Ultra vires doctrine has declined in importance in Australia in tandem with the rise of constitutional principles in judicial review of administrative action. The Australian Constitution creates an entrenched right of judicial review in the original jurisdiction of the High Court. This right has led to the development of a conception of judicial review that is anchored on separation of powers principles but has not incorporated the ultra vires doctrine. This constitutional approach gained ascendancy in Australia not long after the ultra vires/common law debate arose in the United Kingdom and led Australian courts down a path that is both different and similar. The similarity lies in the issues Australian courts have faced, such as the doctrinal basis of judicial review, or whether an overarching concept might provide a coherent theoretical framework. The difference of the Australian experience lies in the terminology adopted in Australian law, such as their adoption and refinement of jurisdictional error even though that concept was disclaimed by UK courts. When the constitutional overlay of Australian is stripped away, the difference in approach to the UK clearly lessens.

Introduction

We make, and break, promises to one another all the time. As every law student knows, to break one’s promise does not always result in exposure to legal liability. This may sometimes be as a result of changing times: for instance, the common law action for breach of promise to marry was commonly used in the 19th century but by 1976 had been abolished altogether in Australia, by statute. By contrast, the contractual doctrine of consideration has been required to make room for the power of non-contractual promises and representations in commercial, litigious and other private law circumstances through the development of promissory estoppel.

Sometimes, the nature of the promise or the circumstances in which it was made will be significant but, usually, the identity of the promisor is the most relevant of those circumstances. This contention supports the recent statement by Joseph Raz that ‘most undertakings and agreements are much less formally created, arising not so much out of explicit acts of commitment as out of the implied meaning and consequences of an interaction over time’. Rarely is the identity of the promisor of greater significance than when it is the government. The conundrum posed by Raz – ‘if promises are binding, if they are cogent ways for people to bind themselves, there must be a reason to do as one promised’ – should be presumptively reversed where government is the promisor, given its size and power, not to mention the usual understanding that such power as government has is held as though ‘on trust’ for the citizenry. In short, where it may be open to discussion whether and why an individual should keep his or her promises, government should need a compelling reason not to do so (or alternatively to provide compensation for its failure to do so).