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Volume 05 | 2017 the Age of Statutes Judicial College of Victoria Journal Volume 05 | 2017

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Volume 05 | 2017 the Age of Statutes Judicial College of Victoria Journal Volume 05 | 2017 Judicial College of Victoria Journal Volume 05 | 2017 The Age of Statutes Judicial College of Victoria Journal Volume 05 | 2017 Citation: This journal can be cited as (2017) 5 JCVJ. Guest Editor: The Hon Chief Justice Marilyn Warren AC ISSN: ISSN 2203-675X Published in Melbourne by the Judicial College of Victoria. About the Judicial College of Victoria Journal The Judicial College of Victoria Journal provides practitioners and the wider legal community with a glimpse into materials previously prepared for the Judicial College of Victoria as part of its ongoing role of providing judicial education. Papers published in this journal address issues that include substantive law, judicial skills and the interface between judges and society. This journal highlights common themes in modern judicial education, including the importance of peer learning, judicial independence and interdisciplinary approaches. Submissions and Contributions The Judicial College of Victoria Journal welcomes contributions which are aligned to the journal’s purpose of addressing current legal issues and the contemporary role of judicial education. Manuscripts should be sent electronically to the Judicial College of Victoria in Word format. The Judicial College of Victoria Journal uses the Australian Guide to Legal Citation: http://mulr.law.unimelb.edu.au/go/AGLC3. Disclaimer The views expressed in this journal are those of the authors and do not necessarily reflect the views of the Judicial College of Victoria and the Editor. While all care has been taken to ensure information is accurate, no liability is assumed by the Judicial College of Victoria and the Editor for any errors or omissions, or any consquences arising from the use of information contained in this journal. Contact: Correspondence can be sent to: Judicial College of Victoria T: 03 9032 0555 Level 7, 223 William Street F: 03 9032 0500 Melbourne VIC 3000 E: [email protected] © 2017 Judicial College of Victoria, Level 7, 223 William Street, Melbourne VIC 3000 Copyright of the material appearing in this journal remains vested in the authors unless otherwise indicated. Judicial College of Victoria Journal Volume 05 | 2017 1 Judicial College of Victoria Journal Volume 5 | 2017 2 Editorial The Hon Chief Justice Marilyn Warren AC 4 The Principle of Legality The Hon Murray Gleeson AC QC 15 The Statutory Implication of Reasonableness and the Scope of Wednesbury Unreasonableness The Hon Justice Chris Maxwell AC 25 Judicial Review and Jurisdictional Fact The Hon Justice Timothy Ginnane 45 Principles of Statutory Interpretation Eamonn Moran PSM QC 57 Jurisdictional Error since Craig Kristen Walker QC Judicial College of Victoria Journal Volume 05 | 2017 2 Editorial It has become routine to remark that we live in an age of statutes. Each year, the Victorian Parliament alone passes over 70 statutes. One must go back to 2002 to find Parliament passing fewer than 55 separate Acts. Through this process, vast areas of the common law have been codified and long-standing areas of statute are subject to frequent amendment. For this reason, the Judicial College of Victoria has, in partnership with Melbourne Law School, convened several seminars on statutory interpretation and judicial review in recent years. This edition of the JCV Journal draws from and collects together papers from those seminars over the past two years. In accordance with conventional Constitutional principles, Parliament creates the laws, the Executive administers the laws and the Courts resolve disputes in accordance with the law. Giving meaning to the laws is therefore a fundamental concern of the Courts. As former Chief Justice Murray Gleeson AC and former Chief Parliamentary Counsel Eamonn Moran PSM QC explain in their papers, courts operate on well-established assumptions about how they carry out this task of interpretation. These assumptions are known to Courts, to Parliaments and to Parliamentary drafters and provide a common language and frame of reference which aids the process of conveying meaning and promotes stability and certainty in the operation of laws. In the field of judicial review, a question of first importance is ‘What does the statute require?’ It is only once this question is answered that a court can assess, in any meaningful way, whether an administrative decision maker has complied with statute and acted in accordance with law. It is for that reason that questions of jurisdictional facts and jurisdictional error are so important to the principled development and operation of administrative law. The insightful papers by the Honourable Justice Timothy Ginnane and Ms Kristen Walker QC will be valuable aides for law students, practitioners and judges grappling with these complex topics. Finally, Justice Chris Maxwell AC looks at the principle of reasonableness in decision making and review of decisions. Courts are acutely conscious of the need to distinguish between process review and merits review, and to respect the area of decisional freedom appropriate for a first-instance decision maker. As Justice Maxwell explains, a proper appreciation of the limits of decisional freedom is essential both to review of administrative decisions as well as review of the exercise of judicial discretion. As we recently said in Minister v Certain Children [2016] VSCA 343, [W]e wish to make clear, in the interests of informed public discussion, that this Court (like the trial judge) is not concerned with, and expresses no view about, the merits of the decision. … That is a matter of policy for Government, which is accountable to the electorate for its decisions. Quite properly, the courts play no part in such decisions. Judicial College of Victoria Journal Volume 05 | 2017 3 The role of the Court in a case such as this is quite different. The function of judicial review is to ensure that Government operates according to law, that powers conferred on Ministers and public officials by statute are exercised within the legal limits fixed by Parliament. … It is one of the foundations of our democratic society that the courts perform this supervisory role, and do so independently of Government and immune from political pressure. This is one of the guarantees of the rule of law. Statutory interpretation and judicial review are key components of maintaining the rule of law in Australia, and so all those with an interest in that important principle will benefit from this edition of the JCV Journal. Judicial College of Victoria Journal Volume 05 | 2017 4 The Principle of Legality* The Hon Murray Gleeson AC QC† Canons of construction guide courts in the exposition of the meaning of a legal text. In the case of a statute, the text is the formal expression by Parliament of its exercise of legislative power. In Singh v Commonwealth1 I set out my views on the significance of commonly used concepts such as text and context, purpose, and meaning when applied in this area, and I will not repeat what I said there. The interpretation of the text, where that is necessary for the resolution of a matter, is an exercise by the court of its judicial power. The legitimacy of the exercise depends upon the court’s exposition of meaning being based upon, and faithful to, the legislative text and established statutory and common law rules and principles of interpretation. Some of those rules and principles are relatively mundane. They have much in common with the boiler-plate provisions that may appear at the beginning or end of any complex legal instrument. Some are designed to facilitate brevity, or to provide reasonable solutions to difficulties that might have escaped the attention of a drafter. Others, however, serve a purpose of a different order. In the 1995 edition of Statutory Interpretation (‘Cross on Statutory Interpretation’)2 the author, in a chapter headed ‘Presumptions’, referred to some presumptions which operate at a higher level as expressions of fundamental principles governing both civil liberties and the relations between Parliament, the executive and the courts. They operate here as constitutional principles which are not easily displaced by a statutory text.3 The corollary, of course, is that these presumptions can be displaced by a statutory text. That follows from the nature of the exercise, which is one of interpretation, not judicial review of legislative action. It also follows that, subject to any relevant limits on its legislative power, Parliament can amend its legislation to overcome the effect of a particular interpretation. There may be practical political constraints on the exercise of this capacity, but the legal possibility is always there, and reinforces the legitimacy of what the courts are doing. The Constitution is the ultimate source of the power exercised by both branches of government. A standard judicial formula for stating a presumption which may come into play in a decision about the meaning of a statute is to say of a certain outcome words to the effect that it will only be achieved by the use of language which is unmistakably plain. For example, a recent United States work on legal interpretation,4 one of whose authors was a Justice of the Supreme Court * This article is based on a presentation delivered at the ‘Administrative Law in an Age of Statutes’ program held by the Judicial College of Victoria and Melbourne Law School in May 2015. † Former Chief Justice of the High Court of Australia. 1 (2004) 222 CLR 322, 331–7 [8]-[20]. 2 Rupert Cross, Statutory Interpretation (Butterworths, 3rd ed, 1995).
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