Blind justice: the pitfalls for


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  1. Frequently judicial review is seen as an intrusion on the executive’s powers. However, that is not so at all. The historical source of judicial review lies in the protection by the courts of the royal prerogative which sought to prevent the usurpation of power by those who had not been authorized by law to exercise it. Prerogative relief ran from the Superior Courts at Westminster Hall in London not only to administrative decision-makers but also to other, inferior7, courts that had exceeded their jurisdiction or powers by doing that which they were not authorized to do by law.

  2. In the Australian context there is no exact equivalent because federal courts owe their existence and powers to the Constitution and laws made under it, while State Supreme Courts are no longer courts of unlimited jurisdiction8. It is an important and vital protection for a democratic society that the Superior Courts be able to supervise the exercise of administrative or quasi judicial power over or affecting persons or property.

  3. This supervisory jurisdiction has been seen by some as providing “judicial protection against Leviathan9. The rule of man, and its excesses and fallibilities, is supplanted by the rule of law. The intrusion of the executive into the area of reviewing its own conduct was stopped very early when Sir Edward Coke CJ famously told James I that the King is subject not to men, but to God and the law, and so his Majesty could not try cases10.

  4. Section 75(v) of the Constitution of the Commonwealth creates original jurisdiction in the High Court in all matters in which a writ of mandamus or prohibition, or an injunction is sought against an officer of the Commonwealth. The significance of s 75(v) was explained by Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v The Commonwealth11 as introducing:

“... into the Constitution of the Commonwealth an entrenched minimum provision of judicial review. There was no precise equivalent to s 75(v) in either of the Constitutions of the United States of America or Canada. The provision of the constitutional writs and the conferral upon this Court of an irremovable jurisdiction to issue them to an officer of the Commonwealth constitutes a textual reinforcement for what Dixon J said about the significance of the rule of law for the Constitution in Australian Communist Party v The Commonwealth12 . In that case, his Honour stated that the Constitution:
"is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption."13
The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them. The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action. Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this Court. The Court must be obedient to its constitutional function. In the end, pursuant to s 75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.”

  1. Although Parliaments frequently seek to limit the availability or scope of judicial review through the use of privative clauses14, Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ emphasized recently that there is15:

“… the "basic rule, which applies to privative clauses generally ... that it is presumed that the Parliament [or, it may be interpolated, a State parliament] does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies"16. In addition, it must also be presumed that a State parliament does not intend to cut down the jurisdiction of the Supreme Court of that State over matters of a kind ordinarily dealt with by the State Supreme Courts and which, if dealt with by those Courts, are amenable to the appellate jurisdiction of this Court under s 73 of the Constitution.”

  1. It is, of course, well established that it is for the repository of a power confided by statute to determine whether the power ought be exercised or not on the merits as the repository sees them17. The court’s responsibility is to review the procedure followed by the repository to ensure that the procedure conformed to what was required to be followed under the express or necessarily intended requirements of the statute and any applicable common law principles. Only if the repository conducted the procedure by which he, or she, or it reached the decision in a manner which did not conform with the conditions which the law mandated, does the power of the court to interfere with the decision arise. That power, previously described as prerogative, and now, in the Commonwealth context as “constitutional”, is to ensure that inferior tribunals and repositories of power do not exceed the jurisdiction which by law has been committed to them by, inter alia, adopting a step, a procedure, or a step in their procedures which was unauthorized.

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