming positively fashionable: Allianz Australia Insurance Ltd v Shamoun [2013] NSWSC 579 at [24] (McCallum J) 52 85 ALJ 273 at 293-294, referring to the work of JL Mashaw. 53 At 229. 54 Achieving a balance is not, of course, the end point in a process, but merely a staging post. Page 15 Let me finish with a morsel for further reflection – harking back to CA Ford, an antidumping case. It reminds one that perhaps the most important national interests arise in the field of economic regulation. Yet administrative law is being developed by reference to a discrete area of asylum-seeker related decisions and migration decisions more generally. The interests at stake are often important issues of individual human rights arising under the Refugees Convention. They may well provide a litmus test for the health of our civil society, but other areas of executive action may call for a differential application of principle. Some years ago, though less frequently now, State judges used to ask whether it was necessary to read “all these migration cases”. A standard reply was “Yes, they are where you find modern statements of administrative law”. But that may not be the full answer. That thought raised a novel question (for me): why are administrative law processes developing in some areas, but not others? One answer may lie in the other half of the 1970 administrative law reforms: namely the development of administrative appeal tribunals, with further appeals limited to questions of law. The burgeoning of modern administrative law cases may be occurring where there are no statutory rights of appeal, and especially where there are strong privative clauses. As both these features have merely forced review applications into a different (and now constitutionally protected) procedural channel one may wonder why governments do not abandon such techniques and confer a general single right of merit review of administrative decisions, combined with statutory rights of appeal limited to questions of law. Whether that course is ultimately embraced or not, the central point is that, in a functional approach, the interests at stake should influence the intensity of scrutiny of administrative decision-making. If “reasonableness” is to become the underpinning principle of judicial review, greater attention will need to be paid to the intensity of scrutiny accorded different kinds of decision. The result may be a binary choice between validity or invalidity, but the standard applied can e flexible. And courts must be prepared to state whether a particular aspect of executive power calls for heightened scrutiny, or something less, and why.