Human Rights and Judicial Review in Australia and Canada: The Newest Despotism? 9781509907861, 9781509907892, 9781509907885

It is commonly asserted that bills of rights have had a ‘righting’ effect on the principles of judicial review of admini

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English Pages [321] Year 2017

Table of contents :
Foreword
Acknowledgements
Contents
Table of Cases
Table of Legislation
1
Introduction
I. The 'Righting' of Administrative Law?
II. This Book"s Contribution
III. A Note on Methodology
IV. The Scope of this Book
V. The Structure of this Book
Part I: Constitutional and Statutory Frameworks
2
The Framework for Judicial Review of Administrative Action in Australia
I. Australia"s Constitution
II. The Constitutional Status of Judicial Review
III. Statutory Judicial Review Frameworks
IV. Australia"s Human Rights Framework
V. Conclusions
3
The Framework for Judicial Review of Administrative Action in Canada
I. Canada"s Constitution
II. The Constitutional Status of Judicial Review
III. Privative Clauses and the Standard of Review
IV. Statutory Judicial Review Frameworks
V. Canada"s Human Rights Framework
VI. Conclusions
Part II: The Effects of Canada’s Rights Framework on Judicial Review
4
Procedural Fairness
I. Overview of Rights to Fairness
II. The Scope of the Common Law Duty to Afford Procedural Fairness
III. The Content of Fairness
IV. The Rationales for Fairness
V. Litigants" Use of Fairness
VI. Entrenchment of Procedural Fairness
VII. Conclusions
5
Controlling Discretion
I. A Brief History of Judicial Attitudes Towards Discretion
II. Controlling Discretion in Australia
III. Controlling Discretion in Canada
IV. Human Rights Controls on Discretion
V. Conclusions
6
Intensity of Review
I. Intensity Under the Classic Model
II. Intensity of Review in Australia
III. Intensity of Review in Canada
IV. Conclusions
7
Conclusions
Index

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HUMAN RIGHTS AND JUDICIAL REVIEW IN AUSTRALIA AND CANADA It is commonly asserted that bills of rights have had a ‘righting’ effect on the principles of judicial review of administrative action and have been a key driver of the modern expansion in judicial oversight of the executive arm of government. A number of commentators have pointed to Australian administrative law as evidence for this ‘righting’ hypothesis. They have suggested that the fact that Australia is an outlier among common law jurisdictions in having neither a statutory nor a constitutional framework to expressly protect human rights explains why A ustralia alone continues to take an apparently ‘formalist’, ‘legalist’, and ‘conservative’ approach to administrative law. Other commentators and judges, including a number in Canada, have argued the opposite: that bills of rights have the effect of stifling the development of the common law. However, for the most part, all these claims remain just that—there has been limited detailed analysis of the issue, and no detailed comparative analysis of the veracity of the claims. This book analyses in detail the interaction between administrative and human rights law in Australia and Canada, arguing that both jurisdictions have reached remarkably similar positions regarding the balance between judicial and executive power, and between broader fundamental principles including the rule of law, parliamentary sovereignty, and the separation of powers. It will provide valuable reading for all those researching judicial review and human rights. Volume 16 in the series Hart Studies in Comparative Public Law

Hart Studies in Comparative Public Law Recent titles in this series: Constitutionalising Secession David Haljan Parliaments and Human Rights Redressing the Democratic Deficit Edited by Murray Hunt, Hayley Hooper and Paul Yowell The Right to Freedom of Assembly A Comparative Study Orsolya Salát An Inquiry into the Existence of Global Values Through the Lens of Comparative Constitutional Law Edited by Dennis Davis, Alan Richter and Cheryl Saunders The Scope and Intensity of Substantive Review Traversing Taggart’s Rainbow Edited by Hanna Wilberg and Mark Elliott Entick v Carrington 250 Years of the Rule of Law Edited by Adam Tomkins and Paul Scott Administrative Law and Judicial Deference Matthew Lewans Soft Law and Public Authorities Remedies and Reform Greg Weeks Legitimate Expectations in the Common Law World Edited by Matthew Groves and Greg Weeks The Dynamics of Exclusionary Constitutionalism Mazen Masri Constitutional Courts, Gay Rights and Sexual Orientation Equality Angioletta Sperti Principled Reasoning in Human Rights Adjudication Se-Shauna Wheatle

Human Rights and Judicial Review in Australia and Canada The Newest Despotism?

Janina Boughey

OXFORD AND PORTLAND, OREGON 2017

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © Janina Boughey 2017 Janina Boughey has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives. gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2017. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50990-786-1 ePDF: 978-1-50990-788-5 ePub: 978-1-50990-787-8 Library of Congress Cataloging-in-Publication Data Names: Boughey, Janina, author. Title: Human rights and judicial review in Australia and Canada : the newest despotism? / Janina Boughey. Description: Oxford [UK] ; Portland, Oregon : Hart Publishing, 2017. | Series: Hart studies in comparative public law ; v. 16 | Includes bibliographical references and index. Identifiers: LCCN 2017002142 (print) | LCCN 2017003151 (ebook) | ISBN 9781509907861 (hardback : alk. paper) | ISBN 9781509907878 (Epub) Subjects: LCSH: Judicial review of administrative acts—Australia. | Administrative law—Australia. | Civil rights—Australia. | Judicial discretion—Australia. | Judicial review of administrative acts— Canada. | Administrative law—Australia. | Civil rights—Canada. | Judicial discretion—Canada. Classification: LCC K3412 .B68 2017 (print) | LCC K3412 (ebook) | DDC 347.71/012—dc23 LC record available at https://lccn.loc.gov/2017002142 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Foreword Judicial review is the primary vehicle by which the courts determine and enforce the legal limits of executive action. It protects ‘a basic element of the rule of law’,1 albeit that in Australia this is construed narrowly in terms of compelling the performance of public duties or enforcing restraints. As Brennan J said in Church of Scientology Inc v Woodward:2 Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.3

The importance of the availability of judicial review is underscored in Australia by the guarantee in the Constitution of the jurisdiction of the High Court to grant relief under s 75(v) where there has been jurisdictional error by an officer of the Commonwealth.4 Its importance is also underscored by the recognition that to deprive a State Supreme Court of its supervisory jurisdiction to enforce limits on the exercise of State executive power would be to ‘remove from the relevant State Supreme Court one of its defining characteristics’.5 Human rights instruments also seek to protect the rule of law. They typically aim to do this, however, much more substantively and with a direct, rather than incidental, focus upon the protection of an individual’s interests. This book addresses the relationship between administrative law and general human rights instruments. Dr Boughey poses the question: Have statutory and constitutional charters of rights affected the common law development of judicial review of administrative action? In other words, has the scope and intensity of judicial control over executive decision-making been increased by the introduction of human rights instruments? Has there been a ‘righting’ of administrative law? There has been speculation that this is so. To date, however, there has been limited detailed analysis of the inter-relationship between administrative law and human rights instruments, and no detailed comparative study. This book fills that gap. Dr Boughey chooses to respond to the critical question with meticulous compara tive analysis and rigorous academic scholarship. She compares the development and application of judicial oversight of the executive in jurisdictions which contain bills of rights—principally Canada, but also the State of Victoria and the Australian Capital Territory—with a jurisdiction which has no such comparable formal rights protection—the Commonwealth of Australia. 1

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 482 [5] (Gleeson CJ). (1982) 154 CLR 25. 3 ibid 70. 4 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 512 [98]. 5 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 581 [99]. 2

vi Foreword The book provides a compelling and wide-sweeping argument for the proposition that judicial review of administrative action in the Commonwealth of Australia and Canada has remained remarkably similar in scope and intensity, despite having developed along different paths, and that both jurisdictions have reached a remarkably similar position with respect to the balance between judicial and executive power. The conferral of authority on Canadian courts to review executive compliance with human rights, and the shift in Canadian judicial reasoning to one overtly informed by broad values and norms, has not turned Canadian courts into despots. The book will appeal to anyone with a serious interest in public law. It upholds the highest standards of academic scholarship. It makes a major contribution to the fields of both administrative law and human rights law. The book is a testament to the intellectual discipline of Dr Boughey and is an outstanding piece of work. Justice Pamela Tate Court of Appeal Supreme Court of Victoria 13 March 2017

Acknowledgements I owe my thanks to many people who have provided guidance, assistance and support to me in writing this book. First and foremost, I am forever indebted to Matthew Groves for his expert guidance and dedication as my PhD supervisor and mentor. It is a great privilege to be mentored by someone who is not only brilliant, but also encouraging, witty and extremely generous with his time and expertise. My great thanks are due to David Mullan and the Honourable Justice Pamela Tate for examining the thesis, which eventually became this book, and for their thoughtful comments and encouragement to publish the thesis. Their feedback, as well as that of the Hart reviewers, was immensely helpful in building the thesis into a book. I am very fortunate to work in a faculty full of exceptionally kind and clever people, many of whom have helped me by reading chapters of this book and discussing ideas. I am especially grateful to my Monash colleagues Lisa Burton Crawford, Azadeh Dastyari, Adam Fletcher and Natalia Antolak-Saper for their help and friendship. I have also received invaluable advice and assistance over the course of this project from many of Australia’s leading administrative law academics, notably: Mark Aronson, Robin Creyke, John McMillan and Greg Weeks. I am grateful to the University of Toronto Faculty of Law, and to David D yzenhaus in particular, for hosting my visit to Canada in 2012. The Canadian Library of Parliament, especially Barbara Pilek, provided assistance in my research, as did the Canadian Institute for the Administration of Justice. On my visit to Canada, and since, I benefitted from the expertise of a number of scholars who were kind enough to read versions of this book and related articles and spend time talking to me about my work, in particular: Geneviève Cartier, Paul Daly, David Dyzenhaus, Evan Fox-Decent, Grant Huscroft, Mary Liston and Lorne Sossin. Many friends and family members have provided support throughout this project, in various forms. Some have already been listed above, as I am lucky to count some exceptional public law scholars amongst my friends. In addition to those friends already mentioned above, I am especially thankful to my wonderful friends Nadia Belikopitov and Shanti Petronzio. I am also very grateful to my family, in particular to my parents, Mac and Leone, my sister, Kate, and Vallie and Frankie, for their love and encouragement. Finally, I could not have written this book, or at least not stayed moderately sane doing so, without the love and support of my husband, best friend, and favourite person, Shawn Boughey.

viii

Contents Foreword�� v Acknowledgements�� vii Table of Cases�� xiii Table of Legislation�� xxix 1. Introduction�� 1 I. The ‘Righting’ of Administrative Law?�� 1 II. This Book’s Contribution�� 4 III. A Note on Methodology�� 6 IV. The Scope of this Book�� 7 V. The Structure of this Book�� 12 A. Part I: Constitutional and Statutory Frameworks�� 12 B. Part II: The Effects of Canada’s Rights Framework on Judicial Review�� 13 Part I: Constitutional and Statutory Frameworks 2. The Framework for Judicial Review of Administrative Action in Australia�� 19 I. Australia’s Constitution�� 20 A. Overview�� 20 B. Supremacy�� 21 II. The Constitutional Status of Judicial Review�� 23 A. The High Court’s Jurisdiction Over Constitutional Matters�� 23 B. The High Court’s Jurisdiction to Review Administrative Action�� 26 i. Only Mandamus, Prohibition and Injunction?�� 28 ii. ‘Officers of the Commonwealth’�� 30 iii. The Role of Jurisdictional Error�� 32 C. The Entrenched Jurisdiction of State Supreme Courts�� 39 III. Statutory Judicial Review Frameworks�� 41 A. The Federal Administrative Decisions (Judicial Review) Act (ADJR Act)�� 41 i. Establishing a Simplified Review Procedure�� 43 ii. Providing a Right to Reasons�� 43 iii. Codifying the Grounds of Review�� 43 B. The Federal Court’s Other Source of Judicial Review Jurisdiction�� 44 C. The Effect of the ADJR Act�� 45

x Contents D. Judicial Review Legislation in the Australian States and Territories�� 51 E. Australia’s Generalist Tribunals�� 51 IV. Australia’s Human Rights Framework�� 52 A. Constitutional Rights�� 52 i. Express ‘Rights’�� 52 ii. Implied Constitutional ‘Rights’�� 53 B. Statutory Rights Protection Under Commonwealth Law�� 54 C. State and Territory Charters of Rights�� 55 V. Conclusions�� 59 3. The Framework for Judicial Review of Administrative Action in Canada�� 60 I. Canada’s Constitution�� 61 II. The Constitutional Status of Judicial Review�� 63 A. The Constitutional Place of Canadian Courts�� 63 B. Judicial Review Jurisdiction Over Constitutional Matters�� 65 C. Jurisdiction Over Non-Constitutional Administrative Errors�� 68 D. Alternative Sources of Constitutional Entrenchment�� 71 III. Privative Clauses and the Standard of Review�� 75 A. The Early Approach: Preliminary or Collateral Questions�� 76 B. Canada’s Break from the UK: New Brunswick Liquor�� 77 C. A Simpler Approach? Dunsmuir�� 81 IV. Statutory Judicial Review Frameworks�� 83 A. The Federal Courts Act (FCA)�� 83 B. The Effect of the FCA�� 87 C. Judicial Review Legislation in the Provinces�� 88 i. Ontario�� 88 ii. British Columbia�� 91 iii. Prince Edward Island�� 91 V. Canada’s Human Rights Framework�� 92 A. Overview of the Charter�� 92 B. Interaction Between the Charter and Administrative Law�� 93 i. The Scope of the Charter and Judicial Review of Administrative Action�� 94 ii. Administrative Decisions that Impact on a Charter Right�� 95 C. Other Sources of Rights Under Canadian Law�� 102 i. Statutory Charter of Rights�� 102 ii. An Implied Bill of Rights?�� 104 VI. Conclusions�� 106

Contents xi Part II: The Effects of Canada’s Rights Framework on Judicial Review 4. Procedural Fairness�� 111 I. Overview of Rights to Fairness�� 112 A. Rights to Fairness: Canada�� 112 i. Charter�� 112 ii. Canadian Bill of Rights, Sections 1(a) and 2(e)�� 115 B. Rights to Fairness: Australia�� 117 II. The Scope of the Common Law Duty to Afford Procedural Fairness�� 117 III. The Content of Fairness�� 123 A. The Content of Procedural Fairness at Common Law�� 123 B. Rejecting Substantive Legitimate Expectations�� 126 C. The Content of ‘Fundamental Justice’ Under the Charter and Bill of Rights�� 130 D. Fair Hearings Under the Victorian and ACT Charters�� 132 E. Reasons�� 133 F. The Rule Against Bias�� 139 G. Conclusions on the Content of Fairness�� 144 IV. The Rationales for Fairness�� 145 V. Litigants’ Use of Fairness�� 148 VI. Entrenchment of Procedural Fairness�� 150 A. The Australian Position�� 151 B. The Canadian Position�� 155 VII. Conclusions�� 158 5. Controlling Discretion�� 161 I. A Brief History of Judicial Attitudes Towards Discretion�� 163 A. The Ultra Vires Doctrine�� 165 B. The Classification of Functions�� 168 C. The Narrowing of Jurisdictional Errors�� 172 II. Controlling Discretion in Australia�� 173 A. The Grounds of Review�� 174 B. The Continuing Role of the Ultra Vires Doctrine�� 177 C. The Central Concept of Jurisdictional Error�� 179 III. Controlling Discretion in Canada�� 181 A. The Impact of Roncarelli v Duplessis�� 183 B. Grounds and Standards of Review�� 187 C. The Demise and Return (and Demise Again?) of Jurisdictional Error�� 193 IV. Human Rights Controls on Discretion�� 196 A. Charters of Rights�� 197 i. The Canadian Charter�� 198 ii. Statutory Rights Protection in the ACT and Victoria�� 199 iii. Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)�� 201

xii Contents B. Non-Statutory Sources of Rights as Limits on Discretion�� 202 i. Legality and Consistency in Australia�� 203 ii. Legality and Conformity in Canada�� 209 V. Conclusions�� 215 6. Intensity of Review�� 217 I. Intensity Under the Classic Model�� 218 A. The UK’s Departure from the Classic Model�� 220 II. Intensity of Review in Australia�� 225 A. Constitutional Entrenchment of the Legality/Merits Distinction�� 225 B. Unreasonableness and Proportionality�� 228 C. A Possible Shift in Direction?�� 233 D. Other Ways in which Australian Courts have Increased Review Intensity�� 238 III. Intensity of Review in Canada�� 243 A. Questions of Law�� 243 B. Questions of Fact and Merit�� 249 C. Procedural Fairness�� 256 D. A Culture of Justification�� 260 E. Intensity of Review of Decisions Limiting Charter Rights�� 264 F. Flexibility or a Spectrum?�� 270 IV. Conclusions�� 273 7. Conclusions�� 274 Index�� 281

Table of Cases Australia A v Corruption and Crime Commissioner (2013) 306 ALR 491�� 236 A & B v Children’s Court of Victoria [2012] VSC 589�� 150 Abebe v Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510�� 227 Al-Kateb v Godwin (2004) 219 CLR 562�� 205, 206 Ainsworth v Criminal Justice Commission (199) 175 CLR 564�� 125 Annetts v McCann (1990) 170 CLR 596�� 122, 151, 154 Applicant Y v Minister for Immigration and Citizenship (2008) 100 ALD 544�� 252 Attorney-General (Cth) v Colonial Sugar Co Ltd (1913) 17 CLR 644�� 20 Attorney-General (Cth) v R; Ex parte Australian Boilermakers’ Society (1957) 95 CLR 529�� 23 Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729�� 136 Attorney-General (NSW) v Quin (1990) 170 CLR 1�� 1, 25, 154, 173, 225, 226, 229 Attorney-General (Qld) v Kehoe [2001] 2 Qd R 350�� 136 Attorney-General (WA) v Marquet (2003) 217 CLR 545�� 22, 25 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321�� 229 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106�� 23, 53, 54 Australian Communist Party v Commonwealth (1951) 83 CLR 1�� 25, 41 Bank of New South Wales v Commonwealth (1948) 76 CLR 1�� 27 Bare v Independent Broad-Based Anti-Corruption Commission (2015) 326 ALR 198�� 38, 201 Bat Advocacy NSW Inc v Minister for Environment, Protection, Heritage and the Arts (2011) 180 LGERA 9�� 252 Bennett v Commonwealth (2007) 231 CLR 91�� 203 Biddle v Allan [2012] VSC 538�� 150 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651�� 27, 30, 35, 179 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245�� 23 Brewer v Castles (No 1) (1984) 1 FCR 55�� 31 Bruce v Cole (1998) 45 NSWLR 163�� 230 Building Construction Employees and Builders’ Labourers’ Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372�� 39 Campbelltown City Council v Vegan (2006) 67 NSWLR 372�� 136 Canberra Fathers and Children Inc v Michael Watson [2010] ACAT 74�� 200 Capital Property Developments (ACT) Pty Ltd v ACT Planning and Land Authority (2008) 2 ACTLR 44�� 117 Castles v Secretary to the Department of Justice (2010) 28 VR 141�� 200 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 272 ALR 750�� 31 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1�� 30, 206

xiv Table of Cases City of Collingwood v Victoria (No 2) [1994] 1 VR 652�� 39 Coleman v Power (2004) 220 CLR 1�� 206 Commissioner of Taxation v Futuris Corporation (2008) 237 CLR 146�� 32, 36, 39 Commonwealth v Mewett (1996–1997) 191 CLR 471�� 25 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135�� 166, 227 Coward v Allen (1984) 52 ALR 320�� 31 CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514�� 123 Craig v South Australia (1995) 184 CLR 163�� 36, 27 Cunliffe v Commonwealth (1994) 182 CLR 272�� 54, 229 Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602�� 40 Director of Public Prosecutions (SA) v B (1998) 194 CLR 566�� 173 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389�� 252 Eastman v Chief Executive Officer of Dept of Justice and Community Safety (2010) 172 ACTR 32�� 200 Ebner v Official Trustee (2000) 205 CLR 337�� 139 Edelsten v Wilcox (1988) 83 ALR 99�� 236 Edwards v Guidice (1999) 169 ALR 89�� 136 Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309�� 203 FAI Insurances Ltd v Winneke (1982) 151 CLR 342�� 119, 173 Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89�� 11 Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation (1990) 96 ALR 153�� 229 Forman and York v ACT Planning and Land Authority and Evans and Evans (2013) 279 FLR 54�� 174 FTZK v Minister for Immigration and Border Protection (2014) 88 ALJR 754�� 49, 176, 206 Gerhardy v Brown (1985) 159 CLR 70�� 25 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478�� 173, 178 Griffith University v Tang (2005) 221 CLR 99�� 46 Hakimi v Legal Aid Commission (ACT) (2009) 3 ACTLR 127�� 200 Hancock v Executive Director of Public Health [2008] WASC 224�� 136 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 160 CLR 648�� 122, 154 Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487�� 119, 122 In Re Judiciary and Navigation Acts (1921) 29 CLR 257�� 24 In the Marriage of Cormick (1984) 156 CLR 170�� 25 Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44�� 173 Johns v Australian Securities Commission (1993) 178 CLR 408�� 122 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309�� 206 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51�� 39, 40, 56 Khuu & Lee Pty Ltd v Corporation of the City of Adelaide (2011) 110 SASR 235�� 31 Kioa v Minister for Immigration and Ethnic Affairs (1984) 4 FCR 40�� 208 Kioa v West (1985) 159 CLR 550��44, 47, 50, 119–22, 151, 153, 208

Table of Cases xv Kirk v Industrial Court (NSW) (2010) 239 CLR 531��11, 35, 37–41, 132, 173, 180 Kracke v Mental Health Review Board (2009) 29 VAR 1�� 117, 132, 200 Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1�� 53, 54, 206 L & B Linings Pty Ltd v WorkCover Authority of NSW [2011] NSWSC 474�� 137 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520�� 11 Langer v Commonwealth (1996) 186 CLR 302�� 53 Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 418�� 252 Leeth v Commonwealth (1992) 174 CLR 455�� 23 Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290�� 203 Marine Hull and Liability Insurance Pty Ltd v Hurford (1985) 10 FCR 234�� 122 Mauro v Hooper [2008] SASC 159�� 136 McCloy v NSW (2015) 89 ALJR 857�� 53, 237 McGinty v Western Australia (1996) 186 CLR 140�� 23, 274 Mickovski v Financial Ombudsman Service Ltd (2012) 91 ACSR 106�� 31 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24�� 167 Minister for Arts, Heritage and Environment v Peko Wallsend Ltd (1987) 75 ALR 218�� 173 Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280��237–38 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11��148, 236–37 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326�� 124, 129, 148 Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414�� 204 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332�� 38, 178, 233–38, 276 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164�� 252, 253 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611�� 49, 475, 176, 227, 240 Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505�� 136 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273�� 124, 129, 154, 206, 208, 209, 211–14, 216 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259�� 33, 227 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611�� 33, 227, 240 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323�� 33, 179, 227 Minister for Immigration and Multicultural Affairs; Ex parte Jia (2001) 205 CLR 507�� 139 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992�� 49, 175 Momcilovic v The Queen (2011) 245 CLR 1�� 57, 203, 231, 232 Monis v The Queen (2013) 249 CLR 92�� 53 Muin v Refugee Review Tribunal (2002) 190 ALR 601�� 48 MZZXM v Minister for Immigration and Border Protection [2016] FCA 405�� 148 Nabbs v Nadrinos & Ors [2013] VSC 419�� 174

xvi Table of Cases NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470�� 132, 252 NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277�� 46 New South Wales v Commonwealth (1915) 20 CLR 54 (Wheat Case)�� 20, 23 New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307�� 229 NZA v Minister for Immigration and Citizenship (2013) 59 AAR 294�� 174 P J B v Melbourne Health [2011] VSC 327�� 58, 200 Pancontinental Mining Ltd v Burns (1994) 52 FCR 454�� 31 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369�� 32, 239 Pham v Nguyen [2013] VSC 295�� 150 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (Offshore Processing Case)�� 31, 121, 178, 207, 208 Plaintiff M64-2016 v Minister for Immigration and Boarder Protection (2015) 90 ALJR 197�� 237 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (Malaysia Declaration Case)��49, 176, 206–08, 240–42, 279 Plaintiff M79-2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336�� 174 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636�� 8, 122, 154, 155, 176, 177 Plaintiff S156-2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28�� 178, 208, 243 Plaintiff S157 v Commonwealth (2003) 211 CLR 476��24, 27, 30, 34–36, 38, 41, 74, 159, 178, 180, 203, 229 Potter v Minahan (1908) 7 CLR 277�� 152, 203 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155�� 229 Primaplas Pty Ltd v Chief Executive Officer of Customs [2016] FCAFC 40��248–49 Public Service Board of NSW v Osmond (1986) 159 CLR 656��43, 135–37, 139 R v Arndel (1906) 3 CLR 557�� 29, 164, 169 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100�� 49, 166 R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415�� 32 R v Commonwealth Court of Conciliation and Arbitration and the President thereof; ex parte Whybrow & Co (1910) 11 CLR 1�� 31 R v Debono [2013] VSC 407�� 58 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598�� 32 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254�� 23, 231 R v MacKellar; Ex parte Ratu (1977) 137 CLR 461�� 120 R v Murray and Cormie; Ex parte Commonwealth (1916) 22 CLR 437�� 31 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170�� 173 R v Williams (2007) 16 VR 168�� 132 Re Carmody; Ex parte Glenman (2003) 198 ALR 259�� 31 Re Lifestyle Communities Ltd (No 3) (2009) 31 VAR 286�� 200 Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372�� 30 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59�� 48, 174, 179, 229

Table of Cases xvii Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1�� 122, 124, 128, 193, 208, 230 Re Minister for Immigration and Ethnic Affairs; Ex parte Miah (2001) 206 CLR 57�� 125, 152, 153, 154 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212�� 137, 138 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S134/2002 (2003) 211 CLR 441�� 50 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82��27, 30, 33–34, 35, 37, 38, 41, 154 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW (2007) 4 DDCR 607�� 136 Roach v Electoral Commissioner (2007) 233 CLR 162�� 54 Rowe v Electoral Commissioner (2010) 243 CLR 1�� 54 Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414�� 200, 230 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252��152–154, 176, 203 Salemi v MacKellar (No 2) (1977) 137 CLR 396�� 120, 122, 151 Secretary, Department of Human Services v Sanding [2011] VSC 42�� 117 Sherlock v Lloyd (2010) 27 VR 434�� 136 Soliman v University of Technology, Sydney (2012) 296 ALR 32�� 136 South Australia v O’Shea (1987) 163 CLR 378�� 125 South Australia v Slipper (2004) 136 FCR 259�� 122 South Australia v Totani (2010) 242 CLR 1�� 54, 203, 274 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211�� 53 Stewart v Ronalds (2009) 232 FLR 331�� 173 Strangio v Magistrates’ Court of Victoria [2013] VSC 496�� 150 Sydney Ferries v Morton [2010] NSWCA 156�� 136 SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995�� 49 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152�� 148 SZTRP v Minister for Immigration v Anor [2015] FCA 2067�� 148 SZURI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80�� 148 SZWFB v Minister for Immigration and Citizenship [2007] FCA 167�� 49 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55�� 239 Theophanous v Herald Weekly Times (1994) 182 CLR 104�� 53 Thompson v Randwick Corporation (1950) 81 CLR 87�� 219 Twist v Randwick Municipal Council (1976) 136 CLR 106�� 119 Unions NSW v New South Wales (2013) 252 CLR 530�� 53 Vakuata v Kelly (1989) 167 CLR 568�� 139 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78�� 122 VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88�� 148 Victoria v Commonwealth and Hayden (1975) 134 CLR 338�� 25, 225 WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511�� 148 Waddington v Magistrates’ Court of Victoria and Kha (No 2) [2013] VSC 34�� 150 Wainohu v New South Wales (2011) 243 CLR 181�� 54

xviii

Table of Cases

WASB v Minister for Immigration and Citizenship (2013) 217 FCR 292 ......................... 236 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492.................................................................................................................. 169 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 88 ALJR 52 ................................... 137 Yager v The Queen (1977) 139 CLR 28 ........................................................................... 206 Zheng v Cai (2009) 239 CLR 446.................................................................................... 154 Canada AB v Canada (Minister of Citizenship and Immigration) [2010] 1 FCR 505 ...................... 87 Agraira v Canada (Public Safety and Emergency Preparedness) [2013] 2 SCR 559 .................................................................................................... 128, 138, 244 Ahmed v Canada (Citizenship and Immigration) 2015 FC 876 ........................................ 149 Air Canada v Toronto Port Authority [2013] 3 FCR 605 ................................................... 95 Alberta Health Services v Alberta Union of Provincial Employees (2012) 68 Alta LR (5th) 54 ...................................................................................................... 259 Alberta Union of Provincial Employees v Lethbridge Community College [2004] 1 SCR 727 ...................................................................................................................... 80 Alberta (Assured Income for the Severely Handicapped, Director) v Januario (2013) 89 Alta L R (5th) 246 ................................................................................................... 251 Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association [2011] 3 SCR 654........................................................................ 134, 135, 194, 196, 245, 247, 248, 262, 271 Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401 [2013] 3 SCR 733 ................................................................... 62, 211 Alex Coutoure v Canada (Attorney General) [1991] RJQ 2534 ....................................... 140 Amax Potash Ltd v Saskatchewan [1977] 2 SCR 576 ........................................................ 66 Attawapiskat First Nation v Canada 2012 FC 948 ............................................................ 95 Attorney General of Québec v Grondin [1983] 2 SCR 364 ................................................ 68 Attorney General of Canada v Law Society of British Columbia [1982] 2 SCR 307........... 84 Authorson v Canada (Attorney General) [2003] 2 SCR 40 .............................................. 116 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 (Baker)................................................................... 50, 72, 79, 86, 97, 99, 100, 106, 124, 125, 130, 131, 133, 135, 147, 156, 161, 162, 170, 182, 188, 189–93, 198, 210, 211, 212–14, 216, 249–54, 256, 257, 259, 260, 261, 263, 274, 277 Barrie Public Utilities v Canadian Cable Television Association [2003] 1 SCR 476 ............ 80 Barton v Nova Scotia (Attorney General) [2014] NSJ No 266; R v SEL [2012] 537 AR 68 ...................................................................................................................... 10 Bell Canada v Canadian Telephone Employees Association [2003] 1 SCR 884 .................................................................................................... 139, 140, 142 Bell Canada v Canada (Human Rights Commission) [2001] 3 FC 481 ............................ 116 Bernard v Canada (Attorney General) 2014 SCC 13 ........................................................ 246 Bezaire v Windsor Roman Catholic Separate School Board (1992) 9 OR (3d) 737 ............ 90 Bisaillon v Keable [1983] 2 SCR 60 ................................................................................... 11 Black v Canada (Prime Minister) (2001) 54 OR (3d) 215 .................................. 88, 181, 182 Blanco v Her Majesty the Queen [2003] 231 FTR 3 ........................................................ 181

Table of Cases xix Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307�� 4, 97, 113, 114, 149 British Columbia v Imperial Tobacco Canada Ltd [2005] 2 SCR 473�� 73, 74 British Columbia Packers Ltd et al v Smith (1961) 28 DLR 711�� 84 British Columbia (Attorney General) v Christie [2007] 1 SCR 873�� 74 British Columbia (Provincial Agricultural Land Commission) v Pickell [1980] 19 BCLR 148�� 184 British Columbia (Workers’ Compensation Board) v Figliola [2011] 3 SCR 422�� 245 Campbell v Minister of Finance for Prince Edward Island [1980] 26 Nfld & PEIR 288�� 185 Canada v Schmidt [1987] 1 SCR 500�� 181 Canada Fishing Co Ltd et al v Smith et al (1961) 28 DLR (2d) 41�� 84 Canada Labour Relations Board v Paul L’Anglais Inc [1983] 1 SCR 147�� 84 Canada (Attorney General) v Barnaby [2015] 2 SCR 563�� 149, 259 Canada (Attorney General) v Bedford [2013] 3 SCR 1101�� 114, 130 Canada (Attorney General) v Central Cartage Co (No 1) [1990] 2 FC 641�� 116 Canada (Attorney General) v Downtown Eastside Sex Workers United against Violence Society [2012] 2 SCR 524�� 202 Canada (Attorney General) v Igloo Vikski 2016 SCC 38��248–49 Canada (Attorney General) v Kane [2012] 3 SCR 398�� 190, 191, 250 Canada (Attorney General) v Mavi [2011] 2 SCR 504�� 124, 128, 157, 257 Canada (Attorney General) v Prince Edward Island (Legislative Assembly) (2003) 46 Admin L R (3d) 171�� 91 Canada (Attorney General) v Purcell [1996] 1 FC 644�� 185 Canada (Attorney General) v TeleZone Inc [2010] 3 SCR 585�� 72 Canada (Canadian Human Rights Commission) v Canada (Attorney General) [2011] 3 SCR 471�� 245, 247, 248 Canada (Citizenship and Immigration) v Khosa [2009] 1 SCR 339�� 86, 87, 157, 256, 271 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748��79–81 Canada (Minister for Citizenship and Immigration) v Tobiass [1997] 3 SCR 391�� 88 Canada (Minister for National Revenue) v Coopers and Lybrand [1979] 1 SCR 495�� 182 Canada (Revenue Agency) v Telfer 2009 FCA 23�� 192 Canadian Blood Services v Freeman [2010] 217 CRR (2d) 153�� 94 Canadian Egg Marketing Agency v Richardson [1998] 3 SCR 157�� 112 Canadian Pacific v Matsqui Indian Band [1995] 1 SCR 3�� 142, 143 Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corporation [1979] 2 SCR 227 (New Brunswick Liquor)��77–82, 182, 189, 191, 193, 243, 250 Canadian Union of Public Employees v Ontario (Minister of Labour) [2003] 1 SCR 539�� 112, 141, 256 Caplin v Canada (Justice) [2015] 2 SCR 570�� 149 Cardinal v Kent Institution [1985] 2 SCR 643�� 119, 146, 147 Carter v Canada (Attorney General) [2015] 1 SCR 331�� 113, 114, 115 Casino Nova Scotia v Nova Scotia (Labour Relations Board) (2009) 273 NSR (2d) 370�� 261 Catalyst Paper Corp v North Cowichan (District) [2012] 1 SCR 5�� 72, 73, 191, 193, 270

xx Table of Cases Chieu v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 84�� 80 Chirivi v Canada (Citizenship and Immigration) 2015 FC 1114�� 149 City of Montreal v Arcade Amusements Inc [1985] 1 SCR 368�� 186 Committee for Justice and Liberty v National Energy Board [1978] 1 SCR 369�� 139 Communications Energy and Paperworkers Union of Canada Local 30 v Irving Pulp and Paper Ltd [2013] 2 SCR 458�� 248 Construction Labor Relations v Driver Iron Inc [2012] 3 SCR 405�� 138 Cook v Canada (Minister of Aboriginal Relations & Reconciliation) [2008] 80 BCLR (4th) 138�� 181 Copello v Canada (Minister of Foreign Affairs) [2002] 3 Admin L R (4th) 214�� 181 Crevier v Attorney General of Québec [1981] 2 SCR 220��68–71, 74, 75, 90, 91, 195, 196 Cuddy Chicks Ltd v Ontario (Labour Relations Board) [1991] 2 SCR 5�� 198 CUPE Local No 301 v Montreal (City) [1997] 1 SCR 793�� 133 Del Vecchio v Canada (Minister for Public Safety and Emergency Preparedness) [2011] 398 FTR 75�� 187 Deri v Canada (Citizenship and Immigration) 2015 FC 1042�� 149 Desjardins v Bouchard [1983] 2 FC 641�� 119 Dhaliwal v Canada (Citizenship and Immigration) 2015 FC 1010�� 149 Domtar v Québec [1993] 2 SCR 756�� 187 Doré v Barreau du Québec [2012] 1 SCR 395 (Doré)��98–101, 108, 150, 198–201, 217, 218, 259, 265, 266, 268, 269, 270, 274, 277 Dr Q v College of Physicians and Surgeons of British Columbia [2003] 1 SCR 226�� 72, 189, 192 Douglas Aircraft of Canada Ltd v McConnell [1980] 1 SCR 245�� 166 Douglas/Kwantlen Faculty Association v Douglas College [1990] 3 SCR 570�� 94 Dunsmuir v New Brunswick [2008] 1 SCR 190 (Dunsmuir)��72, 73, 75, 81–83, 99, 100, 138, 147, 173, 175, 191, 192, 193–96, 198, 243–47, 256, 258, 261, 262, 263, 266, 270, 271, 277 Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624�� 94 Elliott v Canada 2015 FC 877�� 149 Ewert v Canada 2015 FC 1093�� 149 Ezokola v Canada (Citizenship and Immigration) [2013] 2 SCR 678�� 214, 246 Febles v Canada (Citizenship and Immigration) [2014] 3 SCR 431 �� 246 Fisher v Canada (Attorney General) 2015 FCA 127�� 149 Forest Ethics Advocacy Association v Canada (Attorney General) [2015] 4 FCR 75�� 258 Forget v Québec (Attorney General) [1988] 2 SCR 90�� 186 Fraser v Public Service Staff Relations Board [1985] 2 SCR 455�� 105 Friends of the Earth v Canada (Governor in Council) [2009] 3 FCR 201�� 181 Futuris Inns Canada Inc v Nova Scotia (Labour Relations Board) (1997) 160 NSR (2d) 241�� 133 Gigliotti v Conseil d’Administration du Collège des Grands Lacs [2005] 76 OR (3d) 561�� 134 Godbout v Longueuil (City) [1997] 3 SCR 844�� 113 Gosselin v Québec (Attorney General) [2002] 4 SCR 429�� 114 Gough v Canada (National Parole Board) [1991] 1 FC 160�� 113

Table of Cases xxi Greater Vancouver Transport Authority v Canadian Federation of Students–British Columbia Component [2009] 2 SCR 295�� 94 Greenisle Environmental Inc v New Brunswick (Minister for Environment and Local Government [2007] NBR (2d) 161�� 186 Hailu v Canada (Citizenship and Immigration) 2015 FC 1096�� 150 Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission) [2012] 1 SCR 364 14�� 262 Hardy Estate v Canada (Attorney General) 2015 FC 1151�� 149 Henry v British Columbia (Attorney General) [2015] 2 SCR 214�� 10 Hogan v The Queen [1975] 2 SCR 574�� 102 Howard v Stony Mountain Institution [1984] 2 FC 642�� 113 Hutfield v Board of Fort Saskatchewan General Hospital District No 98 (1986) 24 Admin L R 250�� 119 Imperial Oil Ltd v Québec (Minister of the Environment) [2003] 2 SCR 624�� 139, 157 Irwin Toy Ltd v Québec (Attorney General) [1989] 1 SCR 927�� 112 Islands Protection Society v British Columbia (1979) 98 DLR (3d) 504�� 91 Ismail v British Columbia (Human Rights Tribunal) (2013) 52 BCLR (5th) 295�� 266, 268 IWA Local 2-69 v Consolidated Bathurst Packaging Ltd [1990] 1 SCR 282�� 141 John Doe v Canada 2015 FC 916�� 149 Kakkar v Canada (Minister of Citizenship and Immigration) [2003] 27 Imm L R (3d) 202�� 254 Kamel v Canada (Attorney General) 2013 FCA 103 (16 April 2014)�� 266 Kane v Board of Governors of University of British Columbia [1980] 1 SCR 1105�� 94 Kane v Canada (Attorney General) (2011) 328 DLR (4th) 193�� 190 Kanthasamy v Canada (Citizenship and Immigration) [2015] 3 SCR 909�� 251, 254, 256 Katz v Vancouver Stock Exchange (1995) 14 BCLR (3d) 66�� 142 Keen v Canada (2009) FTR 270�� 142 Khadr v Canada (Attorney General) [2007] 2 FCR 218�� 88, 182 King v University of Saskatchewan [1969] SCR 678�� 140 Kisana v Canada (Minister of Citizenship and Immigration) [2010] 1 FCR 360�� 254 Knight v Indian Head School Division No 19 [1990] 1 SCR 653�� 94, 119, 147, 148, 156 Knox v Conservative Party of Canada (2007) 286 DLR (4th) 129�� 95 Kourtessis v Canada (Minister of National Revenue) [1993] 2 SCR 53�� 85 Lachine General Hospital Corporation v Québec (Procureur général) [1996] RJQ 2804�� 186 Lake v Canada (Minister of Justice) [2008] 1 SCR 761�� 133, 250, 251, 253 Lalonde v Ontario (Commission de Restructuration de Services de Santé) (2001) 208 DLR (4th) 577�� 106, 211 Langolis v Valin [1879] 5 QLR 1�� 66 Legare v Calgary Municipal Planning Commission [1972] 5 WWR 609�� 184 Legault v Canada (Minister of Citizenship and Immigration) [2001] 3 FC 277�� 254 Letter Carriers’ Union of Canada v Canadian Union of Postal Workers [1975] 1 SCR 178�� 66 Loyola High School v Québec (Attorney General) [2015] 1 SCR 613 (Loyola)��101, 265–70, 275, 277 MacMillan Bloedel Ltd v British Columbia (Forests) (1984) 8 DLR (4th) 33�� 186

xxii Table of Cases MacMillan Bloedel Ltd v Simpson [1995] 4 SCR 725�� 70, 71 Malambu v Canada (Citizenship and Immigration) 2015 FC 763�� 150 Manitoba Provincial Judges Association v Manitoba (Minister of Justice) [1997] 3 SCR 3 (Provincial Judges Reference)�� 63, 105 Maritime Broadcasting System Ltd v Canadian Media Guild (2014) 373 DLR (4th) 16�� 258 Martineau v Matsqui Disciplinary Board [1980] 1 SCR 602�� 94, 118 Masters v Ontario (1993) 16 OR (3d) 439�� 89, 90, 95 McBain v Canada (Human Rights Commission) [1985] 1 FC 856�� 141 McCarthy v Calgary Roman Catholic Separate School District No 1 [1979] 4 WWR 725�� 118 McCormack v Fasken Martineau Du Mouin LLP [2014] 2 SCR 108 �� 247 McDonald v Anishinabek Police Service (2006) 83 OR (3d) 132�� 95 McGauley v British Columbia (Finance and Corporate Relations) (1988) 23 BCLR (2d) 137�� 185 McIlvenna v Greater Sudbury (City) [2014] OJ No 2578�� 10 McKenzie v British Columbia (Minister of Public Safety) (2006) 61 BCLR (4th) 75�� 142 McKinney v University of Guelph [1990] 3 SCR 229�� 94 McLean v British Columbia (Securities Commission) [2013] 3 SCR 895�� 134, 135, 248, 262 Metropolitan Life Insurance Co Ltd v International Union of Operating Engineers [1970] SCR 425�� 77, 185, 187 Misra v College of Physicians & Surgeons (Saskatchewan) [1988] 70 Sask R 116��140–41 Mission Institution v Khela [2014] 1 SCR 502�� 85, 256, 258, 262 Mohr v Vancouver, New Westminster and Fraser Valley District Council of Carpenters (1988) 33 Admin L R 15 154�� 91 Montreal (City) v Montreal Port Authority [2010] 1 SCR 427�� 72, 250, 251 Moore v British Columbia (Education) [2012] 3 SCR 360�� 247 Moore v Minister of Manpower and Immigration [1968] SCR 839�� 184 Mount Sinai Hospital Center v Québec (Minister for Health and Social Services) [2001] 2 SCR 281�� 50, 112, 127, 128, 192, 265 Mouvement laïque québécois v Saguenay (City) [2015] 2 SCR 3�� 73 Multani v Commission scolaire Marguerite-Bourgeouys [2006] 1 SCR 256��96–99 Najafi v Canada (Minister of Public Safety and Emergency Preparedness) [2013] 19 Imm L R (4th) 122�� 266 National Corn Growers Association v Canada (Import Tribunal) [1990] 2 SCR 1324�� 79 New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) [1993] 1 SCR 319�� 63 New Brunswick (Minister of Health and Community Services) v G(J) [1999] 3 SCR 46�� 113, 114 Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) [2011] 3 SCR 708�� 138, 256, 261, 263 Nicholson v Haldimand-Norfolk Regional Police Commissioners [1979] 1 SCR 311�� 118, 119, 156, 187 Nipawin District Staff Nurses Association et al [1975] 1 SCR 382�� 185, 187 Nolan v Kerry (Canada) Inc [2009] 2 SCR 678�� 194

Table of Cases xxiii Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals [2011] 3 SCR 616�� 194, 245 Northern Telecom Ltd v Communications Workers of Canada [1980] 1 SCR 115�� 198 Northwood Inc v British Columbia (Forest Practices Board) (2001) 86 BCLR (3d) 215�� 80 Nova Scotia (Worker’s Compensation Board) v Martin [2003] 2 SCR 504�� 97, 198 Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch) [2001] 2 SCR 781 (Ocean Port)�� 140, 143, 144, 156, 158 Ontario (Attorney General) v OPSEU [1987] 2 SCR 2�� 105 Ontario Human Rights Commission v Simpsons-Sears Ltd [1985] 2 SCR 536�� 62 Ontario (Human Rights Commission) v Ontario (Board of Inquiry into Northwestern General Hospital (1993) 115 DLR (4th) 279�� 157 Operation Dismantle v The Queen [1985] 1 SCR 441�� 181 Osborne v Canada (Treasury Board) [1991] 2 SCR 69�� 63 Parkhill Bedding and Furniture Ltd v International Molders Etc Union (1961) 26 DLR (2d) 589�� 76 Pasiechnyk v Saskatchewan (The Workers’ Compensation Board) [1997] 2 SCR 890�� 71 Pearlman v Law Society (Manitoba) [1991] 2 SCR 869�� 131, 141 Pelletier v Canada (Attorney–General) (2005) 41 Admin L R (4th) 247�� 85 Pioneer Laundry and Dry Cleaners Ltd v Minister of National Revenue [1939] SCR 1�� 169 Phillips v Redpath (1830) 2 UCQB (OS) 243�� 164 Pridgen v University of Calgary [2012] 524 AR 251�� 266 Pringle v Fraser [1972] SCR 821�� 84 Probert v Waterloo (City) Regional Police Services Board [2011] OJ No 6664�� 10 Pushpanathan v Canada (Minister for Citizenship and Immigration) [1998] 1 SCR 982�� 79 Québec inc v Québec (Régie des permis d’alcool) [1996] 3 SCR 919�� 140, 143 R v AK [2014] 350 Nfld & PEIR 180�� 10 R v Burge (1995) 135 Nfld & PEIR 245�� 91 R v Canada Labour Relations Board, ex parte Martin [1966] 2 OR 684�� 84 R v Chandler (1869) 12 NBR 556�� 66 R v Conway [2010] 1 SCR 765�� 99, 100 R v Côté [1996] 3 SCR 139�� 11 R v Drybones [1970] SCR 282�� 102 R v Gibson [2007] OJ No 3948�� 181 R v Hape [2007] 2 SCR 292��203, 211–12 R v Heywood [1994] 3 SCR 761�� 113 R v Jarvis [2002] 3 SCR 757�� 113 R v Jones [1986] 2 SCR 284�� 131 R v Lippé [1991] 2 SCR 114�� 140 R v Mercure [1988] 1 SCR 234�� 62 R v Miller [1985] 2 SCR 613�� 85 R v Morgentaler [1988] 1 SCR 30�� 114 R v Noxzema Chemical Company of Canada Ltd [1942] SCR 178�� 169 R v Oakes [1986] 1 SCR 103�� 93, 96, 98, 99, 101, 198, 200, 264, 265, 268, 270, 277 R v Randolph [1966] SCR 260�� 119

xxiv Table of Cases R v SEL [2012] 537 AR 68�� 10 R v Valente [1985] 2 SCR 673�� 140, 142 R v Wholesale Travel Group Inc [1991] 3 SCR 154�� 112 Re BC Motor Vehicle Act [1985] 2 SCR 486�� 67, 130 Re Florence Nightingale Home and Scarborough Planning Board [1973] 1 OR 615�� 90 Re Keeprite Workers’ Independent Union and Keeprite Products Ltd (1980) 114 DLR (3d) 16�� 90 Re Maurice Rollins Construction Ltd and Township of South Fredricksburgh (1976) 11 OR (2d) 418�� 90 Re Raney et al and the Queen in right of Ontario (1975) 4 OR (2d) 249�� 90 Re Residential Tenancies Act [1981] 1 SCR 714��68–70 Re Resolution to Amend the Constitution [1981] 1 SCR 753�� 62, 63 Re Robertson and Niagara South Board of Education (1973) 1 OR (2d) 548�� 90 Re Sound v Fitness Industry Council of Canada [2015] 2 FCR 170�� 257 Re Webb and Ontario Housing Corporation (1978) 93 DLR (3d) 187�� 118, 119 Reference Re Alberta Statutes [1938] SCR 100�� 104 Reference Re Authority to Perform Functions Vested by Adoption Act, the Children of Unmarried Parents Act, the Deserted Wives Act and Children’s Maintenance Act of Ontario [1938] SCR 398�� 68 Reference Re Manitoba Language Rights [1985] 1 SCR 721�� 74 Reference re ss 193 and 195.1(1)(c) of the Criminal Code (Man) [1990] 1 SCR 1123�� 114 Reference Re Supreme Court Act, ss 5 and 6 [2014] 1 SCR 433�� 64, 65, 71 Reference re the Secession of Québec [1998] 2 SCR 217�� 63, 67, 71, 74, 105, 106 Régie des rentes du Québec v Canada Bread Company Ltd [2013] 3 SCR 125�� 73, 193, 246 Reynolds v Ontario (Registrar, Information and Privacy Commissioner) (2006) 55 Admin LR (4th) 83�� 95 Reza v Canada (Minister for Employment and Immigration) (1994) 2 SCR 394�� 85 Roberts v Canada [1989] 1 SCR 322�� 11 Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519�� 114, 115 Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada [2012] 2 SCR 283�� 246, 247 Roncarelli v Duplessis [1959] SCR 121��72, 104, 182, 183–86, 188, 192, 193, 209, 210 Ross v New Brunswick School District No 15 [1996] 1 SCR 825�� 96 RWDSU v Dolphin Delivery [1986] 2 SCR 573�� 105 Sagen v Vancouver Organizing Committee for the 2010 Olympic & Paralympic Winter Games (2009) 98 BCLR (4th) 109�� 94 Saskatchewan Construction Labour Relations Council Inc v Saskatchewan (Minister of Labour) [1993] 110 Sask R 274�� 182, 184 Saskatchewan (Human Rights Commission) v Whatcott [2013] 1 SCR 467�� 267 Saumur v City of Québec [1953] 2 SCR 299�� 104 Scheerer v Waldbillig (2006) 265 DLR (4th) 749�� 95 Service Corp International (Canada) Inc v Burnaby (City) [1999] 9 MPLR (3d) 242�� 134 Service Employees International Union, Local No 333 v Nipawin District Staff Nurses Association et al [1975] 1 SCR 382�� 185, 187 Shell Canada Products Ltd v Vancouver (City) [1994] 1 SCR 231�� 79, 186, 188

Table of Cases xxv Singh v Canada (Minister of Employment and Immigration) [1985] 1 SCR 177�� 102, 103, 113, 116, 131 Singh v Canada (Minister of Employment and Immigration) (1993) 69 FTR 142�� 87 Slaight Communications Inc v Davidson [1989] 1 SCR 1038�� 96, 99, 200, 203 Slattery v Canada (Human Rights Commission) [1994] 2 FC 574�� 186 Smith & Rhuland Ltd v The Queen [1953] 2 SCR 95�� 185, 210 Smith v Alliance Pipeline Ltd [2011] 1 SCR 160�� 72, 194 Société de l’assurance Automobile du Québec v Cyr [2008] 1 SCR 338�� 94 Société des services Ozanam Inv v Commission municipale du Québec [1994] RJQ 364�� 133 Stemijon Investments Ltd v Canada (Attorney General) (2011) 341 DLR (4th) 710�� 251 Stoffman v Vancouver General Hospital [1990] 3 SCR 483�� 94 Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3�� 131, 253, 257 Switzman v Eibling [1957] SCR 285�� 104 Syndicat des employés de production du Québec et de l’Acadie v Canada (Canadian Human Rights Commission) [1989] 2 SCR 879�� 119 Syndicat des travailleuses et travailleurs de ADF—CSN c Syndicat des employés de Au Dragon forgé inc (2013) 55 Admin L R (5th) 107�� 259 Tareen v Canada (Citizenship and Immigration) 2015 FC 1260�� 150 Taub v Investment Dealers Association of Canada (2009) 98 OR (3d) 169�� 261 The Law Society of Upper Canada v Skapinker [1984] 1 SCR 357�� 67 Thiara v Canada (Minister of Citizenship and Immigration) [2008] 70 Imm L R (3d) 80�� 254 Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) [1990] 1 SCR 425�� 113 Toronto Newspaper Guild v Globe Printing [1953] 2 SCR 18�� 76 Toronto (City) v CUPE, Local 79 [2003] 3 SCR 77�� 80 Trial Lawyers Association of British Columbia v British Columbia (Attorney General) [2014] 3 SCR 31�� 71, 74, 75 Trinity Western University v British Columbia College of Teachers [2001] 1 SCR 772�� 97, 265 Turp v Canada (Attorney–General) 2012 FC 893�� 181 UES, Local 298 v Bibeault [1988] 2 SCR 1048�� 71, 78, 79 United Brotherhood of Carpenters and Joiners of America, Local 579 v Bradco Construction Ltd [1993] 2 SCR 316�� 79 Vander Zalm v British Columbia (Commissioner of Conflict of Interest) (1991) 80 DLR (4th) 291�� 95 Vanguard Coatings and Chemicals Ltd v Canada (Minister of National Revenue) [1987] 1 FC 367�� 185 Vladika v School District 19 (Calgary) [1974] 4 WWR 159�� 185 Volker Stevin NWT Ltd v Northwest Territories (Commissioner) [1994] NWTR 97�� 95 Ward v University of Prince Edward Island (1997) 3 Admin LR (3d) 1�� 91 Wilcox v Canadian Broadcasting Corporation [1980] 1 FC 326�� 95 Wilson v Atomic Energy of Canada Ltd 2016 SCC 29�� 83, 271 Wilson v British Columbia (Superintendent of Motor Vehicles) [2015] 3 SCR 300�� 262 2211266 Ontario Inc (c.o.b. Gentlemen’s Club) v Brantford (City) [2012] OJ No 4883�� 186 2747-3174 Québec inc v Québec (Régie des permis d’alcool) [1996] 3 SCR 919�� 140

xxvi Table of Cases United Kingdom A v British Broadcasting Corporation [2015] AC 588�� 111 Allinson v General Medical Council [1894] 1 QB 750�� 49 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147�� 36, 37, 76, 77, 78, 172, 179, 187, 239 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223�� 47, 49, 167, 168, 170, 187, 188, 191, 219, 220, 221, 222, 226, 233, 234–36, 260, 267, 272 Attorney General (Ontario) v Attorney General (Canada) [1912] AC 571�� 67 Board of Education v Rice (1911) AC 179�� 120 British Oxygen Co Ltd v Minister of Technology [1971] AC 610�� 219, 251 Bromley London Borough Council v Greater London Council [1983] 1 AC 768�� 219 Bushell v Secretary of State for the Environment (1981) AC 75�� 120 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374�� 167, 168, 173, 181, 229 E v Secretary of State for the Home Department [2004] QB 1044�� 49 Gilbertson v South Australia [1978] AC 772�� 39 H Lavender and Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231�� 219 In re HK (an Infant) [1967] 2 QB 617�� 118 Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952�� 171 Kruse v Johnson [1898] 2 QB 91�� 163, 191, 235 Liversidge v Anderson [1942] AC 206�� 169, 171 O’Reilly v Mackman [1983] 2 AC 237�� 37 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997��170–71, 183, 184 Pearlman v Governors of Harrow School [1979] QB 56�� 37 Pioneer Laundry and Dry Cleaners Ltd v Minister of National Revenue [1940] AC 127��169–70 R (Alconbury Development Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389�� 231 R (Bourgass) v Secretary of State for Justice [2016] AC 384�� 111 R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60�� 166 R (Cart) v The Upper Tribunal [2012] 1 AC 663�� 172 R (Osborn) v Parole Board [2014] AC 1115�� 2, 111, 145, 146, 147, 148, 149, 150 R (SB) v Governors of Denbigh High School [2005] 1 WLR 3372�� 223 R (SB) v Governors of Denbigh High School [2006] 2 WLR 719��222–224, 266 R v Birmingham City Council; Ex parte Sheptonhurst Ltd [1990] 1 All ER 1026�� 175 R v Bradford [1908] 1 KB 365�� 239 R v Criminal Injuries Compensation Board, Ex parte A [1999] 2 AC 330�� 48 R v Fulham etc Rent Tribunal; Ex parte Zerek [1951] 2 KB 1�� 239 R v Gaming Board, Ex parte Benaim and Khaida [1970] 2 QB 175�� 118 R v Hull University Visitor; Ex parte Page [1993] AC 682�� 172 R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299�� 126 R v Ministry of Defence; Ex parte Smith [1996] QB 517�� 221 R v Nat Bell Liquors Ltd [1922] 2 AC 128�� 166

Table of Cases xxvii R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213��126–28 R v Panel on Takeovers and Mergers; Ex Parte Datafin plc [1987] QB 815�� 31, 89, 95 R v Parole Board ex parte Walker (2007) EWHC 1835�� 231 R v Secretary of State for Education and Employment; Ex parte Begbie [2000] 1 WLR 1115�� 221 R v Secretary of State for the Home Department; Ex parte Brind [1991] 1 AC 696�� 222 R v Secretary of State for the Home Department; Ex parte Daly [2001] 2 AC 532�� 221, 222, 231 R v Secretary of State to the Home Department; Ex parte Pierson (1998) AC 539�� 202 R v Special Commissioners of Income Tax (1888) 21 QBD 313�� 239 Ridge v Baldwin [1964] AC 40�� 118 Roberts v Hopwood [1925] AC 578�� 169 Rooke’s Case (1598) 5 Co Rep 99b�� 163 Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149�� 126 Secretary of State for Education and Science v Tameside Metropolitan Borough Council (1977) AC 1041�� 48 Sharp v Wakefield [1891] AC 173�� 164 Smith and Grady v UK (1999) 29 EHRR 493�� 221, 223 Terry v Huntington (1668) Hardr 480�� 239 Webb v Manchester and Leeds Railway Co (1839) 4 My & CR 116�� 164 Weinberger v Inglis [1919] AC 606�� 169 White and Collins v Minister of Health [1939] 2 KB 838�� 239 Wiseman v Borneman [1971] AC 297�� 120 Other Jurisdictions Hansen v The Queen [2007] 3 NZLR 1 (NZ)�� 56 S v Zuma (1995) 2 SA 642 (South Africa)�� 56 Marbury v Madison, 5 US (1 Cranch) 137 (1803) (USA)�� 13, 25, 26, 27, 66, 67, 107, 218, 225, 226, 227 McNabb v United States 318 US 332 (1943) (USA)�� 111

xxviii

Table of Legislation Australia ACT Civil and Administrative Tribunal Act 2008 (ACT) Div 4A-2....................................................................................................................... 137 Administrative Appeals Tribunal Act 1975 (Cth) ....................................................... 42, 136 Administrative Decisions (Judicial Resview) Act 1977 (Cth) (ADJR Act)................................................................7, 13, 41–51, 54, 86, 107, 120, 137, 176, 276, 278 Administrative Decisions (Judicial Review) Act 1989 (ACT) .............................................. 51 s 13............................................................................................................................... 137 Administrative Law Act 1978 (Vic) .................................................................................... 51 s 8................................................................................................................................. 137 Age Discrimination Act 2004 (Cth) .................................................................................... 54 Australia Act 1986 (Cth) .............................................................................................. 22, 62 Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter) ................................................................................................... 38, 55 s 4..............................................................................................................................56–59 s 7..............................................................................................................56, 200, 231–32 s 19................................................................................................................................. 55 s 24............................................................................................................... 117, 132, 150 s 28................................................................................................................................. 56 s 32....................................................................................................................... 199, 203 s 36................................................................................................................................. 57 s 38..................................................................................................................56, 199–201 s 39....................................................................................................................57–58, 150 Civil and Administrative Tribunal Act 2013 (NSW) ......................................................... 137 Constitution of the Commonwealth of Australia 1901....................................................... 20 Clause 5.......................................................................................................................... 21 s 51................................................................................................................................. 21 s 71................................................................................................................................. 23 s 72................................................................................................................................. 23 s 73................................................................................................................................. 29 s 75................................................................................................................................. 24 s 75(iii) ..................................................................................................27, 28–30, 35, 227 s 75(v) ...................................................................24, 26–39, 45, 128, 137, 179, 180, 227 s 76................................................................................................................... 24, 26, 227 s 128............................................................................................................................... 21 Disability Discrimination Act 1992 (Cth) ........................................................................... 54 Human Rights Act 2004 (ACT) (ACT Charter) .............................................. 55–59, 132–33 s 21............................................................................................................................... 117 s 28............................................................................................................................... 200 s 30......................................................................................................................... 57, 199 s 31............................................................................................................................... 203 s 32................................................................................................................................. 57

xxx Table of Legislation s 33�� 57 s 37�� 56 s 40�� 56, 58, 199 Human Rights Amendment Act 2008 (ACT)�� 55 Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (HRPS Act)��12, 55, 201–02, 209 s 3�� 55 s 8�� 55 Judiciary Act 1903 (Cth) s 30�� 24 s 39B��45–46, 50, 87, 174, 176 Judicial Review Act 1991 (Qld)�� 51 Judicial Review Act 2000 (Tas) �� 51 Migration Act 1958 (Cth)�� 33, 137, 152, 179, 206 s 66�� 137 s 198A�� 207, 208, 240, 243 s 368�� 137 s 425�� 148 s 430�� 137 s 476��33, 174–75 s 501�� 204 Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth)�� 208 Ombudsman Act 1976 (Cth)�� 42 Privacy Act 1988 (Cth)�� 54 Queensland Civil and Administrative Tribunal Act 2009 (Qld)�� 137 Racial Discrimination Act 1975 (Cth)�� 54 Sex Discrimination Act 1984 (Cth)�� 54 State Administrative Tribunal Act 2004 (WA)�� 137 Statute Law (Miscellaneous Provisions) Act (No 2) 1983 (Cth) �� 45 Statute of Westminster Adoption Act 1942 (Cth)�� 22 Supreme Court Act 1970 (NSW) ss 65–71�� 51 Supreme Court Act 1986 (Vic) s 3(6)�� 51 Supreme Court Civil Rules 2006 (SA) rr 199–201�� 51 Supreme Court Rules (NT) r 56.01�� 51 Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 56.01�� 51 Victorian Civil and Administrative Tribunal Act 1998 (Vic)�� 137 Canada Act Respecting Administrative Justice, RSQ 1996, c J-3�� 94, 134, 157 Administrative Procedures and Jurisdiction Act, RSA 2000 c A-3�� 134, 157 Administrative Tribunals Act, SBC 2004, c 45�� 157, 158, 246, 247 s 59�� 247 Alberta Bill of Rights, RSA 2000, c A-14�� 11 Alberta Rules of Court, Alta Reg 124/2010�� 83 An Act respecting constitutional amendments, SC 1996, c 1�� 62 Canada Act 1982 (UK) c 11�� 5, 60, 61, 217 sch B, pt 1 (Canadian Charter)��92–102 s 1�� 93 s 7��112–15, 130–31

Table of Legislation xxxi s 11��115, 142–45 Canada Labour Code, RSC 1985 c L-2�� 88 Canadian Bill of Rights, SC 1960, c 44��11, 62, 92, 102–04, 196, 198–99, 264–70 s 1(a)��103, 115–16, 149 s 2(e)��103, 115–16, 149 Charter of Human Rights and Freedoms, RSQ, c C-12�� 11, 143 Constitution Act 1867 (Imp) 30 & 31 Vict, c 3��60–63, 66, 67, 104 Preamble�� 102 s 3�� 61 s 96��68–71, 73 s 101�� 63, 84 s 129�� 63 Court of Queen’s Bench Rules, Man Reg 553/1988 r 68�� 83 Federal Courts Act, RSC 1985, c F-7��83–88, 94, 118, 182 s 18��84–87 s 28��84–85 Habeas Corpus Act, RSO 1990, c H 1�� 89 Immigration and Refugee Protection Act, SC 2001, c 27�� 214 Judicature Act, RSNB 1973, c J-2�� 84 Judicial Review Act, RSPEI 1988, c J-3��91–92 Judicial Review Procedure Act, RSO 1990, c J 1 (JRP Act)��88–90 Judicial Review Procedure Act, RSBC 1996, c 241�� 91 Liquor Control and Licensing Act, RSBC 1996, c 267�� 143 Newfoundland Rules of the Supreme Court, r 5�� 83 Nova Scotia Civil Procedure Rules, r 7�� 83 Nunavut Act, SC 1993, c 28�� 83 Police Act, RSO 1970, c 351, Reg 680�� 118 Privacy Act, RSC 1985, c P-21�� 246 Rules of Court for the Supreme Court of Yukon, r 54�� 83 Rules of the Supreme Court of the Northwest Territories, pt 44�� 83 Saskatchewan Human Rights Code, SS 1979, c S-24.1�� 11 Saskatchewan Queen’s Bench Rules�� 83 Statutory Powers Procedure Act, RSO 1990, c S 22�� 89, 119, 157 s 17�� 134 s 25�� 157 Supreme Court Act, RSC 1985, c S-26��63–65, 71 Supreme Court and Exchequer Courts Act, SC 1875, c 11�� 63 United Kingdom Australia Act 1986 (UK)�� 22 Canada Act 1982 (UK) c 11—see under Canadian Legislation Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12—see under Australian Legislation Constitution Act 1867 (Imp) 30 & 31 Vict, c 3—see under Canadian legislation Human Rights Act 1998 (UK)��2–3, 5, 10, 131, 145–46, 148–49, 222–23 Parliament of Canada Act 1875 (UK) 38–39 Vict, c 38�� 62 Statute of Westminster 1931 (Imp) 22 & 23 Geo 5, c 4�� 22, 62

xxxii

1 Introduction I. THE ‘RIGHTING’ OF ADMINISTRATIVE LAW?

C

OMMENTATORS, JUDGES AND politicians have frequently observed that the adoption of statutory and constitutional charters of human rights1 have led to a ‘reformation’, ‘reinvention’, or ‘righting’ of the common law of judicial review of administrative action.2 The suggestion is logical. Before the adoption of charters of rights, the breach of an individual’s rights by an administrative decision-maker, exercising powers validly conferred by Parliament, was not itself grounds for challenge. As Brennan J of the High Court of Australia, explained: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power … The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise.3

Now, in jurisdictions with charters of rights, protected rights act as express limits on the scope of administrative powers: an unjustified breach of human rights by a decision-maker is thus an error of law. Meanwhile, judicial review of administrative action remains the main method of ensuring that decision-makers have not breached the legal limits of their authority, whether those limits are sourced in human rights legislation, other statutes, a written constitution, or the common law. It makes sense to assume that there may have been some spillover effects as courts enforce rights as limits on administrative power, into other aspects of judicial review of administrative action. Various suggestions have been made as to what these spillover effects have been and how a ‘righting’ of administrative law has occurred. One possibility is that charters of rights have caused a fundamental shift in the nature and scope of

1 I use the term ‘charter of rights’ in this book as an umbrella term covering both constitutional documents and legislation that provides express protection for a range of human rights in domestic law. 2 See, eg, T Poole, ‘The Reformation of English Administrative Law’ (2009) 68 Cambridge Law Journal 142; S Elias, ‘Righting Administrative Law’ in D Dyzenhaus, M Hunt and G Huscroft (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Oxford, Hart Publishing, 2009); M Taggart, ‘Reinventing Administrative Law’ in N Bamforth and P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing, 2003) 323–25; J McLean, P Rishworth and M Taggart, ‘The Impact of the Bill of Rights on Administrative Law’ in The New Zealand Bill of Rights Act 1990 (Auckland, Legal Research Foundation, 1992) 62–63. 3 Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–36.

2 Introduction judicial review: from a field concerned only with declaring and enforcing the law as (largely) set by Parliament, as Brennan J observed, to one now overtly concerned with protecting individual interests. It has been argued that rights might now provide a justification and organising principle for judicial review of administrative decisions in place of the ultra vires doctrine.4 Another possibility is that the common law has developed alongside charters of rights to itself impose human rights limits on the exercise of administrative powers.5 This suggestion finds support in several recent UK judgments. For instance, in R (Osborn) v Parole Board, Lord Reed commented that courts have ‘been able to take account of those [European Convention]6 obligations in the development of the common law’,7 and the Human Rights Act 1998 (UK) (HRA) does not, however, supersede the protection of human rights under the common law or statute, or create a discrete body of law based on the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.8

A third argument is that charters of rights have caused shifts in the methodology and intensity of judicial review of administrative action, largely focusing on the apparent shift from the unreasonableness standard to proportionality.9 This is distinct from the previous two arguments as it does not necessarily suggest that human rights now form a legal limit on administrative power under common law, but rather that the principles or methods courts apply to human rights cases have been imported into the common law. A common thread in these arguments is that charters of rights have had the broad effect of making administrative law more focused on protecting individual rights. This shift in focus is said to have been a ‘direct driver’ of the expansion of judicial review: to have increased the scope and intensity of judicial control over the substance of executive decision-making by placing final authority for balancing public

4 See, eg, PP Craig, Administrative Law, 7th edn (London, Sweet & Maxwell, 2012) 19–20; TH Bingham, The Rule of Law (London, Penguin, 2010) ch 7; M Elliott, The Constitutional Foundations of Judicial Review (Oxford, Hart Publishing, 2001) ch 6; M Taggart, ‘Ultra Vires as Distraction’ in Christopher Forsyth (ed), Judicial Review and the Constitution (Oxford, Hart Publishing, 2000) 427, 428. 5 See, eg, M Elliott, ‘Beyond the European Convention: Human Rights and the Common Law’ (2015) 68 Current Legal Problems 85; R Masterman and S Wheatle, ‘A Common Law Resurgence in Rights Protection?’ [2015] European Human Rights Law Review 57; R Clayton, ‘The Empire Strikes Back: Common Law Rights and the Human Rights Act’ [2015] Public Law 3; B Hale, ‘UK Constitutionalism on the March?’ (Constitutional and Administrative Law Bar Association conference, Oxford, 12 July 2014). 6 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953). 7 R (Osborn) v Parole Board [2014] AC 1115, 1146 [57]. 8 ibid 1146–47 [55]–[57]. See also Toulson LJ’s comments to similar effect in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618 [88]. 9 See, eg, T Poole, ‘Between the Devil and the Deep Blue Sea: Administrative Law in an Age of Rights’ in L Pearson, C Harlow and M Taggart (eds), Administrative Law in a Changing State: Essays in Honour of Mark Aronson (Oxford, Hart Publishing, 2008); M Taggart, ‘Tugging on Superman’s Cape: Lessons from Experience with the New Zealand Bill of Rights Act 1990’ [1998] Public Law 266; Elias, above n 2; Poole, ‘Reformation’, above n 2; Taggart, ‘Reinventing’, above n 2; McLean, Rishworth and Taggart, above n 2.

The ‘Righting’ of Administrative Law? 3 interests and individual rights in the hands of courts.10 In the UK, these claims have increasingly gone hand in hand with charges of judicial activism and suggestions that the adoption of the HRA has fundamentally altered the relationship between Parliament and the judiciary.11 Carol Harlow and Richard Rawlings have observed that the debates and criticisms of the apparent ‘righting’ effect of charters of rights on administrative law mirror those that occurred when the welfare state began to emerge.12 As the size and functions of executive government expanded during the late-nineteenth century and early-twentieth century, scholars and judges debated the implications of discretionary administrative power for fundamental constitutional principles including the rule of law, parliamentary sovereignty, democracy, responsible government and the separation of powers. Harlow and Rawlings label those who expressed concern at the delegation of discretionary powers by parliaments to the executive and saw the role of courts and law as acting as a brake on state action as ‘red light theorists’.13 The most famous red light theorist (avant la lettre) was Dicey, who argued that discretionary administrative powers inherently lead to arbitrariness and so are antithetical to the rule of law.14 Lord Hewart drew even more alarmist conclusions about the consequences of what he called this ‘administrative lawlessness’: Arbitrary power is certain in the long run to become despotism, and there is danger, if the so-called method of administrative ‘law’, which is essentially lawlessness, is greatly extended, of the loss of those hardly won liberties which it has taken centuries to establish.15

In contrast, ‘green light theorists’ argued that these concerns about bureaucratic discretion were misplaced, and saw the administrative state as a vehicle for progress.16 One of the most influential green lighters was a pioneer of Canadian administrative law, John Willis.17 Harlow and Rawlings note that while red lighters tended to take

10 The descriptor ‘direct driver’ was used in passing in an earlier edition of the leading Australian text on judicial review and was picked up in an article by David Mullan on the effect of the Canadian Charter of Rights and Freedoms. See: M Aronson, B Dyer and M Groves, Judicial Review of A dministrative Action, 3rd edn (Sydney, Lawbook Co, 2004) 3; D Mullan, ‘The Canadian Charter of Rights and Freedoms: A “Direct Driver” of Judicial Review of Administrative Action in Canada?’ in L Pearson, C Harlow and M Taggart (eds), Administrative Law in a Changing State: Essays in Honour of Mark Aronson (Oxford, Hart Publishing, 2008) 124. 11 See, eg, UK Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us, vol 1 (2012) 142–43, 182–91 (Lord Faulks and Jonathan Fisher); D Raab, Strasbourg in the Dock: Prisoner Voting, Human Rights and the Case for Democracy (London, Civitas, 2011); J Fisher, Rescuing Human Rights (London, The Henry Jackson Society, 2012). See also M Hunt, H Hooper and P Yowell, Parliaments and Human Rights: Redressing the Democratic Deficit (Arts & Humanities Research Council, 2012) 9–11. 12 C Harlow and R Rawlings, Law and Administration, 3rd edn (Cambridge, Cambridge University Press, 2009) 45. 13 ibid 6. There are, of course, limitations to the labelling of commentators and judges’ views using this (or any other) binary classification system. Not least because most administrative lawyers have a nuanced view of issues and their views do not fit neatly within a label-based analysis of public law theory. 14 AV Dicey, Introduction to the Study of the Law of the Constitution, 10th edn (London, Macmillan, 1959) 202. 15 G Hewart, The New Despotism (London, Ernst Benn, 1929) 52. 16 Harlow and Rawlings, above n 12, 31. 17 Though Willis was originally from the UK and was educated in the UK and US: RCB Risk, ‘In Memoriam: John Willis’ (1997) 47 University of Toronto Law Journal 301.

4 Introduction a ‘formalist’ perspective, with a focus on legal rules as opposed to norms or morals, green lighters tended to be ‘functionalist’ and concerned about the functions that laws and institutions are designed to perform relative to one another, often taking into account broader principles, norms and values.18 Willis, for instance, described himself as a ‘government man’ and a ‘what actually happens man’.19 Unlike red light theorists, functionalist green light theorists tended to believe that the role of courts should be minimised, and viewed excessive judicial control as undemocratic.20 The debate over the democratic legitimacy of courts reviewing the balance that the executive strikes between individual rights and the public interest under a charter of rights raises the same issues. Now, however, it is the apparent expansion of judicial power that opponents to charters of rights view as despotic, rather than the expansion of administrative power. It is these arguments and debates about the effect of human rights on the common law that gave rise to this book. Its central question, as the title suggests, is whether charters of rights have turned judges into despots? II. THIS BOOK’S CONTRIBUTION

Although the assumption that human rights have had a ‘righting’ effect on the common law is widespread, it is far from universally accepted. Some have suggested that charters of rights have had the opposite of a ‘righting’ effect, and have in fact ‘stunted’, ‘ossified’ or ‘sterilised’ the common law.21 This has been a particular concern in the Canadian context due to the fact that, until fairly recently, the Canadian Supreme Court applied a more intrusive test to administrative decisions challenged on Charter grounds than those challenged on other grounds. Geneviève Cartier argues that this approach reflected a ‘“hierarchical view” of the relationship between administrative law and the Charter’, which tended to ‘formalise a dministrative law’

18 Harlow and Rawlings, above n 12, 32–40. The labels of ‘formalism’ and ‘functionalism’ are inherently contested. It is not within the scope of this book to explore the precise nature of these terms in the administrative law context, and nor is it necessary, as others have devoted considerable attention to that task. See, eg, C Forsyth, ‘Showing the Fly the Way out of the Flybottle: The Value of Formalism and Conceptual Reasoning in Administrative Law’ (2007) 66 Cambridge Law Journal 325; D Dyzenhaus, ‘Constituting the Rule of Law: Fundamental Values in Administrative Law’ (2002) 27 Queen’s Law Journal 445, 449–51; M Loughlin, ‘Procedural Fairness: A Study of the Crisis in Administrative Law Theory’ (1978) 28 University of Toronto Law Journal 215, 220–23; M Loughlin, ‘The Functionalist Style in Public Law’ (2005) 55 University of Toronto Law Journal 361; HW MacLauchlan, ‘Judicial Review of Administrative Interpretations of Law: How Much Formalism Can We Reasonably Bear?’ (1986) 36 University of Toronto Law Journal 343; MD Walters, ‘Jurisdiction, Functionalism, and Constitutionalism in Canadian Administrative Law’ in C Forsyth et al (eds), Effective Judicial Review: A Cornerstone of Good Governance (Oxford, Oxford University Press, 2010) 302, 307. 19 J Willis, ‘Canadian Administrative Law in Retrospect’ (1974) 24 University of Toronto Law Journal 225, 225. 20 Harlow and Rawlings, above n 12, 37. 21 Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307, 406–07 [189] (LeBel J); M Hunt, ‘Against Bifurcation’ in D Dyzenhaus, M Hunt and G Huscroft (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Oxford, Hart Publishing, 2009); JM Evans, ‘The Principles of Fundamental Justice: The Constitution and the Common Law’ (1991) 29 Osgoode Hall Law Journal 51, 73.

This Book’s Contribution 5 and ‘reduced its role to one of formal determination of jurisdiction on the basis of statutory interpretation … [with no] ability to deal with issues of fundamental values’.22 Others argue that the righting hypothesis tends to oversimplify and exaggerate.23 For instance, Tom Hickman contends that the effect of the HRA has been varied and complex: in some areas it has led to expansion in the common law; but in others it has exposed limitations, causing the HRA to become the preferred form of review and resulting in the development of the common law being ‘stunted’.24 David Mullan has argued that the righting hypothesis tends to oversimplify, as it does not acknowledge that judicial review of administrative action has always had some concern with individual rights.25 The clearest examples are the areas of natural justice, and the interpretive presumption that legislatures do not intend to violate fundamental rights. More importantly, there has been little thorough analysis of the interaction between charters of rights and the common law to properly support most of these claims,26 and no detailed comparative work. This point was noted by David Mullan who, in a chapter on the impact of the Canadian Charter of Rights and Freedoms27 (Canadian Charter) on administrative law, tentatively concluded: [T]he Charter may not have led to as significant a widening of the gap between Australian and Canadian principles of judicial review of administrative action as perhaps might have been expected or predicted. Whether that conclusion is ultimately justified requires detailed and sophisticated comparative work.28

Claudia Geiringer argues that where academics have engaged in comparative analysis of Commonwealth human rights charters, they have been preoccupied with constitutional questions—particularly the constitutionalism/democracy debate— and largely ignored the interaction between charters and administrative law.29 Thus, Jason Varuhas concludes that those who argue human rights have led to a reformation in administrative law ‘have not undertaken the sort of detailed analysis of

22 G Cartier, ‘The Baker Effect: A New Interface Between the Canadian Charter of Rights and Freedoms and Administrative Law—The Case of Discretion’ in D Dyzenhaus (ed), The Unity of Public Law (Oxford, Hart Publishing, 2004) 68. 23 See, eg, JNE Varuhas, ‘The Reformation of English Administrative Law? “Rights”, Rhetoric and Reality’ (2013) 72 Cambridge Law Journal 369; T Hickman, Public Law After the Human Rights Act (Oxford, Hart Publishing, 2010); D Mullan, ‘A Comparison of the Impact of the New Zealand Bill of Rights Act and the Canadian Charter of Rights and Freedoms on Judicial Review of Administrative Action’ (2003) 1 New Zealand Journal of Public and International Law 115. 24 Hickman, above n 23, 49–56. Several scholars have made normative arguments about the desirability or otherwise of a bifurcation between administrative and human rights law: Hunt, above n 21; M Elliott, ‘From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification’ in H Wilberg and M Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford, Hart Publishing, 2015); JNE Varuhas, ‘Against Unification’ in H Wilberg and M Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford, Hart Publishing, 2015). 25 Mullan, ‘Direct Driver’, above n 10, 126–30. 26 Tom Hickman’s excellent analysis of the HRA is an obvious exception: above n 23. 27 Canada Act 1982 (UK) c 11, sch B, pt 1. 28 Mullan, ‘Direct Driver’, above n 10, 144–45. 29 C Geiringer, ‘Unity and Disunity in the Commonwealth Model of Human Rights Protection’ (Public Law conference, Cambridge University, 12–14 September 2016).

6 Introduction doctrine which is required to make credible claims about legal development’.30 As a result, it is not at all clear that any of the claims that have been made about the interaction between charters of rights and the common law are true, beyond a few, possibly cherry-picked, examples. This book aims to make a contribution to that gap. It does so by comparing the development of the common law principles of judicial review of administrative action in Canada and Australia. III. A NOTE ON METHODOLOGY

The central enquiries of this book lend themselves to a comparative analysis of the development of administrative law in a jurisdiction with comprehensive, express, judicially enforceable human rights protections, to one without. Canada and Australia, respectively, fit these criteria. The few rights entrenched in the Australian Constitution are of limited scope and there is no general, judicially enforceable human rights legislation at the federal level or in most of Australia’s states and territories. Canada has an extensive and long-standing (relative to other common law jurisdictions) human rights framework, which applies at the federal and provincial levels and includes both constitutional and statutory charters of rights. Beyond these significant differences, however, Australian and Canadian public law share many fundamental similarities, making them ideal for comparison on this topic. Both jurisdictions broke from the English model and adopted written constitutions. Those constitutions each entrench a hybrid of English and US doctrine: incorporating the English model of responsible government and the US principles of the separation of powers (to varying degrees) and federalism. Perhaps the most crucial similarity between Australia and Canada is that their written constitutions have each been found to entrench the supervisory role of superior courts at both the federal and state/provincial levels. This is significant because of the central role that constitutional entrenchment plays in defining the legitimacy and scope of judicial review of administrative action, especially in Australia. The final reason for the choice of jurisdictions in this book is the fact that several commentators have drawn on Australian administrative law to support the claim that there has been a ‘righting’ of the law in the UK, Canada and New Zealand.31 In essence, the suggestion is that the High Court of Australia’s ‘formalist’ approach to administrative law, rejection of several recent developments in English law, and reluctance to entertain human rights arguments, are evidence that human rights have driven the expansion of judicial review in other jurisdictions. The High Court’s approach to legal reasoning, both generally and in the particular context of administrative law, has frequently been described by commentators as ‘formalist’, ‘legalist’

30

Varuhas, ‘Reformation’, above n 23, 371. See, eg, Poole, ‘Between the Devil and the Deep Blue Sea’, above n 9; M Taggart, ‘“Australian Exceptionalism” in Judicial Review’ (2008) 36 Federal Law Review 1; Mullan, ‘Direct Driver’, above n 10. 31

The Scope of this Book 7 or ‘conservative’, often by way of criticism by foreign commentators.32 This issue is explored throughout the book. Canada provides the most suitable jurisdiction to compare with Australia, for the reasons discussed above. The various arguments and assertions that have been made about the effect of charters of rights on the development of the common law are tested in this book using a comparative methodology.33 Obviously, there are myriad factors influencing the development of, and differences in, administrative law in Australia and Canada, not just Canada’s extensive rights framework. One example is the extensive codification of the principles of judicial review in Australia’s Administrative Decisions (Judicial Review) Act 1977 (Cth). It has been suggested this Act has stifled the development of Australian administrative law. Another example is the different role historically played by tribunals in each jurisdiction, which has influenced the way courts have viewed their supervisory role over tribunals compared with central departments. These particular issues are discussed in chapters two and five respectively. More generally, as is important in any comparative project, this book identifies and examines the influence of other contextual factors that may explain important developments in judicial review of administrative action in Australia and Canada in an effort to avoid oversimplifying and overgeneralising about the effect that the charters of rights considered in this book have had on administrative law. IV. THE SCOPE OF THIS BOOK

This book is not intended to be a general summary or outline of the development of judicial review of administrative action in Australia and Canada. Such discussions are provided elsewhere, albeit not in detailed comparative form. Nor does it claim to draw conclusions about the effect of every charter of rights on administrative law everywhere. Its aim is simply to make a contribution to a relatively under-analysed topic which focuses on the Australian and Canadian perspectives, as jurisdictions with divergent approaches to rights, but otherwise largely similar systems of public law. The central questions this book seeks to address are whether and how Canada’s extensive human rights framework has affected development of administrative law and, conversely, whether and how the lack of such a framework in Australia has affected the direction of its law. The first point to note with respect to the scope of

32 See, eg, MacLauchlan, above n 18; JL Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed (Durham NC, Carolina Academic Press, 2006) 41–79. Though see also the arguments supportive of the High Court’s ‘legalism’: eg, J Goldsworthy, ‘Australia: Devotion to Legalism’ in J Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (New York, Oxford University Press, 2006) 133–55. 33 On the use of comparative methodology in administrative law see J Boughey, ‘Administrative Law: The Next Frontier for Comparative Law’ (2013) 62 International and Comparative Law Quarterly 55.

8 Introduction this book is that it is concerned with developments in the common law, which I take to include the presumptions and interpretive principles that courts adopt to locate implied limits on administrative power.34 The purpose of this book is to examine how the express protection of rights in Canada has affected the scope and degree of the limits that courts place on administrative decision-makers—be it via the common law, or by finding implied limits in a statute or constitution. This book is not concerned with the limits that legislatures, or constitutions, expressly place on administrative decision-makers; for express limits do not illuminate the answer to the question of whether rights instruments have a ‘righting’ effect on the common law. The two can be very difficult, perhaps impossible at times, to disentangle, especially when it comes to distinguishing limits that are imposed expressly by a legislature from those that courts find are implied. Nevertheless, insofar as such a distinction is possible, this book is concerned with the latter. The book explores the various possibilities that have been suggested as to how charters of rights may have affected the development of the common law. In examining the righting hypothesis, it asks whether Canada’s human rights framework has changed the rationale for judicial review; whether human rights have become implied or common law limits on administrative power in Canada; and whether the principles that Canadian courts apply are more rights-focused, compared with those in Australia. It also examines a fourth, related issue, which, as discussed above, is often argued to be the consequence of a ‘righting’ of administrative law: whether Canadian courts have become more intrusive in their review of administrative action. In addition, the book considers the possibility that human rights instruments lead to the ossification, or stunt the development of the common law. Although this is a less popular view, its logic is equally sound to that of the righting hypothesis. The fulsome protection of human rights in a constitutional document or in legislation would seem to obviate the need for judges to fill any perceived gaps in rights protection through the common law, or interpretive principles. A second important point is that the scope of this book is limited to the principles that courts apply in determining the legal limits of administrative power—both substantive and procedural. Its focus is on the scope and intensity of judicial review in Australia and Canada, with the aim of exploring the truth of claims that the balance between judicial and administrative power changes as a result of a charter of rights. As a result, some potentially very interesting topics are necessarily left unexplored in this book. The book does not address the impact of charters of rights on the ability of individuals or groups to seek judicial review: standing rules. Nor does it consider the consequences of courts finding administrative action unlawful: remedies. There are several reasons for these exclusions. The first is that focusing on the substantive principles of review reflects the main arguments that have been made by judges and commentators about the effects of charters of rights on the common law.35

34 This reflects the view of the Australian High Court: Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 666 [97] (Gummow, Hayne, Crennan and Bell JJ). 35 See: Poole, ‘Reformation’ above n 2; Mullan, ‘Direct Driver’ above n 10; Elias, above n 2; McLean, Rishworth and Taggart, above n 2; Mullan, ‘A Comparison’, above n 23.

The Scope of this Book 9 The 1975 article by Richard Stewart,36 which seems to have inspired some of the recent discussion in the UK, Canada and New Zealand,37 paid considerable attention to the liberalisation of standing. However, Stewart’s piece was not concerned with changes to the common law brought by any bill of rights, or human rights legislation. Furthermore, he identified that liberalisation in standing rules had, in fact, moved away from the traditional approach based on the legally protected rights of individuals, to one which accepted the importance of a much broader range of individual and collective interests.38 The same is true in other common law jurisdictions, including Australia and Canada: the relaxation of standing rules that has occurred over the last 30 years has, by all accounts, involved a shift away from the traditional rights-focused concern, to an approach in which courts also recognise collective and public interests. Thus, any argument that the liberalisation of standing rules is a result of the adoption of domestic human rights instruments would be very difficult to sustain.39 This probably explains why those who have argued that the common law in the UK, New Zealand and Canada has been ‘righted’ as a result of human rights instruments have rarely considered standing. And where they have, their discussions have tended to be very limited and their conclusions tentative.40 Finally, on the topic of standing I have examined the connection between the liberalisation of public interest and representative standing, and the UK and Canadian human rights instruments through comparison with Australia, elsewhere.41 That analysis supports the findings and arguments in this book. With respect to the Canadian Charter, I argue that, because the foundations for Canada’s liberalisation of standing rules predated the adoption of its Charter, it is very difficult to sustain an argument that the Charter was a ‘direct driver’ of these changes. Furthermore, the cases which laid the foundations for Canada’s modern approach to representative standing, for the most part, did not involve human rights claims, and occurred at around the same time as similar developments in other common law jurisdictions which did not have human rights instruments, such as Australia and the UK. At most, the adoption of the Charter might have accelerated the trend. But, to whatever extent even that is true the cause was not the fact that the Charter expressly protects human rights, but rather the mention of the rule of law in its preamble. The topic of remedies has been given even less attention than standing by proponents and critics of the ‘righting’ hypothesis. Jason Varuhas has argued that an

36 RB Stewart, ‘The Reformation of American Administrative Law’ (1975) 88 Harvard Law Review 1669. 37 See especially, Poole, ‘Reformation’, above n 2. 38 Stewart, above n 36, 1723–42. 39 This point has been made by Jason Varuhas as a criticism of the ‘righting’ hypothesis: Varuhas, ‘Reformation’, above n 23, 381–83. 40 G Van Harten et al, Administrative Law: Cases, Text, and Materials, 7th edn (Toronto, Emond Montgomery, 2015) 998; Taggart, ‘Reinventing’ above n 2, 329–30; Varuhas, ‘Reformation’, above n 23, 381–83. 41 J Boughey, ‘The Relaxation of Representative Standing in Administrative Law: A Side-Effect of Charters of Rights?’ (2016) 49 University of British Columbia Law Review 47.

10 Introduction examination of remedies, like standing, exposes flaws in the hypothesis.42 He argues, from a UK perspective, that the fact that damages—a remedy available under the HRA to compensate losses resulting from rights-infringement, but not available under common law in judicial review cases—has not filtered into the common law, undermines the argument that administrative law has been ‘righted’ as a result of the HRA.43 The same is true in Canada. It was not until 2010 that the Supreme Court of Canada held that damages were available to remedy a breach of the Charter.44 Since then the remedy has had limited application and predominantly seems to have been awarded in the law enforcement context, often in situations where a remedy in tort law would be available in any event.45 Even in these circumstances, it has usually been unsuccessful. The remedy of damages has not yet filtered into the administrative law context. If it does, it is unlikely to have a significant impact given the Court’s focus on any award of damages needing to serve a useful function in furthering the objectives of the Charter, such as compensation, vindication or deterrence.46 Given that it is very rare that an unlawful administrative decision involves a deliberate breach of the law or malice on the part of the decision-maker, it is difficult to imagine what useful function damages would serve in the administrative law context. This broadly supports the argument in this book that the effects of Canada’s Charter on the common law reveal no general ‘righting’ trend. Nor, however, is there any general trend of the reverse—an ossification of common law. More detailed consideration of judicial review remedies is unnecessary and unhelpful in examining the central questions of this book. In part, this is simply because there are so many peculiar, technical differences that remain within the remedial principles of judicial review. Remedies are highly jurisdiction specific and depend heavily on the particular constitutional and statutory powers of courts. The fact that the Australian Constitution entrenches the High Court’s jurisdiction to hear matters in which three specific remedies are sought is a good example. In addition, while modern judicial review has shed many of the arcane and technical detail that pervaded the history of its remedies, there remains considerable complexity and detail within the doctrines of both Canada and Australia. Recitation of the extensive peculiarities of each jurisdiction would be overly schematic and serve too narrow a purpose, without being able to reveal much about the question of ‘righting’ given the myriad other factors at play in the area of remedies. Accordingly, this book focuses on the substantive principles of judicial review. Third, the focus of this book is on the effect of general statutory and constitutional human rights charters on the scope and intensity of common law judicial

42

Varuhas, ‘Reformation’, above n 23, 383–86. also Varuhas’ detailed treatment of damages in human rights cases in JNE Varuhas, Damages and Human Rights (Oxford, Hart Publishing, 2016). 44 Vancouver (City) v Ward [2010] 2 SCR 28. 45 See, eg, Henry v British Columbia (Attorney General) [2015] 2 SCR 214; McIlvenna v Greater Sudbury (City) [2014] OJ No 2578; Barton v Nova Scotia (Attorney General) [2014] NSJ No 266; R v SEL [2012] 537 AR 68; R v AK [2014] 350 Nfld & PEIR 180; Probert v Waterloo (City) Regional Police Services Board [2011] OJ No 6664. 46 Vancouver (City) v Ward, above n 44, 34 [4]. 43 See

The Scope of this Book 11 review in each jurisdiction. Both Australia and Canada have a national common law, unlike the position in the US where there are separate bodies of common law in each state.47 The common law of each nation can be replaced by statute in any jurisdiction, although in Canada there is a separate body of federal common law based on the constitutional distribution of powers, which provincial statutes cannot override even where the federal legislature has not ‘given legislative form’ to those laws.48 For the most part this book is concerned with the common law of Australia and Canada, and the effect of constitutional and statutory human rights modifications on the latter. In the Canadian context, the focus of this book on the effect of general human rights instruments on administrative law poses little difficulty. The Canadian Charter, which is the main source of human rights protection, applies to federal and provincial governments and legislatures. Thus, the interaction between the Charter and administrative law is fairly uniform across the various Canadian jurisdictions. Canada’s statutory charter of rights—the Canadian Bill of Rights49—only applies at the federal level and so raises some distinct issues; however as discussed in chapter three, its impact on administrative law has been minimal. A number of Canada’s provinces, including Alberta,50 Québec51 and Saskatchewan,52 have provincial charters of rights, which go beyond the Charter in some respects, and so are sometimes deployed in litigation. It is beyond the scope of this study to consider these provincial statutes in detail, though the laws are discussed where they raise particular points of direct relevance to arguments made in later chapters. In addition, there are numerous provincial and federal statutes that establish separate schemes for protecting individual rights and have various implications for administrative decision‑making. For instance, each Canadian jurisdiction has separate anti‑discrimination and privacy legislation, which establish specific schemes for dealing with complaints. It is also outside the scope of this book to examine the effect of these and other separate statutory schemes on Canadian administrative law. The situation in Australia is more complex, as there is no judicially enforceable charter of rights at the federal level. In 2011, the federal legislature enacted the

47 For Australia, see: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 563; Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89, 152 [135]; Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 581 [99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); P Tate, ‘Some Observations on the Common Law and the Constitution’ (2008) 30 Sydney Law Review 119. For Canada, see: J Willis, ‘Securing Uniformity of Law in a Federal System—Canada’ (1944) 5 University of Toronto Law Journal 352; N Finkelstein, Laskin’s Canadian Constitutional Law, 5th edn (Toronto, Carswell, 1986) 178; P Hogg, Constitutional Law of Canada, vol 1, 5th edn (Toronto, Carswell, 2010) 8-8–8-12. Note that the position in Québec is different: private law follows the French civil law tradition and public law follows the common law tradition. 48 See: Bisaillon v Keable [1983] 2 SCR 60, 108–09; Roberts v Canada [1989] 1 SCR 322, 340; R v Côté [1996] 3 SCR 139, 172–73 [49] (Lamer CJ, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ). 49 Canadian Bill of Rights, SC 1960, c 44. 50 Alberta Bill of Rights, RSA 2000, c A-14. 51 Charter of Human Rights and Freedoms, RSQ, c C-12. 52 The Saskatchewan Human Rights Code, SS 1979, c S-24.1, Part I of which contains a ‘Bill of Rights’.

12 Introduction Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), which creates a scheme for human rights protection within the federal legislature. Its implications for administrative law are not yet clear, and are likely to be minor, as discussed in chapter two and chapter five. Two jurisdictions in Australia have general statutory charters of rights—the Australian Capital Territory (ACT) and Victoria. These are only capable of affecting administrative law within their respective jurisdictions, and are also relatively new, with their implications for administrative decision-making still unclear. Nevertheless, the impact that these instruments have on judicial review of administrative action in their respective jurisdictions is analysed throughout this book because of the fact that the analysis illuminates general aspects of the Australian approach to the interaction between human rights and administrative law. Judicial treatment of Victoria’s human rights legislation, in particular, also foreshadows some important issues for the constitutional validity and scope of any future rights instrument at the federal level. Like Canada, most Australian jurisdictions have specific statutory schemes that may be regarded as protecting some rights, for instance dealing with discrimination and privacy. This book does not examine those statutes. Finally, this book only considers the effects of charters of rights on the principles of judicial review of administrative action. While charters of rights have doubtless had a significant impact on other areas of administrative law—including merits review in tribunals and the work of various ombudsmen—examining those influences is not the role of this book. As will already be apparent, in this book the term ‘administrative law’ is used interchangeably with the concept of judicial review of administrative action. Though administrative law in both Australia and Canada extends well beyond the courts, it is judicial review that is of central concern in this book and, for the sake of simplicity the phrase ‘administrative law’ is used as a shorthand descriptor. Similarly, ‘judicial review’ is sometimes used as shorthand and in most cases refers to review only of administrative action and not more general judicial review of legislation as well. Where judicial review of legislation is discussed, the broader scope of the phrase will be made clear at those specific points. V. THE STRUCTURE OF THIS BOOK

The substantive chapters of this book divide broadly into two parts. Part I analyses the constitutional and statutory frameworks in which judicial review of administrative action operates in Australia and Canada. Part II compares the limits that Australian and Canadian courts place on administrative action, and analyses the effects Canada’s extensive human rights framework has had on the scope and intensity of Canadian judicial review at common law. A. Part I: Constitutional and Statutory Frameworks Chapter two and chapter three examine the constitutional and statutory frameworks in which judicial review of administrative action operates in Australia and Canada

The Structure of this Book 13 respectively. Each chapter also sets out the relevant human rights framework in each of the jurisdictions. Together, the chapters highlight a number of important similarities between Australia and Canada, including their written constitutions which place limits on their respective federal parliaments and entrench the supervisory jurisdiction of courts over administrative action. Both jurisdictions justify the role of courts in policing the constitutional limits of the power of both other arms of government by the principle articulated in the US case of Marbury v Madison.53 The chapters also highlight key differences between Australia and Canada. Of particular relevance to this study is the significant difference between Canada’s extensive human rights framework, contained largely in the Canadian Charter, and Australia’s ad hoc approach to human rights protection. Another difference between Australia and Canada is the statutory frameworks within which judicial review of administrative action operates: Australia’s federal Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) contains a much more extensive codification of the grounds of review than any of Canada’s judicial review statutes. Chapters two and three consider the effects these statutes have had on the development of the common law. A brief overview of this issue is necessary due to arguments that Australia’s ADJR Act has had the effect of hampering the development of the common law. B. Part II: The Effects of Canada’s Rights Framework on Judicial Review Chapters four, five and six compare three aspects of the limits that courts place on administrative action in Australia and Canada and assess the extent to which Canada’s human rights framework (and those in Victoria and the ACT) has contributed to any differences. Chapters four and five focus on the nature of the limits that courts place on administrative power: procedural and substantive limits respectively. Chapter six examines the intensity of judicial scrutiny in both areas as well as on questions of law. Couched in terms of Dworkin’s famous doughnut analogy, in which he described ‘discretion’ as ‘like the hole in a doughnut, [which] does not exist except as an area left open by a surrounding belt of restriction’,54 chapters four and five may be viewed as analysing the shape and content of the ‘belt of restriction’, while chapter six goes on to analyse the tightness of the belt. Together chapters four, five and six demonstrate that there is no general evidence that Canadian administrative law has been ‘righted’ or expanded as a result of constitutional and statutory human rights protections. Nor is there any evidence of Canadian administrative law having been stifled in its development as litigants shift to challenging administrative action under the Charter rather than administrative law. Comparison of Australian and Canadian administrative law highlights that there is some evidence of each having occurred and currently occurring, but no overarching trend in either direction. Indeed, for the most part judicial review of

53 54

Marbury v Madison 5 US (1 Cranch) 137 (1803). R Dworkin, Taking Rights Seriously (Cambridge MA, Harvard University Press, 1977) 31.

14 Introduction administrative action in Australia and Canada remain remarkably similar in terms of their scope and intensity, despite having travelled along different developmental paths over the past few decades. Despite the fact that the Charter prima facie confers more power on Canadian courts to restrict administrative action, both jurisdictions have reached remarkably similar positions regarding the balance between judicial and executive power, and between broader fundamental principles including the rule of law, separation of powers and parliamentary sovereignty. In other words, in conferring authority on the courts to review executive compliance with human rights, the Charter has not turned Canadian courts into despots. It is notable, however, that this balancing of fundamental principles occurs via very different methodologies. The main method through which Australian courts balance these competing constitutional principles is through the use of strict, formalist principles to define the boundaries between judicial and administrative functions. In one sense, Australian courts’ preference for bottom-up and rule-based reasoning exhibits conservatism. But this has not translated into a more deferential approach in administrative law compared with Canada. Nor does it mean that Australian courts are unwilling to consider the implications of decisions for individual rights. This consideration simply occurs via the manipulation of rules and categories to permit greater judicial scrutiny where fundamental rights are at stake. By contrast, over the last 35 years, Canadian administrative law has increasingly taken a more functionalist approach to administrative law, in which courts overtly balance competing constitutional principles in key decisions. Canadian courts are much more comfortable than Australian courts in departing from legal rules where they consider that broader principle requires it, and seem to prefer to depart from or alter overarching rules rather than manipulate them to breaking point. Unlike the Australian High Court, the Canadian Supreme Court is also relaxed about referring to, and relying on, vague and contested principles in its administrative law reasoning. For instance, the Supreme Court frequently comments that ‘the values of Canadian society’ act as a limit on administrative powers, and increasingly refers to the rule of law as both another source of limits and as the basis for the legitimacy of judicial review of administrative action. Australia’s High Court, for most of its history, has steered well clear of such nebulous principles, though its recent treatment of ‘jurisdictional error’ and ‘jurisdictional fact’ shows that sometimes formal rule-based principles can be just as amorphous. It is not clear whether the Canadian Supreme Court’s comfort with top-down reasoning and broader values and norms is a result of the Charter. Many of the precursors to the shift occurred before or around the same time as the Charter was enacted. However, the two have certainly gone hand in hand. This book argues that this shift may be the greatest influence of Canada’s human rights framework on administrative law, rather than any broader ‘righting’ or ‘sterilising’ effect. One final point to note is that much of the law analysed in this book is continuing to develop, and important issues remain unresolved. This is the case in both Australia, as one might expect given the relative newness of its state and territory human rights legislation, and in Canada, which is more surprising given the length of time courts have had to grapple with the Charter. The highest courts in both jurisdictions have

The Structure of this Book 15 handed down decisions which have the potential to substantially alter the scope of judicial review of administrative action and its interaction with human rights during the writing (and editing!) of this book. In both countries, these decisions have opened up an array of new questions, which frequently pose problems as significant as those the decisions sought to resolve. This book analyses cases up to and including 30 September 2016.

16

Part I

Constitutional and Statutory Frameworks

18

2 The Framework for Judicial Review of Administrative Action in Australia

A

USTRALIA’S APPROACH TO judicial review of administrative action has been described as ‘exceptional’.1 Over the last 20 years in particular there have been an increasing number of aspects of administrative law in which the High Court of Australia has rejected overseas developments and deviated from its counterparts in other common law jurisdictions. These include its approaches to legitimate expectation, jurisdictional error, and unreasonableness, each of which is examined in later chapters of this book. The High Court has tended to explain these deviations as a necessary result of Australia’s written constitution, which has been found to entrench the supervisory jurisdiction of the High Court of Australia and the separation of judicial power from the powers of the other two branches. Australia is also the only Western democracy without a national charter of rights, which is said to explain other differences, particularly Australia’s reluctance (until, perhaps, very recently) to embrace proportionality as a general ground of review. Furthermore, there has been some conjecture regarding the role that Australia’s uniquely detailed statutory judicial review framework has played in Australian exceptionalism in administrative law. This chapter examines the central elements of the constitutional and statutory framework within which judicial review of administrative action operates in Australia, providing a context for the more detailed analysis contained in later chapters. The first section very briefly introduces the Australian Constitution, discusses the reasons for its legitimacy and supremacy and the implications of that reasoning for administrative law. Section II examines the source and scope of the High Court of Australia’s constitutionally entrenched jurisdiction to supervise administrative action, as well as that of state supreme courts. Section III provides an overview of Australia’s statutory judicial review framework and outlines the arguments that have been made about its effects on the common law. The final section discusses the human rights framework at the Commonwealth level in Australia and in the two Australian jurisdictions with general human rights legislation—Victoria and the Australian Capital Territory (ACT).

1

M Taggart, ‘“Australian Exceptionalism” in Judicial Review’ (2008) 36 Federal Law Review 1.

20 The Framework for Judicial Review of Administrative Action in Australia I. AUSTRALIA’S CONSTITUTION

A. Overview Australia has a written constitution, comprised of one core constitutional instrument.2 While the document is more extensive than Canada’s equivalent Constitution Act 1867,3 there are many topics on which it is sparse and so supplemented by unwritten conventions and principles, largely inherited from England and the United States. For instance, the Australian Constitution makes no mention of the powers or appointment of key executive decision-makers at the federal level: the Prime Minister and Cabinet. However, the High Court has long held that the Constitution implies a system of responsible government.4 The Australian Constitution united the people from six colonies into ‘one indissoluble Federal Commonwealth’.5 Its framers were heavily influenced by both the US Constitution and the English legal tradition. They also referred frequently to the Canadian experience in their debates.6 The first three chapters of the Australian Constitution establish and set out the powers of the three branches of the Commonwealth government—the Parliament, executive and judicature respectively. The Australian Constitution’s division of powers in this way, copied from the first three articles of the US Constitution, has long been held to entrench an incomplete version of the separation of powers doctrine, which applies only to judicial power.7 This is discussed further in section II. Unlike the US Constitution, the Australian document describes a parliamentary system of government, which means that there cannot be strict separation between legislative and executive power. Australia’s hybrid Constitution thus incorporates both the American and English bases for judicial review—constitutionalism and parliamentary sovereignty—which often do not fit easily together.8 Unlike Canada’s Constitution, the Australian Constitution does not enumerate the matters within the exclusive jurisdiction of state legislatures. Instead, it grants certain powers to the federal legislature, many of which are exercised concurrently with the states, and provides that the residue of legislative power remains with the states.9

2 Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 9 (Australian Constitution). 3 (Imp) 30 & 31 Vict, c 3. 4 See G Lindell, Responsible Government and the Australian Constitution—Conventions Transformed into Law? (Sydney, Federation Press, 2004) 1–7. 5 Australian Constitution preamble. 6 For instance, the framers referred to Canada on the controversial issue of the location of the Commonwealth Parliament. The final provision (s 125) was said to be an adoption ‘in a slightly modified form, of the plan followed in the Canadian Constitution’: see J Quick and RR Garran, The Annotated Constitution of the Australian Commonwealth (Sydney, Angus & Robertson, 1901) 214, 979–80. 7 New South Wales v Commonwealth (1915) 20 CLR 54 (Wheat Case). 8 JT Gleeson and RA Yezerski, ‘The Separation of Powers and the Unity of the Common Law’ in JT Gleeson, JA Watson and RCA Higgins (eds), Historical Foundations of Australian Law—Vol I: Institutions, Concepts and Personalities (Sydney, Federation Press, 2013) 321–24. 9 Australian Constitution s 107; Attorney-General (Cth) v Colonial Sugar Co Ltd (1913) 17 CLR 644, 653–54.

Australia’s Constitution 21 Most of the powers of the Commonwealth Parliament are set out in sections 51 and 52 of the Constitution. B. Supremacy The Australian Constitution was drafted by representatives from the six colonies at a series of conferences from 1885 onwards.10 Its text was put to a popular vote in NSW, Victoria, Tasmania, South Australia and Queensland and was eventually endorsed by all five colonies.11 It was then considered and passed by the Imperial Parliament—though not without some wrangling over amendments regarding the retention of Privy Council appeals—and assented to by the Queen on 9 July 1900. While the Bill was before the Imperial Parliament, Western Australia held a s uccessful referendum and became an Original State of the Commonwealth.12 Clause 5 of the preamble to the Australian Constitution provides that the Constitution ‘shall be binding on the courts, judges, and the people of every State and of every part of the Commonwealth’ but says nothing about the reason for the Constitution’s supremacy. The fact that it was put before the Australian people, and approved by a substantial majority, suggests that popular sovereignty may have been the source of the document’s authority from the outset. This is supported by section 128 which provides that the Constitution can only be altered by referendum, with the approval of an overall majority of voters, and a majority of voters in a majority of states. However, although the Australian people gave political legitimacy to the supremacy of the Constitution, the prevailing view was that the source of its legal authority derived from the sovereignty of the Imperial Parliament.13 The distinctions between the process of enacting the Australian and US Constitutions, and their consequences for aspects of administrative law, were reflected in the remarks of Sir Owen Dixon, who sat on the Court for 35 years, was Chief Justice from 1952 to 1964 and is widely considered ‘Australia’s greatest jurist’:14 The framers of our own federal Commonwealth Constitution … found the American instrument of government an incomparable model. They could not escape from its fascination. Its contemplation damped the smouldering fires of their originality. But, although they copied it in many respects with great fidelity, in one respect the Constitution of our Commonwealth was bound to depart altogether from its prototype. It is not a supreme law purporting to obtain its force from the direct expression of a people’s inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King’s Dominions. In the interpretation of our Constitution this distinction has many important consequences. We treat our organs of

10 For a detailed history see Quick and Garran, above n 6, 79–252. New Zealand sent delegates to an early convention, and the Australian Constitution includes a provision for New Zealand to become a seventh state (preamble cl 6). 11 Quick and Garran, above n 6, 206–25. 12 ibid 249–50. 13 See GJ Lindell, ‘Why is Australia’s Constitution Binding?—The Reasons in 1900 and Now, and the Effect of Independence’ (1986) 16 Federal Law Review 29, 30–33. 14 JJ Spigelman, ‘Australia’s Greatest Jurist’ (2003) 47 Quadrant 44.

22 The Framework for Judicial Review of Administrative Action in Australia government simply as institutions established by law, and we interpret their powers simply as authorities belonging to them by law. American doctrine treats them as agents for the people who are the source of power and their powers as authorities committed to them by a principal.15

Dixon’s position is further reflected in the fact that the Imperial Parliament felt empowered to amend the text of the Act that had been approved by the A ustralian people, to reflect ‘Imperial interests’, by preserving Privy Council appeals in most matters (except those concerning the interpretation of the Australian Constitution),16 despite the objections of Australian delegates.17 Presumably then, the Imperial Parliament could subsequently have repealed or amended the Australian Constitution, should it have desired, without resort to the procedure under section 128. Nevertheless, the British Government negotiated its desired amendments with the Australian delegates, reflecting the fact that popular sovereignty has always been recognised as the source of the political, if not the legal, legitimacy of the Australian Constitution. Between 1901 and 1986 Australia took further steps towards independence from the UK, the most important being the enactment of the Statute of Westminster 1931,18 and the Australia Acts.19 The first terminated the supremacy of UK law over laws enacted by the dominions (including the Commonwealth Parliament but not the states), provided that the UK Parliament would only legislate for Australia by consent, and gave the Australian Parliament extraterritorial jurisdiction. The Australia Acts essentially did the same thing for the states,20 and removed any possibility of the UK Parliament legislating for the Commonwealth of Australia, even at Australia’s request.21 There were, in fact, two Australia Acts—one enacted by the Commonwealth Parliament and the other by the UK Parliament—due to uncertainty as to which had authority to pass the legislation, and to avoid any legal challenges to the Act’s validity.22 There remain a few lingering questions about the constitutional status and effect of the Australia Acts which detract from, though probably do not destroy ‘the force of the argument that the Constitution should be seen as deriving its legally binding and fundamental character from the will and authority of the Australian people’.23 However, since the Australia Acts cut residual legal ties with the UK Parliament as a legal source of authority for the Australian Constitution, it has been argued that ‘the present source of validity of the Constitution must be found within Australia’,24 and the prevailing view is that popular sovereignty is now 15

O Dixon, ‘The Law and the Constitution’ (1935) 51 Law Quarterly Review 590, 597. Australian Constitution s 74. 17 Quick and Garran, above n 6, 228–48. 18 Statute of Westminster 1931 (Imp) 22 & 23 Geo 5, c 4; Statute of Westminster Adoption Act 1942 (Cth). 19 Australia Act 1986 (UK); Australia Act 1986 (Cth). 20 Australia Act 1986 (Cth) ss 1–3. 21 ibid s 12, repealing s 4 of the Statute of Westminster 1931 (Imp) 22 & 23 Geo 5, c 4, s 9. 22 A Twomey, The Australia Acts 1986: Australia’s Statutes of Independence (Sydney, Federation Press, 2010) 412–15; Explanatory Memorandum, Australia Bill 1986 (Cth) 2. The High Court has subsequently confirmed that the Australian version was constitutionally valid, and effective: Attorney-General (WA) v Marquet (2003) 217 CLR 545, 570–71 [67]. 23 Lindell, ‘Why is Australia’s Constitution Binding?’, above n 13, 42, 49. 24 AR Blackshield, ‘Reinterpreting the Constitution’ in J Brett, J Gillespie and M Goot (eds), Developments in Australian Politics (Melbourne, MacMillan, 1994) 26. 16

The Constitutional Status of Judicial Review 23 the justification for the binding and fundamental character of the Constitution.25 However, this view is not universally accepted.26 In 1999 a proposed amendment to the Constitution was put before the Australian people, which would have had the effect of cutting the final link with the UK and transforming Australia into a republic. However, the proposal was rejected in every jurisdiction except the ACT.27 II. THE CONSTITUTIONAL STATUS OF JUDICIAL REVIEW

A. The High Court’s Jurisdiction Over Constitutional Matters The Australian Constitution entrenches the role of the High Court of Australia and provides that the ‘judicial power of the Commonwealth’ is vested in that Court and any other such courts that the Parliament creates or invests with federal jurisdiction.28 The High Court has found that this vesting of judicial power is exclusive and so entrenches a separation of judicial power. The separation of judicial power places two main restrictions on the Commonwealth Parliament. First, it may only confer the ‘judicial power of the Commonwealth’ on those courts listed in section 71 (the High Court, other federal courts created by statute and existing state courts).29 In order to fall within section 71, federal courts must meet the requirements of appointment, tenure and salary set out in section 72 of the Constitution. The ‘judicial power of the Commonwealth’ cannot be conferred on bodies which do not meet these conditions, including tribunals.30 Second, the separation of judicial power means that federal courts can only exercise the judicial power of the Commonwealth (or powers incidental thereto) and not administrative or legislative powers.31 The Privy Council explained this limit on the basis that: In a federal system the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or executive. To vest in the same body executive as well as judicial power is to remove a vital constitutional safeguard.32

Despite the rigidity of the separation of judicial power in Australia, the content of the judicial power of the Commonwealth ‘has defied exhaustive definition’.33

25 See, eg, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 138 (Mason CJ); Leeth v Commonwealth (1992) 174 CLR 455, 486 (Deane and Toohey JJ); McGinty v Western Australia (1996) 186 CLR 140, 236–37 (McHugh J); R French, ‘Parliament, the Executive, the Courts and the People’ (1996) 3 Deakin Law Review 1, 13–15; Blackshield, above n 24, 27–28. 26 See, eg, S Evans, ‘Why is the Constitution Binding? Authority, Obligation and the Role of the People’ (2004) 25 Adelaide Law Review 103. 27 See G Williams and D Hume, People Power: The History and Future of the Referendum in Australia (Sydney, University of New South Wales Press, 2010) 195–96. 28 Australian Constitution s 71. 29 Wheat Case, above n 7, 61 (Griffith CJ), 89 (Isaacs J). 30 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245. 31 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. 32 Attorney-General (Cth) v R; Ex parte Australian Boilermakers’ Society (1957) 95 CLR 529, 540–41. 33 S Gageler, ‘The Constitutional Dimension’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Melbourne, Cambridge University Press, 2014) 167.

24 The Framework for Judicial Review of Administrative Action in Australia The High Court’s general approach has been to define judicial powers based on ‘the traditional functions of courts in the system of common law’. This includes the core functions of making binding and enforceable determinations about legal rights and duties, and the determination and punishment of criminal guilt.34 It does not include the power to give advisory opinions, which the High Court has characterised as involving ‘abstract questions of law’.35 One of the most important consequences of the constitutional separation of powers from an administrative law perspective is that administrative decision-makers cannot be empowered to determine the limits of their jurisdiction.36 This is discussed in detail below. The Constitution also entrenches particular aspects of the High Court’s jurisdiction. The Court’s constitutionally entrenched jurisdiction includes appellate jurisdiction from state superior courts and federal courts.37 The Court also has original jurisdiction under section 75: In all matters: (i) arising under any treaty; (ii) affecting consuls or other representatives of other countries; (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between States, or between residents of different States, or between a State and a resident of another State; (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

The last of these is particularly important for judicial review of administrative action and is considered in detail below. An interesting feature of the constitutional provisions that confer jurisdiction on the High Court is that none expressly confers jurisdiction on the Court to resolve issues involving the interpretation of the Constitution itself. Although some such jurisdiction is undoubtedly included in section 75(v), that section does not provide a complete source of jurisdiction or suite of remedies to deal with constitutional matters. Indeed, section 76 provides that the conferral of such jurisdiction is a matter for the Parliament. The Commonwealth Parliament conferred original jurisdiction on the High Court in ‘matters arising under the Constitution or involving its interpretation’ in 1903.38 Yet the High Court has never seriously doubted that, even without this statutory conferral, it is empowered to be the final, authoritative arbiter of constitutional interpretation (absent exceptional appeals to the Privy Council prior to 1968).

34 See C Saunders, ‘The Separation of Powers’ in B Opeskin and F Wheeler (eds), The Australian Federal Judicial System (Melbourne, Melbourne University Press, 2000); P Gerangelos et al, Winterton’s Australian Federal Constitutional Law: Commentary and Materials (Sydney, Thomson Reuters, 2013) 1209–60. 35 In Re Judiciary and Navigation Acts (1921) 29 CLR 257, 267 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ). 36 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 505 [73] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) (Plaintiff S157). 37 Australian Constitution s 73. 38 Judiciary Act 1903 (Cth) s 30.

The Constitutional Status of Judicial Review 25 The most oft-quoted statement to this effect is Fullagar J’s discussion of Marbury v Madison39 in Australian Communist Party v Commonwealth.40 After finding that the Commonwealth Parliament did not have the constitutional authority to enact legislation dissolving the Australian Communist Party and conferring power on the Governor-General to declare any organisation which supported communism illegal, his Honour stated: [T]here are those, even to-day, who disapprove of the doctrine of Marbury v Madison, and do not see why the courts, rather than the legislature itself should have the function of finally deciding whether an Act of a legislature in a Federal system is or is not within power. But in our system the principle of Marbury v Madison is accepted as axiomatic, modified in varying degree in various cases (but never excluded) by the respect which the judicial organ must accord to opinions of the legislative and executive organs.41

This passage has since been endorsed by various High Court justices on many occasions as has its source—Marshall CJ’s pronouncement that ‘it is, emphatically, the province and duty of the judicial department to say what the law is’—sometimes out of context.42 At other times the High Court has simply asserted its jurisdiction to determine constitutional issues without reference to Marbury v Madison.43 Importantly, the principle has also been transposed from its Marbury v Madison context of judicial review of legislation, to the context of review of administrative action in Australia.44 Sir Owen Dixon regarded the intention of the framers of the Australian Constitution to import the Marbury v Madison principle as ‘obvious’. He stated that ‘It did not need the reasoned eloquence of Marshall’s utterance to convince them that simply because there were to be legislatures of limited powers there must be a question of ultra vires for the Courts’.45 Dixon’s view was that the prohibition on appeals to the Privy Council on constitutional questions in section 74, and conferral of power on the legislature to grant original jurisdiction under section 76, ‘impliedly acknowledge the function of the Courts [in interpreting the Constitution]’.46 Sir Anthony Mason—Chief Justice of Australia between 1987 and 1995—agreed, finding an ‘unqualified acceptance of the legitimacy of judicial review’ in the Australian Constitution.47 Mason submitted that: Aware of Marbury v Madison and having the American practice before them, the founders plainly intended that the Court should undertake that function, a function which had been 39

Marbury v Madison 5 US (1 Cranch) 137 (1803). Australian Communist Party v Commonwealth (1951) 83 CLR 1 (Communist Party Case). 41 ibid 263. 42 See, eg, Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–36 (Brennan J) (Quin); Commonwealth v Mewett (1996–97) 191 CLR 471, 54 (Gummow and Kirby JJ); Attorney-General (WA) v Marquet, above n 22, 570 [66] (Gleeson CJ, Gummow, Hayne and Heydon JJ). 43 See, eg, Victoria v Commonwealth and Hayden (1975) 134 CLR 338, 364 (Barwick CJ); In the Marriage of Cormick (1984) 156 CLR 170, 177 (Gibbs CJ); Gerhardy v Brown (1985) 159 CLR 70, 157–58 (Dawson J). 44 Quin, above n 42. 45 O Dixon, ‘Marshall and the Australian Constitution’ (1955) 29 Australian Law Journal 420, 425. 46 ibid 425. 47 A Mason, ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience’ (1986) 16 Federal Law Review 1, 6. 40

26 The Framework for Judicial Review of Administrative Action in Australia undertaken by the courts of the Australian colonies in accordance with the authority of the Privy Council. Moreover, s 109 of the Constitution, in providing that a state statute is invalid to the extent of its inconsistency with a federal statute, contemplated that the courts would strike down inconsistent state laws.48

This position finds further support in Quick and Garran’s discussion of the history of section 76.49 Their assessment is that the framers intended for ‘every person, every officer, every political organ’ to have a ‘duty to interpret its provisions, in the first instance’, but where a person alleges that the Constitution has been transgressed: Every person under these circumstances has recourse to the appropriate courts to defend his own rights and to enforce the obligations of others; and thus, without any express provision, the courts of the States, and the Federal Courts, whenever they have jurisdiction over a case, have the duty of interpreting the Constitution so far as it affects the rights of the parties … It may therefore be said that every court of competent jurisdiction is an interpreter of the Constitution; and that the High Court—subject to exceptional review by the Privy Council—is the authoritative and final interpreter of the Constitution.50

Quick and Garran note that the doctrine of judicial review of legislation was regarded as settled in Marbury v Madison and suggest that the framers’ substantial borrowings from the US Constitution in the provisions of the Australian Constitution dealing with judicial power implicitly import the doctrine.51 Seen in this context, section 76 does not mean that in the absence of an express conferral of jurisdiction to review constitutional questions the High Court would lack such jurisdiction, but assumes that its jurisdiction to do so would usually arise in the appellate context, as all lower courts have an inherent, irrevocable jurisdiction to review acts of the government and legislature for constitutionality. Instead, section 76 acts to broaden the High Court’s jurisdiction by permitting Parliament to confer original jurisdiction on the Court. B. The High Court’s Jurisdiction to Review Administrative Action Unlike the High Court’s jurisdiction to review legislation for constitutionality, its jurisdiction to review administrative action is expressly entrenched—at least to some degree. As noted above, section 75(v) of the Australian Constitution provides that the Court has original jurisdiction to issue writs of mandamus and prohibition as well as injunctions against ‘officers of the Commonwealth’. The subsection was inserted by the framers in order to avoid the situation which left the US Supreme Court unable to provide a remedy for William Marbury in its original jurisdiction, despite him having proven that the Secretary of State had an unfulfilled duty to deliver Marbury’s commission.52 James Stellios has detailed the different purposes that v arious framers

48 ibid. 49

Quick and Garran, above n 6, 789–96. ibid 791. ibid 789–96. 52 ibid 764–65, 778–80. 50 51

The Constitutional Status of Judicial Review 27 saw section 75(v) as achieving.53 Andrew Inglis Clark, its original proponent, who was familiar with the details of Marbury v Madison likely intended the provision simply to clarify the ‘allocation or distribution of federal jurisdiction between original and appellate jurisdiction … [in] direct response to the actual problem in Marbury v Madison’.54 Australia’s first Prime Minister, Sir Edmund Barton, who argued for the reinsertion of the provision after it was removed during the Constitutional Convention, appeared to misconstrue Marbury v Madison and hence expressed a different understanding of the purposes sought to be achieved by section 75(v).55 Barton couched the need for section 75(v) in accountability terms and spoke of the need to give the High Court original jurisdiction, as well as appellate jurisdiction, in these cases, so when a person wishes to obtain the performance of a clear statutory duty, or restrain an officer of the Commonwealth from going beyond his duty, or to restrain him in the performance of some statutory duty from doing some wrong he can obtain a writ of mandamus, a writ of prohibition, or a writ of injunction.56

Barton’s view that the subsection performed an accountability function is also evident is his statement that its inclusion ‘cannot do any harm and may protect us from great evil’.57 Despite being based on a misunderstanding of US law, it is this accountability purpose that has become the dominant explanation of section 75(v), which has been found by the Court to introduce an ‘entrenched minimum provision of judicial review [of administrative action]’ into the Constitution.58 Regardless of the purpose that the framers saw section 75(v) as fulfilling, it is reasonably clear from their discussions that they did not envisage the provision being the centrepiece of judicial review of administrative action at the Commonwealth level that it has become. Nor could they possibly have envisaged the scale of administrative action that exists today, or the corresponding scope of judicial supervision thereof. As various High Court judges have explained, section 75(v) was inserted ‘to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power’;59 as a ‘safeguard against the possibility that the provision in section 75(iii) … would be read down’.60 It was not seen as substantially adding to the Court’s supervisory authority over the legislature and executive.61 It is the High Court’s interpretation of the Constitution that has elevated section 75(v) to the position it now holds. 53 J Stellios, ‘Exploring the Purposes of Section 75(v) of the Constitution’ (2011) 34 University of New South Wales Law Journal 70. In addition to the two discussed below, Stellios proffers a third explanation for the section—to protect federal officers from state courts: 81–82. 54 ibid 78. 55 See Stellios, ‘Exploring’, above n 53, 80–81. 56 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 4 March 1898, 1884, cited in Stellios, ‘Exploring’, above n 53, 81. 57 ibid 1876. 58 Plaintiff S157, above n 36, 513 [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), cited with approval in Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, 668–69 [46] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) (Bodruddaza). 59 Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 363 (Dixon J) (emphasis added). 60 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, 92 [18] (Gaudron and Gummow JJ) (Aala). 61 Aala, above n 60, 134 [140] (Kirby J).

28 The Framework for Judicial Review of Administrative Action in Australia Likewise, as Justice Gageler emphasises, it is the High Court’s interpretation of section 75(v) that has defined its substantive content and not anything inherent in the words of the provision itself.62 With that in mind, there are a number of important, but somewhat unsettled, qualifications regarding the limits of the ‘entrenched minimum’ that section 75(v) has been found to entrench that warrant particular consideration. Two relate to the express language of section 75(v): the limited remedies entrenched; and the persons against whom those remedies may be sought. The third is the more general question of precisely what the constitutionally ‘entrenched minimum provision of judicial review’ comprises. i. Only Mandamus, Prohibition and Injunction? An important feature of section 75(v) of the Constitution is that it entrenches the High Court’s jurisdiction to hear matters in which particular remedies associated with review of administrative action are sought, rather than linking the Court’s jurisdiction to the source of a decision-maker’s authority or entrenching substantive principles of review. The result has been that, as the scope of decisions to which common law judicial review remedies apply has expanded over the last century, so too has the High Court’s original jurisdiction.63 But the framers’ decision to entrench the Court’s jurisdiction to award remedies raises a number of questions about the nature and extent of the supervisory jurisdiction entrenched. The first is whether the High Court is only authorised to issue the listed remedies. If one adopts an accountability view of section 75(v), then the listing of only some of the remedies courts may issue in judicial review cases seems ‘odd’,64 and appears to leave significant gaps in the High Court’s supervisory jurisdiction—most notably its authority to issue other remedies including certiorari, declarations and habeas corpus. The omission of habeas corpus makes sense when one considers that the Constitution does not confer general power over criminal matters on the Commonwealth Parliament, leaving criminal law and the prison system largely within the authority of the states. However, the absence of other public law remedies from section 75(v) was one of the central concerns of Sir Isaac Isaacs, Australia’s third Chief Justice and another delegate at the Constitutional Conventions. Isaacs argued that the provision be struck out from the draft Constitution on the basis that it was unnecessary and may limit the jurisdiction of the High Court rather than expand it. He, and a number of other delegates, thought that section 75(v) was unnecessary on the basis that the High Court already had jurisdiction to issue the remedies listed under section 75(iii) (which confers original jurisdiction where the Commonwealth, or a person being sued on its behalf, is a party).65 There was some dispute

62

Gageler, ‘The Constitutional Dimension’, above n 33. See further ch 5, II. 64 LJW Aitken, ‘The High Court’s Power to Grant Certiorari—The Unresolved Question’ (1986) 16 Federal Law Review 370, 374–76. 65 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 4 March 1898, 1876–83. 63

The Constitutional Status of Judicial Review 29 as to whether this was accurate.66 Nevertheless, the High Court now seems to hold the view that section 75(iii) covers much of the same ground as section 75(v) and provides an alternative source for the Court’s jurisdiction, although the interaction between the provisions has never been explored in any detail.67 Isaacs argued that, as there was substantial overlap between the two provisions, section 75(v) should be omitted for fear that the Court would read its inclusion of only three remedies as words of limitation: ‘I should say that if we put in these words the inference will be irresistible that if they had not been put in the court would not have had this power’.68 Quick raised the same concern.69 Barton’s response was to reiterate Inglis Clark’s original rationale for inserting the provision, emphasising the distinction between appellate and original jurisdiction.70 Lisa Burton submits that viewed in this context, the choice of remedies in section 75(v) makes more sense.71 She argues that like mandamus, prohibition and injunction are remedies in the nature of original, as opposed to appellate, jurisdiction.72 This is so because they are directed at things which have not yet occurred: the compulsion of a duty that remains unperformed, the prohibition of an exercise of legal power which would be without jurisdiction, or the restraint of some unlawful act that has been threatened.73

According to Burton, this distinguishes the section 75(v) remedies from other remedies commonly issued in judicial review matters, and in particular certiorari, which apply only once a decision has already been made and so are in the nature of appellate jurisdiction. Also noteworthy with respect to the omission of certiorari is that around the time of federation, it was only available against judicial and quasi-judicial a uthorities.74 Thus, it is possible that the framers assumed that all of the bodies against whom the High Court would need to issue certiorari would fall under the definition of federal court in section 73(ii) (which confers appellate jurisdiction on the High Court from judgments of federal courts and state supreme courts). Now, however, certiorari is available against bodies which clearly do not fall within the definition of a court for the purposes of section 73(ii).75 This raises the question of the constitutional source of the High Court’s authority to issue certiorari against administrative decision-makers. If section 73 is restricted to courts and section 75(v) to remedies in

66

ibid 1884 (Barton); Quick and Garran, above n 6, 779. See M Aronson and M Groves, Judicial Review of Administrative Action, 5th edn (Sydney, T homson Reuters, 2013) 51. 68 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 31 January 1898, 321. 69 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 4 March 1898, 1876. 70 ibid 1881 (Barton). 71 L Burton, ‘Why These Three? The Significance of the Selection of Remedies in Section 75(v) of the Australian Constitution’ (2014) 42 Federal Law Review 253. 72 ibid 268. 73 ibid 267. 74 See H Woolf et al, De Smith’s Judicial Review, 7th edn (London, Sweet & Maxwell, 2013) 862–65; R v Arndel (1906) 3 CLR 557, 571–72 (Griffith CJ); W Gummow, ‘The Scope of Section 75(v) of the Constitution: Why Injunction but no Certiorari?’ (2014) 42 Federal Law Review 241, 242–46. 75 See Aronson and Groves, above n 67, 785. 67

30 The Framework for Judicial Review of Administrative Action in Australia the nature of original jurisdiction, then neither appears to support the Court’s power to quash decisions of administrative decision-makers. The only other option is section 75(iii), though it too confers original jurisdiction on the Court and so may be similarly restricted to remedies in the nature of original jurisdiction. Other remedies that were omitted from section 75(v) raise different issues. Declarations, for instance, were not used in judicial review until after federation.76 Thus, it may be easier to argue that the Court now has ancillary jurisdiction under section 75(v) to issue declaratory relief where it deems that remedy more appropriate than those listed. Habeas corpus is also different. The framers were clearly of the view that there was no need to expressly mention the High Court’s jurisdiction to issue habeas corpus as it was well settled in both England and the US that superior courts had that power.77 Thus, it may be easier to argue that the High Court has an implied jurisdiction to issue a writ of habeas corpus, based on this intention. Despite the significance of section 75(v) the High Court has paid little attention to the framers’ choice of remedies. In Plaintiff S157 Callinan J opined that the omission of certiorari was indicative of the ‘desire of the founders to confine the remedies available under it strictly to jurisdictional error’.78 This explanation helpfully supports the High Court’s relatively recent emphasis on jurisdictional error as the central feature defining its constitutional jurisdiction, but as Burton has demonstrated, a survey of English case law from the time of federation casts doubt on its accuracy, as does the inclusion of injunction in section 75(v).79 Yet, the High Court has repeatedly stated that where it possesses original jurisdiction under either section 75(v) or 75(iii), it also has the ‘ancillary’ or ‘incidental’ power to issue certiorari, so there now seems to be little doubt as to this point.80 Though the fact that certiorari is merely ancillary to the section 75(v) writs means that it may be ‘open to the Parliament to legislate so as to prevent the grant of such relief’.81 ii. ‘Officers of the Commonwealth’ A second feature of section 75(v) that appears to limit the supervisory jurisdiction of the High Court over administrative action is the requirement that remedies be sought against an ‘officer of the Commonwealth’. There was little discussion of the meaning of the phrase in the Constitutional Conventions, other than a reference to the

76

ibid 881. Official Record of the Debates of the Australasian Federal Convention, Melbourne, 4 March 1898, 1876 (Barton), 1880 (Quick and Barton). 78 Plaintiff S157, above n 36, 521 [121]. 79 Burton, above n 71. 80 See, eg, Aala, above n 60, 90–91 [14] (Gaudron and Gummow JJ), 135 [142] (Kirby J); Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, 393–94 [19] (Gleeson CJ); Plaintiff S157, above n 36, 507 [80] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Bodruddaza, above n 58, 672–73 [61]–[64] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ). Though this has not always been the accepted position: see Aitken, above n 64. 81 Plaintiff S157, above n 36, 507 [81] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). But compare, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 36–37 (Brennan, Deane and Dawson JJ). 77

The Constitutional Status of Judicial Review 31 fact that state officials were not included.82 In early cases the High Court was clearly influenced by the US origins of the phrase, stating that the term ‘connotes an “office” of some conceivable tenure, and connotes an appointment, and usually a salary’.83 However, the Court also took into account of its Australian context, noting that some of the remedies that section 75(v) refers to are available against both judicial and executive officers, and finding that, accordingly, federal judges are ‘officers of the Commonwealth’.84 There is little doubt that federal ministers and public servants are ‘officers of the Commonwealth’, as was the framers’ clear intent,85 as are federal judges86 (though not High Court judges),87 members of federal tribunals88 and federal police.89 What is not clear is whether corporations can be officers of the Commonwealth, and if not, whether this means that the Commonwealth government can exempt administrative decisions from review by privatisation or outsourcing. The High Court seems to have deliberately avoided addressing this issue in recent years.90 The issue of whether courts are capable of reviewing decisions outsourced to corporations is equally uncertain under the common law in Australia. Despite the absence of any constitutional or statutory restriction on the scope of their review authority, and nothing restricting review to the actions of state officers, state supreme courts have offered little guidance on the issue. Until recently, it was generally assumed that state supreme courts would follow the UK’s approach in R v Panel on Take-overs and Mergers; ex parte Datafin,91 and apply a ‘public function’ test to define the scope of their review jurisdiction. Numerous decisions of state and territory supreme courts cited the case with approval.92 However, recent decisions of the NSW Court of Appeal,93 Full Court of the South Australian Supreme Court94 and Victorian Court of Appeal95 have cast doubt on whether Datafin does in fact form part of Australian common law.96

82 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 4 March 1898, 1876 (Barton). 83 R v Murray and Cormie; Ex parte Commonwealth (1916) 22 CLR 437, 452 (Isaacs J). 84 R v Commonwealth Court of Conciliation and Arbitration and the President thereof; ex parte Whybrow & Co (1910) 11 CLR 1, 41–42 (O’Connor J). 85 See Official Record of the Debates of the Australasian Federal Convention, Melbourne, 4 March 1898, 1878 (Symon); Quick and Garran, above n 6, 783–84. 86 R v Commonwealth Court of Conciliation and Arbitration, above n 84. 87 Re Carmody; Ex parte Glenman (2003) 198 ALR 259, 260 [6]. 88 Pancontinental Mining Ltd v Burns (1994) 52 FCR 454. 89 Coward v Allen (1984) 52 ALR 320; Brewer v Castles (No 1) (1984) 1 FCR 55. 90 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 345 [51] (Offshore Processing Case). See generally, J Boughey and G Weeks, ‘“Officers of the Commonwealth” in the Private Sector: Can the High Court Review Outsourced Exercises of Power?’ (2013) 36 University of New South Wales Law Journal 316. 91 R v Panel on Take-overs and Mergers; ex parte Datafin plc [1987] 1 QB 815 (Datafin). 92 See: E Kyrou, ‘Judicial Review and Decisions of Non-Governmental Bodies Exercising Governmental Powers: Is Datafin Part of Australian Law?’ (2012) 86 Australian Law Journal 20; Boughey and Weeks, above n 90, 332–33. 93 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 272 ALR 750, 767 (Basten JA, with whom Spigelman CJ agreed). 94 Khuu & Lee Pty Ltd v Corporation of the City of Adelaide (2011) 110 SASR 235 [26] (Vanstone J, with whom Sulan and Peek JJ agreed). 95 Mickovski v Financial Ombudsman Service Ltd (2012) 91 ACSR 106, 116. 96 See Kyrou, above n 92.

32 The Framework for Judicial Review of Administrative Action in Australia iii. The Role of Jurisdictional Error Section 75(v) entrenches the High Court’s jurisdiction to issue specific remedies against a particular category of decision-maker, but says nothing about the errors that the listed remedies may be issued to correct (or grounds on which review may be sought). While it is clear from section 75(v) that the Commonwealth Parliament cannot revoke the High Court’s authority to issue mandamus, prohibition or injunctions, there is nothing that expressly prohibits the legislature from restricting the circumstances in which those remedies might issue. For instance, assuming that it could ever draft a provision with sufficient clarity, which the analysis in later c hapters suggests will be difficult, if the Commonwealth Parliament were to provide that a particular decision is lawful even if a decision-maker acts unreasonably, or takes irrelevant matters into account, or acts for an unauthorised purpose, then there would be no express conflict with section 75(v), but the circumstances in which the Court could issue the listed remedies would be curtailed. However, such clauses may conflict with other provisions of the Constitution, for instance if they have the effect of purporting to authorise a decision-maker to exceed the scope of the Commonwealth Parliament’s own powers. As in other common law jurisdictions, the High Court of Australia has been pushed to define the content of its constitutionally entrenched jurisdiction by successive privative clauses inserted into legislation, particularly, in recent decades, in migration legislation.97 What has emerged from that jurisprudence is that the ‘entrenched minimum provision of judicial review’ protected by the Constitution is the High Court’s authority to review (and remedy) administrative decisions for jurisdictional error. Although the term ‘“jurisdictional error” is a relative newcomer to judicial review’,98 references to a want or excess of jurisdiction and the existence of a distinction between a ‘want of jurisdiction and the manner of its exercise’99 are scattered throughout High Court cases since federation, including in reference to the availability of relief under section 75(v).100 Early references were generally consistent with English usage—which referred to the fairly narrow matter of whether a court or quasi-judicial tribunal had authority to commence a determination of a dispute.101 In Canada, the same concept was referred to as the ‘preliminary or collateral questions doctrine’. The concept was not used frequently, or in a uniform way, prior to the 1990s. This is likely a result of the fact that section 75(v) was engaged relatively infrequently before then—largely because the High Court’s appellate jurisdiction was usually available and almost always provided a preferable option. 97 See S Gageler, ‘Impact of Migration Law on the Development of Australian Administrative Law’ (2010) 17 Australian Journal of Administrative Law 92. 98 Aronson traces its first use by the High Court to R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415: M Aronson, ‘Jurisdictional Error and Beyond’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Melbourne, Cambridge University Press, 2014) 253. 99 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 389 (Dixon J). 100 See: Commissioner of Taxation v Futuris Corporation (2008) 237 CLR 146, 152 [5] (Gummow, Hayne, Heydon and Crennan JJ) (Futuris); Gageler, ‘Impact of Migration Law’, above n 97, 92. 101 See, eg, R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. See generally, Aronson, ‘Jurisdictional Error and Beyond’, above n 98, 254.

The Constitutional Status of Judicial Review 33 In 1989, the Commonwealth Parliament began what has been a series of amendments to the Migration Act 1958 (Cth) designed to reduce the number of judicial review applications under that Act.102 First, the legislature sought to achieve this by being more prescriptive about the way in which migration officers were to exercise their discretion, by adding a right to merits review, and by providing that the threshold for whether an applicant met the criteria for a visa was the Minister or delegate’s satisfaction.103 Later, the Parliament attempted to restrict review via a series of privative clauses. One of the early privative clauses provided that review could only be sought in the Federal Court of Australia on certain specified grounds. One of the few grounds on which the Migration Act permitted review was where the person who purported to make a decision ‘did not have jurisdiction to make the decision’.104 In a series of cases considering the effect of these provisions, many of which are discussed in detail in later chapters of this book, the High Court was prompted to consider the scope of the remaining grounds, including the circumstances in which a decisionmaker would act outside their jurisdiction.105 In addition, because the Parliament had restricted the scope of the Federal Court’s review jurisdiction, persons aggrieved by migration decisions began to file applications in the original jurisdiction of the High Court under section 75(v) for review on the excluded grounds. In effect, ‘the High Court became, for more than five years, a trial court for the determination of procedural fairness and Wednesbury unreasonableness cases’.106 Thus, the High Court needed to determine the scope of its constitutionally entrenched supervisory jurisdiction over administrative decisions. An important step was taken in Aala107 in which the Court was asked whether prohibition could issue under section 75(v) on the ground of a want of procedural fairness. The Minister argued that at federation, prohibition was only available to correct jurisdictional errors, and that because the rules of procedural fairness were a more modern invention, the section 75(v) remedies did not correct errors of that nature. Five members of the Court disagreed with this argument and reasoned in essence that:108 —— In 1900, the prerogative writs of prohibition and mandamus were available to restrain an official from exceeding jurisdiction and to compel the performance of an unperformed duty respectively. The focus of each was ‘upon the authority, or “jurisdiction”, that is given to the person or body to whom it is sought to have the writ issue’.109 Jurisdictional error was at federation, and remains, the sole basis on which the writ of prohibition may issue.

102

For a detailed discussion of this process see Gageler, ‘Impact of Migration Law’, above n 97. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 104 Migration Act 1958 (Cth) s 476(1)(b) (now amended). 105 See, in particular: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. 106 Gageler, ‘Impact of Migration Law’, above n 97, 99. 107 Aala, above n 60. 108 ibid 92–101 [18]–[42] (Gaudron and Gummow JJ with whom Gleeson CJ agreed), 132–36 [135]– [144] (Kirby J), 138–44 [154]–[172] (Hayne J). McHugh J found that it was unnecessary to decide this issue. Callinan J reached the same result, but focused on validity rather than jurisdictional error. 109 ibid 140 [160] (Hayne J). 103 See

34 The Framework for Judicial Review of Administrative Action in Australia —— On entrenchment in section 75(v) the writs have become constitutional, rather than prerogative in character, and serve a constitutional purpose. That purpose is to ‘restrain officers of the Commonwealth from exceeding Federal power’.110 —— The grounds for the issue of the section 75(v) remedies ‘are not frozen in time’,111 but their ‘essential characteristic’,112 of issuing to restrain or correct Commonwealth officers from exceeding their jurisdiction remains constant. —— The common law rules about when a decision-maker will have departed from their lawful authority have changed over time. Procedural fairness and Wednesbury unreasonableness now arise as implications from statute. Although they may have developed and expanded since federation, they are nevertheless legal limits on the jurisdiction of decision-makers. Given that it is the Court’s constitutional duty to uphold legal limits on the jurisdiction of decision-makers, a breach of procedural fairness amounts to a jurisdictional error which the Court is empowered to remedy under section 75(v). The effect of this majority reasoning in Aala ‘was thereafter firmly to entrench jurisdictional error as the sole basis on which what were now the constitutional writs of prohibition and mandamus might issue’.113 It was a short step from Aala for the High Court to conclude that its constitutionally entrenched authority to review administrative decisions for jurisdictional error could not be removed by the Parliament. This occurred in Plaintiff S157 in which the Court considered further amendments to the Migration Act, which had been made after Aala. The amendments included the insertion of an extensive privative clause which provided that: (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

‘Privative clause decision’ was defined as a ‘decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act’. The applicant sought to challenge a decision made under the Migration Act to deny him a protection visa on the basis that he was denied natural justice. He argued that the privative clause, which appeared to prevent his review application, was invalid on the basis that it purported to oust the High Court’s jurisdiction under section 75(v). In determining whether the clause was invalid, the Court confirmed that its jurisdiction to review administrative decisions for jurisdictional error is constitutionally

110 ibid. 111

ibid 141 [164] (Hayne J). ibid 93 [24] (Gaudron and Gummow), 133 [137], 134 [141] (Kirby J). 113 Gageler, ‘Impact of Migration Law’, above n 97, 100. 112

The Constitutional Status of Judicial Review 35 entrenched.114 Despite the clear language and extensive reach of the clause in question, however, the Court held that it did not impinge on the Court’s constitutional authority reasoning that decisions affected by jurisdictional errors were legal nullities and therefore were not ‘decisions made under the Act’ to which the privative clause applied.115 The Court has used similar reasoning to avoid pronouncing on the constitutional validity of an extensive privative clause used in state legislation in Kirk.116 However, in other cases, the Court has not managed to interpret ouster clauses in a manner consistent with section 75(v) and has, thus, struck them down to the extent that they are inconsistent with the Constitution. Most notably in Bodruddaza v Minister for Immigration and Multicultural Affairs the Court held that a clause setting an absolute time limit of 84 days in which applications for judicial review could be made ‘subverts the constitutional purpose of the remedy provided by section 75(v)’ and was thus invalid.117 The clause restricted applications for review of both ‘decisions’ and ‘purported decisions’ under the Migration Act. There are a number of important, interrelated, points arising from these judgments that require further brief analysis. The first is to note that the High Court has repeatedly, though not uniformly,118 traced the source of its entrenched jurisdiction to review for jurisdictional error not solely to section 75(v), but also to other provisions of the Constitution. While section 75(v) entrenches the jurisdiction of the Court to review decisions in its original jurisdiction in which the listed remedies are sought, the Court maintains that it has the authority to review administrative action irrespective of section 75(v) and that authority cannot be removed by legislation. Justices have variously pointed to section 75(iii) (vesting original jurisdiction over matters in which the Commonwealth is a party), covering clause 5 (providing that the Constitution is binding), section 71 (which vests the judicial power of the Commonwealth in the High Court) and the separation of powers as entrenching the Court’s supervisory authority over administrative action.119 The latter two were particularly important in Plaintiff S157. One of the central points made in the judgments is that ‘the judicial power of the Commonwealth cannot be exercised otherwise than in accordance with Ch III. The Parliament cannot confer on a non-judicial body the power to conclusively determine the limits of its own jurisdiction’.120 The second, related, point is that by sourcing the jurisdictional error limit in constitutional provisions other than section 75(v), the Court has potentially avoided needing to explain the presence of injunctions in that section. In Aala, the majority’s 114 Plaintiff S157, above n 36, 514–15 [103]–[104] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), 520–21 [120]–[121] (Callinan J) (the point was implicit in Gleeson CJ’s judgment). 115 Plaintiff S157, above n 36, 505–06 [75]–[77] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). 116 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 582 [103] (French CJ, Gummow, Hayne, Crennan Kiefel and Bell JJ) (Kirk). 117 Bodruddaza, above n 58, 672 [58] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ). 118 One exception is Callinan J’s reasoning in Plaintiff S157, which is discussed below. 119 See, eg, Aala, above n 60, 92–93 [18]–[21] (Gaudron and Gummow JJ), 139 [156] (Hayne J). 120 Plaintiff S157, above n 36, 512 [98] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). Similar comments were made by Gleeson CJ at: 484 [9]. Lisa Burton Crawford and I explore this reasoning in J Boughey and LB Crawford, ‘Jurisdictional Error: Is Disunity Necessary’ (Public Law conference, Cambridge University, 12–14 September 2016).

36 The Framework for Judicial Review of Administrative Action in Australia reasoning for entrenching review for jurisdictional error relied heavily on their historical analysis of the writs of mandamus and prohibition being concerned with keeping decision-makers within their jurisdictional limits. The obvious hole in this reasoning is the inclusion of injunction in section 75(v), which was never limited to jurisdictional error in the narrow, ‘preliminary or collateral’ sense. However, by sourcing the entrenched minimum of review for jurisdictional error in the separation of judicial power and section 71 more generally, the Court avoids this problem. It is still not entirely clear whether the High Court’s authority to issue injunctions is restricted to situations where a decision-maker has made a jurisdictional error, and if so, why. While Plaintiff S157 suggests that injunctions are so restricted, the Court has elsewhere stated that they are not.121 However, the issue may now be of little importance due to the breadth of what now constitutes a jurisdictional error, which appears little different from the ultra vires actions that injunctions could be used to control. The Australian High Court now has an exceptionally broad definition of what legal errors are capable of constituting ‘jurisdictional errors’. The broadening of the term is traceable to the House of Lords decision in Anisminic Ltd v Foreign Compensation Commission122 and the High Court’s consideration and adoption of elements of that judgment in Craig v South Australia.123 In Anisminic a majority of the House of Lords held that a privative clause did not prevent courts from reviewing decisions vitiated by jurisdictional error, because such decisions were not ‘decisions’ at all, but merely ‘purported decisions’ and were legal nullities. As mentioned above, the Australian High Court adopted similar reasoning in Plaintiff S157 in order to construe the relevant clause as constitutionally permissible. More importantly though, the majority in Anisminic found that the Foreign Compensation Commission had stepped outside its jurisdiction by its error in that case—which involved misinterpreting the criteria for awarding compensation to companies whose property had been sequestrated by the Egyptian Government—despite the fact that its error was in no way preliminary or collateral to the Commission’s power.124 In this respect, Lord Reid famously noted how malleable and manipulable the concept of jurisdiction was, and expressed the view that an error need not deprive a tribunal of jurisdiction in the ‘narrow and original sense’ in order to result in a decision being a legal nullity. His Lordship stated: [T]here are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question

121

Futuris, above n 100, 162 [47] (Gummow, Hayne, Heydon and Crennan JJ). Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (Anisminic). 123 Craig v South Australia (1995) 184 CLR 163 (Craig). 124 W Wade and C Forsyth, Administrative Law, 10th edn (Oxford, Oxford University Press, 2009) 222–25. 122

The Constitutional Status of Judicial Review 37 remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive.125

This statement signalled the start of the UK’s abolition of the distinction between jurisdictional and non-jurisdictional errors. Lord Denning stated in Pearlman v Governors of Harrow School that the distinction between jurisdictional and non-jurisdictional errors ‘should now be discarded’ so that no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it.126

This position was eventually accepted as law by the House of Lords in O’Reilly v Mackman in which Lord Denning described the ‘landmark’ opinion of Lord Reid in Anisminic as having liberated English public law from the fetters that the courts had thereto imposed upon themselves so far as determinations of inferior courts and statutory tribunals were concerned, by drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction, and errors of law committed by them within their jurisdiction.127

In 1995, the Australian High Court accepted some aspects of what the House of Lords had said with respect to jurisdictional error. In Craig, the Court cited Lord Reid’s above-quoted statement from Anisminic and characterised it has having expanded the types of errors that could be classed as ‘jurisdictional errors’.128 In obiter, the High Court endorsed the expansion of jurisdictional error in the context of tribunals,129 but rejected post-Anisminic English developments in which the distinction between jurisdictional and non-jurisdictional errors was abolished.130 The High Court has since affirmed that ‘there can be no automatic transposition to Australia of the principles that developed in England in relation to the availability of certiorari and prohibition. The constitutional context is too different to permit such a transposition’.131 The expanded concept of jurisdictional error, without its links to the commencement of decisional authority, has since been endorsed by the High Court on numerous occasions with respect to administrative decision-makers. Over the past two decades the Court has incrementally expanded on the catalogue of errors that may amount to jurisdictional errors. The concept is now at the point where the term has come to be synonymous with a lack of power or authority,

125

Anisminic, above n 122, 171 (Lord Reid). Pearlman v Governors of Harrow School [1979] QB 56, 70. 127 O’Reilly v Mackman [1983] 2 AC 237, 278 (Lord Denning, with whom the other Law Lords agreed). 128 Craig, above n 123, 178–79. 129 ibid 179. It remains unclear whether the same definition applies to inferior courts: Kirk, above n 116, 573 [69] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 130 Craig, above n 123, 179. 131 Kirk, above n 116, 571–72 [66] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), citing Aala, above n 60, 141 [162] (Hayne J). 126

38 The Framework for Judicial Review of Administrative Action in Australia with the concept of ultra vires and with invalidity.132 Any of the traditional grounds of review including a breach of procedural fairness, acting unreasonably, taking into account irrelevant considerations and failing to consider relevant matters may amount to a jurisdictional error.133 In Kirk the majority commented that ‘it is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error’,134 leaving the door open for further errors to be added to the now very broad category. The obvious question following this expansion is what now distinguishes a jurisdictional error from a non-jurisdictional error? The Court maintains that there can be no ‘rigid taxonomy’.135 It is apparent, following from the Court’s reasoning in Plaintiff S157, that jurisdictional error has become synonymous with invalidity—in that and subsequent decisions the High Court has said that decisions affected by jurisdictional error are legal nullities. Thus, it has been suggested that the term is now a conclusory label to express the consequences of an error rather than a classification that assisted courts in determining the remedies available to rectify an error as it once was.136 To ascertain the consequences of an error of law—and decide whether to attach the label of jurisdictional error or non-jurisdictional error—the Court has said that reviewing courts must look to the text, context and evident purposes of the relevant statute, read in light of the ‘established rules of statutory construction’ in each case, to determine whether an error takes a decision-maker beyond the statutory power conferred by Parliament.137 Practical issues are also taken into account—such as the effect of the breach, issues of efficiency, and the consequences of attaching the ‘jurisdictional error’ label—but only through an interpretative lens.138 For example, if it would be extremely inconvenient to invalidate a decision on the basis of a certain error, the reviewing court may conclude that Parliament did not intend for that to occur.139 The uncertainty inherent in this position has led some judges to suggest that the concept is not of much assistance in legal analysis and may not be the best method of achieving the purpose of balancing ‘excessive

132 See, generally: Aronson, ‘Jurisdictional Error and Beyond’, above n 98; JK Kirk, ‘The Concept of Jurisdictional Error’ (NSW Bar Association Constitutional and Administrative Law Section, Sydney, 30 May 2012); Aronson and Groves, above n 67, 13–15. 133 See, eg, Aala, above n 60, 101 [41] (Gaudron and Gummow JJ, with whom Gleeson CJ agreed on this point), 140–41 [162]–[163] (Hayne J); Kirk, above n 116, 572–74 [67]–[74] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li). See further Aronson, ‘Jurisdictional Error and Beyond’, above n 98, 255–57. 134 Kirk, above n 116, 573 [71] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 135 ibid 574 [73]. 136 Aronson, ‘Jurisdictional Error and Beyond’, above n 98, 252–53; Gageler, ‘The Constitutional Dimension’, above n 33, 176; M Leeming, ‘The Riddle of Jurisdictional Error’ (2014) 38 Australian Bar Review 139, 140. 137 Kirk, above n 116, 573–75 [71]–[77] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 138 ibid 571–72; J Stellios, Zines’s High Court and the Constitution (Sydney, Federation Press, 2015) 298; Aronson, ‘Jurisdictional Error and Beyond’, above n 98, 264–67. 139 eg, Bare v Independent Broad-Based Anti-Corruption Commission (2015) 326 ALR 198, the Court of Appeal of Victoria considered the broader implications of finding that a breach of the Charter of Human Rights and Responsibilities Act 2006 (Vic) by a public authority was a jurisdictional error, for the validity of other provisions of that Act. See J Boughey, ‘The Charter’s Effect on Administrative DecisionMaking’ (2016) 27 Public Law Review 3.

The Constitutional Status of Judicial Review 39 judicial intervention’ with the need to maintain ‘regularity in the administration of justice’.140 The final important point that arises from the Court’s finding that the Constitution entrenches jurisdictional error review, and that the question of whether an error of law is jurisdictional depends largely on the statute and its context, is that there remain several ways in which Parliament can insulate certain (non-jurisdictional) errors from judicial review. For instance, it may be possible for legislatures to prohibit review on certain grounds, although the High Court has tended to interpret such provisions strictly and extend the scope of other review grounds in response, as will be examined in detail in chapters four and five. It is also possible to expand the scope of a decision-maker’s discretion by providing for subjective rather than objective standards of proof. This is also discussed in chapter five. Additionally, legislatures are able to stipulate that certain errors in decision-making do not result in the final decision being invalid, thereby in effect narrowing the category of jurisdictional errors. For instance, in Futuris the High Court found that a clause providing that ‘the validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with’ protected some decision-making errors from being jurisdictional errors, though could not protect the exercise of powers dishonestly, in bad faith, or deliberate errors.141 C. The Entrenched Jurisdiction of State Supreme Courts Not only does the Australian Constitution entrench the supervisory jurisdiction of the High Court over administrative action, but it has also been found to impliedly entrench the jurisdiction of state supreme courts to review decisions for jurisdictional error. For almost the entire first century of the Australian Constitution’s existence, it was widely thought that the constitutional separation of judicial power did not affect the states.142 However, in 1996, in Kable v Director of Public Prosecutions (NSW),143 the High Court found that Chapter III of the Australian Constitution does constrain the powers that can be conferred on state courts, though to a more limited extent than at the federal level. Specifically, the High Court held that the Constitution provides for an integrated judicial system and envisages that state supreme courts will continue to exist and be institutions capable of exercising the judicial power of the Commonwealth.144 It follows that state supreme courts cannot be vested with powers incompatible with the exercise of the federal judicial power. This means that while state legislatures can confer certain non-judicial functions on state courts, a state supreme court cannot be vested with functions that undermine 140 See, eg, J Basten, ‘Jurisdictional Error After Kirk: Has it a Future?’ (2012) 23 Public Law Review 94, 94; Leeming, above n 136. 141 Futuris, above n 100, 164–66 [55]–[61]. 142 See, eg, Gilbertson v South Australia [1978] AC 772; Building Construction Employees and Builders’ Labourers’ Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372; City of Collingwood v Victoria (No 2) [1994] 1 VR 652. 143 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (Kable). 144 ibid 102 (Gaudron J), 110 (McHugh J).

40 The Framework for Judicial Review of Administrative Action in Australia its impartiality or integrity, or would cause it to ‘lose its identity as a court’.145 In the Kable case, this meant that an Act which conferred power on the NSW Supreme Court to make a civil order that a specified individual, Gregory Wayne Kable, be detained without trial for preventative and community protection purposes, compromised the integrity and impartiality of the Court and was thus invalid. The High Court in Kable emphasised that state legislatures were not restricted by the separation of judicial power to the same degree as the Commonwealth Parliament. For instance McHugh J stated: [A] state can invest its Supreme Court with a jurisdiction similar to that which is presently exercised in the federal sphere by the Administrative Appeals Tribunal. The Supreme Court would not lose its identity as the Supreme Court of the state merely because it was given a jurisdiction similar to that of that tribunal.146

However, his Honour added, foreshadowing the argument that would later arise in Kirk: [A] state could not legislate to abolish all other jurisdictions of the Supreme Court and invest it with no more than a jurisdiction similar to that Tribunal. To do so would make a mockery of the principles contained in Chapter III of the Constitution.147

Despite this suggestion that it might be impossible for state legislatures to remove the core functions of state supreme courts, following Kable it was still widely assumed that state legislatures could oust, or at least limit, the jurisdiction of state superior courts to review administrative actions of state officials, provided that their intention was suitably clear.148 However, in its 2010 decision in Kirk149 the High Court unanimously overturned that view. The Court’s reasoning began from the principle established in Kable regarding the constitutional assumption that ‘there be a body fitting the description “the Supreme Court of a State”’.150 The Court then asserted that the ‘supervisory role of state supreme courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was [at federation], and is, a defining characteristic of those courts’.151 Their Honours further asserted that the concept now known as jurisdictional error was the central principle underpinning the supervisory jurisdiction of state supreme courts at federation.152 It followed that: Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.153

145

ibid 117 (McHugh J).

146 ibid. 147 ibid.

148 See, eg, Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602, 634 (Gaudron and Gummow JJ). 149 Kirk, above n 116. 150 ibid 580 [96] (French CJ, Gummow, Hayne, Crennan Kiefel and Bell JJ) (with whom Heydon J agreed on these points: at 585 [113]). 151 ibid 580–81 [98]. 152 ibid 580 [97]. 153 ibid 581 [100].

Statutory Judicial Review Frameworks 41 Oscar Roos has convincingly critiqued the historical accuracy of the assertions on which the High Court’s reasoning in Kirk was based. Roos argues that ‘it stretches all credulity to accept that an essential characteristic of [state supreme] courts at the time of Federation encompassed the modern concept of jurisdictional error’.154 Nevertheless, as the High Court pointed out, the conclusion it reached in Kirk has some significant policy benefits. In particular, the Court’s statement that ‘there is but one common law in Australia’ and concern that permitting state administrative bodies to determine the limits of their own jurisdiction would ‘create islands of power immune from supervision and restraint’ both raise compelling policy justifications for its position.155 As Justice Gageler explains, the Kirk decision has the benefit of ‘creating a seemingly singular and elegant constitutional scheme; a new paradigm’. This ‘new paradigm’ consists of a uniform ‘conceptual justification for judicial review’ at the state and federal level which ‘is no more and no less than the rule of law itself’.156 Many commentators have likewise referred to the cumulative effect of the decisions in Aala, Plaintiff S157 and Kirk as the Australian expression of the rule of law, and made various arguments as to what this means for the substantive content of the entrenched minimum provision of judicial review.157 However, it is clear from the majority’s comments in Plaintiff S157158 and from subsequent discussions159 that the ‘textual reinforcement … of the rule of law’ that the Constitution provides is restricted to a narrow, Diceyan version of that concept, involving no more than the notion that interpreting and enforcing the law is a judicial power. There has been no indication from the High Court that the rule of law has any substantive or specific enforceable content.160 III. STATUTORY JUDICIAL REVIEW FRAMEWORKS

A. The Federal Administrative Decisions (Judicial Review) Act (ADJR Act) The cornerstone of Australia’s statutory judicial review framework is the federal Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The ADJR 154 O Roos, ‘Accepted Doctrine at the Time of Federation and Kirk v Industrial Court of New South Wales’ (2013) 35 Sydney Law Review 781, 806. 155 Kirk, above n 116, 581 [99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 156 Gageler, ‘The Constitutional Dimension’, above n 33, 175. 157 See, eg, W Bateman, ‘The Constitution and the Substantive Principles of Judicial Review: The Full Scope of the Entrenched Minimum Provision of Judicial Review’ (2011) 39 Federal Law Review 39; L McDonald, ‘The Entrenched Minimum Provision of Judicial Review and the Rule of Law’ (2010) 21 Public Law Review 14; T Spencer, ‘An Australian Rule of Law’ (2014) 21 Australian Journal of Administrative Law 98. 158 Plaintiff S157, above n 36, 513 [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). See similar comment of Gleeson CJ at: 482 [5]. 159 See, eg, Offshore Processing Case, above n 90, 346–47 [54]–[58]. 160 Evidenced by the Court’s frequent statements to the effect that the Australian Constitution is founded on the rule of law, with s 75(v) being central to upholding the principle, though with little elaboration on what the notoriously disputed concept actually means: see, eg, Offshore Processing Case, above n 90, 347 [58]; Plaintiff S157, above n 36, 482–83 [5], 492 [31] (Gleeson CJ), 513 [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Aala, above n 60, 134 [140] (Kirby J); Communist Party Case, above n 40, 193 (Dixon J). See generally LB Crawford, The Rule of Law and the Australian Constitution (Sydney, Federation Press, 2017) (forthcoming).

42 The Framework for Judicial Review of Administrative Action in Australia Act was introduced on the recommendation of two committees established by the Commonwealth government to enquire into aspects of administrative law: the Kerr161 and Ellicott162 Committees. The Kerr Committee was established in 1968 with the mandate of reporting on the judicial review jurisdiction to be given to the proposed new Federal Court. In addition, the Committee was directed to enquire into the ‘procedures whereby review is to be obtained’; the ‘substantive grounds of review’; and the ‘desirability of introducing legislation along the lines of the United Kingdom Tribunals and Inquiries Act 1958’.163 In its 1971 report, the Kerr Committee discussed the ‘complexity’ and ‘technical limitations’ of the common law of judicial review of administrative action.164 It recommended a package of reforms to administrative law, of which a statutory form of judicial review was one element. The others included the establishment of a tribunal with general jurisdiction to review the merits of administrative decisions165 and the appointment of a ‘General Counsel for Grievances’ empowered to investigate complaints about administrative action and intervene in important cases.166 With respect to statutory reform, the Committee recommended that the federal legislation establish a single application procedure for judicial review which was not remedy dependent and set out the grounds on which review could be sought. The Committee’s report made it clear that the principal purpose of the proposed legislation was to achieve ‘more comprehensive review of administrative decisions’ and facilitate access to the courts.167 Following the Kerr Report, the Ellicott Committee was charged with examining the judicial review legislation proposal further. During the course of the Ellicott Committee’s inquiry, Professor Wade visited Australia and expressed concerns about the proposed codification of judicial review. Wade’s particular concern was that specifying the grounds of review ‘could have the effect of excluding the possibility of judicial development of additional grounds’.168 He suggested that if the legislation were to go ahead, it should include an open-ended ground to allow the legislation to adapt to developments in the common law. The Ellicott Committee did not accept Wade’s warning but did accept his advice with respect to the inclusion of an openended ground. As a result, the ADJR Act contains two open-ended grounds: that a

161 Commonwealth Administrative Review Committee, Commonwealth Administrative Review Committee Report, Parliament of the Commonwealth of Australia Paper No 144 (1971) (Commonwealth) (Kerr Report). 162 Committee of Review of Prerogative Writ Procedure, Report of the Committee of Review of Prerogative Writ Procedure, Parliament of the Commonwealth of Australia Paper No 56 (1973) (Ellicott Report). 163 Kerr Report, above n 161, 1. Matthew Groves and I have discussed the modern context of the ADJR Act and other ‘new administrative law’ reforms in M Groves and J Boughey ‘Administrative Law in the Australian Environment’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Melbourne, Cambridge University Press, 2014). 164 Kerr Report, above n 161, 9–10, 16–20. 165 Kerr Report, above n 161, ch 14. The Administrative Appeals Tribunal (AAT), established by the Administrative Appeals Tribunal Act 1975 (Cth). 166 Kerr Report, above n 161, 93–95. The Commonwealth Ombudsman was established by the Ombudsman Act 1976 (Cth). 167 Kerr Report, above n 161, 3, 6. 168 Ellicott Report, above n 162, 9.

Statutory Judicial Review Frameworks 43 decision is ‘otherwise contrary to law’;169 or was an ‘exercise of power in a way that constitutes abuse of the power’.170 The ADJR Act today is substantially the same as when it was first enacted in 1977. The Act confers judicial review jurisdiction on the Federal Court of Australia and Federal Circuit Court of Australia. i. Establishing a Simplified Review Procedure The ADJR Act establishes a single procedure for applying for an ‘order of review’, which applies regardless of the remedy being sought.171 It also sets out a single test for standing—‘a person aggrieved’—which has been said to be ‘closely akin’ to the common law ‘special interest’ test.172 The courts are empowered to make orders with the same effect as the prerogative writs and equitable remedies to remedy unlawful administrative action, but may provide whichever remedy they deem appropriate, rather than being restricted by the grounds on which review is sought, type of error or class of decision-maker.173 ii. Providing a Right to Reasons Another recommendation of both the Kerr and Ellicott Committees was that a person with standing to seek review of a decision should have a right to obtain reasons for that decision.174 There is no general common law right to receive reasons for an administrative decision in Australia.175 Accordingly, the inclusion of such a right in the ADJR Act is an important distinction between common law and statutory judicial review in Australia. The right to seek reasons applies to all decisions to which the ADJR Act applies, unless it is expressly excluded by statute.176 iii. Codifying the Grounds of Review The ADJR Act codifies the grounds of review, setting out 17 specific grounds on which the courts can review administrative decisions. These cover natural justice and ultra vires grounds of review under common law, as well as the ground of failing or refusing to make a decision. Many of the grounds relating to ultra vires actions are highly specific. For example, review may be sought for an ‘improper exercise of power’,177 which includes (among other things): ‘taking an irrelevant consideration into account’; ‘failing to take a relevant consideration into account’; ‘an exercise of a power for a purpose other than a purpose for which the power is conferred’; and

169

ADJR Act s 5(1)(j). ibid s 5(2)(j). 171 ibid s 11. 172 Bropho v Tickner (1993) 40 FCR165, 174. See further M Groves, ‘The Evolution and Reform of Standing in Australian Administrative Law’ (2016) 44 Federal Law Review 167. 173 ADJR Act s 16. 174 Kerr Report, above n 161, 78–79; Ellicott Report, above n 162, 8. 175 Public Service Board of NSW v Osmond (1986)159 CLR 656. 176 ADJR Act s 13(1), s 13(11)(c). 177 ibid s 5(1)(e). 170

44 The Framework for Judicial Review of Administrative Action in Australia ‘an exercise of a personal discretionary power at the direction or behest of another person’.178 For the most part, the statutory grounds restate the grounds available under the common law.179 The exception is the statutory ‘no evidence’ ground which goes beyond the common law ground, although the precise extent to which it does so has not yet been settled by the courts.180 At the time of the Kerr and Ellicott Reports, the common law ‘no evidence’ ground, was exceptionally narrow (and remains so in Australia). It was only available to challenge jurisdictional facts, and only where there was absolutely no material to support the decision-maker’s factual finding. An extended statutory ‘no evidence’ ground was recommended by the Ellicott Committee at the suggestion of Wade, though the Committee did not elaborate on its reasons for this recommendation.181 The resulting ground in the ADJR Act applies when: (a) the person who made the decision was required to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.182

Many aspects of the ground remain unsettled; however it seems that both subsections go beyond the common law. Subsection (a) does so by lowering the threshold to reasonableness where the law requires a fact to be established. Subsection (b) goes beyond the common law by applying to ‘particular’ facts, which are not necessarily restricted to facts that a decision-maker was required by law to find.183 In addition, there are the two open-ended grounds mentioned above. Aronson has described the provisions as ‘invitations to the Federal Court to add different or newer common law grounds’ to the 17 listed.184 Yet neither ground has been widely used by applicants nor been the subject of any analysis from the courts. In fact, ‘these grounds are so underused and under-theorised that they may fairly be described as “dead letters”’.185 B. The Federal Court’s Other Source of Judicial Review Jurisdiction Even in the very early years of the ADJR Act’s operation it was clear its scope was narrower than under the common law and the Australian Constitution. The ADJR Act only applies to decisions ‘of an administrative character’, so cannot be used 178

ibid s 5(2)(a), (b), (c) and (e). Kioa v West (1985) 159 CLR 550, 567 (Gibbs CJ), 576 (Mason J), 625 (Brennan J) (Kioa). 180 See Aronson and Groves, above n 67, 245–53. 181 Ellicott Report, above n 162, 10. 182 ADJR Act s 5(1)(h) and s 5(3). 183 See further Aronson and Groves, above n 67, 245–53. 184 M Aronson, ‘Is the ADJR Act Hampering the Development of Australian Administrative Law?’ (2004) 15 Public Law Review 202, 203. 185 M Groves, ‘Substantive Legitimate Expectations in Australian Administrative Law’ (2008) 32 Melbourne University Law Review 470, 518. 179

Statutory Judicial Review Frameworks 45 to challenge subordinate legislation; expressly excludes decisions of the GovernorGeneral, which are now reviewable under common law, as well as decisions listed in schedule 1; and only applies to ‘decisions’ that are ‘made under an enactment’.186 The fact that the High Court’s jurisdiction under section 75(v) of the Constitution was broader than the Federal Court’s under the ADJR Act resulted in some applications for review still being heard at first instance in the High Court. Expressing concern about the High Court’s ‘heavy work load’, the federal Parliament conferred an additional source of judicial review jurisdiction on the Federal Court in 1983, which matches the High Court’s original jurisdiction under section 75(v) of the Constitution.187 C. The Effect of the ADJR Act For at least a decade after its introduction, the ADJR Act was considered a leading innovation. It became the primary avenue for judicial review applications, improved access to the courts and resulted in a surge in judicial review applications.188 Aronson and Groves have suggested that the Act’s codification of the grounds of review may have contributed to the increased number of applications by advertising the grounds of review to the legal profession.189 Twelve years after the ADJR Act was enacted, Sir Anthony Mason, then Chief Justice of the High Court of Australia, concluded that the legislation may have ‘achieved more than mere simplification and clarification of the grounds and remedies for judicial review. It may have played a part in assisting the judicial elaboration of the common law principles of review’.190 However, more recently the ADJR Act has attracted criticism for the longer-term impact that it has had on judicial review in Australia. It has also become less influential as a model for reform in the states and territories, with Victoria and Western Australia rejecting proposals for similar acts in 1999191 and 2002192 respectively.

186 See, generally: P Billings and A Cassimatis, ‘Australia’s Codification of Judicial Review: Has the Legislative Effort Been Worth It?’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Melbourne, Cambridge University Press, 2014) 183–89; Administrative Review Council (ARC), Federal Judicial Review in Australia, Report No 50 (2012) chs 4 and 5; Aronson, ‘Hampering’ above n 184, 204–09; M Groves, ‘Should We Follow the Gospel of the Administrative Decisions (Judicial Review) Act 1977 (Cth)?’ (2010) 34 Melbourne University Law Review 736. 187 Commonwealth, Parliamentary Debates, House of Representatives, 21 September 1983, 1046 (Lionel Bowen, Minister for Trade), discussing the Statute Law (Miscellaneous Provisions) Act (No 2) 1983 (Cth) which inserted s 39B into the Judiciary Act 1903 (Cth). There are a few areas in which the Federal Court’s jurisdiction is narrower than that of the High Court, see: J Allsop, ‘Federal Jurisdiction and the Jurisdiction of the Federal Court in 2002’ (2002) 23 Australian Bar Review 29; A Robertson, ‘The Administrative Law Jurisdiction of the Federal Court—Is the AD(JR) Act Still Important?’ (2003) 24 Australian Bar Review 89. 188 Billings and Cassimatis, above n 186, 181–82; Aronson and Groves, above n 67, 60–62; A Mason, ‘Administrative Review: The Experience of the First Twelve Years’ (1989) 18 Federal Law Review 122, 123. 189 Aronson and Groves, above n 67, 60. 190 Mason, ‘Administrative Review’, above n 188, 125. 191 See P Bayne, Judicial Review in Victoria, Expert Report No 5, Victorian Attorney-General’s Law Reform Advisory Council (1999). 192 Law Reform Commission of Western Australia, Report on Judicial Review of Administrative Decisions, Project No 95 (2002) 26.

46 The Framework for Judicial Review of Administrative Action in Australia The central criticisms of the Act relate to the narrow scope of its jurisdictional formula. For a range of reasons, some deliberate choices,193 some a reflection of the state of administrative law at the time the ADJR Act was drafted,194 and others the result of narrow judicial interpretation,195 the scope of the Federal Court’s jurisdiction under the ADJR Act is narrower than under the Judiciary Act. The result is that there is now a dual system of review at the federal level which, ironically, has resulted in a range of new technical problems of the same kind that the ADJR Act was designed to solve. While troubling, this issue does not impact on the scope or intensity of judicial review, and so is not of direct relevance to the analysis in this book. A second complaint about the ADJR Act is its lack of any guiding purpose or principles.196 The criticism is actually one that has been levelled more generally at Australian administrative law, with a number of commentators arguing that Australian administrative law has, to a greater extent than its counterparts in the UK and US, struggled to locate itself within any set of organising principles or framework.197 It is contended that the enactment of the ADJR Act provided an opportunity for legislators to express a more general set of principles to guide the development of Australian administrative law and its failure to do so left judicial review in Australia without any ‘organising themes which might give some shape and direction to each particularised ground’.198 The criticism is not terribly fair given that it was common for legislation drafted at the time to be drafted without an objects clause. Furthermore, the purposes of the ADJR Act were fairly clearly the limited objectives of codifying existing principles and simplifying the application process. Nevertheless, the question remains as to whether an objects clause ought now to be inserted. The Administrative Review Council (ARC) has considered and rejected the suggestion, arguing that an objects clause may further narrow the scope of judicial review under the Act199 and ‘create more uncertainty about the grounds of review’ without having ‘any real benefit for decision-makers’.200 Furthermore, this general criticism of Australian administrative law may now also be dampened by the fact that in the intervening years, the concept of ‘jurisdictional error’ seems to have become the organising principle for Australian judicial review. Finally, the High Court’s focus on the Constitution as the centre of administrative law principles and its preparedness to interpret the ADJR Act differently from the common law where statutory

193

eg, Parliament can exempt decisions from the ADJR Act via sch 1. eg, the requirement that decisions be made ‘under an enactment’ reflects the common law position at the time the ADJR Act was drafted. 195 See, eg, Griffith University v Tang (2005) 221 CLR 99, 130 [89] (Gummow, Callinan and Heydon); NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277, 296–300 [47]–[64] (McHugh, Hayne and Callinan JJ). 196 Aronson, ‘Hampering’, above n 184, 203; ARC, above n 186, 130–32. 197 S Gageler, ‘The Underpinnings of Judicial Review of Administrative Action: Common Law or Constitution’ (2000) 28 Federal Law Review 303; B Selway, ‘The Principle Behind Common Law Judicial Review of Administrative Action—The Search Continues’ (2002) 30 Federal Law Review 217. 198 Aronson, ‘Hampering’, above n 184, 203. 199 ibid 218. 200 ARC, above n 186, 132. See also Groves, ‘ADJR Act’, above n 186, 760–62. 194

Statutory Judicial Review Frameworks 47 language requires, suggest that an ordinary Act of Parliament may never have been capable of fulfilling this guiding role. The third set of criticisms of the ADJR Act, of most concern to this book, are those relating to its effect on the grounds of review. As discussed above, when the Act was first being designed a major concern was that the statutory grounds would not be able to keep pace with developments in the common law, resulting in a fracture between the common law and the ADJR Act. This has not occurred. The codified grounds of review available under the ADJR Act have proven sufficiently flexible to accommodate substantial changes in the scope of the common law including, for example, considerable changes to the application of the rules of natural justice.201 For the most part, the grounds of review available under the ADJR Act are the same as those available under the common law. The High Court has held that the ADJR Act grounds should be read as a summary of the common law grounds, except where the language of the Act requires otherwise.202 Furthermore, the Australian courts have not found it necessary to rely on the two catch-all grounds inserted at Professor Wade’s urging, which indicates that the codified grounds have been sufficiently malleable to accommodate developments that have occurred in the common law; though this may change following recent developments in the scope of the unreasonableness ground of review under common law. In Minister for Immigration and Citizenship v Li,203 discussed in detail in chapter six, the High Court hinted at an expansion in the unreasonableness ground at common law beyond the traditional formulation articulated by Lord Greene in Associated Provincial Picture Houses v Wednesbury Corporation.204 However, the ADJR Act entrenches the Wednesbury formulation, providing that an application for review may be made on the ground that an ‘exercise of a power … is so unreasonable that no reasonable person could have so exercised the power’.205 Thus, depending on the effect of the Li decision, it may now be necessary for applicants to rely on one of the catch-all grounds in making certain arguments regarding the unreasonableness of an administrative decision. The only settled differences between the grounds of review available under the ADJR Act and the common law are the result of deliberate policy choices on the part of the ADJR Act’s drafters. The ADJR Act’s grounds are broader than the common law grounds in two ways. The first, which has already been discussed, relates to the ‘no evidence’ ground of review. The second way in which the ADJR Act grounds of review are wider than the common law grounds is due to the fact that the Act draws no distinction between jurisdictional errors and errors within a decision-maker’s jurisdiction. While this removes one of the most complex areas of the law from the ADJR Act, Aronson argues that by severing of the link with jurisdictional error the

201

Kioa, above n 179. ibid 576–77 (Mason J), 594 (Wilson J), 625 (Brennan J). 203 Li, above n 133. 204 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 230 (Wednesbury). 205 ADJR Act s 5(2)(g). 202

48 The Framework for Judicial Review of Administrative Action in Australia ADJR Act’s grounds of review ‘offer no readily apparent principles to keep the court on the path of judicial review and away from merits review’.206 Neither of the reports by the Kerr and Ellicott Committees contained any discussion of the reasons for the abolition of the distinction between jurisdictional and non-jurisdictional errors in the ADJR Act, although the Kerr Report did briefly discuss the difficulties inherent in the distinction.207 The practical effect of this difference between the common law and ADJR Act is that the ADJR Act’s grounds of review are broader than the common law grounds as they are not limited to jurisdictional errors or non-jurisdictional errors of law on the face of the record. This means, for example, that all procedural errors may give rise to remedies under the ADJR Act regardless of whether Parliament intended that a failure to follow certain procedures would result in invalidity.208 These two differences between the grounds of review available under the ADJR Act and common law may result in some additional complexity and technicality in Australian administrative law. Yet, unlike those aspects of the ADJR Act which restrict the scope of statutory review compared with the common law, there have not been any calls to amend the statutory grounds of review so that they fall in line with the common law grounds. A more troubling criticism of codification of the grounds of review was articulated by Kirby J.209 His Honour submitted that while the ADJR Act has been ‘overwhelmingly beneficial’, its codification of the grounds of review had ‘retarded’ the development of the grounds of review under common law in Australia.210 He pointed to developments in the grounds of review under the common law in England ever since the enactment of the ADJR Act and argued that the common law in Australia had not kept pace. Specifically, Kirby J noted that the ‘no evidence’ ground had expanded to include factual errors made within a decision-maker’s jurisdiction,211 and that English courts would also now review jurisdictional facts which were only required to be met to the decision-makers satisfaction on all grounds, not just whether the state of mind was logically formed.212 He suggested that: The common law in Australia might have developed along similar lines. However, it was at about the time of Lord Wilberforce’s exposition in Tameside that the ADJR Act was enacted in relation to federal administrative decisions. The somewhat arrested development of Australian common law doctrine that followed reflects the large impact of the federal legislation on the direction and content of Australian administrative law more generally.213

206

Aronson, ‘Hampering’, above n 184, 203. Kerr Report, above n 161, 13–14. 208 See, eg, Muin v Refugee Review Tribunal (2002)190 ALR 601, 640 [169] (Gummow J). 209 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, 94 [157] (Applicant S20). 210 ibid 94–95 [156]–[168]. 211 ibid 97 [165] citing R v Criminal Injuries Compensation Board, Ex parte A [1999] 2 AC 330, 344–45 (Lord Slynn of Hadley). 212 ibid 96 [162], citing Secretary of State for Education and Science v Tameside Metropolitan Borough Council (1977) AC 1041, 1047 (Lord Wilberforce). 213 ibid 97 [166]. 207

Statutory Judicial Review Frameworks 49 Similar arguments have since been made by commentators regarding the unreason ableness ground of review in Australia.214 A number of justices of the Australian High Court have since indicated that they may be inclined to, at least partly, follow the English approach to subjective jurisdictional facts.215 The Court has also recently signalled that it may be contemplating broadening the unreasonableness ground from its traditional, narrow Wednesbury formulation.216 However, the ‘no evidence’ ground at common law remains much stricter in Australia than in England, though there have always been differences in this ground, with Australian courts taking a less intrusive approach.217 In Australia many recent decisions have continued to restrict the common law ‘no evidence’ ground to jurisdictional facts or ‘particular facts’ which the legislation requires a decision-maker to find.218 By contrast English courts, which have never applied as strict a standard to reviewing facts as Australian courts,219 have now gone well beyond the traditional Australian approach, to find that decision-makers have erred when they have made a mistake with regard to material facts, regardless of whether the statute requires the facts to be established.220 Wade and Forsyth have suggested that the expanded ‘no evidence’ ground in the ADJR Act may have obviated the need for Australian courts to expand the ground at common law: To find facts without evidence is itself an abuse of power and a source of injustice, and ought to be within the scope of judicial review. This is recognised in other jurisdictions where the grounds of judicial review have been codified by statute. In Australia the Administrative Decisions (Judicial Review) Act 1977 expressly authorises review on the ground that there was ‘no evidence or other material’ to justify the decision where some particular matter has to be established, and a somewhat analogous provision has been enacted in Canada.221

214 See, eg, Taggart, ‘Australian Exceptionalism’, above n 1, 12; J Pennel and YH Shi, ‘The Codification of Wednesbury Unreasonableness—A Retardation of the Common Law Ground of Judicial Review in Australia?’ (2008) 56 AIAL Forum 22. 215 See, eg, Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 179–81 [57]–[59] (French CJ); FTZK v Minister for Immigration and Border Protection (2014) 88 ALJR 754; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 624 [37]–[39] (Gummow ACJ and Kiefel J), 647–48 [129]–[130] (Crennan and Bell JJ). See ch 5 II.A and ch 6 II.D. 216 See ch 6 II.C. 217 Compare R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100, 119 (requiring ‘the absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depend’); and Allinson v General Medical Council [1894] 1 QB 750, 760, 763 (asking whether the evidence is reasonably capable of supporting a decision-maker’s factual findings). 218 See, eg, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, 21 [39] (Gummow and Hayne JJ, with whom Gleeson CJ agreed); SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 [47]; SZWFB v Minister for Immigration and Citizenship [2007] FCA 167 [32]. See also Aronson and Groves, above n 67, 254–55. 219 See: Allinson v General Medical Council, above n 217, 760, 763; P Craig, ‘Judicial Review, Appeal and Factual Error’ [2004] Public Law 788. 220 E v Secretary of State for the Home Department [2004] QB 1044, 1071 (Carnwath LJ); Wade and Forsyth, above n 124, 232–36. 221 Wade and Forsyth, above n 124, 232 (references omitted).

50 The Framework for Judicial Review of Administrative Action in Australia The Canadian provisions to which Wade and Forsyth refer are discussed in chapter three. It is sufficient at this juncture to point out that, over time, these have not prevented Canadian courts from developing the common law ground along the same lines as the statutes,222 and more recently beyond it.223 However, in Australia, Kirby J’s argument finds some support in the fact that the Australian High Court has only been asked to consider expanding the common law ‘no evidence’ ground along English lines on one occasion, where the majority found it unnecessary to consider the issue.224 It is possible that, if given the opportunity to consider the scope of the ground, the High Court would also expand the ‘no evidence’ ground, yet the ADJR Act coupled with the Federal Court’s alternative jurisdiction under section 39B of the Judiciary Act has prevented these opportunities from arising. Though it is equally possible that the Australian High Court would be reluctant to expand the ‘no evidence’ ground at common law because to do so would risk encroaching on the merits of the decision and thus offend the constitutionally entrenched separation of powers. This has been the High Court’s reasoning for refusing to follow English decisions expanding another common law principle—substantive legitimate expectations, discussed in chapter four. However, Canada’s Supreme Court has likewise declined to follow the English expansion of legitimate expectations for similar reasons. When faced with the issue, the Canadian Supreme Court found that it was not the role of courts to intervene in government policy absent a successful Charter challenge.225 Therefore, while it is possible that the ADJR Act may have prevented the High Court from needing to consider whether to expand the ‘no evidence’ ground under common law, it is far from clear that the Act has generally had the effect of stifling the development of the grounds of review. Restrictions in the Australian High Court’s approach to review, where they exist, appear largely have continued because of constitutional constraints—particularly Australia’s constitutional separation of powers. This point is also clear from the Australian approach to unreasonableness, examined in detail in chapter six. Furthermore, as discussed in chapter four the High Court actually relied on the ADJR Act to justify extending natural justice obligations to administrative (as opposed to quasi-judicial) decision-makers in Kioa v West.226 While the reasoning used by the Court in that respect was dubious, it does illustrate that the codification of administrative law principles has not impeded their development.

222

See ch 3 IV. Factual findings are now subject to the overarching ‘reasonableness’ standard of review in Canada, since Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817. See ch 6 III.B. 224 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S134/2002 (2003) 211 CLR 441, 458–59 [35]–[37] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ). 225 Mount Sinai Hospital Center v Québec (Minister of Health and Social Services) [2001] 2 SCR 281, 303–04 [27]–[30] (Binnie J for McLachlin CJ). 226 Kioa, above n 179, 578–79 (Mason J), 596–97 (Wilson J), 360–61 (Deane J). 223

Statutory Judicial Review Frameworks 51 D. Judicial Review Legislation in the Australian States and Territories Each of the Australian states and territories, with the exception of Western A ustralia, has now replaced or supplemented common law judicial review procedures with a simplified statutory process. Most have done so via a minimalist method, amending court rules to create a single judicial review procedure and replacing the writs with equivalent orders.227 In addition, the Australian Capital Territory (ACT), Queensland, Tasmania and Victoria have supplemented the common law jurisdiction of their respective Supreme Courts with statutory judicial review schemes. The statutory schemes in the ACT,228 Queensland229 and Tasmania230 are based on the federal ADJR Act and so generally the same case law and concerns with respect to the grounds of review apply. The Queensland legislation attempted to overcome some of the jurisdictional limits of the ADJR Act and has been only partially successful.231 Victoria has taken a different approach from other Australian jurisdictions in its judicial review statute. Like the ADJR Act, the Victorian Administrative Law Act 1978 (Vic) (ALA) was intended to overcome the technical difficulties that had beset the common law. However, it was less ambitious and is restricted, for the most part, to procedural rather than substantive reforms.232 It makes no attempt to set out the grounds of review or make any other substantive changes to the principles of review. Nevertheless, the ALA is widely regarded to have failed to achieve even this relatively limited procedural goal. The Act is not widely used, does not appear to have stimulated any significant changes to the law and has given rise to many technical and interpretive problems.233

Some of the technical and interpretive problems that Groves is referring to are similar to those that have arisen under the ADJR Act and relate to its jurisdiction provisions and its 30-day time limit for applications.234 However, Groves explains that more serious problems have arisen because of the fact that the relationship between the ALA and the common law is not clear. E. Australia’s Generalist Tribunals Though not part of Australia’s judicial review framework, Australia’s tribunal system is noteworthy because of its possible effect on the development of judicial review.

227 Supreme Court Act 1970 (NSW) ss 65, 66, 69, 70, 71; Supreme Court Rules (NT) r 56.01; Supreme Court Act 1986 (Vic) s 3(6) and Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 56.01; Judicial Review Act 1991 (Qld) s 43; Supreme Court Civil Rules 2006 (SA) rr 199–201. 228 Administrative Decisions (Judicial Review) Act 1989 (ACT). 229 Judicial Review Act 1991 (Qld). 230 Judicial Review Act 2000 (Tas). 231 See Groves, ‘ADJR Act’, above n 186, 753–54. 232 Like the ADJR Act, the ALA creates a single application procedure and remedy (ss 3 and 5), a single standing test (s 3) and a right to reasons (s 8). 233 M Groves, ‘Should the Administrative Law Act 1978 (Vic) be Repealed?’ (2010) 34 Melbourne University Law Review 451, 453. 234 ibid 460.

52 The Framework for Judicial Review of Administrative Action in Australia I argue in later chapters that the strength of Australia’s tribunal system may explain why, in some cases, courts have been prepared to refrain from judicial review, as alternative avenues of accountability are available. I also suggest that Australia’s comprehensive tribunal system may have played a role in defining the law/merits distinction in Australia. Therefore, a brief introduction is required here. There are dozens of tribunals, boards and bodies with various other names performing reviews of federal administrative decisions. At the federal level in Australia, these bodies fit, constitutionally speaking, within the executive branch, due to the strict separation of powers. One tribunal is particularly noteworthy—the Administrative Appeals Tribunal (AAT). The AAT was established in 1975 as part of the same package of reforms as the ADJR Act, arising from the Kerr Report—still referred to as the ‘new administrative law’ reforms. In addition to the ADJR Act, the Kerr Committee recommended that the Commonwealth establish a generalist administrative review tribunal to replace the many specialist tribunals in order to introduce a level of consistency in the availability of, and procedures associated with, external merits review of federal administrative decisions.235 The AAT now has jurisdiction to review decisions under more than 400 Commonwealth Acts and legislative instruments including in the areas of taxation, social security, workers’ compensation, veterans’ entitlements, fisheries management, space licences, and trademarks and patents.236 Its jurisdiction was expanded in 2015 to incorporate migration and firstinstance social security appeals, work previously done by the Migration Review Tribunal, Refugee Review Tribunal and Social Security Appeals Tribunal.237 The generalist tribunal model of the AAT is widely regarded as a success,238 resulting in several states and territories following the Commonwealth’s lead and establishing generalist tribunals. More recently, almost all have expanded upon the model and amalgamated generalist tribunals with inferior courts. This is possible at the state level because the separation of judicial power is not as strict as at the federal level. IV. AUSTRALIA’S HUMAN RIGHTS FRAMEWORK

A. Constitutional Rights i. Express ‘Rights’ It is frequently observed that Australia is the only democracy without a national bill of rights. The drafters of the Australian Constitution seemed largely to accept the dominant English constitutional philosophy at the time—championed by Dicey— that ‘individual rights were on the whole best left to the protection of the common 235

Kerr Report, above n 161, ch 14. Appeals Tribunal, Annual Report 2011–12, 22–26; Groves and Boughey, above n 163, 4. 237 Tribunals Amalgamation Act 2015 (Cth). 238 R Creyke, ‘Tribunals and Merits Review’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Melbourne, Cambridge University Press, 2014) 414. 236 Administrative

Australia’s Human Rights Framework 53 law and the supremacy of parliament’.239 Accordingly the Australian Constitution is more concerned with ‘the structure and relationship of government rather than individual rights’.240 There are, however, a few provisions of the Constitution which may be regarded as expressly protecting individual ‘rights’—though none are framed in such terms. The Commonwealth Parliament’s power to compulsorily acquire property is limited by a requirement that the acquisition be ‘on just terms’,241 a requirement that occupies a special place in the Australian socio-legal psyche.242 A jury trial is guaranteed for persons charged with an indictable offence under Commonwealth law (though it should be noted that the bulk of criminal offences are contained in state laws).243 The Commonwealth is prohibited from making laws establishing any religion, imposing religious observance, prohibiting the free exercise of religion and requiring a religious test for public office.244 And all Australian governments are prohibited from discriminating against persons based on the state in which they reside.245 ii. Implied Constitutional ‘Rights’ These sparse express ‘rights’ are supplemented by a small number of limited ‘rights’ (or more accurately, limits on legislative and executive power) that the High Court has found to be implied from the general text, structure and purposes of the Constitution, and specifically the system of representative democracy it establishes. These include an implied freedom of political communication insofar as is necessary to ‘effectuate the free election of representatives at periodic elections’.246 While the freedom applies as a limit to executive power,247 it has tended to be invoked either in defence to defamation proceedings brought by politicians against journalists, commentators and activists248 or to challenge the validity of legislative provisions which prohibit certain activities,249 and not as a direct challenge to executive action. The implied freedom of political communication applies at both the federal and state levels.250 The system of representative democracy established by the Constitution, and specifically the statements in sections 7 and 24 that MPs and Senators shall be ‘chosen by the people’, has been held to entrench a right of adult citizens

239

Kruger v Commonwealth (Stolen Generations Case) (1997) 190 CLR 1, 61 (Dawson J).

240 ibid. 241

Australian Constitution s 51 (xxxi). Due to having been the subject of the 1997 movie The Castle. 243 Australian Constitution s 80. 244 ibid s 116. 245 ibid s 117. 246 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 557. 247 Monis v The Queen (2013) 249 CLR 92, 141 [103] (Hayne J). 248 See, eg, Theophanous v Herald Weekly Times (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Lange v Australian Broadcasting Corporation, above n 246. 249 See, eg, Australian Capital Television v Commonwealth, above n 25; Langer v Commonwealth (1996) 186 CLR 302; Unions NSW v New South Wales (2013) 252 CLR 530; McCloy v NSW (2015) 89 ALJR 857. 250 Unions NSW v New South Wales, above n 249, 548–51 [17]–[26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). 242

54 The Framework for Judicial Review of Administrative Action in Australia to vote in the absence of ‘substantial reasons’ for excluding that right.251 Again the right limits both legislative and executive power, but has tended to be invoked in cases challenging the former. Some members of the High Court have suggested that representative democracy may also impliedly require the protection of various other freedoms, such as freedom of association and movement, but neither has been endorsed by a majority of the Court in any case.252 B. Statutory Rights Protection Under Commonwealth Law Australia does not have any general statute protecting human rights at the federal level, though it does have a number of pieces of legislation which protect specific rights. At the federal level, these include anti-discrimination legislation which makes it unlawful to discriminate against individuals on the basis of their race, gender, sexual orientation or gender identity, age, or disability in many areas of public life,253 and the Privacy Act 1988 (Cth). The Australian Human Rights Commission is responsible for resolving discrimination complaints and matters that cannot be resolved through conciliation can be pursued in the federal courts. The Privacy Act only enables people to make complaints to a Privacy Commissioner where their privacy has been breached and does not create a cause of action for invasion of privacy. As noted in chapter one, examination of these statutory schemes and their state equivalents is outside the scope of this book. In 2008, the Australian Government established a committee to conduct a National Human Rights Consultation, chaired by Father Frank Brennan. While the Brennan Committee recommended that Australia adopt a federal Human Rights Act, its report noted ‘substantial opposition’ to the proposal.254 Ultimately the Australian Government decided not to adopt the Committee’s recommendation for a Human Rights Act, on the basis that such legislation would be ‘divisive’.255 The Brennan Committee also recommended that the ADJR Act be amended to specify that human rights are relevant considerations in administrative decision-making. To date the federal government has not responded to this recommendation.256

251 Roach v Electoral Commissioner (2007) 233 CLR 162, 198 [83] (Gummow, Kirby and Crennan JJ, with whom Gleeson CJ agreed); Rowe v Electoral Commissioner (2010) 243 CLR 1, 18–19 [18]–[22] (French CJ), 46–50 [117]–[126] (Gummow and Bell JJ), 117 [367]–[368] (Crennan J), 126–28 [405]–[411] (Kiefel J, dissenting on the outcome). 252 See, eg, Australian Capital Television Pty Ltd v Commonwealth, above n 25, 212 (Gaudron J), 232 (McHugh J); Cunliffe v Commonwealth (1994) 182 CLR 272, 328 (Brennan CJ); Kruger v Commonwealth, above n 239, 128–29 (Gaudron J), 142–43 (McHugh J); South Australia v Totani (2010) 242 CLR 1, 29–30 [31] (French CJ), 99–100 [253] (Heydon J); Wainohu v New South Wales (2011) 243 CLR 181, 230 [112] (Heydon J). 253 Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Age Discrimination Act 2004 (Cth); Disability Discrimination Act 1992 (Cth). 254 Brennan Committee, National Human Rights Consultation Report (2009) 16, available at: www.ag.gov. au/RightsAndProtections/HumanRights/TreatyBodyReporting/Pages/HumanRightsconsultationreport. aspx. 255 R McClelland, ‘Address to the National Press Club of Australia—Launch of Australia’s Human Rights Framework’ (National Press Club of Australia, Canberra, 21 April 2010). 256 ARC, above n 186, 21.

Australia’s Human Rights Framework 55 Instead, the government’s central response to the National Human Rights Consultation was legislation creating a parliamentary model of human rights protection. The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (HRPS Act) establishes a framework designed to increase parliamentary scrutiny of legislation for compliance with human rights. It defines ‘human rights’ by reference to seven major international conventions—which encompass an exceptionally broad range of at least 50 distinct rights and freedoms including economic, social and political rights and rights that apply specifically to vulnerable groups.257 The HRPS Act requires that a statement of compatibility be tabled in respect of each Bill presented to the Parliament, assessing the extent to which the relevant Bill is compatible with human rights.258 However, no time frame is set out for the tabling of a statement of compatibility, and the HRPS Act states that failure to table such a statement does not affect the validity of any Act, and nor is a statement binding on any court or tribunal.259 The HRPS Act also establishes a Joint Parliamentary Committee on Human Rights whose function is to examine and report to each House of Parliament on the compatibility of Bills with human rights. George Williams and Lisa Burton observe that the HRPS Act ‘is unique in democratic nations in that it provides no role for the courts’.260 It is too soon to be able to fully assess the effectiveness of the HRPS Act in protecting human rights, but the absence of any independent enforcement or oversight mechanisms, its non-binding nature and its impossibly broad and non-specific coverage suggest that it is unlikely to have a dramatic effect on human rights protection in Australia. There have not yet been any cases considering the effect of the HRPS Act on administrative decision-making in Australia. Chapter five considers some of the possibilities. C. State and Territory Charters of Rights Two Australian jurisdictions have statutory charters of rights—the Australian Capital Territory (ACT) and Victoria. The ACT enacted the first Australian charter of rights in 2004 and Victoria followed two years later.261 The statutes are very similar, and have become more so since the ACT amended its legislation in 2008.262 The list of rights protected by each is virtually identical and includes mainly civil and political rights, although both also protect the right to cultural practice263 and the ACT legislation protects a right to free education.264 Both statutes provide that rights

257

HRPS Act s 3. ibid s 8. 259 ibid s 8(4) and (5). 260 G Williams and L Burton, ‘Australia’s Exclusive Parliamentary Model of Rights Protection’ (2013) 34 Statute Law Review 58, 59. 261 Human Rights Act 2004 (ACT) (ACT Charter); Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter). 262 Human Rights Amendment Act 2008 (ACT). 263 ACT Charter s 27; Victorian Charter s 19. 264 ACT Charter s 27A. 258

56 The Framework for Judicial Review of Administrative Action in Australia may be limited, in almost identical language.265 Section 7(2) of the Victorian Charter provides that: ‘A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human d ignity, equality and freedom’. The subsection then sets out five factors which should be taken into account in determining whether a limit is reasonable. These are: —— —— —— —— ——

the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relationship between the limitation and its purpose; and any less restrictive means available to achieve the purpose that the limitation seeks to achieve.266

Section 7(2) was modelled on the reasonable limits clauses in the New Zealand Bill of Rights Act 1990 (NZ) and the Constitution of the Republic of South Africa 1996,267 section 36 of which sets out the same five considerations, which were in turn heavily influenced by the test that applies under section 1 of the Canadian Charter (discussed in chapter three).268 Both the ACT and Victorian Charters place responsibility on all three branches of government for protecting rights. Like the federal HRPS Act, both require that statements of compatibility be tabled alongside Bills being introduced into the respective legislatures, in order to permit parliamentary scrutiny.269 Unlike the federal legislation, the ACT Charter and Victorian Charter expressly state that public authorities must act in a manner compatible with protected rights and take rights into account in decision-making.270 Precisely what this means for administrative decision-makers, and review of their decisions and actions, is examined in chapter five. Public authorities are defined in both jurisdictions by reference to the function an entity is performing.271 There has been little judicial analysis of the issue, but it would seem on its face that both Acts apply to a wider range of decision-makers than are subject to judicial review.272 For instance, both charters expressly apply to contractors performing public functions, while the extent to which contractors are subject to judicial review at common law is in doubt, as discussed above.273

265 s 28 of the ACT Charter was amended in 2008 and is now almost identical to s 7(2) of the Victorian Charter. 266 Victorian Charter s 7(2). 267 Charter of Human Rights and Responsibilities Bill, As Sent Print Explanatory Memorandum, 2006, 9. 268 See discussions in Hansen v The Queen [2007] 3 NZLR 1 [19] (New Zealand); and S v Zuma (1995) 2 SA 642 [35] (South Africa). See further G Williams, ‘The Victorian Charter of Human Rights and Responsibilities: Origins and Scope’ (2006) 30 Melbourne University Law Review 880. 269 ACT Charter s 37; Victorian Charter s 28. 270 ACT Charter s 40B; Victorian Charter s 38. 271 ACT Charter s 40(g); Victorian Charter s 4. 272 The only consideration appears to have been in VCAT in Metro West v Sudi [2009] VCAT 2025. See generally MB Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act (2015) 58. 273 ACT Charter s 40(g); Victorian Charter s 4(1)(c).

Australia’s Human Rights Framework 57 However, section 39 of the Victorian Charter prevents individuals from obtaining a remedy for a public authority’s breach of a listed right where they would not otherwise be entitled to seek a remedy under common law. Thus, in Victoria, it may be impossible for an individual to enforce the obligations of contractors exercising ‘public functions’ to comply with the Charter. Both charters also provide for some level of judicial oversight of legislative and executive action. Courts are required to interpret legislation consistently with human rights wherever possible, provided that rights-compatible interpretations are consistent with the legislative purpose.274 A majority of the High Court suggested in Momcilovic v The Queen, that it may not be constitutionally permissible for courts to apply reasonable limits clauses in applying these interpretive provisions (or those in the Victorian Charter at least) because it involves the exercise of a non-judicial function.275 When the Supreme Court in either jurisdiction finds that legislation is not compatible with human rights, then they may issue a declaration of incompatibility.276 In neither jurisdiction are courts empowered to strike down legislation on the basis that it is inconsistent with human rights. Instead, the government must table a response to declarations of incompatibility in the respective legislature.277 In Momcilovic v The Queen, the High Court held that these declarations of incompatibility as provided for by the Victorian (and presumably ACT) legislation are not a judicial function, principally because they have no impact on the legal rights of parties.278 A majority further held that declarations of incompatibility are not incidental to the exercise of judicial functions.279 Thus, similar powers could not be conferred on federal courts and cannot be exercised by state supreme courts in the exercise of federal jurisdiction, due to the separation of powers. However, a narrow majority held that it is permissible for state courts to exercise the non-judicial function in their exercise of state jurisdiction because doing so does not breach the Kable principle.280 There may be various other constraints on the Commonwealth’s ability to enact a federal charter of rights as well, such as those derived from the limited nature of its legislative powers.281 For instance, Pamela Tate notes that any federal legislation would need to rely on the external affairs power (section 51(xxix)

274

ACT Charter s 30; Victorian Charter s 32. Momcilovic v The Queen (2011) 245 CLR 1, 44 [35]–[36] (French CJ), 171–75 [430]–[439] (Heydon J), 219–20 [571]–[576] (Crennan and Kiefel JJ). 276 ACT Charter s 32; Victorian Charter s 36. 277 ACT Charter s 33; Victorian Charter s 37. 278 Momcilovic v The Queen, above n 275, 60–65 [80]–[89] (French CJ), 94 [178] (Gummow J), 123 [280] (Hayne J) (concurring with the relevant parts of Gummow J’s judgment), 185 [457] (Heydon J), 222 [584] (Crennan and Kiefel JJ), 241 [661] (Bell J) (concurring with the relevant parts of French CJ’s judgment). 279 ibid 65–66 [90]–[91] (French CJ), 96–97 [187] (Gummow J), 123 [280] (Hayne J), 185 [457] (Heydon J), 241 [661] (Bell J). 280 ibid 67–68 [95]–[97] (French CJ), 225–29 [595]–[605] (Crennan and Kiefel JJ), 241 [661] (Bell J) (concurring with the relevant parts of French CJ’s judgment). The implications of the judgment for administrative law are considered in ch 6 II.B. 281 P Tate, ‘Human Rights in Australia: What Would a Federal Charter of Rights Look Like?’ (2009) 13 Southern Cross University Law Review 1, 17–22. 275

58 The Framework for Judicial Review of Administrative Action in Australia of the Australian Constitution) and so be reasonably capable of giving effect to an international treaty.282 One important distinction between the Victorian and ACT Charters is that the Victorian Charter does not provide for a distinct cause of action for breach of human rights by a public authority. Section 40C of the ACT Charter allows ‘victims’ of an alleged breach to commence proceedings within a year, and allows the Court to grant any remedies it considers appropriate, except damages. However, section 39 of the Victorian Charter provides that: If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

The effect of section 39 is still somewhat uncertain, and the provision poses some particularly difficult issues for courts that are yet to be fully explored.283 From an administrative law perspective, section 39 seems to require that an aggrieved person must apply for relief under either the ALA or the common law284 on an ordinary ultra vires ground, such as unreasonableness or failure to afford procedural fairness. Section 39 then operates to allow the aggrieved person to seek the same relief on the ground that the decision was unlawful under the Victorian Charter.285 The prevailing view seems to be that it is not necessary for an aggrieved person to be entitled to relief on non-Charter grounds; they must simply have a right to seek such relief.286 A review of the Victorian Charter in 2015 recommended, in essence, that section 39 should be removed, so that a person who claims a public authority has acted incompatibly with human rights, or failed to consider rights, could apply directly for a remedy (excluding damages), or rely on the Charter in legal proceedings.287 As will become evident in later chapters, both the ACT and Victorian Charters of Rights are still in relative infancy, with their meaning, and particularly their implications for administrative decision-making, still being worked through by the courts, executive and legislators. There has been little litigation on many important aspects of both laws, particularly in the area of administrative decision-making. Yet a number of cases in which these issues have been touched upon raise important questions for the relationship between administrative law and human rights, which are likely to impact on that relationship in Australia more generally. Furthermore, while there are currently only two Australian jurisdictions with charters of rights, the way courts interpret those statutes and their interaction with administrative law is likely to have broader implications should more Australian states, or the federal legislature

282 ibid.

283 See J Gans, ‘The Charter’s Irremediable Remedies Provision’ (2009) 33 Melbourne University Law Review 105; Young, above n 272, 119–22. 284 Under the Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 56.01. 285 M Groves, ‘Tribunals, Judicial Review and the Victorian Charter’ (2012) 23 Public Law Review 3, 9–15. 286 See PJB v Melbourne Health [2011] VSC 327 [297]–[303] (Patrick’s Case); R v Debono [2013] VSC 407 [81]–[82]. 287 Young, above n 272, 133.

Conclusions 59 adopt human rights legislation. It may also be telling of the way Australian courts regard the relationship between rights and administrative law more generally. Thus, although many issues remain unsettled with respect to both the ACT and Victorian legislation, for these reasons it is important to consider the limited jurisprudence on the statutes and its broader potential implications for Australian administrative law. V. CONCLUSIONS

This chapter has set out the constitutional and statutory framework in which judicial review of administrative action operates in Australia, as well as the general human rights protections that exist in Australian law. As is evident from the discussion in this chapter, and as later chapters will further highlight, this framework has been pivotal in the development of Australian administrative law. Of particular importance is the fact that the Constitution entrenches some core ‘minimum’ judicial role in reviewing administrative action and the limits placed on that role by the separation of powers. As later chapters show, the latter, and judicial interpretations of what it demands, has been largely responsible for the High Court of Australia’s refusal to follow various overseas developments and maintenance of a traditional approach to judicial review of administrative action.

3 The Framework for Judicial Review of Administrative Action in Canada

T

HERE ARE MANY similarities between the judicial review frameworks of Australia and Canada. Both have written constitutions which are a hybrid of the US and UK constitutional models: dividing power between federal and state/provincial governments; and establishing a system of representative government. Like Australia and the US, Canada’s Constitution has also been held to entrench the supervisory jurisdiction of courts over the actions of the other branches of government. These features of the Canadian Constitution have been an important backdrop to the development of administrative law, just as they have in Australia. Also like Australia, several Canadian jurisdictions have made efforts to codify aspects of judicial review of administrative action, albeit in a relatively less extensive manner. However, an important difference between Australia and Canada is the latter’s extensive, constitutionally entrenched and judicially enforceable human rights framework. This chapter examines the constitutional and statutory framework within which judicial review of administrative action operates in Canada, providing a context for the more detailed analysis contained in later chapters of this book. The chapter begins with a brief overview of Canada’s Constitution, with a focus on those aspects most relevant to judicial review of administrative action. Section II considers the constitutional status of judicial review in Canada and the historical development of the Supreme Court of Canada’s interpretation of the judicature sections of the Constitution Act 1867.1 The related issue of Canadian courts’ treatment of privative clauses is considered in section III, which centres on the development of what is now known as the ‘standard of review’ analysis. Section IV provides an overview of Canada’s statutory judicial review frameworks and their effects on, and interaction with, the common law. Section V analyses Canada’s human rights framework, particularly the Canadian Charter of Rights and Freedoms,2 and some introductory aspects of its interaction with judicial review of administrative action.

1 2

Constitution Act 1867 (Imp) 30 & 31 Vict, c 3. Canada Act 1982 (UK) c 11, sch B, pt 1 (Charter).

Canada’s Constitution 61 I. CANADA’S CONSTITUTION

Like Australia, Canada has a written constitution—an important feature that distinguishes both from the UK. In contrast to Australia, the Canadian Constitution is not found in one core instrument, but in a series of statutes, amendments, orders and proclamations. The issue of which particular documents are considered part of the Canadian Constitution is a subject of ongoing debate;3 however it is generally accepted that the two most significant documents are the Constitution Act 1867 and the Constitution Act 1982.4 The Constitution Act 1867 often referred to by its previous name—the British North America Act 18675—united the three British colonies of Canada, Nova Scotia, and New Brunswick, creating the Dominion of Canada. The Act is minimalist, doing only what was necessary to create the federal Dominion of Canada6 and divide the province of Canada into its former ‘parts’ of Ontario and Québec.7 It created the Canadian Parliament,8 set out the terms of Canada’s federal structure—dividing power between the provincial and federal governments9—and codified certain general aspects of the structure of Canada’s government. The Act did not establish Canada as independent from the UK, and in fact for the most part sought to retain the principles and structures of governance that Canada had inherited.10 Peter Hogg has pointed out that the Constitution Act 1867 contains countless gaps in relation to crucial matters, including the manner of amending the Canadian Constitution and the creation of, and appointment to, the key offices of Governor-General and Prime Minister.11 Other matters notably absent from the Act are a clear right to vote, the role of ministers and the Cabinet and the role of the Supreme Court of Canada, which was not established until eight years after federation. The constitutional status of the Supreme Court is discussed in further detail below. Accordingly, the constitutional conventions of UK law have necessarily continued to form part of the Canadian Constitution.12 Between 1867 and 1982 Canada took gradual steps towards independence from the UK.13 The Constitution Act 1982 was the final step (to date) in this process, giving the Canadian Parliament the ability to amend its Constitution without requiring

3 See, eg, WJ Newman, ‘Defining the “Constitution of Canada” since 1982: The Scope of the Legislative Powers of Constitutional Amendment Under Sections 44 and 45 of the Constitution Act, 1982’ (2003) 22 Supreme Court Law Review 423; H Arthurs, ‘Constitutional Courage’ (2003) 49 McGill Law Journal 1. 4 Canada Act 1982 (UK) c 11, sch B; Newman, ‘Defining’, above n 3, 424; Arthurs, ‘Constitutional Courage’, above n 3, 5–6. 5 The name of the Act was changed by the Canada Act 1982. 6 Constitution Act 1867 s 3. 7 ibid ss 5 and 6. 8 ibid pt IV. 9 ibid pt VI. 10 P Hogg, Constitutional Law of Canada, vol 1, 5th edn (Toronto, Carswell, 2010) 1-3–1-4. 11 ibid 1-4–1-5. 12 ibid 1-4. 13 ibid ch 3.

62 The Framework for Judicial Review of Administrative Action in Canada an Act of the UK Parliament.14 The Constitution Act 1982 has an obvious parallel with the Australia Act 1986 (Cth) in that both abolished ‘residual links’ with the British Parliament.15 However, the former had a greater effect on sovereignty because it gave Canadians the ability to amend their own Constitution, which may explain why it was more controversial than the Australian equivalent.16 Canada’s Constitution Act 1982 also adopted the Charter of Rights and Freedoms, aspects of which will be discussed below. Section 52 of the Constitution Act 1982 provides that the Constitution ‘is the supreme law of Canada’ and that any inconsistent law has no effect.17 It also provides that the Constitution includes the Constitution Act 1982 plus those acts listed in its schedule and any amendments.18 It is worth noting that the level to which these laws are entrenched varies, with some parts able to be amended by ordinary legislative processes.19 In addition to those statutes listed in the Constitution Act 1982, the Supreme Court has referred to a number of pieces of human rights legislation as ‘of a constitutional character’.20 Newman refers to these as having ‘quasi-constitutional’ status and identifies further statutes that are ‘constitutional in an organic sense’ because they ‘regulate key aspects of the relationship between the government and the citizenry’.21 The Court has labelled other laws, such as provincial and federal privacy legislation, ‘quasi-constitutional’.22 The Supreme Court has made it clear that referring to a statute as constitutional in character does not affect the capacity of the Parliament to amend the law through the ordinary legislative process.23 It simply means the laws should be given a liberal construction in accordance with their purpose of embodying fundamental values.24 Given the gaps in Canada’s written constitutional documents, constitutional conventions are a particularly important part of Canadian constitutional law. Constitutional conventions are not enforceable by the courts, but in a number of cases have been explicitly recognised as forming part of Canada’s Constitution.25 For example in Re Resolution to Amend the Constitution, which dealt with the enactment of the Constitution Act 1982, the majority of the Supreme Court held that while there was no legally enforceable obligation on the federal Parliament to gain provincial

14

Constitution Act 1867 pt V. Gummow, ‘Book Review: The Australia Acts 1986 by Anne Twomey’ (2011) 33 Sydney Law Review 319, 319. 16 ibid 319. 17 Constitution Act 1982 s 52(1). 18 ibid s 52(2). The Acts listed in the schedule include: Constitution Act 1867; Parliament of Canada Act 1875 (UK) 38–39 Vict, c 38; and Statute of Westminster 1931 (Imp) 22 & 23 Geo 5, c 4. 19 Constitution Act 1982 ss 44 and 45. See also Newman, ‘Defining’, above n 3. 20 eg, Canadian Bill of Rights, SC 1960, c 44; and Official Languages Act, SC 1988, c 38. Newman, ‘Defining’, above n 3, 430. 21 eg, An Act respecting constitutional amendments, SC 1996, c 1. Newman, ‘Defining’, above n 3, 431. 22 Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401 [2013] 3 SCR 733 [19] and cases referred to therein. 23 R v Mercure [1988] 1 SCR 234, 268–72 (La Forest J, Dickson CJ and Beetz, Lamer, Wilson and Le Dain JJ). 24 Ontario Human Rights Commission v Simpsons-Sears Ltd [1985] 2 SCR 536, 547 [12]. 25 Hogg, Constitutional Law of Canada, above n 10, 1–23. 15 W

The Constitutional Status of Judicial Review 63 c onsent to proposed amendments to the Constitution, convention required a substantial degree of provincial consent before the federal Parliament requested the legislation from the UK.26 More recently, the Supreme Court has also found that unwritten common law principles and norms form a part of the Canadian Constitution.27 Specifically, the Court has recognised four fundamental ‘organising principles’ underpinning the Constitution: federalism; democracy; constitutionalism and the rule of law; and respect for minorities.28 The extent to which these values are justiciable and capable of prevailing over legislation properly enacted by Canadian legislatures remains disputed.29 Their implications for judicial review of administrative action are examined below. II. THE CONSTITUTIONAL STATUS OF JUDICIAL REVIEW

A. The Constitutional Place of Canadian Courts Neither of Canada’s two central written constitutional documents explicitly entrenches the role of the Supreme Court. Section 129 of the Constitution Act 1867 expressly continued the role of provincial superior courts and other provincial courts existing at federation; however a federal superior court did not exist and was not considered necessary at that time, as the Judicial Committee of the Privy Council continued to serve as the final appellate body for all British colonies.30 The Constitution Act 1867 did, however, provide that the Canadian Parliament has the power to establish a superior federal court as well as any additional federal courts,31 which it exercised in 1875 to create the Supreme Court of Canada by statute.32 Section 52 of the Constitution Act 1982, which sets out what documents the Canadian Constitution ‘includes’, makes no mention of the Supreme Court Act, nor does the schedule to which section 52 refers.

26 Re Resolution to Amend the Constitution [1981] 1 SCR 753, 874 (Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer JJ). 27 New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) [1993] 1 SCR 319, 378, 384 (McLachlin, L’Heureaux-Dubé, Gonthier and Iacobucci JJ) (La Forest J concurring on this point) (privileges of provincial legislatures); Manitoba Provincial Judges Association v Manitoba (Minister of Justice) [1997] 3 SCR 3 (Lamer CJ, L’Heureaux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ) (Provincial Judges Reference) (judicial independence); Reference re the Secession of Québec [1998] 2 SCR 217, 247, 270–72 (Secession Reference). Compare Osborne v Canada (Treasury Board) [1991] 2 SCR 69, 88 (Sopinka, Cory and McLachlin JJ). 28 Provincial Judges Reference, above n 27, 70–73 (Lamer CJ, L’Heureaux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ); Secession Reference, above n 27, 247–63. 29 MD Walters, ‘The Common Law Constitution in Canada: Return of lex non scripta as Fundamental Law’ (2001) 51 University of Toronto Law Journal 91; P Hogg and C Zwibel, ‘The Rule of Law in the Supreme Court of Canada’ (2005) 55 University of Toronto Law Journal 715. 30 Hogg, Constitutional Law of Canada, above n 10, 8-1. 31 Constitution Act 1867 s 101. 32 Supreme Court and Exchequer Courts Act, SC 1875, c 11. Now the Supreme Court Act, RSC 1985, c S-26. Hereinafter, ‘Supreme Court Act’ should be read as referring to the legislation governing the Supreme Court of Canada at the relevant time.

64 The Framework for Judicial Review of Administrative Action in Canada Despite the lack of any express constitutional provision entrenching the Supreme Court of Canada, two sections of the Constitution Act 1982 dealing with constitutional amendment appear to assume that the role of the Court is constitutionally protected. Section 41 lists constitutional amendments that require the consent of the federal Parliament and all the provincial parliaments, and in subsection (d) includes changes to ‘the composition of the Supreme Court of Canada’. Section 42 lists amendments that require the consent of the federal Parliament plus two-thirds of provincial parliaments, with an aggregate of at least 50 per cent of the population, and lists matters relating to the Supreme Court other than its composition. The mention of the Supreme Court in sections 41 and 42 led to debate about whether, and to what extent, the sections guarantee the continued existence of the Supreme Court.33 Those of the view that aspects of the Supreme Court Act are entrenched rely on the use of the word ‘includes’ in section 52, arguing that the schedule is not an exhaustive list of laws that comprise the Constitution.34 Those who argue that the Court’s role is not entrenched rely on the fact that amendments attempting to do precisely that, in 198735 and 1992,36 were defeated.37 In 2014, in Reference Re Supreme Court Act, ss 5 and 6,38 the majority of the Supreme Court largely endorsed the former interpretation. They held that the latter would result in sections 41(d) and 42(1)(d) being ‘empty vessels’ and lead to ‘practical consequences that the provinces could not have intended’.39 Specifically, it would allow the Canadian Parliament to unilaterally alter the Court, which the provinces would not have agreed to, and would also ‘mean that the Court would have less protection than at any other point in its history since the abolition of appeals to the Privy Council’.40 The dramatic facts of the case involved the Supreme Court being required to rule on the lawfulness of the appointment of one of its own justices. The Government’s appointment of Justice Marc Nadon, a judge of the Federal Court of Appeal, as one of the ‘Québec judges’ under section 6 of the Supreme Court Act, was challenged on the basis that he did not meet the criteria for appointment under that section. Although Justice Nadon met the general criteria for appointment under section 5, it was contended (and ultimately held by the majority of the Supreme Court) that he did not meet the narrower criteria for appointment as a Québec judge under section 6. The Canadian Parliament attempted to resolve this issue by amending sections 5 and 6 of the Supreme Court Act to ensure that Justice Nadon’s appointment was valid. Thus, the Supreme Court was required to rule on whether the Canadian Parliament could unilaterally amend the criteria for appointment to the Court. 33 See, eg, R Cheffins, ‘The Constitution Act, 1982 and the Amending Formula: Political and Legal Implications’ (1982) 4 Supreme Court Law Review 43, 53–54; WR Lederman, ‘Constitutional Procedure and the Reform of the Supreme Court of Canada’ (1985) 26 Les Cahiers de droit 195, 197–98; Hogg, Constitutional Law of Canada, above n 10, 8-2–8-3; WJ Newman, ‘The Constitutional Status of the Supreme Court of Canada’ (2009) 47 Supreme Court Law Review (2d) 429, 436. 34 See, eg, Cheffins, above n 33, 53–54. 35 Meech Lake Accord. 36 Charlottetown Accord. 37 See, eg, Hogg, Constitutional Law of Canada, above n 10, 8-2–8-3. 38 Reference Re Supreme Court Act, ss 5 and 6 [2014] 1 SCR 433. 39 ibid 474–75 [97]–[99] (McLachlin CJ, LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ). 40 ibid 475 [99].

The Constitutional Status of Judicial Review 65 Six of the seven justices who heard the case41 held that section 41(d) of the Constitution Act 1982 had the effect of entrenching those provisions of the Supreme Court Act relating to the composition of the Court (including sections 5 and 6) as they stood in 1982. Critically, the majority stated that: ‘By implication, s 41(d) also protects the continued existence of the Court, since abolition would altogether remove the Court’s composition’.42 Although strictly unnecessary for the Court to decide in the case, it was also held that section 42(1)(d) of the Constitution Act 1982 entrenched ‘the essential features’ of the Court, but not all of the provisions of the Supreme Court Act.43 This is consistent with the fact that the Supreme Court Act has been amended on a number of occasions since 1982 by ordinary Acts of Parliament without challenge, demonstrating that that Act in its entirety does not form part of the Constitution of Canada. The Court gave little indication as to what the Court’s ‘essential features’ are, but stated that they must be ‘understood in light of the role that [the Court] had come to play in the Canadian constitutional structure by the time of patriation’ and ‘include, at the very least, the Court’s jurisdiction as the final general court of appeal for Canada, including in matters of constitutional interpretation, and its independence’.44 Although not mentioned, it is at least conceivable that the ‘essential features’ of the Supreme Court might include some level of supervisory jurisdiction over federal judicial and administrative bodies, as has been found to be the case in Australia.45 This could provide an alternative source of entrenchment to that discussed in the next sections. However, the argument would be more of a stretch in Canada than it is in Australia given that the Supreme Court of Canada has only ever had appellate jurisdiction in administrative law cases. It would also provide no obvious answer to the question of the scope and content of the Supreme Court’s entrenched jurisdiction—whether an authority over specific persons (perhaps federal officers), powers derived from certain sources (legislative and prerogative), or to issue particular remedies. B. Judicial Review Jurisdiction Over Constitutional Matters There is no explicit mention of judicial review or the remedies of administrative law in Canada’s written constitutional documents.46 Nor does the Canadian Constitution require the strict separation of judicial power.47 Yet the jurisdiction of superior courts to review administrative decisions involving constitutional interpretation has never been a major source of contention.48 From the early stages of federation 41 Rothstein J recused himself given that he was also appointed from the Federal Court, though not as a Québec judge. 42 Reference Re Supreme Court Act, above n 38, 472 [91]. 43 ibid 473 [94]. 44 ibid. 45 See ch 2 II. 46 Note I am not including the ‘quasi-constitutional’ documents noted above. 47 Hogg, Constitutional Law of Canada, above n 10, 7-37–7-38. 48 D Mullan, Administrative Law (Toronto, Irwin Law, 2001) 43–44; J Leclair, ‘Judicial Review in Canadian Constitutional Law: A Brief Overview’ (2004) 36 George Washington International Law Review 543, 544.

66 The Framework for Judicial Review of Administrative Action in Canada Canadian courts and the Privy Council have relied on similar arguments to those of Marshall CJ in Marbury v Madison49 to assume an equivalent jurisdiction over constitutional matters.50 The Supreme Court of Canada has held Canadian legislatures cannot remove this jurisdiction from superior courts, as the distribution of powers in the Constitution Act 1867 implicitly requires the courts to play a ‘policing’ role to ensure that governments and parliaments do not usurp their constitutional powers.51 The issue has most commonly arisen in the administrative law context when provincial labour relations boards are required to decide whether a particular matter falls within provincial or federal legislative authority.52 For example in Letter Carriers’ Union of Canada v Canadian Union of Postal Workers,53 the Labour Relations Board of Saskatchewan purported to certify a union representing truck drivers employed by a company contracted to the Canada Post Office. In doing so, the Board assumed that the truck drivers were subject to provincial legislation, and thus fell within the Board’s jurisdiction. Legislative authority over the postal service is within the exclusive jurisdiction of the federal Parliament under section 91(5) of the Constitution Act 1867. The Supreme Court held that because the principle activity of the contracted company was its work for the Canada Post Office, the drivers fell within the jurisdiction of federal labour relations legislation. Accordingly, the Saskatchewan Labour Relations Board was found to have erred in its interpretation of its jurisdiction under the Constitution. While the arguments used by Canadian courts to justify judicial review of constitutional matters mirror those used in Marbury v Madison, Tremblay points out that prior to 1982 Marbury v Madison was rarely cited in Canada. Tremblay also argues that the legal basis for the supremacy of Canadian courts over constitutional matters prior to 1982 differed in an important way from the justifications for the Marbury v Madison doctrine under US law.54 While superior courts in the US derive their authority to give effect to the US Constitution from the fact that the US Constitution is an expression of the will of the sovereign US people,55 prior to 1982 Canada’s Constitution was not an expression of the sovereignty of Canadian people, but an act of the Imperial Parliament. Accordingly, the jurisdiction of Canadian courts was based on a duty to ensure the legislature and executive did not act beyond the powers delegated to them by the British Parliament.56 In other words, the

49

Marbury v Madison 5 US (1 Cranch) 137 (1803). LB Tremblay, ‘Marbury v Madison and Canadian Constitutionalism: Rhetoric and Practice’ (2004) 36 George Washington International Law Review 515, 521–22, citing R v Chandler (1869) 12 NBR 556, 566–67 (Ritchie CJ); Langolis v Valin [1879] 5 QLR 1, 17 (Meredith CJ), affirmed by both the Canadian Supreme Court (3 SCR 1) and Privy Council (5 App Cas 115). 51 See, eg, Amax Potash Ltd v Saskatchewan [1977] 2 SCR 576. See also: P Hogg, ‘Is Judicial Review of Administrative Action Guaranteed by the British North America Act?’ (1976) LIV Canadian Bar Review 716, 720; N Finklestein, Laskin’s Canadian Constitutional Law, 5th edn (Toronto, Carswell, 1986) 68–69; BL Strayer, The Canadian Constitution and The Courts: The Function and Scope of Judicial Review, 2nd edn (Toronto, Butterworths, 1983) 81–86. 52 Hogg, ‘British North America Act’, above n 51, 720. 53 Letter Carriers’ Union of Canada v Canadian Union of Postal Workers [1975] 1 SCR 178. 54 Tremblay, above n 50, 522–26. 55 ibid 517. 56 ibid 522–26; Mullan, Administrative Law, above n 48, 42–43. 50

The Constitutional Status of Judicial Review 67 Canadian courts’ jurisdiction to perform judicial review on constitutional grounds was simply an expression of the sovereignty of the Imperial Parliament over Canadian parliaments. Upon the enactment of the Constitution Act 1982, the authority of the UK Parliament over Canada was terminated. In the first Charter case to reach the Supreme Court of Canada, Law Society of Upper Canada v Skapinker, the Court made it clear that one effect of the intra-national amendment procedures in the Constitution Act 1982 was to change the normative basis for the supremacy of the Canadian Constitution, stating that the fact that Canada’s constitutional documents had originated as acts of the British Parliament was now a ‘mere historical curiosity’.57 This necessitated a shift in the justification for the courts’ supervisory jurisdiction over constitutional matters, for which the Canadian Supreme Court began to rely directly on Marbury v Madison. In Skapinker58 the Court cited passages from the judgment of Marshall CJ emphasising the intent of the framers of the written constitution to limit legislative power and positing the judicial duty to interpret the law as deriving from the original intent that the written constitution be paramount. Notably absent in the Supreme Court of Canada’s discussion are references to passages from Marbury v Madison explicitly referring to the sovereignty of the American people as the reason for the supremacy of the US Constitution. This may reflect uncertainty in the early stages of Canada’s full independence about the precise legal foundations of the supremacy of its constitutional documents, similar to the questions raised in Australia in 1986 following the passing of the Australia Acts.59 Subsequent Canadian decisions appear to have adopted a sovereign people rationale for the supremacy of both the 1982 and 1867 Constitution Acts, although have not expressly linked the rationale to the Marbury v Madison decision. For example in a reference60 the year after Skapinker, a majority of the Supreme Court considering the legal basis for the supremacy of the Constitution, emphasised that the decision to entrench the Charter in the Constitution Act 1982 was taken by elected representatives of the people of Canada.61 In the later unanimous judgment in Reference re Secession of Québec62 the Court stated in relation to the Constitution Act 1867 that ‘Confederation was an initiative of elected representatives of the people then living in the colonies scattered across part of what is now Canada. It was not initiated by Imperial fiat’.63 Tremblay contends that these, along with similar assertions in other judgments, indicate that the Canadian Constitution, and the role of judicial review within it, now derives its ultimate legitimacy from the consent of the Canadian people, or at least their elected representatives.64 57

Law Society of Upper Canada v Skapinker [1984] 1 SCR 357, 365 [10] (Skapinker). ibid 367 [12], citing Marbury v Madison, above n 49, 175–77. 59 See the discussion in ch 2 I.B. 60 Due to the absence of a strict separation of powers in Canada’s Constitution, the Supreme Court is able to issue advisory opinions on the constitutional validity of Bills when requested by governments: Attorney General (Ontario) v Attorney General (Canada) [1912] AC 571. 61 Re BC Motor Vehicle Act [1985] 2 SCR 486, 497 [16] (Lamer J for Dickson CJ, Beetz, Chouinard and Le Dain JJ). 62 Secession Reference, above n 27. 63 ibid 241 [35]. 64 Tremblay, above n 50, 528–29. 58

68 The Framework for Judicial Review of Administrative Action in Canada C. Jurisdiction Over Non-Constitutional Administrative Errors Situations in which an administrative decision hinges on the interpretation of constitutional provisions constitute a relatively small portion of government decision‑making. Accordingly, most of the debate about the constitutional status of the Canadian courts’ jurisdiction to review administrative decisions has focused on the broader question of review for non-constitutional errors of law. The arguments involve a complex body of case law relying on the judicature clauses in Part VII of the Constitution Act 1867. Of particular importance is section 96, which provides that: ‘The Governor General shall appoint the Judges of the Superior, District and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick’. Although there was little discussion of the section in the conferences leading up to confederation,65 it is generally assumed that the provision was intended to ensure judicial independence by ‘insulating the judges from local pressures’.66 Early cases acknowledged that the section’s intention would be subverted if provinces were allowed to establish administrative bodies, appoint officers to them and transfer the powers of section 96 courts to those new bodies.67 Accordingly, if a province wishes to vest a tribunal with jurisdiction which ought to belong in a superior court, its officers must be appointed by the federal government, be drawn from the Bar, and receive fixed salaries in accordance with sections 96–100 of the Constitution Act 1867. The greatest challenge for the courts has been in determining precisely which powers can validly be exercised by administrative tribunals, and which are protected by section 96.68 Over time, the Supreme Court has developed a three-step test to determine whether the power conferred upon a tribunal by a province was of a kind affected by section 96.69 The leading cases on the issue are Re Residential Tenancies Act70 and Crevier v Attorney General of Québec.71 Re Residential Tenancies Act was a reference involving Ontario legislation that purported to give the Residential Tenancy Commission the authority to make orders evicting tenants and requiring compliance with obligations imposed by the legislation. In deciding whether or not those powers could be validly delegated to a nonsection 96 court by the Ontario legislature the Court introduced the current test which involves: 1. Analysis of whether the power conferred on the tribunal was one that was within the exclusive jurisdiction of section 96 courts in 1867.72

65 J Willis, ‘Administrative Law and the British North America Act’ (1939) 53 Harvard Law Review 251, 266. 66 Hogg, ‘British North America Act’, above n 51, 716. 67 Willis, ‘British North America Act’, above n 65, 265. See also Reference Re Authority to Perform Functions Vested by Adoption Act, the Children of Unmarried Parents Act, the Deserted Wives Act and Children’s Maintenance Act of Ontario [1938] SCR 398, 404–18. 68 See Re Residential Tenancies Act [1981] 1 SCR 714, 728–36. 69 See, generally, Hogg, Constitutional Law of Canada, above n 10, section 7.3. 70 Re Residential Tenancies Act, above n 68. 71 Crevier v Attorney General of Québec [1981] 2 SCR 220 (Crevier). 72 Re Residential Tenancies Act, above n 68, 734; Attorney General of Québec v Grondin [1983] 2 SCR 364.

The Constitutional Status of Judicial Review 69 2. If the power was exercised by section 96 courts, then consideration must be given to the function ‘within its institutional setting’ in order to determine whether the function is judicial when viewed in its wider context. Of particular relevance to this enquiry is the question of whether the tribunal is answering questions of policy or principle.73 3. If the power, when analysed in its institutional setting, is a judicial function, the court must then review the tribunal’s function as a whole within that institutional setting. If the impugned power is ‘merely ancillary or incidental to the general administrative functions’ of the tribunal, then the tribunal’s exercise of the power may not impinge section 96. Section 96 will only be impinged if the adjudicative function is the ‘sole or central function of the tribunal’.74 Following this analysis, the Court found that the Residential Tenancy Commissioner’s primary function under the legislation—of resolving disputes between parties and determining contractual obligations—was both historically and in essence a judicial function. Accordingly, the Court stated that it was not within the legislative competence of the Ontario legislature to confer the power on a non-section 96 court. Later the same year in Crevier, the Supreme Court struck down legislation that conferred on an administrative tribunal the exclusive, unreviewable power to review decisions of professional disciplinary committees, on the basis that it was an attempt to constitute the tribunal as a section 96 court.75 The case is widely cited as authority for the constitutional entrenchment of superior courts’ jurisdiction to conduct judicial review of administrative action where no constitutional issue is at stake.76 However, the decision of Laskin CJ did not actually go so far as to state that the jurisdiction of superior courts to review administrative action is constitutionally guaranteed.77 Instead, the judgment found that it is unconstitutional to immunise ‘provinciallyconstituted statutory tribunals … from review of decisions on questions of jurisdiction’.78 In other words, it was not the removal of jurisdiction from superior courts that was unconstitutional, but the granting to an administrative tribunal of the unreviewable (judicial) power to determine its own jurisdictional limits.79 As Hogg points out, this distinction, while of no practical importance in Crevier, is actually of great constitutional significance because section 96 (requiring the federal appointment of provincial court judges) does not apply to federal courts or tribunals.80 Accordingly, the principle in Crevier ought not to prevent the federal Parliament

73

Re Residential Tenancies Act, above n 68, 734–35. ibid 735–36. 75 Crevier, above n 71, 234. 76 See, eg, CM Flood and J Dolling, ‘An Introduction to Administrative Law: Some History and a Few Signposts for a Twisted Path’ in CM Flood and L Sossin (eds), Administrative Law in Context, 2nd edn (Toronto, Emond Montgomery, 2012) 1, 22; DP Jones and AS de Villars, Principles of Administrative Law, 5th edn (Toronto, Carswell, 2009) 49; A Macklin, ‘Standard of Review: Back to the Future?’ in CM Flood and L Sossin (eds), Administrative Law in Context, 2nd edn (Toronto, Emond Montgomery, 2012) 289. 77 Crevier, above n 71, 237. 78 ibid 236. 79 ibid 235–36, 238. 80 Hogg, Constitutional Law of Canada, above n 10, 7-55–7-56. 74

70 The Framework for Judicial Review of Administrative Action in Canada from insulating decisions by federally constituted administrative tribunals from judicial review.81 Yet, the majority of the Supreme Court in MacMillan Bloedel v Simpson cited Crevier as the basis for the principle that ‘powers which are the hallmarks of superior courts cannot be removed from those courts’.82 The case involved federal legislation which provided that the Youth Court of each province had exclusive jurisdiction over ‘every contempt of court committed by a young person’ except when the contempt was ‘in the face’ of another court. Lamer CJ, for the majority, analysed the power granted to Youth Courts using the three-step Re Residential Tenancies Act test. He concluded that while the power was within the jurisdiction of superior courts at federation, and was judicial in nature, the third branch of the test permitted conferral of the power on Youth Courts because it was ancillary to those courts’ other powers and the policy objectives of the scheme were ‘clear and laudable’.83 However, Lamer CJ then stated that the test in Re Residential Tenancies Act is inadequate for analysing transfers of jurisdiction when the inherent or ‘core’ powers of a superior court are engaged.84 The Chief Justice found that there was a guaranteed core of superior court jurisdiction that could not be removed by either the federal or provincial legislatures. The basis for this core jurisdiction was said to be the constitutional requirement, expressed in section 96, of uniformity in Canada’s judicial system: The superior courts have a core or inherent jurisdiction which is integral to their operations. The jurisdiction which forms this core cannot be removed from the superior courts by either level of government, without amending the Constitution. Without this core jurisdiction, section 96 could not be said either to ensure uniformity in the judicial system throughout the country or to protect the independence of the judiciary.85

It was in this context that Lamer CJ relied on Crevier as authority for the proposition that judicial review of jurisdictional errors by administrative decision-makers forms part of the core or inherent jurisdiction of Canada’s superior courts.86 He appeared to take a view that it was the legislature’s attempt to remove the Superior Court of Québec’s ‘core’ or ‘hallmark’ jurisdiction that offended the Constitution in Crevier rather than its conferral of power on the Professions Tribunal to determine its own jurisdiction. Coupled with the argument that section 96 was intended to ensure uniformity in Canada’s judicial system and protect the independence of the judiciary, this interpretation allows the Court to extend the protections that section 96 afforded to provincial courts to the Supreme Court of Canada. Canadian scholars have long debated the rationale for the judicature sections of the Constitution Act 1867. Some, including Willis87 and Hogg,88 view the sections as 81

See also Strayer, above n 51, 80–81. MacMillan Bloedel v Simpson [1995] 4 SCR 725, 752 [35] (Lamer CJ for La Forest, Sopinka, Gonthier and Cory JJ) (MacMillan Bloedel). 83 ibid 747 [26]. 84 ibid 747–48 [27]–[28]. 85 ibid 741 [15]. 86 ibid 751–52 [35]. 87 Willis, ‘British North America Act’, above n 65. 88 Hogg, ‘British North America Act’, above n 51. 82

The Constitutional Status of Judicial Review 71 maintaining Canada’s federal structure—meaning that section 96 only protects the administrative law jurisdiction of provincial courts, while the federal government cannot ‘impinge on its own powers of nomination’ and is thus free to enact privative clauses.89 Since at least the 1950s, others have interpreted the provisions under a separation of powers rationale, as preventing both federal and provincial legislatures from removing the jurisdiction of superior courts to review administrative decisions.90 Many see the decisions in Crevier and MacMillan Bloedel as evidence that the Supreme Court has adopted the latter view, accepting that the jurisdiction of superior courts to review administrative decisions for jurisdictional errors and errors of law on the face of the record is guaranteed by the Constitution.91 Statements to this effect have also been made in subsequent Supreme Court decisions,92 and in the extrajudicial writing of Supreme Court justices.93 However, Hogg’s more cautious view is that ‘The position should probably not yet be regarded as settled, since the point was obiter in MacMillan Bloedel, was agreed to only by a bare majority, and is inconsistent with other cases’.94 D. Alternative Sources of Constitutional Entrenchment There are at least two other emerging justifications for the constitutional entrenchment of the Supreme Court’s judicial review jurisdiction. The first and weaker, as noted above, is the constitutional status of the Supreme Court Act and the Court’s recent statement that the continued existence and ‘essential features’ of the Court are constitutionally entrenched.95 The other is found in the preamble to the Charter which states that ‘Canada is founded upon principles that recognize the supremacy of God and the rule of law’. ‘Constitutionalism and the rule of law’ has also been found to be one of four ‘organising principles’ that underpin the Canadian Constitution.96 Common law courts and commentators have long referred to the rule of law as a fundamental constitutional principle or value that judicial review of administrative action and the implication of limits on administrative power support—largely under Dicey’s influence and so following Dicey’s narrow version of the principle.97 Indeed, 89 N Lambert, ‘The Nature of Federal Court Jurisdiction: Statutory or Inherent?’ (2010) 23 Canadian Journal of Administrative Law and Practice 145, 151. 90 See, eg, WR Lederman, ‘The Independence of the Judiciary’ (1956) Canadian Bar Review 1139, 1172–73. 91 See, eg, Mullan, Administrative Law, above n 48, 43–45; Flood and Dolling, above n 76, 22; Macklin, ‘Standard of Review’, above n 76, 289; Jones and de Villars, above n 76, 49. 92 See, eg, UES, Local 298 v Bibeault [1988] 2 SCR 1048, 1090 [127]; Pasiechnyk v Saskatchewan (The Workers’ Compensation Board) [1997] 2 SCR 890, 920 [55] (L’Hereux-Dubé J); Trial Lawyers Association of British Columbia v British Columbia (Attorney General) [2014] 3 SCR 31 [33] (McLachlin CJ, LeBel, Abella, Moldaver and Karakatsanis JJ). 93 M Bastarache, ‘Modernizing Judicial Review’ (2009) 22 Canadian Journal of Administrative Law and Practice 227, 229. 94 Hogg, Constitutional Law of Canada, above n 10, 7-57. 95 Reference Re Supreme Court Act, above n 38, 472 [91] (McLachlin CJ, LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ). 96 Secession Reference, above n 27. 97 See, eg, L Jaffe and E Henderson, ‘Judicial Review and the Rule of Law: Historical Origins’ (1956) 72 Law Quarterly Review 345.

72 The Framework for Judicial Review of Administrative Action in Canada one of the most famous examples of this comes from Canada: Rand J’s judgment in Roncarelli v Duplessis,98 discussed in detail in chapter five. However, the notoriously nebulous principle was, until recently, seen as a norm and guiding principle as opposed to a firm constitutional basis for the legitimacy of judicial review, as it still is in Australia.99 The legal basis of judicial review was generally, until the 1980s and 1990s, traced to the ultra vires doctrine.100 Even Rand J in Roncarelli did not propose that the legal authority for the Court’s intervention was the rule of law, only the Diceyan notion that permitting public officials to act outside the limits of their statutory powers, and make decisions arbitrarily would ‘signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure’.101 However, over the past 15 years references to the rule of law as a source of limits on discretionary administrative power and as the underlying constitutional justification for judicial review have become increasingly common in Canada, as in the UK and New Zealand.102 In Canada, the resurgence is traceable to L’Heureux-Dubé J’s statement for the Court in Baker v Canada (Minister of Citizenship and Immigration) that: [T]hough discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.103

Since Baker, Canadian courts have increasingly referred to the rule of law as the source of limits on administrative discretion, and the Supreme Court has come close to identifying the principle as the constitutional source of judicial authority to review administrative acts on a number of occasions. The best example is from Dunsmuir v New Brunswick, in which Bastarache and LeBel JJ, for the majority, stated: As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to

98

Roncarelli v Duplessis [1959] SCR 121. See ch 2 II.C regarding the links between s 75(v) and the rule of law in Australia. 100 See H Woolf et al, De Smith’s Judicial Review, 7th edn (London, Sweet & Maxwell, 2013) 12–13. 101 Roncarelli v Duplessis, above n 98, 142 (Rand J for Judson J). See generally: MD Walters, ‘Legality as Reason’ (2010) 55 McGill Law Journal 563; M Liston, ‘Governments in Miniature: The Rule of Law in the Administrative State’ in CM Flood and L Sossin (eds), Administrative Law in Context, 2nd edn (Toronto, Emond Montgomery, 2012). 102 See, eg, Dr Q v College of Physicians and Surgeons of British Columbia [2003] 1 SCR 226, 235–56 [21], 238 [26]; Montreal (City) v Montreal Port Authority [2010] 1 SCR 427, 445 [33]; Canada (Attorney General) v TeleZone Inc [2010] 3 SCR 585, 602 [24]; Smith v Alliance Pipeline Ltd [2011] 1 SCR 160, 187 [78] (Deschamps J); Catalyst Paper Corp v North Cowichan (District) [2012] 1 SCR 5, 10 [11], 11 [12], 13 [15]. For discussions and examples in the UK see, eg: PP Craig, ‘The Common Law, Shared Power and Judicial Review’ (2004) 24 Oxford Journal of Legal Studies 237; TH Bingham, ‘The Rule of Law’ (2007) 66 Cambridge Law Journal 67; TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford, Oxford University Press, 2001). For New Zealand see PA Joseph, ‘The Demise of Ultra Vires—Judicial Review in the New Zealand Courts’ [2001] Public Law 354. 103 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817, 855 [56] (L’HeureuxDubé, Gonthier, McLachlin, Bastarche and Binnie JJ) (Baker) (emphasis added). 99

The Constitutional Status of Judicial Review 73 address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures.104

More recently, in Catalyst Paper Corp v North Cowichan (District), the Court stated: It is a fundamental principle of the rule of law that state power must be exercised in accordance with the law. The corollary of this constitutionally protected principle is that superior courts may be called upon to review whether particular exercises of state power fall outside the law. We call this function ‘judicial review’.105

Similarly in Régie des rentes du Québec v Canada Bread Company Ltd the dissenting judgment of McLachlin CJ and Fish J noted: In accordance with the rule of law principle, all administrative decision-makers are subject to judicial review by courts of inherent jurisdiction … An administrative decision-maker does not have the power to second-guess the final judgment of a court of inherent jurisdiction regarding the legality of its decisions. This would in effect undermine the process of judicial review, and threaten the rule of law.106

David Mullan has pointed out that replacing sections 96–100 of the Constitution Act 1867 with the ‘rule of law’ as the source of the constitutional guarantee of judicial review has far-reaching implications for the scope of constitutional protection.107 Though the concept of jurisdictional error is notoriously malleable and has eluded judicial definition, it is at least more concrete and a more principled method of defining the scope of review than the vague and much disputed notion of the rule of law. Thus, as Mullan has argued, the rule of law is not a sufficient alternative to jurisdictional error, as it provides even less firm guidance as to what the constitutional guarantee of review actually protects.108 In addition, the Supreme Court recently rejected an argument that the preamble’s reference to the ‘supremacy of God’—which immediately precedes its reference to the rule of law—has any substantive legal effect.109 It would be difficult to explain different constitutional treatment of the two phrases. A further, related problem is the fact that the Supreme Court found in British Columbia v Imperial Tobacco Canada Ltd that despite being an ‘organising

104 Dunsmuir v New Brunswick [2008] 1 SCR 190, 211 [27] (Bastarache and LeBel JJ, McLachlin CJ, Fish and Abella JJ) (Dunsmuir). 105 Catalyst Paper Corp, above n 102, 10 [10]. 106 Régie des rentes du Québec v Canada Bread Company Ltd [2013] 3 SCR 125, 147 [50]. 107 See D Mullan, ‘The Year in Review—Recent Developments in Administrative Law’ (Continuing Legal Education Society of British Columbia Administrative Law conference, Vancouver, 26 October 2012) 9. 108 ibid. 109 Mouvement laïque québécois v Saguenay (City) [2015] 2 SCR 3, 66–68 [145]–[149] (Gascon J, McLachlin CJ, LeBel, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ).

74 The Framework for Judicial Review of Administrative Action in Canada principle’ of the Canadian Constitution, the rule of law may not be capable of being used to strike down legislation based on its content.110 The Court went on to note that the fact that the rule of law could not be used to invalidate legislation does not mean it has no normative effect, but that it will only act as a substantive limitation on executive, and not legislative, action.111 This would mean that, unlike the Crevier rationale, the rule of law may not be capable of protecting the supervisory jurisdiction of courts against a well-drafted privative clause. However, it would not necessarily preclude the rule of law from being used to read down privative clauses and being applied in a similar way to the interpretive principles applied by the High Court of Australia in Plaintiff S157/2002 v Commonwealth.112 Nevertheless, it would seem to leave the supervisory jurisdiction of Canadian courts on shaky ground and subject to legislative override by artfully crafted legislation. It is important to note that the Supreme Court’s conclusion in British Columbia v Imperial Tobacco Canada Ltd that the rule of law could not strike down legislation, was based on the broad interpretation of the doctrine in earlier decisions.113 The doctrine was understood as encompassing three broad principles: the supremacy of the law over government and individuals;114 the creation and maintenance of positive laws which embody the more general principle of normative order;115 and that the relationship between the state and the individual be governed by law.116 The Court said that because these principles do not ‘speak directly to the terms of legislation’,117 they are not capable of striking down legislation, but left open the possibility that the rule of law might encompass additional, more directory principles capable of striking down legislation.118 These views find support in British Columbia (Attorney General) v Christie.119 In that case, the Court was asked to find that the rule of law included a right to legal services, and refused to do so.120 However, the Court reiterated the possibility that the rule of law might be found to include additional principles, and that these might be capable of striking down legislation.121 Support for the possibility that the full content and scope of the rule of law is not yet settled, and that it may include additional, directory principles is found in the plurality judgment in the more recent decision of Trial Lawyers Association of British Columbia v British Columbia (Attorney General).122 In that case the majority struck down parts of British Columbia’s Supreme Court Civil Rules123 imposing

110

British Columbia v Imperial Tobacco Canada Ltd [2005] 2 SCR 473, 497 [59]. ibid 498 [60]. 112 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. See ch 2 II.B.iii. 113 British Columbia v Imperial Tobacco, above n 110, 497 [59]. 114 Reference Re Manitoba Language Rights [1985] 1 SCR 721, 748. 115 ibid 749. 116 Secession Reference, above n 27, 257–58 [71]. 117 British Columbia v Imperial Tobacco, above n 110, 497 [59]. 118 ibid 498 [61]. 119 British Columbia (Attorney General) v Christie [2007] 1 SCR 873. 120 ibid 884 [24]. 121 ibid 883 [21]. 122 Trial Lawyers Association of British Columbia, above n 92. 123 BC Reg 168/2009. 111

Privative Clauses and the Standard of Review 75 hearing fees subject to limited exceptions where a litigant was ‘impoverished’. The majority of the Court found that the extreme narrowness of the exceptions had the practical effect of denying people access to courts, thereby infringing on the entrenched jurisdiction of section 96 courts.124 They added that this conclusion ‘is further supported by considerations relating to the rule of law’, and noted the connection between section 96 and the rule of law.125 In dissent, however, Rothstein J criticised this aspect of the majority’s reasoning, stating that they had based their decision on ‘an overly broad reading of section 96, with support from the unwritten constitutional principle of the rule of law, because there is no express constitutional right to access the civil courts without hearing fees’.126 He reiterated previous statements of the Court cautioning against using the rule of law to strike down legislation, and declared ‘[d]ressing the rule of law in division-of-powers clothing does not disguise the fact that the rule of law, an unwritten principle, cannot be used to support striking down the hearing fee scheme’.127 The Supreme Court seems to be inching closer towards a rule of law-based justification for the constitutional entrenchment of the supervisory role of superior courts. To date, however, the Court’s statements regarding the rule of law in the context of judicial review of administrative action still retain a second-hand link to the Crevier justification for the constitutional entrenchment of review, via their reference to Dunsmuir. Yet, the Court’s rhetoric suggests that the rule of law may itself become the constitutional foundation for the legitimacy of superior courts’ supervisory jurisdiction over administrative actors. The effect of this on the scope of administrative discretion is considered further in chapter five. III. PRIVATIVE CLAUSES AND THE STANDARD OF REVIEW

As is evident from the above discussion, the constitutional entrenchment of judicial review of administrative action in Canada is entwined with the courts’ approach to interpreting privative clauses, as is also the case in Australia and the UK. Without any mention of judicial review, or a strict separation of powers in Canada’s Constitution, there is no clear method of resolving the conflict that privative clauses create between parliamentary sovereignty and the rule of law to be found in written constitutional documents. Thus, prior to the developments in the late 1970s and early 1980s discussed above, many influential public law scholars argued that judicial review of administrative action in Canada (other than for constitutional matters) was in a similar constitutional position as it was in the UK, ‘rest[ing] on [no] higher ground than that of being implicit in statutory interpretation’.128 However, the 124 Trial Lawyers Association of British Columbia, above n 92, 61 [64] (McLachlin CJ, LeBel, Abella, Moldaver and Karakatsanis JJ). 125 ibid 51 [38]. 126 ibid 66 [81]. 127 ibid 73 [98]. 128 B Laskin, ‘Certiorari to Labour Boards: The Apparent Futility of Privative Clauses’ (1952) 30 Canadian Bar Review 986, 990. See also Willis, ‘British North America Act’, above n 65, 274–75; Hogg, ‘British North America Act’, above n 51, 718–21. Note that this view assumes that the legitimacy of

76 The Framework for Judicial Review of Administrative Action in Canada issue was fiercely disputed, with a series of papers published during the 1950s and 1960s debating over whether privative clauses were ‘futile’ or ‘virile’.129 A number of scholars argued that the judicature sections of the Constitution Act 1867 should be construed as implying a separation of judicial power, which guarantees a core of superior court jurisdiction.130 A. The Early Approach: Preliminary or Collateral Questions Until the late 1970s Canadian courts followed the English approach to privative clauses, which used a process of statutory interpretation ‘heavy on constitutional presumption [in favour of the courts’ retaining jurisdiction] and light on legislative intention’.131 The distinction between errors going to a decision-maker’s jurisdiction, and legal errors within jurisdiction, was central to the courts’ approach. In essence, like UK courts, Canadian courts assumed that errors going to a decision-maker’s jurisdiction were not intended to be protected by a privative clause. The ‘preliminary or collateral questions’ doctrine was a key method through which Canadian courts determined whether a matter went to a tribunal’s jurisdiction.132 However, the Supreme Court’s early approach to privative clauses was not uniform or unanimous. Judges and academics argued that the approach required the Supreme Court to give effect to sufficiently clear privative clauses.133 Yet a review of Supreme Court administrative law decisions from 1949 to 1971 by Peter Hogg demonstrated that the most common treatment of privative clauses in Canada within that period was to ignore them and simply proceed with review of the decision.134 The decision of Lord Reid in Anisminic Ltd v Foreign Compensation Commission,135 pushed the concept of jurisdictional error to its ‘breaking point’.136 Mark Walters argues this was the trigger for the eventual divergence between the approaches to privative clauses in the UK and Canada.137 The UK’s expanded concept

judicial review in the UK rested on parliamentary authority, which was later contested: D Oliver, ‘Is the Ultra Vires Rule the Basis of Judicial Review?’ [1987] Public Law 543. 129 Laskin, above n 128, 990; R Carter, ‘The Apparent Virility of Privative Clauses’ (1967) University of British Columbia Law Review 219; K Norman, ‘Privative Clauses: Virile or Futile?’ (1969) 34 Saskatchewan Law Review 334. 130 Lederman, ‘The Independence of the Judiciary’ above n 90, 1172–77; JN Lyon, ‘Comment’ (1971) 49 Canadian Bar Review 365. 131 MD Walters, ‘Jurisdiction, Functionalism, and Constitutionalism in Canadian Administrative Law’ in C Forsyth et al (eds) Effective Judicial Review: A Cornerstone of Good Governance (Oxford, Oxford University Press, 2010) 302. 132 See, eg, Parkhill Bedding and Furniture Ltd v International Molders Etc Union (1961) 26 DLR (2d) 589. 133 See, eg, Toronto Newspaper Guild v Globe Printing [1953] 2 SCR 18, 28 (Rand J, dissenting); Laskin, above n 128. 134 P Hogg, ‘The Supreme Court of Canada and Administrative Law, 1949–1971’ (1973) 11 Osgoode Hall Law Journal 187, 196–204. 135 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (Anisminic). 136 W Wade and C Forsyth, Administrative Law, 10th edn (Oxford, Oxford University Press, 2009) 222. 137 Walters, ‘Jurisdiction’, above n 131, 302.

Privative Clauses and the Standard of Review 77 of jurisdictional error was initially accepted by the Supreme Court of Canada in Metropolitan Life Insurance Co Ltd v International Union of Operating Engineers.138 The case involved a decision by the Ontario Labour Relations Board to certify the Union as a bargaining representative under provincial industrial relations law. The Board had devised its own membership criteria to determine that the Union represented at least 55 per cent of employees, rather than the membership rules in the Union’s own constitution. Decisions of the Board were protected by privative clause. The Supreme Court held that while the issue of union membership clearly fell within the scope of the Board’s authority under statute, ‘the Board has failed to deal with the question remitted to it (ie, whether the employees in question were members of the Union at the relevant date)’.139 The Court found that the Board had therefore ‘stepped outside its jurisdiction’ in the broad sense proposed in Anisminic so that the decision was not protected by the privative clause.140 From there it seemed that the Canadian Supreme Court was prepared to follow the House of Lords in at least abolishing any distinction between jurisdictional and non-jurisdictional errors, if not eventually dispensing with the concept of jurisdictional error entirely. B. Canada’s Break from the UK: New Brunswick Liquor However, nine years later the Canadian approach to privative clauses took a new direction. In Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corporation141 Dickson J, for the Court, dispensed with the preliminary or collateral questions doctrine and introduced a new method of interpreting privative clauses that was considerably more deferential to the decisions of expert tribunals on questions of law. The case again involved the interpretation of industrial relations legislation, specifically the question of whether, by employing management personnel to do the work of striking employees, the New Brunswick Liquor Corporation had contravened a provision stating that ‘the employer shall not replace the striking employees or fill their position with any other employee’.142 The Public Service Labour Relations Board of New Brunswick decided that the intent of the provision (which they saw as preventing picket line violence and strikebreaking) would be frustrated by an interpretation which allowed management personnel, or anyone else, to fill the jobs of striking employees.143 Decisions of the Board were protected by a privative clause. The New Brunswick Court of Appeal held that the question of whether the legislation prohibited replacing striking employees with management personnel was preliminary or collateral to the main question that the Board was established to decide, so that the privative clause did not apply. 138

Metropolitan Life Insurance Co Ltd v International Union of Operating Engineers [1970] SCR

139

ibid 435.

425.

140 ibid.

141 Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corporation [1979] 2 SCR 227 (New Brunswick Liquor). 142 ibid 229–30. 143 ibid 231–32.

78 The Framework for Judicial Review of Administrative Action in Canada However, Dickson J said that most questions in a decision-making process could be characterised as either preliminary or collateral, making the doctrine unhelpful in determining whether an error was within jurisdiction or not.144 He went on to discuss the reasons for the legislature wanting to protect decisions of the Board, including on matters of law, and emphasised the expertise and ‘accumulated experience’ of the Board in industrial relations matters.145 While Dickson J did not actually use the term ‘deference’, his analysis was clearly influenced by the deferential approach to administrative interpretations of law that had been taken in the US, which attempted to balance judicial control with the experience of expert administrators.146 Analysing the impugned decision through this lens, Dickson J considered that the interpretation of the provision in question ‘would seem to lie logically at the head of the specialised jurisdiction confided to the Board’.147 His view was that the legislature therefore intended that the privative clause should protect the impugned decision and that the Board should have a greater degree of latitude in making decisions on matters ‘plainly confided to it’.148 Thus, the Board was not required to be ‘correct’ in its interpretation of the provision, where multiple lawful interpretations were possible.149 Yet, Dickson J did not consider that the privative clause should totally insulate decisions of the expert Board. He accepted the basic premise in Anisminic that even acting within its jurisdiction in the traditional sense, a tribunal can commit errors that take it beyond the scope of its authority.150 However, he thought that decisions on matters of law within jurisdiction and protected by a privative clause ought to only be reviewed by the courts on the basis that they were ‘so patently unreasonable … [that they] cannot be rationally supported by the relevant legislation’.151 The interpretation of Dickson J’s judgment in New Brunswick Liquor produced a new, unique Canadian approach to privative clauses that retained the centrality of jurisdictional error. Two separate standards of judicial review would apply: ‘correctness’ for jurisdictional errors in the narrow and traditional sense; and the more deferential ‘patent unreasonableness’ standard for errors made within jurisdiction. The decision also raised many questions, particularly that of when each of the standards of review would apply. In subsequent cases the Supreme Court attempted to address these questions by developing a test to determine the degree of deference to which an administrative decision-maker was entitled.152 In UES, Local 298 v Bibeault153 Beetz J, writing for the Court, introduced the ‘pragmatic or functional’ analysis as a method of determining which standard of review ought to apply to a decision. The ‘pragmatic or functional’ analysis required the Court to consider the wording 144

ibid 233. ibid 235–36. 146 Walters, ‘Jurisdiction’, above n 131, 304. 147 New Brunswick Liquor, above n 141, 236. 148 ibid 237. 149 ibid 236–37. 150 Walters, ‘Jurisdiction’, above n 131, 304. 151 New Brunswick Liquor, above n 141, 237. 152 L Sossin and CM Flood, ‘The Contextual Turn: Iacobucci’s Legacy and the Standard of Review in Administrative Law’ (2007) 57 University of Toronto Law Journal 581, 585–86. 153 UES, Local 298 v Bibeault, above n 92,1088 [122]. 145

Privative Clauses and the Standard of Review 79 and purposes of the statute conferring jurisdiction on the tribunal or administrative decision-maker,154 their expertise and the nature of the problem in order to determine which standard of review the legislature sought to impose.155 The pragmatic and functional test eventually developed into a four-step test, which required consideration of: 1. The presence of a privative clause. Although the Court has said that factor alone is not determinative as, even where there is no privative clause, the legislature may evince an intention to impose a lower standard of review when the legislation is construed as a whole, and vice versa.156 2. The relative expertise and specialised knowledge of the decision-maker/tribunal members. Iacobucci J has described this as the most important factor in determining the appropriate standard of review.157 3. The purpose of the Act as a whole, and the provision in particular.158 For example, where an expert decision-maker is required to balance competing and complex interests as opposed to establish rights or entitlements, it may be inappropriate to subject their decisions to a high standard of review.159 4. The ‘nature of the problem’—whether it is more a question of law or fact.160 Decisions involving the interpretation of general legal principles are thought to be more suited to review by a court than those involving the application of law and policy to a specific set of factual circumstances.161 At first the pragmatic and functional analysis was only applied to administrative determinations of law and not to aspects of the decision-making process which were purely discretionary and did not involve the interpretation of law.162 However, the Supreme Court in Baker found that it was ‘inaccurate to speak of a rigid dichotomy of “discretionary” or “non-discretionary” decisions’ and that the pragmatic and functional approach to determining the appropriate standard of review should apply to all administrative decisions regardless of whether or not they involved the interpretation of law.163 154 In Baker, above n 103, the Court made it clear that the pragmatic or functional analysis applied not only to expert tribunals and boards but also to government decision-makers. 155 UES, Local 298 v Bibeault, above n 92, 1088 [122]. 156 Pushpanathan v Canada (Minister for Citizenship and Immigration) [1998] 1 SCR 982, 1006 [30]–[31] (Bastarache, L’Heureux-Dubé, Gonthier and McLachlin JJ). 157 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748, 773 [50] (Southam). See also: Pushpanathan v Canada, above n 156, 1006–08 [32]–[35] (Bastarache, L’HeureuxDubé, Gonthier and McLachlin JJ); United Brotherhood of Carpenters and Joiners of America, Local 579 v Bradco Construction Ltd [1993] 2 SCR 316, 335 (Sopinka, L’Heureux-Dubé, Gonthier and McLachlin JJ). 158 Pushpanathan v Canada, above n 156, 1008–09 [36]. 159 National Corn Growers Association v Canada (Import Tribunal) [1990] 2 SCR 1324, 1336 (Wilson J, Dickson CJ and Lamer CJ). 160 Pushpanathan v Canada, above n 156, 1010–11 [37]. 161 Southam, above n 157, 773 [37]. 162 See, eg, Shell Canada Products Ltd v Vancouver (City) [1994] 1 SCR 231. 163 Baker, above n 103, 854–55 [54]–[55] (L’Heureux-Dubé, Gonthier, McLachlin, Bastarche and Binnie JJ). See further: G Cartier, ‘The Baker Effect: A New Interface Between the Canadian Charter of Rights and Freedoms and Administrative Law—The Case of Discretion’ in D Dyzenhaus, The Unity of Public Law (Oxford, Hart Publishing, 2004); D Dyzenhaus and E Fox-Decent, ‘Rethinking the Process/ Substance Distinction: Baker v Canada’ (2001) 51 University of Toronto Law Journal 193.

80 The Framework for Judicial Review of Administrative Action in Canada In 1997 the Supreme Court added a third standard of review that fell between patent unreasonableness and correctness—called ‘reasonableness simpliciter’.164 This third standard was described by Iacobucci J as involving a ‘somewhat probing inquiry’ into whether a decision is supported by evidence and logical reasons.165 It was first applied in Southam, which involved a decision by the Competition Tribunal— a specialist administrative tribunal. The decision involved complex economic considerations, and problems of mixed law and fact, both of which pointed towards a deferential standard of review being applied to the expert tribunal’s decision. Yet, a statutory right of review was included in the legislative scheme. The Court thought that the tension between these factors warranted the development of the intermediate standard of review. However, the introduction of the third standard of review proved confusing, as lower courts, as well as the Supreme Court itself, struggled to delineate between the standards of patent unreasonableness and reasonableness simpliciter.166 LeBel J also raised the more serious concern that the additional standard detracted from the original, deferential purposes of the pragmatic and functional test.167 This resulted in pressure to adopt a fourth standard of review, revert to two standards, recognise that the standard of review might be a sliding scale, or dispense with the standards entirely.168 Furthermore, as the Court focused on the details of the pragmatic or functional analysis, and the appropriate number of standards of review that such analysis should illicit, ‘jurisdiction seemed increasingly an afterthought’.169 The pragmatic and functional analysis was originally introduced as a means of determining whether the legislature intended for a matter to be within a tribunal’s jurisdiction, which in turn indicated the standard of review that the Court should apply. Yet, Walters argues that as the jurisprudence developed, the courts seemed to forget that jurisdiction was designed to be a ‘passive legal outcome’ of the reasoning process.170 For instance, Walters has identified a number of judgments that rely on jurisdiction as a component of the standard of review analysis,171 resulting in a circular reasoning process.

164

Southam, above n 157. ibid 775–77 [54]–[56]. 166 See G Huscroft, ‘Judicial Review from CUPE to CUPE’ in G Huscroft and M Taggart (eds), Inside and Outside Canadian Administrative Law: Essays in Honour of David Mullan (Toronto, University of Toronto Press, 2006) 297–99. 167 Toronto (City) v CUPE, Local 79 [2003] 3 SCR 77, 131–32 [99] (LeBel and Deschamps JJ). 168 S Wildeman, ‘A Fine Romance? The Modern Standards of Review in Theory and Practice’ in C Flood and L Sossin (eds), Administrative Law in Context, 1st edn (Toronto, Emond Montgomery, 2008) 265–67; Sossin and Flood, ‘The Contextual Turn’, above n 152, 598–606; Northwood Inc v British Columbia (Forest Practices Board) (2001) 86 BCLR (3d) 215 [38]–[42]; Toronto (City) v CUPE, above n 167, 148 [134] (LeBel J); W Lahey and D Ginn, ‘After the Revolution: Being Pragmatic and Functional in Canada’s Trial Courts and Courts of Appeal’ (2002) 25 Dalhousie Law Journal 259, 327–28. 169 Walters, ‘Jurisdiction’, above n 131, 306. 170 ibid 307–08. 171 See, eg, Chieu v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 84, 100–01 [24]; Barrie Public Utilities v Canadian Cable Television Association [2003] 1 SCR 476, 492 [17] (Gonthier J, McLachlin CJ, Major, Arbour, LeBel and Deschamps JJ); Alberta Union of Provincial Employees v Lethbridge Community College [2004] 1 SCR 727, 741–42 [18], cited in Walters, ‘Jurisdiction’, above n 131, 307. 165

Privative Clauses and the Standard of Review 81 C. A Simpler Approach? Dunsmuir The Supreme Court had intended in New Brunswick Liquor to move away from the ‘highly formalistic, artificial “jurisdiction” test that could easily be manipulated’, and replace it with a more flexible, contextual test.172 Yet, 20 years on, the new test had arguably become just as confusing and circular in its reasoning, and as easy to manipulate as the formalism it sought to avoid. These issues were ultimately resolved to some extent in the decision in Dunsmuir, in which the Supreme Court reverted to two standards of review. The case involved a civil servant, David Dunsmuir, whose position was expressed under the relevant legislation to be held ‘at pleasure’. Dunsmuir’s probationary period was extended twice and he received three reprimands. Eventually he was dismissed. Dunsmuir commenced the grievance process under the legislation, arguing that he was not afforded procedural fairness in the dismissal process. A labour arbitrator was appointed and concluded that procedural fairness was owed to Dunsmuir but had not been provided, and ordered that he be reappointed. The first instance judge quashed the adjudicator’s decision, applying the correctness standard to questions going to the adjudicator’s jurisdiction, and the reasonableness simpliciter standard to substantive aspects of the adjudicator’s decision. The Court of Appeal found that the appropriate standard was reasonableness simpliciter, but also found the adjudicator’s decision unreasonable, dismissing the appeal. The Supreme Court used the confusion over standards of review in the lower courts, and their finding that decision-makers may be subject to multiple standards in the course of making a single decision, to reform the law in this area. In three separate judgments, the entire Supreme Court agreed that the pragmatic or functional test and standards of review had become ‘difficult to implement’,173 ‘unproductive’174 or ‘superfluous’.175 Bastarache and LeBel JJ, for the majority, found that while theoretically sound, the distinction between reasonableness simpliciter and patent unreasonableness was the key reason for the difficulties in analysing and applying the standards of review. They concluded that the number of standards ought to be reduced to two.176 However, they explicitly wanted to avoid a ‘return to pre-Southam formalism’, and made it clear that they sought to re-emphasise the importance of deference in underpinning the Canadian approach.177 Accordingly, the new ‘reasonableness’ standard is, in essence, intended to give effect to the concept of deference, and respect ‘legislative choices to leave some matters in the hands of administrative decision-makers’ while maintaining the ‘different roles of the courts and administrative bodies within the Canadian constitutional system’.178

172

Dunsmuir, above n 104, 219 [43] (Bastarche and LeBel JJ, McLachlin CJ, Fish and Abella JJ). ibid 213 [32]. 174 ibid 257 [140] (Binnie J). 175 ibid 264 [158] (Deschamps, Charron and Rothstein JJ). 176 ibid 219–20 [44]. 177 ibid 221 [48]. 178 ibid 221–22 [49]. 173

82 The Framework for Judicial Review of Administrative Action in Canada The majority also made some amendments to the application of the pragmatic and functional test, which they renamed the ‘standard of review analysis’. They held that the analysis need not be applied in full where it is obvious what the appropriate standard of review is, giving the example of decisions involving constitutional questions. They reasoned that the constitutional role of superior courts means that where an impugned decision involves constitutional questions or issues, the standard of review will always be correctness.179 The majority also commented that ‘true questions of jurisdiction or vires’ would not require application of the test—although asserted that this was not intended to signal a return to the pre-New Brunswick Liquor situation, but instead to jurisdiction in the narrow sense.180 Binnie J’s concurring judgment agreed with this general approach and emphasised that the simplification of the standards of review would need to apply to government decision-makers as well as to tribunals.181 He also indicated that the new single reasonableness standard would be required to vary according to circumstances.182 The judgment of Deschamps J, with whom Charron and Rothstein JJ concurred, agreed that there was a need to simplify the standards of review, but went further than the majority, suggesting that the primary focus of the courts should be on the nature of the enquiry—with deference attaching to questions of fact, less deference to questions of mixed law and fact and no deference to legal questions.183 The decision attracted a mixed reaction from commentators. Some argued that the decision risked returning the Court to its old ‘formalist dead end’ by returning to narrow jurisdictional error as a focal point, which the Court was originally seeking to avoid.184 Bastarache J disputed this, referring to the majority’s explicit statement that it did not intend to return to a pre-New Brunswick Liquor ‘predicament’.185 He insisted that the jurisdictional question will only arise in ‘true vires questions’, which include those of pure law such as statutory interpretation. Others agreed with the Court that the pragmatic and functional approach had become too formalist, but expressed doubt as to whether Dunsmuir’s solution would lead to any less confusion.186 As will be detailed in chapter five, the case law following Dunsmuir suggests that the decision has not resurrected the formalist concept of jurisdictional error. Indeed, in the past eight years, the Supreme Court has failed to identify a single ‘true question of jurisdiction or vires’. Instead the decision seems to have cemented the role of deference in Canadian law, with reasonableness becoming the default standard.

179

ibid 225 [58]. ibid 225 [59]. ibid 254–55 [134]. 182 ibid 261 [150]. 183 ibid 256 [160]–[161]. 184 Walters, ‘Jurisdiction’, above n 131, 308; D Mullan, ‘Dunsmuir v New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let’s Try Again!’ (2008) 21 Canadian Journal of Administrative Law and Practice 117, 130; H Janisch, ‘Something Old, Something New’ (2010) 23 Canadian Journal of Administrative Law and Practice 219, 223–24; P Daly, ‘The Unfortunate Triumph of Form Over Substance in Canadian Administrative Law’ (2012) 50 Osgoode Hall Law Journal 317. 185 Bastarache, above n 93, 233. 186 See, eg, Mullan, ‘Dunsmuir v New Brunswick’, above n 184, 135–36; Bastarache, above n 93, 234. 180 181

Statutory Judicial Review Frameworks 83 However, the early warnings that Dunsmuir might solve some standard of review issues but would likely create a new set of problems for courts, have also eventuated. One result of the deferential standard becoming the default position is that it has necessarily flexed and adapted to suit the wide array of contexts in which it is now applied. This has resulted in suggestions that reasonableness has become a confusing and unprincipled standard, subject to the same judicial manipulation as the formalist jurisdictional error approach.187 As Abella J commented recently, in Wilson v Atomic Energy of Canada Ltd: [C]ollapsing three into two has not proven to be the runway to simplicity the Court had hoped it would be. In fact, the terminological battles over which of the three standards of review should apply have been replaced by those over the application of the remaining two. And so we still find the merits waiting in the wings for their chance to be seen and reviewed.188

These and other emerging issues impacting on the scope of discretion and intensity of review in Canada are considered in detail in chapters five and six. IV. STATUTORY JUDICIAL REVIEW FRAMEWORKS

Every Canadian jurisdiction, with the exception of Manitoba,189 has now introduced statutory amendments to the system of prerogative writs. Most have taken a minimalist approach and amended civil procedure or court rules to provide for a single procedure for applying for review of administrative decisions.190 Ontario, British Columbia and Prince Edward Island have adopted separate judicial review statutes, each of which is examined briefly below. While there is no separate Act at the federal level in Canada, the provisions of the Federal Courts Act191 conferring jurisdiction on the Federal Court to review federal administrative decisions codify aspects of judicial review, so warrant discussion. A. The Federal Courts Act (FCA) Canada has not enacted a general judicial review statute at the federal level. However, sections of its FCA which confer jurisdiction on the federal courts to review administrative decisions are relatively extensive and contain some similar features to judicial review legislation in other jurisdictions. The FCA establishes and confers

187 See, eg, D Mullan, ‘Unresolved Issues on Standard of Review in Canadian Judicial Review of Administrative Action—The Top Fifteen!’ (2013) 42 The Advocactes’ Quarterly 1, 74–81. 188 Wilson v Atomic Energy of Canada Ltd 2016 SCC 29. 189 Court of Queen’s Bench Rules, Man Reg 553/1988, r 68. 190 Saskatchewan Queen’s Bench Rules, r 664(1); Judicature Act, RSNB 1973, c J-2, s 36; Rules of Court for the Supreme Court of Yukon, r 54; Rules of the Supreme Court of the Northwest Territories, pt 44 (also applies in Nunavut: Nunavut Act, SC 1993, c 28); Newfoundland Rules of the Supreme Court, r 5; Alberta Rules of Court, Alta Reg 124/2010, pt 3, div 2, sub-div 2; Nova Scotia Civil Procedure Rules, r 7. 191 Federal Courts Act, RSC 1985, c F-7 (formerly Federal Court Act, SC 1970, c 1).

84 The Framework for Judicial Review of Administrative Action in Canada jurisdiction on the Federal Court of Canada. Sections 18 and 28 of the FCA confer original jurisdiction to review the decisions of various federal tribunals on the Federal Court and Federal Court of Appeal respectively. Unlike the judicial review legislation in Australia and in the Canadian provinces, the primary purpose of the judicial review provisions of the FCA was not to simplify judicial review. The Canadian Parliament’s main objective in enacting the provisions in 1970 was to deal with difficulties that had arisen with existing arrangements for review of decisions made under federal legislation.192 Prior to the enactment of the FCA, provincial superior courts reviewed most decisions of federal administrative agencies.193 However, problems began to emerge with this arrangement. Multiple provinces could have jurisdiction over the same matter. In some instances provincial courts reached different conclusions in virtually identical actions,194 and in others two courts assumed jurisdiction to review the same decision.195 Ontario’s plans to codify judicial review threatened to intensify these problems.196 The FCA attempted to overcome these difficulties by conferring exclusive, original jurisdiction on the new Federal Court to review administrative decisions made by the federal government. When the Act was being debated, questions were raised about the constitutionality of its purported removal of provincial superior courts’ review jurisdiction, and hence the exclusivity of the Federal Court’s jurisdiction.197 The Supreme Court of Canada held that section 101 of the Constitution Act 1867— which provides that the federal Parliament may establish ‘any additional Courts for the better Administration of the Laws of Canada’—permits the Canadian Parliament to transfer review jurisdiction over federal government decision-makers from provincial superior courts to the Federal Court.198 However, by virtue of section 96 of the Constitution Act 1867, the federal Parliament cannot remove provincial courts’ jurisdiction over constitutional questions.199 The result is that the constitutionality of federal administrative action is within the jurisdiction of both the Federal Court under the FCA, and provincial courts under their inherent jurisdiction. Thus, where

192 See: Canada, Parliamentary Debates, House of Commons, 25 March 1970, 5470–2 (John Turner, Minister of Justice and Attorney General); D Mullan, ‘The Federal Court Act: A Misguided Attempt at Administrative Law Reform’ (1973) 23 University of Toronto Law Journal 14, 14–17; D Mullan, The Federal Court Act: Administrative Law Jurisdiction, Review prepared for the Law Reform Commission of Canada (1977) 1–3; I Bushnell, The Federal Court of Canada: A History, 1875–1992 (Toronto, University of Toronto Press, 1997) ch 14. 193 See Mullan, ‘A Misguided Attempt’, above n 192, fn 3. 194 See Canada Fishing Co Ltd et al v Smith et al (1961) 28 DLR (2d) 41 (BC Supreme Court) and British Columbia Packers Ltd et al v Smith (1961) 28 DLR 711 (Ontario High Court), discussed in HW Arthurs, ‘Administrative Law—Jurisdiction of Provincial Superior Court to Review Acts of Federal Administrative Agency—The Perambulating Plaintiff In Search of a Federal Forum’ (1962) 40 Canadian Bar Review 505. 195 See, eg, The Queen v Canada Labour Relations Board, ex parte Martin [1966] 2 OR 684. 196 Bushnell, above n 192, 159, 162. 197 See, eg, Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Canada, Bill C-192, An Act respecting the Federal Court of Canada, 26 November 1970, 5–6 (Stephen A Scott, Professor of Constitutional Law, McGill University). 198 Pringle v Fraser [1972] SCR 821; Canada Labour Relations Board v Paul L’Anglais Inc [1983] 1 SCR 147, 154. 199 Attorney General of Canada v Law Society of British Columbia [1982] 2 SCR 307; Canada Labour Relations Board v Paul L’Anglais Inc, above n 198, 162.

Statutory Judicial Review Frameworks 85 any Charter, or other constitutional, question is raised about a federal administrative act, a claim for relief may be brought in the appropriate provincial superior court or in the Federal Court.200 In practice, however, provincial courts will generally choose not to exercise their general jurisdiction over constitutional issues where there is an adequate alternative—that is where the Federal Court has jurisdiction.201 In addition, the FCA does not grant the Federal Court a general jurisdiction to issue habeas corpus: this remains within the exclusive authority of provincial superior courts.202 Provincial courts may also issue certiorari in aid of habeas corpus in reviewing decisions affecting federal prisoners.203 Thus, the Federal Court and provincial superior courts share supervisory jurisdiction over decisions made in federal prisons.204 The FCA divides jurisdiction between the Federal Court and the Federal Court of Appeal, which are now separate courts but when the Act was first enacted were two divisions of the Federal Court. Section 18 confers jurisdiction on the Federal Court to issue the prerogative writs, injunctive and declaratory relief against a ‘federal board, commission or other tribunal’. The phrase ‘federal board, commission or other tribunal’ is defined to include bodies exercising both statutory and prerogative powers205 including the Governor General,206 but excluding superior court judges and provincially appointed officials exercising federal power.207 The jurisdictional formula is remarkably similar to aspects of Australian judicial review statutes that have been interpreted as significantly restricting the scope of review, yet has not been the subject of litigation in Canada. The Federal Court’s jurisdiction is subject to section 28 of the Act, which confers exclusive jurisdiction on the Court of Appeal to review decisions made by 17 federal tribunals, boards and commissions.208 The policy rationale for the choice of tribunals listed in section 28 is not entirely clear.209 It has been suggested that they represent the ‘most important’ federal tribunals,210 yet some prominent tribunals are notably absent from the list. The most likely explanation, as Mullan has suggested, is that the list reflects the outcomes of lobbying and politics rather than principled choices.211 200 Kourtessis v Canada (Minister of National Revenue) [1993] 2 SCR 53, 113–14 (Sopinka, McLachlin and Iacobucci JJ). 201 See, eg, Reza v Canada (Minister of Employment and Immigration) (1994) 2 SCR 394, 405 [7]–[13]. 202 R v Miller [1985] 2 SCR 613, 624–25 [14]. 203 ibid. 204 Mission Institution v Khela [2014] 1 SCR 502, 520–26 [31]–[50]. 205 FCA s 2. 206 Pelletier v Canada (Attorney General) (2005) 41 Admin LR (4th) 247 (affirmed 2007 FCA 6). 207 DJM Brown and JM Evans, Judicial Review of Administrative Action in Canada, vol 1 (Toronto, Canvasback Publishing, 2011) 2-49. 208 FCA s 28. 209 See Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Canada, Bill C-38, An Act respecting the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other Acts in the consequence thereof, 13 March 1990, 7–9 (H Molot QC, Senior General Counsel, Advisory and Administrative Law, Public Law Branch, Department of Justice). 210 Jones and de Villars, above n 76, 663. 211 Mullan, Administrative Law, above n 48, 431. See also: Molot, above n 209; Evidence to House of Commons Standing Committee on Legislation, Parliament of Canada, Bill C-38, An Act respecting the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other Acts in the consequence thereof, 23 November 1989.

86 The Framework for Judicial Review of Administrative Action in Canada Probably due to the fact that the Canadian Parliament’s main concern was with creating a federal court with review jurisdiction, rather than simplifying or extending the common law like the Australian Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), the FCA contains relatively few provisions which alter substantive aspects of the law. The FCA does not abolish or replace the prerogative writs: section 18 simply confers jurisdiction on the Federal Court to issue them. Nor did the FCA in its initial form make any attempt to simplify the process for applying for a writ in the trial division, although oddly a single procedure was introduced in the appellate division. Following criticisms of the absence of simplified procedures in the trial division,212 the Act was amended in 1992213 and now provides that applications to both courts are made via a single application for judicial review. The 1992 amendments also introduced a uniform statutory test for standing of ‘anyone directly affected’, and a uniform time frame of 30 days in which applications for review can be made.214 Also unlike the ADJR Act, the FCA does not impose a duty on decision-makers to provide reasons; however there is now a right to reasons for many administrative decisions under the common law in Canada.215 Despite the Act’s relatively unambitious intentions with respect to codification, section 18.1(4) sets out the grounds on which the courts216 may grant relief—where a decision-maker has: (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law.

The grounds are expressed in broader terms than under the ADJR Act with reference only to ‘errors of law’ and no elaboration as to what those errors might be. In Canada (Citizenship and Immigration) v Khosa the majority judgment emphasised that the Parliament’s objective in enacting the FCA was to transfer the common law review jurisdiction over federal administrative decisions from provincial courts to the Federal Court, stating that the legislation should be read in light of this objective.217 Accordingly, the statutory grounds of review have been treated as 212

Mullan, ‘A Misguided Attempt’, above n 192, 15–16. Federal Court Amendment Act 1990, c 8 (entered into force 1 February 1992). 214 FCA s 18.1. 215 Baker, above n 103. See ch 4. 216 The grounds apply to review by both the Federal Court and Federal Court of Appeal: FCA s 28(2). 217 Canada (Citizenship and Immigration) v Khosa [2009] 1 SCR 339, 365 [34] (Binnie J, McLachlin CJ, LeBel, Abella and Charron JJ) (Khosa). 213

Statutory Judicial Review Frameworks 87 a codification of the common law grounds. The only exceptions are sections 18.1(4) (c) and (d): review for error of law and error of fact respectively. With respect to errors of law, the FCA provides that they may be reviewed whether or not the error appears on the face of the record, expanding the statutory ground beyond the common law.218 Errors of fact are reviewable under the FCA regardless of whether or not they are jurisdictional. While this ground went beyond the common law at the time it was enacted, the expansion has been reflected in the common law so that the Federal Court’s jurisdiction to review factual findings appears now to be essentially the same as those courts exercising common law powers of review.219 B. The Effect of the FCA In the early years of its operation the FCA attracted some criticism—predominantly for not going far enough towards simplifying the common law and for the manner in which it divided power between the two divisions of the Court. However, in recent decades the FCA has not caused the same level of consternation as Australia’s ADJR Act. The FCA aligns much more closely with the common law than does the ADJR Act, despite similarities in the wording of their jurisdiction provisions and in their codification of the grounds of review. There are at least three possible reasons for this. The first is simply that the early jurisdictional difficulties have been worked through in subsequent amendments.220 A second is the jurisdiction formula retains an express link with the prerogative writs, simply providing that the remedies may only be obtained following an order for review. A third possible reason why Canadian courts may have been more inclined to interpret the FCA more consistently with common law than Australia’s ADJR Act is that, like Ontario’s legislation (discussed below) the FCA is the only source of the Canadian Federal Court’s jurisdiction to review administrative decisions. There is no equivalent to section 39B of Australia’s Judiciary Act 1903 (Cth) conferring common law jurisdiction on the Federal Court of Canada. Nor does the Supreme Court of Canada have original jurisdiction to review decisions under federal law. Thus, any differences between the Federal Court’s jurisdiction under the FCA and the common law mean that applications must be made to provincial courts, resulting in a return to the situation which the judicial review provisions in the FCA were explicitly designed to avoid. As discussed above, Canadian courts have referred to the Parliament’s objectives in enacting the review provisions of the FCA as a reason for interpreting the provisions in line with the common law jurisdiction of provincial courts.

218 Brown and Evans, above n 207, 14-13. See also Khosa, above n 217, 371 [44] (Binnnie J, McLachlin CJ, LeBel, Abella and Charron JJ). 219 See: Khosa, above n 217, 371–72 [45]–[46] (Binnnie J, McLachlin CJ, LeBel, Abella and Charron JJ); National Corn Growers Association, above n 159, 1368–83 [65]–[101] (Gonthier, La Forest, L’HeureuxDubé and McLachlin JJ); AB v Canada (Minister of Citizenship and Immigration) [2010] 1 FCR 505,518 [14]; Singh v Canada (Minister of Employment and Immigration) (1993) 69 FTR 142. 220 When the FCA was first enacted, its division of jurisdiction between the divisions of the Court was based on the distinction between quasi-judicial and administrative powers. See generally, JM Evans, ‘The Trial Division of the Federal Court: An Addendum’ (1977) 23 McGill Law Journal 132, 133.

88 The Framework for Judicial Review of Administrative Action in Canada However, there are some differences between the scope of the Federal Court’s statutory judicial review jurisdiction and the scope of review under Canadian common law. One possible distinction relates to the scope of the Federal Court’s jurisdiction over the exercise of prerogative powers and whether a formal ‘order’ is needed for the Federal Court to have jurisdiction.221 A second is that, due to the fact that the Federal Court’s jurisdiction is purely statutory,222 Canada’s federal government may expressly exclude decisions from review, which it has done in relation to decisions of arbitrators and boards under the Canada Labour Code.223 A third relates to remedies that the FCA does not confer power on the Federal Court to issue.224 The result of these limitations is that provincial courts retain jurisdiction to deal with applications for relief against the federal government where the Federal Court does not have jurisdiction. While it has not yet done so, this issue has the potential to cause particular difficulty in those provinces with judicial review statutes modifying the common law. C. Judicial Review Legislation in the Provinces i. Ontario Ontario enacted the Judicial Review Procedure Act225 (JRP Act) in 1971 in response to an extensive inquiry and lengthy report by the Royal Commission Inquiry into Civil Rights, headed by James McRuer. The Royal Commission’s mandate was to examine and make recommendations on how Ontario law might better safeguard ‘personal freedoms, rights and liberties’.226 Its report found that the ‘vexatious technicalities’227 of the prerogative writs, and uncertainty of both the application and content of the rules of natural justice228 posed particular challenges for judicial review applicants. With respect to the former, the report cited the familiar arguments of Davis, de Smith and Wade in concluding that the area was in need of statutory reform.229 Although Canada’s most famous ‘green light’ theorist, John Willis, would disagree,230 the McRuer Report did not fall at the extreme ‘red’ end of the green– red light spectrum in recommending the codification of judicial review procedure.

221 Compare Black v Canada (Prime Minister) (2001) 54 OR (3d) 215, 237 [70]–[76] and Khadr v Canada (Attorney General) [2007] 2 FCR 218. 222 Canada (Minister of Citizenship and Immigration) v Tobiass [1997] 3 SCR 391, 412 [48]. 223 Canada Labour Code, RSC 1985, c L-2, s 58(3). 224 See Mullan, Administrative Law, above n 48, 426–30. 225 RSO 1990, c J 1 (originally SO 1971, c 47). 226 Royal Commission Inquiry into Civil Rights, Report Number One (1968) vol 1, xi (McRuer Report). 227 ibid 319. 228 ibid 136–47. 229 ibid 319. 230 Willis argued that the McRuer Report vilified the Civil Service and placed too much faith in the ability of courts and lawyers to deliver justice: J Willis, ‘The McRuer Report: Lawyers’ Values and Civil Servants’ Values’ (1968) 18 University of Toronto Law Journal 351.

Statutory Judicial Review Frameworks 89 While its focus was on the protection of individual rights, reflecting its mandate, its recommendations attempted to balance principles of government efficiency with the protection of civil rights.231 The McRuer Report recommended that statutory provision be made for a single simplified process for applying for judicial review remedies.232 The JRP Act provides a simple procedure for applying to the court for orders ‘in the nature of mandamus, prohibition or certiorari’233 and for injunctions and declarations.234 This procedure is intended to replace the common law writs: section 7 provides that an application for one of the writs is deemed to be an application under the Act. The Act also removes a number of the technical limitations of the old prerogative writ system.235 Additionally, the JRP Act makes some more substantive changes to the law. For instance, giving courts authority to grant interim relief,236 and requiring decision-makers to provide the court with their records relating to decisions subject to an application for judicial review.237 The latter requirement is fleshed out by the second piece of legislation that was introduced in response to the McRuer Report—the Statutory Powers Procedure Act238 (SPP Act)—which defines ‘the record’ and requires the decision-makers to provide reasons upon request.239 The JRP Act attracted a great deal of commentary in its early years,240 but relatively little recently. This may be because of the fact that it has generally been interpreted in line with the common law, and has proven capable of adapting to changes in the common law.241 Mullan submits that, on balance, the JRP Act ‘has general fulfilled its primary objective’ of simplifying judicial review procedures.242 He argues: Probably the most reliable indicator of the success of any exercise in legislative report is the extent to which it passes the test of time without the need for its parameters having to be established by resort to litigation. In contrast to the judicial review provisions of the Federal Court Act of 1970, Ontario’s Judicial Review Procedure Act, after a couple of early misguided ‘hiccoughs’ and subject to one significant exception, has necessitated neither amendment nor a significant body of litigation.243

231

McRuer Report, above n 226, 325. ibid 326. Act s 11 preserves the existing regime in relation to writs of habeas corpus under the Habeas Corpus Act, RSO 1990, c H 1. Quo warranto is not mentioned in the JRP Act. 234 Judicial Review Procedure Act, RSO 1990, c J 1, s 2 (1). 235 See, eg, JRP Act s 9(1). 236 ibid s 4. 237 ibid s 10. 238 RSO 1990, c S 22. 239 SPP Act ss 20 and 17(1) respectively. 240 See, eg, Willis, ‘McRuer Report’, above n 230; P Hogg, ‘Judicial Review: How Much Do We Need?’ (1974) 20 McGill Law Journal 157; JM Evans, ‘Judicial Review in Ontario—Recent Developments in the Remedies—Some Problems of Pouring Old Wine into New Bottles’ (1977) 55 Canadian Bar Review 148. 241 For instance, when the scope of certiorari was expanded by the English Court of Appeal in R v Panel on Take-overs and Mergers; ex parte Datafin plc [1987] 1 QB 815 (Datafin), the jurisdiction of Ontario courts under the Act was similarly expanded: Masters v Ontario (1993) 16 OR (3d) 439 affirmed (1994) 18 OR (3d) 551. 242 D Mullan, ‘Willis v McRuer: A Long-Overdue Replay with the Possibility of a Penalty Shoot-Out’ (2005) 55 University of Toronto Law Journal 535, 560. 243 Mullan, Administrative Law, above n 48, 438. 232

233 JRP

90 The Framework for Judicial Review of Administrative Action in Canada The early ‘hiccoughs’ to which Mullan refers relate, like some of the central problems with the ADJR Act, to the JRP Act’s jurisdiction provisions. In the early years, the wording of its jurisdiction provisions coupled with uncertainty regarding how the JRP Act interacted with the SPP Act led to confusion resulting in the JRP Act being read as limited to circumstances where a decision-maker had exercised a ‘statutory power of decision’.244 Fortunately, however, this clearly erroneous restriction did not survive,245 and since its resolution there has been little litigation regarding the provisions of the JRP Act. The provisions of the JRP Act which codify and expand two of the common law grounds of review—‘error of law’ and ‘no evidence’—do not seem to have caused any great problem for Ontario courts. With respect to the error of law ground, section 2(2) of the JRP Act expands the common law ground such that all remedies (not just certiorari) are available to correct errors of law on the face of the record. The expansion of the ground in this way was recommended by the McRuer Report.246 However, developments in Canadian common law, and particularly the courts’ focus in recent decades on the standard of review analysis, have in many ways superseded the old restrictions that section 2(2) of the Ontario Act was designed to overcome. The second ground mentioned in the JRP Act is the ‘no evidence’ ground. Although the McRuer Report recommended significant changes to the common law approach,247 the provision ultimately included in the JRP Act has been found to be identical to the ground at common law.248 One reason why Ontario courts may have been inclined to interpret the JRP Act consistently with the common law, and to correct their initial restrictive interpretations of its scope, is that the Act was intended to replace rather than supplement the common law. In all likelihood, had the JRP Act attempted to significantly restrict the powers of Ontario courts, it would either have been constitutionally invalid, or at least incapable of replacing the common law jurisdiction of Ontario’s superior courts, based on Crevier.249 By interpreting the Act consistently with the common law, Ontario courts have avoided this. Thus, Ontario has escaped the confusion and technicality that exists in a number of Australian jurisdictions, and in Prince Edward Island, in which superior courts have dual sources of review jurisdiction under statute and common law with different coverage.

244 See, eg, Re Robertson and Niagara South Board of Education (1973) 1 OR (2d) 548, 550–51 (Wright and Wells JJ); Re Florence Nightingale Home and Scarborough Planning Board [1973] 1 OR 615; Re Raney et al and the Queen in right of Ontario (1975) 4 OR (2d) 249; Re Maurice Rollins Construction Ltd and Township of South Fredricksburgh (1976) 11 OR (2d) 418, 421–22 (Thompson J). See generally, Mullan, Administrative Law, above n 48, 434; Evans, ‘Judicial Review in Ontario’, above n 240, 152. 245 Bezaire v Windsor Roman Catholic Separate School Board (1992) 9 OR (3d) 737, 746–47; Masters v Ontario, above n 241, 593–94. 246 McRuer Report, above n 226, 311. 247 See ibid 309–14. 248 Re Keeprite Workers’ Independent Union and Keeprite Products Ltd (1980) 114 DLR (3d) 16. 249 Crevier, above n 71.

Statutory Judicial Review Frameworks 91 ii. British Columbia In 1979, British Columbia followed the lead of Ontario and enacted the Judicial Review Procedure Act.250 The Act was introduced following a report of the (then) Law Reform Commission of British Columbia which recommended adopting the Ontario model with some minor modifications. The modifications made by the British Columbia Act relate to the ‘deficiencies’251 that courts had discovered in the scope of the Ontario legislation.252 British Columbia did not enact legislation similar to the SPP Act when it enacted its Judicial Review Procedure Act, which may be a reason why it avoided the early problems that the Ontario courts had in relation to the scope of its Act.253 iii. Prince Edward Island Like the Ontario and British Columbia Acts, Prince Edward Island’s (PEI) Judicial Review Act254 creates a single statutory procedure for judicial review applications. It also purports to abolish the prerogative writs and replace them with equivalent orders.255 However, PEI’s Act imposes more significant limits on the Supreme Court of PEI’s review jurisdiction than its counterparts in the other Canadian provinces. Specifically, the Act only applies to final decisions256 made under statutory power,257 and not to decisions of inferior courts. Thus, the Supreme Court of PEI’s jurisdiction under the Act is substantially narrower than at common law. As a result, although the Judicial Review Act’s express intention was to substitute proceedings seeking the old writs with the new statutory procedure,258 the Supreme Court of PEI has held that it does not, citing Crevier.259 It is unclear whether the position would be different if the scope of the Act were not so narrow, and precisely where the line would be drawn as to the extent to which jurisdiction under legislation needs to match the common law jurisdiction of provincial superior courts in the other provinces. With the exception of its scope, other provisions of the Act have generally been interpreted consistently with common law.260 This may be why the codified grounds of review in section 4 have not attracted any litigation. Section 4(1) sets out eight

250

RSBC 1996, c 241 (originally SBC 1979, c 209). Reform Commission of British Columbia, Report on Civil Rights Part IV: A Procedure for Judicial Review of the Actions of Statutory Agencies, Report no 18 (1974) 21. 252 eg, the British Columbia legislation permits equitable relief to be granted in respect of non-final decisions. 253 See, eg, Islands Protection Society v British Columbia (1979) 98 DLR (3d) 504, 516–17; Mohr v Vancouver, New Westminster and Fraser Valley District Council of Carpenters (1988) 32 BCLR 104 [3] (Hutcheon JA), [24] (Southin JA, Seaton JA concurring). 254 RSPEI 1988, c J-3. 255 ibid s 3(3). 256 R v Burge (1995) 135 Nfld & PEIR 245. 257 See, eg, Canada (Attorney General) v Prince Edward Island (Legislative Assembly) (2003) 46 Admin LR (3d) 171 [39]–[43]. 258 RSPEI 1988, c J-3, s 2. 259 Ward v University of Prince Edward Island (1997) 3 Admin LR (3d) 1 [17]. 260 ibid. 251 Law

92 The Framework for Judicial Review of Administrative Action in Canada grounds of review which are expressed in broad terms, but generally appear to encompass the grounds available under common law. A further reason for the lack of litigation over the grounds of review may be that section 4 indicates that the list of grounds is not exhaustive. V. CANADA’S HUMAN RIGHTS FRAMEWORK

Canada’s comprehensive human rights framework contains both constitutional and statutory bills of rights. As part of Canada’s written constitution, the Charter has obviously been the most important source of rights under Canadian law since its enactment in 1982. However, the Canadian Bill of Rights261 and the recently reinvigorated notion of an implied constitutional bill of rights continue to play a role in Canadian law. This section provides a brief outline of the Charter before focusing on important aspects of its interaction with administrative law, namely: the differing scope of the Supreme Court’s jurisdiction to review administrative action under the common law and its Charter jurisdiction; and the methodologies used to analyse administrative decisions which impact on Charter rights. Finally, Canada’s statutory bill of rights and the possibility of an implied constitutional bill of rights are discussed, with a focus on the aspects of each that are most relevant to administrative law. A. Overview of the Charter The Charter applies to federal as well as provincial and territorial governments and legislatures, and restricts their capacity to legislate and act other than in accordance with the fundamental rights and freedoms it protects.262 Should legislation made by any Canadian parliament, or regulations or administrative decisions made thereunder, be found to violate one of the civil liberties guaranteed by the Charter, the courts have the power to declare the offending provision or action null. In addition, section 24 of the Charter confers wide discretion upon the courts to remedy the infringement of ‘anyone’s’263 Charter rights or freedoms. The rights and freedoms protected by the Charter fall generally under the category of civil and political rights, as opposed to social and economic rights. The Charter organises them into six groups: (i) Fundamental freedoms, including conscience, religion, expression, assembly and association (section 2).

261

Canadian Bill of Rights, SC 1960, c 44. Constitution Act 1982 s 32. 263 The terms ‘anyone’, ‘everyone’ and ‘any person’, used in various places in the English version of the Charter, have been interpreted to apply to natural persons affected by actions of Canadian governments, as well as corporations, where relevant. See generally Hogg, Constitutional Law of Canada, above n 10, 37-1–37-7. 262

Canada’s Human Rights Framework 93 (ii) Democratic rights (voting) (sections 3–5). (iii) Mobility rights (to enter, remain in and leave Canada, and move between provinces without discrimination) (section 6). (iv) Legal rights (including rights to life, liberty and security, protection against arbitrary detention and cruel and unusual treatment, the right to a fair trial and to counsel and an interpreter) (sections 7–14). (v) Equality rights (to equal treatment under, and protection of, the law) (section 15). (vi) Language rights (declaring the equality of both English and French as official languages and requiring law to be published in both languages) (sections 16–23). In addition, section 28 provides an overarching right to gender equality, stating that ‘notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons’. The Charter acknowledges that the guarantee of these rights is not absolute, that rights will come into conflict, and that the nature of a democratic, ordered society at times necessitates the abrogation of fundamental rights. Section 1 ‘implicitly authorises the courts to balance the guaranteed rights against competing societal values’,264 providing: ‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. The twostep test for determining whether legislation violates the Charter was established in R v Oakes.265 The first step asks whether the objective of the legislation is sufficiently important to warrant overriding the relevant right or freedom. The second step is to consider whether the means chosen are appropriate and proportionate to the ends sought to be achieved by the action. The proportionality test involves balancing the public interests with the rights of individuals and groups and consideration of whether there were any less right-restrictive means of achieving the statute’s purpose. In addition to permitting courts to balance competing rights and democratic values, the Charter contains a ‘notwithstanding clause’ whereby legislatures may determine that certain legislation ought not be subject to some of the Charter’s protections.266 The notwithstanding clause has had limited application, having never been used by the federal legislature or by nine of the 13 provincial and territorial legislatures.267 B. Interaction Between the Charter and Administrative Law While later chapters analyse aspects of the Charter’s impact on judicial review of administrative action, it is useful to make some preliminary points on the interaction between the two areas of law. 264

ibid 36-10. R v Oakes [1986] 1 SCR 103 (Oakes). Constitution Act 1982 s 33. 267 Hogg, Constitutional Law of Canada, above n 10, 39-3–39-4. 265 266

94 The Framework for Judicial Review of Administrative Action in Canada i. The Scope of the Charter and Judicial Review of Administrative Action268 The first is that the jurisdiction of the courts under the Charter and judicial review of administrative action are not synonymous. The Charter applies to actions of legislatures and ‘governments’, the latter of which is determined by the degree of ‘control’ exercised over the decision-maker.269 The Supreme Court has stated that this supports a general principle that ‘a government should not be able to shirk its Charter obligations by simply conferring its powers on another entity’.270 This ‘control’ test considers whether there is an ‘institutional’ or ‘structural’ link with government, based on considerations such as whether a minister may issue directions to the body; funding; appointment of members; and whether the entity is charged with administering government policies or objectives.271 The majority of the Court has expressly rejected the classification of ‘functions’ as public or private for the purposes of defining the scope of the Charter’s application.272 The scope of judicial review of administrative action in Canada is likely to depend on whether the function being performed by a decision-maker can be classified as ‘public’ in nature. This issue has not been addressed by the Supreme Court, though obiter comments indicate that it will not permit Canadian governments to ‘avoid public law duties when delegating its functions by way of contract or other form of agreement’.273 A public function test would also be consistent with the Supreme Court’s imposition of natural justice requirements on a wide range of private bodies exercising disciplinary powers.274 Where provincial and federal courts have addressed the issue, they have tended to either expressly or impliedly endorse the ‘public function’ approach articulated

268 Greg Weeks and I have discussed these issues in more detail: J Boughey and G Weeks, ‘“Officers of the Commonwealth” in the Private Sector: Can the High Court Review Outsourced Exercises of Power?’ (2013) 36 University of New South Wales Law Review 316. Parts of the discussion below draw from that article. 269 McKinney v University of Guelph [1990] 3 SCR 229. 270 Greater Vancouver Transport Authority v Canadian Federation of Students–British Columbia Component [2009] 2 SCR 295, 312 [22] (Deschamps, McLachlin CJ, Binnie, LeBel, Abella, Charron and Rothstein JJ). 271 McKinney v University of Guelph, above n 269; Douglas/Kwantlen Faculty Association v Douglas College [1990] 3 SCR 570; Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624, 661 [44] (La Forest J, Lamer CJ, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ); Sagen v Vancouver Organizing Committee for the 2010 Olympic & Paralympic Winter Games (2009) 98 BCLR (4th) 109 [22]–[40]; Canadian Blood Services v Freeman [2010] 217 CRR (2d) 153 [360]. 272 McKinney v University of Guelph, above n 269 (La Forest J, Dickson CJ, Gonthier and Sopinka JJ); Stoffman v Vancouver General Hospital [1990] 3 SCR 483 (La Forest J, Dickson CJ, Gonthier and Sopinka JJ). 273 Société de l’assurance Automobile du Québec v Cyr [2008] 1 SCR 338, 348 (Bastarache J) (note: this particular case dealt with the Act Respecting Administrative Justice, RSQ 1996, c J-3, rather than the common law). See also: Martineau v Matsqui Disciplinary Board [1980] 1 SCR 602, 616–17 (Dickson and McIntyre JJ); McKinney v University of Guelph, above n 269, 267–68 [33]–[34] (La Forest J, Dickson CJ and Gonthier J). See further: D Mullan, ‘Administrative Law at the Margins’ in M Taggart (ed), The Province of Administrative Law (Oxford, Hart Publishing, 1997); D McKee, ‘The Public/Private Distinction in Roncarelli v Duplessis’ (2010) 55 McGill Law Journal 461, 486–90. 274 See, eg, Kane v Board of Governors of University of British Columbia [1980] 1 SCR 1105; Kaplan v Canadian Institute of Actuaries (1994) 151 DLR (4th) 481; Knight v Indian Head School Division No 19 [1990] 1 SCR 653.

Canada’s Human Rights Framework 95 by the English Court of Appeal in R v Panel on Takeovers and Mergers; Ex Parte Datafin plc.275 In some instances, aspects of the Charter ‘control’ test have been incorporated into the assessment.276 In a number of recent decisions, the Federal Court of Canada has adopted a broader test which uses ‘public function’ as just one indicium of public power.277 Additional factors are drawn from the various other tests that have been proposed by leading commentators and applied by Canadian and English courts. They include: —— The source of the power. —— The relationship between the decision-maker and government and extent to which the latter directs, controls or influences the former. —— The ‘suitability of public law remedies’. —— Whether the decision-maker exercises compulsory power. —— ‘An “exceptional” category of cases where the conduct has attained a serious public dimension’.278 While these Federal Court judgments technically only apply to the Federal Court’s statutory jurisdiction under the Federal Courts Act,279 and not directly to review under the common law, the Court’s reliance on provincial and English precedent, as well as its comments in earlier cases,280 indicate that the scope of its statutory jurisdiction and common law review are identical in this respect. These cases suggest that the principles of administrative law are likely to apply to a range of administrative decisions to which the Charter does not. ii. Administrative Decisions that Impact on a Charter Right281 The second preliminary point regarding the interaction between the Charter and judicial review of administrative action is the way courts approach an administrative decision that limits a Charter right. Until fairly recently, the law on this issue was ‘in disarray’.282 Much of the confusion was attributable to the fact that the

275 Datafin, above n 241. For acceptance by Canadian provincial and territorial courts see: Vander Zalm v British Columbia (Commissioner of Conflict of Interest) (1991) 80 DLR (4th) 291, 297–98; Masters v Ontario, above n 241; Volker Stevin NWT Ltd v Northwest Territories (Commissioner) [1994] NWTR 97 [25]–[26]; McDonald v Anishinabek Police Service (2006) 83 OR (3d) 132, 155–56 [70]–[76]; Scheerer v Waldbillig (2006) 265 DLR (4th) 749, 756–57 [18]–[21]; Reynolds v Ontario (Registrar, Information and Privacy Commissioner) (2006) 217 OAC 146 [33]–[37]; Knox v Conservative Party of Canada (2007) 286 DLR (4th) 129. 276 McDonald v Anishinabek Police Service (2007) 276 DLR (4th) 460, 484 [74]. 277 Air Canada v Toronto Port Authority [2013] 3 FCR 605 [60] (Air Canada); Attawapiskat First Nation v Canada 2012 FC 948 [55]. 278 Air Canada, above n 277, 628–31 [60]. 279 RSC 1985, c F-7. 280 Wilcox v Canadian Broadcasting Corporation [1980] 1 FCR 326 [10]. 281 This section draws on my longer discussion in: J Boughey, ‘Rights, Review and Reasonableness: The Implications of Canada’s New Approach to Administrative Decision-Making and Human Rights for Australia’ (2013) 35 Sydney Law Review 283. 282 D Mullan ‘The Canadian Charter of Rights and Freedoms: A “Direct Driver” of Judicial Review of Administrative Action in Canada?’ in L Pearson, C Harlow and M Taggart (eds), Administrative Law in a Changing State: Essays in Honour of Mark Aronson (Oxford, Hart Publishing, 2008) 142.

96 The Framework for Judicial Review of Administrative Action in Canada Charter itself is not clear on how administrative decision-makers are required to take protected rights and freedoms into account. While the Charter clearly applies to governments and gives courts the power to remedy breaches of Charter rights by the executive,283 on its face, the ‘reasonable limits’ clause in section 1 (and the Oakes test) only appears to apply to limits on rights which are ‘prescribed by law’. In respect of the Charter’s effect on administrative decision-making, therefore, section 1 will clearly apply to executive government when it is making subordinate legislation or instruments which can clearly be said to ‘prescribe’ law. Decision-makers will also be required to interpret their empowering legislation using the Oakes test, or risk making a jurisdictional error. However, with respect to the exercise of discretionary powers conferred by legislation, the Charter is ambiguous. Are administrative decision-makers only permitted to make decisions that limit rights where the empowering legislation itself expressly or impliedly limits rights? Or do decisionmakers retain some discretion to determine whether limits on rights are justified under a statutory scheme? If the latter is the case, then what test applies to the exercise of discretion, which cannot itself be said to be ‘prescribing law’?284 In the first case concerning the application of the Charter to an administrative decision to reach the Supreme Court of Canada, Slaight Communications Inc v Davidson,285 the Court was unanimous in finding that section 1 applied to administrative decisions. Their logic, expressed in the judgment of Lamer J, was that in conferring discretionary statutory functions on the executive, legislatures are simply delegating their powers. Legislatures may only delegate powers that they themselves have, and, as the Charter only permits legislation to limit rights where the limit is ‘reasonably and demonstrably justified’, Canadian legislatures may only confer power on the executive to limit rights where the same test is met. Thus, if a legislature expressly or implicitly grants a decision-maker power to infringe on a Charter right, then the legislation itself is subjected to an Oakes analysis. If a legislature grants a broad discretion that does not expressly or implicitly confer the power to limit a Charter right, then it is the decision, rather than the empowering legislation, which will be subject to the Oakes test.286 However, the Court in Slaight divided on the time at which the section 1 analysis should be applied to administrative discretions that limit Charter rights. The majority held that whenever an administrative decision raises Charter issues, the appropriate standard of review will always be the Oakes test.287 For many years this was the ‘orthodox approach’ to administrative discretion under the Charter.288 By contrast,

283

Constitution Act 1982 s 24. generally, R Leckey, ‘Prescribed by Law/Une Règle de Droit’ (2007) 45 Osgoode Hall Law Journal 571. 285 Slaight Communications Inc v Davidson [1989] 1 SCR 1038 (Slaight). 286 ibid 1079–80 (Lamer J). 287 ibid 1049 (Dickson CJ, Wilson, La Forest and L’Heureux-Dubé JJ). 288 E Fox-Decent, ‘The Charter and Administrative Law: Cross-Fertilization in Public Law’ in C Flood and L Sossin (eds), Administrative Law in Context, 1st edn (Toronto, Emond Montgomery, 2008) 182. Examples of its application include Ross v New Brunswick School District No 15 [1996] 1 SCR 825, 850–51 [32]; Multani v Commission scolaire Marguerite-Bourgeouys [2006] 1 SCR 256, 270–71 [16] (Charron J, McLachlin CJ, Bastarache, Binnie and Fish JJ) (Multani). 284 See,

Canada’s Human Rights Framework 97 Lamer J thought that the Charter analysis should only be applied if a decision had first been found to be lawful under administrative law, which Fox-Decent labelled the ‘mixed approach’.289 The leading example of the mixed approach is the majority decision in Baker.290 The case involved a decision to deport a Jamaican woman, Mavis Baker, with Canadian-born, dependent children. Baker applied for an exemption on humanitarian and compassionate grounds, which was denied. No reasons were given for the denial, but notes on which the decision-maker relied indicated that the investigating officer had strong views about Baker’s welfare dependence and mental illness, and that those issues had weighed heavily in the decision-making process. The case raised a range of legal issues, which are analysed throughout this book, including: the scope and content of fairness; bias; the duty to give reasons for decisions; the standard of review applicable to discretionary decisions; and the effect of unincorporated treaties on decision-making. The decision also arguably impinged on Baker’s right to security of the person under section 7; however L’Heureux-Dubé J, for the majority, found: Because, in my view, the issues raised can be resolved under the principles of administrative law and statutory interpretation, I find it unnecessary to consider the various Charter issues raised by the appellant and the interveners who supported her position.291

The ‘orthodox’ and ‘mixed’ approaches were criticised for reflecting a hierarchical relationship between the Charter and administrative law, in which the former was the superior form of review for those challenging decisions, and thus threatening to ‘sterilise’ and ‘impoverish’ administrative law.292 In a range of other cases, neither the orthodox nor mixed methodologies was applied, but instead the Charter was seen as a factor in the standard of review analysis which favoured the application of a ‘correctness’ standard.293 The approach led to its own confusion, particularly with respect to what correctness review entailed in this context. Furthermore, in the 2006 case of Multani v Commission scolaire Marguerite-Bourgeouys,294 Deschamps and Abella JJ questioned whether section 1 applies to administrative decisions at all. They pointed to the fact that the French version of section 1 uses the phrase ‘règle

289

Fox-Decent, above n 288, 182. Baker, above n 103. I consider Baker an example of the mixed approach despite the fact that the Court actually only applied administrative law principles. This is because the Court left open the possibility of applying the Charter standards had the administrative law analysis found the decision lawful. My characterisation of Baker is consistent with Fox-Decent’s original analysis of the decision, in which the orthodox/mixed framework was developed, though differs from his more recent method of categorising the case: Fox-Decent, above n 288, 186; E Fox-Decent and A Pless, ‘The Charter and Administrative Law: Cross Fertilization or Inconsistency?’ in CM Flood and L Sossin (eds), Administrative Law in Context, 2nd edn (Toronto, Emond Montgomery, 2012) 446. 291 Baker, above n 103, 832 [11]. 292 Cartier, above n 163, 63; Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307, 406–07 [189] (LeBel J); JM Evans, ‘The Principles of Fundamental Justice: The Constitution and the Common Law’ (1991) 29 Osgoode Hall Law Journal 51, 73. 293 See, eg, Nova Scotia (Worker’s Compensation Board) v Martin [2003] 2 SCR 504; Chamberlain v Surrey School District No 36 [2002] 4 SCR 710, 725–26 [11] (McLachlin CJ, L’Heureux-Dubé, Iacobucci, Major, Binnie and Arbour JJ); Trinity Western University v British Columbia College of Teachers [2001] 1 SCR 772. 294 Multani, above n 288. 290

98 The Framework for Judicial Review of Administrative Action in Canada de droit’ in place of the English phrase ‘prescribed by law’. They noted that on its face the French phrase ‘naturally refers to a law of general application’,295 and not to administrative decisions. Thus, they held, while administrative decision-makers must take Charter values into account ‘it does not follow that their decisions must be subject to the justification process under section 1’.296 The ‘disarray’ resulting from these competing methodologies has been resolved by the Supreme Court—at least for now. The new approach, adopted unanimously by the Court in Doré v Barreau du Québec,297 rejects some of the fundamental assumptions that underpin both the mixed and orthodox approaches. In particular, the Court held that it is neither necessary nor appropriate to apply the Oakes test to administrative decisions that limit Charter rights. The Doré approach also discards the notion that the involvement of a Charter right is a factor pointing to or requiring the court to apply a correctness standard of review. Instead, it holds that administrative law’s reasonableness standard is now sufficiently adapted to accommodate the Charter’s requirements of administrative decisions. The impugned decision in Doré was that of the Disciplinary Council of the Barreau du Québec to reprimand a lawyer for writing a letter castigating a judge for his behaviour during a proceeding. The lawyer, Gilles Doré, challenged the constitutionality of the Disciplinary Council’s decision to reprimand him on the basis that it violated his freedom of expression, guaranteed under section 2(b) of the Canadian Charter. On appeal,298 the Tribunal des professions had followed the minority judgment of Deschamps and Abella JJ in Multani, finding that the Oakes test did not apply to administrative decisions. The Tribunal applied a correctness standard to the Barreau du Québec’s decision, applying administrative law principles, and held that although the Disciplinary Council’s decision ‘seems harsh … it was not unreasonable’.299 Doré sought judicial review of the Tribunal’s decision, arguing that it had erred in failing to apply a full Oakes analysis. The Superior Court of Québec and Court of Appeal each applied the Oakes test, and upheld the Tribunal’s decision. Doré appealed to the Supreme Court of Canada. In upholding the Tribunal’s decision, the Supreme Court adopted reasoning that was similar, though not identical, to the approach of Deschamps and Abella JJ in Multani. The unanimous judgment, delivered by Abella J, began by acknowledging that the Oakes test had been an ‘awkward fit’ with administrative decisions.300 The Court went on to discuss the practical difficulties that had arisen in applying the Oakes test to administrative decisions.301 Chief among these is the fact that the test requires courts to balance the overriding purpose of the law, or decision, against the limits it places on fundamental rights, and attempting to determine the ‘purposes’ of an administrative decision is frequently a challenging and artificial process. 295

ibid 310–11 [113]. ibid 308 [107]. Doré v Barreau du Québec [2012] 1 SCR 395 (Doré). 298 There was a statutory right to appeal decisions of the Disciplinary Council to the Tribunal des professions. 299 Doré, above n 297, 411 [19]. 300 ibid 403 [4]. 301 ibid 403–04 [4], 418 [38]. 296 297

Canada’s Human Rights Framework 99 In other Charter cases where the objectives of a legal rule are difficult, or impossible, to identify—such as questions regarding the constitutionality of common law rules—the Court had concluded that the Oakes test was unsuitable.302 The Court also referred to the problems with applying the Oakes test’s onus of proof to administrative decisions.303 However, the Court did not completely reject the Slaight rationalisation for applying section 1 to administrative decisions. While the Court held that the Oakes test does not apply to administrative decisions, Abella J did not reiterate the argument that she and Deschamps J made in Multani regarding the wording of the French version of section 1 of the Charter. Rather, the judgment assumes that section 1 does apply to administrative decisions, even though the Oakes test is not the best formula for giving effect to it. For instance, the Court commented that, ‘while a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality’.304 Thus, it seems that the Court is of the view that administrative decisions may limit Charter rights provided that such limits are ‘demonstrably justified’, and that the question of whether a limit is so justified will be determined via a test which integrates notions of both reasonableness and proportionality. Given that the Court offered no other explanation as to why section 1 applies to administrative decisions, it seems reasonable to assume that Lamer J’s Slaight framework—based on the premise that legislatures cannot confer powers on the executive that they themselves do not possess—still stands. The Court did overturn other aspects of the Slaight judgments. The most important was the application of the Oakes test and the underlying reasons for its application in both the orthodox and mixed approaches. Both the majority and Lamer J in Slaight had applied the Oakes test because of a ‘perceived inability of administrative law to deal with Charter infringements in the exercise of discretion’.305 In Doré the Supreme Court rejected this view, stating that the relationship between the Charter and administrative law has evolved since Slaight and it is now possible to adopt a ‘richer conception of administrative law’306 capable of dealing with Charter issues without resort to the Oakes analysis. The Court referred, in particular, to its decisions in Baker,307 Dunsmuir308 and R v Conway309 as having altered the ability of administrative law to deal with Charter issues over the last 15 years. The critical aspect of Baker for these purposes was its recognition that all aspects of decision-making involve both discretion and law and the Court’s acknowledgment that the traditional dichotomy between the two could not be divided by a bright line.310 The point from Dunsmuir that flows from

302

ibid 419–20 [39]–[42]. ibid 403–04 [4]. 304 ibid 404 [5]. Similar statements are made in [6] and [7]. 305 ibid 413 [26]. 306 ibid 417 [35]. 307 Baker, above n 103. 308 Dunsmuir, above n 104. 309 R v Conway [2010] 1 SCR 765 (Conway). 310 Baker, above n 103, 853–55 [53]–[56]; Dunsmuir, above n 104, 222 [51]. 303

100 The Framework for Judicial Review of Administrative Action in Canada this is that the rationale for the courts’ policy of deference to administrative decisionmakers—embodied in the standard of review analysis—applies to all aspects of administrative decision-making.311 Where an administrative decision involves the application of law, including Charter values, to a particular set of facts, the standard of review analysis indicates that courts should give some deference to the decision-maker’s findings.312 The third significant development was the finding in Conway that ‘we do not have one Charter for the courts and another for administrative tribunals’.313 Thus, the Supreme Court held that administrative tribunals that decide questions of law also have the authority to apply and interpret the Charter and grant Charter remedies in respect of matters before them, provided that the tribunal otherwise has the power to grant the particular remedy sought. Taken together, the Court saw these decisions as supporting its new approach to administrative decisions touching on Charter rights. The new approach begins by recognising that ‘administrative bodies are empowered, and indeed required, to consider Charter values within the scope of their expertise’.314 In doing this, section 1 of the Charter requires decision-makers to balance fundamental rights and values with the objectives of the statute.315 ‘This is at the core of the proportionality exercise and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives’.316 When asked to review an administrative decision that limits a Charter right, courts will apply the ordinary principles of judicial review, including the standard of review analysis. Here the Court also overturned its previous decisions holding that wherever a Charter question is involved in a matter, the appropriate standard of review will be correctness. While correctness will be the applicable standard wherever a tribunal makes a determination on the constitutionality of a law and to other questions of constitutional interpretation that arise in proceedings before government decision-makers,317 where the decisionmaker is simply being asked to apply law and policy to individual facts, the Court reflected that: ‘[The] reasons for judicial restraint in reviewing agencies’ decisions on matters in which their expertise is relevant do not lose their cogency simply because the question in issue also has a constitutional dimension’.318 Therefore, the Supreme Court concluded that courts should ordinarily review administrative decisions that limit a Charter right using the deferential administrative law standard of reasonableness. In applying this standard, courts must ask whether, in balancing the statutory objectives with the proposed limit on rights, the administrative decision ‘falls within the range of possible, acceptable outcomes’319 or ‘reflects a proportionate balancing of the Charter protections at play’.320 The Court noted that this approach ‘opens

311

Baker, above n 103, 854–55 [55]; Dunsmuir, above n 104, 221 [49]. Dunsmuir [2008], above n 104, 223 [53]. 313 Conway, above n 309, 779 [20]. 314 Doré, above n 297, 417 [35]. 315 ibid 426 [55]–[56]. 316 ibid 426 [56]. 317 ibid 420–21 [43]. 318 ibid 422 [46] quoting JM Evans, ‘Fundamental Justice’, above n 292, 81. 319 ibid 426 [56] quoting Dunsmuir, above n 104, 220 [47]. 320 ibid 427 [57]. 312

Canada’s Human Rights Framework 101 “an institutional dialogue about the appropriate use and control of discretion, rather than the older command-and-control relationship”’.321 Applying the new test to the impugned decision, the Court first examined the objectives of the Disciplinary Board’s empowering legislation. The Disciplinary Board was given broad discretion to determine whether the conduct of lawyers bore ‘the stamp of objectivity, moderation and dignity’.322 The purpose of the power, said the Court, was to ‘prevent incivility in the legal profession’.323 The Charter requires the Board to determine the ‘appropriate boundaries of civility’ in light of the right to freedom of expression under the Charter, and balance the severity of offending conduct accordingly.324 The Court held that in this case, the Disciplinary Board had done so. The Board had expressly considered Doré’s right to freedom of expression in its decision and recognised that any disciplinary decision should not restrict a lawyer’s capacity to defend his or her clients.325 The Board had made its decision to reprimand Doré based on what it saw as the ‘excessive’ language he had used in his letter, which they concluded ‘overstepped’ the ‘generally accepted norms of moderation and dignity’.326 The Supreme Court concluded that: ‘In light of the excessive degree of vituperation in the letter’s context and tone, this conclusion cannot be said to represent an unreasonable balance of Mr Doré’s expressive rights with the statutory objectives’.327 Doré has become the leading case on review of administrative decisions that limit Charter rights, and has been followed in several other lower court and Supreme Court decisions. However, it may not remain so. It has been subject to criticism from commentators328 and, in a 2015 decision in Loyola High School v Québec (Attorney General),329 three members of the Supreme Court reverted to the Oakes test without explanation. This departure may be an early sign of dissatisfaction with Doré: the various problems with that judgment are discussed throughout this book, and especially in chapter six. Or, it may simply be a result of the fact that it is less difficult to apply the Oakes test to the facts of Loyola than it is to many administrative decisions, because of the close connection between the decision in issue and the objectives of the statute under which it was made. Specifically, the decision being challenged in Loyola was a refusal by the Minister of Education to exempt a Catholic school from Québec’s mandatory Ethics and Religious Culture (ERC) programme. The difficulties with the application of the Oakes test identified in Doré, therefore, did not apply in Loyola.

321

ibid 417 [35] quoting Liston, above n 101, 100. ibid 427 [60]. 323 ibid 428 [61]. 324 ibid 428 [63]. 325 ibid 430–31 [70]. 326 Doré, above n 297. 327 ibid 431 [71]. 328 See, eg, P Daly, ‘Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms’ (2014) 65 Supreme Court Law Review 247; A Macklin, ‘On Being Reasonably Proportionate’ (Public Law conference, Cambridge University, 12–14 September 2016). 329 Loyola High School v Québec (Attorney General) [2015] 1 SCR 613 (Loyola). See the discussion in ch 6 III.E. 322

102 The Framework for Judicial Review of Administrative Action in Canada C. Other Sources of Rights Under Canadian Law Prior to the enactment of the Charter, a more limited range of rights were recognised under Canadian law. These rights arose from two sources: a statutory Charter of Rights enacted in 1960; and the suggestion that the preamble to the Constitution Act 1867 gives rise to an implied bill of rights. While the Charter is now by far the most significant source of rights in Canada, these other sources continue to play a role and have some implications for administrative law. i. Statutory Charter of Rights The federal Parliament enacted a human rights statute in 1960, in the form of the Canadian Bill of Rights330 (the Bill of Rights). The Bill of Rights applies to all current and future federal legislation, subordinate legislation and administrative decisions made thereunder.331 As a result of its purported attempt to bind future federal parliaments, the Bill of Rights was eventually interpreted as superior, ‘quasiconstitutional’ legislation,332 which has the effect of rendering inconsistent legislation inoperative.333 The statute permits the Canadian Parliament to exclude legislation from compliance, by express declaration:334 an exemption which has only been used once.335 Commentators agree that the Bill of Rights had a limited impact on Canadian law, as a result of judicial caution and conservatism.336 The Supreme Court only invalidated one legislative provision between its enactment in 1960 and the entrenchment of the Charter in 1982.337 Hogg considers this restraint appropriate given the absence in the Bill of Rights of a limiting provision akin to section 1 of the Charter, and its non-constitutional status which cast doubt on the legal basis for its attempt to bind future parliaments.338 Mullan suggests a further reason for the statute’s limited impact was that the bulk of judicial review of administrative action occurred in provincial courts where the Act only applied to federal laws.339 The continuing impact and importance of the Bill of Rights was diminished when the Charter was enacted in 1982. The Charter replicated almost all of the Bill of Rights’ guarantees, and is constitutionally entrenched, leaving the courts in no doubt as to its legitimacy in binding future parliaments.340 Furthermore, the Supreme Court has interpreted Charter rights more broadly than it did the rights protected by the 330

SC 1960, c 44. ibid ss 2 and 5(2). 332 Hogan v The Queen [1975] 2 SCR 574, 579 (Laskin J, dissenting). 333 ibid 584 (Ritchie J, Fauteux CJ, Abbott, Martland, Judson and Dickson JJ). 334 Canadian Bill of Rights, SC 1960, c 44, s 2. 335 Hogg, Constitutional Law of Canada, above n 10, 35-4. 336 See, eg, Hogg, Constitutional Law of Canada, above n 10, 34-3, 35-10; Mullan, ‘The Canadian Charter’, above n 282, 128. 337 R v Drybones [1970] SCR 282. See generally Hogg, Constitutional Law of Canada, above n 10, 35-10. Subsequent to the enactment of the Charter, two further legislative provisions have been declared to be inoperative, in the cases of Singh v Minister of Employment and Immigration [1985] 1 SCR 177 (Singh) (discussed below) and MacBain v Lederman [1985] 1 FC 856. 338 Hogg, Constitutional Law of Canada, above n 10, 35-10–35-11. 339 Mullan, ‘The Canadian Charter’, above n 282, 129. 340 Hogg, Constitutional Law of Canada, above n 10, 35-11. 331

Canada’s Human Rights Framework 103 Bill of Rights, making the precedent developed under the latter now redundant.341 Hogg suggests that the main reason that broader interpretations have been given to Charter rights is because of the qualification provided by its limiting provision.342 Only two provisions of the Act remain important, as they have not been replicated in the Charter and go beyond the Charter’s protections. The first is section 1(a) which guarantees ‘the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law’. The Charter also protects the rights of an individual to life, liberty and security, however, does not expressly protect property rights.343 The second provision of the Act of continued relevance is section 2(e) which provides that ‘no law of Canada shall be construed or applied so as to deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations’. Section 2(e) is of particular importance to administrative law as it has been found to guarantee a limited right to fair administrative processes which goes beyond the Charter’s section 7 guarantee. Section 2(e) of the Bill of Rights requires a fair hearing in all decisions affecting ‘rights and obligations’, while the Charter only requires fundamental justice when a decision affects the right to ‘life, liberty and security of the person’. There are comparatively few circumstances in which an administrative decision will affect life, liberty and security,344 whereas many administrative decisions affect rights and obligations. Thus, the Bill of Rights will guarantee a fair hearing in far more circumstances than the Charter. This is demonstrated by the Supreme Court’s decision in Singh v Minister of Employment and Immigration,345 which involved a challenge to provisions of the Immigration Act.346 The impugned provisions required the Immigration Appeal Board to make a determination denying a person refugee status without an oral hearing. A number of asylum seekers sought judicial review of the Board’s decisions, arguing that the lack of an oral hearing violated either section 7 of the Charter, or in the alternative section 2(e) of the Bill of Rights. The Supreme Court unanimously held that the applicants were entitled to an oral hearing, but divided evenly on which remedy applied. Wilson J, with Dickson CJ and Lamer J, found that the Charter guaranteed the applicants an oral hearing because a decision which closes off the avenues of escape for a Convention refugee was a decision which impacted the ‘security of the person’.347 Beetz J, with Estey and McIntyre JJ, on the other hand, were in doubt as to whether the Charter affords any protection against the actions of a foreign government,348 and instead decided the case on the basis of section 2(e) of the Bill of Rights. They found that the Board’s decision

341

For examples see Hogg, Constitutional Law of Canada, above n 10, 35-11–35-12. ibid 35-2, 35-9, 35-11. 343 Charter s 7. 344 The obvious exception is decisions about a person’s refugee status. As will become evident migration decision-making has been the principal area in which the principles of administrative law and human rights law have come into interaction in both Canada and Australia. 345 Singh, above n 337. 346 1976, SC, c 52. 347 ibid 206–07 [45]–[47]. 348 ibid 224 [83]. 342

104 The Framework for Judicial Review of Administrative Action in Canada affected the asylum seeker’s ‘rights and obligations’, and so according to section 2(e) must be made according to the principles of fundamental justice, which in this instance required an oral hearing.349 Thus, where an administrative decision affects a person’s ‘rights or obligations’ but not their ‘life, liberty and security’, section 2(e) of the Bill of Rights provides a statutory duty on decision‑makers to afford the affected person fundamental justice in the decision-making process. Chapter four examines in detail the interaction of these procedural rights with the common law principles of natural justice. ii. An Implied Bill of Rights? The notion of an implied bill of rights emanating from the preamble of the Constitution Act 1867 has been explored in a number of Supreme Court judgments. While prior to the adoption of the Charter, it never gained majority support350 ‘it has commanded the allegiance of an impressive number of Supreme Court judges [as well as a number of Canadian scholars], and it has never been decisively rejected’.351 The idea first surfaced in Duff CJ’s judgment in the 1938 Alberta Press Case.352 The case involved the validity of three Alberta statutes, one of which purported to require newspapers in the province to print the government’s rebuttal to any critical stories. A majority of the Court held that this legislation was invalid on the basis that its operation relied on the validity of another Act, which the Court had found to be ultra vires. However, Duff CJ went further to hold that the Constitution Act 1867 assumes the continued existence of a democratically elected Parliament, which derives its ‘efficacy from the free public discussion of affairs’. Thus, he considered that freedom of political speech, as a power ‘requisite for the protection of the constitution’ was a necessary implied limit on the powers of Canadian Parliaments.353 Duff CJ’s dicta was picked up by various members of the Supreme Court in a range of decisions throughout the 1950s.354 The best known of these is the judgment of Rand J in Roncarelli v Duplessis which used the language of ‘unchallengeable rights’ as part of the reasoning in finding that the Liquor Commission’s cancellation of Roncarelli’s liquor licence was ultra vires.355 Perhaps emboldened by the promise of the Charter, in two decisions, the facts of which occurred prior to the Charter’s proclamation but the decisions themselves made afterwards, the majority of the Supreme Court appeared to accept that freedom of speech, along with other unnamed political rights and freedoms, were

349

ibid 228–31 [93]–[101]. Mullan, ‘The Canadian Charter’, above n 282, 128. 351 D Gibson, ‘Constitutional Amendment and the Implied Bill of Rights’ (1967) 12 McGill Law Journal 497, 498. 352 Reference Re Alberta Statutes [1938] SCR 100. 353 ibid 132–35 (Duff CJ for Davis J). 354 These include Switzman v Eibling [1957] SCR 285, 326–28 (Abbott J); Saumur v City of Québec [1953] 2 SCR 299, 329–31 (Rand J); Roncarelli v Duplessis, above n 98, 140–41 (Rand and Judson JJ). 355 Roncarelli v Duplessis, above n 98, 140. 350

Canada’s Human Rights Framework 105 inherent in the Constitution Act 1867. In obiter in Fraser v Public Service Staff Relations Board, Dickson CJ stated: ‘“freedom of speech” is a deep‑rooted value in our democratic system of government. It is a principle of our common law constitution, inherited from the United Kingdom by virtue of the preamble to the Constitution Act, 1867’.356 This statement, along with those of the other judges who had supported an implied bill of rights throughout Canada’s history were cited as statements of principle by a unanimous Court in RWDSU v Dolphin Delivery,357 again in obiter, and by a majority of justices in Ontario (Attorney General) v OPSEU.358 The OPSEU case concerned legislation which prevented public servants in Ontario from engaging in certain political activities. The majority accepted the implied right to freedom of speech articulated in Fraser, but refused to engage in ‘balancing conflicting values’ in this case, stating that in distribution of powers cases: ‘once it is demonstrated that the enacting legislature is competent, the balancing of conflicting values depends on the political judgment of such legislature and cannot be reviewed by the courts without their passing upon the wisdom of the legislation’.359 Beetz J indicated that the Court would only engage in the balancing process in instances involving either Charter claims or in the administrative law context as in Fraser.360 With the introduction of the Charter, and its express protection of the right to free speech in section 2, debates over whether the same right was also implied by the earlier constitutional documents appear to be largely of academic interest. However, Mullan argued that two Supreme Court decisions in the late 1990s which found four unwritten ‘organising principles’ underpinning Canada’s Constitution may give rise to a renewed and expanded role for the implied bill of rights.361 As noted above, the Supreme Court in the Provincial Judges Reference362 and Secession Reference363 cases referred to the implied bill of rights authority to find that Canada’s Constitution is underpinned by four unwritten principles: federalism; democracy; constitutionalism and the rule of law; and the protection of minorities. Mullan argued that ‘under this broader conception, the concept of democracy includes the implied bill of rights’, and argues that the unwritten principles may give rise to substantive limitations on Canadian Parliaments which go beyond the Charter.364 As discussed above, in relation to the rule of law specifically, the Supreme Court has indicated in subsequent cases that the organising principles are unlikely to be read in a way which limits the power of legislatures. Therefore, it may be that the most significant implications of the unwritten principles are for administrative law: in placing implied limits on the discretions conferred on administrative decision-makers.

356

Fraser v Public Service Staff Relations Board [1985] 2 SCR 455, 462–63 [20] (Fraser). RWDSU v Dolphin Delivery [1986] 2 SCR 573, 584 [15]. 358 Ontario (Attorney General) v OPSEU [1987] 2 SCR 2, 14 [40] (Dickson CJ), 57 [151] (Beetz, McIntyre, LeDain and La Forest JJ) (OPSEU). 359 ibid 56 [148]. 360 ibid. 361 Mullan, Administrative Law, above n 48, 31–32. 362 Provincial Judges Reference, above n 27, 63–78 [82]–[109] (Lamer CJ, L’Heureaux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ). 363 Secession Reference, above n 27. 364 Mullan, Administrative Law, above n 48, 32. 357

106 The Framework for Judicial Review of Administrative Action in Canada To date there has only been one clear example of an organising principle being used to limit administrative discretion—the decision of the Ontario Court of Appeal in Lalonde v Ontario (Commission de Restructuration de Services de Santé).365 The case involved a challenge to an order by the Ontario Health Services Restructuring Commission to reduce the services available at the Hôpital Montfort, a community hospital serving the francophone community in Eastern Ontario. The decision did not engage any of the explicit provisions protecting French language rights found in either the Constitution Act 1867 or the Charter.366 However, the decision was found to be unlawful on the basis that contrary to the constitutional principle of respect for and protection of minorities, in the exercise of its discretion, the Commission failed to give serious weight and consideration to the linguistic and cultural significance of Montfort to the survival of the Franco-Ontarian minority.367

The Ontario Court of Appeal found that the organising principles articulated in the Secession Reference ‘do have normative force’.368 In addition, the Court relied on the comment of L’Heureux-Dubé J in Baker that discretion is limited by the ‘fundamental values of Canadian society’,369 and Mullan’s subsequent interpretation of that statement to hold that ‘[u]nwritten constitutional norms may, in certain circumstances, provide a basis for judicial review of discretionary decisions’.370 The Court concluded that the ‘bedrock’ constitutional principle of protection of minorities, informed the interpretation of legislation defining the powers of the Ontario Health Services Restructuring Commission.371 The Supreme Court of Canada has not yet had the opportunity to elaborate on the impact of the unwritten constitutional principles for administrative decision-makers, nor consider the correctness of Lalonde. This issue is considered further in chapter five. VI. CONCLUSIONS

In outlining the constitutional and statutory frameworks underpinning judicial review in Australia and Canada respectively, chapters two and three have drawn out a number of similarities between Australia and Canada. Of particular importance to judicial review of administrative action is the fact that both countries have written constitutional documents, necessarily supplemented by unwritten constitutional conventions, which entrench the role of a supreme (within constitutional limits) parliament. The constitutions of both countries have thus been described as a hybrid

365 Lalonde v Ontario (Commission de Restructuration de Services de Santé) (2001) 208 DLR (4th) 577 (Lalonde). 366 ibid 615–23 [77]–[102]. 367 ibid 646 [187]. 368 ibid 627 [116]. 369 Baker, above n 103, 855 [56]. 370 Lalonde, above n 365, 642–43 [176]. 371 ibid 630 [125].

Conclusions 107 between the UK and US models of government, resulting in a tension between the doctrines of parliamentary sovereignty and constitutionalism. The superior federal courts in Canada and Australia have each concluded that their written constitutions necessitate a role for superior courts in policing the limits of constitutional power, following the US precedent of Marbury v Madison,372 resulting in some constitutional entrenchment of judicial review of administrative action. Both countries have also made some efforts to simplify the procedures, remedies and grounds of judicial review in statutory form—though to varying degrees. And both have experienced very similar issues with these statutes. Australia’s ADJR Act however, goes into significantly more detail in setting out the grounds on which judicial review may be sought, compared with any of Canada’s judicial review statutes. The chapters also highlight some key differences between the frameworks for judicial review of administrative action in each country. Australia’s Constitution contains express provisions guaranteeing the supervisory jurisdiction of its High Court over administrative action and aspects of its original and appellate jurisdiction, while the Canadian Constitution does not. Nor does the Canadian Constitution include a strict separation of judicial power, while Australia’s does. Nevertheless, the Canadian Supreme Court has found that the judicature provisions of the Constitution Act 1867 entrench the ‘core’ jurisdiction of superior courts, including the Supreme Court, which includes the jurisdiction to review administrative decisions for jurisdictional error and error of law. The Canadian approach to privative clauses is also reflective of the conflict inherent in its constitutional structure between parliamentary supremacy and constitutionalism. Canadian courts have resolved this tension in a different way from Australian courts, by borrowing more from the US, specifically by incorporating a version of deference into their approach. Yet, as will become apparent in later chapters, despite the different methodologies used to resolve the tension between parliamentary sovereignty and constitutionalism in each country, there are some significant similarities between the role played by the modern Australian principle of ‘jurisdictional error’ and Canada’s standard of review analysis. The two concepts have a common origin, take divergent methodological paths, but ultimately serve the same purpose and frequently reach the same conclusion. Both have also proven (equally) challenging in attempts to draw out concrete boundaries and principles. One of the most significant differences between the constitutional frameworks underpinning administrative law in Canada and Australia, however, is Canada’s extensive human rights framework. Australia’s human rights framework at the federal level is best described as ‘ad hoc’ and limited. The Commonwealth Parliament has deliberately and expressly sought to restrict the role of human rights in administrative decision-making, and instead views the protection of human rights as solely within the purview of the legislative branch, with limited oversight or enforcement. By contrast, Canada’s human rights framework is extensive and places responsibility

372

Marbury v Madison, above n 49.

108 The Framework for Judicial Review of Administrative Action in Canada for upholding rights in the hands of all three branches of government. The courts are capable of supervising the actions of the other branches and remedying breaches of rights. Yet the other branches retain responsibility via the override clause, which ultimately protects the sovereignty of Canadian parliaments; and via the retention of administrative discretion to reasonably limit rights, following Doré. The effect of these contrasting approaches to human rights on the common law principles of judicial review of administrative action are assessed in the remainder of this book.

Part II

The Effects of Canada’s Rights Framework on Judicial Review

110

4 Procedural Fairness

I

F ‘THE HISTORY of liberty has largely been the history of the observance of procedural safeguards’,1 one might expect to observe some of the most significant effects of Canada’s human rights framework in the principles of natural justice or procedural fairness. Yet, this chapter shows that the various rights to fairness in Canadian law do not seem to have dramatically affected either the development or use of the common law rules of procedural fairness. Rather, the effects have largely flowed the other way: it is the common law that has shaped the content of rights to fairness. There are a few exceptions—areas where the entrenchment of rights does seem to have resulted in differences between the jurisdictions. There are also other differences between Australian and Canadian law which are probably not attributable to the entrenched protection of rights to fairness in the latter, or its absence in the former. But, on the whole, the differences are fairly minor, at least from the practical perspective of the scope and content of the common law and the relationship between courts and administrative decision-makers. This chapter examines the effect of express protection of rights to fairness in administrative proceedings on the development of the common law principles of procedural fairness by asking five interrelated questions. First, have fairness rights affected the scope of common law procedural fairness? Second, have fairness rights affected the content of common law procedural fairness? Third, have fairness rights resulted in a shift in the normative rationale for procedural fairness, to one that is more concerned with the rights of individuals? Fourth, are aggrieved persons more likely to rely on an express right to fairness where one is available, rather than the common law, perhaps leading to ossification in the common law? Finally, does express constitutional protection of a right to fairness in administrative proceedings affect the ease with which parliaments can remove or alter common law fairness principles? The first four of these questions reflect the main suggestions that have been made by courts and commentators regarding the interaction between fairness rights and the common law in the UK, following a series of recent UK decisions which touch on the topic.2 The fifth is prompted by recent developments in Australian law

1

McNabb v United States 318 US 332 (1943) (Frankfurter J). R (Osborn) v Parole Board [2014] AC 1115, 1145–48 [54]–[63] (Osborn); A v British Broadcasting Corporation [2015] AC 588, 609–10 [55]–[57]; R (Bourgass) v Secretary of State for Justice [2016] AC 384, 421–22 [96]–[98], 427 [123]; M Elliott, ‘Beyond the European Convention: Human Rights and the Common Law’ (2015) 68 Current Legal Problems 85; R Masterman and S Wheatle, ‘A Common Law Resurgence in Rights Protection?’ [2015] European Human Rights Law Review 57; B Hale, ‘UK Constitutionalism on the March?’ (Constitutional and Administrative Law Bar Association conference, Oxford, 2

112 Procedural Fairness which have resulted in it becoming increasingly difficult for parliaments to oust the common law principles of procedural fairness. There has been no discussion of these issues in Canada or in those Australian jurisdictions with a charter of rights. Each of these questions is examined in turn in sections II to VI of this chapter, after a brief outline of rights to fairness in section I. Two initial points must be made about the terminology used in this chapter. The first is that the terms ‘procedural fairness’ and ‘natural justice’ are used interchangeably, as they now are in both Canada and Australia; though I note that there is not universal agreement on whether they should be.3 The second is that procedural fairness obligations imposed by courts, and not expressly sourced in statute, are referred to in shorthand as ‘common law’ principles, though it is important to note that the source of fairness duties is a contested issue. The reference is for simplicity, as a means of distinguishing judicially imposed obligations from those imposed expressly by legislation or in constitutional documents. It is not intended to define or limit the source of the obligations, or ignore the argument that they have some ‘fundamental’ or ‘quasi-constitutional’ status. These issues are discussed further below. I. OVERVIEW OF RIGHTS TO FAIRNESS

A. Rights to Fairness: Canada i. Charter Each of Canada’s federal human rights documents protects the right to ‘fundamental justice’ with respect to various administrative decisions. The Charter, in section 7, entrenches a right to fundamental justice for those affected by a fairly limited range of decisions, providing that: ‘Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice’. The scope of section 7 is narrower than the common law right to procedural fairness. Section 7 protects only decisions that affect natural persons, as corporations and groups do not have ‘life, liberty or security of the person’,4 while at common law, unions and companies are entitled to procedural fairness where a decision affects their interests.5 In addition, the Charter generally

12 July 2014); R Clayton, ‘The Empire Strikes Back: Common Law Rights and the Human Rights Act’ [2015] Public Law 3; P Murray, ‘Procedural Fairness, Human Rights and the Parole Board’ (2014) 73 Cambridge Law Journal 5. 3 See, eg, A Robertson, ‘Natural Justice or Procedural Fairness’ (2016) 23 Australian Journal of Administrative Law 155. 4 Irwin Toy Ltd v Québec (Attorney General) [1989] 1 SCR 927, 1004 [96] (Dickson CJ, Lamer and Wilson JJ). Though corporations can challenge the constitutional validity of legislation under which they have been charged: R v Wholesale Travel Group Inc [1991] 3 SCR 154; Canadian Egg Marketing Agency v Richardson [1998] 3 SCR 157. 5 See, eg, Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities) [1992] 1 SCR 623; Mount Sinai Hospital Center v Québec (Minister of Health and Social Services) [2001] 2 SCR 281 (Mount Sinai); Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour) [2003] 1 SCR 539.

Overview of Rights to Fairness 113 applies to a narrower range of bodies than judicial review—only those that meet the ‘control’ test described in chapter three. Furthermore, in order to attract the protection of section 7 of the Charter, a decision needs to have particularly serious consequences—it must affect a person’s ‘life, liberty or security of the person’. A law or government action will affect a person’s ‘life’ when it ‘imposes an increased risk of death on a person, either directly or indirectly’.6 Few administrative decisions will have such an effect. In Singh v Minister of Employment and Immigration, discussed in chapter three, those three members of the Court who relied on the Charter were not convinced that a decision by Canada to return a refugee to their country of origin would, ‘per se deprive a Convention refugee of the right to life or liberty. It may result in his being deprived of life or liberty by others, but it is not certain that this will happen’.7 This suggests that there needs to be a fairly close nexus between the actions of a Canadian government and the effect of impairing, limiting, or depriving a person of their life for the purposes of section 7. However, Wilson J, Dickson CJ and Lamer J went on to hold that the decision in Singh did impair a refugee’s ‘security of the person’, which is broad enough to encompass threats to life and liberty by foreign governments.8 An administrative decision will affect a person’s liberty where it results in penal sanctions or can otherwise lead to a person being physically confined.9 Thus, section 7 applies to prison disciplinary and parole decisions10 and to decisions to compulsorily hospitalise individuals on mental health grounds.11 However, a decision may also affect a person’s liberty in situations ‘where state compulsions or prohibitions affect important and fundamental life choices’.12 Legislative provisions which have been found to impinge on ‘liberty’ include those which: compel a person to give evidence;13 prohibit people from being in certain public places;14 and choose where they live.15 Presumably administrative decisions with these, or similar effects, would need to be made in accordance with the ‘principles of fundamental justice’. In Blencoe v British Columbia (Human Rights Commission)16 the Supreme Court was asked whether a substantial delay by the British Columbia Human Rights Commission in hearing sexual harassment complaints against a minister, which resulted

6 Carter v Canada (Attorney General) [2015] 1 SCR 331, 367 [62]. See generally, P Hogg, Constitutional Law of Canada, vol 2, 5th edn (Toronto, Carswell, 2010) 47-6–47-7. 7 Singh v Minister of Employment and Immigration [1985] 1 SCR 177, 206 (Wilson J, Dickson CJ and Lamer J) (Singh). 8 ibid 207–08. 9 See, eg, R v Jarvis [2002] 3 SCR 757, 794–95 [66]–[68]. 10 Howard v Stony Mountain Institution [1984] 2 FC 642; Gough v Canada (National Parole Board) [1991] 1 FC 160. 11 See New Brunswick (Minister of Health and Community Services) v G (J) [1999] 3 SCR 46, 79 [65] (Lamer CJ, Gonthier, Cory, McLachlin, Major and Binnie JJ). 12 Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307, 340 [49] (Bastarache J, McLachlin CJ, L’Heureux-Dubé, Gonthier and Major JJ) (Blencoe). 13 Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) [1990] 1 SCR 425. 14 R v Heywood [1994] 3 SCR 761. 15 Godbout v Longueuil (City) [1997] 3 SCR 844. 16 Blencoe, above n 12.

114 Procedural Fairness in ongoing damage to the Minister’s reputation, employment prospects and mental health, impinged on the Minister’s ‘liberty’ and ‘security of the person’. The majority found that it did not. With respect to liberty, the majority preferred a fairly cautious, narrow approach, stating: Although an individual has the right to make fundamental personal choices free from state interference, such personal autonomy is not synonymous with unconstrained freedom. In the circumstances of this case, the state has not prevented the respondent from making any ‘fundamental personal choices’. The interests sought to be protected in this case do not in my opinion fall within the ‘liberty’ interest protected by section 7.17

‘Security of the person’ includes both physical and psychological integrity. Legislative provisions that criminalised abortion and physician-assisted dying have been found to interfere with the security of the person.18 Those criminalising prostitution have not;19 however where prostitution is legal, legislative provisions which have the effect of preventing sex workers from taking measures to protect themselves—such as laws criminalising the establishment of brothels (and so forcing sex workers to either work from the streets or make ‘out calls’ only)—have been found to infringe the right to security of the person.20 In New Brunswick (Minister of Health and Community Services) v G (J)21 the Supreme Court found that a decision to remove a child from the custody of their parent affected the parent’s right to ‘security of the person’, and so was required to be made in accordance with the principles of fundamental justice. In reaching that conclusion, Lamer CJ for the majority reiterated that section 7 only applies to ‘serious, state-imposed psychological stress’ and stated that: ‘For a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person’s psychological integrity’.22 The Supreme Court has also found that section 7 of the Charter does not impose ‘a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person’ but only restricts the state’s ‘ability to deprive people of these’, and as such section 7 does not encompass economic rights.23 However, LeBel J noted in Blencoe: We must remember though that s 7 expresses some of the basic values of the Charter … its importance is such for the definition of substantive and procedural guarantees in Canadian law that it would be dangerous to freeze the development of this part of the law. The full impact of s 7 will remain difficult to foresee and assess for a long while yet. Our Court should be alive to the need to safeguard a degree of flexibility in the interpretation and evolution of s 7 of the Charter.24

17

ibid 343 [52]. R v Morgentaler [1988] 1 SCR 30; Carter v Canada, above n 6. 19 Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519; Reference re ss 193 and 195.1(1)(c) of the Criminal Code (Man) [1990] 1 SCR 1123. 20 Canada (Attorney General) v Bedford [2013] 3 SCR 1101. 21 In New Brunswick v G (J), above n 11. 22 ibid [60] (Lamer CJ, Gonthier, Cory, McLachlin, Major and Binnie JJ). 23 Gosselin v Québec (Attorney General) [2002] 4 SCR 429, 491 [80]–[81] (McLachlin CJ, Gonthier, Iacobucci, Major and Binnie JJ). 24 Blencoe, above n 12, 406 [188] (LeBel, Iacobucci, Binnie and Arbour JJ). 18

Overview of Rights to Fairness 115 Carter v Canada (Attorney General)25 demonstrates how section 7 can evolve. In that case, the Supreme Court held that laws prohibiting physician-assisted dying unjustifiably infringed on section 7, overturning a decision from 22 years earlier in which it had held the opposite.26 The Court justified the departure from precedent on the basis that there is now ‘a different legal conception of section 7 than that prevailing when Rodriguez was decided. In particular, the law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez’.27 Flexible as it is, however, the range of administrative decisions that will attract the right to fundamental justice under section 7 of the Charter remains more limited than those that attract common law procedural rights. The other provision of the Charter that has become relevant for administrative tribunals in recent years is section 11(d), which provides that: ‘Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal’. Section 11(d) obviously applies to criminal proceedings and its direct relevance to administrative decision-making is minimal. However, section 11(d) has had some effect on the issue of tribunal independence, which is considered in section III.F of this chapter. ii. Canadian Bill of Rights, Sections 1(a) and 2(e) The Canadian Bill of Rights which, as discussed in chapter three, has the status of superior legislation, also protects the right to fundamental justice in two sections: sections 1(a) and 2(e). Each appears to protect procedural rights in a broader range of decisions than section 7 of the Charter. The first, section 1(a), is almost identical to section 7 of the Charter, but adds the ‘enjoyment of property’ to the list of rights which cannot be removed other than by ‘due process of law’. The second, section 2(e), provides that ‘no law of Canada shall be construed or applied so as to deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations’. Both provisions were interpreted strictly by Canadian courts in the early years of their operation and the legislation had little impact.28 However, the Bill of Rights has, somewhat ironically, ‘come into its own as a source of procedural protections’ since the Charter was enacted.29 The provisions now appear to be broader than section 7 in at least four respects: the range of entities that owe the procedural protections; the range of entities to whom the protections are owed; the extension of due process rights to decisions affecting the enjoyment of property under section 1(a) of the Bill of Rights; and the range of decisions required to be made in accordance with the rules of fundamental justice under section 2(e) of the Bill of Rights.

25

Carter v Canada, above n 6. Rodriguez v Canada, above n 19. 27 Carter v Canada, above n 6, 362 [46]. 28 See D Mullan, Administrative Law (Toronto, Irwin Law, 2001) 208. 29 G Van Harten et al, Administrative Law: Cases, Text, and Materials, 7th edn (Toronto, Emond Montgomery, 2015) 176. 26

116 Procedural Fairness First, the Bill of Rights only applies to federal laws and government Acts; however within the federal sphere it applies to a greater range of entities than the Charter. Unlike the Charter, the Bill of Rights is not expressly limited to the actions of ‘governments’,30 but instead applies to the interpretation of all federal legislation and to decisions made thereunder. Therefore, its scope is probably more similar to that of administrative law with respect to private companies that exercise functions that might be characterised as ‘public’.31 Second, while section 7 of the Charter applies only to administrative decisions that affect individuals, not companies or other entities, there is some lower court authority suggesting that section 2(e) of the Bill of Rights can apply to corporations.32 Section 1(a) of the Bill of Rights applies only to individuals.33 Third, section 1(a) of the Bill of Rights expressly requires that an individual not be deprived of property other than in accordance with due process. Despite the potential of section 1(a) to extend the right to due process beyond situations where a person’s ‘life, liberty or security of the person’ is affected, the provision has not been widely used. It was raised unsuccessfully in Authorson v Canada (Attorney General),34 which involved a challenge to the validity of a legislative provision which denied veterans interest on pension funds held and administered by the government. It was argued that section 1(a): required that veterans be given a hearing prior to the enactment of expropriative legislation; or required that a veteran be heard before the statute was applied to their individual circumstances; or provided substantive protection again the government expropriating the veterans’ property without compensation. All three arguments failed. The Court held that section 1(a) only protected procedural rights where property rights would be affected via an individualised, adjudicative setting.35 Finally, the term ‘rights and obligations’ in section 2(e) of the Bill of Rights was initially interpreted restrictively, as limited to decisions that remove strict legal rights, but the terms are now interpreted more broadly. In Singh three members of the Court were unwilling to find that a decision to reject a claim for asylum affected the asylum seeker’s ‘life, liberty or security of the person’ under section 7, but held that the decision did impinge on the applicant’s ‘rights and obligations’ and was thus required to be made in accordance with the principles of fundamental justice pursuant to section 2(e).36 Section 2(e) has subsequently been found to apply to a range of decisions that would almost certainly not be protected by section 7 of the Charter, including the investigation of complaints under human rights legislation.37

30 See also J Boughey and G Weeks, ‘“Officers of the Commonwealth” in the Private Sector: Can the High Court Review Outsourced Exercises of Power?’ (2013) 36 University of New South Wales Law Journal 316, 339–53. 31 See the discussion in ch 3 V.B.i of the extent to which the common law and Charter extend to private entities. 32 See, eg, Air Canada v Canada (Procureure general) (2003) 222 DLR (4th) 385. 33 Canada (Attorney General) v Central Cartage Co (No 1) [1990] 2 FC 641. 34 Authorson v Canada (Attorney General) [2003] 2 SCR 40. 35 ibid, 54–56 [41], [46]. 36 Singh, above n 7 (Beetz, Estey and McIntyre JJ). 37 Bell Canada v Canada (Human Rights Commission) [2001] 3 FCR 481.

The Scope of the Common Law Duty to Afford Procedural Fairness 117 B. Rights to Fairness: Australia The Victorian and ACT human rights statutes each include a fair hearing among their list of protected rights. Section 21 of the Human Rights Act 2004 (ACT) (ACT Charter) provides: ‘Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing’. Section 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter) provides: ‘A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing’. Neither provision has been the subject of much judicial attention in the administrative law context. The wording of the ACT Charter makes it reasonably clear that it applies to at least some administrative decisions—those which decide a person’s legal ‘rights and obligations’—and this is how section 21 has been interpreted.38 Although there was no express discussion of the issue in the explanatory material, the language of section 24 of the Victorian Charter suggests it may be narrower: it is not usual to describe a person involved in an administrative process as a ‘party’ to a civil proceeding.39 Nevertheless Bell J, the former President of the Victorian Civil and Administrative Tribunal (VCAT), expressed the view in a number of VCAT and Supreme Court judgments that section 24 should be given a broad application and that administrative decisions are capable of being included within the definition of ‘civil proceedings’.40 II. THE SCOPE OF THE COMMON LAW DUTY TO AFFORD PROCEDURAL FAIRNESS

Natural justice developed as a principle of broad application in English law.41 Its scope was narrowed significantly for much of the twentieth century by the requirement that courts classify government functions as either ‘judicial’ (and later ‘quasijudicial’) or ‘administrative’ in order to determine whether a decision-maker was required to act judicially or fairly.42 Under this classification approach, the procedural obligations of decision-makers were ‘all or nothing’: the full gamut of court-like procedures applied to decision-makers exercising ‘quasi-judicial’ powers; but decisionmakers exercising ‘administrative’ powers were under no obligation to ensure that

38 Capital Property Developments (ACT) Pty Ltd v ACT Planning and Land Authority (2008) 2 ACTLR 44, 54 [37]–[41]. 39 A Pound and K Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Sydney, Lawbook Co, 2008) 167–68. 40 Kracke v Mental Health Review Board (2009) 29 VAR 1, 93 [406]–[409] (Kracke); Secretary, Department of Human Services v Sanding [2011] VSC 42 (22 February 2011) [168]–[177]. 41 R French, ‘Procedural Fairness—Indispensable to Justice?’ (Sir Anthony Mason Lecture, University of Melbourne, 7 October 2010). 42 See: W Wade and C Forsyth, Administrative Law, 10th edn (Oxford, Oxford University Press, 2009) 408–12; C Harlow and R Rawlings, Law and Administration, 3rd edn (Cambridge, Cambridge University Press, 2009) 622; T Endicott, Administrative Law, 2nd edn (Oxford, Oxford University Press, 2011) 117–20.

118 Procedural Fairness they arrived at a decision by way of fair procedures. This formalist categorisation of government functions become notoriously difficult to apply with any consistency or clear principle and resulted in a great many individuals being arbitrarily denied fairness in decision-making that had a substantial effect on their livelihood.43 Thus, in a series of cases between 1963 and 1970,44 the English courts abandoned classification and returned to a position where it was a rule ‘of universal application’45 applying to all administrative acts and decisions affecting rights.46 Now in the UK, the requirements of efficiency and flexibility in administrative d ecision-making are achieved through natural justice being flexible in its content rather than via rigid rules surrounding its application.47 Despite some initial resistance in both jurisdictions,48 Australia and Canada eventually followed the UK in adopting a broad and flexible approach to procedural fairness. In Canada, the modern approach began in Nicholson v Haldimand-Norfolk (Regional) Police Commissioners49 which, like the House of Lords case of Ridge v Baldwin, concerned a decision to dismiss a police officer without notice. The statute under which Nicholson was dismissed provided that police officers could not be dismissed without the opportunity to be heard, but provided no such express right for probationary constables.50 Nicholson was a probationary constable. Although the Board of Commissioners’ decision was clearly not ‘quasi-judicial’, the majority of the Supreme Court of Canada considered the UK developments and found that the Board nevertheless owed a duty of fairness to probationary constables.51 However, Canadian courts approached the expansion of natural justice with caution in early cases and did not go as far as Lord Reid in suggesting that natural justice was a rule of universal application. In Nicholson, Laskin CJ did not even go so far as to abandon the classification approach. Instead, the majority found that the duty of fairness that applied to administrative decisions was a separate, though related, principle from natural justice, which required ‘something less’ in terms of procedural protections.52 In other words, the all-or-nothing approach to procedural protections was broken down, but the quasi-judicial/administrative distinction remained for several years.53 43 Harlow and Rawlings, above n 42, 622. The extent to which classification limited the scope of natural justice was not as great in Australia or Canada as it was in England: Wade and Forsyth, above n 42, 412. 44 Most notably: Ridge v Baldwin [1964] AC 40; In re HK (an Infant) [1967] 2 QB 617; R v Gaming Board, Ex parte Benaim and Khaida [1970] 2 QB 175. 45 Ridge v Baldwin, above n 44, 69 (Lord Reid). 46 Wade and Forsyth, above n 42, 418. 47 ibid 418–21; Harlow and Rawlings, above n 42, 624–30. 48 See, eg, M Loughlin, ‘Procedural Fairness: A Study of the Crisis in Administrative Law Theory’ (1978) 28 University of Toronto Law Journal 215; RA Macdonald, ‘Judicial Review and Procedural Fairness in Administrative Law: 1’ (1980) 25 McGill Law Journal 520. 49 Nicholson v Haldimand-Norfolk (Regional) Police Commissioners [1979] 1 SCR 311 (Nicholson). 50 ibid 315, citing the Police Act, RSO 1970, c 351, Reg 680, s 27(b). 51 ibid 325 (Laskin CJ, Ritchie, Spence, Dickson and Estey JJ). 52 ibid 324–25. 53 See, eg, Re Webb and Ontario Housing Corporation (1978) 93 DLR (3d) 187; McCarthy v Calgary Roman Catholic Separate School District No 1 [1979] 4 WWR 725 (affirmed (1979) 145 DLR (3d) 765); Martineau v Matsqui Institution (No 2) [1980] 1 SCR 602, 634 (Pigeon, Martland, Ritchie, Beetz, Estey and Pratte J). The quasi-judicial/administrative distinction remained in the Federal Courts Act, RSC 1985, c F-7 (formerly Federal Court Act, SC 1970, c 1) until 1992.

The Scope of the Common Law Duty to Afford Procedural Fairness 119 The distinctions between quasi-judicial and administrative decisions and between natural justice and procedural fairness have now both been abandoned by Canadian courts.54 The question that Canadian courts now focus on is whether the procedures adopted were fair in the circumstances, rather than whether the decision was quasijudicial or administrative.55 After Nicholson, Canadian courts struggled with the question of whether the duty of fairness applied irrespective of the nature of an individual’s interest in a decision. Early cases distinguished between decisions that affected an existing right or benefit (such as a decision to suspend or cancel a benefit) and those to grant an application for a new right or benefit.56 In a 1985 decision, it was accepted that the duty applies wherever an administrative decision ‘is not of a legislative nature and … affects the rights, privileges or interests of an individual’.57 Whether the Supreme Court intended the phrase ‘rights, privileges or interests’ to constitute a threshold test, or simply to indicate that fairness was no longer limited to decisions affecting legal rights, is unclear.58 However, the question is no longer of much importance, given the expansive way in which the terms are now interpreted: There is little dispute about the meaning of these terms because they are not meant to limit the availability of fairness protection … Taken as a whole the concepts of rights, privileges and interests are sufficiently broad in scope to cover most decisions made by public authorities that affect or have the potential to affect an individual in important ways, even in the absence of any sort of substantive entitlement.59

It is clear that in Canada procedural fairness now extends to all decisions by public authorities affecting individuals that are not of a ‘legislative and general’ nature,60 except in a limited range of circumstances in which a hearing would be inappropriate or unnecessary (for example, emergencies).61 Australia’s modern approach to natural justice is generally traced to Kioa v West,62 though the High Court’s break from the classification approach, to the extent that the approach was ever authoritative in Australian law, began earlier.63 However, 54

Except in relation to the scope of Ontario’s Statutory Powers Procedure Act, RSO 1990, c S 22. Syndicat des employés de production du Québec et de l’Acadie v Canada (Canadian Human Rights Commission) [1989] 2 SCR 879, 895–96 (Sopinka, Lamer and La Forest JJ); Knight v Indian Head School Division No 19 [1990] 1 SCR 653, 669–70 (L’Heureux-Dubé J, Dickson CJ, La Forest and Cory JJ) (Knight). 56 See: Re Webb and Ontario Housing Corporation, above n 53, 195 [21]; Desjardins v Bouchard [1983] 2 FC 641; Hutfield v Board of Fort Saskatchewan General Hospital District No 98 (1986) 24 Admin LR 250. 57 Cardinal v Director of Kent Institution [1985] 2 SCR 643, 653. 58 Van Harten et al, above n 29, 135–36. 59 G Huscroft, ‘From Natural Justice to Fairness: Thresholds, Content, and the Role of Judicial Review’ in CM Flood and L Sossin (eds), Administrative Law in Context, 2nd edn (Toronto, Emond Montgomery, 2012) 153–54. 60 Knight, above n 55, 670 [26] (L’Heureux-Dubé J, Dickson CJ, La Forest and Cory JJ). See generally, G Cartier ‘Procedural Fairness in Legislative Functions: The End of Judicial Abstinence?’ (2003) 53 University of Toronto Law Journal 217, 231–34. 61 See R v Randolph [1966] SCR 260; Cardinal v Kent Institution, above n 57, 655 [16]. 62 Kioa v West (1985) 159 CLR 550 (Kioa). 63 See, eg, Twist v Randwick Municipal Council (1976) 136 CLR 106, 109–10 (Berwick CJ); Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, 498–99 (Aickin J); FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 390 (Wilson J). Holloway argues that the High Court of Australia 55

120 Procedural Fairness these earlier authorities only extended the rules of natural justice to administrative decisions which affected legal rights. It was not until Kioa that a majority of the High Court found that procedural fairness extended not only to decisions affecting legal rights, but also to those affecting an individual’s ‘interests’ or ‘legitimate expectations’. Kioa involved decisions by a delegate of the Minister for Immigration and Ethnic Affairs to refuse Mr Kioa’s application for a visa to remain in Australia, and to deport him, his wife and daughter.64 In deciding that Kioa had been denied natural justice, Mason J remarked: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn LC understood that this was the law when he spoke of the obligation to ‘fairly listen to both sides’ being ‘a duty lying upon everyone who decides anything’.65

The High Court’s decision in Kioa was particularly noteworthy given that it was made less than a decade after two decisions concerning the same statutory powers— the Minister’s power to deport prohibited immigrants under section 18 of the Migration Act 1958 (Cth)—in which the Court had reached the opposite conclusion about whether the decision was required to be made in a procedurally fair way.66 The majority justices all considered that the intervening enactment of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), and particularly its imposition of a statutory duty on administrative decision-makers to provide reasons, had altered the position.67 However, given that the majority also found the ADJR Act’s natural justice provisions to have simply codified the common law,68 it is difficult to see how the imposition of a statutory right to reasons had the effect of extending the scope of natural justice at common law to ministerial power. Unlike in Canada, Australian courts were never under the impression that natural justice and procedural fairness were fundamentally different concepts. This may be a result of the later expansion of the concept in Australia, as by the time Kioa was decided the UK courts had abandoned that suggestion.69 In Kioa, most of the judges used the terms interchangeably and Mason J made it clear that the concepts were

was never as definitive in its endorsement of classification: I Holloway: Natural Justice and the High Court of Australia: A Study in Common Law Constitutionalism (Aldershot, Ashgate, 2002) ch 3. 64 The Kioas had two daughters, but one was born in Australia and was therefore an Australian citizen according to the law at the time. 65 Kioa, above n 62, 584 citing Board of Education v Rice (1911) AC 179, 182. 66 Salemi v MacKellar (No 2) (1977) 137 CLR 396; R v MacKellar; Ex parte Ratu (1977) 137 CLR 461. 67 Kioa, above n 62, 578–79 (Mason J), 596–97, 600 (Wilson J), 625–26 (Brennan J), 630–31 (Deane J). 68 ibid 576–77 (Mason J), 594–95 (Wilson J), 625 (Brennan J) (Deane J agreed with the comments of Mason J and Wilson J: 630–31). 69 See, eg, Wiseman v Borneman [1971] AC 297, 308 (Lord Reid), 309 (Lord Morris), 320 (Lord Wilberforce); Bushell v Secretary of State for the Environment [1981] AC 75.

The Scope of the Common Law Duty to Afford Procedural Fairness 121 essentially the same as they relate to administrative decision-makers, though noted a preference for the term ‘procedural fairness’.70 It was clear from the various judgments in Kioa that the ‘rights, interests and legitimate expectations’ formulation was intended to expand the scope of procedural fairness rather than limit it. For instance, Mason J noted in his judgment that: The reference to ‘right or interest’ in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests … The reference to ‘legitimate expectation’ makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice.71

Brennan J went even further, rejecting the need to label the ‘almost infinite variety of interests which are protected by the principles of natural justice’, and particularly to the category of legitimate expectations.72 His Honour stated: The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation. It is not the kind of individual interest but the manner in which it is apt to be affected that is important in determining whether the presumption is attracted.73

The breadth of both approaches left little doubt that procedural fairness applies both to decisions to alter or cancel an existing benefit and to decisions regarding an application for a new benefit, though this did not stop the Commonwealth government from raising the argument as recently as 2010 in Plaintiff M61/2010E v Commonwealth of Australia.74 The unanimous High Court made short shrift of the Commonwealth’s argument on this point, stating that the Commonwealth’s attempt to distinguish between application and deprivation decisions ‘proceeds from too narrow a conception of the circumstances in which an obligation to afford procedural fairness might arise’.75 In the years following Kioa, it was Mason J’s approach to the scope of procedural fairness that gained prominence. His Honour had made it clear in Kioa that the ‘rights, interests and legitimate expectations’ test placed real limits on the scope of natural justice, stating that: ‘[T]he duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and 70

Kioa, above n 62, 585. ibid 584–85. 72 ibid 617. 73 ibid 619. 74 Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 (Offshore Processing Case). See also, M Groves, ‘The Evolution and Entrenchment of Natural Justice’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Melbourne, Cambridge University Press, 2014) 223–24. 75 Offshore Processing Case, above n 74, 352 [75]. 71

122 Procedural Fairness expectations of the individual citizen in a direct and immediate way’.76 Thus, there were a number of cases where courts attempted to delineate between ‘rights’, ‘interests’ and ‘legitimate expectations’.77 However, over time, the scope of ‘interests’ has broadened substantially to the point where Aronson and Groves have suggested that it is probably on the verge of eclipsing any distinct role for ‘legitimate expectations’ as a separate category.78 Furthermore, as discussed in the next section, serious doubt has been cast on the concept of legitimate expectations over the past decade.79 Thus, it seems that Brennan J’s broader approach to interests, which rejected any role for the difficult legitimate expectations doctrine, now better reflects Australian law on the scope of natural justice. The majority of the High Court recently confirmed the breadth of ‘interests’ that will attract procedural fairness, rejecting an argument that an exceptional, discretionary power of the Minister to grant a visa to persons who did not meet the statutory criteria for a visa, did not affect the interests of visa applicants. Although the Court found that the Minister was under no obligation to consider exercising the power, the powers nevertheless affected the ‘interests’ of visa applicants.80 The majority relied on the statement of Brennan J in Kioa that: There are interests beyond legal rights that the legislature is presumed to intend to protect by the principles of natural justice. It is hardly to be thought that a modern legislature when it creates regimes for the regulation of social interests—licensing and permit systems, means of securing opportunities for acquiring legal rights, schemes for the provision of privileges and benefits at the discretion of Ministers or public officials—intends that the interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy should be accorded less protection than legal rights.81

The scope of procedural fairness in Australia is, therefore, now exceptionally broad: it applies to virtually any decision which affects a person individually. As in Canada, procedural fairness does not apply to decisions of a legislative character,82 and may also be excluded in emergencies and in situations where providing a hearing would defeat the purposes of the empowering statute.83

76

Kioa, above n 62, 584. See, eg, Haoucher v Minister for Immigration and Ethnic Affairs (1990) 160 CLR 648, 653 (Deane J); Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ). 78 M Aronson and M Groves, Judicial Review of Administrative Action, 5th edn (Sydney, Lawbook Co, 2013) 412. 79 See: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 20 [61]–[63], 27–28 [81]–[83] (McHugh and Gummow JJ), 36–38 [116]–[121] (Hayne J), 45–48 [140]–[148] (Callinan J) (Lam); Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 658 [65] (Gummow, Hayne, Crennan and Bell JJ) (Plaintiff S10). 80 Plaintiff S10, above n 79 657–59 [63]–[66] (Gummow, Hayne, Crennan and Bell JJ). 81 Kioa, above n 62, 616–17 cited in Plaintiff S10 (2012) 246 CLR 636, 658–59 [66] (Gummow, Hayne, Crennan and Bell JJ) (Plaintiff S10). 82 Salemi v Mackeller, above n 66, 452 (Jacobs J); Kioa v West, above n 62, 584 (Mason J), 619–21 (Brennan J), 632 (Deane J). For a recent discussion of this issue, see Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, 91–100 (Spigelman CJ). 83 See: Heatley v Tasmanian Racing and Gaming Commission, above n 63, 511 [33] (Aickin J); Marine Hull and Liability Insurance Pty Ltd v Hurford (1985) 10 FCR 234, 240–42 [15]–[20]; Johns v Australian Securities Commission (1993) 178 CLR 408, 431 (Brennan J); South Australia v Slipper (2004) 136 77

The Content of Fairness 123 Thus, despite a slightly tentative start to the expansion of natural justice in both Canada and Australia, it is clear that decision-makers in both countries now have a duty to afford fairness to any individual who is in any way directly affected by the decision being made. Despite the fact that Canadian law protects a right to fundamental justice in several circumstances, this does not seem to have had any effect on the scope of common law fairness protections—it has neither stifled the development of Canadian common law in this area, nor encouraged Canadian courts to extend fairness protection; though it is hard to imagine the scope of procedural fairness being any more expansive than it has become in either Canada or Australia. III. THE CONTENT OF FAIRNESS

This section analyses how rights to fairness have affected the content of procedural fairness at common law. Part A provides a comparative overview of content, arguing that, for the most part, what courts require of administrative decision-makers in terms of procedural fairness is the same in Canada and Australia. Courts in both countries insist that fairness is a flexible concept, the content of which depends on the circumstances, but generally requires an adequate opportunity to present one’s case and rebut adverse material. The highest courts in both Canada and Australia have also deviated from the UK in rejecting any scope for the protection of substantive fairness within the principles of procedural fairness or natural justice. This, and the reasons the courts have given for not extending the common law to offer substantive protection, is examined in part B. Parts C and D outline the content of rights to fairness in Canadian and Australian law respectively. Courts in Canada, Victoria and the ACT have all suggested that the rights to fairness protected by the respective rights instruments may extend beyond the common law so as to protect substantive fairness. However, in no jurisdiction have these suggestions moved beyond that to form any concrete principles or ways in which the rights go beyond the common law. At this point, the various rights to fairness appear to be virtually synonymous with the common law, with common law developments shaping rights, rather than the reverse. Parts E and F examine two areas in which Canadian and Australian common law diverge in relation to procedural fairness principles: the provision of reasons; and the content of the rule against bias. In both, Canadian law appears more ‘rights protective’ compared with Australian law. I analyse whether this is a result of, or influenced by, the presence of rights to fairness in Canada. A. The Content of Procedural Fairness at Common Law The central principle guiding the content of procedural fairness under the common law in both Australia and Canada is flexibility. The overarching question that courts FCR 259, 284–85 [113] (Finn J, with whom Branson and Finkelstein JJ agreed on this issue); CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514, 541–42 [51]–[53] (French CJ), 558–59 [115]–[119] (Hayne and Bell JJ), 606–08 [305]–[310] (Kiefel J), 621–23 [366]–[369] (Gageler J).

124 Procedural Fairness in both jurisdictions will ask is whether the procedures adopted by any given decision-maker were fair in all the circumstances.84 The leading case on the content of procedural fairness in Canada is Baker v Canada (Minister of Citizenship and Immigration),85 in which L’Heureux-Dubé J for the majority listed five criteria which courts would consider in determining the content of procedural fairness in any given case. These are: 1. ‘[T]he nature of the decision being made and the process followed in making it’, which brings back aspects of the quasi-judicial/administrative distinction. The Court stated that ‘[t]he more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness’.86 2. ‘[T]he nature of the statutory scheme and the “terms of the statute pursuant to which the body operates”’. For instance, more formal procedural protections may be required for decisions from which there is no appeal, and those that finally determine a particular issue.87 3. ‘[T]he importance of the decision to the individual or individuals affected’.88 4. ‘[T]he legitimate expectations of the person challenging the decision’.89 5. Courts should also ‘take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the d ecision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances’.90 This final factor has been particularly problematic, and is discussed in detail in chapter six. L’Heureux-Dubé J was careful to point out that the factors she listed in Baker were not exhaustive and that: The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.91

84 See: Canada (Attorney General) v Mavi [2011] 2 SCR 504, 523–24 [42] (Mavi); Lam, above n 79, 27 [81] (McHugh and Gummow JJ), citing McHugh J’s dissenting judgment in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (Teoh); Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 336 [33] (Kiefel, Bell and Keane JJ) (WZARH). 85 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817, 838 [23] (L’Heureux-Dubé, Gonthier, McLachlin, Bastarache and Binnie JJ) (Baker). 86 ibid 838 [23]. 87 ibid 838 [24]; Huscroft, above n 59, 168. 88 Baker, above n 85, 838–39 [25]. 89 ibid 839–40 [26]. 90 ibid 840 [27]. 91 ibid 840–41 [28].

The Content of Fairness 125 Generally, unless there is statutory modification of the rules of fairness and absent extraordinary circumstances (each of which is considered below), a person affected by an administrative decision is entitled to: adequate notice; sufficient information to allow the person to respond to adverse material; a hearing sufficient to allow the decision-maker to determine the evidence, which ordinarily does not need to be oral, but may, depending on the facts to be determined; a timely decision; and reasons for that decision.92 The duty to give reasons is discussed in more detail below. Australia’s High Court has been less explicit in defining the various factors it will take into account in determining the content of procedural fairness and has repeatedly emphasised that its overriding concern in determining the content of procedural fairness in any given context will depend on the practical needs of justice rather than on any general principles.93 However, Aronson and Groves have identified that, in practice, the factors that Australian courts will take into account in determining the content of procedural fairness bear a strong resemblance to those listed by L’Heureux-Dubé J in Baker in determining the content of procedural fairness.94 The factors that Australian courts will consider include:95 —— The statutory context in which the power operates. Like in Canada, Australian courts have found that a statutory appeal process may reduce the content of procedural fairness,96 and that the more final and immediate the consequences of a decision are for an individual, the more likely it is that formal and more onerous fairness obligations will apply.97 —— ‘The nature of the decision-maker and the width of any discretion conferred’— though Aronson and Groves argue that it is not clear precisely how these factors affect the content of fairness, and that both have been applied inconsistently.98 —— The appropriate balance between efficiency and fairness in the circumstances, which takes into account the seriousness of the consequences of the decision.99 The basic content of fairness is also much the same in Australia as it is in Canada. Unless the duty is modified by statute or by implication, or there are compelling reasons not to, decision-makers will ordinarily be required to provide a person who will be affected by their decision with: adequate notice of their intention to make a decision; sufficient details of adverse material; and an opportunity to make submissions, usually in writing. However, the precise nature of each element of fairness will depend on the circumstances.100

92

Huscroft, above n 59, 171–77. See the discussion in Aronson and Groves, above n 78, 491–93, 500. 94 Aronson and Groves, above n 78, 500–01. 95 ibid 501–09. 96 Re Minister for Immigration and Ethnic Affairs; Ex parte Miah (2001) 206 CLR 57, 70 [35] (Gleeson CJ and Hayne J), 98–99 [146] (McHugh J) (Miah). 97 See: South Australia v O’Shea (1987) 163 CLR 378; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. 98 Aronson and Groves, above n 78, 503–05. 99 ibid 505–08. 100 ibid 517–94. 93

126 Procedural Fairness B. Rejecting Substantive Legitimate Expectations Although the Australian threshold test for procedural fairness includes an express reference to ‘legitimate expectations’ while Canada’s does not, the approach of both jurisdictions to this doctrine is essentially identical. The courts in both jurisdictions have wavered over the controversial doctrine, but both now seem to have adopted a restricted approach in which (to the extent that the doctrine is useful at all) a legitimate expectation will only give rise to procedural, not substantive, protections. The origins of the ‘legitimate expectation’ are generally traced to Lord Denning’s obiter statement in Schmidt v Secretary of State for Home Affairs,101 to the effect that a person who has been granted a visa for a specified period has a legitimate expectation that they will be entitled to stay for that period and must be given an opportunity to make representations before their visa is revoked.102 In Schmidt, the notion of legitimate expectation was used as a method of expanding the classes of decision to which natural justice applied. This was the ‘most potent’ way in which the doctrine was applied over the next two decades: as merely giving a person whose expectation was about to be dashed a right to be heard.103 However, in subsequent decisions Lord Denning clearly contemplated that the doctrine could be used to provide substantive protection to a person’s expectations and that agencies would be bound by their undertakings provided that the undertakings did not conflict with the agency’s statutory or public duty.104 The English Court of Appeal famously (or perhaps infamously) accepted Lord Denning’s invitation to extend the doctrine to provide substantive protection to expectations in R v North and East Devon Health Authority; ex parte Coughlan.105 The case involved a decision by the Health Authority to close a facility built for people suffering from severe chronic illnesses and disabilities—Mardon House—and move the residents to a new facility. Pamela Coughlan, a resident of Mardon House, challenged the decision on the basis that she had been told on moving to Mardon House that it would be her ‘home for life’. The residents of Mardon House had been given the opportunity to comment on the proposal before the decision was made, so there was no issue of procedural unfairness. However, the Court of Appeal held that the outcome of the decision was so unfair in substance, given the earlier promise to Ms Coughlan, as to amount to an abuse of power.106 This doctrine of substantive

101

Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149, 171. notes that there is a similar principle found in German law, but Lord Denning in private communications denied being influenced by ‘any continental source’: C Forsyth, ‘Legitimate Expectations Revisited’ (2011) 16 Judicial Review 429, 430. 103 C Forsyth, ‘The Provenance and Protection of Legitimate Expectations’ (1988) 47 Cambridge Law Journal 238, 240. See also P Tate, ‘The Coherence of “Legitimate Expectations” and the Foundations of Natural Justice’ (1988) 14 Monash Law Review 15. 104 See R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299, 307–08 discussed in Forsyth, ‘Provenance and Protection’, above n 103, 254–55. 105 R v North and East Devon Health Authority; ex parte Coughlan [2001] QB 213 (Coughlan). 106 See, generally: M Groves, ‘Substantive Legitimate Expectations in Australian Administrative Law’ (2008) 32 Melbourne University Law Review 470, 475–82; G Weeks, ‘Holding Government to its Word: Legitimate Expectations and Estoppels in Administrative Law’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Melbourne, Cambridge University Press, 2014) 233–38. 102 Forsyth

The Content of Fairness 127 legitimate expectation, or substantive unfairness as it is now commonly called, is now an entrenched doctrine of judicial review in the UK, though it has been applied relatively sparingly.107 The extension of legitimate expectations in this way in the UK remains subject to criticism by commentators on the grounds that it fetters the discretion of decision-makers and impinges on the separation of powers.108 It is for these reasons, and particularly the latter, that neither Canada nor A ustralia ever really entertained the idea of adopting substantive unfairness as a ground of review. The Supreme Court of Canada rejected Coughlan in Mount Sinai Hospital Center v Québec (Minister of Health and Social Services),109 which involved a decision by the Minister to refuse to alter the hospital’s permit to reflect the reality of the services that it offered. The Minister had promised the hospital that, upon its move from Sainte-Agathe to Montréal, its permit would be amended in the manner desired. However, when the hospital made its application, after its move, the (by then different) Minister refused to honour the promise without giving the hospital the opportunity to make submissions. The result was disadvantageous to the hospital both in its management and its ability to raise funds, but did not alter the cost of the hospital to government. The majority of the Supreme Court, led by Bastarache J, did not find it necessary to answer the question of whether the hospital’s legitimate expectation of being granted an altered permit could result in a substantive remedy.110 They found in favour of the hospital on the basis that the Minister’s discretion to issue the amended permit was exercised and exhausted when the promise was made to the hospital prior to it relocating.111 The concurring judgment of Binnie J and McLachlin CJ did consider the issue of substantive unfairness and stated that in Canada ‘the doctrine of legitimate expectations is limited to procedural relief’.112 Binnie J’s major difficulty with Coughlan was based on the appropriate roles of courts and ministers: Where Canadian law parts company with the developing English law is the assertion, which lies at the heart of the Coughlan treatment of substantive fairness, of the centrality of the judicial role in regulating government policy … In Canada, at least to date, the courts have taken the view that it is generally the Minister who determines whether the public interest overrides or not. The courts will intervene only if it is established that the Minister’s decision is patently unreasonable in the sense of irrational or perverse or (in language adopted in Coughlan, at para 72) ‘so gratuitous and oppressive that no reasonable person could think [it] justified’.113

However, Binnie J did ultimately find that the Minister’s decision was patently unreasonable, due to ‘his total lack of regard for the implications for the respondents of

107 Wade and Forsyth, above n 42, 315–18, 453–57; Groves, ‘Substantive Legitimate Expectations’ above n 106, 483–89. 108 See, eg, Forsyth, ‘Legitimate Expectations Revisited’, above n 102; Groves, ‘Substantive Legitimate Expectations’, above n 106, 491–92. See generally, M Groves and G Weeks (eds), Legitimate Expectations in the Common Law World (Oxford, Hart Publishing, 2017). 109 Mount Sinai, above n 5. 110 ibid 330 [95] (Bastarache, L’Heureux-Dubé, Gonthier, Iacobucci and Major JJ). 111 ibid 333–39 [100]–[111]. 112 ibid 306 [35]. 113 ibid 317 [63].

128 Procedural Fairness the Minister’s broken promises’.114 This suggests that although a legitimate expectation may not be capable of giving rise to a substantive remedy in Canada, the substantive grounds of review, particularly the considerations grounds, may be capable of accommodating the factual circumstances that gave rise to the expectation and, at least in some cases, achieving the same result. Binnie J’s approach in Mount Sinai has been approved by the Supreme Court of Canada in subsequent decisions.115 A majority of the Australian High Court rejected Coughlan in Lam,116 rather more decisively than the Canadian Court first did. The case involved a decision to cancel Mr Lam’s permanent visa on the grounds of his criminal history. Lam had been informed that the Department of Immigration was contemplating revoking his visa and given the opportunity to make submissions. His submission included a letter from the carer of his children which provided evidence that it would be in the children’s best interests for Lam to remain in Australia. The carer’s phone number was provided in her letter. The Department then requested the contact details of the carer (despite already having them), which Lam provided. However, the Department did not make contact with the carer, which Lam argued defeated his legitimate expectation that the Department would follow that particular procedure. The case did not raise any question about Lam’s substantive expectations and nor did counsel raise Coughlan. Nevertheless, four members of the High Court took the opportunity to express strong doubts about the compatibility of substantive fairness with the Australian Constitution. Gleeson CJ commented that ‘to treat a legitimate expectation as requiring a decision-maker to act in a particular way is tantamount to treating it as a rule of law’117 and that the doctrine ‘would not relate easily to the exercise by this Court of its jurisdiction under section 75(v) of the Constitution’.118 McHugh and Gummow JJ, after considering English and French authority, made a similar point: In Australia, the existence of a basic law which is a written federal constitution, with separation of the judicial power, necessarily presents a frame of reference which differs from both the English and other European systems referred to above. Considerations of the nature and scope of judicial review, whether by this Court under section 75 of the Constitution or otherwise, inevitably involves attention to the text and structure of the document in which section 75 appears. An aspect of the rule of law under the Constitution is that the role or function of Ch III courts does not extend to the performance of the legislative function of translating policy into statutory form or the executive function of administration.119

Callinan J expressed agreement and stated that ‘on no view can [the doctrine of legitimate expectation] give rise to substantive rights rather than to procedural rights’.120

114

ibid 318 [64]. See, eg, Mavi, above n 84, 534 [68]; Agraira v Canada (Public Safety and Emergency Preparedness) [2013] 2 SCR 559, 602–04 [93]–[97]. 116 Lam, above n 79. 117 ibid 9–10 [28]. 118 ibid 12 [32]. 119 ibid 24–25 [76]. 120 ibid 48 [148]. 115

The Content of Fairness 129 Even at the ‘high water-mark’121 of the doctrine of legitimate expectations, Australia’s High Court did not cross the threshold of attempting to give substantive protection to expectations. In Minister for Immigration and Ethnic Affairs v Teoh,122 the High Court found that the government’s ratification of an unincorporated treaty, of which the applicant was unaware, was sufficient to give rise to an expectation that decision-makers would act in accordance with that treaty. However, the High Court did not find that the government was required to act in accordance with the treaty, only that, if it proposed to act contrary to the treaty, then the applicant was entitled to a hearing on that issue. Thus, there has never been any doubt in Australia that legitimate expectations, insofar as they are still a component of natural justice in Australia, would not give rise to substantive relief. The role of the legitimate expectations doctrine in giving rise to procedural obligations has, in both Canada and Australia, now diminished to a point where the principle may no longer offer any real value in either jurisdiction. This is essentially due to the fact that the ‘interests’ that attract procedural fairness in both jurisdictions are now so broad as to cover most instances in which a decision-maker has departed from a promise. The doctrine developed when there was still uncertainty regarding the extent to which natural justice applied to decisions that did not affect legal rights, and there was still a distinction between ‘application cases’ and ‘renewal cases’. ‘Expectation cases’ sat between the two and were a useful way of extending the scope of procedural fairness.123 However, as outlined above, this is no longer the case in either jurisdiction. The High Court of Australia has expressed serious doubts about the continued utility of the doctrine of legitimate expectations, even in its limited procedural context. In Minister for Immigration and Border Protection v WZARH,124 the Court heard an appeal from the Federal Court, in which the Full Court had held that an asylum seeker had a legitimate expectation of having the merits review of his case completed, and decided, by the same reviewer who had interviewed him. The defeat of this expectation was found by the Federal Court to have resulted in the asylum seeker being denied natural justice. The High Court agreed with the result and that the review process had breached the rules of natural justice, but not with the Federal Court’s use of the legitimate expectation concept. On this, Kiefel, Bell and Keane JJ stated: [I]t is not necessary for this Court to engage again in discussion of the concept of ‘legitimate expectation’ in administrative law or to trace its progress from its controversial origins, to its tentative acceptance in Australian law, to its rejection as a touchstone of the requirement that a decision-maker accord procedural fairness to a person affected by an administrative decision. The ‘legitimate expectation’ of a person affected by an administrative decision does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness. It is sufficient to

121

ibid 46 [141] (Callinan J). Teoh, above n 84. Aronson and Groves, above n 78, 418–19. 124 WZARH, above n 84. 122 123

130 Procedural Fairness say that, in the absence of a clear, contrary legislative intention, administrative decisionmakers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made.125

Gageler and Gordon JJ were in broad agreement regarding the utility of legitimate expectations, but were less scathing in their criticism of it.126 The Canadian Supreme Court dismissed any continued role for legitimate expectations in expanding the scope of procedural fairness in Baker and transferred the concept into the list of issues that would be considered in determining the content of the duty. Specifically, L’Heureux-Dubé J for the majority summarised the Canadian position: As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness. Similarly, if a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded.127

C. The Content of ‘Fundamental Justice’ Under the Charter and Bill of Rights The content of ‘fundamental justice’ in the administrative law context128 differs (or at least has the potential to differ) from that of procedural fairness. In an early section 7 decision, the Supreme Court stated that ‘“fundamental justice”, as the term is used in the Charter, involves more than natural justice (which is largely procedural) and includes as well a substantive element’.129 While this interpretation of ‘fundamental justice’ contradicts the stated intentions of those who drafted the Charter,130 the Court has repeatedly stated that fundamental justice has both a procedural and a substantive element. With respect to its procedural component, in the early years of the Charter’s operation, Evans argued that the Charter ought to largely be defined by reference to the common law principles of procedural fairness on the basis that the intention of section 7 was to entrench the basic tenets of the

125

ibid 7–8 [30]. ibid 31 [61]. 127 Baker, above n 85, 840 [26]. 128 Note that this section is only concerned with the application of fundamental justice in administrative, not judicial, decision-making, though the two do overlap. For a fuller treatment, see P Hogg, ‘The Brilliant Career of Section 7 of the Charter’ (2012) 58 Supreme Court Law Review (2d) 195. 129 Re BC Motor Vehicle Act [1985] 2 SCR 486, 521–22 [98] (McIntyre J). Recently affirmed in Canada (Attorney General) v Bedford, above n 20, 1143–44 [95]. 130 See Hogg, ‘The Brilliant Career of Section 7 of the Charter’, above n 128, 195–96, 198–99. 126

The Content of Fairness 131 Canadian legal system into the Constitution.131 And for the most part, this is what the Canadian courts have done in the administrative law context. The Supreme Court has found ‘fundamental justice’ completely incorporates the common law principles of procedural fairness, including the notion that their content is context specific and flexible.132 Indeed, in Suresh v Canada (Minister of Citizenship and Immigration) the Court said that it was appropriate to apply the same five factors that it had used in Baker to determine whether the common law duty of fairness had been met to decide whether the requirements of fundamental justice under section 7 of the Charter had been satisfied.133 For the most part, applying the Baker factors to determine what ‘fundamental justice’ requires in the circumstances has been relatively unproblematic. The one difficulty has been with respect to the fifth Baker factor—that of deference to a decision-maker’s procedural choices. This is discussed in chapter six. The substantive element of fundamental justice in the administrative context has been given rather less consideration by Canadian courts. In a 1991 article, Evans suggested a number of substantive principles which may constitute aspects of fundamental justice including: non-retrospectivity; ‘an unduly broad statutory delegation of discretion to an administrative agency’; and ‘an unrestricted power to expropriate a person’s home’.134 Evans suggested that these and possibly other principles drawn from the common law, but not from administrative law specifically, might form part of ‘fundamental justice’ under section 7 of the Charter and affect the exercise of administrative discretions that impact on ‘life, liberty and security of the person’. Another possibility, though it has not been explored by Canadian courts, is that the substantive elements of ‘fundamental justice’ may be drawn from those broader principles that apply under both common law and the Human Rights Act 1998 (UK) (HRA) in the UK—such as the doctrine of substantive legitimate expectation. There is some support for the idea that section 7 may prevent legislatures from conferring vague or unfettered discretion on the executive, though if made out this would result in the invalidity of empowering legislative provisions as well as decisions made thereunder. For instance, in Suresh the Court considered whether the terms ‘danger to the security of Canada’ and ‘terrorism’ were unconstitutionally vague, finding that they are not.135 It is not clear whether the concept of fundamental justice in section 7 imposes any substantive requirements on administrative decision-makers exercising power under constitutionally valid legislation.

131 JM Evans, ‘The Principles of Fundamental Justice: The Constitution and the Common Law’ (1991) 29 Osgoode Hall Law Journal 51. 132 See, eg, Singh, above n 7, 212–13 [57]–[58] (Wilson J, Dickson CJ and Lamer J); R v Jones [1986] 2 SCR 284, 304 [41] (La Forest J and Dickson CJ); R v Lyons [1987] 2 SCR 309, 361 [85] (La Forest J, Dickson CJ, Estey, McIntyre and Le Dain JJ); Pearlman v Law Society (Manitoba) [1991] 2 SCR 869, 882–83 [29]–[31]. 133 Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3, 61–65 [114]–[121] (Suresh). 134 Evans, above n 131, 66–67. 135 Suresh, above n 133, 52–56 [92]–[99].

132 Procedural Fairness D. Fair Hearings Under the Victorian and ACT Charters There has been no discussion of how the ‘fair and public hearing’ requirements under the Victorian and ACT Charters relate to, or differ from, the natural justice requirements under common law in the administrative decision-making context. Given that section 24 of the Victorian Charter has been found simply to codify the criminal process rights that exist at common law,136 the same may be true with respect to the right to fairness in administrative proceedings. However, in Kracke v Mental Health Review Board,137 Bell J suggested that section 24 may impose requirements on decision-makers that go beyond the common law duty of fairness. In that case, Bell J found that the Board’s delay in conducting a statutorily mandated review of involuntary treatment orders had denied a patient their right to a fair hearing.138 Delay may be capable of resulting in a denial of procedural fairness at common law, though those judges who have accepted that position have emphasised that only ‘extraordinary’ delay will suffice.139 It is possible on the facts of Kracke, particularly given the statutory requirement for a review within 12 months, that the decision would have been unlawful in the absence of the Victorian Charter. However, it seems more likely that the reason for unlawfulness would have been a failure to comply with statutory time frames rather than unfairness. Thus, Bell J’s decision suggests that the right to fairness under section 24 may go beyond the requirements of natural justice under common law. In addition, Bell J’s judgment suggests that the requirement that proceedings be heard by a ‘competent, independent and impartial court or tribunal’ may require a level of separation between tribunals and government.140 Relying on European law, Bell J stated that three things will be required for a tribunal to be ‘independent’: freedom from government interference in decision-making; the process and duration of appointments that guarantees independence; and an appearance of independence.141 While Bell J found that the tribunals in issue in Kracke met these criteria, it is unlikely that all ACT and Victorian tribunals would. There is no requirement under Australian common law that tribunals be independent from government and, in fact, many are funded and appointed by the Minister in charge of the portfolio whose decisions they review and are required to follow ministerial directives. Indeed, in Kirk v Industrial Court (NSW), the High Court confirmed that at the state level there is no constitutional requirement that inferior courts be separated from the government in the same way as state supreme courts must be.142 However, Bell J’s statements

136

R v Williams (2007) 16 VR 168, 177 [53]. Kracke, above n 40. 138 ibid 166–67 [826]–[828]. 139 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, 473–76 [1]–[12] (Gleeeson CJ), 500 [98] (Kirby J), 522–27 [161]–[176] (Callinan and Heydon JJ, Gummow and Hayne JJ dissenting). See generally, Aronson and Groves, above n 78, 592–93. 140 Kracke, above n 40, 99–100 [440]–[447]. 141 ibid 99 [444]. 142 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 573 [69] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 137

The Content of Fairness 133 raise the question of whether such tribunals are capable of providing a fair hearing for the purposes of ACT and Victorian human rights law. These are issues that are yet to be explored by Victorian and ACT courts, but may have some impact in the future on the development of the relationship between the right to fairness under human rights legislation and the duty to afford natural justice under common law. E. Reasons Perhaps the most obvious difference between the content of procedural fairness in Canada and Australia is that the Canadian Supreme Court has found that, in many circumstances, decision-makers will be under a common law duty to provide reasons for their decisions. Specifically, in the majority judgment in Baker, L’Heureux-Dubé J stated: In my opinion, it is now appropriate to recognise that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required.143

Although L’Heureux-Dubé J made it clear that reasons are not required for every administrative decision, Canadian courts have since taken a very broad view of the circumstances in which reasons are required. In large part this has resulted from the fact that the courts seem to have taken the view that the requirement that reasons be provided where there is a statutory right to appeal has not been limited to express statutory rights, but also extends to judicial review applications. Most cases post-Baker have involved the question of the adequacy of reasons rather than whether they are required at all. However, in a number of pre-Baker decisions, courts found that reasons were required in order to ensure that the right to judicial review was not frustrated.144 This same suggestion has also formed part of the Supreme Court’s reasoning post-Baker. For instance in Lake v Canada (Minister of Justice) the Court stated: ‘The purpose of providing reasons is two-fold: to allow the individual to understand why the decision was made; and to allow the reviewing court to assess the validity of the decision’.145 Although Lake involved a question of the adequacy of reasons rather than whether or not they needed to be provided at all, the Court’s statement shows that an underlying purpose of the duty to provide reasons is to facilitate the constitutionally guaranteed right to judicial review as well as any statutory appeals. Most of the situations post-Baker in which the courts have found that decision-makers are not obliged to provide reasons have been those

143

Baker, above n 85, 848 [43]. eg, Société des services Ozanam Inv v Commission municipale du Québec [1994] RJQ 364; Futuris Inns Canada Inc v Nova Scotia (Labour Relations Board) (1997) 160 NSR (2d) 241; CUPE Local No 301 v Montreal (City) [1997] 1 SCR 793, 843–44 [83]–[84]. 145 Lake v Canada (Minister of Justice) [2008] 1 SCR 761, 785 [46]. 144 See,

134 Procedural Fairness where the decision-maker is also not required to afford the aggrieved persons natural justice.146 Thus, although it has not been expressly stated by any court the position with respect to reasons in Canada seems to be like that of natural justice generally, that is, it applies to almost all administrative decisions but its content is very flexible. As Matthew Groves has noted, this is broadly similar in practice to the English position which has seen a gradual expansion of the situations in which reasons are required, but falls short of imposing a general duty on decision-makers.147 In addition to the broad range of situations in which Canadian common law imposes a duty to give reasons, a number of the provincial procedural codes extend the duty to provide reasons to all decisions to which they apply.148 However, a series of more recent decisions suggest that the Supreme Court may be retreating from this broad approach to reasons focused on fairness to the individual. In a number of decisions in which no reasons were provided by the decision-makers, the Supreme Court has found that because it was clear from extraneous material both what the decision-maker’s justifications were, and that they were reasonable, it was unnecessary to remit the decision in order that reasons may be given.149 In explaining this exception, the Court suggested that the central purpose of reasons is to facilitate judicial deference to decision-makers. Specifically, the Court stated that: ‘In some cases, it may be that a reviewing court cannot adequately show deference to the administrative decision maker without first providing the decision maker the opportunity to give its own reasons for the decision’.150 The Court also emphasised that reasons should only be imputed where a decision is found on review to be reasonable, as ‘[i]t will generally be inappropriate to find that there is no reasonable basis for the tribunal’s decision without first giving the tribunal an opportunity to provide one’.151 In Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association the Supreme Court decided that it was possible to ‘discover a reasonable basis’ for the impugned decision from other decisions in which the Commissioner had made similar decisions and ‘provided a consistent analysis’.152 Similarly in Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission)153 146 See, eg, Service Corp International (Canada) Inc v Burnaby (City) [1999] 9 MPLR (3d) 242 [101] (overturned on appeal, but not on this point: [2001] 95 BCLR (3d) 301); Gigliotti v Conseil d’Administration du Collège des Grands Lacs [2005] 76 OR (3d) 561 [54], [62]. 147 M Groves, ‘Reviewing Reasons for Administrative Decisions: Wingfoot Australia Partners Pty Ltd v Kocak’ (2013) 35 Sydney Law Review 627, 640. For a discussion of the English position, see M Elliott, ‘Has the Common Law Duty to Give Reasons Come of Age Yet?’ [2011] Public Law 56. 148 See: Statutory Powers Procedure Act, RSO 1990, c S 22, s 17(1); Administrative Procedures and Jurisdiction Act, RSA 2000, c A-3, s 7; Act Respecting Administrative Justice, RSQ, c J-3, s 8; Administrative Tribunals Act, SBC 2004, c 45, s 51. 149 Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association [2011] 3 SCR 654, 684–85 [55] (Rothstein J, McLachlin CJ, LeBel, Fish, Abella and Charron JJ) (Alberta Teachers’ Association); Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission) [2012] 1 SCR 364, 391 [58]; McLean v British Columbia (Securities Commission) [2013] 3 SCR 895, 927 [71]–[72] (Moldaver J, LeBel, Fish, Rothstein, Cromwell and Wagner JJ) (McLean). 150 Alberta Teachers’ Association, above n 149, 684–85 [55] (Rothstein J, McLachlin CJ, LeBel, Fish, Abella and Charron JJ). 151 ibid. 152 ibid 685 [56]. 153 Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), above n 149, 391 [58].

The Content of Fairness 135 the Court relied on reports provided to the Commission along with ‘the surrounding circumstances’ in its conclusion that the Commission’s decision to refer a complaint against the Municipality was reasonable. In McLean v British Columbia (Securities Commission),154 however, there were no reports, similar cases or statements from which the Court could imply the Commission’s reasons. The Commission had interpreted the statutory time limit on its power to make orders with respect to a breach of securities legislation as commencing from the date a person entered into a settlement agreement with another province’s regulator rather than the date the breach occurred. The Commission gave no reasons for this interpretation. Nevertheless, the Court found that the Commission’s reasons for interpreting statutory provisions in a particular way were ‘apparent from the arguments advanced by the respondent … [which] follow from established principles of statutory interpretation’.155 Thus, the Court did not require the Commission to explain itself via reasons. While there is a certain practical logic to these decisions—it is indeed neither ‘expedient’ nor ‘cost efficient’156 for courts to remit decisions so that reasons can be provided, where those reasons are already clear—they undermine the individual fairness rationale for the duty to provide reasons. Furthermore, as the McLean reasoning shows, without the fairness rationale, the review-based justification for the duty to provide reasons falls away quite easily. If the purpose of reasons is to allow courts to review decisions, and if arguments advanced on review are sufficient to convince the court that a decision is reasonable and overcome an omission to provide reasons, then administrative decision-makers will only be required to give reasons following successful challenge. Therefore, it is possible that these Supreme Court decisions signal a move away from the broad approach to reasons taken in the aftermath of Baker. The position articulated in Baker contrasts with the Australian approach found in Gibbs CJ’s leading judgment in Public Service Board of NSW v Osmond: There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons.157

However, despite the sharp distinction between these leading expositions of the law in Canada and Australia, the practical differences between the two jurisdictions with respect to the duty to provide reasons may not be so great. There are two reasons for this. The first is the fact that Australia’s general rule that there is no common law duty for administrative decision-makers to provide reasons is subject to exceptions. The second is the presence in Australia of general statutory requirements that impose duties on most administrative decision-makers in Australia to provide reasons for their decisions.

154

McLean, above n 149. ibid 927 [72] (Moldaver, LeBel, Fish, Rothstein, Cromwell and Wagner JJ). 156 Alberta Teachers’ Association, above n 149, 685 [55] (Rothstein J, McLachlin CJ, LeBel, Fish, Abella and Charron JJ). 157 Public Service Board of NSW v Osmond (1986) 159 CLR 656, 662 (Osmond). 155

136 Procedural Fairness Gibbs CJ recognised in Osmond that there may be ‘special circumstances’ in which an administrative decision-maker may be required to provide reasons.158 Commentators and judges have identified three main situations in which courts have found that ‘special circumstances’ warrant an exemption from the common law rule.159 The first is where the legislature has provided for a statutory right to appeal from an administrative decision, which would be frustrated if no reasons were provided by the decision-maker.160 A second exception to Osmond has been found to exist where a decision-maker’s function can be classified as judicial or quasi-judicial as opposed to purely administrative.161 A third, more controversial group of decisions have found that an exception to Osmond exists where the interests of natural justice require reasons. For instance, in Edwards v Guidice162 a majority of the Full Federal Court found that the Australian Industrial Relations Commission was under an obligation to give reasons for its decision regarding an unfair dismissal claim. Marshall J’s reasoning was based on a view that, because the decision was ‘seriously contested’ and ‘of significant consequence’, natural justice required the Commission to disclose its reasoning.163 The seriousness of a decision’s consequences seems to have been an important factor in other decisions which found that administrative decision-makers were under a common law duty to provide reasons, and may provide a useful way of distinguishing those decisions where no such duty was found.164 Thus, the cases might be better characterised as creating an exception from Osmond where a decision has particularly serious consequences for an individual or business.165 The range of cases in which exceptions have been found to the general principle in Osmond, coupled with developments in other jurisdictions, including the UK, Canada and New Zealand, led some to doubt the continuing status of Osmond in Australia.166 For instance in L & B Linings Pty Ltd v WorkCover Authority of

158

ibid 670. eg, R Creyke, J McMillan and M Smyth, Control of Government Action: Text, Cases and Commentary, 4th edn (Sydney, LexisNexis Butterworths, 2015) 1244–47; Sherlock v Lloyd (2010) 27 VR 434, 438 [16]. 160 See, eg, Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729, 734–36 (Priestly JA, with whom the other justices agreed); Campbelltown City Council v Vegan (2006) 67 NSWLR 372, 377 [20]–[29] (Handley JA), 394–96 [109]–[118] (Basten J); Hancock v Executive Director of Public Health [2008] WASC 224 (16 October 2008) [61]–[64]; Sydney Ferries v Morton [2010] NSWCA 156 (6 July 2010) [80] (Basten JA). 161 See, eg, Campbelltown City Council v Vegan, above n 160, 394 [109] (Basten J); Mauro v Hooper [2008] SASC 159 (18 June 2008) [26]–[29]. 162 Edwards v Guidice (1999) 169 ALR 89. 163 ibid 99 [44]. 164 Compare, eg, Soliman v University of Technology, Sydney (2012) 296 ALR 32, 45 [46] and AttorneyGeneral v Kehoe [2001] 2 Qd R 350, 356 [21]–[22], which both involved disciplinary decisions and were held to require reasons, with Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW (2007) 4 DDCR 607 in which the NSW Court of Appeal found no special circumstances existed in relation to a decision by the Registrar to refer the matter for further medical assessment. See also, Flick J’s statements to this effect in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, 575–76 [382]. 165 Though note the contrary view expressed of Basten JA in Sydney Ferries v Morton, above n 160 [73]–[85], that the above-discussed case law is inconsistent with Osmond. 166 See, eg, C Maxwell, ‘Is the Giving of Reasons for Administrative Decisions a Question of Natural Justice?’ (2013) 20 Australian Journal of Administrative Law 76. 159 See,

The Content of Fairness 137 NSW Rothman J commented: ‘The general statement that there is no obligation for administrative decision makers to give reasons has not been overruled, but has been honoured more in the breach than in the observance’.167 However, the High Court continues to cite Osmond as authority, but only in passing: it has not revisited the issue.168 Nor is the High Court likely to have cause to revisit Osmond given the enactment of statutory obligations on most decision-makers in most Australian jurisdictions to provide reasons. There are a number of statutes at both the federal and at the state and territory levels in Australia that mean that most administrative decision-makers in most jurisdictions have a duty to provide reasons for their decisions. At the federal level, such obligations are found in the general review statutes—the ADJR Act169 and the Administrative Appeals Tribunal Act 1975 (Cth)170—as well as numerous pieces of subject-specific legislation.171 Thus, persons aggrieved by decisions to which those Acts apply, which is the vast majority of administrative decisions made under Commonwealth legislation, have a right to seek reasons for their decisions. A similar right to reasons is found in each of the state and territory judicial review statutes.172 In those jurisdictions with generalist tribunals, decisions subject to review by the tribunals will invariably attract a duty to provide reasons.173 In addition to these generalist obligations to provide reasons, there are a multitude of statutes that provide for such obligations within specific acts. Thus, only a fairly limited range of administrative decisions would now be subject to the common law rule in Osmond. Even decisions made under the Migration Act 1958 (Cth), which are the decisions in which the High Court’s section 75(v) jurisdiction is most frequently invoked due to extensive privative clauses in the Act, must be accompanied by reasons.174 There is a greater difference between the Australian and Canadian approaches to the issue of the adequacy of reasons. In Australia, where a decision-maker is under a duty to provide reasons, be it express or implied, the duty is to provide adequate reasons. Adequacy will depend on the purposes for which the legislature imposed the duty on the decision-maker and statutory context more broadly.175 If the reasons

167 L & B Linings Pty Ltd v WorkCover Authority of NSW [2011] NSWSC 474 (24 May 2011) [109] (affirmed in L & B Linings Pty Ltd v WorkCover Authority of NSW [2012] NSWCA 15 (20 February 2012) (reference omitted). 168 See, eg, Wingfoot Australia Partners Pty Ltd v Kocak (2013) 88 ALJR 52, 61 [43]. But compare Kirby J’s (obiter) view in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212, 242–43 [105]–[106]. 169 s 13. 170 s 28. 171 See, eg, Migration Act 1958 (Cth) s 368. 172 Administrative Decisions (Judicial Review) Act 1989 (ACT) s 13; Judicial Review Act 1991 (Qld) Pt 4; Judicial Review Act 2000 (Tas) Pt 5; Administrative Law Act 1978 (Vic) s 8. See also, NSW Supreme Court Practice Note (CL) 3 cl 23. 173 ACT Civil and Administrative Tribunal Act 2008 (ACT) div 4A-2; Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 21(2); South Australian Civil and Administrative Tribunal Act 2003 (SA) s 35; Victorian Civil and Administrative Tribunal Act 1998 (Vic) pt 3, div 3; State Administrative Tribunal Act 2004 (WA) ss 21–23. The Civil and Administrative Tribunal Act 2013 (NSW) contains no equivalent provision at this point. 174 See, eg, Migration Act 1958 (Cth) ss 66, 368, 430. 175 Wingfoot Australia Partners Pty Ltd v Kocak, above n 168, 61 [43]–[44].

138 Procedural Fairness provided are inadequate a court will usually make the same order as it would if no reasons were provided—which will most often be an order that the decision-maker produce adequate reasons.176 Because of the fact that the duty to provide reasons does not derive from the common law rules of natural justice in Australia, but from legislation, the failure to provide reasons or adequate reasons will not usually result in the invalidity of the decision itself.177 The exceptions will be where the reviewing court can either infer from the failure to give reasons that the tribunal made an error of law, or if, on proper construction of the relevant statute, Parliament intended that a decision-maker’s exercise of power would be invalid if reasons were not provided.178 By contrast, in Canada where reasons are required and have been provided, the issue of their adequacy is not a matter for procedural fairness, and inadequacy alone is not a freestanding ground of review. Instead, the Supreme Court held in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board)179 that ‘the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes’.180 In other words, courts will examine the reasons provided by a decision-maker in the context of answering the overarching question of whether the decision ‘viewed as a whole, in the context of the record, is reasonable’181 in the Dunsmuir sense of supporting the need for ‘justification, transparency and intelligibility’.182 Thus, the Supreme Court has explained that even if the reasons provided do not cover all of the material a court would prefer, that alone does not make them unreasonable. All reasons must do in order to meet the reasonableness test is ‘allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes’.183 Where reasons fail to explain certain issues, courts are able to draw inferences based on other material before the decision-maker.184 The divergent ways in which Canadian and Australian courts will deal with inadequate reasons most likely has only minimal effects on the content and degree of fairness owed by decision-makers in each country. Inadequate reasons alone will sensibly not invalidate an administrative decision in either country, but administrators in both have a strong incentive to provide reasons that support the outcome of their decision. However, the different approaches taken by Australian and Canadian courts to the issue of inadequate reasons are indicative of far greater differences in their approaches to substantive review: issues discussed in chapters five and six. 176

Aronson and Groves, above n 78, 605. Sherlock v Lloyd, above n 159. See the discussion in Re Minister for Immigration; Ex parte Palme, above n 168, 223–26 [39]–[48] (Gleeson CJ, Gummow and Hayne JJ). 179 Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) [2011] 3 SCR 708 (Newfoundland Nurses). 180 ibid 715 [14]. 181 Construction Labor Relations v Driver Iron Inc [2012] 3 SCR 405, 407 [3]. 182 Dunsmuir v New Brunswick [2008] 1 SCR 190, 220–21 [47] (Bastarache and LeBel JJ, McLachlin CJ, Fish and Abella JJ) (Dunsmuir); Newfoundland Nurses, above n 179, 715 [13]. 183 Newfoundland Nurses, above n 179, 716 [16]. 184 Agraira v Canada, above n 115, 587–90 [55]–[59]. 177 178

The Content of Fairness 139 Therefore, on initial inspection Canadian common law appears more rights– protective than Australian law in relation to the requirement that decision-makers provide reasons for decisions. However, the reasons for this divergence are unlikely the result of express rights to fairness in Canada. Instead, the divergence is probably due to the fact that Australia’s High Court has not needed to revisit its decision in Osmond, largely because most decision-makers are under a statutory duty to give reasons for their decisions. These statutory duties to provide reasons in Australia mean that there is also little practical difference between the ‘rights’ of persons aggrieved by administrative decisions, or the duties of those making such decisions, in Australia and Canada. In addition, the justification for Canada’s general duty to provide reasons does not appear to stem from a desire to protect individual rights—at least not any more. Rather, the obligation to provide reasons in Canada now seems to be justified on the basis that it assists the courts to perform their review function and accord appropriate deference to decision-makers. There are also differences between Australia and Canada in relation to the treatment of inadequate reasons. Again, however, these differences do not seem to be linked in any way to the presence of express rights to fairness in Canadian law. Instead, they are the result of differences in the source of reasons requirements and the different purposes courts in each jurisdiction view reasons as serving. F. The Rule Against Bias There are also some distinctions between Canada and Australia when it comes to the rule against bias. The general administrative law test for whether or not an individual decision-maker is biased is roughly equivalent in both jurisdictions—concern with whether there is a reasonable apprehension of bias.185 The standard varies in both countries depending on the context and the identity of the decision-maker. For instance, the courts in both jurisdictions have held that the political functions of government ministers and their direct accountability to the electorate and the Parliament mean that the same level of detachment is not expected of ministers as it is of judges.186 However, in addition to the rule that individual decision-makers be seen as free from bias, there are also separate principles relating to the independence and impartiality of tribunals in Canada, some of which have no equivalent in Australian administrative law. There are actually two distinct, but interrelated, strands of precedent relating to tribunal impartiality (or bias) and independence in Canada. The first is an offshoot

185 Committee for Justice and Liberty v National Energy Board [1978] 1 SCR 369, 394 (de Grandpré J); Bell Canada v Canadian Telephone Employees Association [2003] 1 SCR 884, 908 [50]; Ebner v Official Trustee (2000) 205 CLR 337. 186 See: Imperial Oil Ltd v Québec (Minister of the Environment) [2003] 2 SCR 624, 640–41 [21]; Minister for Immigration and Multicultural Affairs; Ex parte Jia (2001) 205 CLR 507, 539 [102] (Gleeson CJ and Gummow J), 564–65 [187] (Hayne J), 583–84 [244]–[247], 599–600 [317] (Callinan J). Compare Committee for Justice and Liberty v National Energy Board, above n 185, and Vakuata v Kelly (1989) 167 CLR 568.

140 Procedural Fairness of the common law rule against bias. The other stems from the constitutional right to judicial independence, which has recently been extended to apply to administrative tribunals. Both arguments are frequently raised in the same cases, though the relationship between them remains a little unclear. Some judgments have treated the principles as distinct187 and many are simply ambiguous.188 However, the prevailing view now appears to be that institutional independence is a category of the common law rule against bias.189 Although institutional bias arguments were made prior to 1982,190 it is only since the advent of the Charter that institutional bias has been accepted as a separate aspect of the rule against bias in Canadian law. The test for institutional bias adapts de Grandpré J’s individual bias test: The determination of institutional bias presupposes that a well-informed person, viewing the matter realistically and practically—and having thought the matter through—would have a reasonable apprehension of bias in a substantial number of cases. In this regard, all factors must be considered, but the guarantees provided for in the legislation to counter the prejudicial effects of certain institutional characteristics must be given special attention.191

Arguments of institutional bias have been made in five main situations:192 1. Where a body exercises both investigative and adjudicative functions. For instance in 2747-3174 Québec inc c Québec (Régie des permis d’alcool) Gonthier J for the majority found that the fact that a particular director of the Régie could be involved in every stage of the process leading up to the cancellation of a liquor permit—from investigation to participating in the cancellation decision—resulted in a reasonable apprehension of bias.193 In other cases the Supreme Court has made it clear that a tribunal’s exercise of multiple functions is not alone sufficient to give rise to a claim for institutional bias, and distinguished Régie by the involvement of a single officer in multiple stages.194 2. Where individuals who are not part of the tribunal’s decision-making process, but are employed by the tribunal, act in a way that gives rise to a perception of bias. For instance, in Misra v College of Physicians & Surgeons (Saskatchewan)195 the Saskatchewan Court of Appeal held that there was a reasonable apprehension

187 eg, 2747-3174 Québec inc v Québec (Régie des permis d’alcool) [1996] 3 SCR 919, 949–65 [40]–[70] (Gonthier J, Lamer CJ, La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ) (Régie); Alex Coutoure v Canada (Attorney General) [1991] RJQ 2534. 188 eg, R v Lippé [1991] 2 SCR 114; R v Valente [1985] 2 SCR 673, 684–85 [11]–[15]. 189 See: Bell Canada v Canadian Telephone Employees Association, above n 185, 893 [17]; Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch) [2001] 2 SCR 781, 794 [23] (Ocean Port). 190 See, eg, King v University of Saskatchewan [1969] SCR 678. 191 Régie, above n 187, 951 [44]. 192 DP Jones and AS de Villars, Principles of Administrative Law, 5th edn (Toronto, Carswell, 2009) 423–38. 193 Régie, above n 187, 960–61 [60]. This case was decided under s 23 of the Québec Charter. However, the majority could have reached the same outcome under the common law, as L’Heureux-Dubé J did in her concurring judgment: Jones and de Villars, above n 192, 427. 194 See Ocean Port, above n 189, 801–02 [40]–[43]. 195 Misra v College of Physicians & Surgeons (Saskatchewan) [1988] 70 Sask R 116 (Misra).

The Content of Fairness 141 that the Disciplinary Committee of the College of Physicians and Surgeons was biased in deciding to suspend Dr Misra’s licence, based on the fact that the registrar, who was not a member of the Committee, had been overheard dictating the Committee’s order prior to the Committee’s hearing. 3. Where a party to a particular proceeding has an institutional role that may allow them to influence the outcome. For example, in McBain v Canada (Human Rights Commission)196 the fact that the Human Rights Commission was responsible for appointing a tribunal to hear sexual harassment complaints, which the Commission was also responsible for investigating and prosecuting, gave rise to a reasonable suspicion that the tribunal would be biased. The Federal Court found that the legislation which established this process violated the Bill of Rights, though similar arguments have been raised (generally unsuccessfully) in situations where there is no express statutory authorisation of the impugned relationship between a tribunal and the interested party.197 4. Where the tribunal has an interest in the outcome, for instance where the tribunal has the power to award costs, which contribute to the tribunal’s own funding. This argument was made unsuccessfully in Pearlman v Law Society (Manitoba),198 though the Court did not rule out the possibility that the argument might have been successful in different circumstances. 5. Where a tribunal member charged with making a decision in a particular case consults with other members of the tribunal before making a decision. In order to promote consistency, particularly within large tribunals, it has become fairly common for tribunals to develop guidelines and policies to guide decision- making in particular factual situations. It is also common for tribunal members to consult with the full tribunal prior to making a decision, also for consistency purposes.199 In IWA Local 2-69 v Consolidated Bathurst Packaging Ltd200 the Supreme Court held that consultation does not automatically prejudice a decision-maker, but warned that this type of procedure should not be used to compel a tribunal member to decide a case in a particular way. Many of the factual situations that have given rise to claims of institutional bias in Canadian law could be used to support other grounds of review under Australian common law. For instance, the facts of both Consolidated Bathurst and Misra could equally support an argument that the decision-maker had failed to exercise their discretion by acting under the dictation of persons not charged with making the particular decision. If the evidence supported such an argument, the decisionmaker would have constructively failed to exercise their jurisdiction, thereby making a jurisdictional error.

196

McBain v Canada (Human Rights Commission) [1985] 1 FCR 856. CUPE v Ontario (Minister of Labour), above n 5. 198 Pearlman v Law Society (Manitoba), above n 132. 199 L Jacobs, ‘Caught Between Judicial Paradigms and the Administrative State’s Pastiche: “Tribunal” Independence, Impartiality, and Bias’ in CM Flood and L Sossin (eds), Administrative Law in Context, 2nd edn (Toronto, Emond Montgomery, 2012) 269–72. 200 IWA Local 2-69 v Consolidated Bathurst Packaging Ltd [1990] 1 SCR 282 (Consolidated Bathurst). 197 eg,

142 Procedural Fairness This is not true of the other strand of bias jurisprudence relating to tribunal independence, for which there is no equivalent in Australian administrative law. Australian lawyers would, however, be familiar with the central elements of the ‘institutional independence’ test from the constitutional requirements relating to the establishment of Chapter III courts.201 In Canada, the principles relating to tribunal independence stem directly from the principles of judicial independence, the latter of which have a long history in Canadian constitutional law.202 The long-standing, unwritten constitutional principle of judicial independence was entrenched in section 11(d) of the Charter, which guarantees that a person charged with an offence is presumed innocent until proven guilty ‘by an independent and impartial tribunal’. The phrase ‘independent and impartial tribunal’ is also used in section 2(f) of the Bill of Rights. Although these provisions have only marginal relevance for administrative decision-makers, as they only apply to criminal trials, in R v Valente the Supreme Court of Canada suggested that the requirements of independence entrenched in section 11(d) of the Charter extended to a ‘variety of tribunals’.203 Thus, in recent years Canadian courts have taken tentative steps to extend the principles of judicial independence to tribunals. The extension of the principles of judicial independence to tribunals is directly attributable to the Charter, and specifically to section 11(d) jurisprudence and the suggestion in R v Valente that the guarantee of tribunal independence might extend beyond criminal trials. This suggestion has given rise to a number of cases challenging the structural independence of tribunals. Most of the cases in which this issue has been raised have been made under the common law—challenging either the validity of bylaws establishing tribunals or the appointment and dismissal processes of tribunal members.204 That is: litigants have tended to argue that the guarantee of tribunal independence is sourced in the common law principles of natural justice, or is an unwritten constitutional principle and have relied on ordinary judicial review applications to make that argument. However, there is theoretically nothing to prevent a challenge being made to the legislation establishing a tribunal under section 7 of the Charter or section 2(e) of the Bill of Rights on the same grounds.205 Canada’s Supreme Court has found that judicial and tribunal independence requires three main elements: security of tenure; financial security; and administrative independence with respect to matters with a direct bearing on the institution’s adjudicative functions.206 When applied to tribunals, these requirements have been

201 See J Stellios, The Federal Judicature: Chapter III of the Constitution, Commentary and Cases (Sydney, LexisNexis, 2010) 79–102. 202 See Jacobs, above n 199, 240–42. 203 R v Valente, above n 188, 692–93. 204 See, eg, Canadian Pacific v Matsqui Indian Band [1995] 1 SCR 3; Katz v Vancouver Stock Exchange (1995) 14 BCLR (3d) 66 (affirmed [1996] 3 SCR 405); McKenzie v British Columbia (Minister of Public Safety) (2006) 61 BCLR (4th) 75 (affirmed (2007) 71 BCLR (4th) 1, leave to appeal refused); Keen v Canada (2009) FTR 270. 205 Jones and de Villars, above n 192, 441. This argument was made in Bell Canada v Canadian Telephone Employees Association, above n 185. 206 R v Valente, above n 188.

The Content of Fairness 143 interpreted as far more flexible than when applied to courts.207 For example, in Régie,208 discussed above in relation to bias, the Court held that the directors of the Régie were sufficiently independent from the government to meet the requirements of section 23 of the Québec Charter of Human Rights and Freedoms despite the fact that they did not have life tenure. The Court found that the fixed terms of the directors met the minimum independence requirements because of the fact that directors’ terms could only be cut short for certain, specific reasons, and were not ‘at pleasure’ appointments.209 In Canadian Pacific v Matsqui Indian Band210 the Supreme Court was asked whether tribunals established under bylaws to hear certain taxation appeals were sufficiently independent to afford natural justice in their decision-making. The tribunals did not make decisions in criminal matters, nor did their decisions affect individual’s rights under section 7 of the Charter. The independence of the tribunals was questioned because members had no tenure and it was uncertain whether they would receive remuneration. Two members of the Court, including Lamer CJ, accepted this argument.211 The majority, however, agreed that institutional independence formed part of the common law rule against bias, but found that it was not appropriate to assess the question of institutional bias until the tribunal had rendered a decision.212 It now seems relatively settled that institutional independence forms a part of the rule against bias in Canadian administrative law. The Supreme Court discussed a number of outstanding issues relating to the doctrine in Ocean Port.213 The case involved a decision by the Liquor Control Board to suspend the Ocean Port Hotel from trading for two days as a result of an investigation finding that the hotel had breached a number of provisions of the Liquor Control and Licensing Act.214 The hotel argued that the Board did not have sufficient independence from government to conduct a fair hearing, primarily because Board members served at the pleasure of the Lieutenant Governor in Council. The legislation establishing the Board expressly provided for at pleasure appointments so it was the legislation that the hotel challenged. The nature of the Board’s decision-making functions meant that neither section 11(d) nor section 7 of the Charter applied. Thus, the hotel’s argument was that the legislation was invalid on the basis that it breached an unwritten constitutional rule of judicial independence, which the above-discussed cases extended to tribunals. The Court decisively rejected this argument. The Chief Justice’s judgment for the unanimous Court stated unequivocally that while the principle of judicial independence was protected by the Constitution, the principle of tribunal independence

207

Canadian Pacific v Matsqui Indian Band, above n 204, 51 [83] (Lamer CJ, Cory J). Régie, above n 187. 209 ibid 963–64 [67]–[68] (Gonthier J, Lamer CJ, La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ). 210 Canadian Pacific v Matsqui Indian Band, above n 204. 211 ibid 61 [105] (Lamer CJ for Cory J). 212 ibid 67–72 [116]–[123] (Sopinka, L’Heureux-Dubé, Gonthier and Iacobucci JJ). 213 Ocean Port, above n 189. 214 Liquor Control and Licensing Act, RSBC 1996, c 267. 208

144 Procedural Fairness was not.215 McLachlin CJ emphasised the different constitutional positions of tribunals and courts, stating that: Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government. However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not. Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected.216

In other words, the principle of tribunal independence is simply a principle of natural justice, and so it is ultimately for the legislature to determine the extent to which a tribunal ought to be independent from the executive. Tracing the development of the principle of tribunal independence, it is clear that the Charter has influenced the development of the principles of natural justice, and specifically the rule against bias in Canadian administrative law. However, following Ocean Port, the argument that a tribunal is biased because it lacks the characteristics required for structural independence seems likely to succeed only in the limited range of situations where a tribunal is established under regulations or is not supported by legislation. G. Conclusions on the Content of Fairness For the most part, Australia and Canada have developed remarkably similar approaches to the content of common law natural justice over the last 40 years. Courts in both jurisdictions require broadly similar things of decision-makers in order that those decision-makers make decisions in a procedurally fair manner. The highest courts in both countries have also rejected arguments that common law fairness protections ought to extend beyond protecting process, to protecting the substantive fairness of decisions—and have done so for similar constitutional reasons. Courts in each of those jurisdictions with charters that expressly protect a right to fairness—Canada, Victoria and the ACT—have suggested that those rights may go beyond the procedural protections of the common law. Yet, these suggestions have not prompted the common law to develop in that direction. Nor, indeed, have they yet eventuated into any concrete principles in relation to those rights to fairness, which remain essentially identical to the common law at this stage. I have identified two main differences in the content of procedural fairness at common law between Canada and Australia: the scope of the right to reasons for

215 216

Ocean Port, above n 189, 794 [23]. ibid 794–95 [24].

The Rationales for Fairness 145 administrative decisions; and the content of the bias rule. In both areas, Canadian law could be argued to be more ‘rights protective’ compared with Australian law. In relation to the right to, or duty to provide, reasons, however, the differences between the two countries do not appear to be related to the presence of rights protection in Canada. Rather, it seems to be largely attributable to the fact that Australian law has granted those aggrieved by most administrative decisions a statutory right to reasons since 1977. In addition, the justifications for the obligation to provide reasons in Canada seem to be moving further away from a rights-based justification to one more concerned with the institutional roles of, and relationship between, the judiciary and the executive branch. There is one area of Canadian law on procedural fairness where the Charter does seem to have some impact—that is the development of a requirement of institutional independence as an aspect of the rule against bias. The development of this requirement is clearly traceable, through the case law, to section 11(d) of the Charter. However, in practice, the additional requirement in Canadian common law is unlikely to apply in many circumstances and so will have a fairly limited practical effect. IV. THE RATIONALES FOR FAIRNESS

The decision of the UK Supreme Court in Osborn in 2013 has sparked considerable discussion about the effect of the HRA on common law procedural fairness in the UK.217 In Osborn, the Supreme Court held that the Parole Board had erred in failing to provide an oral hearing to three prisoners before recommending their continued detention, or recall from parole. The Parole Board had not afforded an oral hearing in each case—despite the fact that each of the prisoners had requested a hearing—on the basis that it would not have made any difference to the outcome. The aspect of the judgment which has attracted the most commentary is Lord Reed’s admonishment of the applicants for relying on the HRA rather than the common law.218 A second important aspect of the decision in Osborn, which has attracted slightly less commentary, is Lord Reed’s discussion of the rationale for the common law duty to provide procedural fairness. The Court of Appeal had dismissed Osborn’s appeal on the basis that an oral hearing would not have made a difference to the Parole Board’s decision: [T]he emphasis is on the utility of the oral procedure in assisting in the resolution of the issues before the decision-maker. There is no suggestion that an oral hearing is necessary even where the decision-maker is able fairly to conclude, having regard to the material before it and the issues in play, that an oral hearing can realistically make no difference to its decision.219

Lord Reed disagreed, stating that ‘the purpose of a fair hearing is not merely to improve the chances of the tribunal reaching the right decision. At least two other

217

See above n 2. Osborn, above n 2, 1146–47 [55]–[57]. 219 R (Osborn) v Parole Board for England and Wales [2010] EWCA Civ 1409 [38]. 218

146 Procedural Fairness important values are also engaged’.220 The first, according to Lord Reed, is the dignitarian purpose served by procedural fairness: allowing those who will be affected by administrative decisions to participate in the decision-making process, and listening to what they have to say, treats those people with respect.221 The second is the rule of law—which Lord Reed did not elaborate on. It is his focus on the dignitarian rationale for procedural fairness that leads to the question of whether charters of rights might have the effect of altering the normative justifications for common law natural justice rules. In essence, does seeing fairness as a right in some circumstances, as the result of a charter, result in courts viewing fairness in more rights-based terms at common law? This question is difficult to answer definitively, because courts tend not to dissect the normative justifications for procedural fairness in great (or, in most cases, any) detail. Furthermore, the dignitarian rationale for fairness guarantees is a long- standing one, which was present before the adoption of the Canadian Charter and the UK’s HRA222 (note, however, that this does not preclude the possibility that international human rights instruments have influenced this rationale—an issue which is outside the scope of this book). Respect for the dignity of those affected by administrative decisions is just one of several rationales that commentators have identified for natural justice. Holloway has identified four other rationales, variously reflected in the case law and commentary: an instrumental rationale of aiding decision-makers in good decision-making; a ‘rule of law’ rationale of promoting confidence in the system of official decision-making; a rhetorical or libertarian rationale, as a ‘“pure” principle of constitutionalism’;223 and a democratic rationale, where procedural fairness is the method through which the public participates in administrative decision-making.224 There is no evidence that Canadian courts prefer the dignitarian rationale for fairness compared with Australian courts, or that the Charter has, in any way, influenced the way Canadian courts express themselves regarding the normative values underpinning fairness. First, it is noteworthy that the rationale for reason-giving, specifically, seems to have shifted away from a concern with the rights or interests of the individual in having a reasoned decision, to a concern with the institutional relationship between the judicial and executive branches. The dignitarian rationale is certainly present in other post-Charter cases, discussing the hearing rule. For instance, in Cardinal v Director of Kent Institution, when presented with an argument similar to that of the Parole Board in Osborn—that a hearing had not been given because it would not have made a difference to the outcome—the Supreme Court of Canada stated:

220

Osborn, above n 2, 1149 [67]. ibid 1149 [68]. See, eg, J Mashaw, Due Process in the Administrative State (New Haven CT, Yale University Press, 1985); J Finnis, Natural Law and Natural Rights (Oxford, Clarendon Press, 1980) 272–73; R Dworkin, Taking Rights Seriously (Cambridge MA, Harvard University Press, 1977) 127. See further, Holloway, above n 63, 291–92. 223 Holloway, above n 63, 291. 224 ibid 287–92. 221 222

The Rationales for Fairness 147 [T]he denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.225

This bears a striking resemblance to the dignitarian justifications given by Lord Reed in Osborn. However, other rationales are also present in the Supreme Court of Canada’s post-Charter discussions of procedural fairness. For example, in Knight v Indian Head School Division No 19,226 the majority of the Court gave a justification for the application of the hearing rule which drew on both democratic and public confidence rationales, stating: There is also a wider public policy argument militating in favour of the imposition of a duty to act fairly on administrative bodies making decisions similar to the one impugned in the case at bar. The powers exercised by the appellant Board are delegated statutory powers which, as much as the statutory powers exercised directly by the government, should be put only to legitimate use … the public has an interest in the proper use of delegated power by administrative bodies.227

In most procedural fairness cases, however, including two of the most important administrative law decisions of the last two decades—Baker and Dunsmuir—the Supreme Court simply asserts that fairness is a virtue in its own right, rather than mentioning any particular normative value or purpose which underpins it.228 In Baker, the Court spoke of the ‘values’ underpinning fairness as relating to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.229

Similarly, in Dunsmuir, the Court stated that the ‘overarching purpose’ of procedural fairness ‘is not difficult to discern: administrative decision makers, in the exercise of public powers, should act fairly in coming to decisions that affect the interests of individuals’.230 The position in Australia is similar. That is, courts have tended not to pay much attention to the normative purpose served by procedural fairness, instead focusing on its legal source and content.231 Indeed, Australian courts tend to be even less inclined to discuss the norms and values underpinning legal principles than their

225

Cardinal v Kent Institution, above n 57, 661. Knight, above n 55. 227 ibid 675 (L’Heureux-Dubé J, Dickson CJ, La Forest and Cory JJ). 228 Van Harten et al, above n 29, 68. 229 Baker, above n 85, 841 [28] (L’Heureux-Dubé, Gonthier, McLachlin, Bastarache and Binnie JJ). 230 Dunsmuir, above n 182, 236 [90] (Bastarache and LeBel JJ, McLachlin CJ, Fish and Abella JJ). 231 Holloway, above n 63, 295. 226

148 Procedural Fairness common law counterparts.232 Where they have considered the justification for the principles of natural justice, as in Canada, no clear picture emerges as to a preferred rationale. The principles have been justified on the basis that they ensure public confidence.233 Heydon J has acknowledged several different rationales, including as an aid to good decisions, libertarian and dignitarian rationales.234 In the last few years, there seems to have been a small push in the Federal Court towards a dignitarian explanation, following Allsop CJ’s judgment in SZURI v Minister for Immigration, Multicultural Affairs and Citizenship, in which his Honour stated that: The fair treatment, and apparent fair treatment, of an applicant called to give evidence and present arguments in a hearing under the Migration Act 1958 (Cth), section 425(1) involves the recognition of the dignity of the applicant (the subject of the exercise of power) in how the hearing is conducted. That recognition is an inhering element of fairness. Fairness, and its appearance, is (subject to clear statutory qualification, …) an inhering requirement of the exercise of state power.235

This passage, and the dignitarian rationale for fairness, has been quoted in several subsequent judgments.236 More recently, Allsop CJ has suggested that a dignitarian rationale might also underpin other principles of judicial review, including unreasonableness.237 The application of the principles of procedural fairness in Australia also reveals little in terms of its underlying rationale. Some aspects of Australian law are indicative of a non-instrumental, dignitarian rationale. For instance, as in Osborn and Knight, the High Court has said on several occasions that it is not concerned with whether the denial of procedural fairness would have altered the outcome of the decision.238 However, there are also judgments which appear to contradict this point and suggest that in the rare circumstances where ‘it can be shown that the failure did not deprive the person of the possibility of a successful outcome’ it may be held that there has been no denial of procedural fairness.239 V. LITIGANTS’ USE OF FAIRNESS

As mentioned above, in Osborn, Lord Reed criticised the appellants for focusing on the HRA rather than domestic administrative law, stating ‘that approach does not 232 See J Goldsworthy, ‘Australia: Devotion to Legalism’ in J Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (New York, Oxford University Press, 2006) 133–55. 233 See, eg, R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 263 (Barwick CJ, Gibbs, Stephen and Mason JJ). 234 International Finance Trust Co Ltd v Crime Commission (NSW) (2009) 240 CLR 319, 379–81 [141]–[144]. 235 SZURI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 [5]. 236 eg, SZTRP v Minister for Immigration v Anor [2015] FCA 2067 [144]; MZZXM v Minister for Immigration and Border Protection [2016] FCA 405 [122]. 237 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 [9]. 238 See, eg, VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 92 [7], 96–97 [17]–[18]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 160 [25]. 239 WZARH, above n 84, 342–43 [60] (Gageler J), citing WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511, 525 [58].

Litigants’ Use of Fairness 149 properly reflect the relationship between domestic law (considered apart from the HRA) and Convention rights’.240 Lord Reed’s comments reflect similar concerns to those who have argued against the bifurcation of human rights law and the common law principles of administrative law, on the grounds that bifurcation might stunt, impoverish or sterilise administrative law.241 So, are these concerns borne out in Canada? Do judicial review applicants prefer to rely on rights to fundamental justice under the Charter or Bill of Rights rather than the common law principles of procedural fairness? The very clear answer to this question is ‘no’. In 2015, there were almost 500242 cases in which procedural fairness arguments were raised to challenge federal government actions. Sections (1)(a) or (2)(e) of the Canadian Bill of Rights were raised in seven cases, all of which also raised procedural fairness arguments. Section 7 of the Charter was raised in 55 cases. Of those, 30 did not also make arguments on common law procedural fairness grounds. In most of those 30 cases, procedural fairness did not apply for various reasons, for instance because the challenge was to the validity of legislation243 or generally applicable policies,244 or to the justice a person would receive in a foreign court if extradited.245 I identified only six federal cases in which section 7 of the Charter was used to challenge administrative action and the common law was not.246 None succeeded. In five of the six cases, the fairness/fundamental justice arguments were very weak—seemingly arguments made in desperation by applicants—and were dismissed quickly by the court. In the sixth, the section 7 argument was couched in terms of unreasonableness: the applicant argued that a decision by the Immigration Division of the Immigration and Refugee Board to continue his detention until his next hearing had failed to accord sufficient weight to his rights under section 7.247 The applicant’s complaint was not with the fairness of the Board’s hearing, but rather with its substance. Thus, procedural fairness

240

Osborn, above n 2, 1145 [54]. Hunt, ‘Against Bifurcation’ in D Dyzenhaus, M Hunt and G Huscroft (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Oxford, Hart Publishing, 2009); M Elliott, ‘From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification’ in H Wilberg and M Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford, Hart Publishing, 2015); G Cartier, ‘The Baker Effect: A New Interface Between the Canadian Charter of Rights and Freedoms and Administrative Law—The Case of Discretion’ in D Dyzenhaus, The Unity of Public Law (Oxford, Hart Publishing, 2004), 63; Blencoe, above n 12, 406–07 [189] (LeBel J); Evans, above n 131, 73. 242 These numbers include cases decided in federal courts during 2015, including appeals (with no double-counting); and appeals to the Supreme Court of Canada dealing with federal, but not provincial, decisions and laws. 243 See, eg, Dhaliwal v Canada (Citizenship and Immigration) 2015 FC 1010; Ewert v Canada 2015 FC 1093. 244 See, eg, Fisher v Canada (Attorney General) 2015 FCA 127. 245 See, eg, Canada (Attorney General) v Barnaby [2015] 2 SCR 563; Caplin v Canada (Justice) [2015] 2 SCR 570. 246 Ahmed v Canada (Citizenship and Immigration) 2015 FC 876; Elliott v Canada 2015 FC 877; John Doe v Canada 2015 FC 916; Deri v Canada (Citizenship and Immigration) 2015 FC 1042; Chirivi v Canada (Citizenship and Immigration) 2015 FC 1114; Hardy Estate v Canada (Attorney General) 2015 FC 1151. 247 Ahmed v Canada, above n 246 [25]. 241 M

150 Procedural Fairness would not have been an appropriate, or available, argument. The Court considered, but ultimately rejected, this argument. In those cases in which both the common law and a right to fairness are argued, they tended to be raised in relation to different aspects of the challenge. For instance, the common law was used to challenge the fairness of the decision-making process; and the ‘right’ to challenge an aspect to which procedural fairness does not apply such as the validity of legislation or regulations under which the decision was made, or the potential actions of a foreign court.248 In the few cases in which applicants argued that a decision-making process breached both their right to fairness and the common law rules of procedural fairness, Canadian courts preferred to rely on common law, if available, just as Lord Reed did in Osborn.249 This reflects the broader approach to the relationship between the Charter and common law that Canadian courts have taken since Doré v Barreau du Québec,250 discussed in detail in chapters three and six. As noted above, there has been very little discussion or use of the Australian rights to fair hearings under the ACT and Victorian Charters. This is probably a result of the fact that the prevailing view appears to be that the rights simply codify the common law. Furthermore, it would not make sense to rely on section 24 of the Victorian Charter and not the common law in a judicial review application, given the effect of section 39. The limited case law on section 24 of the Victorian Charter suggests that, as in Canada, neither litigants nor judges are abandoning the common law rules of natural justice in favour of rights to fairness. Like in Canada, applicants for review relying on section 24 tend also to raise common law fairness grounds and, thus far, judges have tended to focus on these common law arguments and not Charter rights.251 Thus, there is nothing to suggest that the entrenchment of a right to due process or a fair hearing has the effect of stunting, impoverishing or sterilising the development of common law procedural fairness principles. VI. ENTRENCHMENT OF PROCEDURAL FAIRNESS

The final question examined in this chapter is whether express constitutional protection of a right to fairness in administrative proceedings affects the ease with which parliaments can remove or alter common law fairness principles. Unlike the other questions explored in this chapter, this one does not come from commentary, but instead from the Australian experience. There have been indications from the High Court of Australia in recent years that natural justice now has a similar status to

248 See, eg, Tareen v Canada (Citizenship and Immigration) 2015 FC 1260; Malambu v Canada (Citizenship and Immigration) 2015 FC 763. 249 See, eg, Hailu v Canada (Citizenship and Immigration) 2015 FC 1096. 250 Doré v Barreau du Québec [2012] 1 SCR 395 (Doré). 251 See, eg, Strangio v Magistrates’ Court of Victoria [2013] VSC 496; Pham v Nguyen [2013] VSC 295; Waddington v Magistrates’ Court of Victoria and Kha (No 2) [2013] VSC 34; A & B v Children’s Court of Victoria [2012] VSC 589; Biddle v Allan [2012] VSC 538.

Entrenchment of Procedural Fairness 151 those classic common law rights long recognised, and protected in various ways, by courts—such as liberty and property. The result is that it is very difficult for Australian parliaments to limit, or oust, the common law rules of procedural fairness. In this section, I analyse whether these developments might be the result of Australian courts compensating for the absence of a protected statutory or constitutional right to fairness, by comparing the extent to which common law fairness rules are entrenched in Australia and Canada. A. The Australian Position Prior to the decision in Kioa, it was well established that parliaments could oust any requirement that a decision-maker afford natural justice, by using clear words to that effect, or by creating a statutory scheme that on ‘proper construction’ implied that natural justice did not apply.252 Barwick CJ summarised the position in Salemi v Mackeller (No 2): [T]he Parliament is not bound to provide that natural justice be accorded. It may enact a power which it intends should be exercised by its donee without regard to the demands of natural justice. In such a case, the courts cannot override the intention of the Parliament. It is not necessary that that intention should be expressly stated. Prima facie, the courts will conclude that the Parliament does not intend injustice or to authorize it. However, mere silence on the part of the Parliament does not mean that the courts are therefore free to import the obligation to accord natural justice. It still remains for the courts to find what I have called the qualification of the power by construing the statute taking into consideration all the elements to which I have referred.253

Mason J’s judgment in Kioa heralded a stricter approach, where procedural fairness would apply ‘subject only to the clear manifestation of contrary statutory intention’.254 Thus, in Annetts v McCann255 the majority of the High Court held that legislation which set out various procedural rights of persons with an interest in coronial inquests, but was silent on the issue of whether those persons were entitled to make submissions to the coroner, did not exclude the right to make submissions. This conclusion was reached based on the fact that there was nothing in the relevant Act that indicated that the rules of natural justice were not intended to apply. This was despite the fact that the relevant legislation was enacted 65 years prior to the decision in Kioa, at a time where natural justice would not have been thought to apply to the coroner’s decisions.256

252

Salemi v Mackeller, above n 66, 401 [4] (Barwick CJ). ibid 402. 254 Kioa, above n 62, 584. 255 Annetts v McCann, above n 77. 256 ibid 599–600 (Mason CJ, Deane and McHugh JJ). In recent years, several members of the High Court of Australia have expressed the view that legislative intention is a fiction, and that a court’s role is therefore not to ascertain Parliament’s actual intent, but rather its deemed intention: which is a product of the canons of statutory construction. See generally R Ekins and J Goldsworthy, ‘The Reality and Indispensability of Legislative Intentions’ (2014) 36 Sydney Law Review 39. It is outside the scope of this book to explore this issue in detail, and nor do I express a view on whether I agree with these recent 253

152 Procedural Fairness More recently, the High Court has signalled an even stricter approach to legislative attempts to limit or define the scope of natural justice. The cases of Re Minister for Immigration and Ethnic Affairs; Ex parte Miah257 and Saeed v Minister for Immigration and Citizenship258 illustrate that ‘clear words of necessary intendment’ will no longer be sufficient for legislation to oust or limit fairness, but that ‘irresistible clearness’259 is now required. This is the same threshold that has long been required for parliaments to oust fundamental common law rights.260 Both cases concerned sections in the Migration Act 1958 (Cth) that the explanatory material and parliamentary debates indicated were designed to exhaustively set out the rules of natural justice applicable to aspects of migration decision-making. In Miah, the Minister refused to issue a protection visa to a Bangladeshi applicant on the basis that there had been a change of government in Bangladesh between the date the applicant applied for protection and the date of the Minister’s decision. Mr Miah was not given the opportunity to comment on this issue, which he argued was a breach of the Minister’s duty to afford him procedural fairness. The Act set out procedures that applied under the heading ‘Code of procedure for dealing fairly, efficiently and quickly with visa applications’. The code stated that the Minister was required to give applicants the opportunity to make submissions only on information specific to them and not information that was ‘just about a class of persons of which the applicant … is a member’. The Explanatory Memorandum to the Bill that introduced the procedural code stated that the code was intended to ‘replace the uncodified principles of natural justice with clear and fixed procedures’.261 Nevertheless, a majority of the Court held that neither the inclusion of the detailed set of procedures, nor the use of the label ‘code’ gave a sufficiently clear indication that the legislature intended to oust the rules of natural justice, which required that Miah have the opportunity to comment on the change of government.262 McHugh J drew attention to the contradiction between the Act’s statement that the code was intended to ensure that visa applications were dealt with ‘fairly’ and the Minister’s argument that rules of natural justice necessary to ensure fairness were impliedly excluded. His Honour noted that the Court was required to give effect to the express language of the Act rather than to extraneous material, and that this is ‘particularly important when the Minister’s meaning has serious consequences for an individual’.263 The Commonwealth Parliament responded to this decision by adding sections to the Migration Act 1958 (Cth) which provided that the subdivisions setting out the procedures that apply to the making of visa decisions under the Act are ‘taken to

developments. Here the word ‘intention’ is used in the orthodox way, which assumes that legislatures do have objective and ascertainable intentions. 257

Miah, above n 96. Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 (Saeed). 259 ibid 259 [15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). 260 Potter v Minahan (1908) 7 CLR 277, 304 (O’Connor J), cited in Saeed, above n 258, 259 [15]. 261 Explanatory Memorandum to the Migration Reform Bill 1992 [51] cited Miah, above n 96, fn 66 (emphasis added). 262 Miah, above n 96, 83–85 [90]–[95] (Gaudron J), 95–98 [131]–[143] (McHugh J), 111–15 [178]–[188] (Kirby J). 263 ibid 95 [132]. 258

Entrenchment of Procedural Fairness 153 be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it [the relevant subdivision] deals with’.264 In Saeed, the Court was asked whether one such subdivision, which set out the procedures for dealing with, among other things, applications for skilled visas, had ousted common law natural justice. The appellant had applied for a skilled visa and was rejected on the basis that the department’s investigations indicated that she had falsified her employment history. Ms Saeed was not given the opportunity to respond to this adverse information and argued that she had been denied natural justice. The relevant section of the code of procedure, section 57, provided that the Minister was required to provide certain adverse material to visa applicants and give them the opportunity to comment. However, section 57(3) stated that the notice and comment requirements in section 57 only applied to onshore visa applicants. Other sections within the procedural code made no distinction between the procedures applicable to onshore and offshore visa applicants. Saeed was an offshore applicant. The Minister argued that the code of procedure was an exhaustive statement of natural justice and that the express exclusion of offshore applicants from the notice procedure meant that he was under no obligation to provide offshore applicants with the opportunity to comment on adverse material. The High Court disagreed, focusing on the fact that the section inserted post-Miah stated that the subdivision was an exhaustive statement of natural justice ‘in relation to the matters it deals with’. The Court held that as offshore applicants were expressly excluded from the notice provision, the procedural code did not ‘deal with’ the matter of offshore visa applicants’ rights to be notified of and comment on adverse material. Thus, the code did not remove the common law natural justice obligations owing to offshore applicants. The reasoning applied in these two cases demonstrates how difficult it will be for the Commonwealth Parliament to exclude the common law requirements of procedural fairness through codification. The provisions examined in Saeed manifested a clear intention to exhaustively state the requirements of procedural fairness in the migration context. However, the High Court’s approach demonstrates that, when it comes to procedural fairness, the legislature will be given no latitude for ambiguity. Legislative attempts to oust procedural fairness will be construed extremely strictly, and in the case of any ambiguity or silence there will be a very strong, perhaps in some circumstances, irrebuttable presumption that the legislature did not intend to limit procedural fairness. The strength of the presumption that procedural fairness applies in these and other cases has necessitated some discussion by the Court of the source of the obligation to decide fairly. In fact, this has been an ongoing source of the debate in Australian administrative law since Kioa, in which Mason J and Brennan J articulated alternative positions. Mason J’s view was that the duty was sourced from the common law and that it could only be removed by ‘a clear manifestation of statutory intent’.265

264 There are numerous such ‘procedural codes’ within the Act, each of which covers a different category of visa decisions. See 51A(1), 97A(1), 118A(1), 127A(1), 357A(1), 422B(1). 265 Kioa, above n 62, 584.

154 Procedural Fairness In contrast, Brennan J focused more on legislative intent.266 The two justices continued their disagreement over the ‘common law’ and ‘statutory intent’ theories in subsequent cases,267 and a majority of the Court eventually endorsed Mason J’s common law approach.268 However, in more recent years many judges and commentators have noted that there is actually very little difference between the two views, particularly from a practical perspective,269 and have ceased treating the common law and statutory intent approaches as dichotomous.270 For instance, in Saeed the Court ‘left no doubt that natural justice and the interpretive assumptions surrounding it are deeply rooted in the common law’271 while also stating that: The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann.272

The majority in Plaintiff S10 went further and suggested that procedural fairness is not only founded in a combination of the common law and statute, but is also underpinned by the Constitution: The principles and presumptions of statutory construction which are applied by Australian courts, to the extent to which they are not qualified or displaced by an applicable interpretation Act, are part of the common law. In Australia, they are the product of what in Zheng v Cai was identified as the interaction between the three branches of government established by the Constitution. These principles and presumptions do not have the rigidity of constitutionally prescribed norms, as is indicated by the operation of interpretation statutes, but they do reflect the operation of the constitutional structure in the sense described above. It is in this sense that one may state that ‘the common law’ usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power. If the matter be understood in that way, a debate whether procedural fairness is to be identified as a common law duty or as an implication from statute proceeds upon a false dichotomy and is unproductive.273

Chief Justice French has expressed similar views extracurially, describing fairness as an ‘important societal value’ that is ‘indispensible to justice’.274 All of this does not mean that natural justice can never be excluded by a statutory regime in Australia. Indeed, in Plaintiff S10—the very case in which p rocedural

266

ibid 609. See, eg, Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–36 (Brennan J); Annetts v McCann, above n 77, 598 (Mason CJ, Deane and McHugh JJ), 604 (Brennan J). 268 See Haoucher v Minister for Immigration and Ethnic Affairs, above n 77; Teoh, above n 84. 269 See, eg, B Selway, ‘The Principle Behind Common Law Judicial Review of Administrative Action— The Search Continues’ (2002) 30 Federal Law Review 217, 227–28; S Kneebone, ‘What is the Basis of Judicial Review?’ (2001) 12 Public Law Review 95, 104; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, 142 [167] (Hayne J); Miah, above n 96, 83–84 [89]–[90] (Gaudron J). 270 Aronson and Groves, above n 78, 410–12. 271 ibid 411. 272 Saeed, above n 258, 258 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). 273 Plaintiff S10, above n 81, 666 [97] (Gummow, Hayne, Crennan and Bell JJ) (references omitted). 274 French, above n 41, 22–23. 267

Entrenchment of Procedural Fairness 155 fairness was described as somehow ‘constitutional’—there was no express legislative statement excluding procedural fairness from the relevant powers; yet the High Court found that exclusion was implied. The statutory provisions under consideration in the case gave the Minister exceptional powers to grant visas to individuals who failed to meet statutory criteria, and whose visa applications had previously been rejected. The powers were only exercisable by the Minister personally, and if the Minister chose to grant a visa under the powers he was required to table a statement of reasons in Parliament detailing why the decision was in the public interest. The legislation provided that the Minister was under no obligation to consider exercising these exceptional powers. The Court found that given the nature of the powers and statutory context, and particularly the fact that the Minister was under no obligation to consider exercising them, the Minister was not under an obligation to afford procedural fairness to a person who wrote to the Minister requesting that exercise of the exceptional powers. The Court emphasised the distinction between the exceptional powers, which were clearly intended to be exercised flexibly and at the total discretion of the Minister, with the other ‘tightly controlled’ powers in the Act.275 Though it was not discussed by the High Court, Aronson and Groves point out that the Court’s willingness to accept that natural justice was excluded from the exceptional powers ‘can only be understood in light of the fact that those seeking the benefit of their exercise had already had “one bite of the cherry” of fairness’.276 B. The Canadian Position As in Australia, the extension of natural justice to what were previously categorised as ‘purely administrative’ discretions in Canada, led to debate among scholars as to the source of these new duties. The issue was not, however, a new one. In 1939, John Willis described the implication of natural justice to executive decisionmakers exercising quasi-judicial powers as a process of ‘spurious interpretation’.277 Willis argued that what courts were doing in requiring those exercising quasi-judicial powers to act according to the rules of natural justice was ‘in substance, a rule of constitutional law masquerading as a rule of construction’.278 He suggested that the reasoning used by English courts to extend natural justice to tribunals exercising quasi-judicial functions in fact amounted to the creation of a ‘Pseudo Bill of Rights’, and foreshadowed that the same judicial reasoning could be used to extend natural justice to all administrative tribunals.279

275 Plaintiff S10, above n 81, 648 [30] (French CJ and Kiefel J), 664 [86] (Gummow, Hayne, Crennan and Bell JJ). 276 Aronson and Groves, above n 78, 457. 277 J Willis, ‘Administrative Law and the British North America Act’ (1939) 53 Harvard Law Review 251, 275. 278 ibid 276. 279 ibid 280.

156 Procedural Fairness Yet there was no suggestion in Nicholson that the procedural duties owed by the Board of Commissioners to the probationary constable were sourced in an implied bill of rights. The majority was not clear on the source of the duties—this was not a question that seemed to trouble them greatly. But the process of reasoning used suggested that the statutory context would be the central determinant of whether, and to what extent, fairness is required, and that where the statute is silent or not exhaustive, courts will imply a general common law rule that administrative decisions must be exercised fairly.280 In subsequent cases, however, the Supreme Court of Canada has indicated that procedural fairness may be better regarded as a common law ‘right’, the precise content of which can be affected by legislation. In Knight, a narrow majority of the Court led by L’Heureux‑Dubé J, stated that ‘[t]here may be a general right to procedural fairness, autonomous of the operation of any statute’.281 This was also the approach taken in Baker, where the Court considered the statutory context only as a factor in determining the content of the duty of fairness and not the question of whether it applied in the first place. Thus, the Canadian Supreme Court appears to view procedural fairness in much the same way as Willis foreshadowed—as a transcendent common law right, which will apply in the absence of clear statutory language otherwise. In terms of what this means for legislatures, the position is very similar to that in Australia. There is a strong presumption that the legislature does not intend to oust the common law ‘right’ to fairness but, ultimately, if the legislation is sufficiently clear, fairness may be ousted. The Supreme Court’s decision in Ocean Port, the facts of which are discussed above, confirms that this remains the case, despite the use of the word ‘right’. The British Columbia Court of Appeal had upheld Ocean Port’s challenge to the legislation in that case, and McLachlin CJ’s judgment for the Supreme Court criticised the Court of Appeal’s judgment as having ‘elevated a principle of natural justice to constitutional status’.282 The Chief Justice stated: It is well established that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute. It is the legislature or Parliament that determines the degree of independence required of tribunal members. The statute must be construed as a whole to determine the degree of independence the legislature intended.283

McLachlin CJ went on to confirm the pre-Charter position that where legislation was silent or ambiguous on the issue, courts would usually infer that Parliament intended a decision-maker to comply with the principles of procedural fairness. However, ‘like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication’.284

280 Nicholson, above n 49, 324–26 (Laskin CJ, Ritchie, Spence Dickson and Estey JJ). See also Loughlin, above n 48, 235–36. 281 Knight, above n 55, 668 [22] (L’Heureux‑Dubé J, Dickson CJ, La Forest and Cory JJ). 282 Ocean Port, above n 189, 793 [19]. 283 ibid 793 [20]. 284 ibid 794 [22].

Entrenchment of Procedural Fairness 157 On the facts of the case, the Supreme Court found that the relevant legislation was sufficiently clear to oust the common law requirement that tribunals with the power to impose sanctions have security of tenure in order to be independent from government influence. This position was confirmed more recently by the Supreme Court in Canada (Attorney General) v Mavi.285 Despite the fact that four Canadian provinces have enacted procedural codes,286 the extent to which parliaments are capable of replacing the common law rules of procedural fairness with a statutory code has not been as contested an issue as it has in Australia.287 This is probably due, at least in large part, to the nature of the provincial procedural codes themselves: each was intended to simplify and codify the common law rules rather than to limit them. Furthermore, Alberta’s legislation has minimal application, those in Québec and British Columbia are so flexible and general as to be capable of accommodating the changing requirements of common law fairness, and Ontario’s Statutory Powers Procedure Act288 (SPP Act) initially expressly defined its codified procedures as a minimum289 set of obligations and also now includes substantial scope for flexibility.290 It is clear that none of the procedural codes were intended to be exhaustive statements of the content of natural justice as it applies to provincial decisions, as none purports to cover every tribunal or decision-maker exercising power under provincial law. It is also clear that the common law is capable of filling in any gaps in the legislation to provide greater protection than is provided for under the statutes. For instance, in Ontario (Human Rights Commission) v Ontario (Board of Inquiry into Northwestern General Hospital)291 the Ontario Divisional Court held that although pre-hearing discovery was not required by the SPP Act, the common law principles of fairness required it. However, it is possible to extrapolate from the Supreme Court’s reasoning on other, related questions, that if any of the procedural codes did purport to be exhaustive statements of procedural fairness, they would likely be capable of limiting or ousting the common law provided that no Charter right was at stake. This is suggested by the Supreme Court’s decision in Canada (Citizenship and Immigration) v Khosa292 in which the Court held that British Columbia’s Administrative Tribunals 285

Mavi, above n 84, 522–23 [39]. Administrative Procedures and Jurisdiction Act, RSA 2000, c A-3; Statutory Powers Procedure Act, RSO 1990, c S 22; Act Respecting Administrative Justice, RSQ, c J-3; Administrative Tribunals Act, SBC 2004, c 45. 287 See, eg, Imperial Oil v Québec (Minister of the Environment), above n 186, 650 [39] (finding the procedural rules in the empowering legislation, coupled with the codified common law rules in the Act Respecting Administrative Justice, RSQ, c J-3, comprised the full extent of the Minister’s procedural obligations). 288 Statutory Powers Procedure Act, RSO 1990, c S 22. 289 The original 1971 version specified that the code was a ‘Minimum Code’ of procedure. While 1994 amendments removed that heading, Mullan argues that there is no reason to think that amendment was intended to make the code an exhaustive statement of applicable procedure: Mullan, Administrative Law, above n 28, 217. 290 Statutory Powers Procedure Act, RSO 1990, c S 22, s 25.1 provides that tribunals may make their own rules. 291 Ontario (Human Rights Commission) v Ontario (Board of Inquiry into Northwestern General Hospital) (1993) 115 DLR (4th) 279. 292 Canada (Citizenship and Immigration) v Khosa [2009] 1 SCR 339, 359–60 [19] (Binnie J, McLachlin CJ, LeBel, Abella and Charron JJ). 286

158 Procedural Fairness Act293 is capable of providing for a different standard of review than would apply under the common law. The decision in Ocean Port also indicates that this would be the case. VII. CONCLUSIONS

Despite the fact that persons affected by many decisions of Canadian governments have express and entrenched rights to fairness, while those affected by the actions of most Australian governments do not, this chapter has shown that there are relatively few variations between the two jurisdictions in terms of the practical duties courts place on administrative decision-makers to make decisions in accordance with the principles of natural justice. For the most part, the scope of fairness under common law is roughly equivalent in Canada and Australia and remains focused on procedural, as opposed to substantive rights. Courts in both countries take a similar position with respect to UK developments which permit judicial review on the grounds of substantive unfairness, and rejected these developments for similar reasons based on how courts view their review role under the separation of powers. The ability of legislatures to place limits on, or oust, the common law rules of procedural fairness is also not substantially different in Canada and Australia, despite the fact that fairness is entrenched in the Constitution of the former. In both, it seems that it is possible for legislatures to alter, and even oust, the common law rules provided their intention is sufficiently clear. There has been more litigation on this issue in Australia, probably because of the fact that fairness rights are entrenched in Canada. Nevertheless, the case law does not reveal that there would likely be any significant difference between the two jurisdictions. One possible point of difference between Australia and Canada on this issue is the language courts have used to emphasise the fundamental nature of the common law rules of procedural fairness, and the reason the presumption that the rules apply is so strong. The High Court of Australia has explained these points by reference to fundamental constitutional principles concerning the interaction between the three branches of government and the principles and presumptions of statutory construction. By contrast, the Supreme Court of Canada has emphasised the fundamental importance of procedural fairness by describing it as a ‘right’. This may simply be a matter of labels. Or I may be looking for a distinction where none exists. But it does seem to reflect broader trends in both jurisdictions: Australian courts have a preference for rule-based reasoning; while Canadian courts are more comfortable with the language of rights. Despite the reluctance to embrace the language of ‘rights’ in Australia, the High Court’s approach to legislative attempts to limit procedural fairness over the last decade suggests that natural justice is something akin to a fundamental right under Australian common law. While the right can theoretically be limited, the High Court has taken a similar interpretive approach to legislative attempts to limit fairness as

293

Administrative Tribunals Act, SBC 2004, c 45.

Conclusions 159 it has to legislative attempts to oust the High Court’s constitutionally entrenched power to review administrative decisions. With respect to the latter, the Court has said that, where possible, it will attempt to interpret legislation as not intending to oust judicial review, and thus as constitutionally valid.294 Although fairness is not expressly entrenched in the Australian Constitution, the High Court’s interpretive approach to legislation purporting to limit fairness is very similar, particularly it seems where decisions have serious consequences for individuals. This chapter has also identified two aspects of the content of fairness that differ between Australia and Canada. The first is the duty to provide reasons, which is much broader under common law in Canada than Australia. I suggest that this is one area in which the codification of judicial review in Australia may have prevented the need for the common law to develop along the same lines as other common law countries. However, I have also argued that the practical effects of the difference are minimal, as most administrative decision-makers in Australia are under a statutory obligation to provide reasons for their decisions. Furthermore, the chapter noted a shift away from the broad duty to give reasons in Canada over recent years, along with a change in judicial justifications of the purposes of the duty from a fairnessbased to a deference-based rationale. Accordingly, from a practical perspective, the difference between Australia and Canada with respect to the right to reasons is less than it initially appears. However, chapters five and six argue that the duty to give reasons in Canada actually underscores more significant differences in judicial approach to review and the way the Canadian Supreme Court views its constitutional role compared with the Australian High Court. The second main difference in the content of procedural fairness discussed in this chapter relates to the rule against bias. In Canada, the rule is broader in scope compared with Australia by virtue of its inclusion of a second limb of institutional bias. One particular aspect of the Canadian concept of institutional bias is the notion of tribunal independence. As detailed above, the principles of tribunal independence are extensions of the constitutionally entrenched doctrine of judicial independence, and the extension of judicial independence in this way is directly a result of the Charter and Bill of Rights. This is one area of Canadian law where human rights have had a clear impact on the development of the common law. Furthermore, there have been hints from the Victorian Civil and Administrative Tribunal that the right to a fair hearing under the Victorian Charter may have a similar impact in relation to some administrative decisions. However, the impact of the institutional bias extension in Canadian law has not been large. In many Canadian cases raising institutional bias, Australian courts would have been able to review those decisions on other grounds. And it is clear that Canadian legislatures are able to dispel the principle of tribunal independence with relative ease. Thus, while the Charter and Bill of Rights have contributed to a strengthening of certain aspects of Canadian administrative law relating to procedural fairness, no strong pattern emerges from a comparison of fairness in Australia and Canada

294 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 504–05 [71]–[72] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

160 Procedural Fairness regarding the overarching impact of the Charter on the development of the common law duty of fairness in administrative decision-making. There are certainly some areas where Canadian law offers more procedural protection to individuals affected by administrative action compared with Australian law. However, these areas are confined and are not wholly attributable to the Charter. Furthermore, they have not necessarily developed with the purpose of protecting individual rights in mind, although this may be their effect. Therefore, it is not possible to say that the constitutional and statutory protection of fairness under Canadian law has generally resulted in courts becoming more interventionist in the procedural elements of administrative decision-making. Nor is it possible to conclude that the entrenchment of fairness rights has led Canadian litigants to abandon administrative law remedies in favour of statutory or Charter ones.

5 Controlling Discretion

O

VER THE LAST 50 years, courts across the common law world have significantly expanded the scope and scale of their supervision of administrative discretion: this much has been well traversed by commentators. There no longer exists, in either Canada or Australia, the concept of an unfettered administrative discretion—although there remain some cases that courts will decline to review for various reasons. The objective of this chapter is to investigate whether, and how, Canada’s human rights framework has affected the boundaries that courts now place on, and imply into, the exercise of administrative discretion in judicial review. It examines the limits that courts in Canada and Australia place on the exercise of discretion by administrative decision-makers, including both the types of discretionary decisions that courts will find to be limited, and the broad nature of those limits—or the grounds on which courts will find discretion to have been exercised unlawfully. It is important to emphasise that, like the rest of this book, this chapter is principally concerned with the restrictions imposed on, and interpreted into, executive action by courts, rather than those imposed expressly by legislatures—though there is obviously considerable interaction and overlap between the two. Despite the centrality of discretionary administrative power to the debates and development of administrative law, the term ‘discretion’ remains difficult to define because it is used to refer to several different concepts. In Canadian administrative law, for instance, ‘discretion’ is frequently used to describe a category of powers which correspond broadly with that previously labelled as ‘purely administrative’ as opposed to ‘quasi-judicial’. In this chapter, the term ‘discretion’ is used in a broad, non-technical way. It does not refer to a specific category of administrative action, but rather to situations in which decision-makers have either ‘a power under statute or through the prerogative authority that they may exercise, [and]/or … a power that may be exercised in different ways’.1 This also reflects the way the term was defined by the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration): ‘The concept of discretion refers to decisions where the law

1 L Sossin, ‘The Unfinished Project of Roncarelli v Duplessis: Justiciability, Discretion, and the Limits of the Rule of Law’ (2010) 55 McGill Law Journal 661, 663. This is similar to the definition used by Davis: ‘A public officer has discretion whenever the effective limits of his power leave him free to make a choice among possible courses of action or inaction’: KC Davis, Discretionary Justice: A Preliminary Inquiry (Baton Rouge LA, Louisiana State University Press, 1969) 4.

162 Controlling Discretion does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries’.2 This chapter is divided into four parts. Section I outlines the history of judicial attitudes towards administrative discretion and development of legal principles to define and limit its scope. It describes the ‘classic’ or ‘traditional’ model of judicial review that Canada and Australia inherited, for the purpose of establishing the background against which modern developments have occurred. The second and third sections examine the evolution of judicial control of administrative discretion in Australia and Canada. It is argued that Australia has largely retained the core elements of the classic model of review which, with the aid of the codification of the grounds of review at the federal level, have become rigid legal principles implied into every statutory grant of discretion to the executive. By contrast, Canadian courts have moved away from traditional justifications for reviewing discretionary decisions and have all but abandoned the grounds of review as distinct legal limits on discretion. In their place the Supreme Court of Canada has introduced a contextual approach which no longer relies on a finite list of legal errors that a decision-maker might make, but instead views the much broader and more nebulous concepts of the rule of law and Charter ‘values’ as their guides to the boundaries of discretionary power. Section IV analyses the extent to which human rights from various sources restrain administrative discretion in each country. Its focus is on courts’ general treatment of rights as limits on discretion, rather than the specific content of rights as limits. Although the concern of this book is with common law, and not statutory or constitutional limits on administrative power, the fact that the Canadian and Australian charters of rights are not clear as to the extent to which protected rights limit administrative power means that this is an issue that courts have had to determine. Thus, the methodology for applying human rights as limits on administrative power has been a matter for the courts, and so falls squarely within the ambit of this book. In relation to express rights, recent developments in Canada have integrated Charter rights into the broader rule of law/values-based approach to judicial review, while in those Australian jurisdictions with charters of rights, courts have largely ignored statutory language suggesting that rights ought not to act as absolute limits on administrative discretion. The slightly odd result is that Australia’s statutory charter of rights have been interpreted as imposing stricter constraints on executive discretion than Canada’s constitutional Charter of Rights. Non-statutory sources of rights are also considered—specifically implied rights; and rights sourced in international law. A comparison of the extent to which courts in both jurisdictions are inclined to imply and import rights as direct limits on discretion reveals that while there are differences between Canada and Australia, there is no discernable general pattern of courts in either jurisdiction displaying either greater or lesser willingness to find implied human rights limits on administrative discretion.

2 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817, 852 [52] (L’HeureuxDubé, Gonthier, McLachlin, Bastarache and Binnie JJ) (Baker).

A Brief History of Judicial Attitudes Towards Discretion 163 I. A BRIEF HISTORY OF JUDICIAL ATTITUDES TOWARDS DISCRETION

The story of the common law’s relationship with administrative discretion usually commences with the emergence of the welfare state in the late-nineteenth and earlytwentieth centuries. As legislatures across the common law world increasingly conferred discretionary powers on ministers, bureaucrats, statutory agencies, tribunals and other non-judicial bodies, various scholars and judges, chief among them Dicey and Lord Hewart, expressed concerns about the threat that administrative discretion posed to the rule of law and individual liberty.3 In 1885 Dicey wrote: [The rule of law means] the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, or prerogative, or even of wide discretionary authority on the part of the government.4

Hewart went further, claiming that discretion would result in bureaucratic despotism.5 Others, including Willis, considered administrative discretion to be a legitimate method for achieving the aims of the welfare state.6 The debates between these ‘red light’ and ‘green light’ scholars have been influential in shaping the modern relationship between law and discretion in administrative law across the common law world.7 Yet the foundations of the modern relationship between law and discretion began centuries prior to the rise of the welfare state. The principle that bodies exercising discretionary powers delegated by the legislature ‘ought to be limited and bound by the rule of reason and the law’ can be traced back at least to Rooke’s Case in 1598.8 In that case a landowner challenged a decision of the Commissioners of Sewers to charge him for the full cost of a river bank repair adjoining his property, despite the fact that his was not the only land that would benefit from the repair. Although the Commissioners had a seemingly unlimited statutory discretion to levy landowners for the cost of maintenance and repairs, the Court of Common Pleas upheld the landowner’s challenge on the basis that the Commissioners had not exercised the discretion according to the rule of reason. Within 50 years, courts had made it clear that these principles were not limited to the Commissioners of Sewers, and that statutory discretions generally must be exercised reasonably and within the limits of the law.9 3 AV Dicey, Introduction to the Study of the Law of the Constitution, 10th edn (London, Macmillan, 1959); G Hewart, The New Despotism (London, Ernst Benn, 1929). 4 Dicey, above n 3, 202. 5 Hewart, above n 3, 52. 6 J Willis, ‘Three Approaches to Administrative Law: The Judicial, the Conceptual and the Functional’ (1935) 1 University of Toronto Law Journal 53; J Willis, ‘Administrative Law and the British North America Act’ (1939) 53 Harvard Law Review 251. See also: WA Robson, Justice and Administrative Law—A Study of the British Constitution, 3rd edn (London, Stevens & Sons, 1951); I Jennings, The Law and the Constitution, 5th edn (London, University of London Press, 1959); Davis, above n 1. 7 C Harlow and R Rawlings, Law and Administration, 3rd edn (Cambridge, Cambridge University Press, 2009) ch 1. 8 Rooke’s Case (1598) 5 Co Rep 99b. 9 See: W Wade and C Forsyth, Administrative Law, 10th edn (Oxford, Oxford University Press, 2009) 294; L Jaffe and E Henderson, ‘Judicial Review and the Rule of Law: Historical Origins’ (1956) 72 Law Quarterly Review 345; G Lawson and GI Seidman, ‘Necessity, Propriety and Reasonableness’ in G Lawson et al (eds), The Origins of the Necessary and Proper Clause (New York, Cambridge University Press, 2010) 121–24.

164 Controlling Discretion Likewise, many of the other implied legal limits on discretionary power that courts now commonly read into statutes—including that powers must not be exercised for improper or extraneous purposes10 and that decision-makers must take into account relevant considerations and ignore irrelevant factors11—were established common law principles prior to the beginnings of the distinct field of administrative law in the common law world.12 Thus, both Canada and Australia inherited a legal framework for preventing arbitrariness in the exercise of delegated discretionary power.13 Prior to the 1830s, courts simply applied these principles to those bodies conducting ‘the business of local government’, which took judicial forms and were therefore subject to the supervisory control of the King’s Bench.14 From the 1830s onwards, however, governments began to confer statutory discretions on a wider range of bodies. In response, courts tentatively began extending the various remedies and principles that they had traditionally used to control ‘the heterogeneous collection of bodies whose functions have been regarded as in some way resembling those of ordinary courts’15 to a wider range of administrative actors.16 In doing so, they remained cautious, seeking to carve out a distinct area of administrative discretion and avoid encroaching on that area.17 Although there was no single, unified approach among common law jurisdictions, nor for that matter within jurisdictions, the model of judicial review that developed during this period—variously labelled the ‘classic’, ‘traditional’, or ‘Dicyean’ model18—was ‘conspicuously marked by judicial restraint’ across the common law world.19 This restraint was evident in a number of elements of the model including: the ‘central principle’ that developed to justify review of administrative discretions—ultra vires; the reluctance of courts to review decisions of ministers; and the narrowing of the category of ‘jurisdictional errors’. Each element was present in the approaches of both Australian and Canadian courts, as both tended to follow England’s lead, particularly while appeal was available to the Privy Council. There were, however, variations in application, which are discussed throughout the following sections.

10

See, eg, Webb v Manchester and Leeds Railway Co (1839) 4 My & CR 116. Sharp v Wakefield [1891] AC 173, 179–81. 12 See PP Craig, Administrative Law, 7th edn (London, Sweet & Maxwell, 2012) 567–76. 13 See, eg, Phillips v Redpath (1830) 2 UCQB (OS) 243; R v Arndel (1906) 3 CLR 557. 14 SA de Smith, ‘Wrongs and Remedies in Administrative Law’ (1952) 15 Modern Law Review 189, 191–92. 15 W Friedmann and D Benjafield, Principles of Australian Administrative Law, 2nd edn (Sydney, Law Book Co, 1962) 144. 16 See, generally, de Smith, ‘Wrongs and Remedies’, above n 14. 17 DJ Galligan, Discretionary Powers: A Legal Study of Official Discretion (Oxford, Clarendon Press, 1986) 222–28; D Mullan, ‘Judicial Deference to Executive Decision-Making: Evolving Concepts of Responsibility’ (1993) 13 Queen’s Law Journal 137; Friedmann and Benjafield, above n 15, ch 10; D Mullan, ‘The Supreme Court of Canada and Tribunals—Deference to the Administrative Process: A Recent Phenomenon or a Return to Basics?’ (2001) 80 Canadian Bar Review 399. 18 C Harlow, ‘A Special Relationship? American Influences on Judicial Review in England’ in I Loveland (ed), A Special Relationship? American Influences on Public Law in the UK (Oxford, Clarendon Press, 1995) 83–87; M Taggart, ‘Reinventing Administrative Law’ in N Bamforth and P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing, 2003). 19 Harlow, ‘A Special Relationship’, above n 18, 83. See further Taggart, ‘Reinventing’, above n 18; M Loughlin, ‘Procedural Fairness: A Study of the Crisis in Administrative Law Theory’ (1978) 28 University of Toronto Law Review 215, 216. 11 See

A Brief History of Judicial Attitudes Towards Discretion 165 A. The Ultra Vires Doctrine Jaffe and Henderson ascribe courts’ reluctance to apply the relatively settled principles of judicial review to the expanding administrative powers to the ‘dogma of legislative supremacy’ which they said had ‘assumed obsessive proportions’ following the publication of Dicey’s work.20 The influence of the principle of parliamentary sovereignty is particularly evident in the way in which courts justified their intrusions into new administrative discretions—the ultra vires doctrine. Despite the fact that judicial review predates the establishment of parliamentary democracy in the UK, courts began to justify review of administrative (though not ‘quasi-judicial’) Acts by claiming that the limits they imposed on executive discretion were sourced in statute.21 This became a central feature of the classic model of review, and fundamental to its legitimacy, though many commentators have since questioned how a doctrine with its origins in mid-nineteenth-century public utilities cases could be used to ‘account for the prerogative writs that had been in use by the courts for several centuries’.22 The grounds on which administrative decision-makers could be found by courts to have acted ultra vires developed from the long-standing legal principles that courts had applied in interpreting the powers of inferior courts, tribunals and statutory bodies, mentioned above. In developing these grounds during the first half of the twentieth century, and extending their application, courts were clearly cognisant of ‘green-light’ arguments and of the separation of powers, and attempted to carve out an area of executive power in which courts could not interfere. This was done with the aid of a number of dichotomies which have served to enforce and define the often nebulous boundaries between the judicial and administrative tasks under the tripartite division of powers. These dichotomies, which overlap significantly with one another, are variously described as between: legality and merits; law and discretion;23 law and fact;24 and process and substance.25 An alternative formulation sees law, fact and discretion as existing in a trichotomy.26 Irrespective of the labels, with each dichotomy or trichotomy the role of courts is restricted to reviewing whether the decision-maker was correct with respect to the first aspect while,

20

Jaffe and Henderson, above n 9. See also Craig, Administrative Law, above n 12, 4–6. PA Joseph, ‘The Demise of Ultra Vires—Judicial Review in the New Zealand Courts’ [2001] Public Law 354, 365–66. 22 ibid 364; J Laws, ‘Law and Democracy’ [1995] Public Law 72; PP Craig, ‘Ultra Vires and the Foundations of Judicial Review’ (1998) 57 Cambridge Law Journal 63. 23 The legality/merits and law/discretion distinctions appear to be essentially the same: the former terminology is more common in Australia; the latter in Canada. 24 See generally: T Endicott, ‘Questions of Law’ (1998) 114 Law Quarterly Review 292; I Ellis-Jones, ‘The Ever-Elusive Fact/Law Distinction’ (2007) 13 Local Government Law Journal 66. 25 The process/substance dichotomy has its origins in American ‘legal process’ jurisprudence, and defines the role of courts as limited to the way in which a decision is made and issues of legal authorisation. For a Canadian perspective, see D Dyzenhaus and E Fox-Decent, ‘Re-thinking the Process/Substance Distinction: Baker v Canada’ (2001) 51 University of Toronto Law Journal 193, 195–56. 26 See M Taggart, ‘Proportionality, Deference, Reasonableness’ [2008] New Zealand Law Review 425, 451. 21

166 Controlling Discretion insofar as is possible, leaving findings on matters of merit, discretion, facts,27 and substance to the executive so as not to undermine the legislature’s intent to confer decision-making authority on the administration. Those legal errors with a potential to impinge on the merits, discretion, facts, or substance of a decision were thus framed in deferential terms with high thresholds for judicial intervention. The term ‘deference’ itself is contentious in Australia,28 New Zealand29 and, to a lesser extent, the UK.30 However, the high threshold tests that applied to the various grounds of review under the classic model demonstrate that courts were concerned with respecting the fact that legislatures had chosen to confer the power to make particular decisions on the executive.31 They probably also reflect the fact that courts were portraying the limits as statutory implications, and it would have been difficult to ascribe more stringent limits to legislatures. Although there is no scope within the tests themselves for courts to defer to a decision-maker’s views, each of the ultra vires grounds is structured in a way that clearly contains an inbuilt, or ‘off-the-shelf’ level of deference.32 The most obvious example is the Wednesbury unreasonableness ground, which implicitly acknowledges that reasonable minds may differ, and requires courts to defer to any reasonable findings of decisionmakers.33 However, other grounds of review may also be viewed as entrenching deference, for instance the high thresholds for the ‘no evidence’ ground—which in both Australia and Canada required that there be a complete absence of material to support certain material factual findings34—can be seen as requiring courts to defer to decision-maker’s factual findings unless no sensible and rational decision-maker would have found those facts to exist. While the boundaries between legality and merits, law and fact, law and discretion, and process and substance are frequently difficult to draw, courts attempted to retain the dichotomies, and by extension deference, by imposing strict barriers on the questions that judges would even ask of decision-makers. For instance, when it came to the relevancy grounds of review—allegations that a decision-maker has taken an irrelevant matter into account, or failed to consider a relevant matter—under the classic model, courts drew the law/merits boundary at the point at which a

27

Except jurisdictional facts. Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 151–55 [39]–[49] (Gleeson CJ, Gummow, Kirby and Hayne JJ), 158–59 [59]–[60] (Gaudron J). 29 DR Knight, ‘Mapping the Rainbow of Review: Recognising Variable Intensity’ [2010] New Zealand Law Review 393, 399–411. 30 See: Wade and Forsyth, above n 9, 308–09; TRS Allan, ‘Human Rights and Judicial Review: A Critique of “Due Deference”’ (2006) 65 Cambridge Law Journal 671; J Jowell, ‘Judicial Deference: Servility, Civility or Institutional Capacity?’ [2003] Public Law 592. But compare comments in R (Carlile) v Secretary of State for the Home Department [2015] AC 945, 964–65 [20]–[22] (Lord Sumption), 1007 [150] (Lord Kerr). See also Harlow and Rawlings, above n 7, 137. 31 Taggart, ‘Proportionality’, above n 26, 454–61. 32 Knight, above n 29, 413–15. 33 D Irvine, ‘Judges and Decision-Makers: The Theory and Practice of Wednesbury Review [1996] Public Law 59, 62–63. 34 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100, 119; R v Nat Bell Liquors Ltd [1922] 2 AC 128, 144; Douglas Aircraft of Canada Ltd v McConnell [1980] 1 SCR 245, 277. 28

A Brief History of Judicial Attitudes Towards Discretion 167 ecision-maker weighs competing considerations. Courts would examine whether d relevant matters were in fact taken into account and irrelevant matters ignored, but would not consider the weight that a decision-maker gave to competing relevant considerations. This is because the weighing of considerations is viewed as the ‘discretionary’ aspect of decision-making—or the merits of a decision rather than a question of law.35 Although by the 1950s there was some level of agreement regarding the grounds on which courts would find administrative decision-makers to have exercised discretion unlawfully, there was, and still is, no single agreed method of categorising or labelling the grounds of review.36 Particularly troublesome were the grounds on which decision-makers could abuse their discretion, which were the focus of Lord Greene’s famous analysis in the Wednesbury decision.37 Lord Greene suggested that the requirement that discretion be exercised according to the rule of reason has two meanings in judicial review. The first is as shorthand for the list of grounds on which courts frequently review the exercise of administrative discretion—the relevancy grounds and improper purpose: It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’.38

The second sense in which Lord Greene said unreasonableness applies in judicial review is as a distinct ground of review, which applies where the courts cannot identify a specific legal error but the decision is so absurd as to warrant judicial intervention. In this respect, Lord Greene wrote: Similarly there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hair.39

Lord Greene pointed out, as many others have done since, that these two meanings of unreasonableness are not wholly separate and frequently overlap. With regard to the red-headed teacher example, Lord Greene continued: That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.40

Much later, Lord Diplock wrote of there being three broad heads of review: illegality; irrationality; and procedural impropriety.41 With respect to the first two, which 35

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41 (Mason J). Harlow and Rawlings, above n 7, 100. 37 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury). 38 ibid 229. 39 ibid. 40 ibid. 41 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 (CCSU). 36

168 Controlling Discretion are the main grounds used by courts to control administrative discretion,42 Lord Diplock defined illegality as including those grounds focused on whether a decisionmaker has ‘understood correctly the law that regulates his decision-making power’.43 ‘Irrationality’ was defined by Lord Diplock as applying to a decision ‘which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’—unreasonableness in the second sense articulated by Lord Greene in the Wednesbury case. It is not entirely clear whether the other grounds listed by Lord Greene in Wednesbury as comprising the first meaning of unreasonableness—the implied legal limits on discretion—would be labelled as illegality or irrationality by Lord Diplock. Nor is it clear where the ‘no evidence’ ground would fall. All one need do is look at the myriad ways in which the grounds of substantive judicial review are dealt with by the leading textbooks in order to realise that the same uncertainties regarding categorisation of the substantive grounds remain today.44 The difficulty in defining and categorising the grounds on which administrative decisions may be found unlawful is no doubt due to the significant overlaps between the various grounds, as recognised by Lord Greene.45 B. The Classification of Functions A second way in which judicial restraint was achieved under the classic model was via the classification of functions as ‘judicial’ or ‘quasi-judicial’ and ‘administrative’ or ‘ministerial’,46 and the view that each category demanded different levels of judicial control. Generally, the long-standing principles associated with errors of law and jurisdiction applied to functions classed as ‘quasi-judicial’, while ‘administrative’ decisions were reviewed using the developing ultra vires principles, though as the latter developed it became clear that there was much overlap between the two sets of principles.47 There was a great deal of variation and ambiguity in the

42 There is some question about whether decision-makers’ procedural choices are a discretion and should be afforded any deference: see ch 6 III.C. 43 CCSU, above n 41, 410. 44 See, eg, H Woolf et al, De Smith’s Judicial Review, 7th edn (London, Sweet & Maxwell, 2013) chs 5 and 11 (the authors classify the grounds of improper purpose, the considerations grounds, delegation, and acting under dictation as ‘illegality’; while unreasonableness, proportionality and unreasonable processes are classified as ‘substantive review’); M Aronson and M Groves, Judicial Review of Administrative Action, 5th edn (Sydney, Lawbook Co, 2013) chs 5 and 6 (refers to relevancy grounds, a failure to enquire, fettering discretion and improper purpose as ‘irrationality’ grounds; while unreasonableness, proportionality, improper delegation and procedural errors are categorised as ‘illegal outcomes and acting without power’); Wade and Forsyth, above n 9, ch 11 (divide the grounds between those involving the improper transfer or constraint of discretion and those involving abuse of discretion). Most Canadian texts do not go into detailed discussion of the substantive grounds of review, for reasons discussed below: see, eg, G Van Harten et al, Administrative Law: Cases, Text, and Materials, 7th edn (Toronto, Emond Montgomery, 2015) 891–922. 45 See also Harlow and Rawlings, above n 7, 100. 46 The ‘ministerial’ categorisation was particularly troublesome: see JH Grey, ‘Discretion in Administrative Law’ (1979) 17 Osgoode Hall Law Journal 107, 113. 47 de Smith, ‘Wrongs and Remedies’, above n 14, 194; Friedmann and Benjafield, above n 15, 181–82.

A Brief History of Judicial Attitudes Towards Discretion 169 use of these labels by courts and many authors pointed out, both at the time and subsequently, that courts’ attempts to classify functions in these ways was inherently flawed, pointless and subject to manipulation.48 In most cases the need for classification stemmed from the limits of judicial review’s remedies, and specifically the fact that the most widely used remedies, certiorari and prohibition, were generally only available in respect of ‘quasi-judicial’ functions.49 In some cases, however, the need to classify functions was discussed without any explicit reference to a link with the availability of remedies, with classification being seen as determining the ‘reviewability’ of questions generally.50 One of the main effects of classification was that functions performed by ministers were usually categorised in a manner that precluded or severely limited judicial review.51 For much of the twentieth century the only limit on powers classified as ‘purely administrative’ was that the decision-maker act ‘bona fide in what they believed to be a discharge of their duties’.52 However, there were exceptions where courts showed a greater willingness to interfere in matters they classed as ‘administrative’.53 The classification of functions was particularly prevalent in Canada as a method of achieving judicial restraint during the early-twentieth century, and was applied as a stand-alone principle that protected decisions made by ministers, departing from its link to the availability of specific remedies. For instance, in The King v Noxzema Chemical Company of Canada Ltd54 the Supreme Court of Canada held that it could not review a decision by the Minister of National Revenue to determine the amount of tax payable by the respondent company. The Court classed the Minister’s statutory power to assess whether companies were deliberately selling their products at a lower price to a related company in order to reduce their tax burden, and determine tax liabilities accordingly, as a ‘purely administrative function’ and accordingly ‘not open to review by the Court’.55 Similarly, in Pioneer Laundry and Dry Cleaners Ltd v Minister of National Revenue56 the Supreme Court of Canada displayed greater reluctance to intrude on ministerial discretions compared with the Privy Council. A majority of the Court

48 See, eg, DM Gordon, ‘“Administrative” Tribunals and the Courts’ (1933) 49 Law Quarterly Review 94; de Smith, ‘Wrongs and Remedies’, above n 14; Woolf et al, above n 44, 246. 49 Friedmann and Benjafield, above n 15, 144–55; de Smith, ‘Wrongs and Remedies’, above n 14, 192–93, 199. 50 See, eg, Weinberger v Inglis [1919] AC 606; The King v Noxzema Chemical Company of Canada Ltd [1942] SCR 178. 51 See Woolf et al, above n 44, 1047–64. 52 Weinberger v Inglis, above n 50, 621 (Lord Buckmaster). See also Liversidge v Anderson [1942] AC 206; R v Arndel, above n 13; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492. 53 See, eg, Roberts v Hopwood [1925] AC 578. 54 The King v Noxzema, above n 50. 55 ibid 180 (Davis J, Duff CJ), 186 (Kerwin, Rinfret and Hudson JJ) (making statements to a similar effect). 56 Pioneer Laundry and Dry Cleaners Ltd v Minister of National Revenue [1939] SCR 1; [1940] AC 127.

170 Controlling Discretion found that the Minister’s discretion to assess the amount taxpayers could claim as deductions in respect of depreciation was limited only by the express terms of the relevant statute. The Court did not consider that the discretion was required to be exercised according to any implied limits of rationality or reasonableness.57 Nor did they feel it necessary to classify the Minister’s function as ‘purely administrative’ in order to make this finding. By contrast, the Privy Council classified the power as ‘quasi-judicial’58 and went on to find that the Minister’s decision was unlawful on the basis that it had been based on an irrelevant factor.59 David Mullan has argued that the greater reluctance of Canadian courts to review decisions of government ministers, and the relatively small number of cases in which they were asked to do so compared with the UK, was largely attributable to the different roles that tribunals played in Canada and the UK.60 Canada has historically used tribunals to perform regulatory tasks to a greater extent than the UK, which tended to designate more such functions to ministers and their departments. Paul Craig provides an account of the historical reasons for the transfer of power from boards to ministers and central agencies during the mid-nineteenth-century, which he argues was largely motivated by political forces and a desire by the UK Parliament for greater levels of accountability.61 The result is that UK courts became more familiar and confident in reviewing decisions of ministers and the central bureaucracy, and ‘invoking such review concepts as taking into account of irrelevant factors, failing to take account of relevant factors and Wednesbury unreasonableness’, compared with Canadian courts.62 The classification of functions also played a more significant role in Canadian law much later than it did in either Australia or the UK, albeit under a different guise. Until the Baker decision in 1999,63 Canadian courts continued to hold the view that ‘discretionary’ or ‘purely administrative’ powers (which tended to be those exercised by ministers and their departments) were inherently different from those powers exercised by tribunals. The latter were said to be governed by law, while the former were subject to what courts claimed was more limited intervention on ultra vires grounds, but which, in fact, were often very similar to the principles applied to tribunals. The distinction was finally broken down in Baker, the results of which are discussed in detail below. The shift in judicial attitudes to administrative discretion in the UK that heralded the beginning of the more interventionist modern approach was articulated in Padfield v Minister of Agriculture, Fisheries and Food.64 In that case, which involved a seemingly unbounded ministerial discretion to establish committees of investigation,

57

ibid [1939] SCR 1 8–10 (Hudson and Crockett JJ), 10–11 (Kerwin J) (Davis J and Duff CJ dissenting). Pioneer Laundry and Dry Cleaners Ltd v Minister of National Revenue [1940] AC 127, 136. ibid 137. 60 Mullan, ‘Judicial Deference’, above n 17, 147–49. 61 Craig, Administrative Law, above n 12, 41–52. 62 Mullan, ‘Judicial Deference’, above n 17, 147–49. 63 Baker, above n 2. 64 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (Padfield). 58 59

A Brief History of Judicial Attitudes Towards Discretion 171 the House of Lords held that no discretionary administrative discretion is completely unfettered. In this respect, Lord Upjohn wrote: The use of that adjective [unfettered], even in an Act of Parliament, can do nothing to unfetter the control which the judiciary have over the executive, namely, that in exercising their powers the latter must act lawfully and that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion upon the Minister rather than by the use of adjectives.65

A majority of their Lordships also suggested in obiter that had the Minister failed to provide reasons for his decision, this would not have prevented the Court from intervening. For instance, Lord Hodson explained: True it is that the Minister is not bound to give his reasons for refusing to exercise his discretion in a particular manner, but when, as here, the circumstances indicate a genuine complaint for which the appropriate remedy is provided, if the Minister in the case in question so directs, he would not escape from the possibility of control by mandamus through adopting a negative attitude without explanation.66

This point is particularly noteworthy given the developments that have occurred with respect to the interaction between concept of reasonableness and reasons, discussed in more detail in chapter six. After the Padfield decision, it seemed that there were no longer any categories of statutory discretionary power that were entirely outside the ambit of the principles of judicial review in the UK, regardless of how discretions were described or the person on whom they were conferred. Subsequently, the House of Lords also shifted its approach to review of provisions requiring decision-makers to ‘have a reasonable belief’ of a particular state of affairs, or similar. Previously in such cases, courts had restricted themselves to reviewing whether the decision-maker honestly held such a belief.67 However, following Padfield, the House of Lords endorsed Lord Atkin’s dissent, which imposed an ‘objective’ test, requiring that a decisionmaker have reasonable grounds on which to form a belief.68 There are, however, still certain administrative decisions that courts will decline to review on the basis that they are not matters within the constitutional role or institutional capacity of courts.69 The current authors of De Smith’s Judicial Review argue that the purposes served by classification—of ensuring that courts refrain from intruding on highlevel policy decisions and respect the separation of powers—are now served by the concept of justiciability. They point out that some of the questions courts ask in determining whether a matter is justiciable are similar to those that used to be asked to classify functions.70 Though it should also be noted that the range of decisions

65

ibid 1060. 1049. See similar comments at 1032–33 (Lord Reid), 1053 (Lord Pearce), 1061–62 (Lord Upjohn) 67 Liversidge v Anderson, above n 52, 220 (Viscount Maugham), 248 (Lord MacMillan), 262 (Lord Wright), 275 (Lord Romer). 68 ibid 225–47 (Lord Atkin). See, eg, Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952, 1101 (Lord Diplock). 69 See Woolf et al, above n 44, 19–30. 70 ibid 1048. 66 ibid

172 Controlling Discretion that are non-justiciable in the UK is now very narrow, and seems to be becoming increasingly so.71 C. The Narrowing of Jurisdictional Errors A third method through which judicial restraint towards executive decision-makers was achieved under the classic model of review was via the concept of jurisdictional error. The Court of Kings Bench had, from the seventeenth century, restricted itself to issuing the writs of certiorari and prohibition to errors by inferior courts that affected their jurisdiction (or, in the case of certiorari, other legal errors that were apparent on the face of the record).72 However, prior to the nineteenth century, nearly all errors were treated as affecting an inferior court’s jurisdiction. It was only as the courts began to expand the application of the writs to an increasing number of bodies whose powers could be described as ‘quasi-judicial’, that the categories of error that would be treated as ‘jurisdictional’ began to narrow.73 The distinction between jurisdictional and non-jurisdictional errors was always fraught, but in essence courts attempted to distinguish between matters that affected a tribunal’s capacity to engage in the exercise of discretionary functions—or those matters ‘preliminary or collateral’ to the exercise of power—and errors made in the performance of that discretion. There were limited remedies available where a decision-maker had exercised their authority within jurisdiction—by considering irrelevant materials, acting for an improper purpose etc. The jurisdictional/non-jurisdictional distinction was abolished in the UK in a series of cases commencing with Anisminic v Foreign Compensation Commission74 and culminating with R v Hull University Visitor; Ex parte Page.75 These cases are also regarded as the final nail in the coffin of the distinction between the principles of review for ‘jurisdictional error’ and those of ‘ultra vires’.76 As was outlined in chapters two and three respectively, neither Australia nor Canada followed the House of Lords in full in abolishing the distinction between jurisdictional and nonjurisdictional errors, though both have moved on from the narrow approach to jurisdictional error that existed prior to Anisminic. Australia has retained the distinction between jurisdictional and non-jurisdictional errors, though substantially expanded the scope of the former category, and has also merged the doctrine with that of ultra

71

ibid 19–30, 119–43. 203; de Smith, ‘Wrongs and Remedies’, above n 14. On the complex relationship between mandamus and jurisdictional error, see: EG Henderson, Foundations of English Administrative Law: Certiorari and Mandamus in the Seventeenth Century (Cambridge MA, Harvard University Press, 1963) ch 4; Friedmann and Benjafield, above n 15, 180–82. 73 Woolf et al, above n 44, 203–04; DM Gordon, ‘The Relation of Facts to Jurisdiction’ (1929) 45 Law Quarterly Review 459. 74 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (Anisminic). 75 R v Hull University Visitor; Ex parte Page [1993] AC 682. See generally, T Endicott, A dministrative Law, 2nd edn (Oxford, Oxford University Press, 2011) 303–05. A recent attempt to reintroduce the distinction between jurisdictional and non-jurisdictional errors failed: R (Cart) v Upper Tribunal [2012] 1 AC 663, 683 (Baroness Hale). 76 Aronson and Groves, above n 44, 14–15. 72 ibid

Controlling Discretion in Australia 173 vires.77 Canada originally sought to move away from the need to assign errors to formal categories to determine whether remedies applied, instead introducing its ‘pragmatic and functional’ test, though recently appears to have reinvigorated the notion that some errors might be ‘truly jurisdictional’.78 The implications of these approaches for the scope of discretion are considered in more detail below. II. CONTROLLING DISCRETION IN AUSTRALIA

Australian courts have largely maintained the central elements of the classic model of judicial review with the exceptions of classifying functions and excluding decisions made by ministers from review. It is not entirely clear from Australian case law whether certiorari and prohibition remain limited to judicial and quasi-judicial decision-making.79 However, the enactment of judicial review statutes in most Australian jurisdictions, apparent abolition of the Crown immunity rule with respect to mandamus,80 and increased use of equitable remedies mean that an alternative to certiorari and prohibition will usually be available to remedy errors made by ministers and central government departments. Australian courts have also reviewed the exercise of statutory powers conferred on vice-regal representatives.81 Thus, as in the UK, there is no such thing as an unfettered statutory discretion in Australian law.82 It seems, too, that common law and prerogative powers are reviewable in Australia, though the High Court has not yet ruled on the matter.83 Like in the UK, various decisions have been found to be non-justiciable, usually because of their highly political nature or because their legitimacy does not depend on legal standards. However, Australian courts have stressed that it is not possible to provide a list of ‘non-justiciable’ topics as the House of Lords attempted to do in CCSU. In the 2009 case of Stewart v Ronalds, Allsop P explained that justiciability in Australian law will usually depend on the nature of the particular controversy: Often the nature and extent of rights of individuals, whether of a proprietary or other character, as affected by the asserted wrong will bespeak a justiciable controversy. The presence of standards capable of being assessed legally may do likewise.84

77 See Kirk v Industrial Court (NSW) (2010) 239 CLR 531 (Kirk); Aronson and Groves, above n 44, 15. 78 Dunsmuir v New Brunswick [2008] 1 SCR 190, 225–26 [59] (Dunsmuir). 79 See Aronson and Groves, above n 44, 785. 80 The High Court has yet to rule on this issue, but Aronson and Groves note that Australian law ‘seems to be going in the same direction’ as UK law in this respect: above n 44, 809. 81 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; FAI Insurances Ltd v Winneke (1982) 151 CLR 342. 82 FAI Insurances v Winneke, above n 81, 368 (Mason J); Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, 503–04 [70] (Kirby and Callinan JJ); Wotton v Queensland (2012) 246 CLR 1, 9–10 [9]–[10] (French CJ, Gummow, Hayne, Crennan and Bell JJ). 83 The Federal Court endorsed the CCSU approach in Minister for the Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218. Various members of the High Court have suggested that non-statutory powers are reviewable, see, eg: Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35 (Brennan J); Director of Public Prosecutions (SA) v B (1998) 194 CLR 566, 599 [62] (Kirby J); Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44, 65 [66]–[69] (McHugh, Gummow and Hayne JJ). 84 Stewart v Ronalds (2009) 232 FLR 331, 345 [43].

174 Controlling Discretion A. The Grounds of Review The grounds on which Australian courts will review administrative action have changed little from the classic model. As noted in chapter two, the grounds of review are listed with a fairly high degree of specificity in sections 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), and with a few exceptions the enumerated grounds have been taken to codify the grounds available at common law. Where review is sought under the ADJR Act or one of its state equivalents that list the grounds on which applications for review can be made, applicants obviously need to specify the subsection of the Act under which the application is made. In making an application for judicial review under common law (in state courts), the Constitution or the Judiciary Act 1903 (in federal courts), applicants will likewise specify the particular ground or grounds on which the relevant administrative action is alleged to be unlawful. Courts will then usually consider whether each ground of review is made out on the facts.85 Thus, the grounds on which courts will find discretion to have been exercised unlawfully have become fairly narrow legal rules in their own right rather than examples of arbitrariness or unreasonableness. Only one ground of review has been added to Australian common law since the Kerr Committee listed the grounds of review to be included in the ADJR Act in 1971—‘serious irrationality’. The serious irrationality ground was first a rticulated in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002,86 which involved a decision of the Refugee Review Tribunal to refuse the applicant a protection visa. The Tribunal found the applicant’s claim of having assisted dissidents in Sri Lanka ‘implausible’ and thought that the applicant lacked credibility, concluding that he did not have a well-founded fear of persecution. The applicant argued that the process of reasoning through which the Tribunal had reached its findings as to his credibility was illogical, principally because it had given no weight to the evidence and testimony that corroborated his submissions. The provisions of Australia’s Migration Act 1958 (Cth) that deal with appeal and review have undergone many revisions over the past 30 years. At the point in time relevant to this case, the Migration Act sought to codify the grounds on which review could be sought, and expressly excluded unreasonableness from that list. Specifically, s ection 476(2) listed two grounds on which ‘an application [for review] may not be made’: a breach of natural justice; and ‘that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power’.

85 See, eg, Plaintiff M79-2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336 (improper purpose); Nabbs v Nadrinos [2013] VSC 419 (taking into account irrelevant considerations); NZA v Minister for Immigration and Citizenship (2013) 59 AAR 294 (acting under dictation); Forman and York v ACT Planning and Land Authority and Evans and Evans (2013) 279 FLR 54 (taking into account irrelevant considerations, failure to take into account relevant considerations and unreasonableness). 86 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (Applicant S20).

Controlling Discretion in Australia 175 A majority of the Full Federal Court interpreted section 476(2) as precluding the Court from reviewing the Tribunal’s decision for serious irrationality, viewing the applicant’s argument as essentially one of unreasonableness. However, a majority of the High Court drew a distinction between the irrationality claimed by the applicant and Wednesbury unreasonableness. The latter, they said, applies to the exercise of discretion whereas the applicant was challenging a precondition to the exercise of power which, if based on irrational or illogical fact finding, could result in the Tribunal having erred as to the scope of its jurisdiction.87 The High Court has subsequently affirmed that serious irrationality is a separate ground of review, which applies to preliminary findings or inferences of fact, and has also confirmed its similarities with Wednesbury unreasonableness, which applies to the exercise of discretion.88 For instance Crennan and Bell JJ described the new ground as requiring courts to ‘ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based’.89 It still remains unclear precisely what aspect of the preliminary fact finding needs to be irrational in order for the ground to be made out—the decision-maker’s reasoning process, or the finding of fact itself.90 Although irrationality and unreasonableness have different applications in Australian law, in other common law jurisdictions the ground covered by irrationality would be subject to the broader unreasonableness test or covered by error of material fact, no evidence or other grounds. For instance in the UK, if the concept of jurisdictional or precedent fact even still exists,91 it is now extremely narrow and rarely used.92 Most of the facts that Australian law would categorise as ‘jurisdictional’ and review for ‘serious irrationality’ would be reviewed using the broader principles dealing with errors of material fact or no evidence in the UK, which yield similar results.93 In Canada, factual findings are assessed on one of the overarching standards of review that apply—reasonableness or correctness—and are no longer subject to their own special review principles. According to the Supreme Court in Dunsmuir v New Brunswick, facts will usually warrant a deferential standard,94 though it is possible that if a fact could be classed as a ‘true question of vires or jurisdiction’, it may be reviewed on a correctness basis.95 Thus, it is questionable whether Australian courts have truly developed a new ground of review, or simply a methodology for applying the more general concept of unreasonableness to

87 ibid 76 [72] (McHugh and Gummow JJ, with whom Callinan J agreed). The majority found that the ground was not made out on the facts of the case. 88 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, 20 [38] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 625 [42] (Gummow ACJ and Kiefel J), 643 [119], 648 [132] (Crennan and Bell JJ). 89 Minister for Immigration and Citizenship v SZMDS, above n 88, 648 [131]. 90 See Aronson and Groves, above n 44, 256–63. 91 Which Wade and Forsyth doubt: above n 9, 229–32. 92 See Woolf et al, above n 44, 224–25; Wade and Forsyth, above n 9, 212–13. 93 See, eg, R v Birmingham City Council; Ex parte Sheptonhurst Ltd [1990] 1 All ER 1026. 94 Dunsmuir, above n 78, 223 [53] (Bastarache and LeBel JJ, McLachlin CJ, Fish and Abella JJ). 95 See the discussion of this issue below.

176 Controlling Discretion subjective jurisdictional facts.96 Indeed, in a recent case the High Court seemed to apply both irrationality and irrelevant considerations tests to the same administrative discretion.97 One reason that has been suggested for the unwillingness of Australian courts to develop or adopt new grounds of review at common law is the effect of the ADJR Act. The argument, explored briefly in chapter two, is that despite the Act’s express invitation to courts to expand the common law grounds, codification leads to stagnation. As argued in chapter two, it is fairly clear that the ADJR Act has not had this effect. It seems likely that even in its absence Australian courts would have rejected many of the grounds that have developed in recent years in the UK— including substantive unfairness and proportionality (discussed in chapters four and six respectively)—because of the perception that they pose a threat to the constitutionally entrenched separation of powers doctrine. However, it does seem likely that the codification of the grounds of review is at least partially responsible for the relative precision with which Australian law defines the errors that administrative decision-makers may make in exercising their discretion. The fact that at the federal level applicants for review tend to apply under both the ADJR Act and, in the alternative, under the Judiciary Act 1903 (Cth) explains why litigants and courts alike have become used to articulating legal errors in the terms expressed in the Act even when making arguments regarding the common law. Another explanation for the relative rigidity with which Australian courts apply the grounds of review is the High Court’s broader ‘hostility to “top down” reasoning’.98 With the exception of an activist period during the early 1990s under the leadership of Sir Anthony Mason, Australia’s High Court has adhered to what has variously been described as a strict ‘legalist’, ‘formalist’ or ‘literalist’ approach to public law.99 This dominant approach has been heavily influenced by the views of Sir Owen Dixon who famously stated that ‘[t]here is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’.100 Under Dixon’s influence, the High Court has generally tended to develop the common law via

96 Various High Court judges have acknowledged the uncertainties in distinguishing between discretionary powers and subjective jurisdictional facts, eg: Minister for Immigration and Citizenship v SZMDS, above n 88, 624 [39] (Gummow ACJ and Kiefel J); Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 180–81 [59] (French CJ) (Malaysia Declaration Case). 97 FTZK v Minister for Immigration and Border Protection (2014) 88 ALJR 754. 98 M Aronson, ‘Some Australian Reflections on Roncarelli v Duplessis’ (2010) 55 McGill Law Journal 615, 620, citing Bofinger v Kingsway Group Ltd (2009) 239 CLR 269, 300–01 [90]–[94] (Gummow, Hayne, Heydon, Kiefel and Bell JJ). Other examples include Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 (Plaintiff S10). 99 See: J Goldsworthy, ‘Australia: Devotion to Legalism’ in J Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (New York, Oxford University Press, 2006) 133, 153–56; T Poole, ‘Between the Devil and the Deep Blue Sea: Administrative Law in an Age of Rights’ in L Pearson, C Harlow and M Taggart (eds), Administrative Law in a Changing State: Essays in Honour of Mark Aronson (Oxford, Hart Publishing, 2008) 23–25. 100 O Dixon, Address on appointment as Chief Justice of the High Court of Australia (1952) 85 CLR xi, xiv.

Controlling Discretion in Australia 177 small and incremental rules rather than being guided by broad principles such as ‘community values’, human rights and international law.101 Aronson and Groves describe the Court’s ‘incrementalist judicial methodology’ as having resulted in jurisprudence ‘long on the specific rules, but short to a fault on the guiding principles’.102 Good examples from administrative law are found in the High Court’s approach to privative clauses and other legislative attempts to limit judicial review or decisionmakers’ procedural obligations, considered in detail in chapters two and four. The fact that Australian courts have adhered fairly rigidly to the list of legal errors available under the classic model of judicial review, and adopted a relatively formal approach to review on those grounds, has not prevented the scope of judicial review in Australia from expanding in recent decades. However, unlike the UK, in Australia this has not been achieved via the development of additional grounds of review or the imposition of new legal limits on the exercise of discretionary administrative power. Instead, expansion in the scope of review in Australia has occurred through the reclassification of errors in ways that permit greater scrutiny. The modern Australian approach to jurisdictional error (examined below) and the jurisdictional fact doctrine in particular (considered in chapter six) are good examples. B. The Continuing Role of the Ultra Vires Doctrine Australian courts and commentators have been less anxious about identifying the theoretical foundations of the grounds of judicial review than their UK counterparts. While similar debates about the common law or statutory source of administrative law principles have been had in Australia,103 the discussion has not been as intense, likely because the entrenchment of judicial review remedies and the separation of powers make the topic less significant from a constitutional perspective. Like its approach to the source of procedural fairness obligations, the Australian High Court has maintained the position that review of administrative action is fundamentally about ensuring that statutory limits on administrative discretions are upheld. However, it has also accepted that these interpretative principles derive from the common law.104 Nor have Australian courts been overly concerned with the obvious ‘fiction’105 that judicial review is solely about ascertaining the actual intentions of the legislature, but have instead preferred to speak of legislative ‘meaning’ as opposed to intent.106 In other words, the Australian High Court appears to have

101

493.

102

See D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2004) 10 Otago Law Review

Aronson and Groves, above n 44, 168. for instance the debate between Mason J and Brennan J over the source of natural justice, discussed in ch 4 VI.A. 104 Aronson and Groves, above n 44, 119–22; Plaintiff S10, above n 98, 666 [97] (Gummow, Hayne, Crennan and Bell JJ). 105 Zheng v Cai (2009) 239 CLR 446, 455–56 [28] (French CJ, Gummow, Crennan, Kiefel and Bell JJ). 106 Lacey v Attorney-General (Queensland) (2009) 242 CLR 573, 591–92 [43] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Aronson and Groves, above n 44, 119. 103 See

178 Controlling Discretion accepted a modified version of the ultra vires doctrine, with similarities to the positions expressed both by Christopher Forsyth and Mark Elliott.107 A recent example is found in the High Court’s decision in Minister for Immigration and Citizenship v Li,108 which is discussed in detail in chapter six. Among other things, the High Court was asked in the case whether the Migration Review Tribunal’s refusal to adjourn proceedings was ‘unreasonable’. The approach of both the joint judgment and Gageler J’s separate judgment in particular show that the High Court views the requirement of reasonableness in administrative decision-making as an implied statutory condition limiting discretionary power, the content of which is informed by the common law.109 This means that, theoretically at least, Australian parliaments should be able to replace the grounds on which courts can review specific decisions, for instance by expressly providing that certain powers need not be exercised reasonably, or by expressly stating that powers are unfettered. The High Court has hinted that the second method may encounter constitutional hurdles insofar as it purports to apply to the High Court’s original jurisdiction.110 In essence, the High Court’s reasoning appears to be that because the powers of the Commonwealth Parliament are limited by the Constitution, the Parliament cannot delegate authority to decision-makers to determine the limits of their own jurisdiction, as those are powers that the Parliament itself does not have. In other words, the determination of matters of law, including that of whether a decision-maker has acted within their jurisdiction, is an inherently judicial function, which Australia’s entrenched separation of powers demands be left within the control of the judiciary. Lisa Burton Crawford has examined this issue in more detail and argues that the conferral of an overly broad statutory power may also lack the requisite connection to a constitutional head of power.111 However, it still remains possible for Australian parliaments to confer very broad discretions on decision-makers, for instance by specifying that a decision-maker is constrained only by what, in their view, is in the ‘national interest.’ Where such a discretion is conferred on a government minister and touches on highly political matters, it seems courts will be hesitant to imply limits on the power beyond those expressly included or necessarily implied in the statute and those mandated by the Constitution.112 However, the former method—of limiting review on a specific ground, or providing that administrative powers need not be exercised reasonably, or for a proper

107 C Forsyth, ‘Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review’ (1996) 55 Cambridge Law Journal 122; M Elliott, ‘The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law’ (1999) 58 Cambridge Law Journal 129. 108 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li). 109 ibid 370–71 [88]–[92] (Gageler J), 637 [63] (Hayne, Kiefel and Bell JJ). 110 See, eg, Gerlach v Clifton Bricks Pty Ltd, above n 82, 503–04 [69]–[70] (Kirby and Callinan JJ); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 512–13 [101]–[102] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) (Plaintiff S157); Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 346–47 [56]–[59]. 111 LB Crawford, ‘Can Parliament Confer Plenary Executive Power? The Limitations Imposed by Sections 51 and 52 of the Australian Constitution’ (2016) 44 Federal Law Review 287. 112 Plaintiff S156-2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28.

Controlling Discretion in Australia 179 purpose etc—should theoretically be constitutionally permissible, provided that it does not go so far as to ‘subvert the constitutional purpose of the remedy provided by s 75(v)’113 or confer powers on a decision-maker that go beyond the constitutional authority of the Commonwealth Parliament itself. In practice, however, the High Court has not found it necessary to declare any statutory provisions invalid based on this reasoning as the few legislative attempts to limit the grounds of review have failed for other reasons. For instance, the Applicant S20 case involved a provision in the Migration Act 1958 (Cth) which attempted to limit the grounds on which review could be sought in the Federal Court of Australia of decisions made under that Act. It did so by listing the available grounds and excluding others. Yet, the Court circumvented this legislative attempt to restrict the grounds of review by developing a new, almost identical ground of review—that of irrationality. In another case involving the same legislation, the Court held that the express statutory prohibition of review on the ground of failure to consider relevant matters did not preclude review if the failure constituted a jurisdictional error (which according to the new, expanded definition of jurisdictional error adopted following Anisminic, it did).114 Thus, it may be impossible from a practical perspective—even if it is constitutionally permissible—for the Commonwealth Parliament, at least, to enact provisions restricting the grounds on which decisions may be reviewed. C. The Central Concept of Jurisdictional Error As discussed in chapter two, Australia did not follow the UK in abolishing the concept of jurisdictional error. Quite the reverse: jurisdictional error has become the ‘central’,115 ‘unifying’,116 or ‘core’117 principle of Australian judicial review, albeit in a vastly expanded form compared with its classic application. It is only necessary for a review applicant to demonstrate that a decision-making error is jurisdictional where a privative clause purports to oust review, or where those remedies which are restricted to correcting jurisdictional errors are sought. The concept does not form part of the grounds listed in the ADJR Act, and neither does it restrict every remedy available at common law in the absence of a privative clause.118 However, the dominance of migration cases on the development of Australian administrative law in recent decades, and the Commonwealth Parliament’s ongoing attempt to enact effective ouster clauses, has resulted in the ‘constitutionalisation’ of judicial

113 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, 672 [58] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) (Bodruddaza). 114 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351–52 [82]–[85] (McHugh, Gummow and Hayne JJ). 115 JJ Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21 Public Law Review 77. 116 S Gageler, ‘Impact of Migration Law on the Development of Australian Administrative Law’ (2010) 17 Australian Journal of Administrative Law 92, 92. 117 M Aronson, ‘Jurisdictional Error and Beyond’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Melbourne, Cambridge University Press, 2014) 273. 118 See ch 2 II.B.iii.

180 Controlling Discretion review in Australia.119 The High Court’s response to these clauses has been to find that section 75(v) of the Constitution entrenches a ‘minimum provision of judicial review’120 which comprises review for jurisdictional error. State supreme courts have been held to have a similar, entrenched supervisory jurisdiction, though for different reasons.121 Thus, the concept of jurisdictional error, far from being abandoned, has come to be of great significance to Australian administrative law. As detailed in chapter two, however, the expansion in what errors will be ‘jurisdictional’ in recent decades has led to difficulties in defining this core principle. The method for distinguishing between jurisdictional and non-jurisdictional errors of law is uncertain and ad hoc. The High Court has emphasised that there is no definitive list of jurisdictional errors, but rather that the jurisdictional limitations of administrative power can only be determined by reference to the particular statute under which the power is conferred.122 Reviewing courts undertake an objective assessment of whether Parliament intended an error to result in a decision being ‘null’ or ‘invalid’, with jurisdictional error being the label applied to those that are.123 That assessment is made by reference to the text, context and evident purposes of the statute. Mark Aronson has argued that the ‘jurisdictional’ label now effectively performs the same function as the discretionary power of courts to grant leave to seek judicial review in the UK and the standard of review analysis in Canada, that is: it serves to ‘filter out unnecessary or unwanted challenges’ and to balance ‘normative and efficiency considerations’.124 Justice Basten, of the NSW Court of Appeal, has expressed similar thoughts. His Honour argues that the UK approach, in which judges balance the ‘functional and pragmatic’ factors in favour of granting leave, may be a preferable and more nuanced approach to achieving the same balance between judicial oversight and excessive intervention.125 However, Aronson contends that unlike the UK and Canadian approaches, which base their balancing formulations on the rule of law, the High Court ‘drew upon principles of statutory interpretation which were in turn informed by constitutional principles’.126 In other words, just as the High Court has adopted a formalist approach to the grounds of review in which they are strict legal rules rather than examples of more general principle, it has developed a formalist approach to jurisdictional error—viewed as a strict, albeit undefinable, category of legal errors. And, just as the grounds of review serve the same function as more generalised concepts such as the rule of law, with their inbuilt tests giving varying levels of deference to administrative decision-makers, the concept of jurisdictional error has a similar balancing function as the more overtly pragmatic methods used elsewhere.

119

Gageler, above n 116. Plaintiff S157, above n 110, 513 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Bodruddaza, above n 113, 668–69 (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ). 121 Kirk, above n 77. See ch 2 II.C. 122 Kirk, above n 77, 574 [73] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 123 ibid 567–68, 577. See Aronson, ‘Jurisdictional Error and Beyond’, above n 117, 267. 124 Aronson, ‘Jurisdictional Error and Beyond’, above n 117, 264. 125 J Basten, ‘Jurisdictional Error After Kirk: Has it a Future?’ (2012) 23 Public Law Review 94. 126 Aronson, ‘Jurisdictional Error and Beyond’, above n 117, 264. 120

Controlling Discretion in Canada 181 This may well be so in terms of the practical effect of Australia’s modern approach to the distinction between jurisdictional and non-jurisdictional errors of law. However, performing a filtering function similar to that of leave requirements in the UK, is clearly not the purpose of the distinction in Australian law. Rather, as Lisa Burton Crawford and I argue elsewhere, the role of the distinction is to recognise and protect the sovereign power of parliaments to define the scope of an administrative decision-maker’s jurisdiction.127 This power includes the ability to prescribe the consequences of a breach of the law by an administrative decision-maker: making a breach of a legal parameter either within or outside the decision-maker’s jurisdiction. Thus, the distinction between jurisdictional and non-jurisdictional errors of law in Australia may currently, in practice, play a role in finding the appropriate balance between executive and judicial power, but it need not necessarily continue to perform that function. III. CONTROLLING DISCRETION IN CANADA

Like other common law jurisdictions, Canadian courts now hold the position that, in theory at least, no categories of powers or decision-makers are immune from judicial review.128 However, certain matters, particularly those which tend to involve the exercise of prerogative power, may be non-justiciable in administrative law. The list appears to be similar to that articulated by the House of Lords in CCSU and has been found to include the conferral of honours,129 decisions to prosecute,130 decisions to enter into treaties within aboriginal groups,131 and foreign and diplomatic relations.132 This has led a number of commentators to argue that a less strict version of the US political questions doctrine applies in Canadian administrative law,133 despite the doctrine having been expressly rejected in the constitutional context.134 Canadian courts have made a number of statements to the effect that matters are more likely to be justiciable where Charter rights are involved.135 For instance, in 127 J Boughey and LB Crawford, ‘Jurisdictional Error: Is Disunity Necessary?’ (Public Law conference, University of Cambridge, 12–14 September 2016). 128 Operation Dismantle v The Queen [1985] 1 SCR 441; Black v Canada (Prime Minister) (2001) 54 OR (3d) 215. 129 Black v Canada, above n 128. 130 R v Gibson [2007] OJ No 3948 (16 October 2007). 131 See, eg, Cook v Canada (Minister of Aboriginal Relations & Reconciliation) [2008] 80 BCLR (4th) 138. 132 Copello v Canada (Minister of Foreign Affairs) [2002] 3 Admn LR (4th) 214; Blanco v Her Majesty the Queen [2003] 231 FTR 3; Friends of the Earth v Canada (Governor in Council) [2009] 3 FCR 201; Turp v Canada (Attorney General) 2012 FC 893. 133 See, eg, Sossin, ‘Roncarelli v Duplessis’, above n 1; D Mullan ‘The Role of the Judiciary in the Review of Administrative Policy Decisions: Issues of Legality’ in MJ Mossman and G Otis (eds), The Judiciary as Third Branch of Government: Manifestations and Challenges to Legitimacy (Montreal, Les Éditions Thémis, 2000) 327–28; L Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd edn (Toronto, Carswell, 2012) ch 4. 134 Operation Dismantle v The Queen, above n 128, 471–72 (Wilson J with whom Dickson CJ for the majority appeared to express agreement: at 459); Canada v Schmidt [1987] 1 SCR 500, 524 (La Forest J). 135 Operation Dismantle v The Queen, above n 128, 464–74 (Wilson J, with whom the majority agreed on this point: at 459).

182 Controlling Discretion Black v Canada (Prime Minister), in which media mogul Conrad Black sought damages from the Prime Minister for having intervened to oppose the Queen’s proposal to appoint Black as a peer in the UK, the Court stated: [T]he court’s role in reviewing the prerogative power now has to be modified in Canada because of the Canadian Charter of Rights and Freedoms. By s 32(1)(a), the Charter applies to Parliament and the Government of Canada in respect of all matters within the authority of Parliament. The Crown prerogative lies within the authority of Parliament. Therefore, if an individual claims that the exercise of a prerogative power violates that individual’s Charter rights, the court has a duty to decide the claim.136

Thus, although it has not been well explored either by the courts or in commentary, it seems that one of the effects of the Charter may have been to eliminate the concept of justiciability where the Charter is in issue. This has not translated to the elimination of the concept in administrative law, where Canadian courts will review the same range of discretionary decisions as their common law equivalents. The issue of precisely what limits Canadian courts place on administrative discretion is more difficult and deviates more from the approach in the UK, Australia and New Zealand. As discussed above, Canadian courts were more hesitant than their common law counterparts to interfere in decisions made by government ministers and their delegates, at least in part as a result of the different role of tribunals in Canada. This restraint continued despite the promise of the Supreme Court’s decision in Roncarelli v Duplessis.137 The fact that the distinction between quasi-judicial and administrative decisions remained entrenched in the Federal Courts Act until 1992 also contributed to the lingering view that powers exercised by ministers were in a different class from those performed by tribunals.138 Following Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corporation, the standard of review analysis became the focus of courts’ attention as they struggled to develop an approach that was both principled and workable.139 It was not until 1999 in Baker that the Supreme Court decided to bring ‘purely administrative’ or ‘discretionary’ decisions within the standard of review framework. As a result, review of administrative discretion is now characterised by the same contextual approach that applies to tribunals’ interpretations of legislation. Rather than applying the formal rules developed under the classic model, Canadian courts now tend to engage in a more overt and flexible balancing process centred on general values and principles, including deference and the amorphous concept of the rule of law. These developments are not a direct result of the Charter, but they do seem to have their foundations in, and clear links with, broader developments in Canadian public law that have resulted from the enactment of the Charter. However,

136 Black v Canada, above n 218, 230 [46]. Approved by the Federal Court in Khadr v Canada (Attorney General) [2007] 2 FCR 218, 237–38 [31]–[35]. 137 Roncarelli v Duplessis [1959] SCR 121. 138 See, eg, Saskatchewan Construction Labour Relations Council Inc v Saskatchewan (Minister of Labour) [1993] 110 Sask R 274, citing Canada (Minister for National Revenue) v Coopers and Lybrand [1979] 1 SCR 495, which was decided under the Federal Courts Act. 139 Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corporation [1979] 2 SCR 227, 237 (New Brunswick Liquor). See ch 3 III.

Controlling Discretion in Canada 183 it is important to note that the legal principles limiting administrative discretion in Canada remain somewhat vague and unsettled. A. The Impact of Roncarelli v Duplessis In 1959, the Supreme Court of Canada in perhaps its most notable decision, Roncarelli v Duplessis,140 quashed a decision made by the Attorney General and Premier of Québec, Maurice Duplessis. In doing so, Rand J made the oft-quoted statement that ‘in public regulation of this sort, there is no such thing as absolute and untrammelled “discretion”’.141 The case is often heralded as Canada’s equivalent of Padfield,142 but in truth did not mark quite so definitive a shift in the way in which Canadian courts approached discretionary powers exercised by ministers and their departments. Frank Roncarelli owned a restaurant in Montreal which had held a liquor licence continuously for approximately 34 years. He was also a Jehovah’s Witness, a group which was being targeted and arrested for minor offences by provincial authorities because of the perception that their beliefs were an affront to the Roman Catholic majority of the province. Roncarelli objected to these arrests, and had posted bail for numerous Jehovah’s Witnesses. He also leased a property in Sherbrooke to the Jehovah’s Witnesses, from which a number of allegedly seditious pamphlets were seized by police. In the midst of these events, Roncarelli was informed by the General Manager of the Québec Liquor Commission that his restaurant’s liquor licence was being cancelled, and told that he would not be issued with a licence in the future. As a result, Roncarelli’s business became unprofitable and ultimately closed. The Liquor Commission’s statutory power to cancel licences was expressed in unfettered terms: it could ‘cancel any permit at its discretion’.143 However, there was evidence that the General Manager’s decision had been made at the direction of Duplessis, who was motivated by Roncarelli’s religious activities. For these reasons, which would fall under the ultra vires grounds of ‘acting under dictation’, ‘acting for an improper purpose’ or ‘taking into account irrelevant considerations’, a majority of the Supreme Court of Canada held that the cancellation was wrong and without justification. In many respects the decision appears similar to Padfield. The named defendant in the case was Duplessis, not the Liquor Commission, thus the Court was reviewing the exercise of power by a government minister (albeit a power which the legislature had not conferred on the Minister, and which had not been formally exercised by the Minister). Rand J also made a number of statements that appear to mirror the kinds of statements made in Padfield, including: [N]o legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however, capricious or irrelevant, regardless of the nature or purpose of the statute … ‘Discretion’ necessarily implies good faith in

140

Roncarelli v Duplessis, above n 137. ibid 140. See, eg, Grey, above n 46, 115–17; Woolf et al, above n 44, 249. 143 Roncarelli v Duplessis, above n 137, 139. 141 142

184 Controlling Discretion discharging public duty; there is always a perspective within which a statute is intended to operate.144

Yet, the decision differed from Padfield in a number of important ways. The first was that the remedy sought by Roncarelli was damages under article 1053 of the Civil Code of Lower Canada, which he was granted on the basis that Duplessis had deliberately and maliciously caused damage to his business. Thus, the case did not involve the Court’s inherent power to review and quash unlawful administrative acts, but a remedy with closer common law equivalence to the tort of misfeasance in public office.145 The Court’s discussion of the unlawful direction by Duplessis to the Commission, and his improper motives, did not focus on whether the decision was ultra vires, but whether Duplessis could rely on the defence of having acted under law. Second, as the decision to cancel Roncarelli’s licence had been formally made by the Liquor Commission, the Court’s discussions of the limits of the statutory discretion did not necessarily overturn the long-standing principle that courts should not review discretionary powers conferred on ministers. Third, though Rand J’s judgment is now the most influential, it did not represent the views of the majority of the Court at the time. Kerwin CJ, Abbott, Locke and Martland JJ all awarded damages to Roncarelli under the Civil Code without deciding the issue of the fettered or unfettered nature of the Liquor Commissioner’s statutory powers. Cartwright J’s dissent reflected the traditional position that decisions classed as ‘administrative’ were unreviewable: ‘A judicial tribunal looks for some law to guide it; an “administrative” tribunal, within its province, is a law unto itself’.146 Fourth, although Roncarelli v Duplessis now stands for the same principles as Padfield, it is important to note that Rand J’s comments about untrammelled discretion were limited to ‘public regulation of this sort’, while the Padfield judgment contained no such limit. This made Roncarelli v Duplessis easier to distinguish, as various regulatory powers could be classified as not of the Roncarelli variety.147 As David Mullan has argued, the facts of Roncarelli v Duplessis were so unusual—both in the egregiousness of Duplessis’ abuse of power and his preparedness to testify as to his true motives—that it is easy to distinguish most bureaucratic errors.148 These distinctions go some way towards explaining why doubt lingered about the extent to which courts could review the substance of decisions made by ministers, or otherwise classed as ‘administrative’ in Canada.149 Nevertheless, over time Canadian courts did increasingly take the judgment, along with Padfield, to mean

144

ibid 140. Though the common law tort may not have been made out: see D Mullan, ‘Roncarelli v Duplessis and Damages for Abuse of Power: For What Did it Stand in 1959 and for What Does it Stand in 2009?’ (2010) 55 McGill Law Journal 587. 146 Roncarelli v Duplessis, above n 137, 167. 147 Mullan, ‘The Role of the Judiciary’, above n 133, 324. 148 ibid 323–24. 149 See, eg, British Columbia (Provincial Agricultural Land Commission) v Pickell [1980] 19 BCLR 148; Saskatchewan Construction Labour Relations Council Inc v Saskatchewan (Minister of Labour), above n 138; Moore v Minister of Manpower and Immigration [1968] SCR 839, 847 (Judson, Ritchie and Martland JJ, with whom Cartwright CJ agreed); Legare v Calgary Municipal Planning Commission [1972] 5 WWR 609. 145

Controlling Discretion in Canada 185 that discretionary decisions of ministers could be reviewed on limited ultra vires grounds,150 though it remained rare for them to do so.151 An interesting aspect of Rand J’s Roncarelli v Duplessis judgment was his reliance on the rule of law.152 After discussing the fact that neither the Commission nor Premier Duplessis was empowered under law to revoke Roncarelli’s licence, Rand J stated that the Court must intervene. He reasoned that if the Court did not provide a remedy an administration according to law is to be superseded by action dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, [and this] would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure.153

Although this statement was obiter, because the Civil Code gave the Court a clear legal basis for intervening, and was discussed only by Rand J, it has become the most important and influential aspect of the Roncarelli v Duplessis decision.154 Mark Aronson has argued that had the same facts occurred in 1959 in Australia (and probably also the UK), courts would have decided the case, and likely reached the same conclusion, without invoking the rule of law.155 Instead, Australian courts would have applied general principles of administrative law, which ‘had long established some inroads into statutory grants of discretionary power’.156 However, the ultra vires doctrine was less developed in Canada compared with other common law jurisdictions as a distinct justification for judicial intervention in administrative decisions. This was probably a consequence of the previously discussed caution with which Canadian courts approached functions delegated to ministers as opposed to tribunals. Canadian courts were relatively comfortable with supervising tribunals on all of the same grounds available under the ultra vires doctrine.157 However, in the context of quasi-judicial decision-makers these errors were described using the language of ‘error of law’ and ‘jurisdictional error’ rather than that of ultra vires. Following Roncarelli v Duplessis, although Canadian courts became at least theoretically more prepared to intervene in ‘purely administrative’ decisions, there

150 See, eg, Vanguard Coatings and Chemicals Ltd v Canada (Minister of National Revenue) [1987] 1 FC 367, 379; Campbell v Minister of Finance for Prince Edward Island [1980] 26 Nfld & PEIR 288, 309; McGauley v British Columbia (Finance and Corporate Relations) (1988) 23 BCLR (2d) 137; Canada (Attorney General) v Purcell [1996] 1 FC 644. 151 Mullan, ‘The Role of the Judiciary’, above n 133, 323. 152 Roncarelli v Duplessis, above n 137, 142 (Rand J). 153 ibid. 154 See: M Walters, ‘Legality as Reason: Dicey, Rand and the Rule of Law’ (2010) 55 McGill Law Journal 563; M Liston, ‘Witnessing Arbitrariness: Roncarelli v Duplessis Fifty Years On’ (2010) 55 McGill Law Journal 689; R Leckey, ‘Complexifying Roncarelli’s Rule of Law’ (2010) 55 McGill Law Journal 721; EM Adams, ‘Building a Law of Human Rights: Roncarelli v Duplessis in Canadian Constitutional Culture’ (2010) 55 McGill Law Journal 437, 449–60. 155 Aronson, ‘Roncarelli v Duplessis’, above n 98, 617. 156 ibid. 157 See, eg, Smith & Rhuland Ltd v Nova Scotia [1953] 2 SCR 95; Metropolitan Life Insurance Co Ltd v International Union of Operating Engineers [1970] SCR 425; Vladika v School District 19 (Calgary) [1974] 4 WWR 159; Service Employees International Union, Local No 333 v Nipawin District Staff Nurses Association et al [1975] 1 SCR 382, 389.

186 Controlling Discretion remained relatively few examples.158 Thus, the ultra vires grounds of review remained less developed compared with other common law jurisdictions. Evidence of this is found in the fact that in their characteristically brief discussions of the grounds on which administrative decision-makers might be found to have abused their discretion, Canadian texts and commentary rely heavily on English authority, in addition to Rand J’s listing of the broad grounds in his judgment in Roncarelli v Duplessis.159 The term ‘ultra vires’ was rarely used by Canadian courts in reviewing individual administrative decisions prior to the 1980s.160 On the relatively rare occasions that Canadian courts did invoke the ultra vires grounds against ministers or departmental officials, their caution about intruding on the merits of decisions was apparent. They tended to be extremely restrained in their approach to ‘discretionary’ powers, compared with their approach to tribunals.161 For instance, discussions of the Wednesbury unreasonableness ground of review stressed the strictness of the test, and its application was sparing.162 However, this restraint was not universal and Canadian administrative law sometimes went beyond its Australian and English counterparts. For example, Canadian courts applied discrimination as a distinct ultra vires ground of review, expanding on the judgment in Kruse v Johnson.163 The main use of the discrimination ground has been in reviewing bylaws and delegated legislation.164 There have been some suggestions that it also applies to individual decisions,165 though the ground has had little traction in that area. This may be because of the overlap between the ground of discrimination and the purpose and relevancy grounds, both of which are difficult to apply to delegated legislation but not to individual discretionary decisions. However, the discrimination ground seems to have become far less important as a result of the Charter and anti-discrimination legislation.166 It would now only apply to subordinate

158 Mullan, ‘The Role of the Judiciary’, above n 133, 323; Mullan, ‘Judicial Deference’, above n 17, 143–44. 159 Mullan, ‘Judicial Deference’, above n 17, 148–49. See, eg: Van Harten et al, above n 44, 894–96 (and see the previous, 6th edn at: 982–83); DP Jones and AS de Villars, Principles of Administrative Law, 5th edn (Toronto, Carswell, 2009) 177–87, 190–93; G Cartier, ‘Administrative Discretion: Between Exercising Power and Conducting Dialogue’ in CM Flood and L Sossin (eds), Administrative Law in Context, 2nd edn (Toronto, Emond Montgomery, 2013) 391–94. 160 The term was frequently used to invalidate bylaws and other subordinate legislation, as well as to describe legislation that was not supported by constitutional authority. 161 G Cartier, ‘Reconceiving Discretion: From Discretion as Power to Discretion as Dialogue’ (SJD thesis, University of Toronto, 2004) 61–68; Mullan ‘Judicial Deference’ above n 17, 142–47. 162 See, eg, MacMillan Bloedel Ltd v British Columbia (Forests) (1984) 8 DLR (4th) 33 (British Columbia Court of Appeal) [28]; Shell Canada Products Ltd v Vancouver (City) [1994] 1 SCR 231; Slattery v Canada (Human Rights Commission) [1994] 2 FCR 574; Lachine General Hospital Corporation v Québec (Procureur général) [1996] RJQ 2804. 163 Kruse v Johnson [1898] 2 QB 91. 164 See, eg, City of Montreal v Arcade Amusements Inc [1985] 1 SCR 368, 404; Forget v Québec (Attorney General) [1988] 2 SCR 90, 104–08 (Lamer, Beetz, McIntyre, Le Dain and La Forest JJ); R v Bell [1979] 2 SCR 212. See generally, DJ Gifford, ‘Discrimination as a Ground of Ultra Vires: Why is Canada Ahead of the Rest?’ (2007) 14 Australian Journal of Administrative Law 202. 165 eg, Greenisle Environmental Inc v New Brunswick (Minister for Environment and Local Government [2007] NBR (2d) 161. 166 See, eg, 2211266 Ontario Inc (c.o.b. Gentlemen’s Club) v Brantford (City) [2012] OJ No 4883 (a bylaw requiring female entertainers who perform topless to obtain a licence but not male performers

Controlling Discretion in Canada 187 legislation that discriminates against a group on a basis not protected by the Charter or anti-discrimination laws. It is also noteworthy that Canadian courts, like those in Australia, have not accepted inconsistent treatment alone as a basis for unreasonableness in administrative decision-making,167 though it can form the basis of other grounds of invalidity—such as procedural claims, or those for failure to consider relevant factors.168 This suggests that the application of discrimination as a ground of review is now very limited. B. Grounds and Standards of Review The hesitation of Canadian courts to intrude in ‘purely administrative’ decisions, and the relative lack of certainty surrounding the application of the ultra vires grounds compared with the more settled, albeit very similar, principles on which Canadian courts reviewed decisions made by tribunals, meant that by the 1970s Canadian courts were far more rigorous in their review of tribunal decision-making than decisions made by ministers and central agencies. The somewhat odd result was that often expert tribunals were subjected to a far greater degree of scrutiny than inexpert departmental officials. The contrast became more stark when the Supreme Court followed the House of Lords approach in Anisminic to expanding jurisdictional error.169 In New Brunswick Liquor, the Supreme Court addressed this issue by introducing an approach which required courts to defer to reasonable interpretations of law by tribunals operating within their field of expertise. This suggested that the Court might have been recognising that quasi-judicial decision-makers exercised discretion in much the same way as ‘purely administrative’ decision-makers. Dickson J also listed a set of errors much the same as Lord Greene listed in Wednesbury, as grounds that would result in a finding of ‘patent unreasonableness’.170 Yet, neither of these factors had the result of bringing ‘quasi-judicial’ and ‘administrative’ decision-makers within the same judicial review framework.171 Nor did the fact that, less than six months prior to its decision in New Brunswick Liquor, the Supreme Court had expressed significant doubts about the quasi-judicial/administrative distinction in the context of the application of procedural fairness obligations.172 Following New Brunswick Liquor, the standard of review analysis overwhelmed all other discussions about substantive review in Canadian administrative law. The

was held invalid under anti-discrimination laws, but was not ultra vires the City’s power on administrative law grounds). 167

Domtar v Québec [1993] 2 SCR 756, 795–98. eg, Del Vecchio v Canada (Minister for Public Safety and Emergency Preparedness) [2011] 398 FTR 75. 169 Metropolitan Life Insurance Co Ltd, above n 157. 170 New Brunswick Liquor, above n 139, 237, quoting his earlier judgment in Nipawin District Staff Nurses Association et al, above n 157, 389. 171 Cartier, ‘Reconceiving Discretion’, above n 161, 61–68. 172 Nicholson v Haldimand-Norfolk Regional Police Commissioners [1979] 1 SCR 311, discussed in ch 4.II. 168 See,

188 Controlling Discretion chief concern of Canadian courts since then has been the development and application of coherent principles to determine whether review should be conducted on a correctness or patent unreasonableness (and later reasonableness simpliciter) standard. The issues of what specific errors would amount to patent unreasonableness, and the relationship between those errors and the errors that would result in a purely administrative decision being found to be unlawful have been largely ignored. In the few cases that touched on these issues, they were dealt with in a haphazard way without much regard for deeper principles. For instance, in Shell Canada Products Ltd v Vancouver (City)173 the dissenting judges expressly considered both the grounds on which discretionary power could be abused and the standard of review that should apply to municipal councils. Their implication was that the deferential standard of review was essentially the same standard as that expressed by Lord Greene’s judgment in the Wednesbury case. Yet they gave no consideration to the fact that, in having this short discussion, they were acknowledging that decisions bounded by law and discretionary decisions were subject to the same set of underlying principles.174 In Baker, the Supreme Court finally acknowledged the problems inherent in attempting to distinguish decisions involving the interpretation of law, and those involving ‘pure discretion’. In respect of Ms Baker’s challenge to the exercise of discretion by the immigration officer, L’Heureux-Dubé J, for the majority, noted that courts would traditionally have approached the decision as subject to review on the grounds listed by Lord Greene in Wednesbury (including unreasonableness as a distinct doctrine).175 However, L’Heureux-Dubé J declared that it is ‘inaccurate to speak of a rigid dichotomy of “discretionary” or “non-discretionary” decisions’, noting that most administrative decisions involve an element of discretion. This discretion is implicit in the standard of review analysis which assumes that there may be multiple reasonable interpretations of any given statutory provision, and that in some the choice among those reasonable options may be within the powers of an administrative body.176 L’Heureux-Dubé J stated that the grounds on which discretion was traditionally reviewed incorporate two central ideas—that discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker’s jurisdiction.177

In other words, both the standard of review analysis and the ultra vires grounds operate to balance precisely the same factors: respect for the legislature’s conferral of authority on the executive; and the need to ensure that discretion is not used unlawfully or arbitrarily. These boundaries, according to the majority, are sourced in ‘the rule of law178 … general principles of administrative law governing the 173

Shell Canada Products Ltd, above n 162. ibid 246–48 [23]–[24] (McLachlin J, Lamer CJ, L’Heureux-Dubé and Gonthier JJ). 175 Baker, above n 2, 853 [53] (L’Heureux-Dubé, Gonthier, McLachlin, Bastarache and Binnie JJ). 176 ibid 854 [54]. 177 ibid 853 [53]. 178 Citing Roncarelli v Duplessis, above n 137, in this respect. 174

Controlling Discretion in Canada 189 exercise of discretion, and … the Canadian Charter of Rights and Freedoms’.179 This assessment led the majority to conclude that discretion should be brought within the standard of review umbrella.180 In terms of how this would operate in practice, L’Heureux-Dubé J stated that the presence of broad discretions would become a factor in the standard of review analysis, leading towards greater deference. While Baker clarified a number of important issues in Canadian administrative law, its effect on the principles and grounds on which administrative discretions could be reviewed was the opposite. Although Dickson J in New Brunswick Liquor had listed the Wednesbury grounds as indicia of patent unreasonableness, L’HeureuxDubé J took a different approach. Perhaps in order to pre-empt and assuage any fear that bringing discretion within the standard of review framework might increase the intensity of review, she stated that: ‘In fact, deferential standards of review may give substantial leeway to the discretionary decision-maker in determining the “proper purposes” or “relevant considerations” involved in making a given determination’.181 The implication is that where a court applies a ‘correctness’ standard, it will assess whether a decision-maker has, in the court’s opinion, considered an irrelevant matter or acted for an improper purpose—as the grounds had traditionally been applied with inbuilt levels of deference. Whereas if a court determines that a deferential standard applies, the questions become whether the consideration that was taken into account, or the purpose for which a decision-maker acted, was outside the realms of what reasonable decision-makers would have done. In other words, a set of principles designed with deference in mind, and built in, could be applied in a way that gave even more leeway to the executive. The approach is attractive from a theoretical standpoint. Regardless of whether the ultra vires grounds of review are common law principles or presumptions of parliamentary intent, they remain legal rules, at least some of which can be subject to differing reasonable interpretations just as the terms of a statute can. Thus, the Court was able to ‘provide an overarching or unifying theory for review of the substantive decisions of all manner of statutory and prerogative decision makers’.182 Yet, in practice it can be difficult to reconcile the grounds of review with the standards. For instance, as Van Harten et al point out, while the relevance of considerations may be something on which reasonable minds may differ, other grounds do not seem capable of being applied at varying intensity. The authors list the grounds of bad faith, acting under dictation, unlawful sub-delegation and fettering of discretion as grounds which are largely unaffected by the standard of review analysis.183 Other grounds, including the relevancy grounds, the no evidence rule,184 and the improper purpose ground, may be capable of application with varying degrees of deference, depending on the circumstances and statutory context. Though Mullan has argued

179

Baker, above n 2, 853 [53]. ibid 854–55 [55]–[56]. 181 ibid 855 [56]. 182 D Mullan, Administrative Law (Toronto, Irwin Law, 2001) 108. 183 Van Harten et al, above n 44, 897. 184 See, eg, Dr Qv College of Physicians and Surgeons of British Columbia [2003] 1 SCR 226. 180

190 Controlling Discretion that deferring to an administrative decision-maker’s interpretation of the purposes for which they have been delegated powers may amount to permitting them to determine the scope of their own jurisdiction, and thus encounter some constitutional difficulties.185 Furthermore, the way in which the majority in Baker went on to apply the relevancy ground at the appropriate standard—which they decided was the intermediate reasonableness simpliciter standard—was not obviously any more deferential than previous applications. The majority held that the decision-maker had failed to ‘give serious weight and consideration to the interests of [Baker’s] children’, which amounted to an unreasonable exercise of discretion.186 It is difficult to distinguish between this formulation and that applied in Australia, where courts are not attempting to apply a further layer of deference. In Australia, the considerations ground, in combination with the unreasonableness and irrationality grounds, go beyond the ‘box-ticking’ exercise described by Dyzenhaus, Hunt and Taggart187 and require decision-makers to have given ‘proper, genuine and realistic’ consideration to matters that must be considered.188 Other decisions, however, emphasise the different results that would be achieved on correctness review, versus reasonableness review, of the considerations ground. For instance, in Canada (Attorney General) v Kane189 the Supreme Court overturned a decision of the Federal Court of Appeal, in part on the basis that the Court had misapplied the standards and grounds of review. The administrative decision in issue was made by the Public Service Staffing Tribunal. The Tribunal was tasked with hearing a complaint from Kane about a job for which he had applied unsuccessfully. Kane argued that his employer, Service Canada, had abused its authority by advertising the position. He argued that Service Canada had advertised the position based on its assumption that the position was newly created, while according to Kane it was a reclassification of his former position (the ‘newness question’). The Tribunal dismissed Kane’s complaint, as there was nothing in the relevant legislation requiring Service Canada to choose a particular appointment process depending on whether a position was classified as new or not. The majority of the Federal Court of Appeal held that the Tribunal had acted unreasonably (the relevant standard of review) as, although the legislation did not mandate a particular appointment process, the Tribunal had erred by failing to consider whether the newness question had given rise to an abuse of power.190 Stratas JA dissented, arguing that the majority had, in effect, decided that the newness question was a relevant consideration which

185 Mullan,

Administrative Law, above n 182, 112–13. Baker, above n 2, 859 [65]. 187 D Dyzenhaus, M Hunt and M Taggart, ‘The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation’ (2001) 1 Oxford Commonwealth Law Journal 5, 10. 188 It is not clear which of these grounds an applicant should rely on where their argument was that a decision-maker had failed to giver proper consideration to a particular matter, but it is clear that it may be an error: see Aronson and Groves, above n 44, 283–85; A Poukchanski, ‘Considering “Proper, Genuine and Realistic”’ (2014) 21 Australian Journal of Administrative Law 201. See also ch 6 III.B. 189 Canada (Attorney General) v Kane [2012] 3 SCR 398. 190 Kane v Canada (Attorney General) (2011) 328 DLR (4th) 193, 217 [72] (Evans JA, with whom Dawson JA agreed). 186

Controlling Discretion in Canada 191 the Tribunal had failed to consider, thereby resulting in invalidity. He argued that following Baker, this is not the accepted approach to reasonableness review, and that the majority should have given the Tribunal latitude in determining the relevance of the newness question.191 Although on appeal the Supreme Court did not consider this issue in much detail, its finding that the majority had erred by ‘effectively undertaking its own assessment of the record and attributing to the employer a “principal justification” for its decision that the Tribunal did not find’ suggests agreement with Stratas JA.192 The Supreme Court added that ‘[i]t was not appropriate for the Federal Court of Appeal, on a judicial review, to intervene in the Tribunal’s decision to this extent’.193 Finally, the approach of the majority in Baker seems to leave no scope for the continued role of any freestanding ground of Wednesbury unreasonableness—which, although it had been applied infrequently, was previously a distinct ground of review in Canadian law.194 The approach adopted in subsequent cases indicates that the Wednesbury ground, along with its irrationality and illogicality relatives, have been subsumed into the overarching reasonableness standard of review where discretionary administrative decisions are concerned. In particular, the Supreme Court made it clear in Dunsmuir that in asking whether a decision is reasonable, a court is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.195

It is difficult to imagine a continued role for a distinct, safety-net unreasonableness ground fitting within this framework. Thus, the separate ground of Wednesbury unreasonableness now seems to arise only in relation to municipal bylaws, where the Supreme Court has said that in the long-standing principles developed and articulated in Wednesbury and other cases including Kruse v Johnson196 continue to ‘point the way to what is reasonable in the particular context of bylaws passed by democratically elected municipal councils’.197 These lingering questions regarding the interaction between the grounds and standards of review remain largely unaddressed by Canada’s highest court. The Court has given conflicting indications as to whether it will follow the approach in New Brunswick Liquor or that in Baker. This is discussed further in chapter six, as are the implications of various approaches for the intensity of review. Following Baker, courts have largely avoided these questions by tending not to focus on the specific errors that a decision-maker may make, but instead treating their central enquiry as the more general question of whether a decision-maker has ‘abused their

191

ibid 223–24 [99]–[102]. Canada (Attorney General) v Kane, above n 189, 403 [9]. 193 ibid. 194 Mullan, Administrative Law, above n 182, 121–22. 195 Dunsmuir, above n 78, 220–21 [47]. 196 Kruse v Johnson, above n 163. 197 See Catalyst Paper Corp v North Cowichan (District) [2012] 1 SCR 5, 16–17 [23]. 192

192 Controlling Discretion discretion’.198 For instance, the Supreme Court stated in Dr Qv College of Physicians and Surgeons of British Columbia that ‘it is no longer sufficient to slot a particular issue into a pigeon hole of judicial review and, on this basis, demand correctness from the decision-maker’199 and ‘[n]or is it sufficient merely to identify a categorical or nominate error, such as bad faith, error on collateral or preliminary matters, ulterior or improper purpose, no evidence, or the consideration of an irrelevant factor’.200 Instead ‘review of the conclusions of an administrative decision-maker must begin by applying the pragmatic and functional approach’.201 This led Evans JA in the Federal Court of Appeal to conclude that the generalised ‘abuse of discretion’ ground of review had subsumed the specific ultra vires grounds: At one time, courts regarded ultra vires as the only ground of review available at common law for the exercise of statutory discretion. Administrative action could be held to be ultra vires if the repository of discretion committed one of the errors from the familiar catalogue … In Canada, the more descriptive ‘abuse of discretion’ seems now to be the preferred formulation of the ground on which courts review the exercise of administrative discretion. While the various categories of ultra vires error remain relevant as means of establishing that an abuse of discretion has occurred, reviewing courts are also to take a more holistic approach to review. Thus, in order to reflect the deference due to the decision-maker to whom the legislature has delegated discretion, a court should not necessarily assume that it may substitute its view on, for example, issues of propriety of purpose and the relevance of the factors considered.202

Although the Supreme Court of Canada has not explicitly ruled on the modern relationship between the grounds and standards of review, it has given many indications of a move away from the classic model’s fairly formal legal rules towards the ‘more holistic’ approach described by Evans JA. Of particular relevance are the Court’s increasing references to the rule of law as forming the basis for judicial review and source of limits on discretion.203 Judicial reference to the rule of law as the basis for these limits is not a recent phenomenon—as discussed it formed an important part of Rand J’s discussion in Roncarelli. However, since Baker the Court has increasingly referred to the rule of law as a source of those limits. In Baker itself, the majority stated that ‘discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter’.204 These statements have become more pronounced since Baker, and in Dunsmuir

198 See, eg, Mount Sinai Hospital Centre v Québec (Minister of Health and Social Services) [2001] 2 SCR 281, 313–14 [53]–[54] (Binnie J and McLachlin CJ). 199 Dr Q v College of Physicians and Surgeons of British Columbia, above n 184, 237 [25]. 200 ibid 236 [22]. 201 ibid 238 [25]. 202 Canada (Revenue Agency) v Telfer 2009 FCA 23 [21]–[22] (Evans JA, with whom Sexton and Ryer JJA agreed) (references omitted). This is similar to the approach that has developed in the UK, where it is more common to use the general terms ‘abuse of power’ or ‘abuse of discretion’ than refer to particular errors of law: see Craig, Administrative Law, above n 12, 16–27; Wade and Forsyth, above n 9, 286–93. 203 See ch 3 II.D. 204 Baker, above n 2, 855 [56].

Controlling Discretion in Canada 193 the Court emphasised that it is the rule of law that is ultimately the source of the boundaries courts place on administrative discretions, rather than any stand-alone common law rules or presumptions.205 Oddly, the Court has not directly linked any of its references to the rule of law in the judicial review context to the Charter’s preamble, or to the decisions finding that the rule of law is a fundamental organising principle of the Canadian Constitution. Instead, the only references that the Court has given for its references to the rule of law as placing limits on discretion are to Rand J’s judgment in Roncarelli.206 The identification of the fundamental norms underpinning review of discretion, and the more overt balancing of these norms and values, brings a level of transparency and frankness to review that is absent from a strict adherence to established, formal legal rules with in-built balance. Yet, locating limits on discretion within nebulous concepts such as the rule of law and the ‘values of Canadian society’ leaves great uncertainty as to the precise nature and scope of those legal limits. This was certainly the view of McHugh and Gummow JJ of the High Court of Australia about similar developments in the UK: In Australia, the observance by decision-makers of the limits within which they are constrained by the Constitution and by statutes and subsidiary laws validly made is an aspect of the rule of law under the Constitution. It may be said that the rule of law reflects values concerned in general terms with abuse of power by the executive and legislative branches of government. But it would be going much further to give those values an immediate normative operation in applying the Constitution.207

C. The Demise and Return (and Demise Again?) of Jurisdictional Error As discussed in chapter three, the concept of jurisdictional error in its narrow, traditional sense, was retained as a central feature of the standard of review approach developed in New Brunswick Liquor. Jurisdictional error was the determining factor in whether a ‘correctness’ or ‘patent unreasonableness’ standard applied in that case. However, in later cases the concept of jurisdictional error became overshadowed by, and eventually lost within, the ‘pragmatic or functional’ analysis. The ‘pragmatic and functional analysis’ was originally designed as a means of identifying jurisdictional errors, but eventually itself became the determinant of the standard of review. In its attempt to simplify and clarify the standards of review in Dunsmuir, the Supreme Court appeared to reintroduce jurisdictional error into the standard of review analysis. Specifically, the majority suggested that on some occasions the analysis would not be required as the appropriate standard will be clear from the

205 See, eg, Dunsmuir, above n 78, 211–13 [27]–[31], 219–20 [42] (Bastarache and LeBel JJ, McLachlin CJ, Fish and Abella JJ), 249–50 [125] (Binnie J); Catalyst Paper Corp, above n 197, 10 [10]; Régie des rentes du Québec v Canada Bread Company Ltd [2013] 3 SCR 125, 147 [50] (McLachlin CJ for Fish J, dissenting). 206 Baker, above n 2, 853 [53] (L’Heureux-Dubé, Gonthier, McLachlin, Bastarache and Binnie JJ). 207 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 23 [72] (Lam).

194 Controlling Discretion outset, such as in the case of ‘true questions of jurisdiction or vires’. The Court emphasised that this only applied to the concept of jurisdiction in its narrow, traditional sense and that they had no wish to return to the notoriously malleable and difficult ‘preliminary or collateral questions’ doctrine.208 They explained that ‘true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter’.209 It appeared that the concept of jurisdictional error might be reinvigorated in Canada after Dunsmuir—for better or worse.210 Since Dunsmuir the Court has repeated, on many occasions, its assertion that there exist ‘true questions of jurisdiction’,211 yet has failed to actually identify any or to even devise a workable definition.212 This led a majority of the Court to conclude in 2011 in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, that ‘it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review’.213 The case involved a decision of the Alberta Privacy Commissioner which was made outside the statutory time limit. The relevant statute provided that the Commissioner ‘must’ make a decision within 90 days unless the Commissioner notifies the parties that he or she was extending the deadline and provided an estimated date for resolution. The Commissioner’s delegate had taken 29 months to reach a decision on complaints concerning the Alberta Teachers’ Association and had not informed the parties of the extended estimated date until 22 months after the initial complaint was made. The Teachers’ Association argued that the Commissioner had lost jurisdiction to determine the complaint by failing to follow the statutory time frames. The issue appeared to fit squarely within the Dunsmuir definition of ‘jurisdictional error’, that being a question of whether the Commissioner’s ‘statutory grant of power gives it the authority to decide a particular matter’. The Court of Queen’s Bench of Alberta thus found that the applicable standard of review was correctness. A majority of the Alberta Court of Appeal agreed, although on slightly different grounds: the appellate court thought that the fact that the timeliness issue had not been raised before the Commissioner meant that the Court could determine it de novo. However, the Supreme Court unanimously found that the appropriate standard of review was reasonableness, holding that the question of whether the decision was made within time was within the Commissioner’s jurisdiction. Rothstein J’s

208

Dunsmuir, above n 78, 225 [59] (Bastarache and LeBel JJ, McLachlin CJ and Fish and Abella JJ).

209 ibid. 210

See ch 3 III.C. eg, Canada (Human Rights Commission) v Canada (Attorney General) [2011] 3 SCR 471, 483 [18] (LeBel and Cromwell JJ); Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals [2011] 3 SCR 616, 627 [35]; Smith v Alliance Pipeline Ltd [2011] 1 SCR 160, 173 [26] (Fish J, McLachlin CJ, Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ); Nolan v Kerry (Canada) Inc [2009] 2 SCR 678, 697 [32] (Rothstein, Binnie, Deschamps, Abella and Charron JJ). 212 Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association [2011] 3 SCR 654, 674–75 [33] (Rothstein J, McLachlin CJ, LeBel, Fish, Abella and Charron JJ) (Alberta Teachers’ Association). Note, however, that other appellate courts have identified ‘true questions of jurisdiction’. 213 ibid 675–76 [34] (Rothstein J, McLachlin CJ, LeBel, Fish, Abella and Charron JJ). 211 See,

Controlling Discretion in Canada 195 conclusion in this regard was based predominantly on the fact that the time frames were set out within the Commissioner’s ‘home statute’.214 He proposed that: [U]nless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of ‘its own statute or statutes closely connected to its function, with which it will have particular familiarity’ should be presumed to be a question of statutory interpretation subject to deference on judicial review.215

Rothstein J acknowledged that this presumption leaves little scope for the continued existence of any ‘true questions of jurisdiction’, as most of the statutory constraints on a particular tribunal’s power will be found within its home statute, simply noting that ‘since Dunsmuir, this Court has departed from that definition of jurisdiction’.216 Binnie and Cromwell JJ, in separate judgments, agreed that the standard of review was reasonableness in this case, but rejected Rothstein J’s approach. Both objected to the majority’s ‘elevat[ion] to a virtually irrefutable presumption’: the principle that wherever a tribunal is interpreting its home statute, deference should apply. Cromwell J stated: [T]his goes well beyond saying that … ‘courts should usually defer when the tribunal is interpreting its own statute and will only exceptionally apply a correctness standard when interpretation of that statute raises a broad question of the tribunal’s authority’ … [and] … [i]n my view this is no ‘natural extension’ of the approach set out by the majority of the Court in Dunsmuir, as is made plain by the fact that my colleague does not cite a word from the majority judgment which supports his position.217

Cromwell J also took exception to the majority’s suggestion that the concept of jurisdiction ought to be abandoned by Canadian courts, arguing that the proposition ‘undermine[s] the foundation of judicial review of administrative action’.218 He agreed that the terms ‘vires’ and ‘jurisdiction’ are problematic,219 and that the labels themselves ‘need play no part in the courts’ everyday work of reviewing administrative action’.220 However, Cromwell J noted that, following Crevier v Québec (Attorney General),221 the basis of the constitutional guarantee of judicial review in Canada is the proposition that a tribunal cannot be left to determine the limits of its own jurisdiction without review or appeal. If the Supreme Court were to abandon the concept of jurisdictional error, then the question would arise as to what was left of the constitutional guarantee, and its reference point. Mullan agrees that Cromwell J’s concerns are legitimate ones.222 As discussed in chapter three, replacing the current justifications for the constitutional entrenchment

214

ibid 675–76 [34], 677–78 [37], 678 [39]. ibid 676 [34]. 216 ibid. 217 ibid 701 [92]. A similar sentiment was expressed by Binnie J, with whom Deschamps J concurred at: 697–700 [82]–[89]. 218 ibid 701 [92]. 219 ibid 702–03 [95]. 220 ibid 704 [97]. 221 Crevier v Attorney General of Québec [1981] 2 SCR 220. 222 D Mullan, ‘The Year in Review—Recent Developments in Administrative Law’ (Continuing Legal Education Society of British Columbia Administrative Law conference, Vancouver, 26 October 2012) 9. 215

196 Controlling Discretion of judicial review with the rule of law is enormously problematic. It would provide no certainty or guidance as to what it is that the constitutional guarantee of review actually protects.223 Furthermore, within its discussion of the rule of law as the constitutional basis for review in the Dunsmuir decision, the Supreme Court confirmed that it was Crevier that defined the scope of the Court’s ‘constitutional duty to ensure that public authorities do not overreach their lawful powers’.224 Thus, Cromwell J concluded that: ‘In the face of such a clear and recent statement by the Court, I am not ready to suggest, as my colleague does, at para 34, that this constitutional guarantee may in fact be an empty shell’.225 IV. HUMAN RIGHTS CONTROLS ON DISCRETION

The remainder of this chapter analyses the extent to which human rights act as limits on administrative discretion. Rights from a range of sources are examined: constitutional (in the Canadian context);226 statutory (in Australian states and territories);227 common law; and international conventions and treaties. With respect to constitutional and statutory rights, just like earlier sections of this chapter, this fourth section is primarily concerned with the limits imposed on administrative discretion by courts rather than legislatures—as its focus is the effect of rights protection on the development of the common law. Yet, as human rights legislation tends not to be particularly clear on the effect of protected rights on the scope of administrative discretion, the effect of those instruments on administrative discretion has been largely decided by courts in both Canada and Australia.228 Part A therefore describes the role that expressly protected rights play in constraining administrative discretion in each jurisdiction. Dyzenhaus, Hunt and Taggart have suggested that a charter of rights, particularly one that is constitutionally entrenched, may increase judges’ ‘general level of comfort’ with imposing substantive human rights constraints on administrative discretion, by ‘provid[ing] a normative basis for judges to decide challenges to legislative authority, even where the Constitution is not the vehicle for legal challenge’.229 Yet one might, with equal logic, expect that when human rights are expressly protected, there is no longer any need for judges to look to other sources to impose human

223 ibid.

224 Dunsmuir, above n 78, 211–12 [29] (Bastarache and LeBel JJ for McLachlin CJ, Fish and Abella JJ). 225 Alberta Teachers’ Association, above n 212, 706–07 [103]. 226 The few ‘rights’ entrenched in the Australian Constitution do not tend to be raised in the administrative law context: see ch 2 IV.A. 227 The Canadian Bill of Rights SC, 1960, c 44 has had little effect on administrative law: see ch 3 V.C.i. The only aspects of the Act that go beyond the Charter relate to procedural rights, which were discussed in ch 4 I.A.ii. 228 See, generally, J Boughey, ‘Rights, Review and Reasonableness: The Implications of Canada’s New Approach to Administrative Decision-Making and Human Rights for Australia’ (2013) 35 Sydney Law Review 283. 229 Dyzenhaus, Hunt and Taggart, above n 187, 5–6.

Human Rights Controls on Discretion 197 rights limits on administrative discretion. These contrasting hypotheses are explored below. It is shown that although the principles governing the interaction between rights and administrative discretion are not well settled in either jurisdiction, in those Australian jurisdictions with a charter of rights, human rights generally apply as stricter, more absolute constraints on administrative discretion compared with Canada. With respect to implied rights, and those imported from international law, it is argued that there is evidence of trends in both directions. It seems that Canadian courts have not needed to make use of common law rights in interpreting administrative discretions as much as Australian courts have in recent decades, likely as a result of the Charter providing a more satisfactory method for interpreting legislation consistently with rights. On the other hand, Canadian courts appear to be less hostile than Australian courts to applying principles of international law as controls on administrative discretion. It is unclear, however, whether the difference in attitudes is attributable to judicial comfort with international law, or to the different legislative responses to the use of international norms in administrative law in each country. From a practical perspective, then, there is no clear evidence that the Supreme Court of Canada is any more likely to find implied human rights limits on discretionary power than the Australian High Court. A. Charters of Rights230 The effect of protected rights on the scope of administrative discretion is not well settled in either Canada or Australia. The troubled relationship between the Charter and administrative law in Canada was analysed in chapter three, and it was noted that the Supreme Court introduced a new approach in 2012, the implications of which remain uncertain. In Australia, there have only been a few cases in which the effect of the ACT and Victorian human rights statutes on administrative decisions have been considered. With those caveats, however, as it stands, it seems that in Canada Charter rights have been incorporated within the broader, deferential, values-based assessment on review and do not act as outright limits on administrative discretion. Rather, rights are simply a factor (albeit a particularly important one) that decision-makers must balance against other considerations, and in review courts will be primarily concerned with a decision-maker’s justification for limiting rights. By contrast, Australian courts have, to date, taken a more formalist rulesbased approach in which protected rights, as interpreted and applied by courts, are absolute limits on the exercise of discretion. Decision-makers are not permitted to exercise discretion in a way that disproportionately interferes with protected rights, and the question of whether they have is one for the courts.

230 Parts of the following discussion are drawn from Boughey, ‘Rights, Review and Reasonableness’, above n 228.

198 Controlling Discretion i. The Canadian Charter Although the Supreme Court of Canada repudiated the distinction between decisions based on law and those involving ‘pure discretion’ in Baker, the distinction remains critical to the Supreme Court’s review of administrative decisions that limit Charter rights. Indeed, as Paul Daly has pointed out, the approach in Doré simply amplifies the importance of this distinction by making it the threshold question determining whether a minimally deferential section 1 analysis applies, or a deferential reasonableness standard.231 Where legislation expressly or impliedly grants a decision-maker power to limit Charter rights and is itself the subject of review, then the procedure for review is relatively well settled. While administrative decisionmakers are permitted to decide Charter issues—such as whether their empowering legislation imposes limits on rights and whether these are proportionate—courts will review those decisions on a correctness basis.232 Thus, the Charter curtails the ability of executive decision-makers to prefer non-rights-compliant interpretations of legislation over rights-compliant interpretations. Less settled is the extent to which the Charter limits administrative decision-makers in exercising discretion. The range of methods that the Supreme Court has previously used to resolve these issues was considered in chapter three. In addition to their various implications for the relationship between the Charter and administrative law, and for the intensity with which courts will scrutinise administrative decisions that limit rights (considered in chapter six), each of the methodologies had differing implications for the extent to which Charter rights limit the exercise of discretion. Under both the ‘orthodox’ and ‘mixed’ approaches (which either immediately or ultimately apply the section 1 analysis to administrative discretions), Charter rights acted as substantive and absolute legal constraints on discretion. Under both methods, decision-makers were not permitted to exercise discretion in a manner that offended the Oakes test—that is, in a way that placed limits on listed rights that were not reasonably necessary, or where alternative, less rights-infringing courses of action are available. Furthermore, decision-makers retained limited discretion to determine whether rights-limiting action was necessary under the dominant preDoré approaches, as courts would answer the Oakes test questions for themselves and not defer to decision-makers’ justifications. However, under the Doré approach, Charter rights do not act as strict legal rules constraining discretion. Instead, the Doré approach posits Charter rights— or ‘values’ as appears to be the Court’s preferred term in that case—as mandatory considerations. Decision-makers must take Charter values into account in exercising discretion and provide reasons for limiting rights, but may still limit a Charter

231 P Daly, ‘Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms’ (2014) 65 Supreme Court Law Review 247, 279. 232 Nova Scotia (Workers’ Compensation Board) v Martin [2003] 2 SCR 504. See also: Northern Telecom Ltd v Communications Workers of Canada [1980] 1 SCR 115; Cuddy Chicks Ltd v Ontario (Labour Relations Board) [1991] 2 SCR 5, 17 (La Forest J, Lamer CJ, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ); Dunsmuir, above n 78, 225 [58] (Bastarache and LeBel JJ, McLachlin CJ, Fish and Abella JJ), 258 [142] (Binnie J).

Human Rights Controls on Discretion 199 right provided that their decision is within the range of reasonable options and is accompanied by adequate justification. It is possible that an administrative decision might act to limit rights in a manner disproportionate to the objectives sought to be achieved by the empowering legislative scheme, yet be entirely reasonable from an administrative law perspective. It is also possible that a decision-maker could give far less weight to a Charter right than a court would have, and greater weight to other factors, yet still make a ‘reasonable’ decision in an administrative law sense. Thus, it seems likely that under the Doré approach Charter rights will constrain discretion significantly less than under the Supreme Court’s earlier approaches.233 Adding to this likelihood is the Court’s preference of the term ‘values’ as opposed to ‘rights’. It is yet to be seen whether this choice of wording carries any meaning; however its use appears to suggest that courts will take a more generalised approach to review of administrative decisions that touch on Charter rights—viewing the rights not as binding legal rules but as part of a vague, unarticulated matrix of norms. This seems to be in general accord with the broader approach to review of administrative discretion organised around the rule of law. However, as noted in chapter three, there are still many questions that need to be answered by the Supreme Court in the wake of the Doré decision, including whether the reference to ‘values’ instead of ‘rights’ carries any significance. ii. Statutory Rights Protection in the ACT and Victoria Neither of the two Australian charters of rights permits courts to strike down legislation for invalidity, but both contain interpretive provisions requiring legislation to be read consistently with human rights, insofar as is possible.234 Thus, administrative decision-makers are required to interpret their empowering legislation consistently with human rights, or risk making a jurisdictional error. In addition to these interpretive provisions, both statutes expressly provide that administrative discretion will be limited by the requirements to both consider and comply with protected rights. Specifically, both statutes provide that: —— It is unlawful for a public authority to act in a manner that is inconsistent with human rights unless the public authority could not (reasonably) have acted in a way that is consistent with human rights.235 —— Public authorities are required to take human rights into consideration in decision-making. The one critical difference between the two provisions is that the Victorian Charter only requires there to be no other ‘reasonable’ way in which the decision-maker could have acted, while the ACT Charter omits the word ‘reasonable’, apparently requiring express language in a statute permitting an official to act in a manner that is inconsistent with rights.

233

Daly reaches this same conclusion: above n 231, 271–73. of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter) s 32; Human Rights Act 2004 (ACT) (ACT Charter) s 30. 235 ACT Charter s 40B; Victorian Charter s 38. 234 Charter

200 Controlling Discretion Thus, both Australian statutes give clearer directions as to how administrative discretion is affected by rights, and the Victorian Charter on its face appears to point towards a Doré-like approach, that is: enumerated rights are mandatory considerations but decision-makers may limit rights provided that any limits are reasonable. Yet, this is not the interpretative approach that has been taken by Victorian and ACT courts. Instead courts have followed the early, ‘orthodox’ Canadian approach, first articulated by Dickson CJ in Slaight,236 in which rights place more restrictive limits on administrative discretion. In the small number of cases that have considered the issue, courts in the ACT and Victoria have applied a formal Oakes-style proportionality test to determine the lawfulness of administrative action that limits protected rights. The reason for Australian courts having followed Canadian precedent is fairly obvious. Each of the Australian Acts contains a ‘reasonable limits’ clause based on section 1 of the Canadian Charter which includes, among other things, a requirement that any limit be the ‘least restrictive means’ of achieving the desired ends.237 Just as the Supreme Court of Canada did between 1989 and 2012, Victorian and ACT courts interpret the clauses as applying to define and structure the discretion of administrative decisionmakers,238 that is: where empowering legislation does not expressly or impliedly require a decision-maker to limit rights, their discretion to do so will be limited by a requirement that limits must be proportionate to achieving the objectives of the Act. In most cases courts seem to have simply assumed that the reasonable limits clauses apply to administrative decisions, perhaps relying on leading commentary.239 However, in a few Victoria decisions Bell J has given more detailed consideration to the effect of the Victorian Charter on administrative decision-making and implicitly adopted Lamer J’s Slaight framework as a justification for applying the proportionality test to administrative discretion.240 As detailed in chapter three, the framework justifies the application of the reasonable limits test to administrative discretion on the basis that legislatures may only delegate powers which they themselves have.241 In the Australian context, where the legislatures are not prevented from limiting human rights, but there is a presumption that they do not intend to do so, the framework would need to be amended to accommodate this difference. In other words, the justification for applying the statutory proportionality test to determine

236

Slaight Communications Inc v Davidson [1989] 1 SCR 1038 (Slaight). Victorian Charter s 7(2); ACT Charter s 28. For a discussion of the Canadian origins of these provisions see ch 2 IV.C. 238 See: Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414, 422–24 [45]–[58] (Hollingworth J); Kracke v Mental Health Review Board (2009) 29 VAR 1 [58]–[59] (Bell J); Re Lifestyle Communities Ltd (No 3) (2009) 31 VAR 286, 350 [323] (Bell J); Castles v Secretary to the Department of Justice (2010) 28 VR 141, 276 [145] (Emerton J); PJB v Melbourne Health [2011] VSC 327 [304]–[361] (Bell J) (Patrick’s Case); Hakimi v Legal Aid Commission (ACT) (2009) 3 ACTLR 127; Eastman v Chief Executive Officer of Dept of Justice and Community Safety (2010) 172 ACTR 32, 47 [83]; Canberra Fathers and Children Inc v Michael Watson [2010] ACAT 74. 239 See, eg, C Evans and S Evans, Australian Bills of Rights (Sydney, LexisNexis, 2008) 126–27; A Pound and K Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Sydney, Lawbook Co, 2008) 243–44. 240 See Patrick’s Case, above n 238, [209]–[306]. 241 See Slaight, above n 236, 1078–79 (Lamer J). 237

Human Rights Controls on Discretion 201 the scope of administrative discretion to limit rights is that the legislature intended for all statutory discretions to be read, insofar as is possible, as permitting only proportionate limits on rights. The effect is that instead of applying an administrative law reasonableness test, as Canadian courts now do, Australian courts have applied the more formal and restrictive statutory proportionality test. It is possible that this approach might change in light of the Victorian Court of Appeal’s decision in Bare v Independent Broad-Based Anti-Corruption Commission.242 In that decision, the Court of Appeal explained the operation of the other limb of section 38 of the Victorian Charter which requires public authorities to give ‘proper consideration’ to human rights in making decisions. The Court unanimously held that this requirement goes beyond the common law requirement that decision-makers consider relevant matters, and requires decision-makers to engage in a proportionality analysis, balancing ‘competing public and private interests as part of the exercise of justification’.243 The result of Bare is that, currently, an administrative decision-maker must engage in a proportionality analysis and justify any impingement on rights; and on review a court will redo the same analysis and reach a conclusion as to its own view of whether any limits on rights are justified. The apparent result is that courts are permitted to engage in merits review of the proportionality question. There may be constitutional difficulties with this: merits review may be viewed as an administrative function, incompatible with the exercise of the judicial power of the Commonwealth. It is also somewhat inefficient. Perhaps the most likely outcome is that any decision found to pass the ‘procedural’ limb of the Australian charters (the ‘proper consideration’ requirement) will, virtually automatically, pass the ‘substantive limb’ (the requirement that the decision be consistent with rights), leaving the latter with no real role to play.244 This would be similar to the Canadian position post-Doré, in which decision-makers have the primary responsibility for balancing, with a reviewing court assessing the reasonableness of a decision-maker’s justifications rather than redoing that balancing for itself. iii. Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) As noted in chapter two, the Australian Parliament enacted the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (HRPS Act) in 2011. The Act clearly places the onus of complying with Australia’s international human rights obligations on the Parliament and expressly limits the role of the courts.245 Sections 8(4) and 8(5) respectively provide that a ministerial statement of compatibility (that is, a statement that a Bill complies with human rights) ‘is not binding on any court or tribunal’ and ‘does not affect the validity, operation or enforcement of the Act’. These express

242

Bare v Independent Broad-Based Anti-Corruption Commission (2015) 326 ALR 198 (Bare). ibid 277 [285], [288]–[289] (Tate JA). Similar comments were made by Warren CJ in obiter (at 256 [216]) and Santamaria JA (at 344–45 [538]). 244 See further, J Boughey, ‘The Charter’s Effect on Administrative Decision-Making’ (2016) 27 Public Law Review 3. 245 See, generally, G Williams and L Burton, ‘Australia’s Exclusive Parliamentary Model of Rights Protection’ (2013) 34 Statute Law Review 58. 243

202 Controlling Discretion limitations on the judicial use of statements of compatibility do not, however, necessarily prevent the HRPS Act from having an effect on the interpretation of legislation nor of administrative powers conferred by legislation.246 It is at least arguable, if not necessarily particularly convincing, that the enactment of legislation with an understanding that the legislation is compatible with human rights carries with it an expectation that decision-makers exercising powers under that legislation are required to do so in a manner that is also compatible with human rights. In other words, decision-makers should only limit the rights referred to in the HRPS Act to the extent that is reasonably necessary to give effect to the purposes of the legislation. As yet, this argument has not been tested in the courts. Additionally, Dan Meagher has suggested that the poor quality of statements of compatibility to date may limit their utility as interpretive aids.247 B. Non-Statutory Sources of Rights as Limits on Discretion The identification of fundamental common law rights by judges and the use of these rights to limit the powers of legislatures and governments may be controversial, but is far from a recent phenomenon. Common law courts have identified and applied fundamental rights and freedoms in various ways for centuries. One of the principal methods that courts have used to protect certain rights is the presumption that legislatures do not intend to enact legislation that limits fundamental rights and freedoms. Where a statute is not unmistakably clear in its intent to limit rights, then courts will apply the presumption and interpret the statute in a rights-consistent way. In the UK, New Zealand and Australia this interpretive presumption has become known as the ‘principle of legality’, adopting the label brought into common usage by Lord Steyn.248 In Canada, that phrase has a different meaning, referring to the broader principle that all state action must conform with the Constitution and statute and be capable of effective challenge.249 In this chapter the phrase is given its UK/Australian meaning. Equally controversial, and also no modern invention, is the related interpretative presumption that legislatures do not intend to enact legislation that is inconsistent with international law. Both Australia and Canada have a dualist approach to the relationship between domestic and international law—requiring international law to be incorporated into domestic legislation in order to create legally enforceable

246 See: R Dixon ‘A New (Inter)national Human Rights Experiment for Australia’ (2012) 23 Public Law Review 75; D Meagher, ‘The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and the Courts’ (2014) 42 Federal Law Review 1. 247 Meagher, ‘The Human Rights (Parliamentary Scrutiny Act’, above n 246, 11. 248 R v Secretary of State to the Home Department; Ex parte Pierson (1998) AC 539, 587, cited and discussed in JJ Spigelman, ‘The Principle of Legality and the Clear Statement of Principle’ (2003) 79 Australian Law Journal 769, 774; J Burrows, ‘Interpretation of Legislation: The Changing Approach to the Interpretation of Statutes’ (2002) 33 Victoria University of Wellington Law Review 561. 249 See Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society [2012] 2 SCR 524, 544 [31].

Human Rights Controls on Discretion 203 rights and obligations. Where domestic legislation is enacted to give effect to international law, the courts in both countries will, fairly uncontroversially, assume that the domestic law is consistent with the relevant treaty or convention in interpreting its provisions. This interpretive presumption is known as the presumption of consistency in Australia and the presumption of conformity in Canada. The Canadian Charter and the Victorian and ACT human rights legislation are all considered to have been designed to incorporate international human rights conventions into domestic law to varying degrees. Thus, international law plays a role in the interpretation of those documents and the scope of the rights they protect.250 Both the Australian charters contain provisions which expressly support the use of international law and judgments of foreign and international courts and tribunals in interpreting their terms.251 However, debate has arisen in both Canada and Australia about whether the presumption can apply more broadly to legislation not intended to implement international law. i. Legality and Consistency in Australia Australian courts have applied the principle of legality—requiring parliaments to be unambiguous when they intend for legislation to impinge on fundamental rights— for over a century, albeit applying the doctrine to protect a relatively narrow set of rights for most of the twentieth century.252 The doctrine expanded in both importance and scope under the Mason and Brennan courts, and its importance has since been reaffirmed on numerous occasions by the High Court.253 However, the principle still remains limited in Australia both in terms of the rights that it protects and the need for legislation to be, at least somewhat, ambiguous. Although the list of rights protected by the presumption is capable of expansion, as demonstrated by the High Court’s recent decisions on natural justice,254 courts have generally taken a conservative view of which rights are so fundamental as to be protected by the presumption.255 The list remains narrow and is nowhere close to the variety of rights protected by most charters of rights or international treaties. The ‘fundamental common law rights’ currently protected by the presumption in Australia are limited to

250 See: Slaight, above n 236, 1056 (Dickson CJ); R v Hape [2007] 2 SCR 292, 324 [55] (LeBel J, McLachlin CJ, Deschamps, Fish and Charron JJ). 251 Victorian Charter s 32(2); ACT Charter s 31(1). 252 Spigelman, ‘Legality’, above n 248, 780; D Meagher, ‘The Common Law Principle of Legality in the Age of Rights’ (2011) 35 Melbourne University Law Review 449, 453, referring to Potter v Minahan (1908) 7 CLR 277, 288–89 (Griffith CJ), 299 (Barton J), 306–07 (O’Connor J). 253 Meagher, ‘Legality’, above n 252, 454–55; Meagher, ‘The Human Rights (Parliamentary Scrutiny Act’, above n 246, 18–19. See, eg: Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, 329 [20]–[21] (Gleeson CJ); Plaintiff S157, above n 110, 492 [30] (Gleeson CJ); Bennett v Commonwealth (2007) 231 CLR 91, 125 [92] (Kirby J); South Australia v Totani (2010) 242 CLR 1, 29–30 [31] (French CJ); Saeed v Minister for Immigration and Citizenship, above n 98, 259 [15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Momcilovic v The Queen (2011) 245 CLR 1, 46–47 [43] (French CJ). 254 See ch 4 VI.A. 255 See, eg, Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, 298–99 [28] (McHugh J). See also Meagher, ‘Legality’, above n 252, 456.

204 Controlling Discretion property, liberty, freedom of movement, freedom of expression, freedom of religion, natural justice and access to the courts.256 The most significant effect of the principle of legality in administrative law has been in circumventing legislative attempts to restrict the content of natural justice, as discussed in chapter four. The effect of the principle on the exercise of discretion has been more limited, principally because Australian courts have restricted its use to interpreting legislative terms and have not applied it to the exercise of discretionary powers thereunder. Nevertheless, in some instances the principle of legality has played a role in defining and restricting the scope of administrative powers. Where legislation conferring discretionary power is uncertain in its application, a decisionmaker is required to interpret their empowering legislation in a rights-consistent way. As decision-makers in Australia are not entitled to deference in interpreting legislation, strictly, legality has no impact on the exercise of discretion. However, it does affect the scope of discretionary powers. The Full Federal Court’s decision in Minister for Immigration and Citizenship v Haneef 257 provides a good example. The case involved a decision by the Minister to cancel Dr Haneef’s long-term work visa on character grounds. The basis for the Minister’s decision was that two of Haneef’s second cousins were suspects in attempted terrorist bombings in the UK. Haneef had lived with his cousins in London and had given them a SIM card which they had allegedly used in the attempted bombing. The relevant provisions of the Migration Act 1958 (Cth), under which the Minister had purportedly acted in cancelling Haneef’s visa, empowered the Minister to cancel a person’s visa if ‘the Minister reasonably suspects that the person does not meet the character test and the Minister is satisfied that … cancellation is in the national interest’. A person does not pass the character test if ‘the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct’.258 Haneef sought review of the Minister’s decision on the ground that the Minister had applied too broad an interpretation of the word ‘association’, by including his familial relationship with the terrorism suspects within the term (among other grounds). This was the central issue considered by the Full Federal Court comprising Black CJ, French and Weinberg JJ. In a unanimous judgment, the Court noted that the word ‘association’ was capable of a number of applications, depending on the statutory context—from a wide application encompassing ‘completely innocuous connections between people’, to a narrow one requiring ‘some sort of positive involvement in criminal conduct with others’.259 Noting that the principle of legality required that ‘Acts should be construed, where constructional choices are open, so as not to encroach upon common law rights and freedoms’,260 the Court preferred a narrower construction of ‘association’ than was used by the Minister, which excluded lawful relationships without an additional element of some sympathy with, or support for the criminal conduct of the person,

256

See: Meagher, ‘Legality’ above n 252, 456; Spigelman, ‘Legality’, above n 248, 775. Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 (Haneef). 258 Migration Act 1958 (Cth) s 501. 259 Haneef, above n 257, 442 [106]. 260 ibid 442 [107]. 257

Human Rights Controls on Discretion 205 group or association.261 The result was that the Minister’s power to cancel a visa on character grounds as a result of the visa-holder’s relationships was limited. Another example of how legality can be used to define and restrict administrative discretions is found in the dissenting judgments in Al-Kateb v Godwin.262 The case involved a man who was mandatorily detained under the Migration Act, which provided that: 1. All non-citizens must be detained (section 189). 2. They must remain in detention until they are removed from Australia or granted a visa (section 196). 3. A person must be deported as soon as practicable if they ask to be deported, or their final appeals are exhausted and it is determined that they are not entitled to a visa (section 198). The Minister for Immigration decided that Mr Al-Kateb was not entitled to a visa. However, there was no other country that was willing to accept him, and he did not have citizenship of any country. The question before the Court was whether it was within the Minister’s power to detain Al-Kateb indefinitely in Australian immigration detention. While a majority of the Court held that the language of the statute was unambiguous—detention was mandatory unless either of the two conditions listed in section 196 were met—three of the seven justices dissented, finding sufficient ambiguity in the statute to warrant a rights-compliant interpretation which did not permit indefinite detention.263 It is important to note that the statutory power at issue in Al-Kateb v Godwin did not involve a discretionary power to detain, but a mandatory requirement to do so—a point emphasised by a number of the justices. Had the legislation granted discretion to the Minister, Gleeson CJ and Hayne J each noted that the common law rights of Al-Kateb (namely his liberty) would have been relevant considerations to be balanced against any countervailing factors, such as any threat he posed to Australia’s security or public health.264 This illustrates the fact that the principle of legality has only a limited role to play in constraining the exercise of discretion by administrative decision-makers. While it occasionally plays a role in defining the scope of executive power, legality will not constrain decision-makers in choosing between various available options by forcing them to choose a course of action that is rights compliant. Rather, the fairly limited range of human rights protected by the common law in Australia will probably be issues that decision-makers are bound to consider, but which place no substantive constraints on their exercise of power, so long as any limits placed on those rights are not legally unreasonable. For as long as Australia’s High Court has applied the presumption that legislation is consistent with fundamental common law rights, it has also assumed that ‘every Statute is to be so interpreted and applied as far as its language admits as not to be

261

ibid 447–48 [130]. Al-Kateb v Godwin (2004) 219 CLR 562. 263 ibid 577–78 [20]–[22] (Gleeson CJ), 607–09 [117]–[125] (Gummow J), 615–17 [145]–[151] (Kirby J). 264 ibid 578 [22] (Gleeson CJ), 643 [240] (Hayne J). 262

206 Controlling Discretion inconsistent with the comity of nations or with the established rules of international law’.265 The High Court confirmed the doctrine in a number of cases during the 1990s.266 However, Meagher notes that the presumption of consistency ‘has not enjoyed the same prominence or renaissance as the principle of legality in Australia’ and that, with the exception of Kirby J, ‘recent members of the Court have displayed a degree of ambivalence (and sometimes hostility) regarding the scope and even the legitimacy of the presumption’.267 The presumption of consistency requires a greater level of statutory ambiguity in the statute compared with the principle of legality.268 McHugh J’s discussion of the principle in Al-Kateb v Godwin gives some hints as to why the two doctrines have received such different treatment, suggesting that the High Court could not have imagined in 1908 how vast the scope of international law would become. His Honour stated: No doubt the rule of construction had some validity when the rules of international law were few and well-known. Under modern conditions, however, this rule of construction is based on a fiction … Given the widespread nature of the sources of international law under modern conditions, it is impossible to believe that, when the Parliament now legislates, it has in mind or is even aware of all the rules of international law.269

Several High Court justices have expressed the view that the presumption of consistency ought to be limited to legislation enacted to give effect to international treaties,270 and this seems to have been its main use in recent years. Yet, a number of recent decisions and extrajudicial comments made by current High Court justices signal a willingness to expand the presumption, possibly by incorporating it into the principle of legality.271 The main impact of the presumption of consistency in the administrative law context has been in interpreting powers under the Migration Act 1958 to deal with asylum seekers. Where the Migration Act expressly incorporates international conventions, this is uncontroversial.272 A good example of the impact that the presumption is capable of having, despite its limits, is seen in the Malaysia Declaration Case.273 The case involved a controversial proposal by the Gillard Government to send 800 individuals—who had travelled by boat to Australia to seek asylum—to 265 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 363 (O’Connor J). 266 See, eg, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 38 (Brennan, Deane and Dawson JJ); Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J) (Teoh). 267 D Meagher, ‘The Common Law Presumption of Consistency with International Law: Some Observations from Australia (and Comparisons with New Zealand)’ (2012) New Zealand Law Review 465, 471. 268 Meagher, ‘The Human Rights (Parliamentary Scrutiny Act)’, above n 246, 18; Spigelman, ‘Legality’, above n 248, 781. 269 Al-Kateb v Godwin, above n 262, 590 [63]–[65]. 270 See, eg, Yager v The Queen (1977) 139 CLR 28, 43–44 (Mason J); Kruger v Commonwealth (1997) 190 CLR 1, 170 (Dawson J); Coleman v Power (2004) 220 CLR 1, 8 [19] (Gleeson CJ). 271 Meagher, ‘Consistency’, above n 267, 473–74, referring in particular to R French, ‘Oil and Water? International Law and Domestic Law in Australia’ (The Brennan Lecture at Bond University, Gold Coast, 26 June 2009) [37]. 272 See, eg, FTZK v Minister for Immigration and Border Protection, above n 97. 273 Malaysia Declaration Case, above n 96, 180–81 [59] (French CJ).

Human Rights Controls on Discretion 207 Malaysia, where their asylum claims would be processed, in return for Australia accepting 4,000 refugees from Malaysia. In order to give effect to the ‘swap’ the Minister made a declaration with respect to Malaysia under section 198A(3) of the Migration Act 1958 (Cth), which provided that: The Minister may: (a) declare in writing that a specified country: (i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and (ii) provides protection for persons seeking asylum, pending determination of their refugee status; and (iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and (iv) meets relevant human rights standards in providing that protection.

The applicants—asylum seekers from Afghanistan who were to be removed to Malaysia under the arrangement—challenged the lawfulness of the Minister’s declaration. The majority of the High Court construed the criteria listed in section 198A(3)(a) as objective jurisdictional facts, that is: facts, which must exist objectively, before the Minister is empowered to make a declaration. The result of this construction was that the existence (or non-existence) of the facts was able to be reviewed by the Court.274 The Minister submitted that the criteria were satisfied on the basis of an agreement reached between himself and his Malaysian counterpart. However, the majority held that the agreement was not a sufficient evidential basis for the conclusion that the criteria were met. In so finding, they reiterated comments made by the unanimous Court the previous year that: Read as a whole the Migration Act contains an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol.275

In a separate, concurring judgment, Kiefel J reached a similar conclusion, relying explicitly on the principle that legislation should be interpreted in conformity with international law, where possible.276 Accordingly, their Honours said that the criteria set out in section 198A(3)(a) needed to be read in the context of the protections set out in the Refugees Convention and Refugees Protocol.277 In this context, the requirements that a country ‘provides access’, ‘provides protection’ and ‘meets relevant human rights standards’ should be construed as requiring the receiving country to be under a legal obligation to provide the protections set out in international

274

ibid 194 (Gummow, Hayne, Crennan and Bell JJ). ibid 189 [90], citing Plaintiff M61/2010E v Commonwealth, above n 110, 339 [27]. 276 ibid 234 [247]. 277 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). 275

208 Controlling Discretion law, and ‘are to be understood as a reflex of Australia’s obligations’.278 Although Malaysia had entered into an agreement with Australia agreeing to meet the section 198A(3)(a) criteria, as Malaysia was not a party to the Convention and Protocol, there was no domestic or international legal obligation for Malaysia to meet the criteria, and so the criteria were not in fact met. Thus, international law was used to limit the scope of the Minister’s discretion to make a declaration. Subsequently, the Commonwealth Parliament amended the legislation so that the Minister’s power to make declarations is dependent ‘only’ on his view that to do so is in the ‘national interest’.279 The Court held that the amended statute does not require that the Minister take into account Australia’s international obligations under the Refugees Convention in order to make a valid declaration.280 Furthermore, the Court has expressed doubt, based on the history of the provisions, that the Parliament in fact intended them to be a response ‘to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol’, as the Court had found previous incarnations of related provisions of the Migration Act to be.281 Thus, it seems that it may not be enormously difficult for Parliament to dispel the presumption of consistency. The issue of whether the presumption of consistency has any role to play with respect to international obligations which are not expressly incorporated into domestic law is more controversial. Lawyers and judges have made several attempts to extend the presumption of consistency to unincorporated international obligations, using administrative law as a vehicle; however none survive today. In Kioa v West both the Federal and High Court firmly rejected an argument by Mr Kioa that Australia’s ratification of various international human rights treaties and incorporation of them into Australian law via the establishment of the Human Rights Commission, had the effect of transforming the protected rights into relevant considerations in all administrative decision-making.282 A decade later in Teoh,283 the High Court revisited the same general idea, and transformed international human rights treaties into de facto relevant considerations via the legitimate expectations doctrine—albeit one which only gives rise to procedural guarantees and not substantive ones.284 The particulars of this controversial decision are discussed in some detail in chapter four, as is the High Court’s subsequent decision in Lam285 which cast significant doubt on the continued application of any principle from Teoh regarding the role of international obligations in administrative decision-making and the legitimate expectations doctrine more broadly. Specifically, McHugh and Gummow JJ indicated that while international treaties may be taken into account in interpreting legislation,

278

Malaysia Declaration Case, above n 96, 195–96 [116]–[119]. Migration Act 1958 (Cth) s 198(AB), inserted by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) sch 1. 280 Plaintiff S156-2013, above n 112, 46–48 [39]–[46]. 281 ibid [43], referring to Plaintiff M61/2010E v Commonwealth, above n 110. 282 See: Kioa v Minister for Immigration and Ethnic Affairs (1984) 4 FCR 40, 53 (Northrop and Wilcox JJ), 62 (Jenkinson J); Kioa v West (1985) 159 CLR 550, 570–71 (Gibbs CJ), 630 (Brennan J). 283 Teoh, above n 266. 284 Lam, above n 207, 33 [101] (McHugh and Gummow JJ). 285 ibid. 279

Human Rights Controls on Discretion 209 they should have no normative effect on discretionary decision-making ‘without specification of those obligations’ in the empowering statute.286 Hayne and Callinan JJ also expressed doubt about the effect of Teoh for the relationship between international law and administrative decision-making in their separate judgments.287 The prevailing view in Australia now seems to be that the human rights set out in international treaties may be taken into account by decision-makers, but are not usually mandatory relevant considerations in administrative decision-making.288 A decision will only be invalid as a result of a decision-maker’s failure to consider international law if the empowering statute clearly imports the relevant international law into the decision-making process as a mandatory factor. One issue that may emerge in the near future in Australia is the impact of the HRPS Act on this case law. The Act requires MPs to table a ‘statement of compatibility’ when introducing legislation into Parliament, detailing the compatibility of the legislation with the seven main international human rights conventions. As noted above, Australian courts are yet to explore the question of whether these statements of compatibility have any effect on their interpretation of legislation. If they do, then the HRPS Act may have the effect of codifying and strengthening the presumption of consistency in respect of federal legislation in Australia.289 ii. Legality and Conformity in Canada Like their common law counterparts in Australia and the UK, Canadian courts applied the presumption that legislatures did not intend to limit fundamental rights and freedoms when interpreting statutes in the early twentieth century.290 The presumption only protected a very limited range of rights: most notably property, access to courts and liberty.291 These principles were clearly reflected in the views of the majority in Roncarelli v Duplessis and applied to limit the discretion of the Commissioner under statute, as well as the prerogative powers of Premier Duplessis. Though neither Martland J nor Rand J expressly relied on the principle of legality, the fact that the improper purpose for which Premier Duplessis had acted was directed against Frank Roncarelli’s freedoms of religion and association, and the fact that the decision affected Roncarelli’s property rights were influential in both their decisions. Rand J’s judgment is particularly instructive. For instance, in discussing the fact that statutory powers must be exercised for a proper purpose and in good faith, he stated: ‘“Good faith” … does not mean for the purposes of punishing a person for exercising an unchallengeable right; it does not mean arbitrarily and

286 ibid. 287

ibid 38 [122] (Hayne J), 49 [152] (Callinan). Aronson and Groves, above n 44, 423–26; A Duxbury, ‘The Impact and Significance of Teoh and Lam’ in M Groves and HP Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (Melbourne, Cambridge University Press, 2007) 306–07. 289 This suggestion was briefly explored in Dixon, above n 246. 290 See Willis’s critique of this presumption in J Willis, ‘Statute Interpretation in a Nutshell’ (1938) 16 Canadian Bar Review 1, 17–25. 291 ibid. 288 See:

210 Controlling Discretion illegally attempting to divest a citizen of an incident of his civil status’.292 Rand J then distinguished Roncarelli’s case from a House of Lords decision by pointing to the fact that the decision affected the ‘rights of a citizen to enjoy a public privilege’.293 Other references to Roncarelli’s property rights and the use of the word ‘association’ similarly hint that the extent to which the decision impinged on these fundamental rights and freedoms played an important role in the outcome. However, at no point did either judge state that Premier Duplessis could not be granted the power to limit Roncarelli’s property rights and freedoms in the manner, and for the reasons, which he did. Rather, they both based their decisions on the fact that the Premier had no such legal basis for his decision. Thus, the decision made it clear to the executive and legislature that executive decision-makers would only have power to act in a manner with such a significant impact on fundamental common law rights and freedoms if that power was expressly conferred upon them. The Supreme Court’s earlier decision in Smith and Rhuland v Nova Scotia294 also demonstrates this point. The case involved a labour board’s refusal to certify a trade union as a bargaining agent for a group of employees on the basis that a senior official in the union was a communist. A majority of the Court held that the labour board had exceeded its statutory power in basing its decision on the political views of a union leader. The leading judgment, again written by Rand J, emphasised that individuals and groups are assumed to have all the ‘freedoms of citizenship until it is shown that under the law they have forfeited them’.295 As in Roncarelli v Duplessis, Rand J did not suggest that the legislature could not delegate power to infringe on fundamental rights and freedoms, but simply required that decisions which so infringed on rights had a clear statutory mandate. The principle of legality has not had as much of a revival in its use in Canada as in other common law jurisdictions. This may be due to the fact that Canada enacted the Charter a decade before the UK and Australian courts began expanding and reenlivening the principle.296 Thus, there has been little need for Canadian courts to resort to common law rights when interpreting statutes in order to protect fundamental rights and freedoms, as the Charter provides a stronger mechanism. Nevertheless, a statement made by the Court in Baker hinted that common law rights may not have been made completely redundant by the Charter and may still play some role in constraining discretion. Specifically, L’Heureux-Dubé J’s statement that ‘discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter’297 signals that there may be ‘fundamental values’ that are distinct from the principles of the Charter and

292

Roncarelli v Duplessis, above n 137, 143.

293 ibid. 294

Smith and Rhuland Ltd v Nova Scotia, above n 157. ibid 99. 296 In the UK this occurred during the early 1990s: see the discussion in Meagher, ‘Legality’, above n 252, 453–54; Wade and Forsyth, above n 9, 331–33; Lord Browne-Wilkinson, ‘The Infiltration of a Bill of Rights’ [1992] Public Law 397. 297 Baker, above n 2, 855 [56] (emphasis added). 295

Human Rights Controls on Discretion 211 administrative law. David Mullan submitted that this ‘tantalizing’298 statement may leave the door open for the Court to use common law rights as a limit on discretion in a similar manner to pre-Charter cases. In other words, it has the potential to provide the foundation for a Canadian version of the principle of legality. Yet, in the decade and a half since Baker, Canadian courts seem to have little cause to rely on this open door. There are a number of examples of courts labelling Charter rights as ‘fundamental values of Canadian society’, but the decision of the Ontario Court of Appeal in Lalonde v Ontario (Commission de Restructuration de Services de Santé),299 detailed in chapter three, appears to be the only example of a decision-maker being required to consider a human rights value not expressly listed in the Charter. In that case, the Court relied on previous statements from the Supreme Court to find that ‘protection of minorities’ was a fundamental value to which the Commission had failed to give adequate weight. There are also examples of the Supreme Court having elevated certain statutes to ‘quasi-constitutional’ status as a result of the non-Charter rights they protect. In Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401 the Court confirmed that provincial and federal privacy legislation have such a status due to the ‘fundamental values’ they protect. The Court stated that: ‘The ability of individuals to control their personal information is intimately connected to their individual autonomy, dignity and privacy. These are fundamental values that lie at the heart of a democracy’.300 In the case, the relevant sections of Alberta’s privacy legislation were found to disproportionately limit the Charter right to freedom of expression. Nevertheless, the Court’s comments about the importance of privacy suggest that privacy may be one of the ‘fundamental values of Canadian Society’, of which L’Heureux-Dubé J wrote. Interestingly, Canadian administrative law appears to be less averse to international law being used as a source of rights limits on discretion compared with Australian law. However, this may be less a result of judicial reasoning than of the Canadian Government’s reaction to the Court’s use of international law in Baker, contrasted with the Australian Government’s reaction in Teoh (discussed below). A similar division of views is present in Canada as in Australia on the question of whether the presumption of conformity with international law applies generally, or only to legislation intended to give effect to international obligations. A number of commentators have endorsed the former view.301 The Supreme Court seemed to do so too in R v Hape, describing the presumption of conformity as a ‘general principle’, and finding that general international legal principles applied to the

298 Mullan, 299

577.

Administrative Law, above n 182, 128. Lalonde v Ontario (Commission de Restructuration de Services de Santé) (2001) 208 DLR (4th)

300 Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401 [2013] 3 SCR 733, 747 [19]. 301 See, eg, S Toope and J Brunée, ‘A Hesitant Embrace: The Application of International Law by Canadian Courts’ (2002) 40 Canadian Yearbook of International Law 3, 32; M Freeman and G van Ert, International Human Rights Law (Toronto, Irwin Law, 2004) 156.

212 Controlling Discretion interpretation of the Charter.302 However, despite these suggestions, as in Australia it is not clear whether the presumption applies to unimplemented treaties and its principal use has been with respect to legislation enacted with Canada’s international obligations in mind.303 In the Baker decision, the Court was required to consider the effect of ratified, unimplemented treaties on administrative decision-making. The case raised similar issues to Teoh and involved the same treaty—the Convention on the Rights of the Child (CRC)304—yet the Supreme Court of Canada strangely made no reference to Teoh. Dyzenhaus, Hunt and Taggart note that ‘[t]here appears to have been a taboo in the Supreme Court on mentioning Teoh’, perhaps because of the way the case had been received in Australia.305 Although the Supreme Court found that the fact that Baker had been denied procedural fairness was enough to dispose of the appeal, it went on to analyse the separate question of reasonableness because of the fact that this was the ‘serious question of general importance’ that justified its hearing of the appeal.306 The issue for the Court in this respect was whether [g]iven that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s 114(2) of the Immigration Act?307

L’Heureux-Dubé J’s majority judgment noted that ‘[i]nternational treaties and conventions are not part of Canadian law unless they have been implemented by statute’, and agreed with the Minister’s argument that the CRC had not been implemented and so its provisions had no ‘direct application within Canadian law’.308 ‘Nevertheless’, the judgment continued, ‘the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review’.309 In other words, just as common law rights have been found to be ‘fundamental values of Canadian society’, unincorporated international treaties can also shed light on the nature of these ‘fundamental values’ which shape and control the interpretation and exercise of statutory discretions. In this case, the majority said, the principles set out in the CRC and other international instruments which emphasise the need for children to be specially protected, ‘help show the values that are central in determining whether his decision was a reasonable exercise of the [humanitarian and compassionate] power’.310 Furthermore, the ministerial guidelines which directed immigration officers in exercising their discretion reflected

302 R v Hape, above n 250, 323–25 [53]–[56] (LeBel J, McLachlin CJ, Deschamps, Fish and Charron JJ). 303 G Heckman, ‘The Role of International Human Rights Norms in Administrative Law’ in CM Flood and L Sossin (eds), Administrative Law in Context, 2nd edn (Toronto, Emond Montgomery, 2012) 499. 304 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). 305 Dyzenhaus, Hunt and Taggart, above n 187, 14. 306 Baker, above n 2, 851 [49] (L’Heureux-Dubé, Gonthier, McLachlin, Bastarache and Binnie JJ). 307 ibid 831 [9]. 308 ibid 860–61 [69]. 309 ibid 861 [70]. 310 ibid 861–62 [71].

Human Rights Controls on Discretion 213 these same ‘values’ by explicitly requiring decision-makers to consider the effect of decisions on dependants. Thus, the majority found that the interests of Baker’s children were ‘central humanitarian and compassionate values in Canadian society’311 which needed to be considered in interpreting and exercising the humanitarian and compassionate powers under the Immigration Act. As the decision-maker had not been sufficiently ‘alive, attentive or sensitive’ to the needs of Baker’s children in this case, it was held that he had exercised the powers granted to him under statute unreasonably.312 It is noteworthy that this was the only point of disagreement among the members of the Supreme Court in Baker. Iacobucci and Cory JJ agreed with the outcome and reasoning of the majority ‘except to the extent that [the majority] addressed the effect of international law on the exercise of ministerial discretion’.313 They stated that: I do not agree with the approach adopted by my colleague, wherein reference is made to the underlying values of an unimplemented international treaty in the course of the contextual approach to statutory interpretation and administrative law, because such an approach is not in accordance with the Court’s jurisprudence concerning the status of international law within the domestic legal system.314

Although the Supreme Court did not use the language of ultra vires in Baker, its approach to international norms treats them as a mandatory consideration. Their application is a result of statutory interpretation, and they may be departed from, but only when accompanied by a justification. Despite the fact that this element of the Baker decision caused some controversy at the time, it does not seem to have been relied upon subsequently to expand the role of international law in administrative decision-making more generally in Canada. The most obvious source of rights in international law that are not protected by the Charter and might thus utilise the Baker judgment to expand the rights relevant in administrative decision-making is the International Covenant on Economic, Social and Cultural Rights (ICESCR).315 Heckman argues that the ICESCR may be used to argue for some level of protection of equal, affordable and timely access to health care—which could be argued to affect decisions of provincial authorities to close or amalgamate health services.316 Additionally, Heckman suggests that the right to housing in the ICESCR could be used to shape the discretion of provincial rental housing tribunals.317 But to date neither has occurred. The Canadian Government’s reaction to the Court’s use of international law in Baker was the opposite of the Australian Government’s response to Teoh. The latter made a formal statement to the effect that the ratification by the executive of any

311

ibid 860 [67]. ibid 863 [73]. ibid 865 [78]. 314 ibid 865 [79]. 315 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 November 1976). 316 Heckman, above n 303, 502. 317 ibid 503. 312 313

214 Controlling Discretion international treaty was not intended to give rise to any expectation that government decision-makers will act in compliance with the treaty318 and introduced legislation to that effect (which was never enacted).319 By contrast, the Canadian legislature amended the Immigration and Refugee Protection Act320 to include a provision which requires the Act to be ‘construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory’.321 Additionally, the Minister’s power to grant exemptions from requirements of the Act on humanitarian and compassionate grounds that was at issue in Baker was amended to expressly require the Minister to take into account the best interests of the child.322 Therefore, in the specific situation considered in both Baker and Teoh, the authority of Canadian decision-makers is now affected by international law, and the CRC in particular, while that of Australian decision-makers is probably not so limited. However, whether this is a result of Canadian courts being generally more willing to apply international norms is not clear. It may be simply a result of orthodox statutory interpretation. Just as in Australia, however, the main usage of the presumption has been to interpret legislation designed to give effect to international law, and it is in refugee decision-making that it has probably had the greatest impact. This is well illustrated by the case of Ezokola v Canada (Citizenship and Immigration).323 The case involved a decision of the Immigration and Refugee Board that Mr Ezokola was not a refugee to whom Canada owed protection obligations. The Board’s decision was based on its interpretation of a clause contained in Article 1F(a) of the Refugees Convention which provided that the Convention does not apply to a person where there are serious reasons to believe that the person has ‘committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments’. The Canadian Immigration and Refugee Protection Act324 expressly incorporates Article 1F by reference. The Board concluded that Ezokola fell within the definition of Article 1F(a) based on a finding that he had been complicit in crimes against humanity committed by the Government of the Democratic Republic of Congo in his capacity as a high-ranking diplomat. There was no evidence that Ezokola had himself committed any crimes, but the Board’s view was that by voluntarily joining and remaining a government official he was complicit in them. The central questions before the reviewing courts were: where the line was between association and complicity for the purposes of Article 1F(a); and what level of involvement was required to exclude a person from humanitarian protections under that Article.325 Without

318 Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans and the AttorneyGeneral, M Lavarch, ‘International Treaties and the High Court Decision in Teoh’, 10 May 1995. 319 Administrative Decisions (Effect of International Instruments) Bill 1995. Further attempts were made to pass similar Bills in 1997 and 1999. See H Coonan, ‘Signing International Treaties: What Do The Politicians Think They Are Doing?’ (1998) AIAL Forum 15. 320 Immigration and Refugee Protection Act, SC 2001, c 27. 321 ibid s 3(3)(f). 322 ibid s 25(1). 323 Ezokola v Canada (Citizenship and Immigration) [2013] 2 SCR 678. 324 Immigration and Refugee Protection Act, SC 2001, c 27, sch 2. 325 Ezokola v Canada (Citizenship and Immigration), above n 323, 685 [4].

Conclusions 215 addressing the standard of review, the Court clearly applied a correctness standard, presumably because the issue before them was a pure question of law and, more specifically, international law. In answering the questions before it, the Court relied almost exclusively on international and overseas law, as directed by the incorporated Article. This ultimately led to a higher threshold test for complicity than Canadian courts had been applying, and required a knowing and significant contribution to a group that has committed the relevant crimes.326 V. CONCLUSIONS

Just as has occurred in other common law jurisdictions, Australian and Canadian courts have significantly expanded the scope and scale of their supervision of administrative discretion over the past 50 years. There no longer remains any class of decision-maker, or type of decision, that is immune from judicial oversight in either jurisdiction—though there are still some matters that courts will decline to review out of respect for the separation of powers and other constitutional considerations. Courts in both countries are now comfortable with imposing limits on all administrative discretion—sourced expressly or impliedly in statute, the common law and in written and unwritten constitutions. However, this chapter has shown that the method through which limits are imposed, the nature of those limits and their sources differ between Australia and Canada. Indeed, the very definition of administrative discretion differs between Australia and Canada. Administrative decision-makers in Canada are given discretion over many more elements of a decision than those in Australia, as Canadian courts treat more aspects of administrative decision-making as capable of attracting deference. Canadian decision-makers have discretion over the interpretation of legislation and possibly also over the content of procedural fairness, while in Australia these remain questions of law, and so continue to be the sole domain of the courts. In Australia, as under the classic model of judicial review, decision-makers are entitled to deference (or to retain discretion) only on those issues classified as fact as opposed to law, merits as opposed to legality, and substance as opposed to process. Although Australian courts have steered well clear of the term ‘deference’ by retaining and strengthening the grounds of review under the classic model, Australian courts in effect give these discretionary aspects of administrative decision-making an ‘off the shelf’ level of latitude or deference. On those issues where decision-makers have discretion—however defined— Australian courts apply limits by way of formal legal rules (or the grounds of review). The preparedness of courts to apply these limits has increased over time, but their scope and the level of latitude they give to decision-makers has changed little. By contrast, in Canada the ultra vires grounds of review have all but dissolved within the standards of review, and Canadian courts tend to impose limits on discretion by using general and vague legal principles, most notably the rule of law. These

326

ibid 693 [30], 705 [68].

216 Controlling Discretion differences are not a direct result of the Canadian Charter. They have their origins in developments that emerged three years prior to the Charter’s enactment. Yet, they have clearly been influenced by its presence, and particularly by the express statement in the Charter that ‘Canada is founded on principles that recognise the supremacy of God and the rule of law’ and by cases holding that the Canadian Constitution has at its core certain ‘fundamental organising principles’, one of which is the rule of law. Despite the development of these significant differences between Australian and Canadian judicial review, this chapter has shown that there is no discernable pattern of courts in either jurisdiction being either more or less willing to impose limits on administrative discretion, nor on the scope of those limits. There are examples going in both directions. For instance, the development of discrimination as a distinct ground on which decision-makers may act outside power may have been impeded as a result of human rights legislation in Canada. However, there is no general pattern. Administrative law has not been abandoned in Canada as a source of limits on discretion in favour of Charter limits, and nor have Canadian courts become exceedingly willing to locate new, non-Charter rights-based limits as a result of the Charter. Nor does any clear pattern emerge on examination of the extent to which human rights act as distinct limits on administrative discretion. Despite the fact that Canada’s express rights limits are constitutionally entrenched, while those in Australia are sourced in statute, it appears that Australian courts are more inclined to treat express human rights guarantees as strict and absolute limits on administrative discretion. It is important to note, however, that this issue seems to be in a state of flux in Canada and relatively underdeveloped in Australia. However, it seems that for now at least Canadian courts treat express Charter rights as simply one element of the vague ‘values’ to be weighed into administrative decision-making and not as absolute limits on discretion. In those Australian jurisdictions with established human rights legislation, courts have tended to apply human rights as absolute limits on discretion, against the apparent intention of (at least the Victorian) Parliament. There are also some differences in the willingness of courts to limit administrative discretion via implied common law rights and international law. However, as with the treatment of discretion more generally these differences go in both directions and do not lead to any clear conclusion about the overarching effect of Canada’s extensive human rights framework on the preparedness of courts to limit discretion. The clearest difference between Australia and Canada is the role of the Convention on the Rights of the Child in deportation decisions. The Convention is a mandatory consideration in Canada, but probably not in Australia, at least in most cases. However, this difference is, at least in part, attributable to the vastly different legislative reactions to two very similar decisions—Teoh and Baker. Thus, while there are significant distinctions between Canada and Australia in the way courts review discretion, there is no evidence that Canadian courts are generally either more or less willing to impose limits, from any source, as a result of the presence of the Charter. Rather, the central effect of the Charter seems to have been in supporting a more pragmatic, values-based approach to review of discretion, which overtly balances competing principles, of which rights form only one component.

6 Intensity of Review

T

HIS CHAPTER EXAMINES the intensity of judicial review of administrative action, or the standard of scrutiny that courts apply in reviewing decisions. Its aim is to assess whether Canada’s human rights framework has made courts either more or less inclined to scrutinise the minutiae of government decision-making and replace decision-makers’ determinations with their own. Unlike the previous two chapters which were each concerned only with certain aspects of decision-making— procedure and discretion respectively—this chapter covers the intensity of review in relation to all aspects of administrative decisions, including: procedure; discretion; fact; and law. This is necessary because in Canada the standard of review analysis now applies to matters of discretion, fact and law, and possibly also to procedure. The discussion in this chapter is divided into three sections. The first builds on the discussion in chapter five regarding the ‘classic’ model of review that Australia and Canada inherited from England. It outlines the standards of review or varying in-built levels of deference that were inherent in the principles of the classic model. It also summarises the various ways in which UK courts have deviated from the classic model since the 1980s. A brief discussion of UK developments is necessary to give context to judicial reasoning in Australia and Canada. Sections II and III analyse the development of the law and current positions on the intensity of review in Australia and Canada respectively. The analysis shows that Australia has retained the central elements of the classic model with respect to intensity, where questions of law are the domain of the courts, and the level of scrutiny of non-legal elements of decision-making is determined by the ‘off-the-shelf’ tests inherent in the grounds of review. However, there are a few recent indications from the High Court that it may be considering a departure from the strict legalism that has characterised its approach for most of its recent history. In contrast, the evolution of the standards of review and their application to almost every element of decision-making has meant that Canadian courts are now able to apply any number of different levels of scrutiny depending on the circumstances of the case. Following the Doré1 judgment, it seems that this same approach also applies to administrative decisions that limit Charter rights.2 This has the great advantage of flexibility and transparency in judicial review. At the same time, however, it leads to less certainty for decision-makers. The methodology of Canadian review has also changed. Where Canadian courts apply a deferential ‘reasonableness’ standard of

1 2

Doré v Barreau du Québec [2012] 1 SCR 395 (Doré). Canada Act 1982 (UK) c 11, sch B, pt 1 (Charter).

218 Intensity of Review review, they are now primarily concerned with whether a decision-maker has provided logical justifications for their findings. This represents a significant change from the classic model which tries, insofar as is possible, not to concern itself with the actual mind of the decision-maker and applies objective standards. Commentators have expressed concern that various decisions of Canadian courts under this pragmatic approach have involved either too much or too little scrutiny. The most recent criticism has come in the wake of the Doré decision, with some expressing concern that administrative law’s reasonableness standard is not sufficiently strict to properly protect human rights. It is yet to be seen what the full effects of Doré will be and, indeed, whether it will even stick. This chapter argues that while there are examples of the Canadian approach leading to both more and less scrutiny than applies in Australia, there is no general trend in either direction. The approaches in both jurisdictions are pliable and it is not clear that the Charter has resulted in a general pattern of Canadian courts being either more or less deferential to decision-makers compared with Australian courts. I. INTENSITY UNDER THE CLASSIC MODEL

As discussed in chapter five, the principles of judicial review of administrative action that developed across the common law world over the first two-thirds of the twentieth century were underpinned by a number of dichotomies or trichotomies. Administrative decisions were divided into component parts: questions of law, such as the interpretation of statutory text and common law rules; factual findings; and ‘discretion’, ‘merit’, or ‘substance’ being the application of law to the particular facts of a case and weighing competing policy and factual matters to reach an outcome. The purpose of categorising elements of administrative decisions in this way was to maintain appropriate roles for courts and administrators under the separation of powers. Drawing from the fundamental principle established in Marbury v Madison,3 issues classified as ‘law’, which included procedural matters, were the province of the courts and were viewed as having only one correct answer. Put another way, questions of law and process were decided by courts on a ‘correctness’ basis, that is, administrative decision-makers had to reach the same opinion as the courts in order to make a lawful decision.4 By contrast, courts did not have a monopoly over matters classified as merit, substance, discretion and fact. With respect to these aspects of decision-making, courts acknowledged that legislatures had chosen to confer authority on the executive and give decision-makers substantial scope to manoeuvre. Courts acknowledged this by setting high threshold tests with respect to the grounds of review that risked impinging on those discretionary matters.5 For instance, when it came to discretion courts

3

Marbury v Madison 5 US (1 Cranch) 137, 177 (1803). generally: M Taggart, ‘Proportionality, Deference, Reasonableness’ [2008] New Zealand Law Review 423, 427–30; M Taggart, ‘Administrative Law’ [2006] New Zealand Law Review 75, 82–83. 5 DR Knight, ‘Mapping the Rainbow of Review: Recognising Variable Intensity’ [2010] New Zealand Law Review 393, 413–15. 4 See,

Intensity Under the Classic Model 219 would ensure that decision-makers had taken account of matters that the statute required of them (either expressly or by implication), and had not taken into account issues they were forbidden from considering, but would not review the weight given to various relevant factors, nor the decision-maker’s reasons for preferring one side over another.6 Further, a decision-maker only needed to be ‘open to persuasion’,7 and to not ‘shut his ears to an application’,8 rather than be totally impartial in deciding a matter. With respect to ‘facts’, historically courts could review facts classed as ‘jurisdictional’, that is, factual matters on which a decision-maker’s statutory authority depends. Even as the ‘no evidence’ ground emerged, it was variously restricted to findings of material fact or findings a decision-maker is required by law to find, and required a dearth of evidence to support that factual finding, depending on the jurisdiction.9 And, of course, under the classic model unreasonableness was only applied as a ‘safety net’10 in ‘exceptional’ or ‘extreme’ cases.11 For the most part these grounds were applied under the classic model using objective standards.12 Unreasonable decisions were those which ‘looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them’.13 It was the courts that determined whether a consideration was relevant or not based on a process of statutory construction,14 and it was the courts that determined the ‘purposes’ for which a statute conferred discretionary power.15 Courts were not interested in whether a decision-maker thought that the purposes for which they had acted were proper, the issues they had considered relevant, or their decision reasonable. This reflected the fact that the grounds on which courts reviewed decisions were seen as reflecting the implied intention of legislatures. Thus, in addition to balancing oversight with deference for separation of powers purposes, the principles were also common law rules—and so under the separation of powers it was right that the courts had the authority to determine what they were and whether they had been breached in any given case. Judicial restraint in relation to the substance of administrative decision‑makers’ reasoning processes was also reflected in the fact that decision‑makers were not

6 J McMillan, ‘Judicial Restraint and Activism in Administrative Law’ (2002) 30 Federal Law Review 335, 357. 7 H Lavender and Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231, 1240 (Willis J). 8 British Oxygen Co Ltd v Minister of Technology [1971] AC 610, 625 (Lord Reid, with whom Lord Morris of Borth-y-Gest, Lord Wilberforce and Lord Diplock agreed). 9 See generally, B Lane, ‘The “No Evidence” Rule’ in M Groves and HP Lee (eds) Australian Administrative Law: Fundamentals, Principles and Doctrines (Melbourne, Cambridge University Press, 2007) 234–38. 10 Taggart, ‘Proportionality’, above n 4, 427. 11 T Poole, ‘The Reformation of English Administrative Law’ (2009) 68 Cambridge Law Journal 142, 143. 12 M Aronson and M Groves, Judicial Review of Administrative Action, 5th edn (Sydney, Lawbook Co, 2013) 370. 13 See, eg, Bromley London Borough Council v Greater London Council [1983] 1 AC 768, 821 (Lord Diplock). 14 See, eg, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 228 (Lord Greene MR) (Wednesbury). 15 See, eg, Thompson v Randwick Corporation (1950) 81 CLR 87, 106.

220 Intensity of Review under a general common law duty to provide reasons for their decisions.16 Coupled with this, there were limited requirements for decision‑makers to provide information to persons challenging their decisions via discovery, interrogatories and cross examination.17 Taggart notes that ‘indeed, there is an obscure but strongly supported common law doctrine against permitting litigants to “probe the mental processes of the administrator”’.18 The result was that it was frequently very difficult for litigants to show that decision-makers had made an error, particularly when coupled with the high threshold tests.19 A. The UK’s Departure from the Classic Model The UK’s move away from these aspects of the classic model, which began in the 1960s and accelerated during the 1980s and 1990s, has been well explored in commentary.20 It involved the adoption of new grounds of review, such as review for substantive unfairness; the expansion of existing grounds by relaxing threshold tests, as occurred with the ‘no evidence ground’;21 and the abolition of limiting principles such as jurisdictional error. Each of these has been discussed in other chapters. The expansion of judicial review in these ways led commentators to question the basis and constitutional legitimacy of judicial review in the UK.22 A particularly contentious and notable aspect of the drift away from the classic model was the developments that occurred with respect to the ‘standard’ or intensity of review. During the 1980s and 1990s, English courts began raising doubts about the adequacy of the traditional Wednesbury test to protect fundamental rights.23 Initially courts modulated the intensity of unreasonableness, applying a heightened test of ‘anxious scrutiny’ where fundamental common law rights were involved.

16 M Taggart, ‘Reinventing Administrative Law’ in N Bamforth and P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing, 2003) 312. 17 ibid 312–13. 18 ibid 313. 19 ibid. 20 See, eg, C Harlow and R Rawlings, Law and Administration, 3rd edn (Cambridge, Cambridge University Press, 2009) ch 3; M Elliott, ‘The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law’ (1999) 58 Cambridge Law Journal 129; PP Craig, ‘Administrative Law’ in L Blom-Cooper, B Dickson and G Drewry (eds), The Judicial House of Lords 1876–2009 (Oxford, Oxford University Press, 2009). 21 See C Forsyth and E Dring, ‘The Final Frontier: The Emergence of Material Error of Fact as a Ground for Judicial Review’ in C Forsyth et al (eds), Effective Judicial Review: A Cornerstone of Good Governance (Oxford, Oxford University Press, 2010). 22 See, eg, D Oliver, ‘Is the Ultra Vires Rule the Basis of Judicial Review?’ (1987) Public Law 543; J Laws, ‘Law and Democracy’ [1995] Public Law 72; J Jowell, ‘Of Vires and Vacuums: The Constitutional Context of Judicial Review’ [1999] Public Law 448; C Forsyth, ‘Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review’ (1996) 55 Cambridge Law Journal 122; PP Craig, ‘Competing Models of Judicial Review’ [1999] Public Law 428; C Forsyth and M Elliott, ‘The Legitimacy of Judicial Review’ [2003] Public Law 286; TRS Allan, ‘Constitutional Dialogue and the Justification of Judicial Review’ (2003) 23 Oxford Journal of Legal Studies 563. 23 See generally, H Woolf et al, De Smith’s Judicial Review, 7th edn (London, Sweet & Maxwell, 2013) 635–42.

Intensity Under the Classic Model 221 The first articulation of the ‘anxious scrutiny’ standard was in Bugdaycay v Home Secretary24 which involved the right to life in refugee decision-making. The ‘anxious scrutiny’ standard not only involved a lower threshold test than the Wednesbury standard, but also shifted the burden of justification from applicant to decisionmaker. This was reflected in Sir Thomas Bingham MR’s (as he then was) acceptance of the general principle in R v Ministry of Defence; Ex parte Smith that: ‘The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above’.25 The passage also highlights the developing notion that unreasonableness could be assessed on a ‘sliding scale’ of intensity, which is now accepted in the UK.26 Despite the lowering of the threshold test for unreasonableness in human rights cases, the European Court of Human Rights (ECtHR) found the standards inadequate to protect rights under the European Convention on Human Rights.27 In response, UK courts incorporated the principle of proportionality into administrative law’s standards,28 initially as an element of unreasonableness and later as a freestanding standard of review. The authors of De Smith’s Judicial Review present the current picture with respect to the intensity of review in the following way: Table 1: Intensity of Review in the UK29 FULL STRUCTURED INTENSITY PROPORTIONALITY REVIEW REVIEW

VARIABLE INTENSITY UNREASONABLENESS REVIEW

Court decides ‘correctness’ and whether power abused.

Depending on the nature and the subject matter

Intensity of review may vary according to the context. Burden of justification on public authority.

Anxious scrutiny unreason ableness review

Standard Wednesbury unreason ableness review

Burden Burden on on public claimant. authority.

24

NONJUSTICIABLE

But adequacy ‘Light of justification touch’ still required. unreason ableness review Burden on claimant.

Bugdaycay v Home Secretary [1987] AC 514. R v Ministry of Defence; Ex parte Smith [1996] QB 517, 554. 26 See R v Secretary of State for Education and Employment; Ex parte Begbie [2000] 1 WLR 1115, 1130 (Laws LJ). 27 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953); Smith and Grady v UK (1999) 29 EHRR 493. 28 R v Secretary of State for the Home Department; Ex parte Daly [2001] 2 AC 532 (Daly). 29 From Woolf et al, above n 23, 635. 25

222 Intensity of Review In the early years, though many commentators and judges were enthusiastic about the heightened intensity of the ‘anxious scrutiny’ and proportionality standards, others raised strong doubts about the extent to which they could be accommodated within the common law of judicial review without undermining its legitimacy.30 The central argument against proportionality was that it encroaches further on the area of decision-making that the traditional model has long defined as ‘merits’, ‘discretion’, or ‘substance’ than the grounds of review that preceded it. For instance, in R v Secretary of State for the Home Department; Ex parte Brind Lord Lowry commented that: In my opinion proportionality and the other phrases are simply intended to move the focus of discussion away from the hitherto accepted criteria for deciding whether the decisionmaker has abused his power and into an area in which the court will feel more at liberty to interfere.31

Similarly, Lord Ackner described proportionality as a ‘different and severer test’ than Wednesbury unreasonableness that ‘must involve a review of the merits of the decision’.32 These arguments are well justified when one assumes a proportionality test like the one that has become dominant in the UK which is, in many respects, simply a stricter and more structured version of the Wednesbury test. Although a number of questions about the precise nature, scope and structure of proportionality in UK administrative law remain, the leading approach is to view proportionality as a legal question, which is ultimately determined by the courts—just like each of the other grounds of review.33 In other words, it is for the courts to assess whether a decision that limits rights is proportionate to the ends sought to be achieved by the empowering legislation—on a correctness basis—though there may be scope for deference (or a ‘margin of appreciation’) to be afforded to a decision-maker’s views at certain stages of the proportionality enquiry.34 This approach is evident in the first case—Daly—that found proportionality to be a ground of review where Human Rights Act 1998 (UK) c 42 (HRA) rights were involved, from Lord Steyn’s comment that ‘the doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck’.35 The approach was further clarified in R (SB) v Governors of Denbigh High School.36

30 See, eg, S Boyron, ‘Proportionality in English Administrative Law: A Faulty Translation?’ (1992) 12 Oxford Journal of Legal Studies 237; D Irvine, ‘Judges and Decision-Makers: The Theory and Practice of Wednesbury Review [1996] Public Law 59, 63–65; SA de Smith, Judicial Review of Administrative Action (London, Stevens, 1959) 214. 31 R v Secretary of State for the Home Department; Ex parte Brind [1991] 1 AC 696, 767 (Lord Lowry). 32 ibid 762–63. 33 Harlow and Rawlings, above n 20, 122–23. 34 See Elliott’s analysis of the role of, and rationales for, deference at various stages of a proportionality analysis: M Elliott, ‘Proportionality and Deference: The Importance of a Structured Approach’ in Forsyth et al (eds), Effective Judicial Review: A Cornerstone of Good Governance (Oxford, Oxford University Press, 2010). 35 Daly, above n 28, 547 [27], emphasis added. 36 R (SB) v Governors of Denbigh High School [2006] 2 WLR 719 (Denbigh).

Intensity Under the Classic Model 223 The Denbigh case involved a decision by school governors refusing to allow a uslim student to attend the school wearing a jilbab—a long coat which was conM sidered to represent a stricter adherence to the student’s faith than the school uniform of a shalwar kameez and head scarf. The student argued that her right to manifest her religion under Article 9(1) of the European Convention on Human Rights and her right to education under Article 2 of the First Protocol to that Convention had been violated by the decision. The Court of Appeal approached its enquiry as to whether the limits that the school had placed on the student’s Convention rights were justifiable by examining the process through which the school governors had reached their decision. Brooke LJ, with whom the other justices agreed, treated proportionality as a question for decision-makers, and set out a series of questions which decision-makers must ask to determine whether a limit on rights was justified in particular circumstances.37 Brooke LJ then stated: The school did not approach the matter this way at all. Nobody who considered the issues on its behalf started from the premise that the claimant had a right which is recognised by English law, and that the onus lay on the school to justify its interference with that right.38

Because the school had ‘approached the issues in this case from an entirely wrong direction’, the Court of Appeal held that its limit on the student’s Convention right was not justified, and so was unlawful.39 In other words, the Court of Appeal took the view that it was up to the decision-maker to justify limits on rights in the decision-making process. The House of Lords, and Lord Bingham in particular, were very critical of the Court of Appeal’s approach.40 The essence of Lord Bingham’s criticism was that the Court had reduced proportionality to a procedural test. By requiring the school to justify the proportionality of its decision via a formal reasoning process, Lord Bingham found that the Court’s focus had erroneously been on the procedure of decision-making rather than its substance. This, his Lordship said, fundamentally misunderstands the nature of the proportionality test under the HRA: [T]he focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s Convention rights have been violated.41

By applying proportionality as a procedural requirement, Lord Bingham also thought that the Court of Appeal’s approach failed to go beyond the approach traditionally adopted by judicial review at common law, which the ECtHR had found to be inadequate to protect rights in Smith and Grady v UK.42 Furthermore, Lord Bingham criticised the Court of Appeal for introducing ‘a new formalism’ into review of

37

R (SB) v Governors of Denbigh High School [2005] 1 WLR 3372, 3390 [75]. ibid 3390 [76]. 39 ibid 3390 [78] (Brooke LJ). 40 Denbigh, above n 36, 729–32 [27]–[32] (Lord Bingham), 741 [69] (Lord Hoffman) (with both of whom Lord Nicholls agreed, 733–34 [41]. 41 ibid 730 [29]. 42 Smith and Grady v UK, above n 27; Denbigh, above n 36, 731 [30]. 38

224 Intensity of Review ecisions affecting rights, drawing on the criticisms that Thomas Poole had levelled d at the lower Court.43 Lord Bingham made it clear in his judgment that proportionality was a legal question to be answered by the courts and not a question for decision-makers, stating ‘proportionality must be judged objectively, by the court’.44 His Lordship commented that if a decision-maker has conscientiously paid attention to all human rights considerations, no doubt a challenger’s task will be the harder. But what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.45

Like Lord Bingham, Poole has argued that proportionality is a test ‘which the Court applies in order to structure its own decision-making rather than a decision-making structure that it seeks to impose on primary decision-makers’.46 This approach fits within the traditional structure of judicial review in that proportionality is seen as a legal question, which the courts must determine on a correctness standard. However, it also challenges the barriers that courts have constructed to justify their review of the considerations a decision-maker took into account and the reasonableness of the outcome. In particular, it is widely regarded as a more intrusive standard than Wednesbury unreasonableness.47 Proportionality review also challenges the line that courts have drawn between legality and merits with respect to the relevancy grounds of review: between the taking of matters into account and the weighing of relevant factors. Irrespective of the way in which proportionality review is designed, or how high its threshold may be set, a court asking whether or not a limit on fundamental rights is proportionate to the ends sought to be achieved will always require some study of the weight a decision-maker has given to competing considerations. The fact that proportionality review crosses over the boundaries that judges have set between the legality and merits of decisions in these ways means that, in turn, it is viewed as a threat to legislative supremacy and the separation of powers. Sir Anthony Mason has explained, from an Australian perspective: The concern about proportionality in Australia has been, as it was initially in England, that it has the potential to lead to merits review. In both Australia and England, merits review under the guise of judicial review is unacceptable. Merits review by judges would be inconsistent with the legislature’s decision to repose the power of decision in the decision-maker. It would contradict legislative supremacy and on that account could not be justified in the name of judicial review.48

43 Denbigh, above n 36, 731 [31], citing T Poole, ‘Of Headscarves and Heresies: The Denbigh High School case and Public Authority Decision-making under the Human Rights Act’ [2005] Public Law 685. 44 Denbigh, above n 36, 731 [30]. 45 ibid 731 [31]. 46 Poole, ‘Of Headscarves and Heresies’, above n 43, 690. 47 See, eg, Taggart, ‘Proportionality’, above n 4, 451–54; W Wade and C Forsyth, Administrative Law, 10th edn (Oxford, Oxford University Press, 2009) 313; S Sedley, ‘The Last 10 years’ Development of English Public Law’ (2004) 12 Australian Journal of Administrative Law 9, 15–18; B Selway, ‘The Rise and Rise of the Reasonable Proportionality Test in Public Law’ (1996) 7 Public Law Review 212, 218–19; J King, ‘Proportionality: A Halfway House’ [2010] New Zealand Law Review 327. 48 A Mason, ‘The Tension Between Legislative Supremacy and Judicial Review’ (2003) 77 Australian Law Journal 803, 809.

Intensity of Review in Australia 225 II. INTENSITY OF REVIEW IN AUSTRALIA

As Sir Anthony Mason’s comments suggest, Australian courts have declined to follow the UK in adopting proportionality as a distinct principle or standard of review. Nor have Australian courts embraced the notion of a sliding scale of unreasonableness review or any of the recently developed, more intrusive grounds of review, as discussed in earlier chapters. In fact, Australian administrative law has remained relatively true to the classic model of review, with legal and process questions determined by courts on a ‘correctness’ basis and with decision-makers given a great deal of deference, at built-in standards, on matters of fact and discretion within jurisdiction. The central reason for this is the constitutionally entrenched separation of powers doctrine which, Australian courts have held, requires the retention of a strict distinction between matters of law and merit. As discussed in chapter five, the High Court’s approach also reflects its general approach of strict legalism in public law. Nevertheless, there have been some instances in recent years in which the High Court has heightened the intensity of its review of administrative acts. In some cases this has occurred via what Loughlin dubbed an ‘active formalist’49 strategy, manipulating the traditional model’s categories and characterising errors in a way that permits greater scrutiny. In another recent decision, the High Court has suggested that it might be prepared to depart even further from its past approach and consider relaxing the Wednesbury standard. Each of these issues is discussed in turn below. A. Constitutional Entrenchment of the Legality/Merits Distinction At the same time as UK courts were expanding the scope of unreasonableness review and developing new grounds of review which blurred the lines between process and substance, and legality and merit, the High Court of Australia was affirming the importance of those distinctions and elevating them to constitutional status. In Attorney-General (NSW) v Quin,50 the High Court held that courts could not protect individuals against a lawful act of the executive which had the effect of defeating their legitimate expectations. In reaching this conclusion, Brennan J made a number of now famous comments on the nature and scope of judicial review of administrative action under the Australian Constitution, though, as Groves notes, without actually mentioning the Constitution or any of its provisions expressly.51 His Honour began by citing Marbury v Madison52 and Victoria v Commonwealth and Hayden53 for the propositions that the High Court is responsible for pronouncing on the constitutional validity of legislative and executive action and that ‘the duty

49 M Loughlin, ‘Procedural Fairness: A Study in the Crisis of Administrative Law Theory’ (1978) 28 University of Toronto Law Journal 215, 220. 50 Attorney-General (NSW) v Quin (1990) 170 CLR 1 (Quin). 51 M Groves, ‘Federal Constitutional Influences on State Judicial Review’ (2011) 39 Federal Law Review 399, 402. 52 Marbury v Madison, above n 3. 53 Victoria v Commonwealth and Hayden (1975) 134 CLR 338.

226 Intensity of Review extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law’.54 In other words, ‘it is emphatically the province and duty of the judicial department to say what the law is’55 with respect to both the constitutional validity of legislation and the lawfulness of executive action. Brennan J went on to explain that in addition to defining and legitimating judicial review of administrative action, the constitutionally entrenched separation of powers also confines judicial power. Specifically: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.56

Thus, Brennan J made the line between legality and merits the administrative law expression of the separation of powers. His Honour noted that one of the consequences of the legality/merits division is that in reviewing administrative decisions, courts are not concerned with protecting individuals but with the manner in which the decision-maker exercised their powers.57 In other words, the separation of powers also limits courts to examining matters of process, leaving the substance of decisions to the executive. Brennan J noted that the Wednesbury unreasonableness ground is the ‘one limitation’ to this dichotomy which ‘may appear to open the gate to judicial review of the merits of a decision or action taken within power’.58 However, his Honour claimed that due to the restrictive or highly deferential nature of the Wednesbury test: ‘Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power’.59 Furthermore, his Honour noted that judicial intervention on the Wednesbury standard was justified by the fact that it is based on an implied intention of the legislature that administrative powers be exercised reasonably.60 Thus, Brennan J’s statements reiterate the foundational principles of the classic model of review—including the ultra vires basis for judicial intervention and the existence of a real and strict division between administrative and judicial functions—and grant those principles constitutional weight. Justice Gageler has pointed out that there is nothing inherent in Australia’s ‘constitutional paradigm’ that points to ‘either a restrictive or an expansionist approach to the decision-making authority conferred by legislation on the repositories of

54

Quin, above n 50, 35. Marbury v Madison, above n 3, 177 (Marshall CJ). 56 Quin, above n 50, 35–36. 57 ibid 36. 58 ibid. 59 ibid. 60 ibid. 55

Intensity of Review in Australia 227 administrative power’.61 Nevertheless, Brennan J’s comments have been repeated on numerous occasions in Australian judgments and become an accepted explanation of the nature and scope of judicial review in Australia.62 The reasoning has been relied on to explain the limits of the ultra vires grounds of review and refuse their expansion. For instance, in Abebe v Commonwealth,63 Gummow and Hayne JJ referred to Brennan J’s reasoning in their analysis of the scope of the relevancy grounds of review. Specifically, their Honours emphasised that the central question for courts in reviewing whether a decision-maker has failed to consider a relevant fact is simply whether the tribunal has considered an applicant’s evidence regarding the existence of the fact, and not whether the decision-maker has weighed the fact into their final decision. In other words, if a tribunal hears an applicant’s evidence but finds on its enquiry that the evidence is unreliable or untrue, it is not an error for the tribunal to then fail to balance that evidence with other material in reaching its final decision.64 Brennan J’s analysis was also the ‘fundamental consideration’ in the High Court’s rejection of Chevron deference in Australia.65 Matthew Groves has pointed out the contradiction in the Court relying on an American constitutional law precedent of Marbury v Madison as the basis of its allocation of functions between the arms of government, while rejecting the constitutional compromise made in Chevron.66 The High Court distinguished the Australian constitutional position from that of the US because of the fact that the Australian Constitution expressly confers jurisdiction on the High Court over actions against the Commonwealth and its representatives,67 to give relief by mandamus, prohibition and injunction against officers of the Commonwealth,68 and matters arising under the Constitution.69 The Court indicated that these provisions not only confine the supervisory jurisdiction of courts to matters of law, but also entrench that power and require courts to exercise it for themselves.70 Gaudron J stated that to do otherwise would permit administrative bodies to be the final arbiters of their own jurisdiction and be contrary to the rule of law.71 61 S Gageler, ‘The Constitutional Dimension’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Melbourne, Cambridge University Press, 2014) 176. 62 See, eg, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Abebe v Commonwealth (1999) 197 CLR 510, 579–80 [195] (Gummow and Hayne JJ); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 347–48 [73] (McHugh, Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 619 [19] (Gummow ACJ and Kiefel J), 643 [116] (Crennan and Bell JJ). On the constitutional entrenchment of the legality/merits distinction see: Aronson and Groves, above n 12, 24; B Selway, ‘The Principle Behind Common Law Judicial Review of Administrative Action— The Search Continues’ (2002) 30 Federal Law Review 217; S Kneebone, ‘What is the Basis of Judicial Review?’ (2001) 12 Public Law Review 95; G Airo-Farulla, ‘Rationality and Judicial Review of Administrative Action’ (2000) 24 Melbourne University Law Review 543, 558–60. 63 Abebe v Commonwealth, above n 62. 64 ibid 579–80 [195]–[197]. 65 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 152–53 [43] (Enfield). 66 Groves, ‘Federal Constitutional Influences’, above n 51, 404. 67 Australian Constitution s 75(iii). 68 ibid s 75(v). 69 ibid s 76(i). Enfield, above n 65, 153 [43] (Gleeson CJ, Gummow, Kirby and Hayne JJ). 70 Enfield, above n 65, 155 [48]. 71 ibid 157–59 [56]–[60].

228 Intensity of Review Peter Cane has offered an alternative, more convincing, explanation for the differences between Australian and US law in relation to deference. He argues that, rather than being based on any differences in the text of the respective constitutions, the difference is a result of the roles courts play and the constitutional powers they have as institutions in each jurisdiction. Cane submits that Australian courts (along with those in the UK) operate under a ‘subordinate judiciary model’, in which ‘courts are marginal actors in the system of government and subordinate agents of the sovereign legislature’.72 Under this model, there is a ‘sharp distinction between making and interpreting law’, with the courts restricted to the latter.73 Due to their limited role, and the already very substantial power of the ‘executive-legislative conglomerate’, there is no scope for ceding any part of the limited judicial function to the executive. Judicial review is seen as a ‘vital safeguard’, even more so in a federation.74 By contrast, in the US, power is shared between the three branches and the Supreme Court is not seen as subordinate to the Congress. Each of the three branches has their own ‘characteristic function’, but that function is shared with the other branches, due to the system of checks and balances established by the US Constitution.75 Under the ‘coordinate judiciary model’ that results, ‘one of the main functions of courts is to maintain a balance of legal power between the various branches and institutions of government, including courts themselves’.76 The balance between law and policy is also more blurred under this model.77 Thus, there is more scope for finding a pragmatic balance of powers between the three branches. Whatever the constitutional explanation, the result is that Australian courts have firmly rejected the idea of administrative decision-makers playing any role in decisively determining the meaning of legislation. Australian courts have thus continued to define the borders of merit and law in much the same manner as under the classic model—with questions of statutory interpretation, which includes statutory purpose and meaning, being matters of ‘law’, and fact-finding within jurisdiction, balancing of competing facts and policies, and the application of law to particular facts being matters of ‘merit’. B. Unreasonableness and Proportionality The constitutional entrenchment of the legality/merits distinction and Brennan J’s warnings regarding Wednesbury unreasonableness explain why Australian courts have, thus far, resisted the trend among common law jurisdictions of expanding review for unreasonableness, or embracing a ‘spectrum’ of standards. It is interesting,

72 P Cane, ‘Judicial Control of Administrative Interpretation in Australia and the United States’ in H Wilberg and M Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford, Hart Publishing, 2015) 226. 73 ibid. 74 ibid 227. 75 ibid 228. 76 ibid 229. 77 ibid 230. See also P Cane, Controlling Administrative Power: An Historical Comparison (Cambridge, Cambridge University Press, 2016) ch 6.

Intensity of Review in Australia 229 however, to note that Australian judges have not been so reluctant to consider that there might be a spectrum of errors, with only some being sufficient to give rise to a jurisdictional error.78 Nevertheless, despite some early attempts by the Federal Court to follow the expanding English approach79 Australian courts have, for the most part, adhered fairly closely to the original, narrow version of the Wednesbury unreasonableness test in relation to the discretionary choices of decision-making, and an equally strict test of ‘serious irrationality or illogicality’ that applies to jurisdictional fact-finding and possibly other aspects of the decision-making process.80 Australian cases are filled with judicial warnings about the need for a restrained approach to unreasonableness review,81 and Aronson and Groves describe the ground as having ‘changed little in the way it is formulated’ in Australia.82 With respect to proportionality review, the prevailing view of judges and commentators in Australia (at least until very recently) is that proportionality does not, and perhaps cannot form part of Australian administrative law.83 However, this view is not based on judicial commentary on the topic, but rather on the Australian approach to substantive review more generally and the view that the law/merits distinction is constitutionally entrenched. Although the rest of the common law world has discussed the standards of review and proportionality at great length over the past three decades, to the point that ‘at a purely doctrinal level the topic long since ceased to be very interesting’,84 Australian courts have managed to say surprisingly little on the topic. In the years following Lord Diplock’s initial suggestion that proportionality may become a ground on which courts could invalidate administrative decisions,85 a few Australian judges expressed varying levels of support for the principle.86 Most, however, were deeply suspicious. For instance, in 1994, Dawson J suggested that proportionality was a principle of European law which ‘exists as part of a larger framework which finds no counterpart in the common law’.87 His Honour added ‘the application of proportionality would trespass upon that area of policy which the courts have avoided in denying an appeal on the merits from

78

See, eg, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 485 [13] (Gleeson CJ). Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 168; Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corp (1990) 96 ALR 153, 166. 80 See Aronson and Groves, above n 12, 253–63, 286–87, 361–68. 81 See, eg, Quin, above n 50, 36 (Brennan J); Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 626–27 (Gleeson CJ and McHugh J), 649–50 (Gummow J); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, 62 [9] (Gleeson CJ), 1183 [102] (Kirby J). 82 Aronson and Groves, above n 12, 361. 83 See, eg, Aronson and Groves, above n 12, 377; R Creyke and J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd edn (Sydney, LexisNexis, 2012) 834–35; Administrative Review Council (ARC), Federal Judicial Review in Australia, Report No 50 (2012) 135–36; P Cane and L McDonald, Principles of Administrative Law: Legal Regulation of Governance, 2nd edn (Oxford, Oxford University Press, 2012) 174. 84 M Hunt, ‘Sovereignty’s Blight: Why Contemporary Public Law Needs the Concept of “Due Deference”’ in N Bamforth and P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing, 2003) 337. 85 In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410. 86 See, eg, New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307, 321–25 (Kirby J); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 367 (Deane J). 87 Cunliffe v Commonwealth (1994) 182 CLR 272, 356. 79 eg,

230 Intensity of Review an administrative decision’.88 Similarly, in 1998, Spigelman CJ in the NSW Court of Appeal described proportionality as ‘at the boundaries of accepted administrative law’ and noted that ‘the concept of proportionality is plainly more susceptible of permitting a court to trammel upon the merits of a decision than Wednesbury unreasonableness’.89 Subsequently, while in the UK proportionality went from the boundaries of administrative law to an accepted principle on which administrative decisions might be found invalid, the position of Australia’s courts did not change. In Lam,90 McHugh and Gummow JJ expressed doubt that Australia could or should adopt UK developments with respect to both proportionality and substantive legitimate expectations. Their Honours were not explicit about rejecting proportionality in Australian law, yet their juxtaposition of expansive English authority with the following statement implies that the justices viewed review of administrative action for disproportionality as inconsistent with Australia’s constitutional framework: In Australia, the observance by decision-makers of the limits within which they are constrained by the Constitution and by statutes and subsidiary laws validly made is an aspect of the rule of law under the Constitution. It may be said that the rule of law reflects values concerned in general terms with abuse of power by the executive and legislative branches of government. But it would be going much further to give those values an immediate normative operation in applying the Constitution.91

More recently, Hollingworth J in the Supreme Court of Victoria reviewed the various statements made by Australian judges and concluded that they ‘do not support the conclusion that disproportionality provides an independent ground of judicial review in Australia’.92 Her Honour also noted that there was no clear authority to contradict the argument that proportionality is a ground of review in Australia, though stated ‘[i]f such a ground is now to form part of the law of Australia, that is a decision which ought be made by an appellate court, not by a judge at ﬁrst instance’.93 Based on the High Court’s general approach to unreasonableness review and obiter statements about proportionality, it was fair to assume that the only way Australian courts might be able to review administrative decisions for proportionality would be if Australian parliaments enacted judicially enforceable charters of rights. A charter of rights which permits governments to impose reasonable limits on rights and gives courts a role in policing the reasonableness of those limits, would overcome some of the problems with introducing proportionality review at common law. If the legislature expressly required decision-makers to exercise their statutory discretions in a manner that only imposed proportionate limits on rights, then proportionality arguably becomes a question of law rather than one of merits. And if

88

ibid 357. Bruce v Cole (1998) 45 NSWLR 163, 185. 90 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1. 91 ibid 23 [72]. 92 Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414, 424. 93 ibid 424. 89

Intensity of Review in Australia 231 the legislature expressed an intent that courts review administrative decisions for proportionality, courts would not be usurping parliamentary supremacy by conducting proportionality review. Additionally, a charter of rights would provide the ‘rights anchor’ that many commentators have argued proportionality review requires.94 For instance, Aronson and Groves argue that proportionality can ‘be useful only where one can first identify interests which are important enough to warrant the imposition of a “minimum interference” principle’, and state that they have difficulty ‘understanding how proportionality review might work’ in the absence of the articulation of such interests.95 Certainly, it is only subsequent to the introduction of charters of rights that courts in the UK, Canada and (to the limited extent that they have done so) New Zealand96 have considered proportionality review. However, it is not clear that the principle is, or will remain, confined to review of decisions that limit enumerated rights.97 In the Australian context, the issue is made more complex as a result of the strict and constitutionally entrenched separation of judicial power. Specifically, a proportionality test may conflict with the Boilermakers’ principle that Chapter III courts are not permitted to exercise non-judicial functions.98 There is at least a possibility that assessing whether an administrative decision disproportionally interferes with rights might be regarded as an inherently non-judicial function, due to the central role that policy factors play in that assessment. The High Court’s reasoning in Momcilovic v The Queen99 hints at this possibility, though it should be noted that each of the six separate judgments disagreed on virtually every issue in the case and did not actually consider the constitutionality of proportionality review in the administrative law context. The Momcilovic case raised a number of complex constitutional issues regarding the powers of the Supreme Court of Victoria under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter).100 One of the issues raised, on which the outcome of the case ultimately did not turn, was whether it was constitutionally permissible for state and federal courts in Australia to apply the proportionality test set out in section 7(2) of the Victorian Charter to interpreting legislation. As noted in chapter two, the majority of justices either expressly stated or implied that assessing the proportionality of legislation is a non-judicial function and incompatible with the exercise of the judicial power of the Commonwealth. Heydon J was the only judge who was decisive on this issue, finding section 7(2) invalid because it attempted to confer a legislative power on courts

94

See, eg, Taggart, ‘Proportionality, above n 4, 440; Sedley, above n 47, 16. Aronson and Groves, above n 12, 375–76. C Geiringer, ‘Sources of Resistance to Proportionality Review of Administrative Power under the New Zealand Bill of Rights’ (2013) 11 New Zealand Journal of Public and International Law 123; Knight, above n 5; Taggart, ‘Proportionality’, above n 4, 442–45. 97 See, eg, R (Alconbury Development Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, 1406 (Lord Slynn); Daly, above n 28, 548 (Lord Cooke); R v Parole Board ex parte Walker (2007) EWHC 1835 [38] (Laws LJ). 98 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. 99 Momcilovic v The Queen (2011) 245 CLR 1 (Momcilovic). 100 See, generally, W Bateman and J Stellios, ‘Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights’ (2012) 36 Melbourne University Law Review 1. 95

96 See:

232 Intensity of Review that is inconsistent with their constitutional role.101 French CJ and Crennan and Kiefel JJ made more subtle suggestions to this effect. For instance, the Chief Justice commented: [T]he justification of limitations on human rights is a matter for the Parliament. That accords with the constitutional relationship between the Parliament and the judiciary which, to the extent that it can validly be disturbed, is not to be disturbed except by clear words.102

Crennan and Kiefel JJ went a little further, after finding that the proportionality assessment played no role in either a court’s interpretation of legislation under section 32 nor its decision to issue a statement of compatibility under section 36 of the Victorian Charter, stating that: ‘The fact that section 7(2) is divorced from the process of determining inconsistency is a factor in favour of the validity of section 36(2), as will be discussed later in these reasons’.103 Later in their reasons, Crennan and Kiefel JJ stated: [I]t is important to recall that the declaration under section 36(2) does not require more than a statement or conclusion as to the interpretation of the Charter and the statutory provision in question. In particular the Supreme Court is not required, preparatory to a declaration, to undertake the tests under section 7(2). If that process had been required it may well have been said that the Court was being asked to consider an abstract question of law, as to the justification of section 5 of the Drugs Act tested by reference to its proportionality pursuant to section 7(2), which has no legal consequence.104

While none of these statements constitute a clear rejection of the ability of Australian parliaments to confer the power to make a proportionality assessment of legislation on the courts, they do raise doubts about the constitutional validity of such provisions. However, the fact that Australian courts do assess the proportionality of legislation in other contexts—most relevantly where legislation is argued to impinge on the implied constitutional rights of suffrage and free political communication—suggest these doubts may be misplaced.105 Furthermore, the Momcilovic statements relate to proportionality review of legislation and have no necessary implications for the constitutionality of proportionality review in the context of administrative decisions. Just because assessing the proportionality of legislation that limits rights may be incompatible with the exercise of judicial power does not necessarily mean that assessing the proportionality of administrative decisions is. In fact, the reasoning of the Court was that Chapter III courts could not be asked to alter the meaning of legislation by applying a proportionality (or presumably any other type of) test, as this is a legislative function. Where legislation imposes a requirement that administrative decisionmakers can only exercise their powers in a manner that limits human rights if such limits are absolutely necessary, proportionality review of administrative decisions involves no such legislative element. All proportionality review involves in the administrative decision-making context is an assessment of whether the decision-maker

101

Momcilovic, above n 99, 345–49. ibid 44 [36]. 103 ibid 220 [576]. 104 ibid 224 [590]. 105 See S Kiefel, ‘Proportionality: A Rule of Reason’ (2012) 32 Public Law Review 85. 102

Intensity of Review in Australia 233 has adhered to the limits that Parliament has imposed on their discretionary powers, even if those limits are more restrictive than those under common law. Thus, the most likely settled picture in Australian law with respect to the intensity of review would be represented as follows: Table 2: Intensity of Review in Australia FULL INTENSITY REVIEW

PROPORTIONALITY WEDNESBURY REVIEW UNREASONABLENESS REVIEW

Court decides ‘correctness’ and whether power abused.

Courts assess whether limits on rights are proportionate to the ends sought to be achieved by legislation.

Traditional, deferential standard applies. Courts assess whether decision meets threshold of being ‘so unreasonable no reasonable decisionmaker would have reached it’.

Burden on public authority.

Burden on claimant.

Only applies where legislation expressly imposes this restraint on administrative action. Currently only under Victorian and ACT human rights legislation.

Applies to discretionary matters including facts within jurisdiction and weighing of competing factors. Similar ‘serious irrationality’ standard applies to subjective jurisdictional facts (see ch 5).

Applies to questions of law and procedure, and to objective jurisdictional facts.

NON-JUSTICIABLE

Courts will not review decisionmaker’s reasons or justifications.

Applies to limited range of discretionary decisions (usually under prerogative power) inappropriate for, or incapable of, resolution by courts. These tend to include high-level policy issues and involve polycentric policy considerations and also tend to be made by Cabinet and ministers rather than delegates.

C. A Possible Shift in Direction? In its 2013 decision in Minister for Immigration and Citizenship v Li,106 four members of the High Court hinted at a potentially dramatic shift in the Australian approach to unreasonableness review. Ms Li’s application for a skilled visa was denied by the Minister’s delegate because her skills assessment had been based on 106

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li).

234 Intensity of Review false information provided to the assessing authority—Trades Recognition Australia (TRA)—by her migration agent. She sought review of the delegate’s decision in the Migration Review Tribunal (MRT) and applied to TRA for a new skills assessment. The second skills assessment was also adverse; however Li applied to TRA for a review, as the assessment apparently contained two fundamental errors. Li’s new migration agent wrote to the MRT requesting that it refrain from making a decision, pending the outcome of the review. However, the MRT refused to adjourn its decision and affirmed the original decision. The five-member bench of the High Court of Australia unanimously held that the MRT’s decision was unreasonable, with the majority of judges basing their conclusion on the inadequate justification that the MRT had provided for refusing to delay the matter.107 This alone represents a significant shift from the classic model of judicial review, as it implies that the boundary between process and substance may not be as rigid as the model assumes. As explained above, under the classic model questions of procedure are determined on a correctness basis as they are questions of law. Yet in Li, the Court examined an essentially procedural question on a reasonableness standard. The Minister clearly thought that the issue in question was one of procedure. The Act included a detailed procedural code which purported to be an exhaustive statement of the requirements of the hearing rule. The Minister argued that because the procedural code was exhaustive, the MRT’s refusal to exercise its discretion to grant an adjournment could not be construed as having denied Li procedural fairness. However, none of the High Court’s members accepted this view, with each of the three separate judgments finding that the procedural code did not preclude the MRT from being obliged to exercise its discretionary power to adjourn proceedings reasonably.108 Four of the five members of the Court also hinted at a second significant shift from the classic model. In analysing the question of whether the MRT’s decision not to defer its determination was so unreasonable as to constitute a jurisdictional error, a majority of the High Court moved away from the cautious approach to Wednesbury unreasonableness to which Australians have become accustomed, even indicating that proportionality may form part of a general reasonableness standard. The joint judgment of Hayne, Kiefel and Bell JJ began by noting that ‘a standard of reasonableness in the exercise of discretionary power given by statute had been required by the law long before the first statement of “Wednesbury unreasonableness”’ and referring to criticisms of the ‘circularity and vagueness’ of the W ednesbury standard.109 The joint judgment stated that: Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. 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

107

ibid 367 [76] (Hayne, Kiefel and Bell JJ). ibid 350 [26] (French CJ), 357 [47] (Hayne, Kiefel and Bell JJ), 371 [91] (Gageler J). 109 ibid 362–64 [64]–[68]. 108

Intensity of Review in Australia 235 in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified.110

In place of Wednesbury, their Honours looked to other, broader, conceptions of reasonableness which they said might be of more assistance in clarifying the test. These alternative formulations included that from Kruse v Johnson, which has tended to be used in reviewing delegated legislation and proposes that decisions are unreasonable if, among other things, they ‘involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men’.111 The joint judgment noted, like Lord Greene had in Wednesbury,112 that the concept of unreasonableness also encompasses the other rationality grounds of review, and in this respect hinted that proportionality might form a part of the courts’ rationality assessment: 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.113

The joint judges’ conclusion was that the MRT lacked an ‘intelligible justification’ for refusing to adjourn Li’s case.114 Although the MRT had provided some reasons— namely that Li had already had an adequate opportunity to present her case—the majority summarised the Tribunal’s error in the following terms: The Tribunal’s error might be identified as giving too much weight to the fact that Ms Li had had some opportunity to present evidence and argument and insufficient weight to her need to present further evidence. It would not appear that the Tribunal had regard to the purposes for which the statutory discretion in section 363(1)(b) is provided in arriving at its decision. It is not possible to say which of these errors was made, but the result itself bespeaks error.115

The joint judges’ reasoning challenges the classic model of review in three ways. First is its apparent extension of unreasonableness beyond the very narrow Wednesbury formula, possibly to include a proportionality assessment. Second, as noted above, is the use of unreasonableness to invalidate a decision for an ultimately procedural decision—albeit one that it expressly conferred on the MRT by legislation. Its final challenge is the finding of unreasonableness based on a lack of justification from the MRT. Their Honours admitted that their decision could be characterised as having identified an error in the rationality of the MRT’s decision, on relevancy grounds. However, even construed in this way the joint decision goes well beyond the traditional conception of the law/merits dichotomy, as the weighing of considerations has always been regarded as going to the ‘merits’ of a decision.

110

ibid 364 [68]. ibid 365 [70], citing Kruse v Johnson [1898] 2 QB 91, 99–100 (Lord Russell). 112 Wednesbury, above n 14, 229–30. 113 Li, above n 106, 365–66 [72]. 114 ibid 367 [76]. 115 ibid 369 [85]. 111

236 Intensity of Review The Chief Justice’s judgment went further in some respects than the joint judgment, hinting at even broader changes to the relationship between the rationality, fairness, and reasonableness grounds of review. French CJ discussed the two meanings of ‘unreasonableness’ that derive from the Wednesbury decision: as a ‘shorthand’ for the rationality grounds of review; and as a distinct absurdity ground.116 His Honour then stated: A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves.117

Gageler J agreed that the MRT’s decision was unlawful, but based his decision on what his Honour characterised as the Wednesbury standard. In his Honour’s view, the fact that there were no countervailing considerations on which the MRT could have justified refusing to adjourn their decision meant that no reasonable tribunal would have refused Li’s request. Though Gageler J did add that ‘no reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment’,118 reiterating the notion that unreasonableness and procedure are less distinct than the classic model would ordinarily admit. The various statements made by the High Court in Li are far from conclusive about the role, if any, that proportionality now plays in judicial review of administrative acts in Australia. Nor are they clear about the extent to which the new standard of ‘legal unreasonableness’ goes beyond the Wednesbury standard. This uncertainty is reflected in subsequent judgments by lower courts, many of which have been hesitant to draw any conclusions from the Li decision, though do identify that it may have altered the role of proportionality and nature of unreasonableness review in some way.119 One possibility is that the change in the High Court’s language may have no practical impact on the law: perhaps disproportionality may simply become more widely used as a signifier of unreasonableness without any more structure being added to the test. Disproportionality was arguably already an indicia of unreasonableness, albeit one which has not been widely used in Australia, or referred to by that name, perhaps because of the more recent connotations of the term.120 This possibility 116

See Aronson and Groves, above n 12, 363–65. Li, above n 106, 351–52 [30]. 118 ibid 380 [124]. 119 See, eg, WASB v Minister for Immigration and Citizenship (2013) 217 FCR 292, 304 [57]–[58]; A v Corruption and Crime Commissioner (2013) 306 ALR 491, 544 [249]; Sivaprakasam v Minister for Immigration and Border Protection [2014] FCA 871 [43]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 [57]–[58] (Griffiths J). 120 See, eg, Edelsten v Wilcox (1988) 83 ALR 99. See generally: M Allars, Introduction to Australian Administrative Law (Sydney, Butterworths, 1990) 191; A Mason, ‘The Scope of Judicial Review’ (2001) 31 Australian Institute of Administrative Law Forum 21, 38; Selway, ‘The Rise and Rise of the R easonable Proportionality Test’, above n 47, 218. 117

Intensity of Review in Australia 237 appears to be supported by subsequent statements from the Court rearticulating the importance of judicial restraint in review of administrative action.121 It is also supported by Allsop CJ’s discussion of legal unreasonableness in Minister for Immigration and Border Protection v Stretton.122 Allsop CJ indicated that Li had not fundamentally altered the relationship between the judiciary and executive by introducing a new test. Rather, the Court in Li ‘drew upon and drew together a number of well-known expressions and bodies of principle’, including: the principle that discretion not be exercised arbitrarily; the requirement that opinions as to the existence of jurisdictional facts be reasonably formed; and the Wednesbury test. According to Allsop CJ, the Court in Li simply grouped these related ideas under a broader head of ‘legal unreasonableness’, to express the general idea that courts must evaluate whether a decision was made within the boundaries of the discretionary power conferred on the decision-maker, and the fact that this evaluation will involve close reference to the particular statute.123 Allsop CJ then emphasised that this does not change the fundamental nature or scope of the judicial role: Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful.124

However, it is also possible that the Li judgment signals a more significant shift to a version of unreasonableness that encompasses disproportionality in some way. This was certainly the view of the Full Federal Court in Minister for Immigration and Border Protection v Singh125 which, like Li, involved the MRT’s adjournment power. Given that both Singh and Li involved the same adjournment power, there is a chance that any broadened version of unreasonableness applies only in that particular statutory context. However, this would be somewhat bizarre as it is at odds with the position in Canada, where adjournment powers have generally been held to attract more deference from courts, not less.126 Obiter comments of French CJ, Kiefel, Bell and Keane JJ in McCloy v New South Wales also indicate that the Court’s view, post-Li, is that proportionality applies more generally as an element of unreasonableness: ‘The term “proportionality” in Australian law describes a class of criteria … to determine whether legislative or administrative acts are within the constitutional or legislative grant of power under which they purport to be done’.127 In its decision in Singh, the Federal Court found that Li had altered the concept of unreasonableness in Australian administrative law in all three ways identified

121 Plaintiff M64-2016 v Minister for Immigration and Boarder Protection (2015) 90 ALJR 197, 203 [23] (French CJ, Bell, Keane and Gordon JJ). 122 Above n 119. 123 ibid [5]–[11]. 124 ibid [12]. 125 Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280 (Singh). 126 CD Bredt and A Melcov, ‘Procedural Fairness in Administrative Decision-Making: A Principled Approach to the Standard of Review’ (2015) 28 Canadian Journal of Law and Practice 1, 8–9. 127 McCloy v New South Wales (2015) 89 ALJR 857, 863 [3] (emphasis added).

238 Intensity of Review above. Their Honours applied a proportionality analysis to the Tribunal’s refusal of Mr Singh’s request for an adjournment to allow him to challenge the results of his English language test, though really only as an afterthought to their central discussion of reasonableness.128 They acknowledged that the issue was in essence procedural but applied a reasonableness test, confirming that procedural fairness and reasonableness overlap, stating that: In some circumstances, an exercise of power which is said to be legally unreasonable may overlap with an alleged denial of procedural fairness because the result of the exercise of power may affect the fairness of the decision-making process.129

Finally, the Court considered the manner in which Li required courts to assess reasonableness based on the actual justifications provided by the decision-maker as opposed to based purely on the outcome of the decision at length. At the centre of the Court’s conclusion that the MRT’s refusal of an adjournment was unreasonable, was the absence of the justification the Tribunal had provided for that specific decision. Unlike courts reviewing under the traditional concept of unreasonableness, the Court in this case was not satisfied by the reasons that the Minister had given during the judicial review process to justify the MRT’s decision. Rather than being outcome-focused, the Court was principally concerned with the reasons given (or not given) by the Tribunal at the time of its decision. The Court emphasised that this was a change from the previous method of review for reasonableness in Australian law: This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was.130

If this turns out to be an accurate reading of the High Court’s decision in Li, then for the reasons outlined above the High Court will need to pay careful attention to how proportionality review may be reconciled with the law/merits distinction and constitutionally entrenched separation of powers more broadly. As will become apparent from the below discussion, the new Australian approach to reasonableness seems to share much in common with Canadian developments, so that Canadian law might provide guidance to Australia in these respects. D. Other Ways in which Australian Courts have Increased Review Intensity Although, at least until Li, Australian courts had resisted English developments which increased the intensity of review and remained relatively true to the classic 128

Singh, above n 125, 295 [77]. ibid 291 [50]. 130 ibid 290 [47]. 129

Intensity of Review in Australia 239 model, this has not always prevented judicial review in Australia from increasing in intensity. Unlike in the UK, however, this has not been achieved via the adoption of new grounds of review, or lowering of thresholds with respect to existing grounds.131 Instead, on occasion, courts have increased the intensity of review via the expansion of certain categories of error which permit courts to apply a more intrusive standard of review than other errors. The best example is the expansion of the category of errors labelled as ‘jurisdictional facts’. There has long been an exception to the general rule that courts should defer to decision-maker’s findings of fact for facts that are conditions on which the decisionmaker’s jurisdiction depends (‘jurisdictional facts’).132 Where a decision-maker’s authority depends on the existence of a jurisdictional fact, the fact becomes a question of law to be reviewed on a correctness basis. Under the classic model, only a limited range of facts would be classified as jurisdictional, because courts drew a distinction between facts which went to ‘the main question which the tribunal ha[s] to decide’ and matters that circumscribed the scope of a decision-maker’s power.133 Courts emphasised that in declaring facts to be ‘jurisdictional’, and reviewing for correctness, they were simply giving effect to the intent of the legislature, and borderline cases should be determined with reference to the Parliament’s intent. For instance, in Parisienne Basket Shoes Pty Ltd v Whyte, Dixon J stated: It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend.134

His Honour added that should the classification of a fact as jurisdictional produce an ‘inconvenient’ result, the courts should not interpret it as such ‘unless the intention is clearly expressed’.135 Generally, only facts expressed in objective terms would fall within the jurisdictional category.136 This point was made by Spigelman CJ in the NSW Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL.137 Specifically, his Honour stated that in order for a fact to be jurisdictional, two requirements must exist: objectivity and essentiality. His Honour explained: The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality).138 131 See T Poole, ‘Between the Devil and the Deep Blue Sea: Administrative Law in an Age of Rights’ in L Pearson, C Harlow and M Taggart (eds), Administrative Law in a Changing State: Essays in Honour of Mark Aronson (Oxford, Hart Publishing, 2008) 23–33. 132 See, eg, R v Bradford [1908] 1 KB 365; White and Collins v Minister of Health [1939] 2 KB 838. Wade and Forsyth claim that the earliest example is Terry v Huntington (1668) Hardr 480: above n 47, 212. 133 Wade and Forsyth, above n 47, 213 citing R v Fulham etc Rent Tribunal; Ex parte Zerek [1951] 2 KB 1, 6 (Lord Goddard CJ). 134 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 391. 135 ibid. 136 R v Special Commissioners of Income Tax (1888) 21 QBD 313, 319 (Lord Esher MR), cited with approval in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 190 (Lord Morris of Borth-y-Gest), 208 (Lord Wilberforce). 137 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, 64 [38], [42]. 138 ibid 64 [37].

240 Intensity of Review The High Court denied special leave to appeal the case and referred to Spigelman CJ’s discussion of jurisdictional facts as ‘settled principles’.139 However, in another decision handed down only the previous day—Minister for Immigration and Multicultural Affairs v Eshetu— Gummow J stated that facts need not be objective to be classed as jurisdictional.140 This statement was later affirmed by the majority of the Court.141 However, where a jurisdictional fact depends on a decision-maker having reached a particular state of mind (‘subjective jurisdictional fact’)—for instance a provision which states ‘if the Minister is satisfied that … then’, or ‘if the Minister reasonably believes … then’—courts are not permitted to review the existence of that fact on a correctness basis. Instead, the grounds on which a decision-maker may err in deciding a subjective jurisdictional fact are much the same as the grounds on which they may err in exercising any other discretion. That is, the decision-maker’s view that the fact existed must have been reached in good faith, on a proper construction of the statute, and be based on relevant factors etc.142 The sole difference, as discussed in chapter five, is that instead of the Wednesbury unreasonableness ground being available, the very similar test of ‘irrationality or illogicality’ applies. Thus, French CJ and leading commentators have concluded that the classification of a subjective fact as ‘jurisdictional’ or otherwise is of little or no consequence.143 It is, however, indicative of the broader trend of expanding the types of facts classed as jurisdictional—which in some cases has resulted in a greater degree of scrutiny than would have otherwise been the case. The expansion in the aspects of decision-making that will be classed as jurisdictional facts is illustrated by the majority judgment in the Malaysia Declaration Case. The facts of the case are set out in chapter five. The statutory provision in issue involved a discretionary power conferred on the Minister to declare that a specified country met four criteria, being that the country: (i)

provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and (ii) provides protection for persons seeking asylum, pending determination of their refugee status; and (iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and (iv) meets relevant human rights standards in providing that protection.144

Five members of the High Court classified the criteria as objective jurisdictional facts.145 The joint judges—Gummow, Hayne, Crennan and Bell JJ—were persuaded

139 Transcript of Proceedings, Ross Mining NL v Timbarra Protection Coalition Inc [1999] HCA Trans 145 (14 May 1999). 140 Minister for Immigration and Multicultural Affairs v Eshetu, above n 81, 651 [130]. 141 Minister for Immigration and Citizenship v SZMDS, above n 62, 620–21 (Gummow ACJ and Kiefel J), 638 [102]–[103], 643–44 [119]–[120], 648 [130] (Crennan and Bell JJ). 142 Aronson and Groves, above n 12, 237. 143 ibid; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 179–81 [57]–[59] (French CJ) (Malaysia Declaration Case). 144 Migration Act 1958 (Cth) s 198A(3) (now repealed). 145 Malaysia Declaration Case, above n 143, 194 [109] (Gummow, Hayne, Crennan and Bell JJ) 232–34 [240]–[246] (Kiefel J) (Her Honour did not decide the question, but her treatment of the criteria suggests she viewed them as objective jurisdictional facts).

Intensity of Review in Australia 241 that Parliament intended that the criteria exist objectively, because of the absence of any express words specifying that their existence was dependent on the Minister’s opinion or satisfaction. Thus, the plurality construed the provision as conferring a power on the Minister to declare that a certain country ‘has the relevant characteristics’, not a power to declare that he or she ‘thinks or believes or is satisfied that the country has those characteristics.146 The result of this classification was that on review, a court’s role was to assess whether, from an objective standpoint, a declared country provided sufficient protection and effective processes for assessing asylum claims. Their Honours found that Malaysia did not meet the criteria, and that the Minister had erred in exercising his power to make a declaration in the absence of the criteria existing.147 However, they managed to avoid diplomatic indiscretion by basing their assessment largely on the absence of legislative protections for asylum seekers in Malaysia, rather than criticising Malaysia’s actual or likely treatment of asylum seekers.148 In essence, the joint judgment reasoned that the criteria must be construed in light of Australia’s obligations under the Refugees Convention, so that the meaning of words such as ‘provides protection’ referred to the specific protections required under international law.149 They also held that the words ‘provides protection’ require that the obligation to protect asylum seekers and refugees, and the particular protections required under international law must either be codified in domestic law or enshrined within an international agreement to which the country is a party.150 As Malaysia did not recognise refugees under its domestic law and was not a party to the Refugees Convention,151 their Honours held that the criteria did not in fact exist, and the Minister had no jurisdiction to make a declaration with respect to Malaysia.152 There are a number of logical difficulties that stem from construing the criteria as objective jurisdictional facts, many of which were pointed out by Heydon J in his dissent. Chief among them is that the construction empties the provision of any meaning or function. Had the Parliament intended the criteria to exist objectively, then what purpose does the conferral of discretionary power on the Minister serve? There is nothing left for the Minister to decide. No discretion left to exercise. Surely, if one were genuinely concerned with legislative intent as the foundation for categorising the criteria as jurisdictional facts or otherwise, it is unlikely that in conferring the power to make declarations on the Minister, Parliament would have intended that the criteria sit at the core of the question that Parliament has asked the M inister to decide. Heydon J read the provision in precisely this way—as conferring on the Minister discretion to declare that the criteria existed with respect to any given country.153 While the Minister must exercise his discretion to make a

146

ibid 193–94 [106] (emphasis in original). ibid 202 [136]. ibid 195 [114]. 149 ibid 195–97 [117]–[119]. 150 ibid 199 [125]–[127]. 151 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954). 152 Malaysia Declaration Case, above n 143, 201–02 [135]–[136]. 153 ibid 208 [161]. 147 148

242 Intensity of Review eclaration reasonably, taking into account relevant matters (and specifically the d four criteria listed) and for a proper purpose, his Honour considered that the existence of criteria was ultimately a matter for the Minister and not the courts. Heydon J gave a number of reasons for this construction. He noted that although the criteria themselves were not expressed in subjective language, they were inherently ‘broad ranging and subjective’ matters on which reasonable minds might differ, and that ‘questions as to whether the conditions actually exist are not apt for resolution by a process of adjudication’.154 His Honour also suggested that courts ought to be wary of reviewing the Minister’s decision with respect to the criteria, as doing so may interfere with international relations and such matters are better suited to parliamentary, not judicial oversight.155 Furthermore, Heydon J disagreed with the majority’s view that the criteria required a declared country to be under a domestic or international legal obligation to provide protection. His Honour thought that the Minister’s consideration of Malaysia’s practical protection of asylum seekers and future undertakings was sufficient to satisfy the standard required by Parliament.156 The contrast between Heydon J’s orthodox approach and that of the majority demonstrates how far the concept of jurisdictional fact has expanded in recent years in Australia. It seems that it is now possible to classify virtually any statutory criterion as a jurisdictional fact, reviewable by courts on a correctness basis.157 As the Chief Justice’s separate, concurring judgment demonstrates, it was not necessary to categorise the criteria as jurisdictional facts in order to reach the same outcome as the majority. French CJ took an intermediary approach to the jurisdictional fact issue—suggesting that while they may be jurisdictional facts, the criteria involved a subjective value judgment which the legislature clearly intended the Minister to make, not the courts. His Honour stated that ‘[a]bsent clear words, the sub-section should not be construed as conferring upon courts the power to substitute their judgment for that of the Minister by characterising the matters in sub-paras (i)–(iv) as jurisdictional facts’.158 Given the criteria required subjective evaluation, French CJ noted that they could be classified either as factors defining the content of the Minister’s discretionary function, or as subjective jurisdictional facts. He suggested that it did not matter which approach the court took, as its review function would be the same: that is asking whether the Minister had misconstrued the nature of his discretion or erred in its exercise on the traditional ultra vires grounds.159 French CJ went on to agree with the orders proposed by the joint judgment, finding that the Minister had misconstrued the nature of the task conferred by the legislature by addressing the criteria at the wrong point in time. The criteria clearly required an assessment of whether a country met the criteria and not whether it had promised, at some future point, to meet them.160 154

ibid 210 [164]. ibid 209 [163]. ibid 208–09 [162]. 157 See further: B Mason, ‘Jurisdictional Facts After Plaintiff M70’ (2013) 24 Public Law Review 37, 58; P Johnson et al, ‘Probing the Frontiers of Administrative Law’ (2011) 67 AIAL Forum 1, 28. 158 Malaysia Declaration Case, above n 143, 180 [58]. 159 ibid 180–81 [59]. 160 ibid 181–84 [61]–[68]. 155 156

Intensity of Review in Canada 243 The Commonwealth Parliament responded to this decision by amending the relevant provisions of the Migration Act such that ‘The only condition for the exercise of the power under subsection (1) is that the Minister thinks that it is in the national interest to designate the country to be a regional processing country’.161 An attempt to argue that the Minister must consider Australia’s international obligations under the Refugees Convention in making a declaration under the new provision was rejected by the High Court.162 III. INTENSITY OF REVIEW IN CANADA

A. Questions of Law Canada’s break with the classic approach to intensity began with the Supreme Court’s decision in New Brunswick Liquor,163 the details of which have been examined at various points throughout this book.164 Most importantly from an intensity perspective, in that case the Court accepted that the legislature might wish for a tribunal to have jurisdiction over certain matters of law, just as over matters of fact and merit in a particular decision-making context.165 The Court referred to ‘jurisdiction’ rather than to deference in that case, but as commentators pointed out and as became clear in later cases, the approach was similar to the doctrine of administrative deference developing around the same time in the US.166 While Australian courts view deference on matters of law as contrary to the separation of powers, deference is not viewed in this way in either the US or Canada. Indeed, a large number of scholars submit that Chevron deference supports the separation of powers by ‘prevent[ing] the courts from interfering with tasks delegated by Congress to the executive branch’.167 This is because decision-makers are only permitted to make reasonable and rational choices regarding the meaning of legislation where the meaning of that legislation is ambiguous. It is presumed that where the intent of the legislature is unclear, an expert tribunal will frequently be better equipped to choose between competing, reasonable interpretations than a court. Where, in the reviewing court’s view, there is only one reasonable way in which legislation can be interpreted, a decision-maker is not given any room to manoeuvre. Furthermore, courts should only defer to tribunals on matters of law where the

161

Migration Act 1958 (Cth) s 198AB(2). Plaintiff S156-2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28, 46–48 [39]–[45]. 163 Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corporation [1979] 2 SCR 227 (New Brunswick Liquor). 164 See ch 3 III.B and ch 5 III.B. 165 New Brunswick Liquor, above n 163, 235–36. 166 See, eg, H Janisch, ‘Towards a More General Theory of Judicial Review in Administrative Law’ (1989) 53 Saskatchewan Law Review 327, 332–37; D Dyzenhaus, ‘The Politics of Deference: Judicial Review and Democracy’ in M Taggart (ed), The Province of Administrative Law (Oxford, Hart Publishing, 1997); Dunsmuir v New Brunswick [2008] 1 SCR 190 (Dunsmuir). 167 See discussion and works referred to in Note, ‘The Two Faces of Chevron’ (2007) 120 Harvard Law Review 1562, 1562. 162

244 Intensity of Review legislature has evinced an intention that the tribunal decide the matter, and where the matter is within their specialised jurisdiction. Thus, courts retain ultimate constitutional responsibility for determining whether a decision-maker had exercised powers which had not properly been conferred on them. Initially in Canada, deference only applied to questions of law within a tribunal’s jurisdiction when there was a privative clause. But over the following two decades the Supreme Court dispensed with privative clauses as the sole indicator of a legislative intent to confer interpretive discretion on tribunals, and developed its ‘pragmatic and functional’ approach, with a range of factors pointing to deference or non-deference.168 The nature of the deferential standards has also undergone a number of transformations, as outlined in chapter three. However, one thing is true of all the deferential standards—patent unreasonableness, reasonableness simpliciter and the current ‘unreasonableness’ standard—at least in theory; they are all more deferential than correctness review. Thus, wherever Canadian courts have decided that deference on a matter of law is appropriate, they have notionally given more latitude to the decision-maker than a court would have under the classic model. Since Dunsmuir, reasonableness has become the dominant standard of review including on matters of law. In Dunsmuir, the Court indicated that reasonableness should apply automatically to questions of law that are intertwined with factual issues as well as where a tribunal is interpreting its own statute, or has particular expertise over a matter.169 There were questions following Dunsmuir as to whether this also applied to ministers and their delegates as well as to tribunals. This now seems to have been resolved in the affirmative in Agraira v Canada (Public Safety and Emergency Preparedness),170 though Mullan points out that there may still be some variance in the circumstances in which courts will defer to a minister’s interpretation of his or her home statute versus a tribunal’s.171 Given that most legal questions arising before decision-makers involve the interpretation of their home statute or a mixed law-fact question, reasonableness has become the dominant standard. In Dunsmuir, the Court identified four circumstances in which correctness review would automatically apply: constitutional questions; ‘true’ questions of jurisdiction or vires; questions of general law ‘of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’; and ‘questions regarding the jurisdictional lines between two or more competing specialized tribunals’.172 Some commentators have expressed concern that reintroducing these categories could lead to a reformalisation of Canadian judicial review.173 However,

168 See A Macklin, ‘Standard of Review: Back to the Future?’ in CM Flood and L Sossin (eds), Administrative Law in Context, 2nd edn (Toronto, Emond Montgomery, 2012) 291–300. 169 Dunsmuir, above n 166, 223 [53]–[54] (Bastarache and LeBel JJ, McLachlin CJ, Fish and Abella JJ). 170 Agraira v Canada (Public Safety and Emergency Preparedness) [2013] 2 SCR 559, 585 [50]. 171 D Mullan, ‘Unresolved Issues on Standard of Review in Canadian Judicial Review of Administrative Action—The Top Fifteen!’ (2013) 42 The Advocates’ Quarterly 1, 85. 172 Dunsmuir, above n 166, 225–26 [58]–[61] (Bastarache and LeBel JJ, McLachlin CJ, Fish and Abella JJ). 173 See, eg, P Daly, ‘The Unfortunate Triumph of Form Over Substance in Canadian Administrative Law’ (2012) 50 Osgoode Hall Law Journal 317.

Intensity of Review in Canada 245 each category has been interpreted narrowly, in effect making deference the default position in an even larger proportion of cases.174 While courts will still approach some constitutional issues using correctness review, this is no longer the case with discretionary decisions that limit Charter rights, as discussed in chapters three and five, and below. This means that a substantial portion of constitutional issues are now subject to the reasonableness standard. The reluctance of the Court to identify any ‘true question of jurisdiction or vires’ was discussed in chapter five. The Supreme Court has shown similar reluctance to label legal questions as ‘of central importance to the legal system as a whole outside of the adjudicator’s specialized area of expertise’. For instance, in Canada (Canadian Human Rights Commission) v Canada (Attorney General)175 the legal question in issue was the legal costs component of compensation that the Commission awarded to a victim of discrimination. The Supreme Court found that this was not a sufficiently important question to warrant correctness review and commented that in order to be such a question, an incorrect interpretation would need to ‘subvert the legal system’ in some way.176 Similarly in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association177 and Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals178 the Supreme Court declined to label legal questions traditionally within the sole jurisdiction of courts as outside the expertise of specialist tribunals. Those issues were, respectively: statutory provisions relating to time frames for decision-making; and the application of the equitable doctrine of estoppel. In the latter case, a labour arbitrator held that a union was estopped from asserting its rights under disputed provisions of a collective agreement until the agreement expired, due to its long-standing acquiescence to the employer’s interpretation of the provisions. The Supreme Court found that labour arbitrators were entitled to deference ‘as they adopt and apply common law and equitable principles within their distinctive sphere’.179 The Court’s findings and statements in these cases raise the question of whether there is likely to be any issue that falls into the category of ‘central importance to the legal system as a whole outside of the adjudicator’s specialized area of expertise’ warranting correctness review. The Supreme Court’s approach to the fourth Dunsmuir category—the jurisdictional lines between specialist tribunals—shows a similar trend. In British Columbia (Workers’ Compensation Board) v Figliola180 the Court was asked, among other things, whether the British Columbia Human Rights Tribunal had jurisdiction over an issue that the Workers’ Compensation Board had already resolved. The

174 D Mullan, ‘The Year in Review—Recent Developments in Administrative Law’ (Continuing Legal Education Society of British Columbia Administrative Law conference, Vancouver, 26 October 2012) 5–10. 175 Canada (Canadian Human Rights Commission) v Canada (Attorney General) [2011] 3 SCR 471. 176 ibid 487 [25]. 177 Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association [2011] 3 SCR 654 (Alberta Teachers’ Association). See further ch 5 III.C. 178 Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals [2011] 3 SCR 616. 179 ibid 631 [53]. 180 British Columbia (Workers’ Compensation Board) v Figliola [2011] 3 SCR 422.

246 Intensity of Review Court applied a deferential standard181 stating that tribunals can have concurrent jurisdiction over certain issues. The Court further noted that despite the fact that the doctrines of issue estoppel, collateral attack and abuse of process were involved; correctness review was not required. Likewise, in Bernard v Canada (Attorney General)182 the Supreme Court reviewed a decision by a labour board about the scope of employee’s protections under the Privacy Act183 on a reasonableness standard, despite the Privacy Commissioner having reached the opposite conclusion on the same issue. There are a few cases going the other way. For instance, Rothstein J added an additional category of situations where correctness should be the standard to the Dunsmuir four: where a statutory scheme gives both courts and a tribunal the power to determine an issue. The situation arose in Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada,184 in which the Supreme Court was asked to address the standard of review applicable to the Copyright Board’s interpretation of the phrase ‘to the public’. Rothstein J, for the majority, held that the correctness standard applied due to the fact that certain proceedings regarding the interpretation of copyright legislation could be brought before the courts at first instance. On appeal from these decisions, superior courts applied a correctness standard, and it would be inconsistent if on appeal from a judicial review, the appeal court were to approach a legal question decided by the Board on a deferential standard, but adopt a correctness standard on an appeal from a decision of a court at first instance on the same legal question.185

Rothstein J made it clear that this principle should only apply in exceptional circumstances,186 nevertheless, it does demonstrate that the categories in which correctness review applies are not necessarily closed. In the 34 cases from 2013 to 2015 in which the Supreme Court was asked to review administrative action it applied what appears to be a correctness standard in only six, though in three of those the Court did not actively consider the standards of review question. In both Ezokola v Canada (Citizenship and Immigration)187 and Febles v Canada (Citizenship and Immigration),188 the Court applied what appeared to be a correctness standard to questions involving the interpretation of international law. In neither case did the Court pay attention to the Board’s reasons, or possible reasons, for applying the test it had. In Régie des rentes du Québec v Canada Bread Company Ltd189 the Court applied a correctness test, again without

181 Because the case was brought under the Administrative Tribunals Act, SBC 2004, c 45, the standard was patent unreasonableness. 182 Bernard v Canada (Attorney General) [2014] 1 SCR 227. 183 Privacy Act, RSC 1985, c P-21. 184 Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada [2012] 2 SCR 283 (Rogers). 185 ibid 296 [14]. 186 ibid 298–99 [19]. 187 Ezokola v Canada (Citizenship and Immigration) [2013] 2 SCR 678. 188 Febles v Canada (Citizenship and Immigration) [2014] 3 SCR 431. 189 Régie des rentes du Québec v Canada Bread Company Ltd [2013] 3 SCR 125.

Intensity of Review in Canada 247 actively discussing the standard of review, to the question of whether the Régie was required to apply amended legislation to a matter remitted to it following judicial review. In McCormack v Fasken Martineau Du Mouin LLP a correctness standard was applied to review a decision of the British Columbia Human Rights Tribunal because section 59 of British Columbia’s Administrative Tribunals Act190 mandated that standard.191 Similarly, during 2012 the Supreme Court of Canada found that a correctness standard applied only in its review of decisions made under copyright legislation on the basis of its reasoning in Rogers, discussed above.192 Thus, it seems that correctness review of administrative decision-makers’ interpretations of law is now the exception in Canada. The fact that reasonableness has become the default standard on questions of law does not, however, provide a full picture of the intensity question. David Mullan has pointed out that at times, despite the Court’s use of the ‘reasonableness’ label, its approach to review looks more like correctness review.193 Binnie and Deschamps JJ have made the same observation, citing the majority approach in Dunsmuir as one case in which ‘the intensity of scrutiny was not far removed from a correctness analysis’.194 The decision in Canada (Canadian Human Rights Commission) v Canada (Attorney General)195 provides another example. In reviewing the Canadian Human Rights Tribunal’s decision that it was empowered to award costs on what the Court claimed was a reasonableness standard, the actual reasoning of the Court showed no deference to the Tribunal. The Court conducted its own review of the purposes, meaning and context of the relevant statutory provisions, finding that the Tribunal was not empowered to award legal costs and that there was ‘no other reasonable interpretation of the relevant provisions’.196 Mullan notes that: Indeed, were one to excise the portions of the LeBel and Cromwell JJ judgment discussing standard of review, what in effect is left is a review of the question of the capacity of the Tribunal to include legal costs in an award of compensation that, in virtually every respect, is a correctness review of the Tribunal’s ruling.197

By contrast in Alberta Teachers’ Association the majority’s application of the reasonableness standard showed much more deference to the Commissioner’s decision. That case involved the Information and Privacy Commissioner failing to adhere to the statutory time frame for completing an investigation. Although the Commissioner had not given reasons for interpreting its empowering legislation as permitting extensions to be made beyond the 90-day limit, the Court looked at previous decisions to locate those reasons.198 The Court did not engage in its own process of 190

Administrative Tribunals Act, SBC 2004, c 45. McCormack v Fasken Martineau Du Mouin LLP [2014] 2 SCR 108 [16]. 192 The Court also appeared to apply correctness in Moore v British Columbia (Education) [2012] 3 SCR 360, as a result of the Administrative Tribunals Act, SBC 2004, c 45, s 59. 193 Mullan, ‘The Year in Review’, above n 174, 16–18. 194 Alberta Teachers’ Association, above n 177, 698 [85]. 195 Canada (Canadian Human Rights Commission) v Canada (Attorney General), above n 175. 196 ibid 503 [64]. 197 Mullan, ‘The Year in Review’, above n 174, 17. 198 Alberta Teachers’ Association, above n 177, 685–86 [56] (Rothstein J, McLachlin CJ, LeBel, Fish, Abella and Charron JJ). 191

248 Intensity of Review statutory interpretation, or objectively assess the purposes and context of the legislation as it did in Canada (Canadian Human Rights Commission) v Canada (Attorney General),199 but instead relied on the Commissioner’s interpretations along with its pragmatic justifications for that interpretation.200 The decisions in McLean v B ritish Columbia (Securities Commission)201 and Communications Energy and Paperworkers Union of Canada Local 30 v Irving Pulp and Paper Ltd202 similarly show genuine deference to the respective decision-makers’ interpretations of their home statutes. It may be the case that, much of the time, the outcomes of cases based on interpretation of law would have been the same under the classic model as under Canada’s standards of review. Justice Evans suggests that the judicial approach to interpretation has not changed and that courts still perform the same analysis of the text, context and purpose of a provision and simply find a tribunal’s interpretation to be ‘reasonable’ where the court agrees with it.203 In most cases involving the simple interpretation of statutory terms, there may in fact be little room for deference as there will be one ‘correct’ interpretation. Evans seems to suggest that the principles will be more important at the edges, where questions of law and discretion blur, such as provisions which contain deliberately broad, discretionary criteria like ‘public interest’, or ambiguous terms.204 This may be so, but it is difficult to conclusively prove. Furthermore, a comparison of two recent cases from Canada and Australia shows that, even if the outcomes of cases may not differ, the process of judicial reasoning in reaching that outcome frequently does. Canada (Attorney General) v Igloo Vikski205 and Primaplas Pty Ltd v Chief Executive Officer of Customs206 were both decisions about the classification of goods for the purposes of determining the amount of customs duty payable. In fact, both cases concerned the application of identical provisions—the ‘General Rules for the Interpretation of the Harmonized System’ (the ‘General Rules’) that govern the Harmonized Commodity Description and Coding System under international law,207 which Australia and Canada have each incorporated into domestic legislation.208 The Australian case—Primaplas Pty Ltd v Chief Executive Officer of Customs—centred on the question of whether the calculation of the ‘specific gravity’ of a product composed of more than one component should be based on the specific gravity of its main component for classification purposes. The Canadian case— Canada (Attorney General) v Igloo Vikski—concerned the (very Canadian) question of whether hockey gloves ought to be classified as ‘gloves, mittens and mitts’

199

Canada (Canadian Human Rights Commission) v Canada (Attorney General), above n 175. Alberta Teachers’ Association, above n 177, 685–92 [56]–[72]. 201 McLean v British Columbia (Securities Commission) [2013] 3 SCR 895 (McLean). 202 Communications Energy and Paperworkers Union of Canada Local 30 v Irving Pulp and Paper Ltd [2013] 2 SCR 458. 203 JM Evans, ‘Triumph of Reasonableness: But How Much Does it Really Matter?’ (2014) 27 Canadian Journal of Administrative Law and Practice 101, 108–09. 204 ibid 110. 205 Canada (Attorney General) v Igloo Vikski 2016 SCC 38. 206 Primaplas Pty Ltd v Chief Executive Officer of Customs [2016] FCAFC 40. 207 International Convention on the Harmonized Commodity Description and Coding System (Brussels, 14 June 1983). 208 Customs Tariff Act 1995 (Cth) sch 2; Customs Tariff, SC 1997, c 36, ch. 200

Intensity of Review in Canada 249 or ‘other articles of plastics and articles of other materials’. In neither case did the application of the General Rules yield a clear, unambiguous answer. The Federal Court of Australia resolved the case by carefully analysing the statutory provisions, in the broader context of the statutory scheme, along with the purpose of the statute as evidenced by explanatory material. The Court then determined for itself the meaning and application of the General Rules. This happened to correspond with the interpretation given by the primary decision-maker, but that fact did not influence the Court’s interpretation.209 By contrast, the Supreme Court of Canada did not attempt to find the better meaning of the provisions. Instead, the Court simply examined whether the Canadian International Trade Tribunal had approached the application of the General Rules in a rational manner in reaching its conclusion.210 While, according to the Supreme Court, the Tribunal’s reasons ‘lack perfect clarity, reasonableness review does not require perfection’.211 The Court was able to understand the Tribunal’s rationale for its approach from its reasons and reached the view that while another interpretation of the relevant provisions was available, the Tribunal’s interpretation was ‘far from unreasonable’. Thus, there was no legal error.212 B. Questions of Fact and Merit In Baker, the Supreme Court signalled that the classic approach to intensity no longer applied to any aspect of judicial review in Canada, as all issues across all categories of administrative decision-making, be they law, fact, or merit/discretion, would be subject to the standard of review analysis.213 Some commentators were concerned (and others pleased) that the effect of Baker would be greater intrusion by courts on the merits of discretionary administrative power, or a retreat from deference. The judgment was interpreted as permitting courts to undertake straight ‘correctness’ review of the merits of administrative decisions where the pragmatic and functional factors indicated that no deference should apply.214 Others thought the approach may result in greater deference to the exercise of discretion by administrative decision-makers, by adding a second layer of standards on which each of the ultra vires grounds could be applied by courts on top of their built-in standards. Their argument was that the traditional grounds of review were legal rules applied at a ‘correctness standard’: that is, it was the courts that determined the purposes for which discretionary powers could be exercised, what factors needed to be considered and whether an exercise of power was unreasonable. As noted in chapter five, this view

209

Primaplas Pty Ltd v Chief Executive Officer of Customs, above n 206, [45]–[73]. Canada (Attorney General) v Igloo Vikski, above n 205, [43]–[45], [47]–[50] (Brown J, McLachlin CJ, Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ). 211 ibid [42]. 212 ibid [50]. 213 Baker v Canada (Minister of Citizenship and Immigration [1999] 2 SCR 817 (Baker). See ch 5 III.B. 214 See D Mullan, ‘Deference from Baker to Suresh and Beyond: Interpreting the Conflicting Signals’ in D Dyzenhaus (ed) The Unity of Public Law (Oxford, Hart Publishing, 2004) 27–29. 210

250 Intensity of Review was supported by various statements of the majority in Baker.215 A third possibility was that the decision would not alter the intensity of review much, or at all, as the classic grounds of review would simply become indicia of patent unreasonableness as Dickson J had understood them in New Brunswick Liquor.216 As discussed in chapter five, it is not yet clear which approach the Supreme Court will take to the interaction between the grounds and standards of review. One thing that is clear is that courts are highly unlikely to decide that ‘correctness’ is the applicable standard for a decision involving a high degree of discretion or policy. This is evident both from the fact that it has not yet happened, and from the Supreme Court’s approach to the standards of review over legal questions—with deference having become the default position even in that context. Yet, the Court has not yet resolved how the reasonableness standard relates to the traditional grounds on which discretion was reviewed. It has taken conflicting approaches during the past decade. For instance, the Court’s decision in Canada (Attorney General) v Kane217 suggests that the most deferential approach is preferred, at least with respect to those grounds capable of being applied at varying degrees of intensity. In that case, discussed in chapter five, the Court seemed to endorse Stratas JA’s dissent which deferred to the Tribunal’s views on the relevance of a particular issue. However, in other decisions, LeBel J, speaking for the Court, has hinted at a different conclusion. In Lake v Canada (Minister of Justice)218 review was sought of an extradition decision on the basis that the Minister had erred in his assessment of various factors, leading to a conclusion that extradition was preferable to prosecution in Canada. The approach that the Court took to the relevancy argument made in the case suggests that it is still for courts to determine, on a correctness basis, what factors were relevant, while it was for the Minister to determine on a reasonableness standard whether the factor was met in any given case.219 Similarly, in Montreal v Montreal Port Authority220 the Court gave the Port Authority no discretion to interpret the purposes of the legislation relevant to their powers, yet found that the standard of review applicable to the Authority’s discretionary decision was reasonableness.221 The approach taken in these cases has the potential to lead to greater scrutiny by the courts than under the classic model, though it should be noted that this did not occur in either instance. But by applying the standard of review analysis only to those aspects of the relevancy and improper purpose grounds that would have received deference under the classic model (that is the weighing of considerations and exercise of correctly applied legislation respectively), the implication is that, had correctness been the appropriate standard, those same issues could have been subject to greater scrutiny on review. Applied using the reasonableness

215

ibid 24–25. New Brunswick Liquor, above n 163, 237. 217 Canada (Attorney General) v Kane [2012] 3 SCR 398. 218 Lake v Canada (Minister of Justice) [2008] 1 SCR 761 (Lake). 219 ibid 783–86 [41]–[47]. See also G Cartier, ‘Administrative Discretion: Between Exercising Power and Conducting Dialogue’ in CM Flood and L Sossin (eds), Administrative Law in Context, 2nd edn (Toronto, Emond Montgomery, 2012) 400. 220 Montreal (City) v Montreal Port Authority [2010] 1 SCR 427 (Montreal Port Authority). 221 ibid 447–51 [37]–[49]. 216

Intensity of Review in Canada 251 s tandard, however, there seems to be no difference between the intensity of review in the Lake and Montreal Port Authority cases and the classic model. Lower courts have had similar difficulties applying what the Supreme Court said in Baker in situations in which a decision-maker is accused of fettering their discretion. As noted in chapter five, Van Harten et al include fettering discretion in the list of grounds that do not seem capable of application at varying standards.222 Under the classic model a decision-maker unlawfully fetters their discretion if they blindly follow a policy without regard to the merits of the case at hand.223 As this constitutes a failure to exercise discretion at all, ‘one might think that a necessary precondition to deference is simply not present’.224 That is, there has been no exercise of discretion to which the court can defer or test the reasonableness of, and so fettering would be automatically invalid. In Stemijon Investments Ltd v Canada (Attorney General) Stratas JA for the Federal Court of Appeal reasoned that because ‘all exercises of public authority must find their source in law’ … [a]ny decision that draws upon something other than the law—for example a decision based solely upon an informal policy statement without regard or cognizance of law, cannot fall within the range of what is acceptable and defensible and, thus, be reasonable as that is defined in Dunsmuir at paragraph 47. A decision that is the product of a fettered discretion must per se be unreasonable.225

A contradictory position was taken by Brown J, now a Supreme Court Justice, when he was on the Alberta Court of Queen’s Bench. Brown J stated that ‘the standard of review to be applied to the tribunal’s reasons themselves also governs the standard by which the Court ought to consider a fettering argument’.226 He explained that this means that the question of whether a decision-maker has fettered their discretion is subsumed into the overarching reasonableness assessment with the central question becoming, has the decision-maker relied so heavily on a policy, or weighted it so highly as to make his or her decision unreasonable.227 This also seems to have been the approach of the majority in Kanthasamy v Canada (Citizenship and Immigration),228 which is discussed in detail below. In finding that the decision-maker had incorrectly applied non-binding guidelines, causing her to give insufficient weight to the hardship the applicant would suffer if removed from Canada, the majority said that the decision-maker had ‘unduly fettered her discretion and, in my respectful view, led to its unreasonable exercise’.229

222 G Van Harten et al, Administrative Law: Cases, Text, and Materials, 7th edn (Toronto, Emond Montgomery, 2015) 897. 223 British Oxygen Co Ltd v Minister of Technology, above n 8. 224 P Daly, ‘Fettering of Discretion and the Reasonableness Test’ on P Daly, Administrative Law Matters (13 January 2014), available at: administrativelawmatters.blogspot.com.au/2014/01/fetteringof-discretion-and.html. 225 Stemijon Investments Ltd v Canada (Attorney General) (2011) 341 DLR (4th) 710, 719–20 [24]. 226 Alberta (Assured Income for the Severely Handicapped, Director) v Januario (2013) 89 Alta LR (5th) 246 [35]. 227 ibid [35]–[39]. 228 Kanthasamy v Canada (Citizenship and Immigration) [2015] 3 SCR 909 (Abella J, McLachlin CJ, Cromwell, Karakatsanis and Gascon JJ). 229 ibid [60].

252 Intensity of Review In truth, it may not make a difference to the practical outcome of a case whether a court takes the view that fettering discretion automatically leads to unreasonableness, or is an indicator of unreasonableness. Courts were fairly restrained in their assessment of fettering and would only find it had there been no enquiry into the merits by a decision-maker. This same circumstance seems highly likely to be regarded as unreasonable in the more general sense considered by Canadian courts. That is, it seems unlikely that a decision-maker who under the classic model would have been found to have relied on a policy without regard to the merits of a case would be capable of providing an adequate justification for the reasonableness of their decision. Nor is it clear whether, whichever approach to the interaction between the grounds and standards of review is taken, courts are now generally either more or less deferential towards decision-makers’ discretionary decisions. For instance, the extent to which the Supreme Court has engaged with the weight a decision-maker has given to competing factors—a classic marker of the ‘merits’ under the classic model— has varied from case to case. In Baker, the majority held that the decision-maker had failed to ‘give serious weight and consideration to the interests of the children’ making the decision unreasonable.230 This suggests that the Court engaged in an assessment of the weight the decision-maker gave to competing considerations, and gave rise to debate in Canada about the legitimacy of courts reweighing competing factors, in the context of the facts of Baker. However, it is not completely clear that the Court’s scrutiny went beyond what courts operating more closely within the classic model will do. In reviewing for failure to consider relevant considerations, Australian courts require not just that a decision-maker has noted mandatory factors, but also that they give ‘proper, genuine and realistic’ consideration to those issues.231 The requirement has been described in various ways, including that relevant factors must be ‘adequately addressed’,232 be given more than ‘cursory’ or ‘fleeting’ attention,233 and be the subject of ‘active intellectual engagement’.234 There is doubt among commentators and judges that a decision which fails to give ‘proper, genuine and realistic’ consideration to a relevant factor is unlawful under the relevancy ground or is more properly considered under the unreasonableness or irrationality grounds.235 In a procedural fairness context, the High Court has also found that a failure to respond to a substantial argument constitutes an error, which seems to have many similarities with the ‘proper, genuine and realistic’ consideration requirement.236 The High

230

Baker, above n 213, 859 [65]. Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 174–76 [26]–[30]. 232 Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 418, 472. 233 Applicant Y v Minister for Immigration and Citizenship (2008) 100 ALD 544 [25], [34]. 234 Bat Advocacy NSW Inc v Minister for Environment, Protection, Heritage and the Arts (2011) 180 LGERA 99, 44. 235 See: Aronson and Groves, above n 12, 283–85; A Poukchanski, ‘Considering “Proper, Genuine and Realistic”’ (2014) 21 Australian Journal of Administrative Law 201. 236 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, 482–83 [37] (Gummow J), 526 [171] (Callinan and Heydon JJ). 231

Intensity of Review in Canada 253 Court has been careful to emphasise that the requirement is limited and does not empower courts to make any judgment about the weight given to relevant factors, or impugn decisions based on findings that certain evidence is not credible or convincing. Nor does it give courts licence to quash decisions on the basis that they disagree with the weight given to a factor.237 Instead, the relatively low threshold requirement for decision-makers in both the rationality and fairness contexts seems only to require that the decision-maker actively engage with substantial arguments raised by an applicant on issues that either the court or statute deem important. It is at least arguable on the facts of Baker that the notes on which the decisionmaker relied demonstrate a failure to genuinely engage with and respond to the substantial requirement, which the Court found was implied in the statute, of considering the best interests of Ms Baker’s children. The notes in Baker do not suggest that the decision-maker (relying on those notes) reached a considered view that little weight should be accorded to the children’s interests based on other factors outweighing that consideration or evidence showing that the interest was implausible. Thus, had the Court’s reasoning been couched in these terms rather than in terms of ‘insufficient weight’ being given, it seems that the Baker approach does not necessarily go beyond the Australian approach articulated in Minister for Immigration and Citizenship v SZJSS.238 In later decisions, the Canadian Supreme Court has, like Australian courts, emphasised that there is a distinction between a decision-maker’s failure to consider and weigh relevant considerations and the balancing process itself. For instance, in Suresh v Canada (Minister of Citizenship and Immigration)239 the Supreme Court stated that the reference to ‘weight’ in Baker must be read in the context of its other statements which indicated that Courts should be highly deferential to the way in which decision-makers’ exercise statutory discretions.240 The Court explained: Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors.241

The Court went on to draw a distinction between courts reweighing evidence versus ensuring that a decision-maker had acted reasonably and according to law based on all the evidence before them. Similarly, in Lake the Court emphasised that ‘the reviewing court’s role is not to re-assess the relevant factors and substitute its own view’, but rather ‘a court must ask whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts’.242 In cases made under the same statutory scheme as Baker, and involving similar question of whether the best interests of a child or children warrant an exemption

237

Minister for Immigration and Citizenship v SZJSS, above n 231, 176–78 [32]–[39]. ibid 174–78 [26]–[39]. 239 Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 (Suresh). 240 ibid 26–27 [35]–[37]. 241 ibid 27 [37]. 242 Lake, above n 218, 783 [41]. 238

254 Intensity of Review from various legislative requirements in the immigration context, the leading approach in the Federal Court is similar to that in Australia. The Federal Court has taken what Nadon J described as a ‘process’ approach243 to Baker in which the best interests of the child to reside with his or her parents in Canada … [are] but one factor that must be weighed together with all other relevant factors. It is not for the courts to reweigh the factors considered by an H&C officer. On the other hand, an officer is required to examine the best interests of the child ‘with care’ and weigh them against other factors.244

In Canada (Citizenship and Immigration) v Khosa,245 which also involved a decisionmaker’s weighing of humanitarian and compassionate factors in a deportation case, the majority of the Court took the view that a reasonableness assessment involves examining both the process and substance of a decision, but does still not permit reweighing.246 Fish J, in dissent, found that the decision was unreasonable because the main factor on which the Tribunal had relied (the applicant’s denial that he had been street racing) ‘cannot reasonably be said to contradict—still less to outweigh, on a balance of probabilities—all of the evidence in [Khosa’s] favour’.247 The majority criticised Fish J’s assessment on the basis that it involved a reweighing of the evidence before the Tribunal, and noted that this was not the role of courts.248 They stated that the evidence before the tribunal constituted ‘the sort of factual dispute which should be resolved by the IAD in the application of immigration policy, and not reweighed in the courts’,249 and found that, although there may be some merit to the applicant’s argument, the facts of the case did not lead to only one particular result, and thus were an issue on which reasonable minds may differ.250 By contrast, in other cases the Supreme Court of Canada has taken an approach to review that does appear to involve the reweighing of competing considerations. For instance, in Kanthasamy v Canada (Citizenship and Immigration),251 which once again involved a discretion to grant residency when a person does not otherwise meet the statutory criteria, and when the Minister is of the opinion that doing so is ‘justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected’, the majority approached reasonableness in a rather intrusive way. The applicant was 17 years old at the time he applied for (and was refused) refugee protection. He then applied for (and was refused) residency on humanitarian and compassionate grounds. The central issue on appeal to the Supreme Court was whether the officer

243 See

Legault v Canada (Minister of Citizenship and Immigration) [2001] 3 FCR 277, 300–01 [55]. Kisana v Canada (Minister of Citizenship and Immigration) [2010] 1 FCR 360; Thiara v Canada (Minister of Citizenship and Immigration) [2008] 70 Imm LR (3d) 80; Kakkar v Canada (Minister of Citizenship and Immigration) [2003] 27 Imm LR (3d) 202. 245 Canada (Citizenship and Immigration) v Khosa [2009] 1 SCR 339 (Khosa). 246 ibid 378–79 [62]–[63] (Binnie J, McLachlin CJ, LeBel, Abella and Charron JJ). 247 ibid 419 [149]. 248 ibid 378–79 [61]–[62]. 249 ibid 382 [67]. 250 ibid. 251 Kanthasamy v Canada (Citizenship and Immigration), above n 228. 244

Intensity of Review in Canada 255 who made the decision had adequately considered the applicant’s best interests as a child.252 The majority held that she had not, because ‘she failed to give sufficiently serious consideration to his youth, his mental health and the evidence that he would suffer discrimination if he were returned to Sri Lanka’.253 There was no suggestion that the decision-maker had not considered these factors at all. For instance, in relation to the applicant’s mental health, the officer had ‘accepted the diagnosis’, but found that ‘the applicant has provided insufficient evidence that he has been or is currently in treatment regarding the aforementioned issues or that he could not obtain treatment if required in his native Sri Lanka’.254 Rather, it was the approach the decision-maker had taken to considering the issues. She had taken a ‘segmented approach, assessed each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate”’.255 The terms ‘unusual or undeserved’ and ‘disproportionate’ were taken from non-binding guidelines which set out the factors which would warrant relief on humanitarian and compassionate grounds. In addition, the officer had focused on the consequences of removal to Sri Lanka for the applicant’s mental health and not the additional issue of the effect removal from Canada alone would have on his condition.256 The majority said that dealing with the evidence in this way ‘discounted’ the applicant’s mental health problems;257 or in effect, failed to give it the weight it deserved. The majority made similar criticisms of the decision-maker’s reasoning with respect to his age, labelling the decision-maker’s consideration of that issue ‘ perfunctory’.258 Their criticisms of the decision-maker’s treatment of the applicant’s claim that he would face discrimination if returned to Sri Lanka had a more solid legal foundation. The decision-maker had been convinced that there was discrimination against young men suspected of being in the Tamil Tigers, but was not convinced on the evidence that there was such a suspicion with respect to the applicant. The majority, in essence, said that this was the wrong legal test to have applied with respect to discrimination: that it was enough for the applicant to have shown that he was a member of a group that faced discrimination.259 Nevertheless, on the other points— especially the mental health evidence—the majority’s examination of the officer’s reasons clearly involved a reweighing of the evidence. Indeed, this was the precise criticism of the majority’s judgment made in the dissent of Moldaver and Wagner JJ: I am concerned that my colleague has not given the Officer’s reasons the deference which, time and again, this Court has said they deserve. In her reasons, she parses the Officer’s decision for legal errors, resolves ambiguities against the Officer, and reweighs the evidence. Lest we be accused of adopting a ‘do as we say, not what we do’ approach to reasonableness review, this approach fails to heed the admonition in Newfoundland and Labrador

252

ibid 935–36 [39]–[41] (Abella J, McLachlin CJ, Cromwell, Karakatsanis and Gascon JJ). ibid 937 [45]. ibid 938 [46]. 255 ibid 937 [45]. 256 ibid 938–39 [48]. 257 ibid. 258 ibid 943 [57]. 259 ibid 939–41 [50]–[54]. 253 254

256 Intensity of Review Nurses—that reviewing courts must be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fatal. As is the case with every other court, this Court has no licence to find an officer’s decision unreasonable simply because it considers the result unpalatable and would itself have come to a different result.260

Thus, while the dominant Canadian approach to the exercise of discretion appears to be one of deference, with little difference in terms of the legality/merit divide from the approach taken by Australian courts, Kanthasamy shows that there are exceptions. Sometimes Canadian courts will use the now very broad discretionary concept of reasonableness to reweigh the factors before a decision-maker and thereby engage in ‘merits review’. However, the same is arguably true in Australia, as demonstrated by the Li judgment. In both jurisdictions, these instances of courts re-evaluating the merits of the case appear to be the exception rather than the norm. It is nevertheless clear that neither Canada’s explicitly deferential approach, nor Australia’s strict formalist approach to reasoning, prevent such exceptions from occurring. C. Procedural Fairness The Supreme Court of Canada has often said that the standards of review do not apply to procedural fairness: procedural matters will always rely on a court’s assessment of what was fair in all the circumstances, rather than that of the decisionmaker.261 This was also implicit in Dunsmuir, from the fact that the majority did not include fairness within its reformulation of the standards of review. However, more recently in Khosa262 and Khela263 the Court labelled this a ‘correctness’ standard. It is not entirely clear that the Court meant the same thing in attaching this label to fairness as is meant by an application of the correctness standard to the substance of decisions. When reviewing the substance of decisions on a correctness basis, courts will determine how they would have approached the matter or interpreted the relevant law. When reviewing process, however, courts do not seem to have ever suggested that they should determine what processes they—as courts—would have applied. Rather, the ‘correctness’ label in the procedural fairness context seems to refer only to courts making an assessment as to whether the procedures adopted by the decision-maker were fair in all the circumstances. It is in this sense—in the absence of any deference to the decision-maker’s views of fairness—that procedural fairness may be said to have traditionally been reviewed on a correctness basis. However, L’Heureux-Dubé J’s statement in Baker to the effect that in determining the content of fairness courts ought to ‘take into account and respect the choices of

260

ibid 961 [112] (references omitted). eg, Moreau-Bérubé v New Brunswick (Judicial Council) [2002] 1 SCR 249, 292 [74]; Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour) [2003] 1 SCR 539, 591–92 [100]–[103] (Binnie, Gonthier, Iacobucci, Arbour, LeBel and Deschamps JJ). 262 Khosa, above n 245, 371 [43] (Binnie J, McLachlin CJ, LeBel, Abella and Charron JJ). 263 Mission Institution v Khela [2014] 1 SCR 502, 538 [79]. 261 See,

Intensity of Review in Canada 257 procedure made by the agency itself’,264 has led to no small amount of confusion on the issue, particularly recently.265 The statement seems to conflict with the general principle of a correctness standard applying to procedural fairness, and lower courts have found it difficult to reconcile the two. Grant Huscroft has argued that the way in which the Court expressed the principle in Baker—which was a broad notion that ‘important weight’ should be given to a decision-maker’s procedural choices—has provided ‘little meaningful guidance’ to Canadian courts.266 The result seems to be that courts usually give little weight, or deference, to decision-makers’ views as to fairness.267 However, this is not always true. There are cases in which the Supreme Court has applied considerable deference in determining whether procedural fairness has been given.268 Bredt and Melcov have identified a few categories of cases in which Canadian courts tend to depart from the traditional correctness approach.269 Of most relevance to this discussion of the content of fairness in administrative decision-making is the fact that lower courts seem to provide a measure of deference to decisionmakers in the context of decisions to grant or deny adjournment requests.270 This line of authority is particularly interesting given that the Australian case of Li in which the unreasonableness standard seems to have been relaxed, discussed above, also involved an adjournment decision. A possible explanation is that there may be a developing principle in both jurisdictions that different elements of administrative processes are amenable to challenge as either unreasonable or unfair. Where decision-makers are expressly given a discretion to determine a particular procedural question (for example, whether to grant an adjournment), the exercise of that discretion is reviewed on the standard of reasonableness; while the hearing process as a whole is reviewed on the standard of fairness. The question of whether the standards of review apply to procedural fairness has recently been the subject of strident disagreement between two justices of the Federal Court of Appeal, Evans JA (who has since retired from the Court) and Stratas JA. In Re Sound v Fitness Industry Council of Canada271 Evans JA suggested that there may be some scope for deference within the correctness review of procedural fairness. He stated: In short, whether an agency’s procedural arrangements, general or specific, comply with the duty of fairness is for a reviewing court to decide on the correctness standard, but in making

264

Baker, above n 213, 840 [27]. See, eg, Bredt and Melcov, above n 126; JM Evans, ‘Fair’s Fair: Judging Administrative Procedures’ (2015) 28 Canadian Journal of Administrative Law and Practice 111. 266 G Huscroft, ‘From Natural Justice to Fairness: Thresholds, Content, and the Role of Judicial Review’ in CM Flood and L Sossin (eds), Administrative Law in Context, 2nd edn (Toronto, Emond Montgomery, 2012) 171. 267 D Dyzenhaus, ‘Constituting the Rule of Law: Fundamental Values in Administrative Law’ (2002) 27 Queen’s Law Journal 445, 496–97. See, eg: Suresh, above n 239, 121–27; Canada (Attorney General) v Mavi [2011] 2 SCR 504, 523–25 [42]–[46]. 268 See, eg, Council of Canadians with Disabilities v VIA Rail Canada Inc [2007] 1 SCR 650, 738–43 [231]–[245]. 269 Bredt and Melcov, above n 126. 270 ibid 8–9. 271 Re Sound v Fitness Industry Council of Canada [2015] 2 FCR 170. 265

258 Intensity of Review that determination it must be respectful of the agency’s choices. It is thus appropriate for a reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision-making on the other.272

According to Paul Daly, the type of deference that Evans JA was referring to is of a different character from that usually understood as deference in the Canadian context. Daly labels the giving of weight as ‘epistemic deference’ and argues that this is a different species from ‘doctrinal deference’, which sets a deferential bar—say reasonableness—as to when courts should intervene.273 In essence, Daly’s view is that Evans JA was alluding to epistemic deference in his judgment, while the standard of review analysis applies doctrinal deference.274 In a judgment the following week, Stratas JA expressed a very different view. In Maritime Broadcasting System Ltd v Canadian Media Guild he found that the reasonableness standard could apply to procedural issues, characterising the Supreme Court’s statements that correctness applies as either unclear or obiter.275 Stratas JA referred to a substantial quantity of pre-Dunsmuir Supreme Court precedent and post-Dunsmuir lower court precedent in which a reasonableness standard (or at least some deference) had been applied to procedural fairness questions, which he said supported his view.276 Stratas JA then criticised Evans JA’s approach as having, in effect, attempted to introduce a new standard of review by failing to apply the correctness standard as it is ‘understood in the cases’.277 Evans has responded to this accusation, arguing that neither the ‘correctness’ nor ‘reasonableness’ standards ought to be applied to procedural fairness. It seems that his reference to courts ‘giving weight’ to decision-maker’s choices was not intended to signal the application of a ‘reasonableness’ standard, but to distinguish the traditional role of courts in assessing fairness in all the circumstances from one where they determine what procedural choices they themselves would have made.278 Three weeks after Stratas JA’s judgment, the Supreme Court unanimously reaffirmed in Khela that ‘the standard for determining whether the decision maker complied with the duty of procedural fairness will continue to be “correctness”’.279 This appears to support Evans JA’s position. Yet, seven months later Stratas JA’s view was endorsed by the full court (in a judgment written by him) in Forest Ethics Advocacy Association v Canada (Attorney General).280 The confusion on this topic, with the

272

ibid [42]. Daly, A Theory of Deference in Administrative Law (Cambridge, Cambridge University Press, 2012) 7–10. 274 P Daly, ‘Deference, Weight and Procedural Fairness’ on Paul Daly, Administrative Law Matters (5 March 2014), available at: administrativelawmatters.blogspot.com.au/2014/03/deference-weight-andprocedural-fairness.html. 275 Maritime Broadcasting System Ltd v Canadian Media Guild (2014) 373 DLR (4th) 167 [52]–[53]. 276 ibid [55]–[56]. 277 ibid [60]. 278 Evans, ‘Fair’s Fair’, above n 265. 279 Mission Institution v Khela, above n 263 [2014] 1 SCR 502, 538 [79]. 280 Forest Ethics Advocacy Association v Canada (Attorney General) [2015] 4 FCR 75. 273 P

Intensity of Review in Canada 259 contrasting views expressed by two judges both of whom are leading experts in administrative law, and with conflicting approaches adopted by the Supreme Court and Federal Court of Appeal, demonstrates the uncertainties and challenges of reconciling the Supreme Court’s conflicting comments on the intensity of review in procedural fairness matters. The issue has become even more problematic in the wake of the Doré decision. Prior to Doré the prevailing approach of courts in ignoring the Baker instruction to give weight to decision-makers’ procedural choices meant that regardless of whether a case was argued as a common law fairness argument, or as a ‘fundamental justice’ claim under section 7 of the Charter, the same standard applied on review— correctness. However, the Alberta Court of Queen’s Bench has suggested that the Doré decision applies to the procedural rights protected by section 7 of the Charter, just as it does to substantive rights, despite the fact that the standard of review analysis has not previously been applied to procedural fairness at common law. Specifically, Germain J stated: ‘It is arguable that the recent Doré v Barreau du Québec instruction of the Supreme Court of Canada suggests that judicial review courts should evaluate any alleged breach of procedural justice by a tribunal with deference’.281 This was also the approach taken by the Supreme Court of Canada in Canada (Attorney General) v Barnaby.282 Although the Court did not discuss Doré specifically, it applied a reasonableness standard to the question of whether the Minister’s decision to extradite Barnaby to face a fourth trial would breach section 7 of the Charter. The question for a reviewing court was not whether the extradition would breach Barnaby’s section 7 rights, but whether the Minister’s weighing of competing factors to reach his conclusion was reasonable.283 This approach is logical from a Charter perspective: there is no apparent reason why an administrative decision that limits substantive Charter rights, such as freedom of expression, should be assessed on a standard of reasonableness, while those affecting the procedural elements of section 7 should not. However, if the deferential Doré approach only applies to administrative decisions that limit Charter rights, then the result will be that the procedural choices of decision-makers whose decisions affect an individual’s right to life, liberty or security of the person, merely need to be ‘reasonable’, while those that merely affect interests will be assessed on a higher standard under the common law. Bich J in the Québec Court of Appeal considered precisely this issue in Syndicat des travailleuses et travailleurs de ADF—CSN v Syndicat des employés de Au Dragon forgé inc284 and found that the deferential principles articulated in Doré equally apply to the common law: that is, courts should give appropriate deference to a tribunal’s decisions on procedural fairness and assess fairness on a reasonableness standard. Bich J stated that the same considerations that led the Supreme Court to give deference to the Disciplinary Board’s decision in Doré

281 Alberta Health Services v Alberta Union of Provincial Employees (2012) 68 Alta LR (5th) 54 [21]. The case was overturned on appeal, though not on this point: (2013) 59 Admin LR (5th) 239. 282 Canada (Attorney General) v Barnaby [2015] 2 SCR 563. 283 ibid 566 [3]. 284 Syndicat des travailleuses et travailleurs de ADF—CSN v Syndicat des employés de Au Dragon forgé inc (2013) 55 Admin LR (5th) 107.

260 Intensity of Review and apply a standard of reasonableness, also applied to the case before her, which involved a specialist labour relations body making a decision about the disclosure of evidence to parties under its empowering legislation.285 The issues of the respect, deference, or weight that ought to be accorded to a decision-maker’s procedural decisions under both the common law and the Charter are clearly in a state of flux in Canada.286 However, these recent decisions do indicate that Canadian law may finally be moving to give effect to the fifth factor that L’Heureux-Dubé J considered important in Baker. There seems to be considerable support for this among commentators.287 And, if the reasoning of the Alberta and Québec courts is adopted elsewhere, it appears that the push for this deferential approach to fairness is, to a significant extent, attributable to the Charter. D. A Culture of Justification Perhaps the biggest shift in Canada’s approach to reasonableness has been in its formulation as opposed, necessarily, to its intensity. In the past decade, in particular, Canadian courts have shifted in their application of reasonableness towards what scholars have termed a ‘culture of justification’.288 In essence, Canadian courts now expressly concern themselves with the subjective justifications given by the decisionmaker, as opposed to simply the judges’ own views as to what was reasonable, relevant etc. This represents a significant shift from the classic model of review. This is evident in the fact that there was no common law requirement for decision-makers to give any reasons for their decisions. As Michael Taggart explained: Despite the rhetoric of administrative law’s commitment to transparency, in the long historical view neither the common law in general nor administrative law in particular was committed to reason-giving as an essential prerequisite to the validity of decision-making.289

Additionally, as discussed above, the grounds of review under the classic model were concerned with the reviewing judge’s view of what was unreasonable, what considerations were relevant, and the purposes for which statutes conferred discretion on decision-makers. The Wednesbury unreasonableness ground was generally

285 ibid [45]. See further P Daly, ‘Canada’s Bipolar Administrative Law: Time for Fusion’ (2014) 40 Queen’s Law Journal 214, 235–36. 286 This point has also made by Mullan, ‘Unresolved Issues’, above n 171, 61–64. 287 See, eg, Daly, ‘Canada’s Bipolar Administrative Law’, above n 285; D McKee, ‘The Standard of Review for Questions of Procedural Fairness’ (2014) 40 Queen’s Law Journal 355; Bredt and Melcov, above n 126; E Clark, ‘Reasonably Unified: The Hidden Convergence of Standards of Review in the Wake of Baker’ (Public Law conference, University of Cambridge, 12–14 September 2016). 288 The term is attributed to the late South African public law scholar, Etienne Mureinik: D Dyzenhaus, ‘Law as Justification: Etienne Mureinik’s Conception of Legal Culture’ (1998) 14 South African Journal on Human Rights 11. See generally: D Dyzenhaus, ‘Proportionality and Deference in a Culture of Justification’ in G Huscroft, B Miller and G Webber (eds), Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge, Cambridge University Press, 2014); Taggart, ‘Proportionality’, above n 4, 461–65; M Hunt, ‘Against Bifurcation’ in D Dyzenhaus, M Hunt and G Huscroft (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Oxford, Hart Publishing, 2009). 289 See Taggart, ‘Proportionality’, above n 4, 462.

Intensity of Review in Canada 261 concerned only with the outcome of the decision. It was, in essence, a high threshold test that courts applied on a correctness basis—asking whether, in the court’s view, the decision fell outside the range of reasonable outcomes. Under the classic model courts avoided detailed scrutiny of the decision-maker’s actual reasoning process, other than to the limited extent required under the other ultra vires grounds, for fear of intruding on the ‘merits’ and second-guessing the weight that decision-makers had given to competing factors. By contrast, Canada’s reasonableness standard is now overtly concerned with both the reasonableness of outcomes and with the reasonableness of a decisionmaker’s justifications. In an oft-quoted passage, the Supreme Court made this clear in Dunsmuir, stating: A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.290

This shift was made possible by the Baker decision: specifically, the finding that in certain circumstances procedural fairness requires decision-makers to provide reasons for their decision, which has since evolved into a principle that reasons are required in most cases.291 This common law requirement that most decision-makers provide reasons is clearly linked with the courts’ ability to review the reasonableness of the justifications contained therein. Following Dunsmuir, a number of commentators and provincial courts took the view that the above-quoted passage introduced two distinct types of reasonableness enquiry: one concerned with outcome, and the other with subjective reasons.292 The Supreme Court declared that this was not the case in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), starting that Dunsmuir should not be read as advocating that a reviewing court undertake two discrete analyses—one for the reasons and a separate one for the result … It is a more organic exercise—the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.293

Recent jurisprudence in which the Supreme Court found that extraneous material was sufficient to demonstrate that decisions were reasonable, and so despite the inadequacy or absence of the reasons it was unnecessary to remit the decision,

290 Dunsmuir, above n 166, 220–21 [47] (Bastarache and LeBel JJ, McLachlin CJ, Fish and Abella JJ). See, generally, S Wildeman, ‘Pas de Deux: Deference and Non-Deference in Action’ in CM Flood and L Sossin (eds), Administrative Law in Context, 2nd edn (Toronto, Emond Montgomery, 2012) 351–54. 291 See ch 4 III.E. 292 See, eg, Casino Nova Scotia v Nova Scotia (Labour Relations Board) (2009) 273 NSR (2d) 370; Taub v Investment Dealers Association of Canada (2009) 98 OR (3d) 169. 293 Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) [2011] 3 SCR 708, 715 [14] (Newfoundland Nurses).

262 Intensity of Review s upports this position.294 This is also the way in which David Dyzenhaus expressed his concept of ‘deference as respect’, stating that it involves ‘[r]espectful attention to the reasons offered or which could be offered in support of a decision’.295 However, many practical aspects of this approach remain unclear, including the extent to which ex post facto justifications are permissible296 and whether it undermines the rationale for reasons being provided.297 Also unclear is how the courts’ focus on justifications has impacted on the burden of proof in administrative law cases. The Supreme Court’s statement in Dunsmuir suggests that decision-makers will have some justificatory burden to meet, even if subsequent cases point to a relatively low one which may be met by extraneous material in some cases. Yet, the Supreme Court maintains that persons seeking judicial review remedies against government officials (except habeas corpus) continue to bear the burden of proving that a decision is unlawful.298 The idea that judicial review of administrative action ought to be concerned with the justifications provided by decision-makers comes directly from human rights law: it is the preferred method of enforcing bills of rights by requiring governments to explain and rationalise any intrusions.299 The South African Bill of Rights expressly extended this methodology to administrative action,300 and through the writings of Etienne Mureinik301 and David Dyzenhaus302 in particular, the idea has worked its way into administrative law.303 While in other common law jurisdictions the concept of a ‘culture of justification’, to the limited extent that it has become accepted, has been restricted to administrative decisions that impact on protected rights,304 in Canada it has come to underpin review of administrative action generally. Contrary to the traditional view of administrative law—that enquiring into a decision-maker’s subjective reasons risks turning into merits review—Dyzenhaus has argued that a ‘culture of justification’ approach is not inherently more intrusive than the classic model.305 Dyzenhaus supports such an approach on the basis that it provides clearer and better defined roles for both the judiciary and executive and more accurately reflects the principle of parliamentary sovereignty than the Diceyan

294 See the discussion of Alberta Teachers’ Association, above n 177; Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission) [2012] 1 SCR 364 and McLean v British Columbia (Securities Commission), above n 201, in ch 4 III.E. 295 Dyzenhaus, ‘The Politics of Deference’, above n 166, 286. 296 See discussion in Mullan, ‘Unresolved Issues’, above n 171, 69–74. 297 See ch 4 III.E. 298 See, eg, Mission Institution v Khela, above n 263, 523 [40]; Wilson v British Columbia (Superintendent of Motor Vehicles) [2015] 3 SCR 300, 311 [20]. 299 E Mureinik, ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 South African Journal on Human Rights 31. 300 Constitution of the Republic of South Africa Act 1996 (South Africa) s 33. 301 Mureinik, above n 299, 38–43. 302 Dyzenhaus, ‘Law as Justification’ above n 288. 303 See Taggart, ‘Proportionality’, above n 4, 461–62. 304 See, eg, Woolf et al, above n 23, 641–42; AS Butler, ‘Limiting Rights’ (2002) 33 Victoria University of Wellington Law Review 113. 305 Dyzenhaus, ‘The Politics of Deference’, above n 166, 279, 302–07.

Intensity of Review in Canada 263 model.306 In essence, his argument is that under the classic model of judicial review courts defer to decision-makers by submitting to them completely on those matters that common law principles carve out as the sole domain of the executive arm. And courts will intrude entirely where a decision-maker has made a jurisdictional error, an error of law, or has breached one of the specific, high-threshold rules set by the common law. A culture of justification requires a different concept of deference—which Dyzenhaus labels ‘deference as respect’.307 Under this understanding of deference, courts recognise the practical reality that legislation is capable of multiple meanings, and that expert agencies and tribunals may be in a better position than courts to choose a meaning that achieves the underlying objectives of the statutory scheme and takes into account its practical context. Where that agency has provided a well-reasoned, logical basis for its interpretation, the reviewing court ought to respect that justification and defer to it where possible. Far from intruding on the separation of powers and permitting courts to review the merits of decisions, Dyzenhaus argues that a culture of justification supports the separation of powers doctrine and expands the level of discretion available to administrative decision-makers. Instead of relying on formalist, and somewhat arbitrary classifications by courts, under a culture of justification the roles and expectations of both the judiciary and executive are clearly defined: the executive is obliged to give justifications for its decisions; and the judiciary is required to defer to those justifications where they are reasonable. Thus, he argues: [T]he shift to a culture of justification empowers the administrative state. It does so because its decisions should survive review as long as they are shown by the reasons provided to be justifiable, rather than because the conclusion reached by the body happens to coincide with the conclusion that the judges would have considered correct without the benefit of engagement with the administrative body’s reasons.308

Dyzenhaus’ views regarding the benefits of a culture of justification and deference as respect have been repeatedly endorsed and adopted by the Supreme Court of Canada.309 While Dyzenhaus has argued that the Canadian approach is, if anything, more deferential than the traditional model of judicial review, whether this is true in practice is a more difficult question. The above discussion of recent case law suggests that there are cases going in both directions. Sometimes Canadian courts have used the culture of justification approach in a way that appears much like correctness review, and involves reweighing competing factors or reconstruing a statute and finding that there is only one reasonable meaning. But in most instances, and p articularly

306

ibid 303; Dyzenhaus, ‘Proportionality and Deference’, above n 288. Dyzenhaus, ‘The Politics of Deference’, above n 166, 303. 308 Dyzenhaus, ‘Proportionality and Deference’, above n 288, 255. 309 See, eg, Baker, above n 213, 859 [65] (L’Heureux-Dubé, Gonthier, McLachlin, Bastarache and Binnie JJ); Dunsmuir, above n 166, 221 [48] (Bastarache and LeBel JJ, McLachlin CJ, Fish and Abella JJ); Newfoundland Nurses, above n 293, 714 [12]. 307

264 Intensity of Review in those which involve review of those aspects of decision-making traditionally described as the merits or substance, Canadian courts have shown considerable deference to decision-makers. Furthermore, the above discussion of the Australian High Court’s approach shows that, even under a formalist approach which retains the strict rules of the classic model, courts can justify a heightened level of scrutiny by classifying certain elements of a decision in particular ways. Overall, the highest courts in both jurisdictions are more likely to let an administrative decision stand than not. Insofar as sheer numbers are indicative of any general trend towards intrusiveness, a survey of recent cases shows that the Australian High Court is more likely than its Canadian counterpart to find errors in administrative decisions.310 A comparison of migration cases in the respective federal courts reveals a similar trend. In fact, during the final quarter of 2013 (the period selected for comparison on this issue) the Federal Court of Canada was around half as likely to quash a decision of a migration tribunal as Australia’s federal courts.311 E. Intensity of Review of Decisions Limiting Charter Rights The difficulties that Canada’s Supreme Court has had in developing a coherent and consistent methodology for reviewing discretionary administrative decisions that limit Charter rights without express legislative authority to do so were detailed in chapter three. Each of the earlier approaches had different implications for the intensity with which rights-limiting decisions were reviewed. The application of the Oakes test to the substance of a decision, either automatically or following the application of administrative law principles, would result in a far higher degree of scrutiny than applying administrative law principles. The approach of automatically applying a correctness standard to administrative decisions that limited Charter

310 I acknowledge that considering intrusiveness in this way may not be instructive, given that the highest courts in both jurisdictions only consider a very small fraction of the most contentious cases. Nevertheless, to the extent that it is instructive, a survey of cases from 1 January 2012 to 30 September 2016 shows that where the Supreme Court of Canada and High Court of Australia are asked to review administrative decisions, the former will disagree with the final administrative decision-maker and quash and/or remit the decision in approximately 30% of cases; and the latter in approximately 44% of cases. 311 In Australia, during 2013–14, 11.3% of those decisions of the Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT) in which judicial review was sought were set aside by the courts. This figure is roughly equivalent to figures in recent previous years, which range from 9% to 13% for both tribunals: MRT and RRT, Annual Report 2013–14 (2014) 35. Of the applications for judicial review lodged in the Federal Court of Canada in which leave is required (which is most migration decisions), the Court only grants leave in between 11% and 20% of cases: Federal Court of Canada, Statistics (9 September 2015) Federal Court of Canada, available at: cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/ fc_cf_en/Statistics. Of the 140 migration cases in which leave was required and granted that were disposed of during the final quarter of 2013, the Federal Court of Canada set aside 35.5%. Assuming that this is a fairly consistent rate then the overall proportion of migration decisions (excluding those in which leave is not required) set aside on judicial review is between 4% and 7%. Note, that if only the decisions of the Immigration and Refugee Board are considered, the set aside rate is slightly lower. However, I have included all migration decisions in which leave is required in Canada because it is a closer approximation to the decisions made by the Australian MRT and RRT.

Intensity of Review in Canada 265 rights also resulted in those decisions being reviewed at a higher intensity compared with decisions with no rights-limiting effect. In theory, review on a correctness basis would probably involve greater intrusion by the courts than the application of the Oakes test, because the latter has some scope for courts to defer to decision-makers’ justifications regarding the necessity of limiting rights and the absence of any less-rights-limiting means of achieving the relevant objectives. The Court’s analysis in Trinity Western Union v British Columbia College of Teachers312 supports this assumption. After deciding that a correctness standard applied, the majority of the Court then took it upon itself to reconcile the competing rights to equality and religious freedom and determine where the public interest lay, as opposed to examining the justifications provided by the College. Following the Supreme Court’s decision in Doré, however, the general administrative law standard of reasonableness applies to discretionary decisions that limit Charter rights without express legislative authority. The decision is still a relatively recent one, and there remain a great many aspects of it that are yet to be confirmed and clarified by the Supreme Court, some of which are discussed above. A minority of the Court also seems to have retreated from the Doré approach in the more recent case of Loyola High School v Québec,313 so the law on this issue should probably not be regarded as completely settled. Nevertheless, the Court’s intention in Doré that the reasonableness standard incorporate the core question at the centre of proportionality review wherever a decision limits a Charter right, was clear. The Court stated at numerous points in its judgment that should an administrative act or decision impose a disproportionate burden on a Charter right, then it will be unreasonable.314 And, for the time being at least, this still seems to be the view of a majority of the Court. Prior to Doré, the Supreme Court of Canada had been reluctant to embrace proportionality as a separate principle or ground on which courts can invalidate administrative decisions under the common law.315 Canadian courts have been similarly resistant to the new UK grounds of review that permit more extensive review of the substance of administrative decisions, such as substantive unfairness.316 The principal reason for this resistance has been similar to Australia’s: a reluctance to intrude on the ‘merits’ of discretionary decisions which is outside the constitutional role of courts.317 Yet, Doré suggests that proportionality now forms some part of the reasonableness analysis. There are a number of possibilities as to how proportionality might be incorporated into the reasonableness standard of review. One is that the concept of reasonableness as a sliding scale or spectrum might be embraced by the Supreme Court, with

312

Trinity Western University v British Columbia College of Teachers [2001] 1 SCR 772. Loyola High School v Québec (Attorney General) [2015] 1 SCR 613 (Loyola). Doré, above n 1, 404–05 [5]–[8], 426–27 [56]–[57], 430 [67]. 315 D Mullan, ‘Proportionality—A Proportionate Response to an Emerging Crisis in Canadian Judicial Review Law’ [2010] New Zealand Law Review 233. 316 See, eg, Mount Sinai Hospital Center v Québec (Minister of Health and Social Services) [2001] 2 SCR 281. 317 Mullan, ‘Proportionality’, above n 315, 236–38. 313 314

266 Intensity of Review decisions that limit rights attracting a higher-intensity, structured version of unreasonableness applied to the outcome of decisions, like that applied by UK courts. This seems unlikely based on statements by the majority of the Court, discussed in the next section. The far more likely method for incorporating proportionality into the reasonableness standard is for proportionality to become the threshold question when Canadian courts review the justifications that decision-makers have provided, where a decision limits a Charter right. This is supported by the approach that the Court took to reviewing the decision in question in Doré. It is also the way in which Doré seems to have been applied in subsequent cases.318 As with the question of reasonableness more generally in Canada, the Court in Doré showed that its main concern with proportionality would be with the ‘justification, transparency and intelligibility’319 of the impugned decision. In marked contrast to the House of Lords in the Denbigh High School Case, the Canadian Supreme Court was concerned with whether the Disciplinary Council had, in making its decision to reprimand Doré, ‘given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer’s right to expression and the public’s interest in open discussion’.320 The Court made it clear that proportionality was a question for decision-makers, whose role under their empowering statute was ‘to balance the severity of the interference of the Charter protection with the statutory objectives’ wherever a decision had the potential to limit Charter rights.321 It follows that on judicial review courts are not asked to reassess a decision-maker’s balance, but to assess whether the decision-maker’s balance ‘falls within a range of reasonable alternatives’.322 Just as when they apply the reasonableness standard in nonCharter cases, courts are able to defer to a decision-maker’s balancing of Charter rights with statutory objectives. Thus, the Supreme Court examined the Disciplinary Council’s reasons for reprimanding Doré and noted that the Council had balanced these expressive rights and public interests with its role of maintaining the integrity and civility of the legal profession.323 It held that the balance struck by the Disciplinary Council was reasonable in this particular instance. In other words, it seems from this decision that the Supreme Court of Canada has adopted an approach to proportionality whereby it is up to a decision-maker to justify the need for any limits on Charter rights, instead of proportionality being a purely legal question for the courts. Unlike the House of Lords, the Canadian Supreme Court clearly does not see the requirement that decision-makers assess the proportionality of limits on rights as

318 See, eg, Loyola, above n 313; Kamel v Canada (Attorney General) 2013 FCA 103 [17]–[18], [45]; Pridgen v University of Calgary [2012] 524 AR 251 [126]–[127] (Paperny JA); Najafi v Canada (Minister of Public Safety and Emergency Preparedness) [2013] 19 Imm LR (4th) 122 [25]–[36]; Ismail v British Columbia (Human Rights Tribunal) (2013) 52 BCLR (5th) 295 [286]–[303]. 319 Dunsmuir, above n 166, 221 [47] (Bastarache and LeBel JJ, McLachlin CJ, Fish and Abella JJ). 320 Doré, above n 1, 429 [66]. 321 ibid 426 [56]. 322 ibid. 323 ibid 427–31 [59]–[72].

Intensity of Review in Canada 267 reducing proportionality to procedure. Instead, the approach is viewed as a recognition of the point that the courts are not the sole guardians of Charter rights. In this respect the Court commented: [A]dministrative bodies are empowered, and indeed required, to consider Charter values within their scope of expertise. Integrating Charter values into the administrative approach, and recognizing the expertise of these decision-makers, opens ‘an institutional dialogue about the appropriate use and control of discretion, rather than the older command-andcontrol relationship’.324

Arguably then the UK and Canadian approaches to proportionality reflect red- and green-light perspectives respectively on the question of when courts should intervene when the exercise of administrative discretion limits a protected right.325 While the methodology adopted in the UK assumes that only courts are capable of ensuring that human rights are adequately protected, Canadian courts make no such assumption. Hickman has thus labelled the UK’s approach an ‘exclusive responsibility model’, and Canada’s a ‘secondary responsibility model’.326 Just like the reasonableness standard of review in Canada more generally, a shift from Wednesbury unreasonableness to this version of proportionality review does not necessarily result in the executive ceding decisional authority to the courts, or a ‘shift in the balance of power between the judiciary and political branches of government’ as the UK approach does.327 Rather, it moves the burden of proof from the individual affected by a decision to the decision-maker.328 This certainly increases the burden on decision-makers, but does not necessarily intrude on the separation of powers any more than the Wednesbury standard does. As Taggart explains: Despite appearances to the contrary, proportionality doctrine is no more monolithic than (Wednesbury) unreasonableness. In other words, proportionality is a sliding scale of review responding (albeit—potentially—more transparently) to the same contextual and deference factors as variable (Wednesbury) unreasonableness.329

These points are well illustrated by the decision in Saskatchewan (Human Rights Commission) v Whatcott.330 In that case the Supreme Court of Canada reviewed a decision by the Saskatchewan Human Rights Commission finding that a number of pamphlets distributed by the respondent were prohibited ‘hate speech’ publications under provincial human rights legislation. The questions for the Court on review

324 ibid 417 [35], quoting M Liston, ‘Governments in Miniature: The Rule of Law in the Administrative State’ in CM Flood and L Sossin (eds), Administrative Law in Context, 2nd edn (Toronto, Emond Montgomery, 2012) 100. 325 Harlow and Rawlings, above n 20, ch 1. 326 T Hickman, ‘Adjudicating Constitutional Rights in Administrative Law’ (2016) 66 University of Toronto Law Journal 121, 124–25. 327 P Sales, ‘Rationality, Proportionality and the Development of the Law’ (2013) 129 Law Quarterly Review 223, 225. 328 Woolf et al, above n 23, 635; Taggart, ‘Proportionality’, above n 4, 465. 329 Taggart, ‘Proportionality’, above n 4, 465. 330 Saskatchewan (Human Rights Commission) v Whatcott [2013] 1 SCR 467.

268 Intensity of Review were: whether the Commission had correctly interpreted the relevant legislation; whether the human rights legislation contravened the Charter freedom of expression; and, whether in applying the legislation to the facts, the Commission had adequately balanced the respondent’s Charter rights. The Supreme Court applied a correctness standard to the first two questions, which meant that it re-examined all the evidence to determine whether the legislation on free speech was, in the view of the Court, justified. On the third question, however, the Court applied a reasonableness standard and examined the justifications given by the Commission for reaching its conclusion. The case demonstrates the fine, and sometimes indistinguishable, line between an issue which is characterised as ‘interpretation of law’ and one characterised as the application of settled law to facts and, thus, ‘discretion’. It also highlights the stark contrast that results from each characterisation in terms of the standard of review and level of deference applied by the courts.331 This invites the question why the extent to which courts are capable of protecting Charter rights should depend on whether it is the legislature or executive that has been accused of impinging those rights. This is one of the many issues yet to be resolved in Canadian public law. The Supreme Court’s decision in Loyola, however, indicates that the distinction between the Oakes and Doré approaches may not be quite so stark. Or, put another way, just as the reasonableness test under common law has proven very malleable in terms of the amount of deference courts give to decision-makers, so too is the Doré approach. In Loyola, the majority’s approach indicates that, as with reasonableness review more generally, proportionality is not solely concerned with the justifications given by a decision-maker; it is also concerned with the reasonableness of the outcome reached. This can leave considerable scope for courts to engage in review of the merits of a decision, as the majority arguably did in Loyola. The case involved a challenge by a private, Catholic school to the Minister’s refusal to exempt the school from delivering the mandatory core curriculum programme on Ethics and Religious Culture (ERC). The ERC programme required schools to teach students about the history, beliefs and ethics of major religions around the world, with the aim of fostering in students an ‘openness to diversity and respect for others’.332 The Minister was empowered under statute to exempt a school from the ERC, if satisfied that the alternative programme they propose is ‘equivalent’. Loyola School proposed to teach a programme with Catholicism as central and which examined other religions from a catholic perspective. The Minister was not satisfied that the proposed programme was ‘equivalent’ to the ERC. Loyola School sought judicial review on the ground that the Minister’s decision interfered with its right to religious freedom under section 2(e) of the Charter.

331 Ismail v British Columbia (Human Rights Tribunal) [2013] 284 CRR (2d) 250 provides another good illustration of these points. 332 Loyola, above n 313, 629 [11] (Abella, LeBel, Cromwell and Karakatsanis JJ).

Intensity of Review in Canada 269 After finding that the decision did limit Loyola School’s religious freedom, and that the state had a legitimate interest in ‘ensuring that students in all schools are capable, as adults, of conducting themselves with openness and respect’,333 Abella J, for the majority, moved on to assess whether the Minister’s decision ‘proportionately balanced religious freedom with the statutory objectives of the ERC program’.334 In finding that it did not, Abella J examined the meaning of the word ‘equivalent’ in its statutory context, stating that the purpose of permitting exemptions would be defeated if equivalence required the proposed course to be identical to the ERC.335 She went on to examine the importance of religious education to religious groups and the right of parents to ‘transmit’ their faith to their children.336 Abella J concluded that there was ‘insufficient demonstrable benefit to the furtherance of the state’s objectives in requiring Loyola’s teachers to teach Catholicism from a neutral perspective’.337 She then indentified the Minister’s error as treating ‘teaching any part of the proposed alternative program from a Catholic perspective as necessarily inimical to the state’s core objectives’ and giving ‘no weight to the values of religious freedom engaged by the decision’. She continued that: ‘There is, in short, no balancing of freedom of religion in relation to the statutory objectives. The result is a disproportionate outcome that does not protect Charter values as fully as possible in light of those statutory objectives.338 This final paragraph suggests that Abella J was, to some degree, concerned with the Minister’s approach to balancing. But the reasoning preceding it is largely indistinguishable from review of the merits. The majority examined, for itself, the scope of the Minister’s statutory authority and the nature of the rights at stake, and then reached a conclusion that the outcome of the Minister’s refusal was not proportionate. It may be that the facts of the case, and the nature or quality of the Minister’s reasons, necessitated this approach. It is also important to point out that the Court has always said that reasonableness is concerned with both justification and outcome. Nevertheless, the methodology of the majority’s application of proportionality in Loyola appears quite different from that in Doré. This is reinforced by the fact that, after finding the decision disproportionate, Abella J went on to explain the kind of programme that would warrant an exemption: one which taught other religions from a neutral perspective, but need not be neutral in teaching the school’s own religion.339 Of perhaps greater interest in Loyola, however, is the fact that the minority judgment, which agreed with the result, but not the reasoning or orders, did not apply Doré at all. Giving no explanation for why Doré did not apply, McLachlin CJ,

333

ibid 643–44 [48]. ibid 644 [49]. 335 ibid 645–46 [54]. 336 ibid 648–50 [60]–[64]. 337 ibid 651 [68]. 338 ibid 651–52 [68]. 339 ibid 654–56 [75]–[81]. 334

270 Intensity of Review Moldaver and Rothstein JJ instead applied the Oakes analysis examining, without deference to the Minister, whether the limits placed on Loyola School’s religious freedom were no more than was reasonably necessary to achieve the goals of the ERC Program. The minority conducted its own detailed examination of Loyola School’s programme and found that, on the facts, it met the purposes of the ERC to be respectful of other religions.340 They then went further than the majority and ordered that the Minister grant Loyola School an exemption in accordance with ‘guidelines’ that they set out.341 It is not clear where this leaves Doré, given that two of the judges who decided that case now seem to have changed their minds. Doré does still seem to be the leading approach, given the majority’s support for it in Loyola. However, this may not remain the case. F. Flexibility or a Spectrum? One thing that the above discussion of the intensity of review in Canada highlights is that the reasonableness standard is apparently capable of taking a great many forms. The way in which courts assess the reasonableness of a discretionary decision which limits Charter rights differs from the question central to determining whether an expert tribunal has reasonably interpreted its home statute. Different again is the judicial method for deciding whether a bylaw is unreasonable.342 And the question of whether reasonableness, or any similar concept, has any role to play in review of procedural questions is still a great unknown. In each category, courts clearly apply different methodologies, which carry different levels of intensity, to assess the question of ‘reasonableness’. Not only does the question of reasonableness shift between categories of decision, but also within categories. As noted above, at times the Court has engaged in what Mullan calls ‘disguised correctness’ review under the guise of reasonableness, while at other times it has shown great deference.343 Mullan argues that although the vastly different methodologies courts apply to assess reasonableness across the range of types of administrative decision may be warranted, they make it ‘hard to see reasonableness review simply in terms of the Dunsmuir test’.344 These same concerns also led Binnie J to reiterate the suggestion he first made in Dunsmuir that the reasonableness standard may be capable of accommodating varying levels of deference hinting at a spectrum of review

340

ibid 668–73 [118]–[128]. ibid 687–89 [162]–[165]. 342 Catalyst Paper Corp v North Cowichan (District) [2012] 1 SCR 5; JM Keyes, ‘Judicial Review of Delegated Legislation: Whatever Happened to the Standard of Review?’ (2015) 28 Canadian Journal of Administrative Law and Practice 357. 343 Mullan, ‘Unresolved Issues’, above n 171, 76. 344 ibid 75. 341

Intensity of Review in Canada 271 standards.345 In Alberta Teachers’ Association, Binnie J, joined by Deschamps J, stated: ‘“Reasonableness” is a deceptively simple omnibus term which gives reviewing judges a broad discretion to choose from a variety of levels of scrutiny from the relatively intense to the not so intense’.346 However, the majority of their colleagues firmly rejected this view, Rothstein J, on behalf of the majority in the same case stating: Binnie J reintroduces from his concurring reasons in Dunsmuir the concept of variable degrees of deference. The majority reasons in Dunsmuir do not recognize variable degrees of deference within the reasonableness standard of review … Once it is determined that a review is to be conducted on a reasonableness standard, there is no second assessment of how intensely the review is to be conducted. The judicial review is simply concerned with the question at issue. A review of a question of statutory interpretation is different from a review of the exercise of discretion. Each will be governed by the context. But there is no determination of the intensity of the review with some reviews closer to a correctness review and others not.347

These same issues were again raised in Wilson v Atomic Energy of Canada Ltd.348 In that case, Abella J took the view that the question of which standard of review to apply was a distraction.349 She suggested that reasonableness was so flexible that it was capable of being used as the only standard. In all cases, she said, a court is asking whether the decision reached is reasonable. In some there will be many reasonable decisions, in which case a reviewing court should defer to the decision-maker’s reasonable view. In others, however, there will be only one defensible outcome.350 Cromwell J expressed strong disagreement with this suggestion and reiterated the statement from Khosa that ‘reasonableness is a single standard that takes its colour from the context’.351 As Mullan has argued, the practical reality of post-Dunsmuir case law makes the argument that reasonableness is a single standard difficult to accept.352 Other scholars have argued along similar lines ever since Dunsmuir was decided.353 Thus, this seems unlikely to be the last word on the issue from Canada’s Supreme Court. Nevertheless, as it stands, the Supreme Court of Canada’s version of the de Smith’s intensity of review table resembles the following:

345

Dunsmuir, above n 166, 256 [139]. Alberta Teachers’ Association, above n 177, 699 [87]. 347 ibid 681–82 [47]. 348 Wilson v Atomic Energy of Canada Ltd 2016 SCC 29. 349 ibid [24]. 350 ibid [32]–[35] 351 ibid [73], citing Khosa, above n 245, 378 [59] (Binnie J, McLachlin CJ, Binnie, LeBel, Abella and Charron JJ). 352 Mullan, ‘Unresolved Issues’, above n 171, 74–81. 353 See, eg, L Sossin and CM Flood, ‘The Contextual Turn: Iacobucci’s Legacy and the Standard of Review in Administrative Law’ (2007) 57 University of Toronto Law Journal 581. 346

FULL INTENSITY/ ‘CORRECTNESS’ REVIEW Court decides ‘correctness’ and whether power abused.

REASONABLENESS REVIEW

NON-JUSTICIABLE

Content varies depending on context, but not a variable-intensity concept. Burden on claimant. Some level of burden on decision-maker to provide justification.

Applies to a decreasing range of legal questions, including:

Procedural Fairness. Though ‘True questions of jurisdiction or vires’ (if there is still such a ‘important weight’ to be thing). given to Constitutional questions decision-maker’s (but not Charter matters where findings. the administrative decision rather than the legislation is in question). Jurisdictional lines between specialist tribunals without concurrent jurisdiction. Questions of law of central importance to the legal system outside the adjudicator’s area of expertise. Matters on which a statutory scheme gives both courts and a tribunal the authority to decide a question.

Proportionality

Reasonableness

Decisions limiting Charter rights and ‘values’.

Questions of law within jurisdiction.

Though note that the test appears to differ from the UK and Australia, and focuses on the decision-maker’s reasoning process rather than the court’s own assessment of proportionality. In this way, it is more deferential.

Questions of fact and merit.

Wednesbury unreasonableness Bylaws

Applies to limited range of discretionary decisions (usually under prerogative power) inappropriate for, or incapable of, resolution by courts.

272 Intensity of Review

Table 3: Intensity of Review in Canada

Conclusions 273 IV. CONCLUSIONS

In both Australia and Canada there remain many unresolved issues with respect to the intensity of judicial review. Indeed, the matter seems to be in a state of flux in both jurisdictions, though this flux has been a fairly constant feature of Canadian law since the standards of review were introduced. While Australia has largely retained the approach to intensity set out in the classic model of review, Canada has veered further from its starting point and embraced the argument that there are good reasons for courts to defer to decision-makers not only on matters of ‘merit’, but also on some matters of mixed law and fact, and indeed the interpretation of law. Canadian courts have also been heavily influenced by the concept of a ‘culture of justification’—which has its origins in human rights law and has likely been influenced by the Charter—in their review of administrative acts. From an Australian perspective, both these Canadian developments are viewed as a threat to the separation of powers and have formally been rejected. Yet, recent developments in A ustralia suggest that the High Court may be rapidly warming towards the latter—with the decision in Li sharing much in common with Canada’s focus on justification. Despite the divergent approaches that Australia and Canada have adopted with respect to the intensity issue, there is no clear indication that Canadian courts are either more or less deferential to decision-makers than their Australian counterparts. While both of Canada’s standards of review have proven to be almost infinitely malleable to reflect the context of a decision, and perhaps at times judicial will, Australian examples show that the formalism of the classic approach is equally malleable, as it is courts that ultimately decide whether to classify an issue in a way that attracts a high or low level of scrutiny. Perhaps the central difference then is in the level of frankness and transparency in this malleability, rather than its existence. Furthermore, relatively recent developments in Canadian law suggest that even decisions that directly limit a Charter right will not attract a less deferential, more intrusive standard of judicial review than non-rights-limiting decisions. Although the Canadian courts will test the proportionality of a decision, the fact that they do so within the framework of a culture of justification means that unlike the UK approach to proportionality, the intensity of review is not necessarily any greater than the intensity of review under the classic model.

7 Conclusions

C

OMPARING THE PRINCIPLES applied by Australian and Canadian courts in reviewing administrative action reveals a number of differences between the two jurisdictions. The most significant relate to the overarching approach that courts in each jurisdiction take to statutory interpretation and the common law principles of review. The High Court of Australia has, for the most part, been averse to ‘top-down’ reasoning and arguments based on broad doctrine and values, such as the rule of law and human rights. It has generally avoided making grand statements of legal principle and instead prefers to restrict its pronouncements to the particular facts before it.1 The result is that there are many important aspects of Australian administrative law that remain unsettled as the High Court has not needed to clarify the law in order to decide specific cases that have come before it. The incrementalist approach of the Australian High Court has meant that it is usually able to distinguish cases on the basis of their facts alone and has not often needed to overturn existing precedent. By contrast, the Supreme Court of Canada has no aversion to top-down, values‑based reasoning. It is comfortable describing limits on administrative power in broad-brush and often vague terms, including the ‘rule of law’, ‘the values of Canadian society’ and ‘Charter values’. The Canadian Court is also more willing than its Australian counterpart to make general statements of legal principle, beyond what is strictly necessary to decide the particular case before it. The decision in Baker v Canada2 provides a good example, with many of the most important and influential aspects of the Court’s reasoning not having been strictly necessary for the Court to decide in order to resolve the case. This has not, however, necessarily led to any greater degree of certainty in Canadian administrative law compared with Australian. Over the past 40 years, the Supreme Court of Canada has overruled itself and substantially changed the direction of aspects of administrative law in order to better give effect to broad legal principles, norms and values on numerous occasions. Indeed, this has even occurred during the life of this project—with the decision in Doré v Barreau du Québec,3 making significant changes to the way that Canadian

1 See, eg, statements to this effect in McGinty v Western Australia (1996) 186 CLR 140, 231–32 (McHugh J); South Australia v Totani (2010) 242 CLR 1, 38 [50] (French CJ). See also: K Mason, ‘What’s Wrong With Top-Down Legal Reasoning?’ (2004) 78 Australian Law Journal 574; P Tate, ‘Human Rights in Australia: What Would a Federal Charter of Rights Look Like?’ (2009) 13 Southern Cross University Law Review 1, 2. 2 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 (Baker). 3 Doré v Barreau du Québec [2012] 1 SCR 395 (Doré).

Conclusions 275 courts approach the relationship between human rights and administrative law; and then a minority of judges apparently resiling from this position just three years later in Loyola High School v Québec.4 Australian administrative law tends to conceptualise the limits on administrative power as a fairly confined and narrow set of legal rules. It is for courts to apply these rules and assess whether a decision breaches them. By contrast, Canadian administrative law now refers to the boundaries of administrative power in terms of broader principles, such as fairness, reason, justification, and accountability. Canadian administrative law is less a series of legal rules that limit administrative action and more a set of norms that guide the valid and transparent exercise of administrative power. In Canada, the outcome of review frequently depends on the court weighing a range of pragmatic considerations that reveal where the balance between competing principles lies. For instance, Canadian courts consider the practical expertise of a decision‑maker, evidence of legislative intent, and the nature of the question that a decision‑maker is tasked with deciding, in order to determine where the balance lies between the rule of law and accountability on one hand, versus parliamentary sovereignty and administrative efficiency on the other. By contrast, the outcome of judicial review in Australia will largely depend on the categorisation of a particular error— as involving legality or merits, law or fact, or a jurisdictional or n on‑jurisdictional error. These general trends mean that the Australian approach to administrative law has justifiably been labelled ‘formalist’ and ‘legalist’, and in this it has much in common with the approach to judicial review that was inherited from the UK by both Australia and Canada. By contrast, the Canadian Supreme Court takes a discernibly more functionalist approach to review of administrative action, which appears to have less in common with the Diceyan model. Australia’s formalism and closer connection with the classic, Diceyan model of review compared with other common law jurisdictions has understandably led some commentators to hypothesise that Australia’s exceptionalism in these respects is a result of its exceptionalism in another area: its absence of a national charter of rights. This may be true in part. The absence of a human rights instrument certainly explains the High Court’s aversion to rights arguments and unwillingness to overtly balance individual rights against countervailing public interests. However, the absence of a federal charter of rights in Australia, or conversely the presence of a strong one in Canada, does not provide a satisfactory explanation of many of the recent developments in administrative law in either jurisdiction. Australia’s approach to administrative law has been shaped by a range of factors, some of which are unlikely to have been altered by a charter of rights. The most forceful have been the provisions and general principles located in the Australian Constitution which have been found to entrench a core minimum of judicial review of administrative action. These same constitutional principles serve to define and

4 Loyola High School v Québec (Attorney General) [2015] 1 SCR 613 (McLachlin CJ, Moldaver and Rothstein JJ) (Loyola).

276 Conclusions limit the nature of that entrenched minimum, and have been found by the High Court to require the retention of certain aspects of the Diceyan model of judicial review. It is not clear that a charter of rights would significantly alter the relationship between the judiciary and executive, even if it were constitutionally capable of doing so. A second factor that has shaped Australian administrative law has been the judicial culture of strict legalism, heavily influenced by the judicial writings of Sir Owen Dixon, which commentators have noted has dominated the High Court for most of its history. Indeed, as explained in chapter two, much of the current judicial reasoning regarding the justifications for, and scope of, the entrenched constitutional minimum of judicial review can be traced to Dixon’s judgments and extracurial writings. Third, this book has argued that the codification of the principles of judicial review at the federal level has contributed, to some extent, to the formalism of Australian administrative law. While the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) has not discernibly stifled the development of common law review principles, chapters four and five demonstrated that it may have contributed to the rule-based approach that Australian courts take to administrative errors. By listing those errors with a high degree of specificity, it is likely that the ADJR Act has made it easier for courts to see those errors as formal legal rules, rather than examples of a more general ‘abuse of power’, as the grounds of review have come to be treated in Canada. Canadian administrative law has also been shaped by a range of forces, of which constitutionally and statutorily protected human rights are only one. The functionalism that characterises the Canadian approach has likely been influenced by the Charter, particularly, for instance, in defining some of the fundamental values that courts balance in defining the principles of administrative law. However, as explained in chapter five, the functional approach has its origins in judicial decisions that precede the enactment of the Charter. Thus, it cannot be said that the Charter has been responsible for some of the most substantial developments in Canadian administrative law. Furthermore, the Canadian Constitution has never been thought to entrench as strict a version of the separation of powers as Australia’s does, which explains why aspects of the functionalist approach are possible in Canada but might not be in Australia. For example, the Canadian approach to deference on questions of law, which was the starting point of its ‘pragmatic and functional’ approach to substantive review, has been held to be constitutionally impermissible in Australia. As discussed in chapter five, these particular differences between Australian and Canadian administrative law have also been influenced by practical, historical distinctions in the regulatory role of tribunals in each jurisdiction. Nevertheless, Canada’s extensive human rights framework, and the Charter in particular, have clearly had some impact on the development of Canadian administrative law. The most important is probably the shift to a ‘culture of justification’ which, as argued in chapter six, clearly has its origins in human rights law. In Australia (at least prior to the decision in Minister for Immigration and Citizenship v Li,5 the ramifications of which remain unclear) and under the classic, Diceyan

5

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li).

Conclusions 277 model, reviewing courts are not interested in a decision-maker’s views on questions of law. It is irrelevant whether decision‑makers think they have acted reasonably, or what their view of a statute’s purpose is. These are legal questions for courts. Canadian courts, however, are now acutely interested in the views and justifications of decision-makers on substantive matters and the quality of a decision-maker’s justifications are central to determining whether a decision is lawful. This shift in Canadian law was made possible by the administrative law decision in Baker, and the Court’s finding that many decision-makers will have a duty to provide reasons. This contrasts with the position in Australia, where there is no common law duty to give reasons for administrative decisions, although most decision-makers will be required to do so under statute. The shift in Canadian law was then cemented in Dunsmuir v New Brunswick,6 since which the language of justification has dominated. Both were administrative law decisions but, as noted in Doré, both were heavily influenced by Charter jurisprudence and reflect the interaction between the two areas of public law. The Charter has also been responsible for other, less significant developments in Canadian administrative law: for instance, its role in cementing an extension in the rule against bias was examined in chapter four. In some instances, however, the Charter has had the opposite of a ‘righting’ effect, resulting in the common law being neglected or stifled. For example, it seems likely that without the presence of the Charter, along with other statutory human rights protections, the ground of discrimination would have developed further and proven more useful in Canadian law, as discussed in chapter five. Many also saw the preDoré approaches to administrative decisions limiting Charter rights—in which the Charter was seen as demanding a higher degree of scrutiny than administrative law was capable of—as having a potential to stifle administrative law. This particular threat, however, did not eventuate. And the decision in Doré was a deliberate effort by the Supreme Court to ensure that it did not, and to unify Canadian public law. This attempt has led to various other problems—such as the fact that the level of judicial scrutiny now differs significantly depending on which branch of government is responsible for limiting a person’s Charter rights. The minority judgment in Loyola suggests that Doré may not be the last word on this topic. However, it seems unlikely given the Supreme Court of Canada’s modern approach to judicial review that even if there is a return to the Oakes test in Charter cases, administrative law will be stunted or leeched of its values. Overwhelmingly, however, the comparative analysis of Australian and Canadian administrative law in this book has shown that the two remain remarkably similar. Despite all the forces pushing the two countries in opposite directions—the vastly different approaches to judicial reasoning, differences in the constitutional entrenchment of the role of courts in reviewing administrative action, and the substantial divergence in their approaches to judicial enforcement of human rights—Australian and Canadian courts have tended to reach a similar balance between judicial and administrative power on most questions. Canada’s functional, pragmatic approach

6

Dunsmuir v New Brunswick [2008] 1 SCR 190 (Dunsmuir).

278 Conclusions to balancing competing factors and applying varying degrees of deference, and Australia’s application of the classic model’s strict legal rules and classifications, are both in essence designed to achieve the same outcome: a constitutionally sound and workable balance between judicial and administrative powers. Chapter four examined these issues in the procedural fairness context. It argued that despite constitutional and legislative protections of procedural fairness rights in Canada, the duty of decision-makers to afford fairness at common law is substantially the same in Australia and Canada. Procedural fairness applies to an equally broad range of decisions in both jurisdictions. There has been no discernible ‘righting’ of the rationale for the rule as a result of charters of rights—though procedural fairness is one area of administrative law that has always been concerned with individual rights and dignity, even before the presence of charters of rights. Nor is there any evidence that the presence of charters of rights lead to the abandonment of common law arguments, as seems to have occurred recently in the UK. Both Canada and Australia now treat procedural fairness as a common law right, which requires clear statutory language to displace. The Supreme Court of Canada is, perhaps, more comfortable in labelling it a ‘right’ than the High Court of Australia—possibly reflecting its power to enforce rights under the Charter. However, the treatment of the principles in both jurisdictions is indistinguishable. There are a few differences in the content of procedural fairness between Australia and Canada, in which the Canadian Charter has probably had some influence. For instance, the rule against bias is slightly broader in Canada as it contains the additional requirement of tribunal independence. As explained in chapter four, this expansion appears to be a direct result of the presence of the Charter. However, its effect is fairly small in practical terms. It is hardly evidence of a general ‘righting’ trend in Canadian administrative law. A second aspect of Canadian law that may be regarded as more ‘rights protective’ than Australian law is in relation to reasons. Most decision-makers in Canada are obliged to provide reasons for their decisions at common law while, under common law, most Australian decision-makers are not. However, this is not wholly explained by the absence of a charter of rights in Australia. It is at least partially attributable to wide-ranging statutory duties, including under the ADJR Act, having usurped the need for a common law right to reasons to develop. Generally, in terms of the content of procedural fairness, chapter four argued that it has been the common law that has affected charter rights, rather than the reverse. Chapter five analysed the extent to which courts in each country limit and intervene in discretionary aspects of the administrative process. Courts in both Australia and Canada have expanded the scope and scale of their supervision over administrative action over the past 50 years. It is not possible in either country for legislatures to confer truly unlimited discretionary functions on the executive. In part this is a result of the fact that the legislative powers of parliaments in both countries are constitutionally limited—by virtue of being federations with written constitutions. However, it is also evidence of a more general shift in judicial review, which has similarly occurred in jurisdictions without written constitutions. The chapter found a number of significant differences between Australia and Canada in the way courts approach the scope of administrative discretion: Canadian law gives administrative

Conclusions 279 decision-makers some discretion over many more aspects of an administrative decision. And as reiterated above, the methodology that courts use for both imposing and locating limits differs significantly. Nevertheless, chapter five concluded that there is no discernible pattern of Canada’s human rights framework having made Canadian courts either more, or less, willing than their Australian counterparts to impose limits on administrative discretion; nor is there a clear difference in the scope of those limits. There are examples pointing in both directions, but there is no general pattern. The analysis of the willingness of courts in each jurisdiction to limit administrative discretion using implied rights and international law is particularly illustrative of these conclusions. Commentators have variously argued that a charter of rights will embolden courts and result in them protecting human rights beyond those enumerated, or conversely that the entrenchment of rights will obviate recourse to alternative sources of rights. The comparison of Australian and Canadian courts’ approaches to common law rights and international human rights treaties again shows no discernible pattern in either direction. More surprisingly perhaps, nor does any clear pattern emerge from an examination of the extent to which human rights which are expressly protected by a bill of rights act as limits on administrative discretion. Despite the constitutional entrenchment of human rights in Canada, in Australian jurisdictions with statutory charters of rights, protected rights appear to act as stronger and more absolute limits on administrative discretion than in Canada. Chapter six analysed the intensity of review, and whether, as some claim, the presence of a charter of rights in Canada has resulted in courts scrutinising administrative decisions more anxiously compared with Australia. Again, the chapter showed that while there are significant methodological differences between the countries, no general pattern of either greater scrutiny or greater deference emerges from comparison. Australia’s categorisation approach, in which the level of intensity differs according to the type of error being reviewed, can be as pliable as Canada’s more functionalist and pragmatic approach. A case study of the Malaysia Declaration Case7 showed how judges can classify errors in ways which permit greater or lesser degrees of scrutiny. Canada’s more functional approach to intensity is also very malleable, and a great many aspects of it remain unsettled. There is, however, no indication that the Canadian approach generally results in greater judicial scrutiny. Indeed, if the Supreme Court of Canada were to follow the urging of many commentators and extend the reasonableness standard to procedural fairness questions, the result may well be less scrutiny of those issues in Canada, compared with Australia. In reflecting on these findings, it is worth reiterating the scope of this book. The conclusions reached in this book say nothing about the Canadian Charter’s effects on the protection of human rights by Canadian government decision-makers. In all likelihood, administrative decisions in Canada are now more rights-protective than those in Australia as a result of the presence of the Charter. As discussed in the Introduction, the Charter places express legal limits on the scope of the powers

7

Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144.

280 Conclusions of Canadian administrative decision-makers. Few such limits apply in Australia, outside Victoria and the ACT. This alone is very likely to mean that rights are better protected in Canada than in Australia, in the context of administrative decisionmaking. However, proof of this, and exploration of precisely what effect charters have on government decision-making, would be a very different study. It would require detailed examination of those administrative decisions which are not challenged by individuals—because, of course, an individual whose rights have been protected by an administrative decision will not seek judicial review of that decision. Such a study would, no doubt, be very worthwhile. However, this is not that project. This book has analysed the effect of the Canadian Charter on the relationship between the courts and administrative decision-makers by comparing the development of the principles of judicial review of administrative action in Canada and Australia. It has explored the arguments, assumptions, suggestions, and questions of commentators, judges, and politicians about the effects that charters of rights have on administrative law in the Australian and Canadian contexts. The central question, as reflected by the title of this book, is whether there has been a ‘righting’ of Canadian administrative law which has resulted in a transfer of discretion from administrative decision-makers to courts, causing courts to become ‘the newest despots’? To that question, this book has answered ‘no’. Finally, it is important to note that the law in both Australia and Canada is still developing and is capable of shifting with little warning. Many of the most significant developments discussed in this book have occurred during the period in which it was written. Over the past five years, Canada has gone from what appeared to be a bifurcated approach to human rights and administrative law to a deeply unified one and may now be on the cusp of a return to bifurcation. And many aspects of the relationship between the Charter and administrative law in Canada remain unsettled. Australian administrative law has also experienced significant and unexpected shifts, the consequences of which remain unclear. One of the stalwart principles of Australian administrative law—Wednesbury unreasonableness—may be on the verge of being discarded in favour of a broader, more intrusive approach. It is not yet clear how the High Court will position this shift within what was the relatively settled constitutional framework that justified the judicial role in reviewing administrative action in Australia. Nor is it clear what the full consequences of Li will be for Australian law. These recent Australian and Canadian decisions highlight what is perhaps the core message of this book: the relationship between administrative law and human rights is highly complex, varies over time and between various aspects of administrative law, and remains in an unsettled and highly fluid state.

Index NB–page numbers in bold refer to information in tables Aala case (Australia): jurisdictional error, 33–36 procedural fairness, 33–34 rule of law, 41 Administrative Appeals Tribunal (Australia), 40, 52 Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), 7, 13, 41–44 codification of grounds for judicial review, 42, 43–44 criticisms, 48–50 effect: concerns and criticisms, 45–50 grounds of review, 47–50 lack of guiding purpose and principles, 46–47 narrowness of scope, 46 success, 45 Ellicott Committee, 42–44, 48 grounds for judicial review: codification, 42, 43–44 common law grounds compared, 47 Kerr Committee, 42–44, 48 Kerr Report, 42–44 jurisdictional and non-jurisdictional errors, 48 narrowness of scope, 44–45, 46 right to obtain reasons for a decision, 43 simplified review procedure, 43 administrative discretion, see discretionary administrative power administrative functions: classification, 168–71 administrative law: Canadian Charter and, 93–94 jurisdiction of courts, 94–95 limits to Charter rights, 95–101 effects of charters of rights, 1–4 controlling judicial discretion, 161–215 intensity of review, 217–73 procedural fairness, 111–59 Australia: Australia Acts, 22 charters of rights: Australian Capital Territory, 12, 56–59 lack of a federal charter of rights, 11–12 Victoria, 12, 56–59 Constitution: binding and fundamental nature, 22–23 Canadian Constitution compared, 20–21 Commonwealth Parliament, 21 powers of federal legislature, 20

powers of states, 20 supremacy, 21–23 written form, 19 controlling discretion, 173–74 grounds of review, 174–77 jurisdictional error, 179–81 legality and consistency, 203–09 ultra vires doctrine, 177–79 formalist approach to judicial review, 6–7, 176–77, 180, 225, 275 High Court’s jurisdiction constitutional matters, 23–26 administrative actions, 26–39 independence from UK, 22 intensity of review, 225, 233–43 entrenchment of legality/merits distinction, 225 unreasonableness and proportionality, 228–33 procedural fairness, 117, 151–55 rights to fairness, 117 state Supreme Courts, 39–41 Australian Capital Territory: charter of rights, 12, 19, 55–59, 197, 199–201 human rights framework, 56–59 judicial review legislation, 51 Australian Constitution: binding and fundamental nature, 22–23 Canadian Constitution compared, 20–21 Commonwealth Parliament, 21 legitimacy of judicial review, 25–26 powers of federal legislature, 20 powers of states, 20 s.71, 23 s.75(v), 24, 26–39 supremacy, 21–23 written form, 19 see also constitutional status of judicial review (Australia) Baker case (Canada), 97, 247, 277 discretion, 97–98, 99, 106, 161, 210–14 discretionary and purely administrative powers, 170–71, 188–93, 198 limits imposed by rule of law, 72–73 duty to provide reasons for decisions, 133–35, 261 intensity of review: fact/merit, 249–54 procedural fairness, 124–25, 130–31, 147, 156

282 Index duty to provide reasons for decisions, 133–35 intensity of review, 256–57, 259–60 standard of review: pragmatic and functional approach, 79 balancing judicial and administrative power, 8–9, 14, 78–79, 89, 180–81, 277–78 see also deference Canada, 60, 274–75 Constitution: Constitution Act 1867, 61 Constitution Act 1982, 61 constitutional conventions, 62–63 constitutionalism, 63 democracy, 63 federalism, 63 respect for minorities, 63 rule of law, 63 supremacy, 62 unwritten common law principles, 63 written form, 61 constitutional status of judicial review, 63–75 functionalist approach to judicial review, 14, 275 independence from UK, 61–62 privative clauses and standard of review, 75–83 see also Canadian Charter of Human Rights and Freedoms; constitutional status of judicial review (Canada); human rights frameworks; statutory judicial review frameworks (Canada) Canadian Bill of Rights, 11, 102–04 jurisdiction, 11 right to fairness, 115–16 s.1(a): rights of individuals, 116 s.2(e): rights and obligations, 116 rights of corporations, 116 Canadian Charter of Human Rights and Freedoms, 62, 92–93, 276–77 administrative decisions that limit Charter rights, 95–96 Baker case, 97–99 Doré case, 98–101, 259–60, 265–69 Dunsmuir case, 99–100 Loyola High School case, 101, 268–9 Oakes test, 93, 96, 98–99, 101 Slaight Communications case, 96, 99 standard of review, 95–101, 264–69 control test, 94–95 jurisdiction of the courts and, 92–95 notwithstanding clause, 93 proportionate balancing of rights, 100–01 public function test, 94–95 rights and freedoms: democratic rights, 93 equality rights, 93

fundamental freedoms, 92 language rights, 93 legal rights, 93 mobility rights, 93 right to a fair trial, see s.11 right to fundamental justice, see s.7 s.7, 112–15 s.11, 115 scope, 11, 94–95 see also human rights frameworks Canadian Constitution: Constitution Act 1867, 61 Constitution Act 1982, 61 constitutional conventions, 62–63 constitutionalism, 63 democracy, 63 federalism, 63 respect for minorities, 63 rule of law, 63 supremacy, 62, 67 unwritten common law principles, 63 written form, 61 Canadian Pacific v Matsqui Indian Band case judicial independence of tribunals, 143 rule against bias, 143 Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corporation, see New Brunswick Liquor case certiorari, 169 Australia, 28–30, 37 Canada, 86, 89 jurisdictional error and, 172 codification of judicial review principles, 7 Australia, 13, 41–44, 45–50, 159, 162, 176, 276 Canada, 83–87 Ontario, 88–90 procedural fairness and, 153 common law, 8 discretionary administrative powers and, 163–64 grounds for judicial review, 47, 165–68 jurisdiction, 31 no evidence ground, 44, 47–50, 90, 166, 168, 189–90, 192, 219, 220 procedural fairness, 112, 119–22, 125 Australia, 118–22 Canada, 118–19, 124–25 content of procedural fairness, 123–24 scope, 117 statutory judicial review compared, 46–50, 88, 90, 91–92 see also procedural fairness; Wednesbury unreasonableness Constitution Act 1867 (Canada), 20, 61–63, jurisdiction of the courts, 63 constitutional matters, 66–67 non-constitutional administrative errors, 68, 70–71 implied bill of rights, 104–06

Index 283 Constitution Act 1982 (Canada), 61–65 jurisdiction of the courts: constitutional matters, 66–67 constitutional status of judicial review (Australia): entrenched jurisdiction of state Supreme Courts, 39–41 High Court’s jurisdiction, 23, 24 constitutional matters, 23–26 defining judicial powers, 24 reviewing administrative action, 26–28 jurisdictional error, 32–39 mandamus, prohibition and injunction, 28–30 Officers of the Commonwealth, 30–32 separation of judicial power, 23 state Supreme Courts, 39–41 constitutional status of judicial review (Canada): access to courts, 75 Canadian courts, 63 Constitution Act 1867, 63 Constitution Act 1982, 63 Supreme Court, 64–65 jurisdiction over constitutional matters, 66–67 jurisdiction over non-constitutional errors. 68–71 jurisdictional error, 73 rule of law, 71–75 Supreme Court, 64–65, 71 correctness standard of review, 78, 246–47 Canadian Charter rights, 264–65 discretionary administrative power, 190–91, 215–16 jurisdictional error, 193–94 Dunsmuir approach, 81 intensity of review, 264–65, 267–68 presumption of conformity: correctness standard, 215 procedural fairness, 256–58 proportionality and, 224 Crevier case (Canada), 68–71, 75, 90, 91, 195–96 damages, 9–10 Roncarelli case, 184 Datafin case (UK): Australian discussion of, 31 public function test, 31, 94–95 declarations: Australia, 28, 30 Canada, 89 deference, 78, 81–83, 99–100, 257–58, 263, 268–70 Australia, 227–28 Canada, 77–83, 99–100, 107 grounds of review, application to, 182, 189–92, 215, 249–56 privative clauses, 78–79, 244 procedural fairness, 256–60 questions of law, 243–49 rationale for reasons, 134 ultra vires doctrine and, 166

democracy, 3, 5, 53–54, 63, 105–06 discretionary administrative power, 3, 161–64, 278–79 Australia, 173, 215–16 grounds of review, 174–77 jurisdictional error, 179–181 serious irrationality, 174–75 ultra vires doctrine, 177–79 Wednesbury unreasonableness, 175–76 Australia and Canada compared, 162, 169–70, 182, 185–86, 215–16 Baker case, 170–71, 188–93 Canada, 181–83, 215–16 grounds and standards of review, 187–93 New Brunswick Liquor case, 187 rule of law and, 193 ultra vires grounds, 188–90 Wednesbury unreasonableness, 191 jurisdictional error, 193–96 Dunsmuir case, 194–95 rule of law, 196 Roncarelli v Duplessis, 183–87 Australia compared, 185 Padfield case compared, 184 reliance on rule of law, 185 ultra vires grounds, 186–87 common law and, 163–73 Dicey and Willis compared, 3–4, 163 Diceyean model of judicial review, 163–64 discretion defined, 161–62 Doré approach, 98–101, 198–99 human rights limits on discretion, 196–97 Australian charters of rights, 197, 199–201 Canadian Charter, 197, 198–99 common law rights, 203–05, 209–11 Doré approach, 198–99, 200 Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), 201–02 international law, 205–09, 211–15 principle of legality, see common law rights reasonable limits clauses, 96–101, 200–01 jurisdictional error: Australia, 176–77, 179–181 formalist approach, 180 non-jurisdictional error distinguished, 180–81 legality principle, 203 Australia, 203–05 Canada, 209–11 examples of limiting effect, 204–05 fundamental values, 210–11 range of rights protected, 203–04, 209 non-statutory human rights limits, 202–03 Australia, 203–09 Canada, 209–15 legality principle, 203–05, 209–11 presumption of conformity, 211–15 presumption of consistency, 205–09 origins, 163–64 Padfield decision, 170–71

284 Index presumption of conformity: Canada, 211–15 correctness standard, 215 international law and, 211–14 see also presumption of consistency presumption of consistency, 205–06 Australia, 205–09 examples, 206–08 international law and, 208–09 see also presumption of conformity ultra vires doctrine, 165–68, 177–79, 187–88 Doré case (Canada), 98–101, 198–99, 200, 217–18, 259–60, 265–66, 268, 269–70, 277 Dunsmuir case (Canada), 72–73, 81–83, 99–100 controlling discretion, 191–96 procedural fairness, 138, 147, 256, 258 standard of review, 244–47, 261–62, 270–71 Ellicott Committee (Australia), 42–44, 48 Federal Courts Act 1985 (Canada), 83–87 criticisms, 87 effect, 87–88 establishing court, 83–84 Federal Court of Appeal, 85 Federal Court of Canada, 83–84, 85 grounds for relief, 86–87 judicial review jurisdiction, 84–86 purpose, 84, 86 statutory and common law judicial review compared, 88 formalism, 3–4 Australia, 6–7, 176, 180, 197, 225, 256, 263–64, 273, 275–76 Canada, 4–5, 81–83, 244–45 functionalism, 3–4, 14, 275–76 fundamental justice, 112, 123, 259 Canadian Bill of Rights, 103–04, 115–16 Canadian Charter, 112–15, 130–31 procedural fairness compared, 130–31 grounds for judicial review: Australia, 174–77 attempted restriction of grounds, 33, 179 codification, 42, 43–44 common law and statutory grounds compared, 47 Canada, 181–87, 215–16 codification, 86, 90, 91–92 correctness review, 190–91 patent unreasonableness, 187 Prince Edward Island, 91–92 reasonable simpliciter standard, 190 relevancy, 190 rule of law and, 193 ultra vires grounds, 189 Wednesbury unreasonableness, 191 codification of grounds for judicial review, 42, 43–44, 86, 90, 91–92

common law and statutory grounds compared, 47 Migration Act (Cth), 33 no evidence ground, 44, 48–50, 90, 166, 168, 175, 189, 219–20 proportionality and, 222, 224 relevancy grounds, 166–67, 186, 224, 227 ultra vires grounds, 186–87, 189 Wednesbury unreasonableness, 2,47, 49, 166–67, 175, 186, 191 habeas corpus: Australia, 28, 30, 40 Canada, 85, 262 High Court of Australia: formalist approach to administrative law, 6–7, 176–77, 180, 225, 275 jurisdiction over constitutional matters, 23–26 appellate jurisdiction, 24 legitimacy of judicial review, 25–26 original jurisdiction, 24 jurisdiction to review administrative action, 26–28 Officers of the Commonwealth, 30–31 jurisdictional error, 32–39 remedies, 28–30 s.75 Australian Constitution, 24, 26–28 human rights frameworks: Australia: Australian Capital Territory: charter of rights, 12, 55–59, 117, 197, 199–201 charters of rights: Australian Capital Territory, 12, 56–59, 117, 197, 199–201 lack of a federal charter of rights, 11–12, 52–53, 54 Victoria, 12, 55–59, 117, 197, 199–201 constitutional rights: express rights, 52–53 implied rights, 53–54 Commonwealth law, 54–55 see also Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) state and territory charters of rights, 55 ACT and Victoria compared, 56–58 ACT and Victoria distinguished, 58–59 Victoria: charter of rights, 12, 55–59, 117, 197, 199–201 Canada, 4–5, 7–8, 92, 107–08, 276–77 Canadian Charter, 92–93 Canadian Bill of Rights, 102–04 implied Bill of Rights, 104–06 interaction between Charter and administrative law, 93–101 Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), 11–12, 55, 201–02 Human Rights Act 1998 (UK), impact of, 3, 5, 131, 222–23

Index 285 intensity of judicial review, 2, 10–11, 217–18, 273, 279 anxious scrutiny, 220–22 Australia, 233 active formalism, 225 deference, 227–28 jurisdictional facts, 239–43 legality/merit distinction, 225 constitutional entrenchment, 225–28, 275–76 Minister for Immigration and Citizenship v Li, 233–34 intelligible justification, 235 law/merits dichotomy, 235 proportionality, 236–37 Wednesbury unreasonableness, 234–35, 236 proportionality, 225, 229–33 rejection of Chevron deference, 227–28 Wednesbury standard, 225, 226, 228–29 Canada, 272 correctness review, 244–45, 246–47 ‘culture of justification’: evolving approach to reasonableness, 260–64 separation of powers doctrine, 262–64 Wednesbury unreasonableness, 260–61 decisions limiting Charter rights: correctness standard, 264–65 Doré case, 265–268 Loyola case, 268–70 Oakes test, 264–65, 268 proportionality and reasonableness standard of review, 265–67 separation of powers, 267–68 Wednesbury standard, 267 Deference, 270–71 charter rights, 267–68, 269 ‘culture of justification’, 262–63 privative clauses, 244 procedural fairness, 256–60 questions of fact and merit, 249–51, 255–56 questions of law, 243–44, 247–49 Dunsmuir case, 244–46 fettering discretion, 251–52 interpretation of the law, 243–49 New Brunswick Liquor case, 243 privative clauses, 244 procedural fairness, 256–60 Canadian charter, 259–60 correctness, 256–58 Doré case, 259 questions of fact and merit, 249–56 questions of law, 243–49 reasonableness: default standard, as, 247–48, 250–51 variety of forms of, 270–71 classic model of judicial review, 218–20 judicial restraint, 219–20

UK’s departure from, 220–24 unreasonableness, 219 UK, 221 adequacy of Wednesbury test, 220–22 anxious scrutiny, 220–22 proportionality test, 221–24 judicial activism, 3, 176–77, 218–20 judicial restraint, 100, 164, 219–20 classification of functions, 168–70 jurisdictional error, 164, 172–73 ministerial decisions, 164, 168–72 ultra vires doctrine, 164, 165–68 Judicial Review Act 1988 (Prince Edward Island), 91–92 Judicial Review Procedure Act 1990 (Ontario), 88–90 codification of judicial review procedure, 88 error of law, 90 interpretation, 90 no evidence, 90 remedies, 89 success, 89–90 Judicial Review Procedure Act 1996 (British Columbia), 91 jurisdictional error: Aala case, 33–34 Canada, entrenched jurisdiction of superior courts, 70–71, 73 pragmatic and functional test, 76–78, 82–83, 173, 193–96 discretionary administrative power: Australia, 176–77, 179–181 formalist approach, 180 non-jurisdictional error distinguished, 36–39, 181 High Court of Australia, jurisdiction to review, 32–35 distinguishing jurisdictional and nonjurisdictional errors, 36–39 judicial restraint, 172–73 non-jurisdictional errors compared: Australia, 36–39 Canada, 193–96 UK’s abolition of distinction, 37, 172–73 state supreme courts (Australia), 39–41 see also discretionary administrative power; procedural fairness justiciability, 171–72, 173, 181–82 Kerr Committee (Australia), 42–44, 48, 52, 174 Kioa v West case, 50, 119–22, 151, 208 Lam case, 128, 208, 230 legality principle: discretionary administrative power, 202–03 Australia, 203–05 Canada, 209–11 range of rights protected, 203–04, 209 fundamental values, 210–11 effect, 204–05, 211

286 Index legislative supremacy, see parliamentary sovereignty legitimate expectations: Australia, 121–22, 126, 128–30 Canada, 127–28, 130 origins of doctrine, 126 substantive legitimate expectation, 126–27 Coughlan case, 127–28 rejection of doctrine, 127 Mount Sinai Hospital Centre v Québec (Minister of Health and Social Services), 127–28 Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Lam, 128 see also substantive unfairness Loyola High School v Québec (Canada), 101, 265, 268–70, 274–75, 277 Marbury v Madison (US), 13, 107, 218 impact in Australia, 25–27, 225–27 impact in Canada, 66–67 Migration Act 1958 (Cth), 33–35, 120, 137, 152–53, 174, 179, 204–08, 243 Mount Sinai Hospital Centre v Québec (Minister of Health and Social Services), 127–28 natural justice, see procedural fairness New Brunswick Liquor case, 77–78, 81–82, 181 correctness standard, 78 grounds and standards of review, 187–91, 193 intensity of review, 243–44, 250 jurisdictional error, 81, 193 patent unreasonableness standard, 78, 80, 249–50 pragmatic and functional test, 79–80 preliminary or collateral questions doctrine, 77–78 privative clauses, 77–78, 80 no evidence ground, 44, 47–50, 90, 166, 168, 175, 189–90, 192, 219, 220 Oakes test, 93, 96, 98–99, 101, 198, 200, 264–65, 277 Doré approach compared, 99, 268 see also proportionality Ocean Port case (Canada): judicial independence of tribunals, 143–44, 156 rule against bias, 143–44 Officers of the Commonwealth (Australia), 30–31 Osborn case (UK): rationale for procedural fairness, 145–46 human rights focus of appellants, 148–50 interaction of common law and human rights, 2, 111, 148–50 Padfield decision: discretionary administrative power, 170–71 Roncarelli v Duplessis compared, 183–85

parliamentary sovereignty, 3, 14, 20, 165, 224, 262–63, 275 constitutionalism, conflict with, 106–07 privative clauses and, 75 ultra vires doctrine and, 165 patent unreasonableness standard of review, 78, 80–81, 187–89, 244 jurisdictional error, 193 pragmatic and functional test, 78–82, 193–94 pragmatic and functional test, 79–82, 180, 192–93 deference, 249, 276 jurisdictional error, 173, 193 privative clauses, 244 preliminary or collateral questions doctrine (Canada), 32, 36, 76–78, 172, 192, 194 see also privative clauses (Canada) presumption of conformity (Canada): discretionary administrative power: correctness standard, 215 international law and, 211–14 interpretation of legislation, 214 presumption of consistency (Australia): discretionary administrative power, 205–06 examples, 206–08 impact, 206 international law and, 208–09 privative clauses (Australia): constitutional jurisdiction of High Court of Australia, 32 jurisdictional error and, 33–35 privative clauses (Canada): conflict between parliamentary sovereignty and rule of law, 75–76 Dunsmuir case, 81–83 New Brunswick Liquor case, 77–80 preliminary or collateral questions doctrine, 32, 76–77 standard of review, 75–83 see also preliminary or collateral questions doctrine (Canada) procedural fairness, 33, 111–60, 278 Aala case, 33–34 Australia: Administrative Decisions (Judicial Review) Act 1977 (Cth), 120 constitutional position, 151–55 content, 125 Kioa v West, 119–21 legitimate expectations, 128–30 Osmond case, 135–37 rationales for, 147–48 reasons, 135–37 right to fair hearing, 117, 132–33, 150 scope, 119–22 Baker v Canada (minister of Citizenship and Immigration), 124–25, 133, 257, 260 bias rule, 139–44 institutional bias, 140–41 judicial independence of tribunals, 142

Index 287 Canada: constitutional position, 155–58 content, 124–25 fundamental justice, compared, 130–31 legitimate expectation, 127–28 Nicholson v Haldimand-Norfolk (Regional) police Commissioners, 118–19 rationales for, 146–47 reasons, 133–35 right to fairness, 112–16 Canadian Bill of Rights, 115–16 Canadian Charter, 112–15 s.7 Canadian Charter, 112–15 s 11(d) Canadian Charter, 115, 142–44 scope, 118–19 common law principles, 112 Australia, 118 Kioa v West, 119–21 natural justice concept, 120 rights, interests and legitimate expectations, 121–22 scope, 119–22 Canada, 118–19 increased scope of doctrine, 119 Nicholson v Haldimand-Norfolk (Regional) police Commissioners, 118–19 quasi-judicial/administrative decisions distinguished, 118–19 classification of government functions, 117 scope, 123 UK, 117–18 content of procedural fairness: common law, 123–24 Australia, 125 Canada, 124–25 fundamental justice, compared, 130–33 legitimate expectation, 126–30 reasons for a decision, 133–39 right to a fair trial, 132–33 rule against bias, see bias rule entrenchment: Australia, 151–55 Canada, 155–58 standard of review, 252, 256–60 legitimate expectation, 126–30 Osborn case (UK), 111, 145–46, rationales for doctrine, 145–48 democratic rationale, 147 dignitarian rationale, 146–47 public confidence rationale, 147 reasons for decisions, right to, 43, 133–39, 159 right to a fair trial, 115, 132–33 right to fairness: Australia, 117 Canadian Bill of Rights, 115–16 Canadian Charter, 112–15 rule against bias, see bias rule s.1(a) Canadian Bill of Rights, 116 s.2(e) Canadian Bill of Rights, 116 s.7 Canadian Charter, 112–15

scope: Australia, 119–22 common law principles, 117 Canada, 118–19 s.7 Canadian Charter, 112 property rights, see right to enjoyment of property (Canada) proportionality, 2 Australia, 19, 225, 228–33, 234–38 Canadian Charter, and the, 93, 99–100, 265–68 Australian charters, and the, 200–01 reasonableness standard of review and, 265–67 UK, 221, 222–24 see also Oakes test Public Service Board of NSW v Osmond: right to obtain reasons for a decision, 135–37, 139 R v Panel on Take-overs and Mergers: ex parte Datafin, see Datafin case Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Lam, see Lam case Re Refugee Tribunal: ex parte Aala, see Aala case Re Residential Tenancies Act case, 68–69 reasonableness simpliciter standard of review, 78–82, 188, 190, 244 reasons for a decision, right to, 43, 133–39, 159 adequacy of reasons, 133 Australia, 137–38 Canada, 138 Australia: no common law duty to provide reasons, 135–36 Osmond case, 135–36 statutory duty to provide reasons, 137 Canada, 133–34 Baker case, 133 remedies, 9–10, 24, 107, 160, 164, 172–73 certiorari, 29–30, 169 declarations, 30 habeas corpus, 28, 30, 40, 85, 262 injunction, 28–30 mandamus, 28–30, 33, 36, 173 Prohibition, 28–30, 33, 36, 169 s.75(v) Australian Constitution, 28–32 responsible government, 3, 6, 20 right to a fair hearing: Australia, 117, 132–33, 150, 159 Canada, 93, 103–04, 112–16, 130–31, 143–44, 150, 159 Roncarelli v Duplessis, 183–84 Australia compared, 185 damages, 184 implied bill of rights, 104, 209–10 Padfield case compared, 184 rule of law, 71–72, 185, 192–93 ultra vires grounds, 186–87 rule of law, 3, 105, 162, 163, 180, 215–16, 274–75 Australian Constitution, 41, 227, 230

288 Index Canadian Constitution, 9, 14, 63, 71–75, 105, 196 limits on administrative power, as a source of, 14, 162–63, 182, 188–89, 192–93, 215–16 procedural fairness, and, 146 privative clauses: conflict between parliamentary sovereignty and rule of law, 75–76 Roncarelli v Duplessis, 71–72, 185, 192–93 separation of powers doctrine, 3, 6, 14, 165, 172, 215 Australia, 20, 23–24, 35, 39–40, 50, 52, 57, 59, 176, 178 Canada, 65, 71, 75–76, 127, 158, 262–64 decisions limiting Charter rights, 267–68 ‘culture of justification’, 262–64 legitimate expectations, and, 127–28 intensity of review, 218–19, 224 Australia, 224–25, 226, 231, 238 Canada, 243, 263, 273 Slaight Communications case (Canada), 96–97, 99, 200 sovereignty, see parliamentary sovereignty standards of review (Canada), 75–83 correctness standard, 78, 81, 189–91, 193, 218, 239, 244–47, 256–58, 261, 270 Dunsmuir case, 81–83, 244–45, 247, 261–62, 270 New Brunswick Liquor case, 77–80, 243, 250 patent unreasonableness standard, 78, 80, 187–88 pragmatic and functional test, 78–79, 81–83, 173, 193–94 reasonable simpliciter standard, 80–81, 190, 244 see also intensity of review; deference state supreme courts (Australia): entrenched jurisdiction to review for jurisdictional error, 39–41 statutory judicial review frameworks (Australia), 106–08 Administration Decisions (Judicial Review) Act 1977 (Cth), 41–50 generalist tribunals, 51–52 state and territory legislation, 51 statutory judicial review frameworks (Canada), 83 British Columbia, 91 Federal Courts Act, 83–88 Ontario, 88–90 Prince Edward Island, 91–92 Statutory Charter of Rights (Canada), 102–04, 115–16, 149 substantive legitimate expectation, see substantive unfairness substantive unfairness: intensity of judicial review, 220 rejection of doctrine in Australia and Canada, 127–30 UK, 126–27, 220

Suresh v Canada (Minister of Citizenship and Immigration): common law duty of fairness, 131 intensity of review, 253 tribunals (Australia), 51–52 tribunals (Canada), 68–71, 170 UK: Australian independence, 22 Canadian independence, 61–62 discretionary administrative power, 170–72 grounds for judicial review, 166–68 Human Rights Act, impact, 3, 5, 131, 222–23 intensity of review, 221 adequacy of Wednesbury test, 220–21, 222 adoption of new grounds for review, 220 anxious scrutiny, 221 no evidence ground, 49, 220 proportionality review, 221, 222–24 jurisdictional and non-jurisdictional errors, 37, 172–73 substantive unfairness, 126–27, 220 ultra vires doctrine, 2, 165–68 administrative decision makers, 163–65 Australia, 177–79, 226 Canada, 72–73, 185–86, 189 deference, 166–67 jurisdictional error, and, 37–38, 172 law/merits dichotomy, 166–67 see also discretionary administrative power unreasonableness: illegality, 167–68 irrationality, 167–68 patent unreasonableness standard of review, 78, 80, 187–88 deference, 193, 244 jurisdictional error, 193 pragmatic and functional test, 78–82, 193–94 proportionality and, 2, 100–01, 228–33, 265–68 ultra vires doctrine and, 166–67 Wednesbury unreasonableness, 166–68 Australia, 47, 49, 175–76, 225, 226, 228–29, 234–35, 236 Canada, 191, 260–61, 267 UK, 220–21, 222 see also Wednesbury unreasonableness Victoria: charter of rights, 12, 19, 55–59, 197, 199–201 human rights framework, 56–59 judicial review legislation, 51 Wednesbury unreasonableness, 167–68, 190–91, 280 Australia, 47, 49, 175–76, 225, 226, 228–29, 234–35, 236 Canada, 191, 260–61, 267 UK, 220–21, 222