Institutional Values in Judicial Review of Administrative Action: Re-Reading Attorney-General (NSW) V Quin

Abstract

Owing to its focus on statutory interpretation, judicial review of administrative action in Australia has been perceived to be ‘formalist’, particularly when compared with review in comparable nations such as England. This led Michael Taggart to characterise review in Australia as ‘exceptionalist’. The judgment of Brennan J in Attorney-General (NSW) v Quin, in which Brennan J emphasised the importance of courts remaining away from ‘the merits’ of administrative decision-making while exercising the supervisory jurisdiction has become closely associated with the view that review in Australia is rigid and formalist. In this article, I re-evaluate the judgment of Brennan J and place it in the context of its facts and of its time. This helps to reveal that the approach to judicial review of administrative action set out by Brennan J in Quin should not be seen as formalist. Rather, both Brennan J’s approach and the contemporary ‘statutory approach’ to judicial review can be seen as informed by values connected with what are understood to be the appropriate functions of each institution of government found within the Australian political system.