Page 5018 - Week 16 - Tuesday, 26 November 1991
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MR MOORE (1.02 am): Mr Speaker, it seems to me that Mr Collaery's amendment is a clear breach of the notion of the separation of powers, and for that reason I shall be opposing the amendment.
MR COLLAERY (1.02 am): Mr Speaker, I will restrain myself. In the book by Flick that Mr Connolly referred to is the famous Professor Burns case, which was a benchmark case in that text - a case I started in 1979. I can only say that I have not achieved the level of comprehension - perhaps it is the way I expressed it - that I would have found within minutes were I with my practising administrative legal colleagues.
Mrs Grassby: Oh!
MR COLLAERY: I mean that comment. The first thing is that Mr Connolly utterly confused the difference between judicial review and merit review. This is esoteric to the rest of you, so I will not delay you. But I assure you that Mr Connolly's statements utterly confused merit review and judicial review. I took steps to stress to you, and I read the relevant section twice, that what we were talking about was the proper power of the courts to test for procedural fairness - whether the correct procedures have been carried out. Mrs Grassby laughs. What was sought to be done was to determine whether the decision making process itself was sound.
The rest of this debate today sprang out of the Hansard debates in the Federal Parliament in 1977 and earlier, which I went back to for extrinsic help in my administrative law practice. There were the troglodytes who said that this attacked ministerial powers, that this attacked the power of the Crown, and that this damaged the separation of powers. What was said here tonight was run and lost years ago over on the hill. For Mr Humphries' advice, the fact is that the legislation is replete with the terms "reasonable" and "fair". He will find those terms, "fair" and "reasonable", anywhere he looks - either singly or conjoined.
One will also find the many great administrative law wins over oppressive government since these laws came in. They exist on two strains. One is merit review, which takes place in the Administrative Appeals Tribunal. That is not the type of review that I am suggesting, but that is what Mr Connolly was confused on when he quoted from that section of the text. That relates to deportation type decisions, where there is merit review. The court puts itself in the place of the decision maker. That is the issue that both Mr Humphries, with respect, and Mr Connolly, with respect, confused.
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