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45 Fed. L. Rev. 569 (2017)
The Entrenched Minimum Provision of Judicial Review and the Limits of Law

handle is hein.journals/fedlr45 and id is 571 raw text is: 
















  THE ENTRENCHED MINIMUM PROVISION OF JUDICIAL
                 REVIEW AND THE LIMITS OF 'LAW'


                             Lisa  Burton  Crawford



                                   ABSTRACT
The Australian Constitution constrains the scope of executive power that Parliament is
capable of conferring in several ways. This article examines whether any constraints
flow from the inherent requirements of 'law' itself. That is, is Parliament incapable of
conferring executive power of a certain kind or breadth, because the statute that would
be required to do so is simply not a 'law' for the purposes of the Australian Constitution?
More  broadly, the article explores the connection between constitutional doctrine and
legal theory, and the ways in which statutory conferrals of very broad executive powers
can diminish the rule of law.

I   INTRODUCTION
The  Australian Constitution provides an 'entrenched minimum   provision of judicial
review' of executive action.1 Australian Parliaments cannot oust the protected review
jurisdictions of the State Supreme or High Courts, in substance or in form.2 In light of
the recent decision in Graham v Minister for Immigration and Border Protection ('Graham'),3
we  might also say that Parliaments cannot substantially impede the ability of a court
exercising judicial review jurisdiction to ascertain whether an executive officer has acted
within the legal limits of her power.4


    Senior Lecturer, University of New South Wales. I give special thanks to Associate Professor
    Patrick Emerton and Dr Triantafyllos Gkouvas for lengthy discussions on the subject of this
    article. I also thank Professor Matthew Groves for very helpful comments on an earlier draft.
    This article is derived from a paper presented to the Monash University Faculty of Law Work
    in Progress seminar, and the Melbourne Law School Legal Theory Workshop. I thank the
    organisers and attendees of those workshops for their help in formulating these ideas,
    especially Dr Janina Boughey, Professor Jeffrey Goldsworthy and Associate Professor Kristen
    Rundle. Finally, thank you to the anonymous referees for their insightful and constructive
    comments.
1   Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 [103] (Gaudron, McHugh,
    Gummow,   Kirby and Hayne JJ).
2   Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651.
3   [2017] HCA 33 (6 September 2017).
4   We  may, however, question whether the legislative provision considered in that case (s
    503A(2) of the Migration Act 1958 (Cth)) impeded judicial review to such an extent as to
    render it invalid. As Edelman J explained in his powerful dissent, legislation which restricted

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