We note with great sadness the death of Richard Tracey AM RFD QC, on the 11^th of October 2019. Mr Tracey passed away after a brief battle with cancer. He was at the time of his death, Commissioner on the current federal royal commission into aged care. Mr Tracey has a long and distinguished career in the law and public law. He was appointed a Queens Counsel in 1991 and was a Justice of the Federal Court of Australia from 2006-2018. Mr Tracey also held a singular expertise in military law, by reason of his service in the Australian Army from 1975-2014 during which he reached the rank of Major-General. He served these and other roles with great distinction. Mr Tracey is well known to us at Thomson Reuters, and remembered with respect and affection, for his role as editor of the Australian Journal of Administrative Law. This journal would not exist without Mr Tracey. He was its inaugural editor and served as general editor of the journal for its first 13 years – from 1994 until 2005. Our deepest sympathies go to Mr Tracey’s wife, Hilary, and their children Jack, Philip, Fiona and Rosie.

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The latest issue of the Australian Journal of Administrative Law (Volume 26 Part 3) contains the following material:

EDITORIAL – General Editors: Matthew Groves and Greg Weeks

• Vale the Late Richard Tracey QC
• Party Politics and Supervisory Review

CASENOTE – Editor: Nathalie Ng

• In Defence of Spent Convictions: Frugtniet v Australian Securities and Investments Commission and the Administrative Decision-Maker – Stephen Cremean

Articles

A Typology of Materiality – Paul Daly

The question of when an error will be sufficiently “material” to justify the quashing of a tainted decision prompted discussion and debate on the High Court of Australia in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 and Hossain v Minister for Immigration and Border Protection [2018] HCA 34. This is a difficult issue, which causes conceptual confusion and obscures important underlying issues. By reference to comparative material, I argue that there are three distinct types of materiality. First, materiality can be used to denote whether an error is sufficiently serious to count as jurisdictional. Second, materiality can be used to denote a causal link between the error complained of and the decision under review. Third, materiality can be used to denote judicial discretion to refuse relief. I suggest that distinguishing between these types facilitates legal analysis and debate about the appropriate place of “material” error in judicial review of administrative action.

Failure to Adhere to Policy: A Category of Jurisdictional Error? – Patrick McCabe

Since the 1970s, the use of policy has proliferated and changed the face of Australian public administration. Consistent use of policy in administrative decision-making improves the objective quality of decision-making, improves public confidence in decision-making, and promotes and upholds rule of law values such as consistency and equality. Those benefits are undermined or lost, however, when decision-makers depart from their policies, whether by making a mistake, or because it is expedient or convenient to depart from a policy in a given case. In Australian administrative law, departure from policy may amount to a “failure to consider a mandatory consideration” in some circumstances. This is an inadequate safeguard against the problem of inconsistent or arbitrary application of policy, as it artificially treats a policy as merely one of numerous “considerations”. It is also contended that there are doctrinal problems with accounting for policy in this way. With reference to the more-developed English jurisprudence on this issue, this article proposes an alternative paradigm for considering the place of policy in Australian administrative law, whereby consistent adherence to policy would be considered to be a presumed condition of any conferral of wide discretionary power upon the executive by the legislature.

Creating a Framework for Evaluating the “Effectiveness” of the Commonwealth Ombudsman – Jeremy (Wei Peng) Soh

For many years the Commonwealth Ombudsman has been hailed as one of the most successful accountability bodies for upholding administrative justice in Australia. However, despite the almost unanimous praise for the Commonwealth Ombudsman’s role in promoting the rule of law from legal circles, there is a lack of a systemic methodology in order to quantify and substantiate such claims. This article seeks to address that gap, by formulating and applying a tentative evaluation framework which seeks to test the claims of effectiveness from legal circles. In the process, I argue it is both pragmatic and valuable to create an evaluation framework for the Commonwealth Ombudsman. I also seek to support the contention that the Commonwealth Ombudsman is an effective institution for upholding administrative justice by drawing upon the analysis derived from the framework.

BOOK REVIEWS – Editor: Dr Janina Boughey

• Research Handbook on the Ombudsman, by Marc Hertogh and Richard Kirkham – Reviewed by Chris Field
• Closer to the Machine: Technical, Social and Legal Aspects of AI – Katie Miller

For the PDF version of the table of contents, click here: AJ Admin L Vol 26 No 3 Contents.

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The latest issue of the Australian Journal of Administrative Law (Volume 26 Part 4) contains the following material:

EDITORIAL – General Editors: Matthew Groves and Greg Weeks

• Tribunals – Their Continued Evolution and Reform

Articles

The National Disability Insurance Scheme and Administrative Decision-Making: Unique Challenges and Opportunities – Louise P Bygrave and Ron McCallum

The National Disability Insurance Scheme provides financial support to persons with disabilities. The NDIS Division of the Administrative Appeals Tribunal was established to review certain decisions, including whether a person meets the access criteria for the Scheme or the reasonable and necessary supports in a participant’s plan. This article examines challenges and opportunities for administrative decision-making within the framework of the Scheme. Key themes from decisions made by the Tribunal and the Courts emerge, such as the inherent tension between the objects in the legislation with the requirement to ensure the financial sustainability of the Scheme. Many applicants to the Tribunal have had a difficult history of seeking supports for their disabilities. Traversing these issues requires Tribunal Members to be legally accurate and culturally competent. Statistics from the Tribunal show a clear trend towards parties settling prior to hearing, raising questions about the effect of adversarial hearings on persons with disabilities and transparency of outcomes.

Australian Tribunals: Impact of Amalgamation – Robin Creyke

Australia has pioneered the practice of amalgamation of its tribunals, a movement which culminated, since the late 1990s, in the establishment of tribunals combining civil and administrative jurisdictions. This occurred in all the states except Tasmania, which is soon to join its brethren. The Commonwealth too has amalgamated its tribunals, the last occasion being in 2015. Its tribunals, for constitutional reasons do not extend to civil matters. These developments have not been examined to determine whether the process of amalgamation has met the objectives identified intended by the change. As a first step in that discovery process, the author surveyed the tribunals to tease out the impact of amalgamation. The outcome, of necessity, reflects the views of the tribunals themselves. Nonetheless, the results begin the task of assessing the success or otherwise of these moves. Others need to pursue the task of exploring users’ views of the value of the development.

Administrative Justice and the Legacy of Executive Devolution: Establishing a Tribunals System for Wales – Sarah Nason and Huw Pritchard

Uniquely, Wales has a primary legislature, but remains part of a single legal jurisdiction with England. It does not have responsibility for administering civil and criminal justice but has long had a range of devolved tribunals. Given this jurisdictional and constitutional context, a distinctively Welsh approach to administrative law and administrative justice, tribunal reform, and “integrity” institutions has developed. Welsh tribunals have become a test bed for further devolution of justice powers and the eventual establishment of a separate Welsh courts and tribunals service. In this article we examine reforms to Welsh tribunals, alongside the potential for building a broader justice system from the foundations of administrative justice.

Administrative Justice and Tribunals in the United Kingdom: Developments; Procedures; and Reform – Robert Thomas

Tribunals are a major part of administrative law in the United Kingdom. They hear and determine appeals against administrative decisions in areas such as social security, immigration, and tax. This article surveys recent developments in the world of tribunals and their ability to deliver effective administrative justice. It examines the following topics: the 2007 reforms which introduced a coherent tribunal system; the relationship between government and tribunals; jurisdictional issues concerning tribunals and tribunal procedures; the role of the Upper Tribunal; initial administrative and review decisionmaking; and the current modernisation – or digitisation – of tribunals.

For the PDF version of the table of contents, click here: AJ Admin L Vol 26 No 4 Contents.

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The latest issue of the Australian Journal of Administrative Law (Volume 27 Part 1) contains the following material:

EDITORIAL – General Editors: Matthew Groves and Greg Weeks

• The Ongoing Quest to Define a Duty of Consistency

CASENOTE – Editor: Nathalie Ng

• CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 – Stephen Tully

SPEECH

• Delivering Reasons in the Tribunal Context – The Hon Justice A S Bell

Articles

Judicial Review of the Fast-track Asylum Seeker Assessment Process – Tim Peyton

Under the fast-track scheme, the Immigration Assessment Authority (IAA) conducts an expedited merits review of protection visa refusals pertaining to a cohort of asylum seekers. Asylum seekers subject to the fast-track scheme are not entitled to certain procedural protections they would ordinarily enjoy under the common law hearing rule. This article analyses judicial review of fast-track decisions. It determines the impact of these judgments on the fast-track scheme, whether they have affected fast-track applicants’ procedural rights, and what implications these judgments have for the legislature’s capacity to codify procedural fairness. Judicial review of the fast-track scheme has divided opinions in the Federal Court regarding whether the courts can use the common law to confer procedural entitlements on applicants. While the fast-track scheme has been effective in precluding judicial review on hearing rule grounds, the Federal Court has created some limited procedural safeguards through the ground of legal unreasonableness.

A(nother) New Unreasonableness Framework for Canadian Administrative Law – Janina Boughey

In 1979, the Supreme Court of Canada adopted an approach to judicial review of administrative action which diverged from that taken in the United Kingdom, Australia and New Zealand. The approach centres on the application of different “standards” of review and has often been described as a more “functional” method for determining whether courts or administrative bodies should have decisional authority over a given question. The Court has changed and refined its approach to the standards of review several times since 1979 – sometimes quite radically. In December 2019, the Court again revised Canada’s “standards of review” framework, in response to difficulties and inconsistencies that had arisen in its application. The new framework has been criticised for returning Canada to the pre-1979, “formalist”, “Diceyan” approach, on which Australian administrative law still rests. This article examines the recent Canadian developments from an Australian perspective.

BOOK REVIEW – Editor: Dr Janina Boughey

• Administrative Redress in and out of the Courts, by Greg Weeks and Matthew Groves (eds) – Reviewed by Dr Maria O’Sullivan

For the PDF version of the table of contents, click here: AJ Admin L Vol 27 No 1 Contents.

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The latest issue of the Australian Journal of Administrative Law (Volume 27 Part 2) contains the following material:

EDITORIAL – General Editors: Matthew Groves and Greg Weeks

• Immigration Litigation – Impact, Study and Reform

CURRENT ISSUES – Editor: Katie Miller

• Finding Law in a Time of Emergency: COVID-19

Articles

Migrating towards a Principled Approach to Reviewing Jurisdictional Facts – The Hon Justice R Derrington

Where the parliament has preconditioned the exercise of statutory power on the formation of a state of mind to be held by the power’s repository, questions will necessarily arise as to whether the putative state of mind on which the repository has acted, satisfied the statutory requirement. This article identifies the emerging principles on which a court will examine whether an alleged defect in the formation of a state of mind has resulted in it not conforming to a statutory precondition. The principles identified are now mostly derived from cases involving s 65 of the Migration Act 1958 (Cth). That is a somewhat unique provision in which the legislature has transposed the deliberative aspect of the executive’s role to the jurisdictional fact stage. Despite some recurring confusion of thought, the principles applied to the review of subjective jurisdictional facts are distinct from those applicable to judicial review for jurisdictional error, even if not-insubstantial similarities exist.

Materiality: Marking the Metes and Bounds of Jurisdictional Error? – Harry Aniulis

The centrality of jurisdictional error to the High Court’s constitutionally entrenched jurisdiction to conduct judicial review is now well accepted. Despite this acceptance, it was also explained in Kirk v Industrial Court (NSW) that “[i]t is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error”. Consequently, uncertainty plagues understanding of when errors may be regarded as “jurisdictional” in the requisite sense. Disagreement in demarking the boundary between “jurisdictional” and “nonjurisdictional” errors has been recently evidenced in the decisions of Hossain v Minister for Immigration and Border Protection and Minister for Immigration and Border Protection v SZMTA. The prevailing approach requires satisfaction of a threshold of materiality before a conclusion of jurisdictional error may be reached. This development sits uncomfortably with existing authority, adds greater uncertainty due to its variable threshold, and is open to imprecise exceptions. Instead, addressing materiality considerations through courts’ remedial discretion is preferable.

A Question of Capacity: Does the AAT Have the Power to Appoint Litigation Guardians? – Matthew Paterson

The Administrative Appeals Tribunal deals with some of the most vulnerable members of Australian society, including a considerable number of people who suffer from mental and physical impairments – especially in its National Disability Insurance Scheme jurisdiction. However, it was only in the recent case of Klewer and National Disability Insurance Agency (Klewer) that the Tribunal has been asked to consider whether it has the power to appoint a litigation guardian for a party before it. In this article, I take Klewer as the starting point for a broader discussion of whether the Tribunal has the power to appoint a litigation representative. After considering whether the Tribunal has any express or implied statutory authority to make such an appointment, I conclude that the Tribunal has no such power.

BOOK REVIEW – Editor: Dr Janina Boughey

• Military Law in Australia, by Robin Creyke, Dale Stephens and Peter Sutherland (eds) – Reviewed by Matthew Groves

For the PDF version of the table of contents, click here: AJ Admin L Vol 27 No 2 Contents.

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The latest issue of the Australian Journal of Administrative Law (Volume 27 Part 3) contains the following material:

EDITORIAL – General Editors: Matthew Groves and Greg Weeks

• Soft Law and Liability in Tort

CURRENT ISSUES – Editor: Justin Davidson

• Letters to the Queen

Articles

Vexatious Applicant, Vexatious Application or Something Else? Dealing with Difficult Applicants under Freedom of Information Laws in Australia – Mick Batskos

Government agencies dealing with freedom of information (FOI) laws sometimes encounter applicants seeking access who engage in oppressive or disruptive behaviours. That can include harassment or intimidation of staff, unreasonably interfering with agency operations, or otherwise misusing FOI laws. This article looks at how each Australian jurisdiction deals with these behaviours in trying to draw a balance between maximising disclosure on one hand and maintaining government efficiency on the other. Some jurisdictions have enacted vexatious applicant provisions, vexatious application provisions, or something different in dealing with these difficult behaviours. Despite the differences between jurisdictions, are there common threads which can be drawn?

The Value of Adjudicative Independence: Overlapping Conceptions of Administrative Justice in the Administrative Appeals Tribunal’s Review of Visa Cancellations – Dr Chantal Bostock

Administrative justice is a highly contested concept. Mashaw and others discerned at least two models, respectively dealing with bureaucratic rationality and legality. Bureaucratic rationality emphasises accurate, efficient and cost-effective decision-making while in contrast, the legal model focuses on “court-centred adjudication”, in which the parties’ competing interests are fairly determined. I argue that these two conceptions of administrative justice are set against one another throughout the visa cancellation system but that when the Administrative Appeals Tribunal performs its decision-making function, the legal model dominates. When analysed through the lens of these competing models of administrative justice, we gain insight and understand the reasons for the resulting tension and criticism of Tribunal decision-making. Adjudicative independence, however, is an inherent aspect of fairness, which is in turn the key value of the legal model. For that reason, the Tribunal must be allowed to undertake the function it was designed to fulfil, namely independent merits review.

The Blue Sky Effect: A Repatriation of Judicial Review or a Search for Flexibility? – Simon Young

The High Court’s 1998 decision in Project Blue Sky Inc v Australian Broadcasting Authority, with its close attention to specific statutory context and purpose, has had an important influence on Australian administrative law. Not least, it appears to have led to some “repatriation” of freestanding standards of administrative legality. Yet close analysis reveals that this evolution is best understood as part of broader dynamic, namely a two-stage search for flexibility in judicial review principles – in response to changing contexts and new challenges. The first stage has seen some careful calibration of principle to statutory context, and the second a calibration to consequence (as reflected in the new “materiality” overlay in jurisdictional error doctrine). This search for flexibility builds agility into the principles but appears to come at some cost – including to the consistency, predictability and normative influence of administrative law. These evolutions, and the attending dilemmas, warrant close consideration as Australian administrative law has perhaps found itself at a new crossroads.

BOOK REVIEWS – Editor: Matthew Groves

• More Essential (for Lawyers) Than Toilet Paper, by Janina Boughey, Ellen Rock and Greg Weeks – Reviewed by Bruce Dyer
• Interpreting Executive Power, edited by Janina Boughey and Lisa Burton Crawford – Reviewed by Dr Maria O’Sullivan

For the PDF version of the table of contents, click here: AJ Admin L Vol 27 No 3 Contents.

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The latest issue of the Australian Journal of Administrative Law (Volume 27 Part 4) contains the following material:

EDITORIAL – General Editors: Matthew Groves and Greg Weeks

• Ministerial Adherence to the Law

CASENOTE – Editor: Nathalie Ng

• Northern Land Council v Quall [2020] HCA 33

CURRENT ISSUES

• Amenability of the Executive Power to Pardon to Judicial Review: Holzinger v Attorney-General (Qld) and Attorney-General (Cth) v Ogawa – Samuel Walpole, Aaron Moss and William Isdale

Articles

Executive Detention in the Time of a Pandemic – Anthony Gray

The global COVID-19 pandemic has raised many important legal issues in Australia. One was the legality of proposed detention of an individual at the behest of an authorised person, on the basis the person was considered likely to breach the lockdown measures. Though the Victorian Government eventually abandoned this contentious proposal, it raised significant controversy, and is considered worthy of examination in this article.

Deference as Non-jurisdictional Error – Charlie Rotondo

Unlike in the United States and Canada, Australian administrative law does not recognise a doctrine of deference to executive interpretations of statute. Although the High Court has never been called to conclusively decide whether a doctrine of deference could exist in Australia, its obiter in City of Enfield v Development Assessment Commission and orthodox understandings of the separation of powers suggest that such a doctrine would be inconsistent with the Constitution. This article attempts to show that, while accepting a strict separation of powers, a doctrine of deference can operate alongside existing judicial review doctrine. By reviewing the distinction between jurisdictional and non-jurisdictional errors of law, I show that the validity of an administrative decision can be protected even where it is inconsistent with the construction a reviewing court would give to the relevant statute.

BOOK REVIEW – Editor: Dr Janina Boughey

• The Anatomy of Administrative Law, by Joanna Bell – Reviewed by Mark Aronson

For the PDF version of the table of contents, click here: AJ Admin L Vol 27 No 4 Contents.

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The latest issue of the Australian Journal of Administrative Law (Volume 28 Part 1) contains the following material:

EDITORIAL – General Editors: Matthew Groves and Greg Weeks

• The State of Our Administrative Law

Articles

Judicial Review of Administrative Action: Between Grand Theory and Muddling Through – Mark Aronson

It is a truth worth universal acknowledgment that the scholar in search for a meta-theory of judicial review of administrative action is in need of a life. The administrative state comprises a diverse range of state actors and regulators, all operating under the specifics of their own governing laws, which are read alongside a set of generic grounds of judicial review. The generic grounds are indeterminate, and the governing law usually gives no indication of the consequences of an administrative breach of its specific requirements. Statutory silence is the norm with regard to these critical issues, but for constitutional reasons, the whole exercise is now theorised as one of “statutory interpretation”. Supplying meaning to statutory text has always involved normative and operational input from the judges themselves. There is nothing new about that, no profound judicial assertion of the power to amend statutory texts to suit their own preferences, and no threat to the survival of the generic principles. Different administrative fields will produce their own inflections of the fit between their governing laws and judicial review’s general principles.

The State of the Art in Contemporary Administrative Law – Paul Daly

Peremptory Mandamus in Australian Administrative Law – Christopher Chiam

This article critically evaluates the current role of peremptory mandamus in Australian administrative law. Part I provides an outline of the remedy of mandamus to explain and contextualise peremptory mandamus. Part II explains what peremptory mandamus is, and Part III seeks to explain why it has played a limited role in contemporary administrative law and judicial review. Part IV analyses the High Court decision in Plaintiff S297/2013 v Minister for Immigration and Border Protection [No 2] which is one of the few modern authorities to consider the remedy. It argues that the High Court’s treatment of the remedy in that case is based on an inaccurate account of the remedy’s role and history, and is contrary to principle.

Delegated Legislation and Emergency Rule-making in Australia – Tim Wright

This article examines the framework for delegated legislation under the Legislation Act 2003 (Cth) and recent trends in Executive law-making in times of emergency. The Executive’s reliance on delegated legislation to implement matters of substantive policy with limited parliamentary scrutiny raises serious questions about the constitutional validity of delegated legislation and adequacy of consultation by rule-makers. These issues are explored with reference to recent inquiries conducted by the Senate Standing Committee for the Scrutiny of Delegated Legislation. As the role of delegated legislation continues to evolve and expand, the Parliament must take further measures to strengthen its control and oversight of this type of legislation.

BOOK REVIEW – Editor: Dr Janina Boughey

• Measuring Accountability in Public Governance Regimes, by Ellen Rock – Reviewed by Robin Creyke

For the PDF version of the table of contents, click here: AJ Admin L Vol 28 No 1 Contents.

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The latest issue of the Australian Journal of Administrative Law (Volume 28 Part 2) contains the following material:

PREFACE – The Hon RS French

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Articles

Judicial Impartiality, Bias and Emotion – Kathy Mack, Sharyn Roach Anleu and Jordan Tutton

Impartiality is the defining value of judicial work. Judicial emotion is routinely characterised as inherently inconsistent with impartiality and therefore a source of bias. This article investigates how judicial officers themselves understand impartiality, emotion and bias and examines the practices they use to achieve impartiality and avoid bias. Focusing on cases in which apparently emotionally driven or intemperate judicial conduct in court is challenged generates insight into the practical contexts in which some judicial emotion arises and its legal consequences. This analysis finds a more complex relationship among impartiality, bias and emotion than is encompassed in legal doctrines.

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Apprehended Bias in Integrated Online Dispute Resolution – Anna Olijnyk and Joe McIntyre

Integrated online dispute resolution (integrated ODR) has the potential to deliver efficient, accessible, satisfying justice to large sections of the community. But by expanding the role of a court or tribunal to the earliest stages of the dispute, integrated ODR creates new risks of actual and apprehended bias. This article weaves together two literatures – judicial impartiality and justice technology – to identity some of those risks. We argue that, while integrated ODR is not necessarily incompatible with impartial decision-making, careful design is necessary to manage risk.

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Recusal, Reconstitution and the Reasonable Apprehension of Bias in Australian Statutory Tribunals – Sarah Lim

The question of how to ensure the impartiality of multi-member bodies (particularly those that do not exercise judicial power) is the subject of limited academic attention and has yet to receive a satisfactory answer. Accordingly, this article assesses the current procedure for disqualification adopted by multi-member bodies and asks how these procedures might be improved. To do so, it examines the differing procedures utilised by the Administrative Appeals Tribunal and Victorian Civil and Administrative Tribunal in circumstances where a member (or members) of a multi-member Tribunal is accused of bias and must decide whether to recuse himself or herself.

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Is There a “Small Town” Exception to the Bias Rule? – Mathew Groves

The rule against bias provides a rule of general application to promote impartiality in decision-making. It is well known that the rule can be adjusted to take account of the different forms of decision-making that occur outside the courts. These adaptations reflect the flexibility of both the common law in general and the rules of fairness in particular. This article examines a lesser known example of the flexible nature of the bias rule, which occurs when claims of bias arise in small jurisdictions. The article argues that principles of impartiality, which operate to prevent judges from deciding cases that involve people or issues that the judge have an association with, cannot apply easily to jurisdictions of a very limited size.

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For the PDF version of the table of contents, click here: Westlaw AU – AJ Admin L Vol 28 No 2 Contents or here: New Westlaw AU – AJ Admin L Vol 28 No 2 Contents.

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The latest issue of the Australian Journal of Administrative Law (Volume 28 Part 3) contains the following material:

EDITORIAL – General Editors: Greg Weeks and Matthew Groves

• Migration Law’s Continuing Impact on Australian Administrative Law

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CURRENT ISSUES – Editors: Justin Davidson, Katie Miller and Dr Stephen Tully

• Privacy with Purpose: Three Case Studies in Subjectivity – Justin Davidson and Lauren Lai

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Articles

Lockdowns, Curfews and Human Rights – Unscrambling Hyperbole – Emeritus Professor Rosalind Croucher AM

Responses to the COVID-19 pandemic have required very quick action. But those responses have also involved significant limitations on people’s rights and freedoms and implemented through executive power often with limited parliamentary involvement. One such exercise was a curfew in Victoria, which was challenged in Loielo v Giles. This article works through the decision in Loielo as a matter of legal analysis and concludes with a consideration of the democratic challenges of emergency decision-making. The decision is an instructive illustration of how human rights principles can inform decision-making and provide a framework of accountability.

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Accountability and Redress Mechanisms for Outsourced Government Services – Kaitlyn Oliver

During the COVID-19 pandemic, Australian Federal, State and Territory governments have outsourced the delivery of key public services, including hotel quarantine programs, to the private sector. Accountability should not be lost where private companies are contracted to perform public functions, especially when their actions directly impact Australia’s response to the pandemic. This article focuses on the outsourcing of services in Victoria’s hotel quarantine program over March to June 2020 and the reports from the COVID-19 Hotel Quarantine Inquiry. I use the Victorian program as a case study to highlight the existing accountability gap between the treatment of public and private actors under public law. This case study indicates public law accountability mechanisms are more likely to be available where decisions are made by a public agency. I also evaluate the benefits of extending private law accountability mechanisms to public authorities to remedy the accountability gap.

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Materiality and the Interpretation of Executive Power – Lisa Burton Crawford

This article examines recent decisions of the High Court, which confirm that immaterial errors of law made by executive decision-makers are presumed to be non-jurisdictional in kind and clarify the way in which this new “materiality criterion” works. It focuses on the approach to statutory interpretation that underpins this doctrinal development and calls for greater rigour and transparency in the way that courts explain the presumptive limits of executive power. In doing so, it responds to recent contributions to this journal which have questioned the level of theoretical sophistication and coherence that can be expected of administrative law and considers the broader theories and doctrinal positions that the materiality criterion may destabilise.

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Chapter III and Legislative Competence to Stipulate that a Material Legal Error Is Non-jurisdictional – Emily Hammond

It has been widely assumed that Australian Parliaments enjoy plenary power to provide that legal errors are non-jurisdictional. The recently articulated materiality threshold for jurisdictional error raises an intriguing possibility: Might the Court now recognise a general rule that material legal errors are jurisdictional? This article argues that the Constitution supports this step for executive powers, and State judicial powers outside Supreme Courts. There is a discernible scheme within Ch III of the Constitution to ensure legal accountability for governmental powers over legal status; and it is incongruous with the scheme that non-jurisdictional error should operate to deny accountability for material legal error, as it does if applied to such errors in executive powers and State judicial powers outside Supreme Courts. Thus, the integrity of the Ch III accountability scheme requires a general rule that material legal errors in these two categories of powers are jurisdictional errors.

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BOOK REVIEW – Editor: Dr Janina Boughey

• Judicial Review of Non-Statutory Executive Action, by Amanda Sapienza – Reviewed by Dr Lynsey Blayden

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For the PDF version of the table of contents, click here: Westlaw AU – AJ Admin L Vol 28 No 3 Contents or here: New Westlaw AU – AJ Admin L Vol 28 No 3 Contents.

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