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Foreword

THE LAW COMMISSION agreed to a proposal by its President, Justice

Baragwanath, to begin a project under his direction, to devise a solution to what all Commissioners agreed (and still agree) to be an untidiness in judicial review procedure. The mischief is that there are decisions (exercises of the prerogative for example) which may be subjected to judicial review, but to which the application for review procedure provided by the Judicature Amendment Act 1972 does not apply, because that Act is confined to exercises of statutory power.

As the project developed, however, it seemed to some Commissioners that what was being constructed was a very big bulldozer to squash a very small mole-hill. The President felt that the project was necessary as part of the exercise to confront the issue of whether coercive orders might be made against the Crown. Not all of his colleagues on the Commission agreed that this was an issue that it was sensible to spend time on, given the Crown’s practice of heeding judicial declarations and the impossibility of effective enforcement if it did not. And there were other reservations, which seem unnecessary to particularise.

Moreover, it seems at least arguable that if contrary to this view the issue of whether a coercive order can be made against the Crown does have practical significance, any law change should (as should any other legislative intervention in the substantive law of judicial review) be preceded by a thoroughgoing inquiry into the constitutional significance of the shift in the boundary between judicial and executive power plus a law and economics examination of the effect (on commerce in particular) of the functioning of the existing law. It is by no means axiomatic that the public interest is served by an ever-widening power of judicial review of executive action.

The President, his term of office nearing expiry, was anxious that the work done on the project to date should not be wasted, and this anxiety was shared by his fellow Commissioners. To solve the differences in viewpoint the Commission has published the President’s opinion as a study paper.

So to make it quite clear, the paper that follows is not a statement of the Commission’s views. The paper must stand on its own feet as a work of legal scholarship, one (it seems appropriate to observe) by an author who at the bar had an extensive administrative law practice and whose wide reading and in depth knowledge of the subject commands the respect of public lawyers.