Principle v Practice: Judicial Review of Non-Statutory Executive Action in Australia

Abstract

In Australia, the Commonwealth and State governments are authorised to take action authorised by no source other than 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. This dissertation 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. In so doing, it argues that Australian judicial review principles are capable of accommodating judicial review of non-statutory executive action, but only to a limited extent due to the characteristics of the power exercised and constitutional constraints on judicial power. That is, the ‘gaps’ that remain in reviewability are justified by the constitutional context in which judicial review occurs.