General Principles of Law in Civilian Legal Systems
What Lessons for Australian Administrative Law?
Address by the Honourable Justice Nye Perram
Federal Court of Australia
to the AGS Administrative Law Symposium held at Hotel Realm Canberra
21 June 2013
I would like to start, perhaps counter intuitively, not with this apparently abstruse topic, but instead with an interesting feature of evolutionary biology which may seem, but which I hope will not ultimately prove to be, a little off course. One of the fascinations of biology is the way in which quite different genuses and species end up with similar adaptive responses to the challenges of their environments. Take, if you will, the case of the dolphin – a warm blooded air breathing mammal descended from other land based walking mammals who sometime ago made the surprising decision to return to the oceans. The traces we see today of their terrestrial inheritance is that their rear legs have splayed sideways to become a tail which beats up and down. In this regard, they differ from fish whose tails beat from side to side. Despite that little detail, the striking thing about fish and dolphins is in fact their deep similarity in terms of broad engineering design. Essentially both fish and dolphins have happened upon similar engineering solutions to the problems thrown up by the task of travelling through water: a sleek body, supported by fins and driven as a whole by a powerful tail.
For today's purposes, the aspect of this which is relevant to administrative law is the relative insignificance of the taxonomy of the animals involved – cold blooded animals which can breathe underwater and warm blooded mammals which cannot – to the solutions at which each has arrived. Similar problems seem to have a tendency to being solved in similar ways; tails and fins emerge in these animals not because of their genetic heritage but because it is the only way to get around. Nevertheless, their heritage exerts influences on the solutions adopted and here the up and down beating of the dolphins tail tells one something of its heritage.
This morning I am going to attempt to sketch as quickly as I can four different systems of administrative law in an endeavour to contrast the very large degree of commonality in the solutions they have adopted to the questions of judicial review with their quite different purported theoretical underpinnings but also to show, at the same time, how those underpinnings can cause local differences. The end to which this exercise is directed is not merely recreational but may show, I hope, that our concentration ought probably to be on what are sensible grounds of review from the perspective of good administration rather than on what we can deduce from theoretical explanations of why judicial review is available. The similarities between the grounds of review in systems with vastly different jurisprudential underpinnings ought to persuade us that those grounds of review are more likely to be the outcome of common responses in liberal western democracies to shared problems than the coincidental outcome differing theories. Where the theoretical constraints apparently inhibit sensible grounds of review available in other systems we ought perhaps at least to query whether those theoretical constraints are performing a useful function.
The four systems I am going to examine are those of France, the European Union, the United States (at least at the Federal level), and the United Kingdom and Australia. As will be seen, whilst the grounds of review in each of these systems are not precisely identical there are nevertheless significant similarities. At the same time, it will be seen, at least I hope, that the jurisprudential justifications for these systems widely differ. In the end I hope this will leave ready to be answered the question of whether the grounds of judicial review are in each of these systems, as they purport to be, artefacts of grander legal theories, or instead, simply common solutions to the problem that the control of government throws up in modern liberal western democracies.
I will start, if I may, with the case of French administrative law or as the French call it the droit administratif. The political events of the seventeenth and eighteenth Centuries in France were entirely different to those which had taken place in the England and the French curbing of monarchical power took a much more direct and, some would say, less subtle path than that pursued in England. Since the rise of the English administrative law is best understood as having its roots in the subtle arabesque which the Crown and the Royal Courts performed over that period, it should be no surprise that the underpinnings of French administrative law are quite alien to those of the English tradition.
Prior to 1789 the French Courts did not have an especially good reputation. There were consistent calls throughout the eighteenth Century to reform the legal system which was widely seen as very costly and slow: some things never change. The King too had serious concerns about the district Royal Courts (or Parlements as they were known) and, in particular, the Parlement of Paris which was seen as interfering with the exercise of Royal powers. In 1641, in attempt to deal with this intermeddling, there was proclaimed the Edict of Saint-Germaine which banned the various civil courts from judging cases involving the State. Thereafter, this left citizens with redress solely in with the Conseil du Roi (which was not unlike the Privy Council). The Edict was not wholly successful and interferences continued right up to 1789.
In the aftermath of the Revolution those fashioning the new State looked to the United States Constitution of 1787 and, in particular, to its liberal use of Montesquieu's concept of the separation of legislative, executive and judicial powers expressed in his work The Spirit of the Laws. Under the influence of the First Consul, Napoleon, the separation of powers took on a distinctly Gallic interpretation quite different to the American experience. Concerned with the intermeddling in the affairs of State by the ordinary courts and picking up where the Edict of Saint-Germaine had left off, Napoleon's Law of August 16-24 1790 pronounced the State off limits for the courts. This was achieved through art 13 which was follows:
Judicial functions are distinct and will always remain separate from administrative functions. It shall be a criminal offence for the judges of the ordinary courts to interfere in any manner whatsoever with the operation of the administration, nor shall they call administrators to account before them in respect of the exercise of their official functions.
This was subsequently renewed by a further similar decree in 1795.
These provisions remain in force today and they gave as complete a liberty to the new First Consul as anything King Louis XVI could have hoped for. Nevertheless, Napoleon was conscious of the virtues of having information brought to the administration's attention by the process of citizens complaints and he was not hostile, in principle, to review of State action – he merely wished to be in control of it. In the Constitution of 1799 he established the Conseil d'État which performed a number of functions such as the drafting of decrees, regulation and general administration. It was in a real sense, a supreme body beneath the First Consul, to assist in the administration of the entire State. Importantly, and in line with Napoleon's pragmatic embrace of allowing decisions of the State nominally to be challenged, it was required to 'resolve difficulties which might occur in the course of the administration'. It is that function which has served as the constitutional underpinning for modern French administrative law ever since. In its initial form, which lasted until 1872, a decision of the Conseil d'État took the form of advice offered to the First Consul (or later the Emperor) but the advice was almost always followed. Useful comparison may be made with the similar process which obtains in the case of advice proffered by the Judicial Committee of the Privy Council to the Queen.
The consequence of Napoleon's Law of 1790 was to prevent redress for administrative wrongs being in any way ventilated before the ordinary courts and, with the enhanced jurisdiction of the Conseil d'État, it became and remains the central organ for judicial review in France. In 1872, at the beginning of the Third Republic, its decisions began to take effect in their own right and the process of proffering advice to the Head of State was abandoned. Following that, its operation largely, although not entirely, resembled that of what we would identify as a court. That view became likely as early as 1806 when the 'Judicial' work of the Conseil d'État started to be conducted by a special division known initially as the Commission of Contentions and subsequently, perhaps less romantically, as the Contention Section. By the end of the 19th Century this section had emerged as the Court both of first and last instance in administrative matters.
Subsequently, and in the face of a greater caseload, inferior administrative courts were set up beneath the Conseil d'État which coalesced ultimately in 1953 into a set of regional courts known as the Tribunaux Administratifs (the Administrative Tribunals). As at the present, the Conseil d'État continues to exercise appellate jurisdiction over those bodies. Unlike our concept of courts however, these courts remain firmly part of the executive branch.
The jurisdiction of the Conseil d'État and the regional Tribunaux Administratifs is much broader than we would expect in our system. In effect, any litigation involving the State lies within their jurisdiction and this includes the full gamut of claims in tort and contract. I shall put to one side that kind of litigation and concentrate on that aspect of the jurisdiction of the administrative courts which corresponds with the Anglo-American concept of administrative law.
The central organising principle is that of legalité. This includes simple excesses of power which correspond to what we would regard as straightforward ultra vires action but not including many of our more subtle re-imaginings of the grounds of judicial review as jurisdictional errors. More importantly the principle of legalité includes a series of propositions known as the general principles of law. These are explained as aspects of the law which are inherent in the principle of legalité but, in large part, they originate as part of the decisional output of the Conseil d'État. Sometimes the Conseil d'État (whose reasons are traditionally very brief) has explained them as constitutional matters; at other times as aspects of statutory law. These decisions are seen to emerge as aspects of procedural law and sometimes from broader notions of justice and equity.
These principles are many, but I would like to emphasise just a few. The first is an obligation to afford procedural fairness in reaching an administrative decision. In the case of Dame Veuve Trompier-Gravier, Conseil d'État [French Administrative Court], 5 May 1944 reported in Rec Lebon 133 the concessionaire of a kiosk on the Boulevard St Denis successfully challenged the cancellation of her concession. She had been accused of seeking to extort money from the kiosk manager and the concessionaire challenged. This has not been put to her, however, and the Conseil d'État concluded that the decision maker had contravened the general principal of law that requires an adversely effected party (though not a company, interestingly) to be given the right to argue their position. This will be, no doubt, a familiar concept.
A second principle concerns impartiality. In Trebe the Conseil d'État quashed a decision of a committee advising on personnel on the grounds that the committee included amongst its number several members whose careers would be directly affected by the decision which was to be taken. Here we should have little difficulty in recognising our own principles relating to the apprehension of bias.
A third general principle of law concerns a duty to give reasons. Here French law has largely followed a similar pattern to the English and Australian experience. The primary position established by the Conseil d'État was that there was no general duty upon administrative decision makers to give reasons for their decision and, in that regard, useful comparison may perhaps be made with the High Court's decision in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 which is to like effect. In 1974, however a statutory reversal of this decision was introduced and the situation is not now unlike that obtaining under s 28 of the Administrative Appeals Tribunal Act 1975 (Cth) and the Administrative Decisions Judicial Review Act 1977 (Cth) s 13 ('the ADJR Act').
A fourth principle is that of proportionality which, of course, is not a principle which has been embraced in this country, at least as part of administrative law. It requires a balancing process between, on the one hand, some identified legitimate end of the decision and, on the other, the means adopted to achieve that end. Many, but perhaps not all, of us will remember the controversy attending the release in this country in 1989 of Martin Scorsese's film 'The Last Temptation of Christ' based on the book of the same name by Nikos Kazantzakis and starring, inter alia, Harvey Keitel as Judas Iscariot. After much drama in this country, including its banning in Queensland, its initial 'R' rating in many states and territories was eventually downgraded to an 'M' rating. A similar controversy occurred in France. The relevant Minister had decided not to ban the film which, as it happened, inflamed Monsieur Pichene. He sought a review of the Minister's decision from the Conseil d'État which, however, upheld the Minister's initial decision not to ban the film. It did so on the basis that the peril to the public good order posed by the film did not warrant its entire banning; proportionality reasoning was engaged.
A fifth principle concerns the protection of legitimate expectations. Where the State has, by administrative or regulatory action, caused a citizen to adopt a particular position, then a subsequent departure from the State's original position by way of a new administrative or regulatory regime causes detriment, the State must ensure that the position of those who have acted to their detriment on the basis of the earlier regime is protected. Thus, in Entreprise Transports Freymuth  an importer of refuse who had previously operated under earlier regulations permitting importation of refuse was held to be entitled to be compensated when his business suffered a one third reduction of income caused by the passage of new regulations limiting the amount which could be imported into France and which included no transitional provisions dealing with those enterprises which had set up business under the earlier regulations. The Administrative Tribunal of Strasbourg held that the State could not, without compensation, depart from the legitimate expectation it had engendered by its initial regulatory posture.
Of course, this is much closer to our private law concept of estoppel than to the concept legitimate expectation as it had been developed in this country before its demise in the High Court's decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1. In Australia, and in the UK, the concept of legitimate expectations was really more simply seen as an entry point for the application of the rules of procedural fairness. Attempts early on to establish a doctrine of substantive legitimate expectation (as the English Court of Appeal attempted in R v. North and East Devon Health Authority ex parte Coughlan  QB 213) went nowhere in Australia.
The willingness of the French administrative law to hold the State to the consequences of earlier regulatory action is to be seen, I think, as deriving from the fact that the Conseil d'État supervises all executive action which includes not only what we would regard as 'administrative action' but also the making of subordinate legislation in the form of regulations. As an element in the executive itself there is not the tenderness that we have of becoming involved in the merits of administrative disputation.
A sixth principle concerns the right to judicial review which in French law is refreshingly straightforward. The Conseil d'État has consistently held that provisions in regulations which purport to oust judicial review by the administrative courts are ineffective: see D'Aillières; Ministre de l'agriculture c/ Dame Lamotte. Here we may make useful contrast with our own contorted learning about privative clauses.
There are many other of these general principles of law but I will not set them out. The curious are directed to Neville Brown and John Bell, French Administrative Law (Clarendon Press, 5th ed, 1998) Chapter 9, from which the above account is heavily drawn. The point for present purposes is but twofold. First, one should observe the similarity, although not the precise identity, with our own grounds for judicial review. None of the above grounds of review are, in any way, unfamiliar to an Australian lawyer even if there are certainly differences in emphasis. Secondly, the principles are administered from within the executive itself, without the assistance of an external judiciary, and are apparently deduced from an overarching doctrine of legalité without any heavy reliance on notions of excess of power.
III European Union
I want to say then a few words about the European Union. I exclude from this account the administrative consequences of the accession of many member States of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms and also the operation on member States' own administrative legal systems consequent upon of the direct effect of European Union Law. My focus will, instead, be on the administrative law organs of the European Union itself.
This is a difficult body of material to put in a condensed fashion and has undergone within the space of fifty years many revisions, substantial development and, not unlike Commonwealth legislation itself, constant renumbering. The original modern form of the provisions is set out in the Treaty on European Union ('the Maastricht Treaty') as heavily reworded, renumbered and restructured by the Treaty of Amsterdam Amending the Treaty on European Union, The Treaties Establishing the European Communities ('the Amsterdam Treaty'). Article 230 gives to the European Court of Justice a jurisdiction to review the legality of acts of, inter alia, the European Commission. The Commission is essentially an executive body with substantial legislative functions and provides for the administration of the Union. Alongside art 230, art 234 (ex art 177) provides, in effect, for what we would call collateral challenge to administrative decisions.
Article 234 is long and I will not repeat it here. It has however three elements (and each of these is express). There is jurisdiction in the European Court of Justice to entertain suits based on allegations of:
(a) a lack of competence;
(b) infringement of an essential procedural requirement; and
(c) infringement of the Treaty or any rule of law relating to its application.
I am not going to say very much about the concept of a lack of competence, other than to note a general correspondence with the French concept of excess of power. The concept, however, of an infringement of an essential procedural requirement takes us into territory which we would regard as being associated with the High Court's decision in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, that is, it involves enquires into how important a particular given procedural requirement is and an assessment of what the consequences of any given breach might be. The essential procedural requirements have been held to include the right to be heard regardless of whether the relevant European Union law provides for this or not: see Transocean Marine Paint v Commission (Case 17/74)  ECR 1063. Indeed, it has been held that the right to be heard is not excludable and hence is one of the fundamental rights of the Union: see Al Jubail Fertilizer Co. & Saudi Arabian Fertilizer Co. v Council (Case C-49/88)  ECR 1-3187. A similar right now appears in the Charter of Fundamental Rights of the European Union in art 41(2).
There is also a duty to give reasons which is directly imposed by art 253 (ex art 190) of the Amsterdam Treaty and that obligation has been held to be an essential procedural requirement within the meaning of art 231: see Commission v European Parliament and Council (Case C-378/00)  ECR 1-937 at 34.
It is the third aspect of art 234, that is, the infringement of the treaty or any other rule of law relating to its application, which is, perhaps, most interesting. The travaux preparatoires for art 234 do not include any discussion of what these rules of law might be and have therefore left a vacuum into which the judicial imagination has rushed. The European Court of Justice has taken the concept of a rule of law to include – for is it not obvious - the notion of the general principles of law. It did so by surveying the various administrative laws of the member states, discovering commonalities and, selecting from amongst those, principles which it deemed useful. These became the general principles of law under art 234. Of course, an interesting aspect of this process is that many of these principles were originally non-jurisdictional, but, once having been taken up into the clouds by the European Court of Justice, they became transformed through art 234 from the base metal of domestic non-constitutional law into the shiny stuff of European constitutional law.
The contents of the general principles of law are, perhaps, unsurprising. At the top of the list is the notion of proportionality. Here the jurisprudence is elaborate and operates at varying levels of intensity of scrutiny. The basic test is broadly the same as outlined above in the case of French law, although the European Court of Justice's development stems largely from German jurisprudence, but the fluctuating levels of scrutiny have developed a substantial jurisprudence. For example the intensity of review where human rights are said to be involved is often quite strong: see Council v Hautala (Case C-353/99)  ECR 1-9565. On the other hand, where significant policy choices are involved (such as, for example, the administration of the common agricultural policy), the scrutiny appears to be somewhat less severe: see for e.g. Stolting v Hauptzollant Hamburg-Jonas (Case 138/78)  ECR 713). Obviously enough these fluctuating levels of scrutiny under the principle of proportionality are capable of coming into conflict.
Another general principle of law is the principle of legal certainty and legitimate expectation. Here, what is involved is not dissimilar to the concept applied by the Conseil d'État in the Freymouth decision discussed above concerning the refuse importer. The basic principle is that citizens should be entitled to order their affairs on the basis of a given administrative or regulatory framework. In a sense, this is the flipside state obligation of the principle that everyone is assumed to know the content of the law. Consequently, therefore, retroactive administrative or regulatory action often, although not invariably, runs into trouble under this principle. The European Court of Justice has recognised that sometimes retroactive activity is necessary in the interests of the state but even so it has insisted that those adversely affected by their reliance on the earlier arrangements are to be left harmless: see Meiko-Konservenfabrik v Federal Republic of Germany (Case 224/82)  ECR 2539.
This sounds like a just and equitable principle. You will note that it is quite at variance with the Australian approach to what I shall term 'administrative estoppel'. None of you, of course, will ever have heard the expression 'administrative estoppel' before and that is because I have just made it up. By it, I mean that proposition that an official might be bound to exercise a power in a particular way because of antecedent conduct which has led the person affected to act to their detriment. I have been allowed the luxury of inventing the term because the unambiguous law in this country – to which I will return below – is that there is no such principle. Since the principle does not exist it has no name and my use, therefore, of the expression 'administrative estoppel' should be understood as hailing from the same place as the words 'unicorn' and 'push-me-pull-you'. If it did exist, I am sure that this is what it would be called. There is no such thing as administrative estoppel because, if the action taken by an official under a statute or regulation is authorised by the act or regulation, then the non-statutory equitable concept of an estoppel by conduct – an estoppel in pais, for example, or an estoppel under the principles outlined in Commonwealth v Verwayen (1990) 170 CLR 394 - cannot operate in the face of that statutory authorisation. This is perhaps an example of the doctrinal consequences of the ultra vires approach which underpins most of our thinking in Australian administrative law.
IV United Kingdom & Australia
I turn then briefly to the administrative laws of the United Kingdom and Australia. Both of these are rooted, to varying extents, on the ultra vires theory which sees each of the traditional grounds of judicial review as examples of conduct which is not authorised by the relevant statutes. To take procedural fairness as a convenient example, one observes that the principle is to be seen as an implication from the relevant statute that unless there are clear words to the contrary, an administrative decision which effects the rights or interests of the subject should not be taken without first giving the subject the right to put their side of the story. So viewed, the rules of procedural fairness are not a free standing set of principles, but instead merely a requirement of each statute. When a breach of this principle occurs conduct not authorised by the statute takes place and may be set aside because it lacks legal authority. In the United Kingdom there is no question that this is the entrenched explanation for judicial review: see R v Hull University Visitor ex p. Page  AC 682; Boddington v British Transport Police  2 AC 143. It has been widely criticised on the grounds that it is unrealistic and produces a theory which disguises the choice as to what the grounds of review should be under an apparent process of statutory implication: see, for example, the extra-judicial writings of Sir John Laws, Mr Elliot and Professors Craig and Jowell.
In Australia we have happened upon the same principle although we have given it a patina of constitutional respectability by the enthusiastic utilisation of the nomenclature of 'jurisdictional error'. Each of the traditional grounds of review has, in the last 15 years, been found to be a jurisdictional error and, fortuitously, it has been simultaneously discovered that s 75(v) of the Constitution (Cth) always to provides a remedy for such errors. The grounds of review are then seen as a by-product of statutory interpretation. Breach of the rules involves excess of power and s 75(v) of the Constitution (Cth) arms the High Court with an inviolable remedial jurisdiction. When Parliament chooses to reduce that Court's workload, or when that Court decides to use its power of remitter, the same jurisdiction falls on the judges who toil in the fields below usually through s 39B of the Judiciary Act 1903 (Cth). More recently, this process of statutory interpretation has been given a fresh lick of paint. In Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309, and thereafter, the High Court has found the process of statutory interpretation which leads to the discovery of the grounds of judicial review to be an outcrop of the principle of legality. This is not the same thing as the Conseil d'État's principle of legalité although it does perhaps belie a shared fascination in ultimate appellate courts with grand sounding principles.
The principle of legality – which has been borrowed from the House of Lords – is a shared assumption between the legislative and judicial branches as to how the Parliament in a modern liberal western democracy goes about its business. And the way in which it does this, apparently, is on the basis that it intends that all of the decisions made by officials under statute are to be invalid unless the traditional rules of judicial review have been complied with. Attempts by the Parliament not to share this assumption with the Courts – and I had in mind particularly in the area of refugee law – have failed because of a lack of sufficiently clear language on the Parliament's part although cynics might think that often enough the language has been fairly blunt.
In any event, what is involved is statutory interpretation and not the application of freestanding principles of administrative law. It is only through the vector of statutory interpretation that the concept that judges engaged in judicial review are merely policing the limits of statutory power can be maintained.
Numerous are the critics of this theory. For the interested, a largely derivative summary of the criticisms and problems which the very many problems – logical, practical and historical that theory generates may be found in a paper I delivered last November. It is not my point this morning to repeat those criticisms.
I will supplement that list, however, by highlighting one interesting effect of the doctrine upon Australian administrative law which, as we have seen above, does not afflict French or European law and this is our treatment (or more strictly non-treatment) of administrative estoppel.
The clearest explication of the antipodean position is that given by Gummow J in the Federal Court in Minister for Immigration v Kurtovic (1990) 21 FCR 193. There his Honour rejected the applicability of the private law notion of estoppel against conduct which was otherwise intra vires. The basis for that conclusion was the view that a private law concept could not be effective against what would be, in effect, statutory authorisation for the action taken by the bureaucrat involved. It is difficult to see how, in light of the ultra vires theory which underpins our administrative law, any different result could possibly have been arrived at. It is in effect a corollary of Parliamentary supremacy.
The contrast with the civilian notion of legitimate expectation is then striking for, as has been seen above, it is accepted that the existence of a new administrative règime is not sufficient to justify a departure from the legitimate expectations which have been engendered by an earlier one.
It is true that our principle of legality, espoused by the High Court in Electrolux, encourages courts not to read statutes as having a retrospective effect if possible, but that principle, unlike the broader French concept of legalité is insufficient to deal with at least two situations. First, it is of little utility where a person has ordered their affairs under an earlier regulatory regime which is then simply replaced without any transitional provision. A mining company might structure its financial affairs relating to a mining venture on known tax obligations. The introduction of a new prospective tax may make those assumptions false. Under our system, there is no remedy for this even deploying the Australian principle of legality. The position would be wholly different in France or the European Union where such action would almost certainly be invalid.
Secondly, it permits – some might think unjustly – an administrative decision-maker to say one thing and then to do another even where its earlier pronouncements have caused subjects to change their position to their detriment. A licence holder might be told its licence will be renewed and engage in reliance on that news in substantial capital expenditure, but this will not avail it if the decision-maker then decides to take the contrary position.
There is no doubt that this kind of conduct would not be permitted in the private sphere – and this is because everyone recognises how unfair it is – but in the public sphere it is to be tolerated. The only justification put forward for this unfairness is the ultra vires theory, and, putting the best face on it that one can, that somehow everything a statute authorises represents a sufficiently compelling State interest to outweigh what would otherwise be a private law harm. To put the point more clearly, no-one suggests that allowing officials to engage in such conduct actually promotes good administration. At best, it is seen as an instrumental consequence of observing the limits of power.
Some might not find that convincing. At one time the same ultra vires theory held sway in the law of corporations and there could be, and indeed often were, enquiries into whether particular conduct of a company's officials was ultra vires the company's memorandum and articles of association. The Chancery Courts rapidly put a stop to that kind of argument with the in-house management rule (that is the rule in Royal British Bank v Turquand (1856) 6 E&B 327) which operated as, in effect, a form of estoppel preventing the company from denying the constitutional authority of its officers. And, it might be noted, that was done in a context in which the ultimate source of power to be incorporated and to have a memorandum and articles of association was entirely statutory in origin.
A similar problem arises in the area of government torts. Taking the reasoning in Kurtovic to its logical conclusion, it is difficult to see how intra vires but negligent conduct – perhaps a negligent repair by a local council of a dangerous park swing or roundabout – should be actionable if the action is intra vires. The logic of Kurtovic would surely be that which is intra vires is not actionable at common law for, ex hypothesi, the Parliament has expressly authorised the conduct in question. If one were to take that view, one would have to justify all state tortious liability – and probably even liability in contract – on the basis that the conduct was ultra vires the authorising statute. Various cases have flirted with this notion suggesting that in some circumstances a tort claim might succeed only where the underlying administrative decision was itself invalid, for example, being a decision to which the standard in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation  1 KB 223 might apply. But thus far, that view, does not presently seem to apply across the board to the liability of public authorities where it seems only that when they take positive steps they must do so with reasonable care: see for e.g. Pyrenees Shire Council v Day (1998) 192 CLR 330.
This gives rise, I think, to problems of coherence. Take, for example, the negligent issue of a licence to take far too many fish from a fishing ground. The merits of how many fish will be too many will be strictly off limits for the judiciary in administrative law proceedings because it will involve impermissible merits review. Yet in a subsequent negligence suit the same question will be the very question which the Court is called upon to decide. This rather suggests that loyalty to the ultra vires theory is not uniform throughout Australian public law.
There are no ready, or at least stable, answers to this. The area is driven by a conflict between strict fidelity to the ultra vires principle, unpalatable particularly where injured people are concerned, and coherence between private and public law. The heart of this problem is the ultra vires theory.
V United States of America
I might then turn quickly to the position in the United States. Here there are just two matters I particularly want to mention. The first concerns the doctrinal basis for judicial review. The second concerns their treatment of administrative estoppel.
United States Federal administrative law is governed by the Administrative Procedure Act 1946 Pub L 79-404, 60 Stat 237 ('the APA'). Pragmatically it distinguishes between administrative decisions which will result from adjudicative or trial like procedures and those which do not and between those activities and rule making action (where it has a much more developed approach that we do). In relation to the former class, the review standard bears a strong resemblance to the approach taken to the review of jury decisions; that is, fact finding will be set aside only if it is unsupported by substantial evidence. An agency decision not arrived at by trial like procedures is, on the other hand, subject to a different standard of review. The decision, in order to be reviewed, must be arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. That standard resembles in many ways our Wednesbury standard, overlaid on top of both standards, is that we require what we would consider to be ordinary judicial review grounds such as failure to give a hearing.
Looking at US administrative law, however, through the lens of the APA perhaps tells one as much about doctrinal underpinnings as looking at Australian law through the lens of the ADJR Act. In fact, the notion of ultra vires action is an important aspect of agency review although the absence of an equivalent to s 75(v) of our Constitution (Cth) in art III of the Constitution (US) has at least spared them litigation about jurisdictional error in the Supreme Court's original jurisdiction.
Nevertheless, the notion of ultra vires action remains important in US law. So much is apparent from the Supreme Court's recent decision in City of Arlington v Federal Communications Commission 569 US (2013). For those who have followed the anguish of the English and Australian courts over jurisdictional error, this decision will be, at the very least, amusing. Many of us will recall the House of Lords discovery in Anisminic Ltd v Foreign Compensation Commission  2 AC 147 that the Foreign Compensation Commission ('the FCC') had committed a jurisdictional error by asking itself the wrong question. That case concerned a compensation scheme for British persons whose property had been nationalised by the Egyptians during the Suez crisis. The FCC was the tribunal charged with determining these claims and its decisions were protected by a privative clause. The FCC had concluded that the Sinai Mining Company Ltd (which later changed its name to 'Anisminic', an anagram of the first 8 letters of which are 'Sinai Mining Company') because its successors in title were not British nationals. The House of Lord considered that the FCC's erroneous determination of what constituted a successor in title was an error of law in the hands of the FCC and that all such errors went to jurisdiction. In Australia, by contrast, we allow – at least in theory – the possibility of the non-jurisdictional error of law – although they are rather thin on the ground.
In Arlington the majority seems to have picked up the same idea as was in play in Anisminic, i.e., the idea that all legal errors by an agency are jurisdictional and that there are no non-jurisdictional errors in the hands of an agency. Scalia J who delivered the principle judgment in City of Arlington, having explained that there was a meaningful difference between jurisdictional and non-jurisdictional errors in the case of courts went on to say:
This is not so for agencies charged with administering congressional statutes. Both their power to act and how they are to act is authoritively prescribed by Congress, so that whey they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires.
That reasoning seems to embrace the same style of reasoning in Anisminic.
The second matter concerns estoppel. Perhaps unsurprisingly in a system which considers agency disobedience to a statute as involving jurisdictional excess there has long been an acceptance that agency conduct cannot generate an estoppel binding it to exercise a statutory power one way or the other. An example is afforded by the Supreme Court's decision in Federal Crop Insurance Corporation v Merrill 332 US 380 (1947). The US approach has been a little more generous perhaps in that it has permitted estoppels to operate against provisions which were held, to use language forbidden in Australia, to be merely directory rather than mandatory: see David Thompson, 'Equitable Estoppel of the Government' (1979) 79 Columbia Law Review 551; Molton, Allen & Williams, Inc v Harris 613 F.2d 1176 (1980). There is nothing in our jurisprudence which would prevent such a development although, after Project Blue Sky it would be necessary to approach the matter by asking whether the Parliament intended that non-compliance with the relevant provision would result in invalidity.
Returning then to where I began, the following features deserve emphasis. First the doctrinal bases for all four systems are not the same. The French model is a form of internal review by the executive, of itself, and is premised on the principle of legalité. The EU model involves a separate judiciary that ends up using the terms of art 231 and the general principles of law in much the same way as the Conseil d'État. Excessive power, whilst a feature of both systems, does not bear the burden of explaining the whole of judicial review and is confined largely to situations which a member of the public unskilled in matters of administrative law might understand as involving an excess of power. The United Kingdom and Australia by contrast have based themselves entirely on jurisdictional excess and have a vision of judicial review which purports itself to be based, not on notions of good administration, but on maintaining the limits of authority. The US' statutory model has tended to reduce the significance of that issue but remains based on the same theory.
Confronted then with the same challenges these disparate systems have generated surprisingly similar responses to the challenges with which they have been confronted. Everyone applies some form of rule about procedural fairness; some apply rules about proportionality and there seem to be in place reviews of varying intensity to be applied in situations such as rationality. Nevertheless, heritage issues persist and continue to exert influence. Of some significance is the position of administrative estoppel where the ultra vires theory, coherently in my view, requires the existence of a doctrine that permits, indeed requires, condonation of governmental behaviour which if done by private persons would be actionable. Although one may admire the impeccable logic which brings that situation about as a deduction from the ultra vires theory it is to be doubted, in my opinion, whether it is conducive to wholesome administration. If that be so, then that set of principles may be added to the long list of defects which may be ascribed to the ultra vires theory.
Brown, Neville and Bell, John, French Administrative Law (Clarendon Press, 5th ed, 1998)
Thompson, David, 'Equitable Estoppel of the Government' (1979) 79 Columbia Law Review 551
Commonwealth v Verwayen (1990) 170 CLR 394
Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309
Minister for Immigration v Kurtovic (1990) 21 FCR 193
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Pyrenees Shire Council v Day (1998) 192 CLR 330
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Al Jubail Fertilizer Co & Saudi Arabian Fertilizer Co. v Council (Case C-49/88)  ECR 1-3187
Commission v European Parliament and Council (Case C-378/00)  ECR 1-937
Council v Hautala (Case C-353/99)  ECR 1-9565
Meiko-Konservenfabrik v Federal Republic of Germany (Case 224/82)  ECR 2539
Stolting v Hauptzollant Hamburg-Jonas (Case 138/78)  ECR 713
Transocean Marine Paint v Commission (Case 17/74)  ECR 1063
D'Aillières, Conseil d'État [French Administrative Court], 7 February 1947 reported in Rec Lebon 50
Dame Veuve Trompier-Gravier, Conseil d'État [French Administrative Court], 5 May 1944 reported in Rec Lebon 133
Entreprise Transports Freymuth, Tribunal Administratif [Administrative Tribunal] Strasbourg, 8 December 1994 (unreported)
Ministre du Budget c/
Ministre de l'agriculture c/ Dame Lamotte, Conseil d'État [French Administrative Court], 17 February 1950 reported in Rec Lebon 110
Pichene , Conseil d'État [French Administrative Court] 9 May 1990 reported in Rec. Lebon 116
-opérative d'habitation À bon marché de Vichy Cusset-Bellerive, Conseil d'État [French Administrative Court], 24 April 1964 reported in Rec. Lebon 244
Société des établissements Cruse, Conseil d'État [French Administrative Court], 9 May 1980 reported in Rec. Lebon 217
Trebe, Conseil d'État [French Administrative Court], 4 March 1949 reported in Rec Lebon 105
Anisminic Ltd v Foreign Compensation Commission  2 AC 147
Associated Provincial Picture Houses Ltd v. Wednesbury Corporation  1 KB 223
Boddington v British Transport Police  2 AC 143
R v. North and East Devon Health Authority ex parte Coughlan (2001) QB 213
R v Hull University Visitor ex p. Page  AC 682
Royal British Bank v Turquand (1856) 6 E&B 327
United States of America
City of Arlington v Federal Communications Commission 569 US (2013)
Federal Crop Insurance Corporation v Merrill 332 US 380 (1947)
Molton, Allen & Williams, Inc v Harris 613 F.2d 1176 (1980)
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions Judicial Review Act 1977 (Cth)
Judiciary Act 1903 (Cth)
Constitution (1799) (Fr)
United States of America
Administrative Procedure Act 1946 Pub L 79-404, 60 Stat 237
Charter of Fundamental Rights of the European Union, opened for signature 2 October 2000, 2000 O.J. (C 326) (entered into force 7 December 2000)
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953)
Treaty of Amsterdam Amending the Treaty on European Union, The Treaties Establishing the European Communities, opened for signature 2 October 1997, 1997 O.J. (C 340) (entered into force 1 May 1999)
Treaty on European Union, opened for signature 7 February 1992, 1992 O.J. (C 191) (entered into force 1 November 1993)
Justice Nye Perram, 'Project Blue Sky: Invalidity and the Evolution of Consequences' (Speech delivered at the Australian Institute of Administrative Law, Sydney, 20 November 2012)
** This source list has been complied in accordance with the Australian Guide to Legal Citation (3rd ed, 2010) other than French case law which has been compiled with the assistance of Mr Stephanie Cottin, of Secretariat General of the French Government in accordance with best practice French citation methods.
 Neville Brown and John Bell, French Administrative Law (Clarendon Press, 5th ed, 1998), 47.
 See Ministre du Budget c/- Sarl Auto-Industrie Meric, Conseil d'État [French Administrative Court] 31 March 1995 reported in Rec Lebon 154; SA co
-opérative d'habitation À bon marché de Vichy Cusset-Bellerive, Conseil d'État [French Administrative Court], 24 April 1964 reported in Rec. Lebon 244; Société des établissements Cruse, Conseil d'État [French Administrative Court], 9 May 1980 reported in Rec. Lebon 217.
 Dame Veuve Trompier-Gravier, Conseil d'État [French Administrative Court], 5 May 1944 reported in Rec Lebon 133.
 Trebe, Conseil d'État [French Administrative Court], 4 March 1949 reported in Rec Lebon 105.
 Although compare the use of proportionality reasoning in a constitutional context.
 See Pichene , Conseil d'État [French Administrative Court] 9 May 1990 reported in Rec. Lebon 116.
 Entreprise Transports Freymuth, Tribunal Administratif [Administrative Tribunal] Strasbourg, 8 December 1994 (unreported).
 D'Aillières, Conseil d'État [French Administrative Court], 7 February 1947 reported in Rec Lebon 50.
 Ministre de l'agriculture c/ Dame Lamotte, Conseil d'État [French Administrative Court], 17 February 1950 reported in Rec Lebon 110.
 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953).
 Treaty on European Union, opened for signature 7 February 1992, 1992 O.J. (C 191) 1 (entered into force 1 November 1993).
 Treaty of Amsterdam Amending the Treaty on European Union, The Treaties Establishing the European Communities, opened for signature 2 October 1977, 1997 O.J. (C 340) (entered into force 1 May 1999).
 Charter of Fundamental Rights of the European Union, opened for signature 2 October 2000, 2000 O.J. (C 326) (entered into force 7 December 2000).
 See Sir John Laws, 'Illegality: the problem of jurisdiction' in Michael Supperstone and James Goudie (eds), Judicial Review (Butterworths, 1992) 51, 67; Sir John Laws, 'Illegality: the problem of jurisdiction' in Michael Supperstone and James Goudie (eds), Judicial Review (Butterworths, 2nd ed, 1997) 4.13-4.15; Mark Elliott, 'The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law' (1999) 58(1) Cambridge Law Journal 129; Christopher Forsyth (ed), Judicial Review and the Constitution (Hart Publishing, 2000), 269, 341, 327, 373; Mark Elliott, The Constitutional Foundations of Judicial Review (Hart Publishing, 2001); Trevor Allan, 'The Constitutional Foundation of Judicial Review: Conceptual Conundrum or Interpretive Inquiry?' (2002) 61(1) Cambridge Law Journal 87.
 Justice Nye Perram, 'Project Blue Sky: Invalidity and the Evolution of Consequences' (Speech delivered at the Australian Institute of Administrative Law, Sydney, 20 November 2012).