A Cheer for Administrative Law

Administrative law can only do so much to avert injustice―but what it can do still matters

I’d like to come back, however belatedly (sorry!) to an interesting post by Paul Daly at Administrative Law Matters. Professor Daly uses the example of Novak Djokovic’s ultimately unsuccessful challenge to the Australian government’s cancellation of his visa to illustrate “the value of administrative law”. He writes:

Immigration has traditionally been a prerogative of the executive, an island of unregulated discretion in the legal system. But over the last half century or so, courts around the common law world have landed on this island, wielding principles of procedural fairness and substantive reasonableness. Several generations ago, it would have been unthinkable that a Minister would give any reasons — still less 10 pages of reasons! — to support a decision to cancel a visa. Yet because the courts now stand ready to scrutinize executive action, ministers can no longer rely on authority alone to make decisions. They must engage in the reasoned exercise of public power.

Professor Daly acknowledges that “[a]dministrative law is no panacea. Hardly any immigrant has Djokovic’s resources and will receive the Cadillac justice he has been receiving.” That’s true of course. Still, he concludes that Mr Djokovic’s case “is an important reminder of the value of administrative law in pushing ministers and others to justify their exercises of public power in reasoned terms”. This also is true. And one might even add that, in law as elsewhere, those who cannot afford the Cadillac will often benefit from the ability and willingness of others to shell out for one.

Yet despite this I think that Mr Djokovic’s case shows at least as much that administrative law is, at best, only a partial remedy to injustice. Granting the point that it can force officials to “engage in the reasoned exercise of public power” (which is often though not always true), it does comparatively little to ensure that the power is exercised justly, and nothing at all to ensure that its existence is just. The latter of course is not administrative law’s role. But it’s a point that we should not lose sight of if we choose to celebrate administrative law. In a just world, there would be a great deal less administrative law than we need in ours.

In our world, it is indeed an achievement that immigration decisions have to be reasoned and justified. After all, the founding father of Canadian administrative law scholarship evidently lamented the fact that, although the government “regards immigration as a privilege, not as a right, and wants to avoid having to disclose to a court its sources of information about the political colour of immigrants”, courts lack the good sense to see the point: “On the other side of the ideological fence, a court , with the sweating immigrant before it, sometimes sets aside a deportation order on very flimsy grounds, for instance, that it was made on a Sunday”. (John Willis, “Administrative Law in Canada” (1961) 39:2 Can B Rev 251 at 258) It’s good that we’ve moved that ideological fence some way towards decency.

But let’s not kid ourselves. We haven’t moved it very far. As Maria O’Sullivan explains in The Conversation, the reasons that ostensibly motivated the cancellation of Mr Djokovic’s visa were that his ― presumed ― opposition to vaccination against the present plague might encourage similar opposition among Australians and might undermine “social order”. Professor O’Sullivan points out that ministerial explanations were questionable on their own terms. But she also notes that, perhaps more importantly for the future, the precedent set in Mr Djokovic’s case means that people’s ability to come to Australia might be taken away on account of their actual or even perceived views being a hypothetical source of possible trouble in the opinion of a minister. What starts with an arrogant fool of a tennis player won’t stop there. Yet substantive Australian immigration law seems to allow for precisely this result, and administrative law offers no redress.

Redress will come, not any further development of administrative law, but from substantive law being such to prevent this sort of injustice. In this regard, it is telling that Professor Daly sets his reference point to 50 or 60 years ago, when immigration restrictions ― and the government’s willingness to treat immigration as a privilege to be granted or withheld on a political whim ― had become generally accepted. But let’s not stop 50 years ago; let’s go back another century. In 1872, English-speaking countries simply did not restrict immigration, though health measures and quarantines did exist. (Hence let me note: I’d have very little sympathy for Mr Djokovic if he had been barred from Australia due to not being vaccinated. But that’s very much not what has happened.) In North America, immigration controls were the product, first, of anti-Asian racism in the late 19th century, and then of more generalized xenophobia in the first decades of the 20th. On the other side of the pond, as David Cannadine writes in The Victorious Century, the closing of the UK’s borders at the turn of the 20th century was the result of bigotry against the Irish and, especially, of anti-Semitism. Australia too implemented and long held to an overtly racist immigration policy.

Of course, contemporary immigration law does not discriminate as overtly. But the idea that movement across borders is something that can be regulated in the first place comes from that evil and unjust source. And it still means that people can be stopped from doing the same (often stupid) things that we are allowed, even though they are in all particulars bar their failure to have been born in the right place or to the right parents the same as us, for no reason other than that failure. The old-school racism may be gone, but the xenophobia inherent in the idea of immigration restrictions remains. And it is not administrative law that will purge it, but the realisation that the closing of the borders 120, 140 years ago was an injustice, and that it must be ended.

Hence I will only give one cheer for administrative law. Not two, for administrative law is not meant to reform repressive substantive laws, and certainly not three, for it is powerless to mend injustice raised up to the rank of political philosophy. The trouble with cheering too loudly for administrative law is that this risks making us forget these deeper injustices; we might be content with bringing order and reason to what remains, at bottom, a logic of repression.

But my cheer for administrative law ― at least, for robust administrative law, which truly holds the administrative state to its legal and constitutional duties, rather than for the all-too-often diluted version that many administrative lawyers prefer ― will be a loud one. As E.P. Thompson famously said,

We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretentions of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class-bound procedures, and to disarm ourselves before power.

Administrative law is an essential component of the Rule of Law, and so of the unqualified human good that Thompson had the wisdom to discern amid what he saw amid great substantive injustice. Hooray for it.

Blessing Hypocrisy

After somewhat of a hiatus, I am back to blogging for the CBA National Blog. In a post they have just published, I come back to the issue of people smuggling, on which the Supreme Court delivered two decisions last week, which I summarized here. As I have already explained here and here, I believe that the laws that Canada (and other countries) has enacted to punish smuggling are hypocritical, because they harm the very people they purport to protect, the “victims” ― who are actually consenting clients ― of the smugglers.

While I use the National Blog post to reiterate the arguments against anti-smuggling laws, I also criticize the Supreme Court’s apparent blessing of them (or at least of the narrowed versions that emerge from last week’s decisions). The Court was wrong, I believe, to unthinkingly endorse laws that are unjust and hypocritical. Indeed, it probably should refrain from blessing legislative policies altogether.