The courts vs the people: have the judges gone too far?

Abstract

Introduction: It is as well to start by explaining that the title to this paper was the title suggested by the organisers of the colloquium for which the paper was prepared. It is, quite obviously, a title that links in to the debate – a debate that occurs seemingly in every age – about the role of the judiciary in public law cases. Whether the debate is cast as one occurring between courts and parliament, between courts and the executive or – as in the title to this paper – between courts and the people, the central theme remains the same. It is that no arm of government should encroach improperly on the province of another arm of government.... This paper is not so ambitious as to attempt a discussion generally of whether public policy determination is too judicialised and social regulation too lawyerised. My lesser objective is to reflect on whether recent trends in judicial review of administrative action have either moved the boundaries of legality too far or have confused where the boundary lies. I have been asked to undertake that analysis from a particular standpoint, namely, whether it is appropriate for judges to give increasing emphasis to human rights principles in their elaboration of administrative law doctrine..... I will outline my concerns in three ways. First, I discuss the recent history of migration litigation in Australia, and argue that judicial review has had an untoward impact on the administration of the law and the adjudication of disputes in this area. An analysis of immigration litigation is apposite, because a key justification offered in support of an assertive judicial role in this arena is that judicial review provides a safeguard for the human rights of people who seek sanctuary under Australia’s immigration laws. The second topic I discuss is a substantive principle of administrative law – the ground of review for failure to consider relevant matters. The development and expansion of this legal standard, which has lead increasingly to vagary and uncertainty in the standard, is a microcosm of judicial review changes in Australia over the past two decades. The trend, once again, has been driven as much as anything by a rights-based emphasis on the duty of government to consider the impact of its decisions on members of the public. Thirdly, I will take the issue of uncertainty a step further by discussing how judicial review is nowadays undertaken in a climate of doctrinal ambiguity. In that setting, the concept of legality, and with it the principles of public policy and the standards for public administration, will be influenced in greater measure by the discretionary preferences of the trial judge. The latitude for choice is likely to grow apace if international human rights norms more overtly become part of the legal equation. Show more