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Western Australian Student Law Review |
MARISSA FORBES[*]
JUDICIAL REVIEW—ADMINISTRATIVE DECISION-MAKING—EXECUTIVE POWER—OFFICER OF THE COMMONWEALTH—OUTSOURCING—INDEPENDENT CONTRACTORS
ABSTRACT
Whether an independent contractor may be considered an ‘officer of the Commonwealth’ per s 75(v) of the Australian Constitution is an issue the High Court appears reluctant to resolve. This hesitancy was exhibited in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 (‘M61’), where the High Court avoided fraught questions of executive power and administrative decision-making. After discussing the context and implications of M61, this article explores what the High Court should consider when the issue of outsourcing re-emerges. Given the intricacies of modern government and the Federal Government’s increased reliance on outsourcing, it is plausible that the High Court would embrace independent contractors within the scope of s 75(v). However, it appears this legal issue will only be resolved if no other legal principle can be applied to decide the matter at hand.
I INTRODUCTION
Australia’s first Prime Minister, Sir Edmund Barton, believed s 75(v) of the Australian Constitution would serve an accountability function by ensuring judicial review would protect against arbitrary exaction of power.[1] Section 75(v) entrenches a minimum standard of judicial review,[2] stipulating that the High Court of Australia has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.[3] Defining and characterising the term an ‘officer of the Commonwealth’ has not been subjected to substantive consideration by the High Court. In particular, the High Court has exhibited reluctance in deciding whether an independent contractor may be considered an officer of the Commonwealth for the purposes of s 75(v).[4] This hesitancy was exhibited in Plaintiff M61/2010E v Commonwealth (‘M61’),[5] where the High Court left the issue open ‘for another day’.[6] M61 sits within a corpus of jurisprudence which reveals the High Court’s general disinclination to grapple with issues of executive authority, particularly in the context of the privatisation of administrative decision‑making. The decisions in the 10 years since M61 show that the High Court is no closer to ruling on this issue.[7] This delay may reflect a desire to wait for the issue of outsourcing to arise unaccompanied by other constitutional issues requiring assessment. However, the increased reliance by the Australian Government on both the outsourcing and privatisation of administrative decision-making calls for greater clarity on the meaning of an officer of the Commonwealth.
II THE BACKDROP TO M61
The High Court first adverted to the minimum provision of judicial review in Plaintiff S157/2002 v Commonwealth (‘S157/2002’),[8] observing that s 75(v) is a means of ensuring officers of the Commonwealth ‘neither exceed nor reject any jurisdiction to which the law confers on them’.[9] This was confirmed in Bodruddaza v Minister for Immigration and Multicultural Affairs (‘Bodruddaza’),[10] where attempts to implement absolute time limits for judicial review applications were found to be constitutionally unsound.[11] Bodruddaza indicated that s 75(v), as a minimum constitutional provision, offers ‘practical, and not merely theoretical, access to the High Court’s s 75(v) jurisdiction’.[12] Resultantly, attempts to shield administrative decisions from judicial review will eventually run aground on s 75(v).
A ‘Officers of the Commonwealth’
The term ‘officer of the Commonwealth’ has generally been interpreted broadly.[13] The prevailing approach of Isaacs J in R v Murray; Ex parte Commonwealth[14] suggests there must be some connection between the Commonwealth and the person against whom an order under s 75(v) is sought.[15] Those with no link, or an insufficient link, are not considered to be officers of the Commonwealth.[16] This broad definition is all the more relevant at a time when the executive increasingly relies upon the outsourcing of administrative decision-making. However, the reach of s 75(v) arguably falters where a decision-maker is not clearly an officer of the Commonwealth but rather is appointed by the Commonwealth to undertake administrative functions. Several decisions from the 1980s and 1990s suggest employees of ‘arms-length’ statutory corporations (such as the Australian Broadcasting Corporation and the Aboriginal and Torres Strait Islander Commission) generally lie beyond the reach of s 75(v).[17] However, increased outsourcing and corporatisation of administrative decision-making reveals the age of Isaacs J’s characterisation of what constitutes an officer of the Commonwealth.[18] This characterisation, formulated in in the early 1900s, is now incompatible with the operation of modern government.
B Political and Legal Background to M61
An increase in the number of unauthorised boat arrivals by asylum seekers in the late 1990s resulted in a rise in legal issues involving administrative decision-making.[19] The Howard Government’s response to the ‘Tampa Crisis’ in 2001 and subsequent ‘Pacific Solution’, an off‑shore processing regime, attempted to deprive asylum seekers of access to judicial review by excising certain off‑shore territories from the definition of the migration zone.[20]
The decision in Kirk v Industrial Court (NSW)[21] acknowledged the existence of an integrated national judicial structure. The High Court held that the right to appeal from state Supreme Courts to the High Court supported a constitutionally entrenched place for state Supreme Courts within the national structure.[22] It was considered that any lesser level of protection of state Supreme Courts could create ‘islands of power’ immune from supervision or restraint.[23] The decision in Kirk invites the question of whether other ‘islands of power’ require input from the High Court. Professor Matthew Groves suggests, in his article ‘Outsourcing and s 75(v) of the Constitution’, that if the apparent disparity between the level of constitutional protection afforded to state and federal courts is thought to be ‘too great to tolerate,’ then the same considerations should apply to the use of independent contractors for administrative processes.[24] The decision in Kirk indicates that the High Court will not countenance legislation that seeks to shield non-judicial decisions from its supervisory jurisdiction. Yet, the High Court has not seized any opportunity to expand its supervisory jurisdiction to include decisions made by independent contractors of the Commonwealth.
III M61: AN OVERVIEW
A Relevant facts
M61 concerned a complex and fragmented administrative arrangement in determining the plaintiffs’ eligibility for protection visas. The plaintiffs were Sri Lankan nationals who had been detained on Christmas Island pursuant to s 189(3) of the Migration Act 1958 (Cth) (‘Migration Act’). The plaintiffs’ applications for protection visas were processed in an ‘unusual two-stage fashion’,[25] to determine whether Australia owed them protection obligations.[26] An officer of the Department of Immigration and Citizenship conducted a Refugee Status Assessment (‘RSA’) which concluded that the plaintiffs were not persons to whom Australia owed protection obligations.[27] Following the Department’s decision, the plaintiffs sought an ‘Independent Merits Review’ (‘IMR’). The IMR was conducted by a private company, Wizard People Pty Ltd (‘Wizard’).[28] The IMR produced the same unfavourable outcome as the RSA.[29]
Assessors and reviewers for the RSA and IMR were not authorised to grant visas; rather, they made recommendations to the Minister for Immigration and Citizenship.[30] The Minister could then exercise a non-compellable and non-delegable discretion under s 46A(2) of the Migration Act to allow for an application for a protection visa.[31] In M61, the plaintiffs instituted proceedings in the original jurisdiction of the High Court against the Commonwealth, the Minister, the assessor and reviewer.[32]
B Reasoning
The High Court dealt with various issues including procedural fairness, statutory versus non‑statutory power, and the lawfulness of detention.[33] The Commonwealth argued that the individuals conducting RSA and IMR were not bound by requirements of procedural fairness because they were conducted under a ‘non-statutory power to inquire’.[34] The High Court rejected this view and unanimously found the requirements of procedural fairness applied, and had been breached in each of the plaintiff’s case.
After making this finding, the High Court thought it unnecessary to consider whether the Wizard employee was an officer of the Commonwealth under s 75(v).[35] The High Court had already established undoubted jurisdiction for the matter under s 75(v),[36] given the Commonwealth, Minister, and Departmental Officer were parties to the action. As such, the High Court did not need to find jurisdiction under s 75(v) (or elsewhere)[37] pertaining to the Wizard employee. Hence, the High Court avoided the question of whether decisions made by private, non-governmental agents are reviewable under s 75(v).[38]
IV IMPLICATIONS AND DEVELOPMENTS SINCE M61
A Political Implications and Developments
When the decision in M61 was handed down in 2010, it was considered the ‘latest in a series of matters in which the Australian courts have faced down attempts to restrict judicial oversight of immigration decision-making’.[39] Following the decision, RSA and IMR processes were replaced[40] with a new scheme that promised greater procedural fairness and access to review.[41] Consequently, offshore applicants were granted further rights to procedural fairness and access to judicial review as a result of M61—an outcome not anticipated by the Government.[42] The decision in M61 was a significant step forward for asylum seekers’ rights, and a significant step backwards in the Government’s case for offshore processing.
B Legal Implications and Developments
The corpus of jurisprudence since 2010 reveals minimal progress and the High Court’s continuing hesitancy to reconsider the scope the meaning of an officer of the Commonwealth per s 75(v). In 2012, Minister for Immigration and Citizenship v Maman[43] considered the review of a visa application by a senior social worker at Centrelink. Justices Flick, Foster, and Katzmann referred to M61 in finding that the inquiries of an independent body contracted to undertake administrative reviews were subject to requirements of procedural fairness.[44] This finding ‘raises the possibility that the independent expert is effectively an officer of the Commonwealth’.[45] This case appears to be the closest an Australian Court has come to acknowledging that an independent contractor may be considered an officer of the Commonwealth.
The Full Court of the Federal Court acknowledged in Minister for Immigration and Citizenship v SZRMA[46] that whether or not an independent contractor is an officer of the Commonwealth is an ‘open question’.[47] In that case, Mansfield, Gilmour and Foster JJ thought the title of an IMR was ‘somewhat misleading’,[48] as a ‘reviewer’, properly understood, is not independent of the Minister.[49] On this view, an independent contractor would not be considered an officer of the Commonwealth, as any jurisdictional error would be fielded back to the Minister. By contrast, in Broadbent,[50] the Federal Court applied Murray[51] in finding an officer of the Commonwealth is a person appointed, paid, responsible to, and removable by the Commonwealth.[52] Therefore, an independent contractor who fulfils those requirements could reasonably be considered an officer of the Commonwealth for the purposes of s 75(v).[53]
In M68,[54] the Court’s reluctance to deal with matters of executive authority re-emerged. The plaintiff in M68 was a Bangladeshi national who entered Australia's migration zone as an unauthorised maritime arrival and was detained at a Regional Processing Centre on Nauru. Chief Justice French, Kiefel, and Nettle JJ and Keane J found the plaintiff was being detained by the Nauruan government, rather than the Australian Commonwealth government.[55] Therefore, constitutional limitations on the Commonwealth government’s power to detain the transferees were not enlivened.[56] Justice Gageler, in the minority, held that Wilson Security (the sub‑contracted service provider for the Regional Processing Centre) staff had acted as ‘de facto agents of the Australian government’ in physically detaining the plaintiff.[57] His Honour did not consider whether a de facto agent is, or is not, an officer of the Commonwealth. Overall, the judgment tended to avoid fraught questions about executive power and the corporatisation of administrative decisions. In some ways, this was a missed opportunity to address the question of whether a private entity can be considered an officer of the Commonwealth under s 75(v).[58] However, perhaps understandably,[59] the High Court appears reluctant to decide on this question until a matter arises requiring direct consideration of the issue. This reluctance may be explained by the two avenues by which the High Court could decide on such matters; first, the possibility of extending the definition of an officer of the Commonwealth, which is at odds with government interference; and second, leaving the matter unresolved, which provides no clarity for future cases. With this in mind, it is clear to see the challenges faced by the High Court in deciding cases involving the exercise of executive power.
In 2018, Thawley J of the Federal Court heard the matter of Tanioria,[60] where the applicant sought damages for false imprisonment from the Commonwealth and the company contracted to operate the relevant detention centre, Serco Australia Pty Ltd (‘Serco’). Two issues were raised: first, whether a detention centre established under the Migration Act may be operated by Serco;[61] and second, whether the detention by Serco impermissibly involved the exercise of executive power by persons other than officers of the Commonwealth, contrary to s 75(v).[62] Justice Thawley found on the facts that it was an officer of the Commonwealth (and not Serco) who detained the Applicant.[63] His Honour stated ‘it is not necessary to decide [on the question of officers of the Commonwealth] ... given my earlier conclusions’,[64] and thus, side-stepped the need to define the term ‘officer of the Commonwealth’ under s 75(v)[65] and avoided implementing boundaries on the privatisation or outsourcing of administrative decision‑making.
Although Australian courts will not tolerate the Commonwealth shielding administrative processes from judicial review, these recent decisions reveal a tendency for the courts to identify an alternative legal basis upon which to decide a matter involving independent contractors.[66] The High Court’s continued avoidance of this issue is concerning given the increasing extent to which the Commonwealth outsources administrative processes to unelected officials.
C Datafin—Is there a place for the ‘public function’ test in Australia?
The English ‘public function’ test, derived from R v Panel on Takeovers and Mergers; Ex Parte Datafin p/c (‘Datafin’),[67] established that the extent of supervisory review should be assessed by reference to the nature of the power being exercised, not just the identity of the decision‑maker.[68] This enables the supervisory jurisdiction of courts to encompass private entities whose activities are sufficiently public to warrant the imposition of public law remedies.[69]
At the time of writing, Datafin has not gained much traction in Australia.[70] In NEAT,[71] the majority of the High Court did not address the question of whether public law remedies may be granted against private entities.[72] Justice Kirby, dissenting, acknowledged the usefulness of the Datafin principle in analysing whether particular decisions are of a sufficiently administrative nature as to warrant an amenability to judicial review.[73] Justice Kyrou suggested in CECA Institute Pty Ltd and Another v Australian Council for Private Education and Training[74] that the Datafin principle is ‘essential in enabling superior courts to continue to perform their vital role of protecting citizens from abuses in the exercise of powers of a governmental nature’.[75]
However, it is doubtful whether Datafin could be suitably integrated into our constitutional system. The Datafin test would skew the focus of s 75(v)[76] from the identity of the decision‑maker (officers of the Commonwealth) to the nature of the power being exercised. It may also present difficulties for the High Court in delineating public from private power.[77] In any case, deciding whether a private entity has a public function has no bearing unless it shows the body is also an officer of the Commonwealth.
V THE UNANSWERED QUESTION
Discussion thus far invites the question of what approach the High Court ought to take in future cases like M61. It is unlikely Isaacs J’s characterisation, in Murray,[78] of what constitutes an officer of the Commonwealth—being a person with a sufficient connection to the Commonwealth—will withstand the intricacies of modern government. Michael Taggart has criticised the High Court’s decision in NEAT,[79] saying the High Court has ‘failed to grapple with the changing nature of government’.[80] This ‘changing nature’ is evident in the increasing fusion between the legislature and the executive, the increase in private contracting, and public expectations that government processes be run expeditiously. Given the increasing interconnection between public and private spheres, the High Court will likely soon be called on to redefine the scope of s 75(v).[81]
Further, Professor Groves suggests the High Court should recognise that people can ‘wear two hats’.[82] It follows that a person conducting an IMR may work in a private sector but be performing a function on behalf of a government official. Such a connection should be sufficient to enliven the supervisory jurisdiction of the High Court. This approach would be fundamental in ensuring there are fewer ‘islands of power’[83] beyond the reach of the High Court. The High Court’s avoidance of reviewing matters of ‘public administration in private hands’[84] will not withstand the test of time and may lead to unfavourable outcomes, such as decision-makers acting ultra vires and limited access to judicial review. It would therefore be prudent for the High Court to consider this issue when the next opportunity arises to ensure the central tenets of the rule of law are upheld.
Consistent with Sir Edmund Barton’s view on the purpose of s 75(v),[85] accountability is paramount when determining whether an administrative decision should fall within the supervisory jurisdiction of the High Court. Principles of the rule of law and accountability dictate that the decisions of private contractors—who are granted independence in conducting reviews and making recommendations—should be directly subjected to judicial review. In the context of accountability, s 75(v)[86] justifies independent contractors being considered officers of the Commonwealth. Contrastingly, James Stellios posited that the line of accountability remains intact because ‘the ultimate decision rests with the Minister’.[87] This suggests it is not necessary to answer the question of whether an independent contractor should be considered an officer of the Commonwealth as, ultimately, the Minister responsible for outsourcing will be held accountable. The better view is that all parties who are involved in a jurisdictional error be held responsible for their actions (or inaction), with regard to a certain administrative decision.
VI CONCLUSION
Sir Edmund Barton remarked that the inclusion of s 75(v) in the Australian Constitution ‘cannot do harm, and may protect us from a great evil’.[88] Chief Justice Robert French has since commented that this was a ‘masterly understatement’,[89] given the significance placed on s 75(v) in safeguarding the High Court’s jurisdiction and securing a ‘basic element of the rule of law’.[90] As seen in M61,[91] the High Court will not tolerate attempts to shield administrative decisions from its jurisdiction. Despite over 10 years having passed since the decision in M61 was handed down, the question of whether an independent contractor may be considered an officer of the Commonwealth remains unanswered.
Recent jurisprudence on the matter indicates that courts have attempted to resolve a matter relating to the privatisation of administrative decision‑making on an alternative legal basis,[92] as opposed to responding to the issue of private contractors under s 75(v).[93] The increase of outsourcing governmental functions into private hands is a burgeoning area of law. It will soon be crucial for the High Court to accept and embrace modern forms of public administration, including greater interconnection with private entities. However, it remains to be seen when the day will come for the High Court to tackle these issues.
[*] Bachelor of Arts, Juris Doctor (University of Western Australia).
[1] Official Record of the Debates of the Australasian Federal Convention, Melbourne, 4 March 1898, 1876 (Edmund Barton) (‘Constitutional Debates’). See also Hazeldell Ltd v Commonwealth [1924] HCA 36; (1924) 34 CLR 442, 446 (Isaacs ACJ); Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651, 668–9 (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) (‘Bodruddaza’).
[2] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476, 513 [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) (‘S157/2002’).
[3] Australian Constitution s 75(v).
[4] Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 (‘M61’).
[5] Ibid.
[6] Ibid 345 [51] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[7] Minister for Immigration and Citizenship v Maman [2012] FCAFC 13; (2012) 200 FCR 30 (‘Maman’); Broadbent v Medical Board of Queensland [2011] FCA 980; (2011) 195 FCR 438 (‘Broadbent’); Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42 (‘M68’); Tanioria v Commonwealth of Australia [No 3] (2018) 266 FCR 610 (‘Tanioria’).
[9] Ibid 513–14 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[10] Bodruddaza (n 1).
[11] Ibid 672 (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ).
[12] James Forsaith, ‘Graham and its Implications’ (Edited Conference Paper, Australian Institute of Administrative Law National Conference, 27 September 2018) 25–6.
[13] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 140 (Hayne J). See, eg, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow [1910] HCA 33; (1910) 11 CLR 1; R v Murray; Ex parte Commonwealth [1916] HCA 58; (1916) 22 CLR 437 (Isaacs ACJ) (‘Murray’).
[14] Murray (n 13).
[15] James Stellios, ‘Exploring the Purposes of Section 75(v) of the Constitution’ [2011] UNSWLawJl 3; (2011) 34(1) University of New South Wales Law Journal 70, 83–4.
[16] As such, a governor of a state or a judge of an inferior state court purporting to exercise federal jurisdiction are considered officers of the Commonwealth: see, eg, R v Governor of the State of South Australia [1907] HCA 31; (1907) 4 CLR 1497; Murray (n 13). See further Duncan Kerr, ‘The Red Queen’s Law: Judicial Review and Offshore Processing after Plaintiff S157/2002’ [2007] UTSLawRw 4; [2007] 9 University of Technology Sydney Law Review 57, 64.
[17] Aboriginal Land Council (NSW) v Aboriginal and Torres Strait Island Commission (Federal Court of Australia, Hill J, 30 August 1995); Re Waterhouse v Australian Broadcasting Commission (Federal Court of Australia, Wilcox J, 21 October 1987) [10]; Broken Hill Pty Co Ltd v National Companies and Securities Commission (1986) 67 ALR 545, 551–2; Vietnam Veterans’ Affairs Association of Australia NSW Branch Inc v Cohen (1996) 70 FCR 419, 432; Post Office Agents Association Ltd v Australian Postal Commission (1989) 84 ALR 563, 575; Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 206; (1988) 82 ALR 499, 500. See also Matthew Groves, ‘Outsourcing and s 75(v) of the Constitution’ (2011) 22(1) Public Law Review 3, 4; Aaron Moss, ‘Tiptoeing through the Tripwires: Recent Developments in Jurisdictional Error’ (2016) 44(3) Federal Law Review 467, 488.
[18] Groves (n 17) 4. See also NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 (‘NEAT’), where the High Court considered the amenability of corporations to judicial review.
[19] See, eg, Ruddock v Vadarlis [2001] FCA 1329. See also Mary Crock and Daniel Ghezelbash, ‘Due Process and Rule of Law as Human Rights: The High Court and the “Offshore” Processing of Asylum Seekers’ (2011) 18(2) Australian Journal of Administrative Law 101, 104.
[20] Kerr (n 16) 65.
[21] Kirk v Industrial Court (NSW) (2010) 239 CLR 531 (‘Kirk’).
[22] Ibid 580–1 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[23] Ibid 581 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[24] Groves (n 17) 4.
[25] Ibid.
[26] M61 (n 4) 332–3 [1]–[2] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[27] Ibid 333 [3] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[28] Ibid 333 [3], 344–5 [50].
[29] Ibid.
[30] Ibid 343 [44], 344 [49] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[31] Ibid 333 [2] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[32] Ibid 333–4 [5] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[33] Ibid 336–9 [14]–[28] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[34] Ibid 336 [15], 347–8 [61] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[35] Australian Constitution (n 3).
[36] Ibid.
[37] In any case, the High Court further established jurisdiction for the matter under ss 75(i), (ii).
[38] NEAT (n 18). See generally General Newspapers Pty v Telstra Corporation [1993] FCA 473; (1993) 45 FCR 164; Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99. See also Crock and Ghezelbash (n 19) 106.
[39] Crock and Ghezelbash (n 19) 101.
[40] ‘Chapter 6—the Assessment Process’, Australian Parliament House (Web Page) <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/immigrationdetention/report/c06>.
[41] This scheme was the Protection Obligation Determination process, which applied to offshore entry persons. This was introduced on 1 March 2011 following the decision of M61: Department of Immigration and Citizenship, Submission No 32 to the Joint Select Committee, Australia’s Immigration Detention Network (September 2011) 48 <https://www.homeaffairs.gov.au/reports-and-pubs/files/diac-jscaidn-submission-sept11.pdf>. See further Hannah Stewart-Weeks, ‘Case Note: Out of Sight but Not Out of Mind: Plaintiff M61/2010E v Commonwealth’ [2011] SydLawRw 33; (2011) 33(4) Sydney Law Review 831, 840.
[42] Stewart-Weeks (n 41) 839.
[43] Maman (n 7).
[44] Ibid [37].
[45] Ibid [36].
[46] [2013] FCAFC 161; (2013) 219 FCR 287.
[47] Ibid [35].
[48] Ibid.
[49] Ibid.
[50] Broadbent (n 7) citing Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co Limited [No 1] [1914] HCA 15; (1914) 18 CLR 54, 62 (Griffith CJ), 66–7 (Barton J), 79–80 (Isaacs J), 82–3 (Gavan, Duffy and Rich JJ), Northern Territory of Australia v Lane (1995) 59 FCR 332, 351 (O’Loughlin J) and Trimbole v Dugan [1984] FCA 323; (1984) 3 FCR 324, 327–9 (Woodward J).
[51] Murray (n 13).
[52] Broadbent (n 7) [100]. See also ibid 452–3 (Isaacs J).
[53] Australian Constitution (n 3).
[54] M68 (n 7).
[55] Ibid [39].
[56] See ibid [47]–[52] (French CJ, Kiefel and Nettle JJ), [199] (Keane J).
[57] Ibid [173].
[58] Australian Constitution (n 3).
[59] See Janinia Boughey and Greg Weeks, ‘“Officers of the Commonwealth” in the Private Sector: Can the High Court Review Outsourced Exercises of Power’ [2013] UNSWLawJl 14; (2013) 36(1) University of New South Wales Law Journal 316, 316. Boughey and Weeks consider that the High Court’s reluctance is based on the need to wait until a matter arises requiring resolution of this issue, and as such, the Court’s hesitancy is warranted.
[60] Tanioria (n 7).
[61] Ibid [54]–[58].
[62] Ibid [59]–[60].
[63] Ibid [53].
[64] Ibid [62].
[65] Australian Constitution (n 3).
[66] Moss (n 17) 489; Boughey and Weeks (n 59) 318.
[67] R v Panel on Takeovers and Mergers; Ex Parte Datafin p/c [1986] EWCA Civ 8; [1987] QB 815 (‘Datafin’).
[68] Ibid 847 (Lloyd LJ).
[69] See generally Boughey and Weeks (n 59) 321.
[70] Although, some decisions suggest that Datafin has in fact been adopted: see, eg, Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd [No 2] (2004) 50 ACSR 554, 559–60 (Shaw J); McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759, 790–1 (Campbell J); D’Souza v Royal Australian and New Zealand College of Psychiatrists [2005] VSC 161; (2005) 12 VR 42, 55–9 (Ashley J); Whitehead v Griffith University [2002] QSC 153; [2003] 1 Qd R 220, 225 (Chesterman J). Boughey and Weeks suggest that, even if the test has been implemented in some form in Australia, ‘it simply will not make a difference’: (n 59) 321.
[71] NEAT (n 18).
[72] Ibid 297 [49] (McHugh, Hayne and Callinan JJ).
[73] Ibid 314 [115].
[74] CECA Institute Pty Ltd and Another v Australian Council for Private Education and Training [2010] VSC 552; (2010) 30 VR 555.
[75] Ibid 564 [42].
[76] Australian Constitution (n 3).
[77] See, eg, Paul Craig, ‘Contracting Out, the Human Rights Act and the Scope of Judicial Review’ (2002) 118 Law Quarterly Review 551.
[78] Murray (n 13).
[79] NEAT (n 18).
[80] Michael Taggart, ‘“Australian Exceptionalism” in Judicial Review’ [2008] FedLawRw 1; (2008) 36(1) Federal Law Review 1, 23.
[81] Australian Constitution (n 3).
[82] Groves (n 17) 7.
[83] Kirk (n 21) 581 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[84] Margaret Allars, ‘Public Administration in Private Hands’ (2005) 12(2) Australian Journal of Administrative Law 126, 126.
[85] Constitutional Debates (n 1) 1876 (Edmund Barton).
[86] Australian Constitution (n 3).
[87] Stellios (n 15) 85.
[88] Constitutional Debates (n 1) 1876 (Edmund Barton).
[89] Ibid.
[90] Robert French, ‘Constitutional Review of Executive Decisions: Australia’s US Legacy’ [2010] UWALawRw 2; (2010) 35(1) University of Western Australia Law Review 35, 38.
[91] M61 (n 4).
[92] See, eg, Maman (n 7); Broadbent (n 7); M68 (n 7); Tanioria (n 7).
[93] Australian Constitution (n 3).
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