 Good morning. My name is Mark Elliott. I'm one of the conveners and it's my pleasure to welcome you to this morning's keynotes and the first full day of the conference. As many of you know and many of you indeed were here, we had the first conference in this series two years ago in Cambridge, under the title Process and Substance in Public Law. Mae'r allan o'i bydd yma yma yma yma'r uneddyr llaw cyfnodol, ac mae'r llaw gyda'r ystafell gwahanol yn amser o'r ddweud hynny o phobl. Mae'r llaw gyfnodol yn ymgrifesol o'r ddweud hynny o'r ddweud hynny o'r ddweud ond ei chymig ychydig yw'r parodol. yw eu cymdeithasio'r clyfridog y myfyrgiad iddyn nhw i ddweud gael y cwestiynau. Mae'n adnoddol yn gynghori ar syniad ar y myfyrgiad y cynddedd ers ein cymdeithas iawn llaw sonol yn ddodgyntydd i cerdd o'r cyfür sy'n cerddol gymwyth iawn gyda y Canol felly os i'r bryd i gael agedfwyll ar gyfer Ynhygoedd. Mae'n yn cerddol yn gyfrifio gyrddwyr yng Nghyrch gan yn gallu'r tîm i ddweud y cyfrifes i'w ddweud ahong a'r cymryd i'r cwylwydau â'r Llyfrgell genetics i'w ddweud yw'r ddweud â llunio'i atgyrchon a'r seym Eenaith ar yr hyn wedi'u hunain. Gweithio i'n dod yn gwybod y llywodraeth â Cymru ar ôl eistedd i gweithio'r llei, ni'r llei ac yn ni'n gweld gweithio'r llei, ac yn ei gweithio, ond mae'r llei diirw, ac yn ymgyrch yn ysgrifennol. Rwy'n gwybod i'r cwmhrenau sydd i ffostrwyr y rhai cyfnodau ar gyfer y gweithgrifau ar gyfer y cyfnodau. A gydag, mae'n fwyaf i'n meddwl am y cwmhrenau newydd ymgyrch ar gyfer y cyfnodau. Mae'r ymddi'r ymddi'r ymddi'r 80 oed yn ymddangodd a'r ymddi'r 80 oed yn ymddi'r ymddi'r 80 oed, yn bwysig yn ymddangos言or, ac, mynd ien ni, ychydig allu'r llwyddon rydyn ni rydyn ni'n fforth i'r Rhyw gredigaeth Ynrhyw Ynnu'r Cyfaintbaradau, ac rwy'n defnyddio gwynt ar hyn amser a'r ddynneun yn Sgrinhaf John. Me'n dweud yr eich corffran o angen, felly sefydlu'r bwysig yn bwysig ar bwysig i'r pethau ar gyfer yn ddod dwylo ydw i'r lleol yn digyn Rydym ni wedi hefyd yn rhaglau'r ddodion Llywodraeth ystafell, felly byddai'r awdurdod pedig prayer uned, ychydig yn meddwl i'r cyff spermysgol o'r bwysig. Aผor yw y gweld cyrwar cyfrwng yma o'r awdurdod na chi'n etoes ar y cyfrwng yma, a hynny'n wedi'ch meddwl fan o'r clyw fath sgwrdd, ychydig yn bwysig mae'n blaen ychydig yn meddwl iawn. A'r bobl ddweud am ychydig â'r perddaeth â'r draffodr yma i'r yma, David Feldman, Carol Harlow a Lord Reid, a fydd yn ei cofnodd y panel yw Richard Hart. A gweld, maen nhw'n ffordd, ddwy'n meddwl, ddwy'n meddwl i'r clyweddhaf. Hart wedi'u cofnodd y cenedlau yma ar y cerdfynod ar gyfer y sydd y cyfnodd, ac yn dda i amser mae'n feddwl am y cerddwr llyfriau. Mae'n ddiddordeb yn meddwl y mae'n meddwl am Siannei Miloni ac Bill. Mae'n meddwl am hwnnw'n meddwl a'r fwyllgor, ac rydw i'n meddwl am y cerdfynodd. Rwy'n meddwl chi'n mwyaf i Llywodraeth Cymru, ac yn elwodraeth i'r Llywodraeth cymaint i'r Llywodraeth Cymrae yma yn gweithio yma i yn ei gweld am gweithio'r Llywodraeth Cymrae, ac mae'n meddwl i'r Llywodraeth Cymrae a chymrae gyda'r Llywodraeth i'r Llywodraeth Cymrae. Mae'r pryddig sy'n tynnu ar y cwmhysgol Llywodraeth Cymrae. yn ysgolwyddiadau yw'r Duncan yw'r Dau'r Cwmbrif meddwl, ac mae'n dweud o'r pryd yn yma yng Nghymru o'r Meldffy. 보�eddaethau sy'n f saya o'ch beth sy'n gyd yn ei wneud, oherwydd ei oeddo, fel oeddo eu meddwl am yw'r cwmbrif meddwl o'r newid i'r ffordd ar gyfer o'r Pryd yn siaradau e'r Cwmbrif meddwl mewn meddwl. So, rydyn ni i gynnwys wedi'u cyfathau yn ein gweithio gyda Melwyn Lorthgoedd, sydd wedi'u gilydd o'r 3 ysgrifennu i Ysgrifennu i Ysgrifennu. Ond rwy'n gweithio'n gwirio arno gyda'r cysylltu, ac wrth i gydweud y cyfathau cyfathau, rydyn ni'n meddwl i'r colleg Jason Varwus oherwydd yn gweithio a chanolodd, iddyn ni'n meddwl i Melwyn Lorthgoedd. Gweithi'n gweithio, Mark. I would like to echo Mark's welcome and also on behalf of Melbourne Law School say that we very much look forward to hosting the next public law conference and to welcoming everyone to Melbourne in 2018. And now it's a very great pleasure to introduce our keynote speaker, the Chief Justice of New Zealand, Dame Shana Lyas. Dame Shana Lyas is the 12th Chief Justice of New Zealand and the first woman to hold that office. Following undergraduate studies at the University of Auckland and graduate study at Stanford, Dame Shana worked as a solicitor then as a barrister in New Zealand. She appeared in a number of significant cases, including a series of landmark cases concerning the Treaty of Waitangi being appointed Queen's Council in 1988. She also worked for a number of years as a law commissioner, focusing in particular on the reform of company law. She was appointed to the bench in 1995 and elevated to the position of Chief Justice in 1999. When in 2004 appeals to the Privy Council were abolished and the New Zealand Supreme Court was established as New Zealand's final court of appeal, Dame Shana became the first Chief Justice of the New Supreme Court. She has thus witnessed significant change in the New Zealand legal system and been responsible for leading the Supreme Court through its formative years. She has been a great ambassador for New Zealand on the global stage, often having been invited to deliver lectures across the common law world, including delivering the Cambridge Law Faculty's Sir David Williams lecture in this very lecture theatre in 2008 and she will be giving this year's Hamlin lectures as well. She is a leading jurist and in particular has made significant contributions to thinking in the fields of public law and the Treaty of Waitangi. Her judgments and extra-judicial writing have been marked by analytical rigor, the use of comparative and international material but also an awareness of the distinctiveness of the New Zealand context and she always has been concerned to maintain and uphold constitutional fundamentals. Ladies and gentlemen, I am very pleased to welcome Chief Justice Elias to deliver the conference keynote address. Tena koutou katoa. Greetings in the Maori language of New Zealand. Jason, thank you very much for that introduction. It makes me feel doubly bad about this ambitious title that I took from the teasing title of the conference because I realise it's entirely over ambitious. But the themes of the conference do revolve around familiar questions in public law which arise out of the pull of unity and the push of pluralism set up by the diffusion of public power in the modern state. And in my remarks I thought I might attempt a judicial perspective of the forces that impact on convergence and divergence across some of the common law jurisdictions represented here. That was, as I said, over ambitious and since some comment on the case law of other jurisdictions is inescapable it might be that it risks some impertinence so I've been regretting it. But the law concerned with public power and its control is also of very wide scope because it's a subject of uncertain boundaries and in constant change. And as I thought the opening session between Chief Justice French and Lord Reid made clear the differences across jurisdictions are more than labelled deep. It doesn't help particularly in this scholarly gathering that I come from a jurisdiction which although long in academic scholarly tradition in public law has a judicial tradition which has generally taken the simple path of optimistic and cheerful contextualism and is generally thought to be rather short in doctrine so you have to make some allowances for me. In what I say I'm not going to address one of the principle sources of convergence in public law which is the role of public international law. Being a small jurisdiction in New Zealand we have long been used to looking for ideas wherever we can find them and the principles and values obtained from international law are drawn on quite unself consciously and without suspicion in our courts. But today I want to talk about some of the matters we have in common and some where we diverge arising out of domestic public law. I want to reflect a little on public power and the role of judicial review in its control today before talking about the challenges of law and discretion and the way they're being addressed in constitutional traditions which share common roots but which diverge. Now in the written paper I provide more context than I'll cover in my remarks. Here I want to concentrate on the pull of jurisdiction and the push of deference. In his inaugural lecture at the London School of Economics Professor Dismuth said that constitutional law and administrative law the two domestic branches of public law occupied distinct provinces but also a substantial area of common ground. But the latest edition of Dismuth suggests that the distinct provinces have become less clear. Now we've all been there before. In New Zealand in 1940 the Chief Justice announced that the Council of Legal Education had agreed to include in the curriculum for the law degree what he said the law professors are pleased to call administrative law. It was clearly a move that he didn't welcome. He said that the Chief Justice followed dicey of course in this. He said that the view taken by the judges and the practicing profession was that there was really no such special branch of the law because administrative law was properly included in and part of what is generally called constitutional law. A compromise however had been reached. The prescription of the constitutional law course was expanded to include the requirement of a general knowledge of the principles of administrative law. And the Chief Justice said that they had copied in this the elements used by Professor Frankfurter which indicates the pull of unity exerted by American legal thinking in public law even then. It was perhaps more radical that Sir Michael Myers the Chief Justice realised it was after all Frankfurter who had dismissed dicey's rejection of a separate system of administrative law as brilliant obfuscation. Saying that it illustrated the truth of the view that many a theory survives long after its brains are knocked out. Well for much of the past 50 years the development of administrative law has meant that public law has been less court centred, less lawyer led than formally. And during that period the methods of government and its controls internal as well as external have been transformed. Better bureaucratic checks, new institutional checks and the development of specialist systems of administrative adjudication have prompted reassessment of the role played by the general courts. And these reassessments have taken place in all common law jurisdictions but against constitutional backgrounds and traditions which vary. So although a comparative law perspective comes naturally to those who share the common law tradition we need to be particularly careful with borrowings in public law. Adding to the complexity of the topic is the contestability of many of the concepts that mark this area of law out from others if indeed it can be properly separated. Because the problems of public power and its abuse are not confined to public law. And what we call public law is not of course isolated from the general body of common law from which it developed. Many of the principles of administrative law were developed in tort, contract, company law, labour law, criminal law and equity. Sir Anthony Mason of Australia has written of the extent to which modern administrative law is founded on equitable principles and has its roots in private law. So those roots suggest caution in seeing public law as an island. Now that is not to say that better development of a theory of public law is not valuable or that it is not important to cultivate a sense of what is public power. Such power is necessarily limited because unfettered government discretion in a constitutional order based on the rule of law is, as Sir William Wade said, a contradiction in terms. Public power must be always public regarding. It cannot be exercised at whim and that means that the exercise of public power must be reasonable as the Wednysbury case in fact affirmed. In addition because government is uniquely powerful, governmental power requires special attention. Sir David Williams once said that where big government moves there's no such thing as ordinary powers. For those powers are exercised in a context of financial dominance and control of information and access to political channels to which no natural person could aspire. The same thinking was expressed by Justice McLaughlin before she became Chief Justice in the Supreme Court of Canada in a case in 1994 concerning contracts of procurement by provincial municipal government. She rejected the argument that a municipality could be treated just like any other private contractor. In the modern state finding where public power resides is not always easy. In all jurisdictions there have been huge changes in how government is delivered and corresponding movement in the scope of judicial review to extend to bodies private informed but which operate often through contract. The contracting state may throw up special challenges but it is the responsibility of the courts as Lord Diplock said to preserve the integrity of the rule of law despite changes in methods of government and to supervise for legality new bodies possessing the essential characteristics upon which the supervisory jurisdiction of the High Court has been based. The scope of judicial review has been extended by procedural reforms which have described amenability to judicial review in expansive terms and in many jurisdictions judicial review now operates with wide definitions of public function and public power adopted in statements of rights. Judicial review is however supervisory jurisdiction. It checks the boundaries of power conferred on others. It is not original decision making and it's therefore inevitably differential to the primary decision maker to a greater or lesser extent. Space for proper choice what we call discretion is at the heart of judicial review. It has to be said that the direct impact of judicial review in administrative justice is slight. If it was inevitably sporadic and peripheral when the first edition of Dismuth was published in 1959 it is even more so today. Discretion is now systemised by policy statements, manuals and other forms of soft law which protect against arbitrariness and provide fair processes. Checks within government provide supervision and may be accessed for review of decisions by those affected. More or less elaborate systems of review of decisions are provided by adjudicators or officials who observe principles of natural justice and obligation which is now imposed on all who exercise public functions which affect rights. Ombudsman provide independent scrutiny and assistance for those affected by administrative decision making. Improved access to official information and reasons for decisions have not only changed the culture and method of government but have revolutionised administrative law by laying bare the justification for the actions taken. Effective redress for administrative error for most people does not entail access to a court possessing general supervisory jurisdiction and this climate has implications for judicial review scope and methods. Local conditions have also prompted reconsideration of adjudicative correction in a number of jurisdictions which also impact on judicial review and on public law more generally. In the UK under the Tribunals Courts and Enforcement Act 2007 the adjudicative administrative appeal tribunals are positioned in the judicial branch. So the reform seems to represent a unified rather than a pluralistic aspiration for public law. It was prompted at least in part by the need in the United Kingdom to take the strain off the courts in judicial review. In Australia by contrast the Commonwealth Administrative Appeal Tribunal although presided over by a senior judge has been held by the High Court to be part of the executive. The different locations of adjudicative administrative power in the judiciary or in the administration may have implications for the scope and method of judicial review by the courts. The development of administrative adjudication may also affect the unity of law maintained by the courts of general jurisdiction. It is at first sight startling to those brought up in a tradition influenced by Dysi to see in recent decisions of the UK Supreme Court the protection of decisions of the upper tribunal from judicial review unless they would qualify for second tier appeal. And with the indication of at least one senior judge that intervention might be further restricted once there is more experience of how the new tribunal system is working in practice. And it's even more startling at first sight to see this difference provided for reasons of proportionality in dispute resolution. Sir John Law's pointed out some years ago in an article about reasonableness in public law that it is one thing to say that reasonableness means different things in context. It is quite another to say that there are circumstances in which unreasonable exercise of power is not amenable to judicial review at all. It is more appealing for some of us to think that the basis of review remains constant for all bodies amenable to judicial review. Now I'm not sure that it is a complete answer that CART preserved the formal power of judicial review of the upper tribunal so that refusal to intervene didn't entail relinquishment of jurisdiction. It's true that on this approach the Supreme Court can intervene if the upper tribunal seems to be developing local law in a way that injures the coherence of the legal order. But if the Supreme Court is prepared to allow that a statutory tribunal with many of the attributes of a superior court will be judicially reviewed for error only if the effort is proportionate measured against the resources available to the legal system, why should the legislature not act to restrict judicial review where it finds it too expensive or too inconvenient? On the other hand, the new systems of administrative adjudication may well be better placed to promote the interests of good administration as well as the reasonableness, fairness and observance of law which are the concerns of judicial review and which are the constitutional responsibility of the superior courts. I'm not entirely convinced that it is a function of judicial review to secure good governance although some thoughtful commentators think it is. But good governance may well be a central purpose of a mature system of administrative justice such as I think we can see developing in some common law jurisdictions eventually shaking off the legacy of DICE. But I question whether it is the function of the supervisory system of judicial review through the ordinary courts. It seems to me that the function of judicial review is securing the rule of law in relation to public power. Felix Frankfurt has said of administrative law that it's an area of law where standards and not rules have to be applied to the unlimited versatility of circumstance. Administrative law he thought is concerned preeminently with law in the making, with fluid tendencies and tentative traditions and in which it is necessary to be wary of premature synthesis and fixed rules. A similar warning was repeated by Lord Halsham half a century later about the use of rigid legal classifications in exercising the supervisory jurisdiction in the field of administrative law. The jurisdiction is, he said, inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind. Is this a lesson we are fated never to learn? And to the dangers of premature synthesis highlighted by Frankfurter, perhaps we should add premature antithesis of the kind that seems particularly appealing in administrative law, law and merits, private and public, jurisdictional error and non jurisdictional error, interpretation and discretion, judicial and non judicial policy and fact and so on. And of course big theories such as ultra vires and the rule of law. Now I don't suggest that these ideas are not valuable. Indeed they are inescapable but they are not themselves tests or standards for judicial review. Questions of vires and jurisdiction account for a great part of judicial review of administrative action because a principal function of the supervisory jurisdiction is to ensure that decision makers have the power they purport to exercise and keep within any limits imposed on it. Especially in a jurisdiction where the constitutional balances are fragile and let me tell you they don't become more fragile than in New Zealand, there may be good sense in structuring intervention in terms of vires and parliamentary intent where that provides an answer. Such tactical considerations should not obscure the fact that ultra vires has to be stretched to fit the scope of judicial review as it has been developed to meet the needs of our societies in securing administrative justice. It requires emphasis on a constructed and artificial legislative intent for decisions not concerned with the exercise of statutory powers. It obscures the overlap between legality and reasonableness by suggesting judicial review can be reduced to an exercise in statutory construction alone. Justice Scalia labeled or described the label jurisdictional as an empty distraction because every new application of a broad statutory term said he said can be reframed as a questionable extension of the agency's jurisdiction. Of course that's the same sort of reasoning used by Lord Diplock in O'Reilly and Mackman. But Scalia thought judges should not waste their time on such mental acrobatics and I agree. But yet the pull of jurisdiction as a touchstone remains and that is for the very good reason. That although not a test it is an idea that underlines underlies much of the supervisory jurisdiction. As Mark Aronson has observed it expresses a conclusion that judicial intervention is appropriate and if so jurisdiction is perhaps best seen as a mediating concept for judicial review. Even in Australia where a search for jurisdictional error is still required in order to preserve the decencies of strict division between merits review and judicial review, post-cirk and post the relaxation of wetnesbury unreasonableness by the majority in lean, the different basis for intervention for error of law jurisdictional or not may not yield very different results in the end. What then of supervision of discretion? In the same year that Lord Halsham was expressing concern about rigid legal classifications, Harry Arthur suggested rethinking administrative law. He argued for recognition that law and discretion are not distinct and that generalist judges are not best placed to interpret public law legislation knowledgeably. Now we've been worrying away at this bone ever since. Arthur's did not support the development of an entirely distinct system of public law under unifying principles of public law. He thought such repositioning, this is quite significant I think, would depend too much on lawyers including lawyers as decision makers. He questioned whether common approaches to procedural fairness were really useful. He asked whether any higher order principles which might be adopted to provide coherence would be at such a general level of abstraction as to be hardly legal rules. He suggested that useful rules for administrative justice were likely to emerge only in the specific and varied contexts of administrative activity. He advocated a functional approach according to whether a generalist judge had anything to contribute if so judicial review was appropriate. Now this thinking has been highly influential in the jurisprudence of the Supreme Court of Canada and its development of differential standards of judicial review. Despite the efforts in development of doctrine over the past three decades it is however sobering to read the views of Chief Justice McLaughlin in a recent paper that administrative law arguably is beset by more difficulty than any other branch of law. She says it is a barbed and occluded thicket and in support of that verdict she traced the twists and turns of Supreme Court Canada and Supreme Court doctrine in review of discretion. From this experience she makes the suggestion that we should give away what she calls linguistic gains such as qualifiers or spectrums of reasonableness. Courts she says should recognise that most questions don't admit to a single right answer and ask in all humility whether interference is necessary in the interests of fairness and preservation of the rule of law. I think it's interesting that disagreements and expressions of doubt seem to be current in a number of recent judgments of final courts concerning administrative law. In the United Kingdom Trevor Allen has suggested for example that the different approaches adopted by members of the UK Supreme Court in Evans and the Attorney General indicate deep disagreements about the nature and function of law. And there are other cases which indicate those sort of differences both in the United Kingdom and Canada. These disagreements indicate the extent to which judicial review engages with constitutional values and other values fundamental to the particular legal order. The connection between administrative law and constitutional law explains why jurisdictions with much in common may diverge in the manner of controlling administrative discretion. In the paper I do undertake a review of the different constitutional traditions and indicate some conclusions from them but I won't take time with that here. But it is striking that in Australia the separation of powers provided by the Australian constitution has been used by the High Court to protect its constitutional responsibility to say what the law is. And that's had implications for the development of Australian administrative law. It's been taken to emphasise a distinction between legality and merits which in other jurisdictions is less sharp. In Australia the strict line observed between legality and merits means I think that it's difficult to develop standards for judicial intervention from values obtained from the common law or international conventions or the statutory Bill of Rights found in Victoria or in the Australian capital territory. Reference to such values is seen to give rise to merits review, a line the courts will not pass. And Chief Justice Gleason in a 2008 lecture identified both the constitutional balances and the federal administrative law reforms of the 1970s in Australia as an explanation why Australian law had not taken up the North American jurisprudence of judicial deference nor the English attraction for abusive power as a touchstone. Rather he said in Australia the focus has been on jurisdiction and legality. In the UK and New Zealand where executive dominance of parliament and parliamentary sovereignty is untrammeled by a constitutional text which distributes powers, judicial review is less secure. That institutional insecurity has I think shaped judicial development of administrative law. It may as I've already indicated account for the attraction of ultravires as the underpinning justification for judicial review because it's seen to have constitutional validity. But in both the United Kingdom and New Zealand there are signs of constitutional repositioning around values derived from the common law, ancient statutes and charters and modern enacted statements of rights. Deference in matters of interpretation has not been the general tradition in New Zealand and the United Kingdom. Although it's not unknown and Lord Denning thought for example that tribunals dealing with statutes concerning benefits should be given latitude to interpret the legislation in a broad reasonable way according to the spirit and not the letter. And such latitude perhaps is now going to be much more extensive under the 2007 legislation in the UK as now interpreted by the UK Supreme Court. If so there's probably going to be a divergence between England and New Zealand. I was interested to hear Lord Reed say last night that the Supreme Court doesn't look to the public law of other jurisdictions. In New Zealand we certainly look very closely at UK precedents but I think it is fair to say that those institutional changes may lead to shifts in that, maybe even more on our own. Writing in 2009, the first chair of the upper tribunal in the UK, Lord Justice Carnworth, now a member of the Supreme Court, thought that the establishment of the new UK Supreme Court would be an opportunity to develop the relationship between administrative justice and general law. He took the view that the overriding concern of the court in any case not involving human rights or fundamental rights was not to be involved in policy choices but to confine itself to ensuring that the decision complies with fairly undemanding standards of irrationality. And the recent decisions of the UK Supreme Court may move a little in that direction. Whether in the long run however the development of a mature system of administrative law is helped or hindered by being positioned within the judicial branch remains to be seen. It is not the vision that Harry Arthur's for example urged for administrative law. In Canada my impression, perhaps wrong, is that there is less anxiety about constitutional fundamentals. If that's so it may go some way to explain the preparedness of the Supreme Court of Canada to countenance a marked degree of deference to administrative decision makers even in cases affecting charter rights. The other reason for the Canadian approach may of course simply be the example across the border. It would however I think be unwise to think that positions may not move around on this question of deference according to the subject matter and even the personnel on the court as some of the recent divisions on the Canadian Supreme Court may indicate. The pull of legality is strong for courts. One of the problems with questions of interpretation is that they are judicial meat and drink. Although Justice Abela of Canada has said that she thinks very few questions of interpretation have only one right answer, I'm not sure that many judges would agree once they undertaken the exercise because once it's completed and conviction is reached, I think anyone who has worked through to that conclusion believes, doesn't believe that there's a range of reasonable interpretations even if or perhaps especially if your judicial colleagues take a different view. I would have said until recently that it seems unlikely that in common law traditions where authoritative interpretation of law is highly valued. The courts will see the responsibility to say what the law is except in very limited circumstances but I'm no longer so sure. It has I think become clear that the line between interpretation and application is not so much blurred as impossible in much administrative decision making. There are of course questions of meaning which can be decided very narrowly by reference to language and the context in which it is used. But the dispersal of executive power under statutes which employ broad concepts means that much application of discretionary power entails interpretation. The effect of words often cannot be ascertained except in relation to known or supposed facts. Stephen Sedley instances speech in relation to flag burning for example. In such circumstances meaning is always evaluative and evaluation entails choice and therefore discretion. Where the evaluation may properly be exercised by expertise possessed by an independent decision maker then there is room for the courts to accept as Lord Denning did the interpretation preferred by the decision maker as long as it is a reasonable one. Once it is accepted that interpretation and application are not able to be separated and that each entails evaluation then it is difficult I think to maintain a strict separation between review for legality and merits. A conclusion that a decision is unreasonable is a conclusion about its merits. It is inevitably concerned with matters of weight and balancing and often of values that are not directly comparable. The concept of reasonableness takes its colour from context. Supervisory jurisdiction accords respect to the primary decision maker and observes any separation of powers between the judiciary and the executive where a range of reasonable options is available. And where there are no such options the courts insist on the correct outcome as the Canadian Supreme Court has said. But Lord Cook was surely right to say in daily that it may well be that the law can never be satisfied in any administrative field merely by finding that the decision under review is not capricious or absurd. And that indeed seems to be where the majority of the High Court of Australia have ended up in Minister for Immigration against Lee. Because judicial review is supervisory it is necessarily differential to an extent inevitably determined by the context and that insight has been used in Canada to set standards for intervention by way of judicial review. Since adoption of an openly differential approach instead of the former categories justifying review for merits according to a pragmatic and functional test recalibration though in the Supreme Court of Canada has been necessary on two occasions and the storm clouds seem to be gathering again. A recent decision of the Canadian Supreme Court indicates that while there is not yet a majority for further change, further adjustment is down the track. It was indeed the shifts in standard of review that calls Chief Justice McLaughlin to, she used to illustrate her view that administrative law is a barbed and occluded thicket. Now in the paper summarise some of those twists and turns which don't need to be covered here but in Canada it seems there is now presumption of deference which attaches both to application and interpretation at least when tribunals are interpreting their own statutes. But there may be more ambivalence about charter rights and in the Loyola case concerning freedom of religion it is notable that three of the judges didn't join Justice Abela and the other judges in the majority in applying an administrative review approach and applied a constitutional standard. In the latest twist in deference, the case of Wilson, an atomic energy of Canada, Justice Abela who had written the decisive opinion in the earlier case of Dore, indicated that further change was necessary and indeed the judges in the minority agreed. She took the opportunity in Obiter to spell out her vision of judicial review of administrative determinations including interpretation and it's very interesting to read this judgement. It's quite clear that the three of the judges who preferred to keep their power to dry on that were probably quite sympathetic to what she said was an attempt to start a conversation. And in that attempt she reverted to some of the basics about administrative law raised in the piece by Arthur's. She thought that cases where only one reasonable outcome was available were likely to be rare and largely confined to the categories earlier identified in Dunsbure as attracting a correctness standard. But she thought that the approach adopted in the Canadian Supreme Court should be further refined by accepting that reasonableness is only one standard. She thought that the extent to which lower courts were grappling with standard of review was insupportable and indeed at least one of the judges in the minority said the same thing. The hoped for simplicity in the Canadian doctrine had not proven to be the runway to simplicity and she thought it was incumbent on the court to consider whether this obstacle course is necessary or whether there was a principled way to simplify the path to reviewing the merits. She suggested that much of the confusion had arisen over what to call the category of review in a particular case and questioned whether it was necessary to engage in such rhetorical debates about what to call our conclusions at the end of the review. And what she said is are we not saying essentially the same thing when we conclude that there is only a single reasonable answer available and when we say it is correct. And this leads to whether we need two different names for our approaches to judicial review or whether both approaches can live comfortably under a more broadly conceived understanding of reasonableness. In Canada it's possible to see a more pluralist approach which steers by the functionalist view of the competence of the reviewing court. Such assessment is inevitably highly contextual. It may be a path the rest of us will come to take. There may be something in the criticism that New Zealand courts have tended to be light on doctrine and that our administrative law jurisprudence is underdeveloped. But I wonder whether the inescapably contextual assessment of when to intervene by way of judicial review is greatly assisted by attempting to articulate standards of review. Reasonableness may be a single standard as the Supreme Court of Canada now says, and as I think we've always said in New Zealand, but if it takes its colour from context as the Supreme Court of Canada also accepts, how useful is it to strain to identify standards for review. So, in conclusion, ambivalence about the relationship between constitutional law and administrative law, which was shown by Sir Michael Myers in New Zealand in 1940, has never been entirely shaken off by judges and legal practitioners. Although a number of thoughtful administrative lawyers resist the pull to constitutionalisation of administrative law, judicial review strikes me as inevitably located in that space. It is concerned with the rule of law values which underpin the constitution in any law state and which provide coherence to the legal order which it is for the superior courts to supervise whether they operate under a constitutional instrument which shares power or under an unmodified Westminster system. Where rule of law concerns end, the supervisory jurisdiction ends too. Now that may well not best promote good government values which are a proper end of administrative justice and maybe their promotion is better served by institutions with freedom to act without further court supervision than the requirements that they act lawfully, reasonably and fairly. Perhaps we have loaded too much into the supervisory jurisdiction which could be better addressed in a distinct but supervised administrative justice system. The challenge for administrative law remains to develop within the scope left for it by constitutional law. In a developed system of administrative law perhaps more respect for administrative choices and interpretation and application of enacted rules is better policy for supervising courts. But we have to be careful not to throw the baby up with a bathwater and it's surely time to move on from always beating up courts about their constitutional obligation to ensure that constitutional balances and values including rights are observed and not sacrificed to expediency. We've had enough experience to know that we can expect successive waves in which growth of discretion gives rise to anxiety about the rule of law. So we can't expect this area of law to stand still. And although I acknowledge with gratitude the illumination provided by good scholarship in this area of which there is much and many from those in this audience. Is the search for better doctrine ultimately doomed? I don't suggest that the effort isn't worthwhile. It keeps everyone up to the mark. But I wonder how much can be expected of overarching theories. Public law has unity and disparity and much of it is untidy and tentative. The last time I spoke in this lecture theatre I ended up with some views expressed by Sir David Williams. They seem in point today also. Sir David said that the principles of administrative law can sensibly be considered only with proper regard for the statutory institutional and broad social or policy context of a particular case. And he thought that in the long run the courts would help in the development of a more ordered legal system if they insisted on clear authority where clear authority is needed and if they intervened where intervention is constitutionally desirable. Norera, tena couto, tena couto, ti ora tato catoa. Thank you.