Summary of Papers The paper by Daryl Davies, A Tribute to Sir Gerard Brennan, was adapted from the keynote speech delivered at the dinner held in Sir Gerard s honour during the Public Law Weekend on 10-11 November 1998. This paper highlights the personal and intellectual qualities which made Sir Gerard Brennan an outstanding figure in the law, and in particular an ideal choice to lead the Administrative Appeals Tribunal (AAT) in its infancy. Daryl Davies pays tribute to Sir Gerard s humility and humanity, as well as his capacity for well crafted and lyrical language. His paper provides an analysis of the key philosophical underpinnings of Sir Gerard s judicial writings, and highlights the importance of the rule of law as an organising principle. The paper examines a number of ways in which Sir Gerard, in his capacity as President of the AAT, applied his strong sense of legal principle and set the standards for the institution and its members. This includes a description of several of the novel cases and challenges which Sir Gerard confronted in the earliest days of the Tribunal. Sir Gerard very kindly agreed to add his voice to this collection. His paper, The Review of Commonwealth Administrative Power: Some Current Issues, reflects on key aspects of the Australian administrative law system. Starting with the constitutional underpinning of review of executive power, Sir Gerard points out that the political mechanisms for review must be buttressed by alternative methods, including review by the courts. Given that imperative, he is critical of laws which deprive the Federal Court of its general review jurisdiction, not least because of the consequent pressure this places on the guaranteed jurisdiction of the High Court. Turning to the Administrative Appeals Tribunal, he is troubled by proposals for its successor, the Administrative Review Tribunal. In part his concerns are due to the diminution of emphasis on legal skills for its members and the likely consequent increase in appeals to the courts. He is also worried lest the proposed appointments process by portfolio ministers lead to a reduction in the independence, competence and legal capacity of xxvii
THE BRENNAN LEGACY the superior merits review body. Finally, in an extensive examination of the topic, Sir Gerard considers the challenges to the administrative review system arising from the outsourcing of executive functions. He suggests solutions to the issue, based in part on English developments, which he believes could be transported, even given the constitutional limitations inherent in ss 75(iii) and (v) of the Constitution. The paper by Sir Anthony Mason, Judicial Review: The Contribution of Sir Gerard Brennan, examines the competing theoretical approaches to the subject of judicial review. His paper begins with an analysis of the fundamental concepts underlying Sir Gerard s approach to judicial review, including the separation of powers doctrine and the limitations of legitimate judicial method. Sir Anthony characterises Sir Gerard as a principled and rule-based common lawyer, with a reasoned, methodical approach to the development of the common law and the structures of the law. His paper identifies some of the core common law rights and principles which were recognised by Sir Gerard in a number of cases, including the right to private property, the right to personal liberty and the right to personal dignity. Sir Anthony then examines the processes of judicial distillation and analogical development by which Sir Gerard advanced the common law in these areas. Sir Anthony s paper compares the principal theoretical approaches to judicial review; the ultra vires theory, the notion of an implied statutory jurisdiction (the theory which is ascribed to Sir Gerard) and the common law jurisdiction theory to which Sir Anthony himself subscribes. Sir Anthony considers the implications of these underlying theories of judicial review for the treatment of certain specific issues in administrative law, including privative clauses. His paper then provides an analysis of several emerging issues in judicial review. These issues are the doctrine of legitimate expectations, the continuing development of procedural fairness, the concept of proportionality and the distinction between jurisdictional and non-jurisdictional errors of law. In relation to each of these, Sir Anthony examines the views of Sir Gerard Brennan and concludes that Sir Gerard has made a significant contribution to the ongoing development of the law in relation to these fundamental but unresolved issues. Sir Anthony s paper concludes with an examination of the complexities of the Hickman xxviii
SUMMARY OF PAPERS principle, which be believes is too subtle and uncertain to provide sufficient guidance to judges and administrators alike. The commentary on Sir Anthony Mason s paper, by Stephen Gageler, Sir Gerard Brennan and Some Themes in Judicial Review, provides analysis of the constitutional underpinnings of Sir Gerard Brennan s approach to administrative law. Like Sir Anthony, Stephen Gageler links Sir Gerard s theoretical approach to judicial review with his firm notions of constitutional order and the appropriate role of the courts in relation to the other branches of government. Gageler examines the place of s 75(v) of the Constitution in this order, and considers its legal and historical context. His paper also provides a detailed analysis of the treatment of Anisminic in Australia and the significance of the Hickman principle. Gageler considers that the judicial treatment of both Anisminic and the Hickman principle have important implications for the separation of powers, the scope of judicial review and the place of s 75(v) in the constitutional order. The paper by Stephen Skehill, Sir Gerard Brennan and Administrative Tribunals, analyses the significance of Sir Gerard Brennan s contribution as the first President of the AAT and of the Administrative Review Council (ARC). Detailing his own experiences with the Administrative Appeals Tribunal in its earliest days, Stephen Skehill portrays an institution facing novel and significant difficulties. His paper highlights the suspicious attitude of the bureaucracy to the AAT and the lack of detailed guidance in the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on such important matters as the taking of evidence, the precise criteria for evaluating administrative decisions, the onus of proof and the status of government policy. According to Stephen Skehill, Sir Gerard played a central role in overcoming these early difficulties, developing a foundational jurisprudence, and defining the distinctive culture of the AAT. This paper details Sir Gerard s principled approach to the operation of the AAT, which was marked by the introduction of a judicial style, an emphasis on the Tribunal s independence, and the development of a productive relationship with the bureaucracy and with applicants and advocates appearing before the Tribunal. The paper by Justice Rosemary Balmford, Administrative Tribunals and Sir Gerard Brennan: Some Specific Topics, evaluates the importance of Sir Gerard Brennan s achievements as President of xxix
THE BRENNAN LEGACY the AAT and the ARC. Justice Balmford places the AAT in the context of the history of tribunals in Australia. Like Stephen Skehill, she emphasises the novelty of the AAT and the important matters of substance and procedure which remained unspecified by the AAT Act and the Kerr and Bland Committee Reports. Justice Balmford s paper concludes that Sir Gerard s leadership, as exercised through the quality of his decisions in the Tribunal, his careful management of Tribunal members and his defining role in the ARC, was fundamental to the success and standing of the AAT and the tribunal process generally. Justice Balmford also examines the ongoing tension between the two underlying purposes of the AAT; to improve the standard of administrative decision-making generally, and to provide a means for aggrieved individuals to be accorded administrative justice. Her paper recognises the difficulty of balancing these objectives, but suggests that Sir Gerard Brennan made an important contribution to achieving such a balance. The paper by Justice Murray Wilcox, Sir Gerard Brennan and Human Rights Law in Australia, provides an examination of Sir Gerard s philosophical approach to the subject of human rights, the constitutional structure which dominated his legal thought and the principles by which he justified judicial developments to give protection to human rights. Justice Wilcox characterises Sir Gerard Brennan as a man of passions, driven by sensitivity, compassion and humanity. Yet Justice Wilcox also discovers in Sir Gerard s judicial and extra-judicial writings a strict sense of constitutional order, an unswerving respect for legislative supremacy and a strong awareness of the limited role of the courts and the integrity of the judicial process. This paper explores the legal techniques by which Sir Gerard contributed to the development of human rights law within the confines of this constitutional structure and within the terms of legitimate judicial method. Justice Wilcox examines Sir Gerard s approach to statutory interpretation, as well as his careful and reasoned approach to the development of the common law. The paper by Gerard Carney, Sir Gerard Brennan and Aspects of his Human Rights Perspective, explores five major themes in Sir Gerard Brennan s judicial and extra-judicial statements relating to the place of human rights in the law. Gerard Carney points to Sir Gerard s concern for judicial integrity and independence as a xxx
SUMMARY OF PAPERS central organising principle. His paper considers what this principle requires of both judges and governments. Like Justice Wilcox, Gerard Carney emphasises Sir Gerard s strict sense of constitutional order and his awareness of the proper relationship between the judiciary and the other branches of government. Carney s paper highlights Sir Gerard s respect for the primacy of the legislature in the constitutional framework and details his attempts to define the legitimate province of judicial action. His third theme concerns Sir Gerard Brennan s approach to statutory interpretation in relation to fundamental common law rights, such as personal liberty, privacy, freedom of expression and freedom of religion. His fourth theme is the development of constitutional implications. The final theme of the paper concerns the development of the common law. Carney examines Sir Gerard s attempts to articulate a methodology for developing the common law in accordance with the contemporary values of the Australian community, while remaining respectful of the delicate balance of the constitutional order. Robin Creyke has explored some themes which have emerged from Sir Gerard s extra-curial writings in her paper, Sir Gerard Brennan s Extra-Curial Writings. These include Sir Gerard s principled approach to the extent to which judges should share their views on matters of public debate or issues likely to come before the courts, his significant contribution to the development of the concept of merits review in Australia, through his captaincy of the leading merits review tribunal, the Commonwealth AAT, and his approach to issues such as human rights protection and the use by judges in their reasons for judgment of the concept of community values. Finally, she picks out some of Sir Gerard s favourite expressions, a collection which is shared alongside Sir Gerard s own fine contributions to judicial writing, a facility for which he is noted. Robin Creyke Steven Free xxxi