In the middle of the 19th Century two seminal decisions of the English Courts applied what were then called the principles of natural justice1. In Dimes v Proprietors of Grand Junction Canal2, the House of Lords held that Lord Chelmsford, the Lord Chancellor, could not sit as a judge in a case in which he had a significant financial interest in one of the parties.
The second case, Cooper v Wandsworth Board of Works3, held that it had been unlawful for the Board to have demolished the plaintiff’s house under an order which it had made pursuant to a statutory power when it had not given the plaintiff the opportunity to appear before it to contest the making of the order. There Byles J4 traced the heritage of the rule, referring to observations of Fortescue J in 1723 in Dr Bentley’s Case5 where he said6:
“… God himself would not condemn Adam for his transgression until he had called him to know what he could say in his defence: Gen: iii.9”
Administrative decision-making which involves the application of these rules is not akin to Groucho Marx’ prescription for commercial success. He said:
“The key to success in business is honesty and fair dealing – if you can fake those you’ve got it made.”
The fact that the 19th Century cases, which I have mentioned, both involved the exercise of powers, one judicial, the other administrative, in respect of property should not be taken as confining the application of the rules of procedural fairness or other constraints attending the exercise of powers merely to proprietary rights. In both the 20thand the present century, accompanying the enormous growth in the size and reach of government, there has been an exponential expansion of the range of matters in which administrative decisions may be taken that affect people in their person or property. In the Commonwealth constitutional context there is a clear demarcation or separation of the powers given to the three branches of government: the executive, the Parliament and the judiciary. That division is conventional but not always apposite in the context of State and Territory decision-making.
However, whatever the source of power to make a decision of an administrative or quasi administrative nature, the Courts will approach judicial review informed by a presumption that the power conferred is likely to be affected by express or implied constitutional or legislative intentions that it is to be exercised by reference to certain considerations.
Some of these considerations will be examined after reflecting briefly on the rationale and scope of judicial review. Challenges and new developments will be touched upon with some suggestions to assist in the difficult and challenging tasks which fall to administrative decision-makers of ensuring that their decisions are made after adherence to the processes mandated by law.