Mark Aronson

Between Form and Substance: Minimising Judicial Scrutiny of Executive Action

The privative clause is dead, but there are other ways of reducing meaningful judicial scrutiny of government illegality. Pushed to the extreme, these threaten to hollow out judicial reviews much-vaunted promise of protecting the rule of law, even on such a basic issue as the interpretation of an Act of Parliament. Other mechanisms for judicial supervision have also become more fragile. These include collateral challenge, and the potential for holding public officers to account through tort liability and criminal responsibility. ASIO officers, for example, have prospective immunities from tort law and criminal responsibility. Courts can act upon government evidence kept entirely secret from the opposing party. This article asks whether there is any stopping point for Acts that effectively remove government officers from legal controls.