The Legal Criteria for the Proper Exercise of Statutory Discretion

A. INTRODUCTION

1. This article seeks to present a grounding in general law for the axiom that statutory discretion in the exercise of functions that require a person to act judicially,^[1] at least in the Common law context,^[2] exists not as a defence for the capricious or recklessly negligent exercise of power but rather as a heavy burden on the authority that bears it to serve the interests of natural justice by considering a wide range of relevant matters and competing interests in complex circumstances that may not lend themselves to simple algorithmic resolutions.

2. It is worth noting that the High Court of Australia has affirmed that all judicial power in Australia ultimately emanates from the Federal and State Constitutions,^[3] including the laws enacted by the Federal and State Parliaments in accordance with the power stipulated in the Constitutions. Thus, the power exercised by all Federal and State Courts falls within the confines of statutory power.

3. Though this article relies predominantly on Australian authorities (along with some British ones), the principles manifested in the authorities are accepted in all common law jurisdictions.

4. The purpose behind producing it is to dispel the notion that the existence of discretionary authority affords judicial or administrative officers an entitlement to exercise free will or mitigates liability for the abuse of authority or abdication of duty.

5. As Grant Donaldson states^[4] in Perspectives on Declaratory Relief:^[5]

“All who have practised law know well the slippery notion of discretion. There is a tendency in law to sweep many things that are imprecisely understood into a pile and call the resultant pile  “judicial discretion”. “Judicial discretion” is a term shockingly abused in legal discourse. It has assumed the odious status of a slogan rivalled perhaps in its odiousness only by “policy consideration”.

Yet the role of discretion and its relationship to judicial power is vitally important. These are the most critical issues. The positioning of judicial discretion in the positivist understanding of law has been a large part of the life’s work of Professor Dworkin, and in particular in the seminal Law's Empire. The best-known academic work of one of the greatest of Common Law judges, Ahron Barak, formerly Chief Justice of Israel, is the seminal Judicial Discretion.^[6] Professor Greenawalt wrote an early and still often cited article, “Discretion and Judicial Decision: The Elusive Quest for the Fetters That Bind”.^[7]

We are often frustrated in trying to seriously consider this issue by offerings such as that of Lord Bingham in his paper, “Should Public Law Remedies be Discretionary?”^[8] From it, we learn that his Lordship’s answer to the question of “should public law remedies be discretionary?” is:

Well, yes, in some cases, up to a point, provided the discretion is strictly limited, and the rules for its exercise are clearly understood.

Lord Bingham, in this paper, also tells us that habeas corpus is not discretionary; certiorari is “largely discretionary, but it is not clear that the remedy is or ever has been discretionary in all circumstances”; prohibition is discretionary; mandamus is “preeminently” discretionary; declaration and injunction are “truly discretionary”.^[9] The word “discretion” when used in this way is really just a slogan to avoid analysis.”

B. FOUNDATIONAL PRINCIPLES CONCERNING STATUTORY DISCRETION

6. In Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 (at 613-614), Brennan J postulated that:

“[30] … The reason why such a discretion is left at large is not hard to conjecture. The theory is stated by Dixon J in Swan Hill Corporation v Bradbury (1937) 56 CLR 746, at p 757:

“The reason for leaving the ambit of the discretion undefined may be that legislative foresight cannot trust itself to formulate in advance standards that will prove apt and sufficient in all the infinite variety of facts which may present themselves. On the other hand, it may be because no general principles or policy for governing the particular matter it is desired to control are discoverable, or, if discovered, command general agreement.”

That is because the repository of a power must exercise a discretion in accordance with any applicable law, including s92, and, in the absence of a contrary indication, “wide general words conferring executive and administrative powers should be read as subject to s92” (per Dixon, McTiernan and Fullagar JJ. in Wilcox Mofflin Ltd v State of NSW (1952) 85 CLR 488, at p 522). In Inglis v Moore (No.2) (1979) 46 FLR 470, St John J and I stated the relevant rule of construction, at p 476:

“... where a discretion, though granted in general terms, can lawfully be exercised only if certain limits are observed, the grant of the discretionary power is construed as confining the exercise of the discretion within those limits. If the exercise of the discretion so qualified lies within the constitutional power and is judicially examinable, the provision conferring the discretion is valid.”

7. Every statutory discretion, however broad, is constrained by law. As Dixon J said in Shrimpton v The Commonwealth^[10]:

“Complete freedom from legal control is a quality which cannot... be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force.”^[11]

8. Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred.^[12] Where the discretion is conferred on a judicial or administrative officer without definition of the grounds upon which it is to be exercised, then:^[13]

“The real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.”^[14]

That view, however, must be reached by a process of reasoning.

9. Every discretion has to be exercised, as Kitto J put it in R v Anderson; Ex parte Ipec-Air Pty Ltd,^[15] according to “the rules of reason”^[16]. His Honour, paraphrasing Sharp v Wakefield,^[17] said:^[18]

“A discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself.”^[19]

10. Statutory power must also be exercised in a way that, in all the circumstances, is fair, since it is assumed (in the absence of a clearly expressed contrary intention) that the state does not intend to mistreat the citizen. It may be a vexed question what, in the particular circumstances, fairness requires. But the so-called rules of natural justice have traditionally been held to demand, first, that the mind of the decision-maker should not be tainted by bias or personal interest (he must not be a judge in his own cause) and, secondly, that anyone liable to have an adverse decision made against him should have a right to be heard (a rule the venerability of which is vouched by its Latin version: audi alteram partem, hear the other party). This is a principle to which the courts tend to attach great importance, and it has been described as:

“The necessary assumption on which to base an argument... that the court must supplement the procedural requirements which the Act itself stipulates by implying additional requirements said to be necessary to ensure that the principles of natural justice are observed... The decided cases on this subject establish the principle that the courts will readily imply terms where necessary to ensure fairness of procedure for the protection of parties who may suffer a detriment in consequence of administrative action.”^[20]

11. The exercise of judicial discretion may not be contrary to the requirements of procedural fairness laid out in Minister for Immigration and Citizenship v Li^[21] or incapable of meeting the benchmark of the parties’ legitimate expectations, the satisfaction of which was determined to be an integral aspect of fair trials in Haoucher v Minister for Immigration and Ethnic Affairs.^[22]

12. As Professor Galligan wrote in 1986 in Discretionary Powers: A Legal Study of Official Discretion, the requirement that officials exercising discretion comply with the canons of rationality means, inter alia, that their decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power. Those canons also attract requirements of impartiality and “a certain continuity and consistency in making decisions.”^[23] They were reflected in the powers of the English Court of Chancery to control public bodies “if they proceed to exercise their powers unreasonably; whether induced to do so from improper motives or from error of judgment.”^[24] They were acknowledged in the earliest years of the High Court of Australia.^[25]

13. The rationality required by “the rules of reason” is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the statutory framework of rationality. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character. These requirements may be manifested in express statutory conditions or, in the case of procedural fairness, in implied conditions.^[26]

14. The fundamental requirement remains that the court must have regard to the extent to which the dictates of justice, in the particular circumstances, require that a party should not be deprived of a judicial determination of the merits of their position in the proceedings.^[27]

15 That fundamental requirement has encouraged a degree of generality of expression and apparent liberality of result in some prominent decisions, including Queensland v JL Holdings Pty Ltd^[28]; Cohen v McWilliam^[29]; Macquarie Bank Ltd v National Mutual Life Assn of Australasia Ltd^[30]; Evans v Bartlam^[31]; Byron v Southern Star Group Pty Ltd Trading As KGC Magnetic Tapes^[32]; Davies v Pagett^[33].

16. All of these authorities echo the sentiment expressed in the frequently stated proposition that “procedural rules are the servants, not the masters, of justice”.^[34]

17. That proposition and the generality that underlies it permit courts both to dispense with the formal rule requirements and to impose requirements different from the rules, where they are satisfied that such a course is appropriate to the circumstances of the particular case.

18. The consequential implication is that a court’s powers are not to be used for the purpose of punishing procedural default.^[35]

19. It is authoritative in Jackamarra v Krakouer^[36] that the Court should not insist on timely compliance with procedural requirements if doing so could compromise achieving the overriding purpose. Furthermore, there is authority that suggests that the Court and parties should avoid “unduly technical and costly disputes about non-essential issues”.^[37]

20. Brennan CJ cited Associated Provincial Picture Houses Ltd v Wednesbury Corporation^[38] for the proposition that “when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised”^[39]. He explained the application of “Wednesbury unreasonableness” as a court acting on the “implied intention of the legislature that a [statutory] power be exercised reasonably” to hold invalid “a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action”.^[40]

21. That explanation accords with references in earlier High Court decisions to reasonableness as a condition of the exercise of a discretionary power.^[41] It has been approved in more recent decisions.^[42] It is an explanation that is well understood by legislatures and courts alike, and that has “stood the test of time”.^[43] It explains the nature and scope of Wednesbury unreasonableness in Australia.

22 Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty.^[44] Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.^[45]

23. The implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made:^[46]

“Just as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course.”

24. In approaching that question, it is necessary to keep in mind the distinction between a decision-maker finding a jurisdictional fact and a decision-maker exercising a discretion. The distinction was made by Gummow A-CJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS^[47] when, referring to so-called “Wednesbury unreasonableness”, their Honours said:^[48]

“The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts. Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review, will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.”^[49]

25. A denial of procedural fairness may result in a decision made in excess of jurisdiction to which s 75(v)^[50] of the Constitution will respond^[51]. A failure to accede to a reasonable request for an adjournment can constitute procedural unfairness^[52].

26. It was said in House v The King^[53] that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion that may be applied to a decision lacking an evident and intelligible justification.

27. If an unreasonable failure to adjourn is material to the outcome, such a decision is invalid. This is because the decision “is not a real performance of the duty imposed by law upon [it]”.^[54]

28. The test proposed by Lord Russell of Killowen CJ in Kruse v Johnson^[55], a case which is cited chiefly in relation to the unreasonableness of the exercise of statutory power^[56], considered^[57] that unreasonableness was found where delegated laws were:

“partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; [or] if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men”.

29. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council,^[58] Lord Diplock opined that unreasonableness would be shown where “no sensible authority acting with due appreciation of its responsibilities” would have so decided. This reflects the requirement of the law that a decision maker understand his or her statutory powers and obligations. It is evident in the more specific errors, going to jurisdiction, which the law recognises and to which Lord Greene MR referred in Wednesbury,^[59] such as misdirecting oneself as to the operation of the statute, taking into account irrelevant considerations or failing to take into account relevant considerations.

30. The more specific errors in decision-making, to which the courts often refer,^[60] may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that “all these things run into one another”.^[61] Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,^[62] Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker is regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

31. In Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation,^[63] reference was made to an analysis of three paradigm cases of unreasonableness which were thought to be consistent with a view of Lord Greene MR’s “doctrine”, as based on the law as to the misuse of fiduciary powers. The third paradigm involved the application of a proportionality analysis by reference to the scope of the power.

C. THE RELEVANCE OF THE BENCHMARKS SET BY INTERNATIONAL LAW

32. In Judicial Discretion and Human Rights: Expanding The Role Of International Law In The Domestic Sphere,^[64] Wendy Lacey discusses the increasing relevance of human rights considerations found in international law for the manner in which Australian judges exercise discretion. She makes the following cogent points:

“It has often been acknowledged that universally accepted human rights norms provide the most obvious standards to which Australian judges may refer,^[65] and that point is perhaps even more apt in the context of judicial discretion. In the instances where judges retain specific discretion, their task most often involves weighing up some broader public interest against the interests of the individual. In a functional sense, discretion is often used by both legislators and judges to achieve fairness in procedure as well as in outcome. It enables judges, who are best placed to consider the particular facts of any given case, to identify what fairness may require in the circumstances. Discretion, representing the space between laws, involves instances where the inflexibility of fixed legal rules gives way to powers for exercising personal judgement that enable both flexibility and individualisation within discrete cases. It provides what Bell has termed ‘individualised justice’.^[66] For human rights advocates, it represents a valuable component of any legal system, and in this sense, has a natural affinity with international human rights standards.

Yet, discretion may also be viewed from another perspective. Inherently, the existence of discretion implies the absence of fixed legal rules and the capacity for individual choices to be made by judges. Thus, it encapsulates the potential for abuse and the exercise of discretion based on the personal or subjective views of particular judges. In this context, the phrase ‘where law ends, tyranny begins’,^[67] would spring to the minds of many lawyers. Yet few discretionary powers are ever absolute, and most are subject to stringent guidelines, whether statute-prescribed or developed by judges over time. In addition, all exercises of judicial discretion are subject to review by a superior court, albeit on limited grounds.

To the extent that the exercise of discretion should be subject to guidelines and that judges are entitled to develop such guidelines, the role of international law is important in another sense. International standards may lend legitimacy to the values espoused by judges when carrying out their judicial functions, particularly in instances where the law is ambiguous or silent, as with discretion. As Kirby J has stated extra-curially:

A decision may have greater legitimacy if it accords with international norms that have been accepted by scholars and then by governments of many countries of the world community than if they are simply derived from the experience and predilections of a particular judge.^[68]

Resort to international law may therefore both add legitimacy to, and guide, the exercise of judicial discretion.

With regard to statutory discretion that is expressly framed by reference to international law, the legislative basis for the resort to international standards is quite clear. However, with respect to other discretionary powers, the legal basis for the law’s extension into this area is yet to be fully and adequately considered by the courts, including its relationship to the principle espoused in Teoh. That decision established in Australian law that ratification of a treaty may give rise to a legitimate expectation that administrative decision-makers will act in accordance with such a treaty, even if it is not incorporated into Australian law.^[69] The effect of the legitimate expectation is to create a procedural fairness requirement, that where a decision would be inconsistent with the terms of the relevant treaty, decision-makers would give an affected individual the opportunity to be heard.^[70] Teoh was therefore concerned with administrative rather than judicial discretion.”^[71]

“Yet, notwithstanding the uncertainty that surrounds this area of law, there are a number of positive aspects to existing case law from which certain observations may be made. Already, there are discernible trends in the types of cases where international law is more likely to impact on a particular discretion, most notably in the field of criminal law. With respect to the types of discretion considered in case law, it is evident that the relevance of international human rights law is not limited to the exercise of particular discretion or to particular contexts but is potentially very wide and limited only by the circumstances of each case.

When considering the list of matters relevant to the discretion to exclude evidence on public policy grounds, Kirby J [in Swaffield.^[72]] identified the additional matter of whether fundamental human rights - including those contained in the International Covenant on Civil and Political Rights^[73] - had been breached by the conduct that resulted in the evidence having been obtained.^[74]”^[75]

“Another less direct instance of the use of international law in relation to discretion occurs in the strengthening or development of existing common law rights, where those rights have a direct bearing on the exercise of discretion.^[76] For example, in O’Neill,^[77] the Common Law right to privacy was considered in relation to the discretion to exclude evidence of a confession obtained through improper means. In examining the nature and content of the right to privacy at common law, Fitzgerald P made direct reference to the right in international law.^[78] While the international standard did not directly impact upon the exercise of the discretion here, it was used by Fitzgerald P in considering the nature and scope of the common law right, which did impact on the exercise of discretion.^[79]”^[80]

“Both the commentary and case law that deal with the relevance of international human rights law to the exercise of judicial discretionary powers tend to focus on aspects of the criminal justice system. As Garkawe has observed, this fact should come as no surprise

[a]s the criminal justice system is the most prominent and public means by which a state may deprive any person falling under its jurisdiction of their liberty, issues relating to the criminal justice process are intimately connected with human rights issues.^[81]

Consequently, many of the relevant cases deal with such issues as: the right to a fair trial;^[82] the privilege against self-incrimination;^[83] equality before the law;^[84] and various rights which pertain to punishment and sentencing discretion.^[85] Cases outside the sphere of criminal law include matters as diverse as: disputes over contractual terms;^[86] extradition;^[87] contempt;^[88] and various family law matters.^[89] The human rights argued in these contexts have included: the right to work;^[90] the paramountcy principle in cases involving the interests of children;^[91] liberty of movement;^[92] the right to be present at one’s case;^[93] family rights;^[94] the right to strike;^[95] and the right to enter and leave one’s country freely.^[96] Although references to international conventions have not been limited to the ICCPR (International Covenant on Civil and Political Rights), that instrument is certainly the one most often cited by litigants, except in family law matters, where CROC (Convention on the Rights of the Child) applies.

As a consequence of the dominance of criminal law cases in the relevant jurisprudence, the particular discretionary powers which have more often been in issue before the courts are those associated with the criminal process. Thus, the case law has focused on the exercise of discretion in various areas including: the granting of warrants;^[97] bail;^[98] parole;^[99] adjournments in proceedings;^[100] stays in proceedings;^[101] the determination of sentences, including the length, place and type of imprisonment;^[102] and discretion to exclude evidence, both at trial and in preliminary proceedings.^[103] However, discretionary powers of the Court in cases involving non-criminal matters have arisen in such diverse areas as: the power to declare a contract void on public policy grounds;^[104] the power to grant relief from an employment contract;^[105] the discretion to grant leave to appeal;^[106] the power to reopen a determination of a lower Court granting an acquittal;^[107] the discretion to grant interlocutory relief to prevent an abuse of process;^[108] the discretion to grant parenting orders;^[109] the power to order the return of children;^[110] the discretion to order delivery of a passport and to prohibit the leaving of the country;^[111] and the various grants of statutory discretion granted under the Family Law Act 1975 (Cth).^[112]

International human rights instruments have, therefore, influenced the exercise of discretion granted to Australian judges in a variety of different legal contexts. While the majority of examples come from the criminal sphere, the principle that international law may legitimately be used in exercising discretion outside the criminal justice system is evident from the case law. The case law itself is diverse not only in respect of the particular issues involved, but also in terms of the judges and courts that have determined these disputes. Justices Miles (former Chief Justice of the Supreme Courts of the Australian Capital Territory and Justice of the New South Wales Supreme Court), Perry (Justice of the Supreme Court of South Australia), and Kirby (Justice of the High Court of Australia and former President of the New South Wales Court of Appeal) as apparent from recent cases, have risen to prominence in this area.^[113] In particular, Kirby J’s decisions perhaps reflect the most detailed and complex approach to the issue of international human rights law and judicial discretion. This is not surprising, given Kirby J’s extra-curial discussions on the role of international human rights norms in domestic law. Each of the three judges have espoused a different, though not necessarily inconsistent, view on human rights and discretion. Their approaches will, however, be significant for the future development of an articulated legal basis for referring to international human rights standards in the exercise of judicial discretion.”^[114]

“The decision of AMS is perhaps the clearest and most general statement offered by Kirby J, in respect of the relevance of international human rights law to the exercise of discretionary powers. There the court was required to consider an argument put by a mother regarding the relevance of international human rights standards to the exercise of a discretionary power under the Family Law Act 1975 (Cth). That discretionary decision would most certainly have affected the rights of other family members, but it was a discretion where the paramountcy principle was to apply. This principle requires that those making decisions affecting the welfare of a child must give paramount consideration to the child’s interests. In considering the mother’s argument, Kirby J made the following statements:

I would certainly hold that a judge, exercising jurisdiction of the kind invoked here, may properly inform himself or herself of the general principles of relevant international law. This is especially so where those principles are stated in international human rights instruments to which Australia is a party. However, the difficulty in the present case is that any such consideration would not take the judge very far … In a sense, the international conventions relevant to this subject merely express the sometimes conflicting principles which are already reflected in Australian law and court decisions.^[115]

The jurisprudence of Kirby J assists in the identification, not only of the benefits of framing discretion by reference to relevant international legal standards, but also of the particular limits which may exist in respect of certain types of discretion. Justice Kirby states:

Knowledge of the principles of international law may be useful where the amendment of Australia’s law has occurred in ways to bring it into conformity with international law. Awareness of international law may also sometimes assist a judge to exercise the applicable statutory powers in a way conformable with basic principle, given the high measure of compatibility which usually exists between the common law of Australia and international statements of fundamental human rights. But save to the extent that the international principles invoked by each party help to put their controversies into a conceptual context and express the basic values which must be taken into account, I do not consider that examination of the international instruments or the jurisprudence which has gathered around them, assist in resolving the problems faced here. International law merely reflects, and repeats, the considerations which give rise to those problems. In this case, it does not throw much light on how they should be resolved.^[116]”^[117]

“In the case of AMS, Kirby J also touched upon the particular difficulties faced by judges in exercising discretionary powers and considered the benefit that may be gained by referring to fundamental human rights standards:

Awareness of international law may also sometimes assist a judge to exercise the applicable statutory powers in a way conformable with basic principle, given the high measure of compatibility which usually exists between the common law of Australia and international standards of fundamental human rights.^[118]

In recognising the normative judgment that is regularly involved in the exercise of a discretion, such decisions represent a particularly suitable focus for Kirby J’s argument - also made often in extra-curial comments - that a judge would be wise to decide such questions in accordance with universally accepted principles rather than by reference to subjective values or opinion. This perspective has also been endorsed by French J of the Federal Court in the case of Schoenmakers. His Honour considered the relevance of art 9 of the ICCPR, which deals with unlawful and arbitrary detention, to a bail application pending extradition. On that issue, he offered the following analysis:

The reference… is not intended to suggest that Mr Schoenmakers’ detention has been unlawful but rather serves as an indication of the value placed by Australia, as part of the international community, on the liberty of the individual and the presumption in favour of that liberty. That presumption must, of course, give way to specific statutory provisions, but where those provisions do, as is the case in the Extradition Act, allow for normative judgements of the special circumstances under which bail may be granted, then the presumptions arising under the common law and in relevant international instruments may be taken into account.^[119]”^[120]

D. JURISDICTIONAL FACTS ENLIVENING STATUTORY DISCRETION

33. As explained in the first segment of this article, the form of representative and responsible government guaranteed by the Constitutions (in almost all contemporary liberal democracies) carries necessary implications for the manner in which the government may exert its authority, including the creation, interpretation and enforcement of laws.^[121]

34. The central tenet that the use of such authority must be directed toward the convenience and welfare of the people of the Commonwealth and must not impinge upon the rights and freedoms of persons any more than is reasonably necessary to achieve that objective is intrinsic to the Constitution and the tradition of common law rights that it serves to protect. A well-recognised implication of this doctrine is that certain common law rights (e.g. freedom of public (political) speech,^[122] freedom of mobility necessary for interstate trade,^[123] right to property, right of effective access to courts^[124] and due process^[125]) are deemed to have constitutional protection.^[126]

35. In Lange v Australian Broadcasting Corporation^[127] [Lange], the High Court of Australia^[128] noted^[129] per curiam that an exercise of discretionary power that burdens a person’s constitutionally protected rights may only be deemed valid if the encumbrance is no more than necessary and in pursuit of a legitimate purpose as mandated by the constitutionally prescribed system of representative and responsible government. This is the essence of proportionality in the exercise of public authority.

36. In Wotton v State of Queensland^[130] [Wotton], French CJ, Gummow, Hayne, Crennan, and Bell JJ found^[131] that where a statutory provision conditions the exercise of a discretion to what is reasonably necessary, it imports a requirement of proportionality into the exercise.

37. Articles 1, 2, 4 and 5 of the ICCPR, cumulatively give effect to the principle recognised in Lange and Wotton.

E. THE OBJECTIVE & SUBJECTIVE ASPECTS OF JURISDICTIONAL FACTS

38. The enforcement of the aforementioned aspect of the rule of law is generally achieved through the existence of two jurisdictional facts [JFs] relevant to the exercise of statutory discretion.

39. The First JF typically lies in the occurrence of an event necessary for the relevant statutory authority’s performance of its functions, such as the making of a relevant complaint to an administrative body or the lodgment of documents to commence a proceeding in a court of law.

40. The Second JF is satisfied only when the particular set of circumstances, relevant to the basis upon which the First JF is satisfied,^[132] justifies the statutory authority’s intervention in the specific manner sought.^[133] The assessment thus necessitated comprises both subjective and objective elements:^[134]

The Subjective Element

The statutory authority must itself be satisfied, in accordance with the applicable standard, regarding the existence of circumstances that necessitate the intervention sought.

The Objective Element

The grounds upon which the statutory authority satisfies itself regarding the necessity of the intervention sought must objectively be reasonable.

41. Furthermore, the analysis in George^[135] and O’Hara^[136] emphasises that the principle of legality^[137] critically informs the satisfaction of the Objective Element of the Second JF.

F. THE FORMIDABLE THRESHOLD REQUIREMENT ENFORCED BY JFS

42. In Coco v The Queen^[138], Mason CJ, Brennan, Gaudron and McHugh JJ said^[139] that:

“The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.”

43. This “common law presumption against the parliamentary intention to infringe upon such rights and freedoms has been described as an aspect of a “principle of legality” which governs the relationship between parliament, the executive and the courts.^[140] The presumption is of long standing and has been restated over many years. It can be taken to be a presumption of which those who draft legislation, regulations and by-laws are aware. To apply it is to act conformably with legislative intention as explained by this court in Lacey v A-G (Qld).^[141]”^[142]

44. In Thompson v Minogue^[143], the Court of Appeal (Vic)^[144] recognised^[145] per curiam at [81] that:

“The requirement in s 38(1)^[146] to give proper consideration to human rights must be read in the context of the Charter as a whole, and its purposes.

The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a ‘common or garden’ activity for persons working in the public sector, both senior and junior.

[P]roper consideration [of human rights] will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests.”

45. The aforementioned matters underscore the formidable threshold in place for the grounds capable of invoking the Second JF [Formidable Threshold Requirement].

46. The following observation of Burchett J from Parker v Churchill^[147] poignantly captures the obligations of the decision maker entrusted with ascertaining the satisfaction of the Formidable Threshold Requirement:

“The duty, which the [decision maker] must perform in respect of [the] information, is not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by simply an inevitable signature. What is required by the law is that the [decision maker] should stand between the [State] and the citizen, to give real attention to the question whether the information proffered by the [State] does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.”

G. THE PROBATIVE VALUE REQUIREMENT SAFEGUARDED BY JFS

47. Moreover, the evidence relied upon in support of the grounds informing the decision maker’s assessment of the satisfaction of the Second JF must have high probative value [Probative Value Requirement].

48. The application of the Formidable Threshold Requirement and the Probative Value Requirement is reinforced through the Briginshaw principle, which may be summarised in the following averments of Dixon J in Briginshaw v Briginshaw^[148]:

“But even where the contest is as to civil rights only, a mere preponderance of evidence, such as would induce a jury to incline to the one side rather than the other, is frequently insufficient. It would be so in all cases where it fell short of fully disproving a legal right once admitted or established, or of rebutting a presumption of law.” ... The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.”^[149]

“But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”^[150]

H. THE PROCEDURAL FAIRNESS ASSURANCE GUARANTEED BY JFS

49. It is also worth noting here that the consideration of whether the evidence satisfies the Probative Value Requirement is different from that regarding whether there is any evidence capable of enlivening the First JF.

50. In that regard, the following observation of Dixon CJ, Williams, Webb and Fullagar JJ in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd^[151] is instructive:

“It is in this respect only that the stage at which the present application is made becomes important. But the chief point of difficulty in the case lies in the distinction between on the one hand a mere insufficiency of evidence or other material to support a conclusion of fact when the function of finding the fact has been committed to the tribunal and on the other hand the absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends.”

51. Likewise, in Azzopardi v Tasman UEB Industries Ltd^[152] [Azzopardi], Glass JA^[153] pronounced that:

“The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v Lipton Ltd^[154] and Mersey Docks and Harbour Board v West Derby Assessment Committee^[155]. But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it. - McPhee v S Bennett Ltd^[156].”^[157]

52. His Honour expounded the principle thusly:

“A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself, i.e. has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council^[158]; Australian Gas Light Co v Valuer-General^[159].”^[160]

“To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence. Finally, the burden of proof to which the applicant is subjected cannot be masked by the use of double negatives. A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof.”^[161]

53. Through the following statements in Nicholas v R^[162], Gaudron J affirmed that the duty of the decision maker to ensure compliance with the Probative Value Requirement is in fact an incident of the exercise of judicial power emanating from Chapter III of the Constitution:

“[74] In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.”

54. Gaudron J’s conception of judicial power resonates strongly with Kitto J’s description of it in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd^[163], where His Honour said:^[164]

“Thus, a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified.”

55. The aforementioned principles apply by necessary implication of the rule of law to circumstances in which administrative bodies are entrusted with powers that affect the rights and interests of individuals. Thus, it is said that such circumstances necessitate the decision maker to act judicially.^[165]

56. In Annetts v McCann^[166], Mason CJ, Deane and McHugh  JJ elucidated^[167] that:

“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: Commissioner of Police v Tanos^[168]; Twist v Randwick Municipal Council^[169]; Heatley v Tasmanian Racing and Gaming Commission^[170]; J v Lieschke^[171]; Haoucher v Minister for Immigration and Ethnic Affairs^[172]. In Tanos, Dixon CJ and Webb J said^[173] that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from “indirect references, uncertain inferences or equivocal considerations”. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice”^[174].

57. The following determination of Kitto J from R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd^[175] is insightful on the subject:

“The fact that an official is given a power conditionally upon being satisfied of a particular state of facts - and so is authorised to determine unexaminably “the jurisdictional fact” upon which his power depends (if the expression be thought appropriate) - is no indication that in deciding whether he is so satisfied he is exercising judicial power. In the well-known judgment of Palles CB in R v Local Government Board for Ireland^[176], there is a passage which has been repeatedly cited in this Court and has been relied upon in the present case as tending against this view. The learned Chief Baron observed that if the existence of a ministerial power depends upon a contingency, although it may be necessary for the officer to determine whether the contingency has happened, in order to know whether he shall exercise the power, his determination does not bind, for as his Lordship went on to say:

“The happening of the contingency may be questioned in an action brought to try the legality of the act done under the alleged exercise of the power. But where the determination binds, although it is based on an erroneous view of the facts or law, then the power authorising it is judicial.” (1902) 2 IR, at (374)

The reference is to a power which depends upon the happening of a contingency. We are here concerned with a power which depends upon nothing but the Tribunal’s own satisfaction that certain conditions exist. The determination of the Tribunal that it is so satisfied - the making of its “findings” - does not bind in the sense in which Palles CB used the expression; that is to say, it does not conclude for all purposes any question as to which the Tribunal declares itself satisfied. It answers only the question whether the Tribunal is in fact so satisfied - and does not answer even that question conclusively, for if the Tribunal were to record that it was so satisfied when in fact it was not, the next step, which the Tribunal is authorised to take only if it is so satisfied, could be set aside by this Court in exercise of [its] jurisdiction.”

58. The aforementioned statements of principle present an unequivocal declaration of the law’s emphasis on safeguarding procedural fairness [Procedural Fairness Assurance].

I. CONCLUSION

59. A necessary implication of the principles stipulated in the preceding paragraphs is that the set of circumstances deemed appropriate to satisfy the Second JF, which is a prerequisite to the proper exercise of statutory discretion [Proper Exercise of Statutory Discretion], must be:

59.1. Commensurate with the Formidable Threshold Requirement;

59.2. Substantiated by evidence that meets the Probative Value Requirement; and

59.3. Evaluated through a process that enforces the Procedural Fairness Assurance.

60. A decision that does not comport with the criteria above is either invalid^[177] or irregular^[178], depending upon the statutory context.^[179]

‍Endnotes

^[1] In due regard for the rights and interests of foreseeably affected parties.

^[2] Latham CJ observed in Arthur Yates and Co Pty Ltd v The Vegetable Seeds Committee [1945] 72 CLR 37 (at 66) that:

“It is not the English view of law that whatever is officially done is law - a view adopted by some jurists on the continent of Europe - but, on the contrary, the principle of English law is that what is done officially must be done in accordance with law. I refer to an article (which my brother Dixon has shown to me) by Professor Roscoe Pound in the American Bar Association Journal 1944, p 497, for valuable comment upon the idea of substituting for law the administrative absolutism of officials.”

^[3] See: Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; R v Kirby Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5.

^[4] At (146)-(147).

^[5] The Federation Press, 2009.

^[6] Yale University Press, 1989.

^[7] (1975) 75 Columbia Law Review 359.

^[8] The copy of it that I have is in Lord Bingham, The Business of Judging: Selected Essays and Speeches (Oxford University Press, 2000).

^[9] For an even worse example of this sort of facile rubbish, see Lord Cooke, “The Discretionary Heart of Administrative Law” in C Forsyth and I Hare (eds), The Golden Metwand and the Crooked Cord - Essays on Public Law in Honour of Sir William Wade (Oxford University Press, 1997).

^[10] (1945) 69 CLR 613 at 629–630.

^[11] Minister of Immigration and Citizenship v Li [2013] HCA 18 [Li]; French CJ at [23].

^[12] Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 368 per Mason J; O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Oshlack v Richmond River Council (1998) 193 CLR 72 at 84 [31] per Gaudron and Gummow JJ.

^[13] Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473 per Dixon CJ, McTiernan and Windeyer JJ agreeing at 473–474.

^[14] Li; French CJ at [23].

^[15] (1965) 113 CLR 177.

^[16] (1965) 113 CLR 177 at 189.

^[17] [1891] AC 173 at 179.

^[18] (1965) 113 CLR 177 at 189.

^[19] Li; French CJ at [24].

^[20] R v Secretary of State for the Environment, ex p. Hammersmith & Fulham London Borough Council [1991] 1 AC 521, 598 D-G.

^[21] [2013] HCA 18.

^[22] [1990] HCA 22.

^[23] Galligan, Discretionary Powers: A Legal Study of Official Discretion, (1986) at 140.

^[24] Vernon v Vestry of St James, Westminster (1880) 49 LJ Ch 130 at 136.

^[25] Local Board of Health of Perth v Maley (1904) 1 CLR 702 at 712 per Griffith CJ, Barton and O’Connor JJ agreeing at 716.

^[26] Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 258–259 [11]–[13] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.

^[27] Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230.

^[28] [1997] HCA 1.

^[29] (1995) 38 NSWLR 476.

^[30] (1996) 40 NSWLR 543.

^[31] [1937] AC 473.

^[32] (1995) 123 FLR 352.

^[33] (1986) 70 ALR 793.

^[34] Harding v Bourke [2000] NSWCA 60.

^[35] Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230.

^[36] [1998] HCA 27.

^[37] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46.

^[38] [1948] 1 KB 223 at 234.

^[39] Kruger v The Commonwealth (1997) 190 CLR 1 at 36.

^[40] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36.

^[41] Shrimpton v The Commonwealth (1945) 69 CLR 613 at 620; Parramatta City Council v Pestell (1972) 128 CLR 305 at 327; Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd (1977) 139 CLR 449 at 466; Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 at 420; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41-42.

^[42] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 649 [124], 650 [126]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 100-101 [40]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 645 [123], quoting Abebe v The Commonwealth (1999) 197 CLR 510 at 554 [116].

^[43] Cf Sales, “Rationality, proportionality and the development of the law”, (2013) 129 Law Quarterly Review 223 at 234.

^[44] R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 150 [34].

^[45] Sharp v Wakefield [1891] AC 173 at 179, cited in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 431 and in Shrimpton v The Commonwealth (1945) 69 CLR 613 at 620. See generally R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189; Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1 at 17-18; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 529 [62].

^[46] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290.

^[47] (2010) 240 CLR 611.

^[48] (2010) 240 CLR 611 at 624 [39].

^[49] Minister of Immigration and Citizenship v Li [2013] HCA 18; French CJ at [22].

^[50] A statutory provision that provides the means for remedying unlawful conduct or the failure to perform a duty by the Executive.

^[51] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 91 [17].

^[52] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611 [40].

^[53] (1936) 55 CLR 499 at 505.

^[54] R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242.

^[55] [1898] 2 QB 91.

^[56] See Allars, Introduction to Australian Administrative Law, (1990) at 186-187 [5.51].

^[57] Kruse v Johnson [1898] 2 QB 91 at 99-100.

^[58] [1977] AC 1014 at 1064.

^[59] [1948] 1 KB 223 at 228.

^[60] And see Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(2).

^[61] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229.

^[62] (1986) 162 CLR 24 at 41, Gibbs CJ and Dawson J agreeing at 30, 71.

^[63] (1990) 96 ALR 153 at 167-168, referring to Allars, Introduction to Australian Administrative Law, (1990) at 188-191 [5.54]-[5.57].

^[64] Melbourne Journal of International Law [Vol 5, 2004].

^[65] See generally Justice Michael Kirby, ‘The Impact of International Human Rights Norms: “A Law Undergoing Evolution”’ (1995) 25 University of Western Australia Law Review 30.

^[66] John Bell, Policy Arguments in Judicial Decisions (1983).

^[67] John Locke, Second Treatise on Government: An Essay Concerning the True Origin, Extent and End of Civil Government, and a Letter Concerning Toleration (first published 1690, 1976 ed) 100.

^[68] Kirby, ‘The Role of the Judge’, above n 8, 526.

^[69] Teoh (1995) 183 CLR 273, 286–8, 290–2 (Mason CJ and Deane J), 298–302 (Toohey J).

^[70] Ibid 291–2 (Mason CJ and Deane J), 302 (Toohey J).

^[71] At (6)-(7).

^[72] (1997) 192 CLR 159, 212–13.

^[73] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).

^[74] Swaffield (1997) 192 CLR 159, 212–14.

^[75] At (7)-(8).

^[76] See: R v O’Neill [1996] 2 Qd R 326 (‘O’Neill’); Ousley v The Queen (1997) 192 CLR 69, 141–4 (Kirby J) (‘Ousley’); Allesch v Maunz (2000) 203 CLR 172, 184–5 (‘Allesch’); R v Stringer (2000) 116 A Crim R 198, 214–18 (Adams J) (‘Stringer’); Court of Appeal Registrar v Craven (No 2) (1995) 120 FLR 464, 468 (Kirby J).

^[77] [1996] 2 Qd R 326.

^[78] Ibid 410–15.

^[79] Ibid 415.

^[80] At (8).

^[81] Sam Garkawe, ‘The Criminal Justice System: International Influences’ (1997) 70 Reform 5, 7.

^[82] See: O’Neill [1996] 2 Qd R 326; McInnis v The Queen (1979) 143 CLR 575, 583–93 (Murphy J) (‘McInnis’).

^[83] See: Swaffield (1998) 192 CLR 159, 213–14 (Kirby J, dissenting); O’Neill [1996] 2 Qd R 326, 410–13.

^[84] See: Stringer (2000) 116 A Crim R 198, 215–22; R v Haughbro (1997) 135 ACTR 15, 25–6 (‘Haughbro’).

^[85] See: R v Hollingshed (1993) 112 FLR 109 (‘Hollingshed’); Walsh v Department of Social Security (1996) 67 SASR 143 (‘Walsh’); Bates v Police (1997) 70 SASR 66; Sillery v The Queen (1981) 180 CLR 353 (‘Sillery’).

^[86] See: Wickham [1998] ATPR 41-664, 41-401, 41-402; National Workforce Pty Ltd v Australian Manufacturing Workers’ Union [1998] 3 VR 265.

^[87] See: Wu v A-G (Cth) (1997) 79 FCR 303 (‘Wu’).

^[88] See: Court of Appeal Registrar v Craven (No 2) (1995) 120 FLR 464, 477.

^[89] See: B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, 737–51; De L v Director-General, New South Wales Department of Community Services (1996) 187 CLR 640 (‘De L’); AMS v AIF (1999) 199 CLR 160, 217–18, 238–40 (‘AMS’); Allesch (2000) 203 CLR 172, 184–5; CDJ v VAJ (1998) 197 CLR 172; ZP v PS (1994) 181 CLR 639, 655–60; In the marriage of Barrios and Sanchez (1989) 96 FLR 336, 343–4.

^[90] See: Wickham [1998] ATPR 41-664, 41-401, 41-402.

^[91] See: CDJ v VAJ (1998) 197 CLR 172, 194–5; De L (1996) 187 CLR 640, 660–2, 681–5.

^[92] See: Schoenmakers v DPP (WA) (1991) 30 FCR 70, 75–6 (‘Schoenmakers’); AMS (1999) 199 CLR 160, 217–18, 238–40.

^[93] See: Allesch (2000) 203 CLR 172, 184–5.

^[94] See: Walsh (1996) 67 SASR 143; Bates v Police (1997) 70 SASR 66.

^[95] See: National Workforce Pty Ltd v Australian Manufacturing Workers’ Union [1998] 3 VR 265, 275–6.

^[96] See: Australian Securities and Investment Commission v Ivey (1998) 29 ACSR 391 (‘Ivey’).

^[97] Ousley (1997) 192 CLR 69, 141–4. v

^[98] Schoenmakers (1991) 30 FCR 70, 75–6; Wu (1997) 79 FCR 303; Serratore (1995) 38 NSWLR 137, 143.

^[99] O’Shea v DPP (SA) (1998) 71 SASR 109, 132–7.

^[100] McInnis (1979) 143 CLR 583, 585–8 (Murphy J).

^[101] Stringer (2000) 116 A Crim R 198, 222–9; A-G (NSW) v X (2000) 49 NSWLR 653, 688–95.

^[102] Walsh (1996) 67 SASR 143; Bates v Police (1997) 70 SASR 66; R v Hollingshed (1993) 112 FLR 109; Sillery (1981) 180 CLR 353.

^[103] McKellar v Smith [1982] 2 NSWLR 950, 962; O’Neill [1996] 2 Qd R 326. Cases dealing with s 138 of the  (Evidence Act 1995 Cth) include: R v Truong (1996) 86 A Crim R 188 (‘Truong’); Haughbro (1997) 135 ACTR 15, 22–8; R v Malloy (Unreported, Supreme Court of the Australian Capital Territory, Crispin J, 9 November 1999).

^[104] Wickham [1998] ATPR 41-664, 41-401, 41-402.

^[105] National Workforce Pty Ltd v Australian Manufacturing Workers’ Union [1998] 3 VR 265, 275–6.

^[106] See: Martin v Office of the Public Advocate (Unreported, Supreme Court of Western Australia, McKechnie J, 26 March 1999).

^[107] See: Registrar, Court of Appeal v Craven [No 2] (1995) 120 FLR 464.

^[108] See: Bou-Simon v A-G (Cth) (Unreported, Federal Court of Australia, Emmett J, 22 June 1998).

^[109] See: B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676.

^[110] See: De L (1996) 187 CLR 640.

^[111] See: Ivey (1998) 29 ACSR 391.

^[112] AMS (1999) 199 CLR 160 [AMS].

^[113] This is not to assert that no other judges have actively used international legal standards in the exercise of judicial discretion. Indeed, Murphy J (formerly of the High Court of Australia) did so on several occasions: see: McInnis (1979) 143 CLR 575, 593; Sillery (1980) 180 CLR 353, 362.

^[114] At (9)-(11).

^[115] AMS (1999) 199 CLR 160, 218.

^[116] Ibid. Other relevant decisions of Kirby J include Ousley (1997) 192 CLR 69, 142; Serratore [1995] 38 NSWLR 137, 142–3, 148; Allesch (2000) 203 CLR 172, 184–5; Swaffield (1998) 192 CLR 159, 213; De L (1996) 187 CLR 640.

^[117] At (19)-(20).

^[118] Ibid.

^[119] Ibid 75.

^[120] At (20)-(21).

^[121] Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 108 ALR 577; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; Wotton v Queensland (2012) 246 CLR 1; Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556; Lynch v Brisbane City Council (1961) 104 CLR 353; Coleman v Power (2004) 220 CLR 1; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559; Betfair Pty Ltd v Western Australia (2008) 234 CLR 418.

^[122] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556; Nationwide News P/L v Wills (1992) 177 CLR 1; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Wotton v Queensland (2012) 246 CLR 1; Levy v State of Victoria (1997) 146 ALR 248.

^[123] Cole v Whitfield (1988) 78 ALR 42; Palmer v Western Australia (2021) 272 CLR 505; Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 108 ALR 577; Wotton v Queensland (2012) 246 CLR 1.

^[124] In which judicial power is exercised in accordance with the features necessitated by Chapter III of the Constitution.

^[125] APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; Kable v DPP [1996] HCA 24; State of NSW v Kable [2013] HCA 26; SDCV v Director-General of Security [2022] HCA 32.

^[126] Including through sections 7, 24, 64, 92 and 128 as well as Chapter III of the Constitution.

^[127] Lange v Australian Broadcasting Corporation (1997) 145 ALR 96; per curiam (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) at (112)-(113).

^[128] Comprising Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.

^[129] At (112)-(113).

^[130] [2012] HCA 2.

^[131] At [32].

^[132] For instance, by making a complaint to an administrative body or by lodging documents to commence a proceeding in a court of law.

^[133] For instance, the outcome sought through the complaint made to the administrative body or the commencement of the proceeding in a court of law.

^[134] O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 [O’Hara], Lord Hope of Craighead at (298)[A]-[B], George v Rockett (1990) 170 CLR 104 [George] at [8], Quinlan v ERM Power Ltd & Ors [2021] QSC 35, Bowskill J at [24].

^[135] At [15] and [18].

^[136] Lord Hope of Craighead at (302)[E]-[H].

^[137] Re Bolton; Ex parte Beane (1987) 162 CLR 514 at (523): “Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation”. The passage was quoted with approval in Coco v The Queen (1994) 179 CLR 427 at (437) (Mason CJ, Brennan, Gaudron and McHugh JJ).

^[138] (1994) 179 CLR 427.

^[139] At (437).

^[140] Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at 329 [21] per Gleeson CJ, citing R v Home Secretary; Ex parte Pierson [1998] AC 539 at 587 and 589 per Lord Steyn.

^[141] (2011) 242 CLR 573.

^[142] Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3, French CJ at [42].

^[143] [2021] VSCA 358.

^[144] Comprising Kyrou, McLeish and Niall JJA.

^[145] Quoting Castles v Secretary of the Department of Justice (2010) 28 VR 141, Bare v IBAC (2015) 326 ALR 198 and HJ v IBAC [2021] VSCA 200.

^[146] Of the CHRR. The section merely enforces the principles of legality and proportionality.

^[147] (1985) 9 FCR 316 at (322).

^[148] Briginshaw v Briginshaw (1938) 60 CLR 336.

^[149] At (361).

^[150] At (363)-(364).

^[151] (1953) 88 CLR 100 at (120).

^[152] (1985) 4 NSWLR 139.

^[153] With whom Samuel JA agreed.

^[154] [1931] 1 KB 539 at 544.

^[155] [1932] 1 KB 40 at 110, 111.

^[156] (1935) 52 WN (NSW) 8 at 9.

^[157] At (155) [C]-[D].

^[158] (1980) 144 CLR 1 at 10.

^[159] (1940) 40 SR (NSW) 126 at 138.

^[160] At (156) [C]-[D].

^[161] At (156) [D]-[F].

^[162] [1998] HCA 9.

^[163] (1970) 123 CLR 361.

^[164] At (375).

^[165] R v Kent Police Authority, Ex parte Godden [1971] 2 QB 662; Isaachsen v Medical Board [1991] 4 WAR 303.

^[166] (1990) 170 CLR 596.

^[167] At (598).

^[168] (1958) 98 CLR 383 at (395-6).

^[169] (1976) 136 CLR 106 at (109-10).

^[170] (1977) 137 CLR 487 at (496), (500).

^[171] (1987) 162 CLR 447 at (456).

^[172] (1990) 64 ALJR 357 at (371).

^[173]  At (396).

^[174] Baba v Parole Board of New South Wales (1986) S NSWLR 338 at 344-5, 347, 349.

^[175] (1970) 123 CLR 361 at (376).

^[176] (1902) 2 IR 349.

^[177] That is, null and void.

^[178] That is, the decision may have some consequences, or it may be capable of being redeemed by steps taken in the future, depending upon the statutory context.

^[179] Craig v State of South Australia (1995) 131 ALR 595; Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117.