The Creation of Australian Administrative Law: the Constitution and its Judicial Gate-keepers

Abstract

Ultra vires doctrine has declined in importance in Australia in tandem with the rise of constitutional principles in judicial review of administrative action. The Australian Constitution creates an entrenched right of judicial review in the original jurisdiction of the High Court. This right has led to the development of a conception of judicial review that is anchored on separation of powers principles but has not incorporated the ultra vires doctrine. This constitutional approach gained ascendancy in Australia not long after the ultra vires/common law debate arose in the United Kingdom and led Australian courts down a path that is both different and similar. The similarity lies in the issues Australian courts have faced, such as the doctrinal basis of judicial review, or whether an overarching concept might provide a coherent theoretical framework. The difference of the Australian experience lies in the terminology adopted in Australian law, such as their adoption and refinement of jurisdictional error even though that concept was disclaimed by UK courts. When the constitutional overlay of Australian is stripped away, the difference in approach to the UK clearly lessens.