Comments on Paul Daly, Understanding Administrative Law in the Common Law World, by Peter Cane

This is the second piece in a series of comments offered on Paul Daly’s book Understanding Administrative Law in the Common Law World (OUP 2021) at a meeting hosted by the public law cluster at the Essex Law School on 9th March 2022 and gathering Paul Daly, John Bell (click here for his comments), Peter Cane and Giacinto della Cananea. Paul Daly provided a summary of his book earlier, available by clicking here. He will kindly reply to the comments.

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1. When I was an Antipodean lad back in the late 1960s and early 1970s, the various Australian legal systems – federal and state – were linked to the English(/Welsh) legal system via the appellate jurisdiction of the Judicial Committee of the Privy Council. Some common law jurisdictions that were once parts of the British Empire still retain the link; but most former colonies have long since cut this tie to the UK. Amazingly, New Zealand did so only in 2005, and Australia not long before in 1986 (by the Australia Acts). In my student days, studying Privy Council, House of Lords, English Court of Appeal and sometimes even High Court decisions was part and parcel of studying Australian law, not an exercise in comparative law. In the early 1980s I co-authored a textbook entitled The Law of Torts in Australia that boasted a novel emphasis on Australian materials; but even so, English law and judicial decisions still loomed large.

2. Public law was a slightly different matter. Australia is a federation with a written Constitution. Over the years, the Privy Council received quite a lot of stick for some of its interpretations of the Constitution; and Australian administrative law in the first half of the 20th century was moulded by the constitutional entrenchment of the writs certiorari and mandamus, coupled with Australia’s distinctive system of industrial arbitration tribunals. Although Australian law was influenced by the judicial-review activism of the House of Lords in the 1960s, that influence was indirect and took the form of the creation of a general appeals tribunal, the development of a distinctive concept of merits review, and effective statutory abolition of the prerogative writs (except to the extent that they are constitutionally entrenched). Australia did not have its Anisminic moment until the early 21st century; and when it came, it emerged out of the Australian constitutional context. British membership of the EU, the enactment of the Australia Acts and, later, the UK Human Rights Act led to increasing divergence between Australian and English administrative law. Despite the deep roots of Australian administrative law in English soil, English administrative law is now an object of comparative study in Australia.

3. The general demise, over the 20th century, of the overseas jurisdiction of the Privy Council and the extra-territorial powers of the UK parliament, has transformed the geopolitics of the common law world. In 1900 (leaving aside US law and systems derived from it), the image of a hub and spokes captured well enough the relationship between English law on the one hand, and derivative jurisdictions on the other. By 2000, that image had become generally inapposite. Diffusion of law around the common law world is now more horizontal than vertical. For instance, Asian common law systems are increasingly studied as an inter-related set independently of their common English legal heritage. This sea-change provides the backdrop to Paul’s study. The blossoming of scholarly activity in comparative constitutional law (since the fall of the Berlin Wall), and comparative administrative law (in the past couple of decades or so) has encouraged this re-imagining of the post-colonial, Anglophone legal world.

4. In this light, Paul’s selection of jurisdictions is significant. Australia, Canada and New Zealand were all settler colonies; and since the fall of Rome, at least, England and Ireland have occupied contiguous zones of a broad, European cultural space. Paul subscribes to a tradition of comparative law studies that focuses on similarities between systems and aims at convergence around preferred solutions to ‘similar problems’. A leading 20th-century exponent of this method was the great torts scholar, John Fleming, who engaged in a life-long search of common-law jurisdictions (including the US) for the ‘best’ tort law. Given the relative, cultural homogeneity of Paul’s chosen jurisdictions, it is unsurprising that he ‘derives’ (p 14) from their various bodies of case-law four underlying, liberal-democratic values framed at a high level of abstraction: protection of the individual, promotion of good government, electoral democracy and diffusion of power. Paul suggests that the best law is generated by judicial respect for these values to the extent they converge on a particular rule or principle, and in careful judicial balancing to the extent that they are in tension with one another. I suspect that it is because Paul finds these values to be immanent in the caselaw that he offers them as an aid to ‘understanding’, rather than ‘explanation’ (p 22). Explanation, we might think, would require us to look beyond and outside the doctrine – the rules and principles – in some of the directions that John Bell has suggested in his comment.

5. I would also suggest that a focus on similarity in comparative methodology, and an agenda of convergence, tend to be associated with a focus on doctrine. If, instead, we look for differences rather than similarities, it may be quite difficult even to understand what is going on doctrinally simply by looking at the cases themselves. In terms of values, the reasons the judges give may enable us to say little more than that some judges balance the values differently than others, or that some hear dissonance between values where others hear consonance. The obvious next question is: why the differences?

5. Let me illustrate the point with reference to judicial review for error of law. As Paul observes, here there is significant divergence between Commonwealth jurisdictions ‘certainly at the level of detail’ (p 104). These differences revolve around the value that Paul calls ‘decisional autonomy’, which is concerned with the allocation of ultimate decision-making power between the courts and the executive. On a spectrum of standards of review between correctness at one end and permissive unreasonableness at the other, Australian courts sit at the correctness pole while Canadian courts (for instance) have, over the past decades, shifted uneasily between various points closer to the permissiveness pole.  This cannot be explained by reference solely to the value of decisional autonomy, which is sufficiently abstract to accommodate all the various judicial positions. Important in explaining the Australian position is the fact that since the 1920s the Australian Constitution has been interpreted to require observance of a very much stricter distinction between law and politics, legality and ‘merits’, than is recognised in any of the other of Paul’s target jurisdictions. Australian courts have a peculiarly intense fear of contamination of judicial power by politics. This helps to explain the Australian aversion to judicially enforceable bills of rights. The distinction provided the foundation for the creation of the Administrative Appeals Tribunal in the 1970s which, by hearing appeals from first-level tribunals, saves the courts from becoming involved in the ‘merits’ of executive decisions. A constitutional distinction between courts and tribunals is a distinctive feature of the Australian system. The distinction also helps to explain the retention in Australia of the concept of ‘jurisdiction’ long after it was abandoned in other target jurisdictions. And, significantly, this retention is tied to the constitutional entrenchment of the writs of prohibition and mandamus. Another factor, I think, relevant to explaining (and even understanding) Australian law on this topic is the federal nature of the polity. Space prevents elaboration of this point. But along with the others, it makes me wonder about Paul’s claim that the cases he discusses could ‘safely be cited’ to a judge in any of the target jurisdictions. (p. 28) On various issues, the High Court of Australia has explicitly rejected positions taken up by courts in other jurisdictions.

6. As long ago as the 1980s, observers noted sharp differences between the Australian law on standards of review and US law. Yet, the four values are as central to US as to Australian law. I have often wondered what might explain the difference between the approach of Canadian law and the positions in Australian, New Zealand and English law. Some have suggested that legal scholars have had considerable influence, on and off the Bench, on administrative law in Canada. One might also speculate about US influence. At all events, my general point is that divergence is just as important as convergence when it comes to either explaining or understanding administrative law across the common law world. Paul has done a marvellous job in tracing the convergences. Others are now free to map the divergences.

Posted by Professor Peter Cane (Cambridge/ANU).
Suggested citation: P Cane, ‘Comments on Paul Daly, Understanding Administrative Law in the Common Law World‘, BACL, available at https://british-association-comparative-law.org/?p=4531.