1. See eg J Goudie ‘Judicial Review’ in D Bean (ed) Law Reform for All (London: Blackstone, 1996) pp 134–138; and the works cited in nn 2-3, below.

2. See eg A Bradley ‘The Need for Legislative Intervention’ (1991) 141 NLJ 389 at 390.

3. See Bradley, above n 2; JUSTICE/All Souls Administrative Justice. Some Necessary Reforms (Oxford: Clarendon, 1988) paras 6.33–6.34. N Lewis and P Birkinshaw When Citizens Complain. Reforming Justice and Administration (Buckingham: Open University Press, 1993), despite their unbounded enthusiasm for matters Australian, are ambiguous on this point (at p 213). M Partington ‘The Reform of Public Law in Britain: Theoretical Problems and Practical Considerations’ in P McAuslan and J F McEldowney (eds) Law Legitimacy and the Constitution (London: Sweet & Maxwell, 1986) pp 191–211, whilst also reporting favourably on the condition of administrative law in Australia, falls short of advocating codification.

4. Much of what is said is relevant to the other jurisdictions within the British Isles, but given the different procedural and remedial frameworks which exist, the present article is limited in its territorial scope.

5. M Shapiro ‘Codification of Administrative Law: The US and the Union’ (1996) 2 European LJ 26 at 29.

6. See M John Politics and the Law in Late Nineteenth-Century Germany. The Origins of the Civil Code (Oxford: Clarendon, 1989).

7. F K von Savigny Of the Vocation of Our Age for Legislation and Jurisprudence (New York: Arno Press, 1975; reprint of 1831 translation by A Hayward) pp 33–34.

8. The comparison also shows how much attitudes within the Labour Party have changed. On which, see also K D Ewing ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 MLR 79 at 98–99.

9. J Griffith ‘Constitutional and Administrative Law’ in P Archer and A Martin (eds) More Law Reform Now: A Collection of Essays on Law Reform (Chichester: Rose, 1983) pp 49–66.

10. Above n 9, p 57.

11. Above n 9, p 58.

12. Above n 9, pp 58–59.

13. Goudie, above n 1.

14. J Jowell and A Lester ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ (1987) PL 368.

15. See, inter alia, his suggestion that ‘untenable conclusion of fact’ be included as a ground of judicial review (Goudie, above n 1, p 136).

16. This process can also be the result of judicial decision; some would argue that this was the effect of O'Reilly v Mackman (1983) 2 AC 237.

17. Bradley, above n 2, p 390.

18. Sir Harry Woolf Protection of the Public - A New Challenge (London: Stevens & Sons, 1990) p 32. See also J Jowell and P Birkinshaw ‘English Report’ in J Schwarze (ed) Administrative Law under European influence (London: Sweet & Maxwell, 1996) pp 273–332, at p 331: ‘One would not wish to kill the inspiration of the common law at its creative best.’

19. Law Commission Administrative Law: Judicial Review and Statutory Appeals (Consultation Paper No 126, 1993) p 1.

20. Now re-enacted in the Civil Procedure Rules, Appendix 1.

21. C Harlow ‘Codification of Administrative Procedures? Fitting the Foot to the Shoe or the Shoe to the Foot’ (1996) 2 European LJ 3 at 10, citing R v Dairy Products Tribunal ex p Casewell (1990) 2 AC 738.

22. Jowell and Lester, above, n 14.

23. C Harlow and R Rawlings Law and Administration (London: Butterworths, 2nd edn, 1997) ch 15.

24. R v Take-over Panel. ex p Guinness plc (1990) 1 QB 146 at 160. This ‘innominate ground’ was described as ‘an amalgam’ of Lord Diplock's GCHQ principles, ‘with perhaps added elements’ (per Lord Donaldson MR, (1990) 1 QB 146 at 160).

25. R Creyke ‘Introduction and Overview’ (1996) 24 Federal LR 221at 225.

26. Griffith, above n 9, p 58.

27. Contrast M Tushnet ‘Defending the Indeterminacy Thesis’ (1996) 16 Quinnipiac LR 339 at 351.

28. D Woodhouse In Pursuit of Good Administration. Ministers, Civil Servants and Judges (Oxford: Clarendon, 1997) p 201. She is writing here in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

29. L J Curtis ‘Judicial Review of Administrative Acts’ (1979) 53 Australian LJ 530 at 531.

30. Supreme Court Act 1981, s 31; RSC Ord 53.

31. Woodhouse, above, n 28, pp 227-228.

32. P Verkuil ‘Crosscurrents in Anglo-American Administrative Law’ (1986) 27 William and Mary LR 685 at 708.

33. Griffith, above n 9, p 59.

34. Above n 9, p 59.

35. R A Macdonald ‘Recommissioning Law Reform’ (1997) 35 Alberta LR 831 at 835 (citations omitted).

36. Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 at 410.

37. The addition is attributable to J McMillan ‘Recent Themes in Judicial Review of Federal Administrative Action’ (1996) 24 Federal LR 347 at 384.

38. See Electoral and Administrative Review Commission Report on Review of Administrative Actions and Decisions (Brisbane 1990) paras 5.39–5.43.

39. See, generally, W Gellhorn ‘The Administrative Procedure Act: The Beginnings’ (1986) 72 Virginia LR 219.

40. Note ‘The Federal Administrative Procedure Act: Codification or Reform?’ (1947) 56 Yale LJ 670 at 673.

41. G B Shepherd ‘Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics’ (1996) 90 Northwestern Univ LR 1557 at 1682–1683.

42. The contemporary citation for this section is 5 USCA s 706.

43. Attorney-General's Manual on the Administrative Procedure Act (Washington, DC, 1947) p 107.

44. Consolidated Edison Co v NLRB 305 US 197 (1938); NLRB v Remington Rand 94 F2d 862 (1938). Many of the leading authorities concern the use of the substantial evidence standard in labour relations legislation, but they are regarded as of wider application.

45. ICC v Louisville & NRR 227 US 88 at 91 (1913).

46. Richardson v Perales 402 US 389 at 401 (1971); Consolidated Edison Co v NLRB 305 US 197 at 229 (1938).

47. Stork Restaurant Inc v Boland 282 NY 256 (1940).

48. 522 US 359 (1998): 193 L Ed 2d 797.

49. 193 L Ed 2d at 816.

50. Attorney-General's Manual, above n 43, p 109.

51. See eg J Dickinson ‘Administrative Procedure Act: Scope and Grounds of Broadened Judicial Review’ (1947) 33 Am BAJ 434, 516.

52. Shepherd, above n 41, p 1665.

53. Above n 41, p 1665.

54. See eg J Cohen ‘Legislative Injustice and the Supremacy “of Law”’ (1947) 26 Nebraska LR 323 at 345.

55. See Allentown Mack Sales v NLRB 522 US 359 (1998); Universal Camera Corp v NLRB 340 US 474 (1951).

56. See KC Davis ‘Administrative Common Law and the Vermont Yankee Opinion’ (1980) Utah LR 3 at 3–4.

57. See the Revised Model State Administrative Procedure Act 1961 (1990).

58. See eg Chevron v NRDC 476 US 519 (1984), where the Supreme Court indicated that there should be rather greater judicial deference to the decisions of administrative agencies on matters of law.

59. Federal Court of Australia Act 1976 (Cth). See M Crock and R McCallum ‘Australia's Federal Courts: Their Origins, Structure and Jurisdiction’ (1995) 46 South Carolina LR 719.

60. But note the impact of the Migration Reform Act 1992 (Cth), discussed in the text accompanying nn 100-113, below.

61. Federal Court of Australia Act, s 6; see generally Australian Law Reform Commission Federal Jurisdiction (Adversarial Background Paper No 1, 1996).

62. (1999) 73 ALJR 584 at 637.

63. See M Aronson and B Dyer Judicial Review of Administrative Action (Sydney: Law Book Co, 1996) p 49.

64. Section 5(1)(a).

65. Section 5(1)(f).

66. J Goldring ‘Public Law and Accountability of Government’ (1984) 15 Federal LR 1 at 12.

67. (1985) 159 CLR 550 at 576. See also Humblin v Duffy (1981) 34 ALR 333 at 338, per Lockhart J: ‘It is legitimate and helpful to seek guidance from the general body of administrative law developed by the courts, especially in the United Kingdom and Australia, relating to the circumstances in which the prerogative writs… issue…’

68. Aronson and Dyer, above n 63, p 208.

69. Section 5(2).

70. Section 5(3).

71. Section 5(1)(e) and (2)(g).

72. For a full discussion of this ground of review, see T H Jones and R Thomas ‘The “No Evidence” Doctrine and the Limits to Judicial Review’ (1999) 8 Griffith LR 102. What follows is a simplified account.

73. Commonwealth Administrative Review Committee Report (Parliamentary Paper No 144, 1971) para 36(v).

74. H Whitmore ‘Administrative Law in the Commonwealth: Some Proposals for Reform’ (1972) 5 Federal LR 7 at 13.

75. Committee of Review of Prerogative Writ Procedures Report (Parliamentary Paper No 56, 1973) paras 41–43.

76. See the account of Wilcox J in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 169.

77. (1990) 170 CLR 321.

78. See especially Lamb v Moss (1983) 49 ALR 533.

79. Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1).

80. (1990) 170 CLR 321 at 337.

81. For an example of an administrative decision held to be sufficiently final and determinative, see Deloitte Touche v Australian Securities Commission (1996) 136 ALR 453; for two examples of decisions held to be insufficiently final and determinative, see Tasmanian Conservation Trust v Minister for Resources (1995) 127 ALR 580 and NSW Aboriginal Land Council v ATSIC (1995) 131 ALR 559. According to McMillan, above n 37, p 367: ‘It is fair to say that quite a deal of the analysis in the cases leads nowhere.’

82. R Creyke and G Hill ‘A Wavy Line in the Sand: Bond and Jurisdictional Issues in Judicial and Administrative Review’ (1998) 26 Federal LR 15 at 43 (see also at 20).

83. (1990) 170 CLR 321 at 328.

84. (1990) 170 CLR 321 at 357–358.

85. Although the Act did not come into force until 1980.

86. The precise status of ‘no evidence’ as a ground of judicial review under Australian common law is far from clear: see Szelagowicz v Stocker (1994) 34 ALD 16 at 20; Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150. The strongest common law authority is the decision of the High Court in Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473, where some members appeared to accept that the making of findings and the drawing of inferences in the absence of evidence could constitute an error of law.

87. See the apparent contradiction between the accounts given as to whether the Australian common law recognises a ‘no sufficient’ or ‘no probative’ evidence test: (1990) 170 CLR 321 at 355–356 and 359–360.

88. (1994) 35 ALD 16 at 21.

89. This is recognised in Sir Anthony Mason ‘Administrative Review: The Experience of the First Twelve Years’ (1989) 18 Federal LR 122 at 125.

90. W M C Gummow ‘Reflections on the Current Operation of the ADJR Act’ (1991) 20 Federal LR 128 at 129.

91. Applicants not infrequently commence proceedings concurrently under both Acts. Order 54A of the Federal Court Rules makes provision for a joint application to be made.

92. Gummow, above n 90, p 129.

93. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358.

94. Ironically enough, it was the decision of the High Court in Kioa v West (1985) 159 CLR 550 which opened the way for the application of the rules of procedural fairness to discretionary migration decisions.

95. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

96. (1996) 185 CLR 259. The same point was made emphatically by Brennan J in A-G (NSW) v Quin (1990) 170 CLR 1 at 35–36.

97. See Minister for Immigration v Eshetu (1999) 73 ALJR 746; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.

98. As said in Hanna v Plumer 380 US 460 at 471 (1965): ‘The line between “substance” and “procedure” shifts as the legal context changes.’

99. Jefferson, T. Letter to Charles Hammond (1821) In The Writings of Thomas Jefferson (Memorial Edition: Washington, DC, 1903-04) vol 15, p 331 Google Scholar.

100. The relevant provisions came into effect in September 1994.

101. The constitutionality of these provisions was upheld by a majority (4-3) of the High Court in Abebe v Commonwealth (1999) 73 ALJR 584.

102. Minster for Immigration v Eshetu (1999) 73 ALJR 746 at 756, per Gaudron and Kirby JJ. This is something of an understatement.

103. McMillan. above n 37, pp 356–357.

104. Migration Act 1958 (Cth), s 476(1)(f).

105. M Crock ‘Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?’ (1996) 18 Sydney LR 267 at 272.

106. Minister for Immigration v Eshetu (1999) 73 ALJR 746.

107. (1999) 73 ALJR 746 at 759, per Gaudron and Kirby JJ.

108. (1999) 73 ALJR 584 at 613.

109. (1999) 73 ALJR 746 at 757 (dissenting, but not on this point).

110. Eshetu v Minister for Immigration arid Multicultural Affairs (1997) 142 ALR 474 (Hill J); see generally M Crock and M Gibian ‘Before the High Court. Minister for Immigration arid Ethnic Affairs v Eshetu’ (1998) 19 Sydney LR 457.

111. Note the observations of McHugh J in Re The Minister for Immigration and Multicultural Affairs, ex p Durairajasingham (2000) HCA 1, paras 7–15.

112. See, in particular, the judgment of Gleeson CJ: (1999) 73 ALJR 746 at 753–755.

113. Note the customary prescience in the warning of Murphy J, in The Queen v Dunphy ex p Maynes(1977–78) 139 CLR 482 at 497, as to the risk of the review jurisdiction of the High Court becoming a surrogate appeals mechanism. He was speaking in the context of industrial relations, but the point is of more general applicability.

114. Migration Legislation Amendment (Judicial Review) Bill 1998 (Cth). An earlier legislative attempt (Migration Legislation Amendment Bill (No 4) 1997 (Cth)) to introduce a privative clause was not pursued in the face of opposition. For a restrained analysis of the earlier Bill, see C D Campbell ‘An Examination of the Provisions of the Migration Legislation Amendment Bill (No 4) 1997 Purporting to Limit Judicial Review’ (1997) 5 Aust J Adm Law 135.

115. The constitutionality of restricting access to the High Court in this way may be open to question; see Migration Legislation Amendment (Judicial Review) Bill 1998, Bills Digest No 90 (1998-99).

116. R v Hickman, exp Fox and Clinton (1945)70 CLR 598 at 616–617; R v Commonwealth Rent Controller, exp National Mutual Life Association of Australia Ltd (1947) 75 CLR 361 at 369, per Latham CJ and Dixon J (a seldom cited summary); and also Darling v NSW Casino Control Authority (1997) 191 CLR 602 at 629–635, per Gaudron and Gummow JJ. It should be pointed out that, contrary to Anisminic v Foreign Compensation Commission (1969) 2 AC 147, the distinction between jurisdictional error and error within jurisdiction remains of some significance in Australia; see eg Craig v South Australia (1994-95) 184 CLR 163 at 178–179.

117. Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 194.

118. Senate Legal and Constitutional Legislation Committee Consideration of Legislation Referred to the Committee: Migration Legislation Amendment (Judicial Review) Bill 1998 (April 1999) para 2.48.

119. G Hugo ‘Die Gesetze sind nicht die einzige Quelle der juristischen Warheiten’ (1812) 4 Civilistisches Magazin 89.

120. R M Unger Law in Modern Society: Towards a Criticism of Social Theory (New York: Free Press, 1976) pp 192–237.

121. T R S Allan Law, Liberty und Justice. The Legal Foundations of British Constitutionalism (Oxford: Clarendon, 1993) p 185.

122. See Verkuil, above n 32, p 707. This is a curious argument for him to make, given his view that the courts need a legislative mandate for their review function.

123. Minister for Immigration und Ethnic Affairs v Tech (1995) 183 CLR 273.

124. Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54.

125. Premalal v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 117. The judgment of Einfeld J is exemplary of a principled (Dworkinian) approach to judicial review.

126. See eg R v Uxbridge Magistrates Court, exp Adimi (Chouki) (1999) 4 All ER 520 (asylum seekers had a legitimate expectation under the UN Convention Relating to the Status of Refugees that they would not be prosecuted for possession of false documents on entry into the United Kingdom).

127. See eg R v Lord Saville of Newdigate, ex p B (No 2) (1999) 4 All ER 860 (anonymity of individual witnesses at the Bloody Sunday inquiry was justified by the genuine fear of reprisal attacks).

128. See G de Burca ‘Proportionality and Wednesbury Unreasonableness – The Influence of European Legal Concepts on UK Law’ (1997) 3 European Public Law 561.

129. See Thames Valley Electric Power Board v NZFP Pulp and Paper Ltd (1994) 2 NZLR 641; and, generally, J Caldwell ‘Judicial review: Review of the merits?’ (1995) NZLJ 343; J McLachlan ‘Substantive Fairness’ (1991) 2 Public Law Rev 12.

130. This is not to neglect the role of the second chamber in Parliament. Prima facie, the Australian Senate should be more of a restraint upon the government. The latter does not usually control the former and has no means to by-pass it, short of a dissolution. That said, the Migration Reform Act 1992 (Cth) was passed by the Senate. Senatorial opposition to the Migration Legislation Amendment (Judicial Review) Bill 1998 (Cth) has been fairly robust; see Senate Legal and Constitutional Legislation Committee, above n 118.

131. But note that in the United States also, Congress has seen fit to place limits on access to judicial review for illegal migrants; see the Illegal Immigration Reform and Immigrant Responsibility Act 1996. It is notable that one commentator explains it as the result of ‘Congressional distrust of and hostility towards the federal judiciary’: M I Medina ‘Judicial Review – A Nice Thing? Article III, Separation of Powers and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996’ (1997) 29 Connecticut LR 1525 at 1558.

132. Compare the anecdotal evidence recorded by S Sedley ‘The Sound of Silence: Constitutional Law Without a Constitution’ (1994) 110 LQR 270 at 285, as to the consideration by the Thatcher cabinet of restricting the scope of judicial review. But note that some form of judicial review seems to be necessitated by art 6(1) of the European Convention on Human Rights (and therefore by the Human Rights Act 1998); see eg Zander v Sweden, Judgment of 25 November 1993, Series A, No 279-B; (1993) 18 EHRR 175; and, generally. A W Bradley ‘Administrative Justice: A Developing Human Right?’ (1995) 1 European Public Law 347.

133. Crock, above n 105, p 296.

134. Crock, above n 105, refers to this as ‘the notion that judicial review involves the protection of justice and equity in the context of the rule of law and the protection of the rights of individuals affected by an exercise of administrative power’ . See also A H Hammond ‘Judicial review: the continuing interplay between law and policy’ (1998) PL 34 at 43.

135. See P P Craig ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ (1997) PL 467; and also T R S Allan ‘Fairness, Equality, Rationality: Constitutional Theory and Judicial Review’ in C Forsyth and I Hare (eds) The Golden Metwand arid The Crooked Cord. Essays in Public Law, in Honour of Sir William Wade (Oxford: Clarendon, 1998) pp 15–37.

136. An observation of von Savigny, above n 7, p 111, is pertinent: ‘Every government is to blame which is ignorant of, or disregards, the intelligence of its age.’

137. See eg Harlow and Rawlings, above n 23, pp 45–47.

138. Jefferson, T. Notes on Virginia Q.Xiii (1782) In Jefferson, above n 99, vol 2, p 162 Google Scholar.

139. The US Supreme Court has many times reaffirmed that the separation of governmental powers is essential to the preservation of liberty: see eg Mistretta v United States 488 US 361 at 380–383 (1989); Morrison v Olson 487 US 654 at 685–696 (1965).

140. See P Cane An Introduction to Administrative Law (3rd edn, Oxford: Clarendon, 1996) p 355.

141. Cane, above n 140, p 355.

142. Allan, above n 121, p 2. See also J W F Allison A Continental Distinction in the Common Law. A Historical and Comparative Perspective on English Public Law (Oxford: Clarendon, 1996) ch 7.

143. Allison, above n 142, p 240, queries the judiciary's capacity to perform this task in the absence of institutional reform, supported by a ‘separation of powers that facilitates both administrative expertise and judicial independence’.

144. See eg J Jowell ‘Courts and the Administration in Britain: Standards, Principles and Rights’ (1987-88) 22 Israel LR 409; Jowell and Lester, above n 14; and also J Jowell ‘Restraining the State: Politics, Principle and Judicial Review’ (1997) 50 CLP 189 at 210–211.

145. M Loughlin Legality and Locality. The Role of Law in Central-Local Relations (Oxford: Clarendon, 1996) p 410. In distinctive fashion, J Griffith ‘Principles and Politics and Public Law’ (1988) 26 Osgoode Hall LJ 833 at 853, points to the absence of judges with postgraduate degrees as one reason why ‘we look in vain for them to lead the way in the development of comprehensive principles in the field of public law’.

146. Contrast McMillan, above n 37.

147. Minister for Immigration v Eshetu (1999) 73 ALJR 746.

148. Davis, above n 56, p 14.

149. See eg R v Secretary of State for the Home Department, ex p Fayed (1997) 1 All ER 228.