But, in the Thirty Years Which Elapsed Between 1885 and 1915, Important Changes Took Place in the System of English Government

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THE JUDICIA Y AND ADMINISTRATIVE LAW IN AUSTRALIA * , Most of those who are now engaged in the practice of the law derived their first impressions of the principles of constitutional law and practice from Dicey's fascinating Introduction to the Study of the Law of the Constitution. The book was first published in 1885, and, as its author himself said in 1915, "the book dealt with the main features of our Constitution (i.e., the British Constitution) as it stood in 1884-5." 1 Dicey's Description of the Constitution of 1885.-But, in the thirty years which elapsed between 1885 and 1915, important changes took place in the system of English Government. Today, fifty years after Dicey's first edition, much of what he wrote has to be taken with limitations and qualifications. Let us refer for a moment to Dicey's thesis. According to his view, the three great features of the British Constitution were the sovereignty of Parliament, the rule of law, and the conventions of the Constitution . Parliamentary sove reignty is a conception which is greatly qualified in practice, and, even in point of law, Australians are quite used to the fact that Parliaments, both Federal and State, may be prevented by law from acting as they would wish. The conventions of the Constitution are in a continual state of flux : there have - been many old conventions altered and' new conventions established during the past fifty years, in England as well as in Australia. For the purpose of "administration" and "administrative law" however, the thesis of Dicey which matters is that of the "Rule of Law". The Rule of- Law in 1885.-Dicey said that the Pule of Law had three aspects. The first was that no man was punish- able or could lawfully be made to suffer in body or estate except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. This aspect of the rule was, he 'said, in contrast "with every system of Government based on the exercise of wide, arbitrary or discretionary powers of constraint".2 *An address delivered at Sydney on December 3rd, 1936, by the Honourable Mr. Justice Evatt, LL.D., of the High Court of Australia, before the New South Wales Regional Group of the Institute of Public Administration .-ED . 18th ed., Introduction, p. xvii . - 2 INTRODUCTION TO THE STUDY OF THE LAW OF CONSTITUTION, 8th ed ., p. 184.

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The second aspect of Dicey's Rule of Law was the doctrine of legal equality, that "every man, whatever be his rank or condition, is subject to the ordinary law of the realm, and amenable to the jurisdiction of the ordinary tribunals".3 For, according to Dicey, every official from the Prime Minister down to the local constable was under the same responsibility for every illegal act done as was every other citizen.4 Here, Dicey contrasts the position of France, which he regards as typical of the Continental State of the eighties. There, he says, State officials "are, or have been in their official capacity, to some extent exempt from the ordinary law of the land, protected from the jurisdiction of the ordinary tribunals, and subject to certain respects only to official law administered by official bodies".' Dicey's third aspect of the Rule of Law was that the rules of English constitutional law, such as the right of personal liberty and the right of public meeting, are the result of the decisions of the ordinary courts of law in particular cases, and not of and general declaration of rights contained in a written or rigid Constitution. Dicey's Supreme Optimism.-With a grand display of optimism, Dicey said that, under the Rule of Law, there was necessarily absent from our constitutional system "the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the Government" .' In particular, he said there was really nothing corresponding to the droit administratif or tribunaux administratifs of France. He deprecated and deplored the fact that, in "less fortunate" countries, disputes in which the Government or its servants were concerned were outside the jurisdiction of the ordinary civil courts, and had to be dealt with by special, and more or less official, bodies. Dicey said that such an idea was "utterly unknown to the law of England, and, indeed, is fundamentally inconsistent with our traditions and customs".7 The Droit Administratif.-Dicey emphasized the absence from the English language of any satisfactory equivalent for the expression "droit administratif",$ and that thephrase"adminis trative law" was "unknown to English Judges and counsel", and, indeed, was hardly "intelligible without further explana- tion". In France, on the other hand, droit administratif determined (i) the liabilities of State Officials, (ii) the rights and 3Ibid., p. 189. 6Ibid., p. 198. 4 Ibid . 7 Ibid. Ibid., pp. 190-191 . 3 Ibid., p. 326 .

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liabilities of private individuals in dealing with State officials, and (iii) the methods by which these respective liabilities, were enforced .9 The two leading principles of droit administratif in France were first, the idea that the Government and its servants possess special rights and privileges as against private individuals, and, second, the necessity for maintaining such a -"separation of powers" as would prevent the Government, the Legislature and the courts from interfering with each others provinces.i° Dicey's Description No Longer Accurate.-I have sufficiently expounded Dicey's description of the English governmental system in 1885. Obviously it is impossible to accept his descrip tion as -portraying . the constitutional system of England or Australia today, unless many important qualifications are made. Even when he wrote, Dicey, to some extent at least, left out of account the enormous increase in the output of modern legislation . Increasingly from year to year, such legislation deals with the complex affairs of the modern State, and, of necessity, enters into and affects many of the relationships, and so the life, of the ordinary citizen. In truth, Dicey's account of - the so-called "Rule of Law" only describes the legal and constitutional position as it exists under the common law unaffected by statute. In "the same way, Viscount Haldane said in 1915 in a Privy Council appeal from Australia, that the liberty - of the ordinary citizen to act as he pleases was a fundamental conception of English legal doctrine. Each assertion is quite accurate in .relation to the common law. Put we do wrong to accept them as descriptive of government today, when both liberty and property are almost completely subjected to the control of Legislatures . For instance, what I have called the first aspect of Dicey's "-`Rule of Law" requires the addendum that by many modern statutes, persons in authority are frequently granted, by Parliament itself,- arbitrary and discretionary powers affecting both the liberty and the property of the individual. Similarly, modern statutes make it impossible to assert with accuracy that there is complete equality between Government officials- and ordinary citizens in the courts of law. Let me give one illustration of how this works out in practice. Difficulties in Proceedings Against Officials.-It is - quite impossible for the practising lawyer of today to know'in advance every statutory provision giving special rights, concessions, privi leges or immunities to Governments, or Commissions, or. Boards,

9 Ibid., p 329. 10 Ibid., pp. 332-333 . -

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or authorities, or their officials. Therefore, when counsel is asked to advise in reference to some apparently arbitrary act of a public authority which has caused injury or trouble to his client, he has first to make sure that the right to bring an action (which would be clear where the defendant was an ordinary citizen), has not been cut down, qualified or limited in some drastic way. Then he has to consider whether, if an action can be brought at all, it can be brought in the ordinary courts, such as the Supreme Court or a District Court, or whether he has not been restricted by statute to having his complaint Further,dealt with by some special tribunal.,, if everything appears to suggest calm seas and a prosperous voyage, the first step is often, not to commence an action, as would be the case if the defendant were an ordinary citizen, but to give notice of action or other legal proceedings to the authority concerned. And there are quite a number of statutes which provide that, unless notice is given, the action, although it is brought to trial and the plaintiff's case is proved in all respects against the official or department, must be dismissed with costs. Of course, if a notice of action really meant that the parties concerned were compelled to conciliate their differences instead of litigating them, all would be well. But, as it is today, the requirement of notices of action against departments and ofcialp often serves only as a trap to clients and less careful legal advisers. For, later on, when the notice has expired, the action has really to begin, and the claim of the plaintiff has to be stated all over again as it was in the notice, so that little or nothing is gained by such a notice. Modern Administrative Law Inevitable.-It is not accurate, therefore, to assert that in Australia today there is anything like complete and universal subjection of all persons in the com munity to one general rule of law. Administrative Boards and officials are frequently given special rights, privileges and immunities which private citizens in the same relative position do not possess at all . Therefore, when Dicey declares that a leading characteristic of French administrative law is that the body of rules regulating the relations of officials and departments to private citizens "may 11 In Australia, the Commonwealth itself is made liable to actions for breach of contract or for tort and, broadly speaking, the rights of the parties are assimilated to those between subject and subject. In New South Wales, the position is the same. In Victoria, however, the Crown is not liable for tort . 12 Metropolitan Water Sewerage and Drainage Board v. O. K. Elliott (1934), 52 C.L.R. 134.

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differ considerably from the laws which govern the relations of one private citizen to another","3 he happens to be describing something which, to some extent at least, exists today in. this country. Of course, we have no administrative court'or tribunal which possesses a general jurisdiction over disputes between departments and officials on the one hand, and private citizens- on the other ; but in many cases disputes of such character are excluded from the jurisdiction of the ordinary courts. The particular statute which Parliament has passed is, therefore, the charter, of citizens' rights, and to its terms we must always look. We can safely say -that there is a large field of action in which the citizen has his rights defined, and sometimes gravely limited, by statute law, which sometimes operates to deprive citizens of a claim to have their rights determined by the ordinary courts. Occasionally, too, there are statutes which enable regulations to interfere seriously with ordinary civil rights. This tendency is often condemned. But is it not inevitable? It is impossible to have every dispute between administrator and citizen determined by a Judge, or to have Parliament _ in such continuous service that it will have to approve directly or expressly of every single regulation made under the .Act. Professor Robson's Work.-The result of this modern development of statute law is that there now, exists in England "a definite and extensive body of administrative law or executive justice".14 Professor Robson's book on the subject, published in 1923, was of first-rate importance. He condemned as "the narrowest type-, of legalism" the assumption that every tribunal which is not part of the regular court machinery "must necessarily and inevit- ably be arbitrary, incompetent, unsatisfactory, injurious to the freedom of the citizen and to the welfare of society".15 After all, to agree with this is not to make a very serious Admission, Professor Robson's main contribution to the study of administrative action in the modern state was to prove that administrative tribunals often render public service which could not possibly be performed either by the ordinary courts of law on the one hand, or-by Parliament on the other. Therefore, what he called "executive justice" is certainly "a feature of the governmental order- likely to grow extensively during the present century", because it is "inherently connected with modern social evolution", 1s , 13 DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTI- TUTION, 8th ed., p. 335. is ROBSON, JUSTICE AND ADMINISTRATIVE LAW (1923, p. xiv.- 15 Op. cit., p. xv. 'GOP . cit., p . xvi.

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Separation of Governmental Functions.Under existing economic and social conditions, decisions of an administrative character have to be made so frequently and speedily, and very often involve such questions of policy and expediency, that the ordinary courts of law could not be expected to deal with them. No rule can be laid down in advance which will determine whether a particular decision can be regarded as a judicial rather than an administrative decision. In truth, words like "executive", "administrative", "legislative", "judicial", are convenient coun- ters, but they may often be used interchangeably to describe the same concrete thing. This is another way of saying that the so-called separation of powers between Legislature, Executive, and Judiciary, does not describe an absolute separation of functions. Professor Maitland, one of our greatest constitutional authorities, said that "In England of all places in the world ...... the two (Executive and Judiciary) have for ages been inextricably blended" . If, however, we are prepared to regard administrative law as "jurisdiction of a judicial nature exercised by administrative agencies over the rights and property of citizens and corporate bodies"," we must agree with Robson that, during the past half-century "the centre of gravity in English Govern- ment has shifted from legislation to administration" ;" for delegation to administrative agencies of the powers both of legislation and of decision is "now one of the commonplaces of English political life" .' 9 While Parliament does on occasion exercise its ultimate power of censuring the Executive Government, little machinery exists for securing parliamentary review of executive regulations of a general character, still less of a particular executive decision. The modern tendency to set up commissions and authorities outside the control of the Executive Government itself also operates to preclude effective action by Parliament . Not only . does the party system help to prevent independent parliamentary review of executive action, but Parliament is often. in session for not more than half the year, so that many executive decisions and regulations cannot even be discussed until months after they have been put into effect. Separation of Powers in the United States.-The attitude of the Judiciary to this great and growing field of administrative law is gathered to some extent from its attitude towards the doctrine of the separation of powers. By that doctrine, Parlia- 17 ROBSON, JUSTICE AND ADMINISTRATIVE LAW (1928), p. 31 . 18 Ibid., p. 33 . 19 Ibid ., p. 34 .

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ment, Executive, and Judiciary are supposed to exercise pre- determined. functions, each authority keeping to its own domain exclusively, and the three together covering the whole field of lawful constitutional action. The doctrine has been of signifi- cance in the constitutional history of Australia, because the Commonwealth Constitution was to a large extent modelled on that of the United States where that doctrine applies, at any rate, to some extent. I say "to some extent", because, as has recently been said, That legislative power may not be delegated by Congress is well known : that such delegations have constantly been made and con- sistently upheld by the Supreme Court is equally well known. While paying lip-service- to the general rule, the Court has repeatedly recog- nized that governmental practicability makes its doctrinaire application impossible under modern conditions20 And it has been suggested that, in the United States, the delegation of legislative power by Congroess is usually not prohibited if Congress itself lays down "the primary purpose of the legislation", and goes on to set out "as fully as the circumstances permit" the limits of the power delegated.21 An account of two recent decisions, one of the United States Supreme Court and . one of the High Court of Australia, well illustrates the difference in treatment of the administrative problem involved in this part of the doctrine of the separation of powers. IV.I.R.A. Decision.-Under the National Industrial Recovery Act (sec. 9(e)), the President of the United States was authorized to prohibit the transport in intern-State or foreign commerce of petroleum produced or withdrawn from storage in excess of the amount permtt&d to be withdrawn by any State law or valid r,egulation or order prescribed therein.22 The Supreme Court held23 that sec. 9(e) was an unconstitutional delegation of power. It will be noticed that the subsection of the N.I.R.A. stated what the President could prohibit, but no rule of principle was laid down as to the reasons which should govern the President in making his decision whether to act or not to act.24 Separation of Powers Under Commonwealth Constitution. Let me refer now to a decision of the High Court of Australia

20 From an anonymous comment on The National Industrial' Recovery Act (1933), 47 Harv. L. Rev. 85 at pp. 93-94. 21 Op. cit., at p. 94. 22 See a Note on Delegation of Power by Congress (1935), 48 Harv. L . Rev. 798. 23 Panama Refining Co. v. Ryan (1935), 55 Sup . Ct. Rep. 241. 24 See the Note in 48 Harv. L. Rev. at p. 803.

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given in 1931.25 The Commonwealth Transport Workers' Act provided that the Governor-General could make regulations with respect to the employment of transport workers, and the licensing of persons engaged. as transport workers, and that such regulations, when made, should override other Federal Acts of Parliament. It was contended that the power conferred on the Governor-General to make regulations was in conflict with the constitutional separation of the Legislative from the Executive power of the Commonwealth. Here I may interpose to point out that, under our Com- monwealth form of Government, the established British sytem of an executive responsible to Parliament is a necessary postulate, and this principle is not in operation in the United Stater, Consti- tution, where the President, as chief executive, derives his authority from the people direct. None the less, in terms, the Constitution of the Commonwealth vests, or treats as vested, the legislative power in Parliament, the executive power in the King, and the judicial power in certain courts." The argument was that Parliament had surrendered to the Governor General (i.e., to the Executive Government) too great a portion of its own inherent legislative powers. But the High Court had previously held that, under the Australian Constitution, duties and functions resembling those of a strictly judicial nature may lawfully be vested in non-judicial tribunals.27 Mr. Justice Isaacs had said that, although the Commonwealth Constitution "broadly and to a certain extent, imperatively separated the three great branches of Government", there were "many functions which are either inconsistent with strict judicial action, ...... or are consistent with either strict judicial or executive action" ; and that "the very same process may thus, in some instances, be either judicial or executive" .2s Views of the High Court of Australia.-Further, both the High Court and the Privy Council had held that the Taxation Review Tribunal, although given an important jurisdiction to determine a taxpayer's liability to taxation, was not so peculiarly or inherently a judicial tribunal that it should be regarded as exercising "the judicial power of the Commonwealth", or that 25 Huddart Parker Ltd. v. The Commonwealth of Australia (1931), 44 C.L.R. 492. 26 The Commonwealth of Australia Constitution Act, 63 & 64 Viet., c. 12, sees. 1, 61 and 71. 27 Cf. Shell Co. of Australia v. Federal Commissioner of Taxation, [19311 A.C. 275. 28 Federal Commissioner of Taxation v. Munro (1926), 38 C .L .R . 153 at pp. 175, 176, 178.

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its members must be given the special tenure of office provided by the terms of the Constitution for Federal Courts exercising such "judicial power of the Commonwealth". This power "the judicial power of the Commonwealth"-cannot lawfully be conferred except upon the. High Court, other Federal Courts created by the Parliament, and the courts of a State ; and this- principle has precluded the Federal Parliament from conferring what is strictly judicial power upon Commonwealth authorities without elevating those authorities to -the position of a Federal Court comprising--Judges with the constitutional tenure of office. One result of this was - that the Interstate Commission set up by the Federal Parliament could not grant the judicial remedy of an injunction, although the Federal Parliament expressly tried Similarly,to give it such authority29 when the Federal Arbi- tration Court President was- appointed for seven years only instead of for life, he could not himself impose penalties upon persons committing a breach of an award, but had to allow that function to be exercised by Federal Courts stricto sensu Butand by State Courts.,, the High Court also --said that, under the Federal Constitution, it is impossible to contend that the functions which the Federal Courts exercise in fact are necessarily judicial functions, or the exercise of judicial power.,, For instance, the Federal Arbitration Court, although it is now strictly a court manned by judges with a life tenure, performs functions which are not judicial at all whenever it settles an industrial dispute : and in settling such disputes lies its main work. The High Court's view was, that the framers of the Constitution, when they spoke of "legislative power" being vested in the Federal Parliament, had in mind the kind of power which was exercised by the British Parliament itself, and so regarded Parliament as having power to deposit legislative power in, or delegate legislative power ., to, other authoritieV2 Accordingly, the legislative power of the Commonwealth Parlia- ment includes, as a necessary, part of its content, power to confer law-making powers upon authorities other than Parliament itself.

Commonwealth Parliament's Power Of 'Abdication'.-In the Transport Workers' Act litigation, the High Court reached the conclusion that sec. 3 of the Act did not, by delegating legislative

29 The State of New South Wales v. The Commonwealth (The Wheat Case) (1915), 20 C.L.R. 55. 3o Waterside Workers' Federation of Australia v. Alexander (1918), 25 C.L.R. 434. 31 Meakes (Victorian Stevedoring and General Contracting Co .) v. Dignan (1931), 46 C.L.R. 73. 32 Meakes-v. Dignan (1931), 46 C.L.R. 73.

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power to the Governor-General, conflict with the Constitution.33 But the Court did not hold that the Commonwealth Parliament could completely abdicate by giving complete, undefined and unrestricted power over a given subject matter to the Executive or some other body. You must remember that, under the Federal system of division of functions between Commonwealth and States, every valid Commonwealth law must be really and truly a law "with respect to" specified subject matters, e.g., "trade and commerce with other countries and among the States", "naturalization and aliens", and so forth. The question would be whether legislation by which Parliament purported to say that the whole law-making power on these great subjects might be exercised by a body outside Parliament, even by the Executive Government, could truly be described as legislation "with respect to" the subject in question, or only as legislation "with respect to" the legislative power over these subjects - a very different thing.34 We have reached the point that, under the Commonwealth Constitution, modelled so much on that of the United States, the "separation of powers" doctrine applies only to a limited extent. Its limited application may be said to be the result of the modern growth of administrative law, which has helped to destroy the old clichés and platitudes, and has illustrated the insuperable difficulty of finding a complete and satisfactory line of demarcation between the exercise of legislative, administrative and judicial functions. Courts Directed to Remould Legislation.-Let me give one further illustration showing that, to some degree, legislative functions are committed to the Judiciary. Parliaments; fearful that its Acts may be held invalid in one or more respects, have got into the habit of inserting special sections or sections in Acts governing the interpretation of Acts generally, to the effect that, if the particular Act should be deemed to some extent invalid, it should be interpreted by the courts to be a good and valid Act to the extent that it would, but for the invalid part, be deemed valid ." This is very like saying to the courts, "Possibly this Act is, like the egg, bad in parts. Please forget that and do your best to construct a new Act, omitting what

33 Huddart Parker Ltd. v. The Commonwealth of Australia (1931), 44 C.L.R. 492. 34 ,Meakes v. Dignan (1931), 46 C.L.R. 73 at pp. 120-122. 3s Commonwealth Acts Interpretation Act, sec. 15a; New South Wales Flour Acquisition Act, 1931, sec. 92.

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is bad".- This-practically amounts to asking the Judiciary to draft a new Act.36 No `Separation of Powers' in New South Wales.-Whep we turn to the government of a State like New South Wales there is no overriding constitutional enactment in force, except that dealing with the position of the I;egislative -Council or Upper House in the governmental framework.37 In particular, there is no binding legal requirement as to the separation between, or division of, legislative, administrative and judicial functions. Accordingly, those who seek to attack the legality of legislative- or executive action which derives from the statute law of New South Wales are not enabled to use the kind of argument which was employed, though unsuccessfully, in the Commonwealth Transport Workers' Act Case. . In New South Wales, therefore, -the control which the Judiciary exercises over "administrative law" is analogous to that exercised by the High Court of Justice in England. The court's functions are twofold. The Courts Protect the Legislature.-In the first place, the court issues certain writs and orders, designed to prevent administrative tribunals from exceeding their statutory jurisdiction, and sometimes issues writs and orders requiring that applications be heard or even that specified duties be carried out. In the second place, the court examines the validity of regulations made under the authority of Acts- of Parliament-, and, if they have been made without the authority of Parliament, they declare them ultra vires, so that the regulations cannot be availed of by executive officers as a legal -justification of any action they may have taken. In both these respects there is no opposition between the Legislature and the Judiciary. Indeed, the -courts merely protect the Legislature against excessive use of powers granted to an executive or administrative body by the Legislature. When the court restrains an administrative body from acting ultra vices, it is upholding the sovereignty of Parliament. ®f course, the. court may be in error as to the real intention of Parliament. But the basis upon which it acts is that it is enforcing the statute against the administrative authority .

33 The courts'- method of - interpreting such- directions to the court is shown by the following cases : Australian Railways Union v. Victorian Railways Commissioners (1930), 44 C.L.R. 319; Huddart Parker's Case (1931), 44 C.L.R. 492 ; Rex v. .Vizzard, ex parte Hill (1933), 50 C.L.R . 30 . 37 Attorney-General for New South Wales v. Trethowan, [1932] A.C . 526 .

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Duties of Administrative Bodies.-When you analyse the position, you will agree that the Judiciary issue writs and orders against administrative tribunals only when they have gone wrong, not so much in what they have decided as in how they have decided it. The Judiciary tries to see that the tribunals act in a spirit of fair play. I agree with the critics who suggest that this often gives an important right to the judges because of the vagueness in the definition of the supervising power. Two famous cases dealing with this question are Local Govern- rraeut Board v. Arlidge," in which an important judgment was delivered by Lord Haldane, who was extremely alive to the important and valuable functions performed by administrative and executive tribunals in deciding matters affecting the rights of individuals, and Board of Education v. Rice." The principle to be inferred from those two cases is that most administrative tribunals who have to decide disputep affecting rights are "under a duty to act in good faith and to listen fairly to both sides", for that duty lies on every one who decides anything. Yet these bodies are not bound to treat the making, even of a vital decision affecting individuals, as though it were a legal trial. The body might not even have power to administer an oath ; it was not necessarily bound to examine witnesses; usually it could obtain information in any way it thought fit, "always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view' 1 .40 All these rules are general, and necessarily so, because the statute being administered might be quite specific in laying down the methods of enquiry, and the statute had to be followed. Failure to observe these principles of hearing and deciding a case can be corrected by the ordinary courts by orders in the nature of certiorari or mandamus. Another remedy sometimes invoked against administrative tribunals is the remedy of prohibition, the object of which often resembles that of certiorari, viz., effectually to prevent the administrative tribunal from dealing with matters outside the jurisdiction committed to it by Parliament . One may add that, in modern times, administrative tribunals are placed in a stronger position than in years past, because, to take two examples of complaints made, the courts look for strict proof before holding that the administrative tribunal has been biased, or had its mind affected by matters extraneous to the statutory issue. ss [19151 A.C. 120. 4U [1911] A.C. 179 at p. 182. s9 [1911] A.C. 179.

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Device of Making Tribunals 'Uncontrollable' .-Here I may mention a type of tribunal which has been a feature of ,Australia's social and industrial, as well as her legal, history. I refer to the Industrial Courts and Wage Tribunals set up by statutes. Early in the present century, it was found that applications for prohibitions against the Industrial Arbitration Court were so frequent and so successful that the New South Wales Legis- lature thought it necessary to insert a special section in the Industrial Arbitration Act taking, away from the Supreme Court power to grant prohibition, certiorari or the like orders, restrain- ing the Industrial Courts from dealing with certain matters. (See Industrial Arbitration Act 1912, sec. 58(2) : Industrial Arbi- tration (Amendment) Act 1926-1936, sec. 6A(2) : Fair Rents Act - 1915, sec. 18(1) : Workers' Compensation Act 1926, sec. 37(2) : Liquor (Amendment) Act 1919, sees. 27, 86.) As will be seen by reference to the above statutes, the same quality of uncontrollability has been conferred upon other statutory tribunals. Under such sections, the Superior Court has to obey the legislative mandate. The Legislature which circumscribed and defined the jurisdiction of the industrial tribunal also made the tribunal the final interpreter of its own jurisdiction ; at any rate, the Superior Court was prevented from interfering in any way. A similar attempt by the Federal Parliament failed to protect the Federal Arbitration Court, because the jurisdiction of the latter tribunal was dependent, under the Commonwealth Constitution itself, upon the existence of a two-State industrial dispute, and the Federal Parliament cannot prevent the High Court from enforcing mandates bas6d upon the Constitution.41 I will now give several illustrations showing the way in which Legislatures in Australia deal with the exercise of statutory jurisdiction in administrative tribunals. Repatriation Appeal Tribunals .-Under the Australian Sol- diers' Repatriation Act, the Repatriation Commission is the body which determines in the first instance whether certain pensions should be granted. Then appeal tribunals are set up, and their duty is to decide between the Repatriation Commission and the claimant for a pension. . By sec. 45W of the Act, it is provided that an appeal tribunal (i) shall not be bound by any rules of evidence, (ii) but shall act according to substantial justice and the merits of the case;, and (iii) shall give to the appellant the "benefit of the doubt". It is also provided that, if the _appellant

41 Caledonian Collieries Ltd. v. Australasian Coal and_ Shale Employees' Federation (1930), 42 C.L.R. 527; The Constitution, sees. 51 (xxxv), 75 (v).

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makes out a prima facie case that his incapacity was caused or aggravated by war service, the onus of proof that such incapacity was not so caused or aggravated lies on the Commission. To say that the tribunal shall act "according to substantial justice" means very much what Lord Haldane said in Arlidge's Case-that it shall fairly hear the case of both parties to the dispute. "Not Bound by Technical Rules of Evidence."-It is interesting to note that Legislatures are very fond of inserting provisions that the administrative tribunal in question is not necessarily bound by rules of evidence. Some such provision is, I think, to be found in almost every Industrial Arbitration Act in Australia. Of course, the rules of evidence are thought to be something devised by lawyers for the purpose of confusing the highly intelli- gent lay mind. It seems to be forgotten that the law of evidence generally embodies the efforts over many generations of trained legal minds to prescribe a method of investigating facts which is best calculated to prevent error and to elicit truth." In the United States a similar view was expressed by Judge Stephens in his recent work Administrative Tribunals and the Rules of Evidence. According to Mr. F. A. Ross of the Wisconsin Bar, Judge Stephens "deplores the lengths to which some Courts have gone in `liberalizing' procedure before various administrative tribunals (notably the United States Bureau of Immigra- tion) ", and insists that "the so-called `technical' rules represent a crystallization of experience not to be lightly discarded", whereas the popular hostility to such rules "places a premium on `hunch and conjecture' and may frequently work injustice"43 Transport Act of Victoria.-One very interesting experiment in administrative law is contained in the Transport Regulation Act of the State of Victoria. By that Act, authority is given to a Transport Regulation Board to deal with licenses for com- mercial goods vehicles. The Act expressly provides that, before granting or refusing such a license, the Board shall be guided by certain principles and rules. Sec. 26 requires the Board to "have regard primarily to the interests of the public generally, including those of persons requiring, as well as those of persons providing, facilities for the transport of goods". In a case which came before the court, the Board had refused an application for a license, stating that it regarded as a vital consideration 42 See The king v. War Pensions Entitlement Appeal Tribunal (1933), 50 C.L.R. 223 at p. 256. 43 See a review of Judge Stephen's book by F. A. Ross in 47 Harv. L . Rev. 727.

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the amount of the railway deficit for the preceding financial year of the State of Victoria. Administrative Body Acting do Irrelevant Considerations.- You will ask how the courts could get jurisdiction over a matter which appeared to be so pepuliarly within the ordinary sphere of administrative functions, and so little within the proper sphere of the Judiciary. The answer is contained in a special section of the Act, which not only enables, but requires, the Supreme Court of Victoria to review all questions of law arising upon a decision by the Board. It being a question of law whether the considerations to which a tribunal has regard are relevant to the statutory enquiry, the court was compelled to take jurisdiction over such questions. - It was held that the existence and amount of the railways deficit was too remote from the matters which the Board was entitled to consider in carrying out its statutory duty of deciding between the contending interests.44 Although the result seems curious, and, to some extent, anomalous, it necessarily resulted from the Legislature of Victoria insisting upon the exercise of a supervisory jurisdiction by its Supreme Court. New South Wales Milk Board.-I now give an illustration taken from a New South Wales statute-the Milk Act of 1931. The Milk Board had jurisdiction to deal with applications for certificates of registration as a dairyman and milk vendor under sec. 37 of the Act. An appeal lay to a Magistrate against the Board's refusal to issue such a certificate .' In a case which came before the Supreme Court, the Milk Board had refused an application,. but the Magistrate had upheld an appeal against the Board's decision. Subsequently, the Board forwarded to the applicant a certificate of registration as a dairyman for a district . different from that stated in the original application, although the original application had been refused solely on the ground that the applicant was not a fit and proper person to obtain it, a ground deemed untenable by the Magistrate who conducted the appeal. The Supreme Court held that the Act contemplated that, when the Board refused an application, it should state its reasons, so that the applicant might know whether he had any right of appeal. The Court said It would be very wrong for the Board to state as its ground an appealable reason, and then, when the applicant has incurred the expense of a successful appeal, to disclose, for the first time, another reason which had also actuated it, and which it had held back 45 44 Victorian Railway Commissioners v. McCartney (1935), 52 C.L .R . 383 . 45 Ex parte Debrincat, re Milk Board (1934), 34 S.R. (N.S.W .) 581 atp . 590.

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The Supreme Court also said that the Milk Board had not acted with the slightest impropriety, but that it had made the mistake of not giving immediate effect to the decision of the Magistrate, which the Act made final and binding upon the Board. Accord- ingly a mandamus was issued ordering that the certificate applied for by the applicant be issued. In the Milk Case, the Supreme Court exercised its ordinary jurisdiction of granting a writ of mandamus. In the Victorian Transport Case, the Supreme Court exercised a special statutory jurisdiction closely analogous to its common law jurisdiction . Lord Hewart's Thesis - The New Despotism.-Having illustrated the varying methods by which administrative tribunals have been set up by Parliament, and also the limited way in which the Judiciary supervise the exercise of such functions, I turn to the thesis of the Lord Chief Justice of England, which is a strong condemnation of what he called "administrative lawlessness" . His work - The New Despotism -was published in 1929. Lord Hewart said that it was not, but ought to be, common knowledge that during the past twenty years many statutes had vested in public officials the power of deciding "questions of a judicial nature", and this was generally "to the exclusion of the jurisdiction of the Courts of Law" ." He thought that it was grotesque to employ the terms "law" or "justice" to such a system because "the exercise of arbitrary power is neither .4 law nor justice, administrative or at all" He argued that the English system bore little analogy to the French system of droit administratif, under which real tribunals acted on defined rules and principles in settling disputes, gave reasons for the decisions, and published them .41 He emphasized that "the public official is not independent",49 and that there was no proper evidence or cross-examination, and asked whether it was too much to say that such proceedings were "a mere travesty of justice"." The so-called administrative system was infected with the "departmental policy of secrecy"," and in practice it was impossible to prove whether an official or Minister "has acted in good or bad faith", because the reasons for his adverse decision are seldom if ever stated.52 The Practice of Executive Delegation.-In particular, the Lord Chief Justice condemned the practice of extensive dele- 46 HEWART, THE NEw DESPOTISM, p. 43. 47 Ibid., p. 44. ea Ibid., p. 47. 43 Ibid., p. 45. 51 Ibid., p. 48. 49 Ibid., p. 46. 62 Ibid., p. 49.

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gation. He instanced a clause in the Local Government Act, 1929, giving the Minister power to remove the difficulty arising in connection with the application of an Act to an exceptional area, "especially where the order for removal of the difficulty modified the provisions of the Act."" He said that when the clause became sec. 130 of the Local Government Act, the only safeguard added -was that an order made under the section should cease to operate after three months from its date, unless each House of Parliament within that time had approved of the order by resolution. The Times said that the original clause of this Bill had a true precedent in "the pretensions to the dispensing powers under the Stuarts, which declared that anything enacted by King Henry VIII or by Order in Council should have the force of law" 54 Sankey Committee on Ministers' Powers.-Lord Hewart's book, and other criticisms, such as that'of Professor C. K. Allen,55 led to the appointment of the Committee of Ministers' Powers, Thewhich reported in 1932.56 Lord Chief Justice was invited to give evidence, but replied that, as the Committee had read his book and as he at present had nothing to add to it, he could not be of any assistance to it." The Committee reported that the development of the practice of delegation was "inevitable", that it was ' a natural reflection of changes in our ideas of Government, which had resulted- from changes in political, social and economic ideas, and of changes in the circumstances of our time which have resulted from scientific discoveries58 Yet the details left by Parliament for determination by the administration "may closely affect the rights and property of the subject, and even personal liberty"." The Committee was of opinion in relation to "executive justice", that "justice is, as a general rule, substantially done". But they added, "Justice is not enough. What people want is security for justice, and the only security for justice is Law publicly administered." 60 They also found that, having regard to the high quality of the civil service, although there was need for safeguards, there was "no ground for public fear if the right precautions are taken" .,' ss Ibid., p. 53. 's4Ibid ., p. 58. - . 55 BUREAUCRACY TRIUMPHANT (Oxford, 1931) . 56 Report of the Committee on Ministers' Powers, 1932 (Cmd . 4060). 57 op. Cit., p. 3. ss Ibid., p. 5. 59 Ibid., p. 6. so Ibid. 61 Ibid., p. 7.

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The Henry VIII Clause.-The Committee doubted whether Parliament itself realized how extensive the practice of delegation had become, or the extent to which it had surrendered its Theown functions in the process.s2 Committee gave instances where the power delegated included powers to legislate on matters of principle, and even to impose taxation. They also gave some instances where the delegated power included the power to amend Acts of Parliament, either the Act by which the powers were delegated or other Acts. They thought that to use the nickname "Henry VIII Clause" involved a far-fetched compari- son, because the only purpose of Parliament on the nine occasions when it passed an Act containing an authority to modify Acts "was to enable minor adjustments of its own handiwork for the purpose of fitting its principles into the fabric of existing legislation, general or local, and of meeting cases of hardship to TheyLocal Authorities" .63 also referred to instances where so wide a discretion was conferred that the limit of what Parlia- ment intended could not be ascertained, and to instances where Parliament had delegated powers without effective limit, by forbidding interference by the courts. The Committee referred to the provisions in statutes by which orders made under an Act "shall have the same effect as if enacted in this Act", but pointed out that the fierce criticism which assailed such clauses was "laid to rest" by the House of Lords in Minister of Health v. The King," where it was held that, if the order made under the Act conflicted with the Act, the courts would treat it as invalid. Complete Finality of Order.-But the Committee also referred to some statutes which, on their face, seemed to have been "designed with the express purpose of completely and finally excluding all control by the Courts"." A typical provision ran as follows :- The Minister may confirm the order, and the confirmation shall be conclusive evidence that the requirements of this Act have been complied with, and that the order has been duly made and is within the powers of this Act. Without expressing a final opinion, the Committee could only readily think of one limitation upon the apparently boundless possibilities of such a power. They gingerly suggested that if an order was made, e.g., under the Small Holdings and Allot- a Ibid., p. 24. 63Ibid., p. 36. 64 [1931] A.C. 494. 65 Report of the Committee on Ministers' Powers, 1932 (Cmd. 4060), p. 40 .

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ments Act 1905, and if an order of a Minister provided- " `for boiling the Bishop of Rochester's cook to death'-we doubt whether the order would be protected by this section! " New South Wales Weights and Measures Act.'-In New South Wales we are not altogether free from sections containing drastic delegations of powers. I have sought diligently for the worst example, and it is to be found, of all places, in the Weights and Measures Act 1915. Sec. 58 of that Act provides for the publication in the Gazette and the laying before Parliament of all regulations made under the Act. If not disallowed by either House, such regulations shall, it is provided, "be of the same effect as if they were enacted in this Act and shall not be questioned in any proceedings whatsoever" . So far as I can dis- cover, this last- provision has no other analogue in- the New South Wales Statute Book. Let us suppose- that regulations were made, published, laid before Parliament, and not disallowed; could the courts investigate the question .whether they were validly made under the earlier section (sec. 57), which defines the subjects on which regulations may be made? The Legis- lature has said "No enquiry is to be made : they are beyond question" . Yet,, if this is the result (subject, of course, to the strange and presumably, exceptional case of the death by boiling of the Bishop of Rochester's cook), it is an extravagant and absurd one, probably never intended by a single member of the Legis- lature. For what administration would really desire to be invested with so absurd and unnecessary a power? Sankey Committee's Recommendations.- The Committee on Ministers' Powers concluded that delegated legislation was desir- able for certain purposes, within limits and under safeguards. The factors in favour of delegation include (i) the pressure on parliamentary time ; (ii) .the technicality of the subject matter ; (iii) the possibility of unforeseen contingencies ; (iv) the flexibility resulting ; (v) the opportunity afforded for legislative experi- ments, and, (vi) the necessity for emergency powers." - The dangers involved included the following : (i) the Act of Parliament might be merely a skeleton, involving a serious invasion of the admitted sphere of Parliament ; (ii) there Might be inadequate scrutiny in Parliament of the powers delegated "There is a danger that the servant might be transformed into the Master" ;s' . (iii) there might be insufficient provision for protection of the citizens' rights in the courts ; (iv) the drafting

66 Op. cit., pp. 51-52. 67 ibid., p. 53.

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might set up loosely defined powers ; (v) there might be an absence of sufficient publicity, and (vi) in case of injustice, there might be difficulty in obtaining redress against the Government . The recommendations included : (1) there should be a clear definition of the powers conferred ; (2) the "Henry VIII Clause", conferring power on a Minister to modify the provisions of Acts of Parliament, should be abandoned "in all but the most exceptional cases", and then, only on special grounds, and with a time limit ; (3) exclusion of the jurisdiction of the courts to pass on the validity of regulations should be exceptional. Report, on Quasi-Judicial Decisions.-The Committee then turned to the question of judicial and quasi-judicial decisions. They thought decisions could be divided into (1) purely adminis trative decisions, e.g., the decision of the Home Secretary to grant naturalization to a particular alien, as to which he has an absolute discretion; (2) quasi-judicial decisions, where a discretion is to be exercised and some judicial processes followed ; (3) true judicial decisions, involving (a) presentation by parties of their case, (b) ascertaining of facts in dispute by evidence, (c) ascertaining of questions of law after legal argument, (d) the actual decision disposing of the whole matter by finding upon the facts and applying the law of the land to the facts. A quasi-judicial decision, by contrast, involved (a) and (b), but did not necessarily involve (c), and never involved (d), because the decision was taken by administrative action determined by the administrator's free choice.,' The Committee thought on this (1) that purely judicial functions should normally be left to courts of law, and only exceptionally exercised by Ministers of administrative tribunals;,9 (2) that quasi-judicial functions should normally be exercised by Ministers ; (3) that the public belief in the "Rule of Law" required that where judicial or quasi-judicial functions were exercised other than by the court, (a) the supervisory jurisdiction of the High Court of Justice should be maintained where the statutory powers had been exceeded, (b) that the three principles of natural justice must be observed -first, that a man may not be judge in his own cause or a cause in which he has an interest (including cases where the Department would naturally desire that the decision should go one way) ; second, no one should be condemned unheard, or be prevented from knowing the case he has to meet -this not necessarily including 63 Ibid ., pp. 73-74. 69 Ibid ., p. 93.

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the right to an oral hearing; and, third, â party is entitled to know the reasons for . a decision, even though the decision is final and without appeal; (c) in the case of a statutory public enquiry, the report made by persons holding the enquiry should, unless in very exceptional castes, be published ; (d) where the Minister makes a judicial decision, an appeal on questions of law should lie to the High Court of Justice.

Professor Robson's Scheme Not Accepted.-During the hearing, Mr Robson had proposed the establishment of "a system of administrative Courts and administrative,- Law independent of Ministers". These proposals were not accepted by the Com-, mittee, which pointed out that such a proposal necessarily involved the abolition of the supervisory and appellate jurisdiction of the High Court in matters pertaining to administration. Validity of Regulations-Some Principles.-I have not deemed it necessary to give any detailed account of the methods employed by the courts in dealing with the question whether a regulation is ultra vires. But there are several general principles which perhaps may be -referred to : (i) You go back to the Charter -the Act of Parliament-and ask whether the regulation in question answers the description contained in the section of the Act, or is made for the purpose specified. in the- Act, or relates to the subject matter prescribed 'in the Act. This is the first and golden rule. The enquiry is very analogous to that conducted by the High Court of Australia in deciding whether an Act of the Commonwealth Parliament is "with respect to" one or other of the 39 subject matters mentioned in sec. 51-of the Constitution . The enquiry is often a very difficult one, involving soine knowledge of analytical jurisprudence and comparative law. (ii) Don't take too much notice of legal platitudes such as "The power to regulate does not include the power to prohibit" . You will find that is either a truism or it is false. You look at what the statutory power is. A local authority in Victoria was given power to regulate "traffic" . It passed a by-law requiring cattle to traverse the city only by prescribed streets, and then only at certain hours. It was said : "This regulation prohibits cattle from traversing the city altogether for 18 hours of the 24, and partially for 6 hours of the 24. The power is to regulate, and this does more." But the Court said : "The power is to -regulate traffic; traffic includes the movement of vehicles, persons and animals. Unless there is prohibition to some extent,

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there can never be an effective regulation. Therefore the regulation is valid."" (iii) There are other platitudes which confuse the under- standing of the subject. One is that " a power to prohibit unconditionally necessarily includes a power to prohibit on any conditions the regulation making body sets out". Of course, that may be true on occasions. Often it is rubbish, because the conditions imposed may show that the power of prohibition has never been exercised at all. Multiplicity of Tribunals Exercising Powers.-One other point I would suggest to you. In the modern State it is customary to speak, and even think, of the Executive as a single and indivisible entity. People usually associate the exercise of administrative power with the Executive Government, i.e., the Ministers associated together in Parliament and responsible to Parliament . Nothing could be further from the truth. From one end of the country to the other, treme_ilo- - sly important powers of an executive character are, for all -practical purposes, exercised finally by department or officials. All the rights and duties associated with Local Government involve the exercise of administrative powers by local authorities, and, of course, citizens and ratepayers often find that they can be affected adversely in property or person by the exercise of such powers. Although the courts of law are always "open", the Acts of Parliament under which the powers are exercised often commit to administrators what is necessarily the power to make a final decision, so that, provided the administrator proceeds about his business in the proper way, and does not travel outside his charter, no appeal from, or review of, the merits of his decision can come before a court of law. In speaking of courts, I do not refer to the special jurisdiction of an administrative kind conferred upon courts for the purpose of reviewing administrative decisions of local and other authorities. On such occasions the court is, for the time being, not a court but an administrative tribunal. As there is a multiplicity of authorities exercising administrative powers, so there is a multiplicity of bodies exercising quasi-judicial power -societies, clubs, sporting bodies and the like, whose decisions may adversely affect members in person or property. Here, again, the interference of courts with decisions is not based upon the merits of the action of the governing committee, but, subject to other legal conditions, depends upon the question whether the committee of control has gone about 70 Williams v. Mayor etc. of City of Melbourne (1933), 49 C.L.R. 142.

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its quasi-judicial duties in a proper way. Further, statutory bodies have been set up for disciplinary reasons in connection with such professions as the law, medicine and dentistry. Occasionally the Legislature gives the courts of law the power . of reviewing the decisions of such bodies, but this is exceptional ; and, usually, the courts only see to it that the body in question hears both sides of the, controversy, and does not travel outside . its jurisdiction. New Acts,- such as those setting up marketing _ authorities and Boards in connection with production, supply and distribution of food, all contain within them tremendous grants of authority which may adversely affect, or even ruin - citizens, and still be quite beyond the reach of the ordinary courts. Who Really "Runs" the State: - Is not the truth this - that Parliament- certainly does not, under our governmental system, "run" the State or control the citizens? Control over the citizens is vested in thousands of Boards, officials and administrators, whose decisions are seldom appealable or even reviewable by the courts. In the modern State this is necessary, subject to safeguards, in the interests of the people. Social Justice and Social Security.-The future relationship between the functions of administration and those of legislation and adjudication is, to 'a large extent, dependent upon whether the people themselves will insist upon actively interesting themselves in the work of the administrative and legislative machines which exercise power throughout the country. It may be that, as democracy develops and advances, the citizens will also insist upon some share in the actual running of these machines, not spasmodically at election time, but fairly continuously. That, possibility will not be removed merely by efficiency, for the efficient administration of public functions is not enough. The people must be assured by continual practice that the administration is being carried out on their behalf. Consequently, the actual methods of administration should not only be efficient, but be devised so as to create the feeling that justice and security are the objects of the administrators.

HERBERT VERE EVATT. Sydney., Australia.