In Australia, the Commonwealth and State governments are authorised to exercise power that is neither conferred by legislation nor expressly provided for in a constitution: non-statutory executive power.
Where non-statutory executive power is exercised, questions arise as to the role of the courts in keeping the government accountable for this action. Although intermediate appellate courts at the Commonwealth and State levels have applied the House of Lords’ decision in Council for Civil Service Unions v Minister for the Civil Service to permit judicial review of non-statutory action in an appropriate case, it is unclear what cases are “appropriate” and how the traditional grounds of review and remedies might apply to action that is not authorised by legislation.
Dr Sapienza’s ground-breaking book attempts to bring clarity to this area of law by assessing the extent to which Australian judicial review principles are capable of application to an exercise of non-statutory executive power. It begins by categorising non-statutory executive power according to the manner in which an exercise of it is capable of having a legal effect. It then examines each element of judicial review – jurisdiction, justiciability, grounds of review, standing and remedies – to determine which aspects of each element are likely to pose an obstacle to a successful judicial review application in respect of each category of non-statutory action. In so doing, it lays a conceptual and doctrinal foundation from which legal practitioners and the courts can navigate this complex area of law on a case-by-case basis, as they are increasingly being called on to do.
As the first treatise to thoroughly explore this area, it is an invaluable resource for governments and those advising them. It will also be the starting point for lawyers seeking to challenge an exercise of non-statutory executive power as well as for the courts they call on to review the action.
1. Introduction
2. The Non-Statutory Executive Power of Australia’s Governments
I Introduction
II Legislative Predominance over the Executive
III Section 61 of the Constitution
IV Prerogatives
V Non-Prerogative Capacities
VI Non-Statutory Powers are Discretionary
VII Conclusion
3. Jurisdiction
I Introduction
II Jurisdiction to Conduct Judicial Review: States and Territories
III Jurisdiction to Conduct Judicial Review: Commonwealth
IV Statutory Judicial Review Jurisdiction
V Other Courts
VI Conclusion
4. Justiciability – General Principles
I Introduction
II The Separation of Powers
III The Historical Development of Justiciability of Non-Statutory Action
IV Justiciability of the Exercise of Prerogatives
V Justiciability of The Exercise of Non-Prerogative Capacities
VI Conclusion
5. Justiciability – Statutory Aspects
I Introduction
II Justiciability of Statutory Provisions in respect of Prerogative Powers
III Justiciability of Non-Statutory Action Directed to the Exercise of a Statutory Discretion
IV Justiciability under Statutory Provisions for Judicial Review
V Conclusion
6. The Basis for Applying Judicial Review Standards to Non-Statutory Action
I Introduction
II The Relationship Between Judicial Review Standards and Legal Obligations
III The Source of Judicial Review Standards
IV Common Law Principles underlying Relevant Rules of Statutory Construction
V The Role of the Constitution
VI The Common Law Principles of Lawfulness, Reason and Fairness in Australia
VII Conclusion
7. Reconciling Grounds of Review with Non-Statutory Action
I Introduction
II Absence of Jurisdictional Facts
III Principle Against Further Delegation
V Acting for an Unauthorised Purpose; Ignoring Mandatory Considerations and Taking into Account Prohibited Considerations
VI Procedural Fairness
VII The Role of Policies in Executive Decision-Making
VIII Unreasonableness
IX Evidentiary Issues
X Conclusion
8. Remedies and Standing
I Introduction
II The Relationship between Remedies, Standing and Jurisdiction
III Constitutional Writs
IV Prerogative Writs Currently Performing a Public Law Function
V Equitable Remedies
VI Discretionary Considerations
VII Conclusion
9. Conclusions
‘The book seeks to answer, methodically and thoroughly, the question what are the laws that govern the exercise of non-statutory executive power.’
Alan Robertson SC, ‘Book Forum: Alan Robertson SC’ on AUSPUBLAW (27 October 2021)
‘Amanda Sapienza has written a book that will be a force to be reckoned with in any consideration of judicial review of non-statutory executive power in Australia for some time to come.’
Cheryl Saunders, ‘Book Forum: Cheryl Saunders’ on AUSPUBLAW (27 October 2021)
‘[A] novel examination of an under-explored area of administrative law.’
Jackson Wherrett, ‘Book forum: Jackson Wherrett’ on AUSPUBLAW (27 October 2021)
‘Interested readers are encouraged to enjoy the full scope of this important work of original constitutional scholarship. Given that Sapienza’s previous scholarship on this topic has already been cited with apparent approval by the Federal Court, it surely will not be too long before this book is in the hands of judges and the pages of law reports.’
Julian R Murphy, barrister, 56 LIJ June 2021
