Academic journal article Melbourne University Law Review

'Jurisdictional' Facts and 'Hot' Facts: Legal Formalism, Legal Pluralism, and the Nature of Australian Administrative Law

Academic journal article Melbourne University Law Review

'Jurisdictional' Facts and 'Hot' Facts: Legal Formalism, Legal Pluralism, and the Nature of Australian Administrative Law

Article excerpt

This article is a study of the interrelationship between two intellectual impulses in Australian administrative law--legal formalism and legal pluralism. It concerns the operation of jurisdictional fact review in planning and environmental cases, focusing on the line of case law that led to the High Court decision in Corporation of the City of Enfield v Development Assessment Commission (2000). The analysis shows that these two intellectual impulses are closely entwined in doctrine, but each operates on a different basis of what a fact' is. Facts from a legal formalist perspective are understood as objective and hard-edged while from a legal pluralist perspective they are more likely to be conceptualised as contested and uncertain.

CONTENTS

  I Introduction
 II Australian Administrative Law: Legal Formalism and Legal Pluralism
III Facts in Administrative and Environmental Law
    A Jurisdictional Facts
    B 'Hot' Facts
    C A Fact as Both a 'Jurisdictional' Fact and a 'Hot' Fact?
 IV Enfield
  V Reflections and Consequences

I INTRODUCTION

This article is an exploration of the interrelationship between legal formalism and legal pluralism in Australian administrative law. It focuses upon the operation of jurisdictional fact in planning and environmental cases, and in particular the line of case law that led to the High Court decision in Corporation of the City of Enfield v Development Assessment Commission ('Enfield'). (1) That case is part of what is described as the 'resurgence of jurisdictional fact review. (2) The concept of jurisdictional fact is recognised as an example of legal formalism while the subject matter of the case, planning law, is an example of legal pluralism. By examining the Enfield line of cases, not only can the interrelationship between legal formalism and legal pluralism be seen, but also how each of these concepts rests on different understandings about the nature of public administration.

This article is structured as follows. First, I provide a brief sketch of Australian administrative law, and the concepts of legal formalism and legal pluralism and how they are commonly understood to have operated in Australian administrative law. In Part III I focus upon fact-finding in administrative law and environmental law to illustrate how legal formalism and legal pluralism conceptualise administrative fact-finding, and thus the role of public administration, differently. This creates challenges in applying the concept of jurisdictional fact in environmental and planning cases. In Part IV I then illustrate these differences and concepts in the line of Enfield cases. In conclusion I argue my analysis offers the potential for a revised cartography of Australian administrative law.

Four caveats are important to note before starting. The first is this article is not an exhaustive analysis of jurisdictional fact, legal formalism, or legal pluralism. I am also acutely aware that my depictions of legal formalism and legal pluralism are painted with a very broad brush. This is because my objective is not to chart these ideas with pinpoint accuracy and more to get debate going about the legal culture of Australian administrative law. Webber describes the notion of legal culture as paying

   attention to the texts of the law and to the distinctive ordering
   of priority, in different legal traditions, among these texts. But
   it also incorporates the broader range of considerations that
   actors routinely rely upon, sometimes implicitly, sometimes
   expressly, in their interpretation and application of the law:
   presumptions as to the underlying principles of justice;
   expectations as to institutional role (the role of courts vis-a-vis
   legislatures, the role of provincial versus central governments,
   the role of state regulation in relation to private ordering);
   general norms of social interaction and fair dealing emergent in
   particular social practices; and a sense of law's historical
   evolution and future potential. … 
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