Adventures in the grey zone: constitutionalism, rights and the review of the executive power in the migration context

The focus of Zagor's chapter ('Adventures in the grey zone: constitutionalism, rights and the review of executive power in the migration context') is about the relationship between the executive and the judiciary in the context of rights protection by public authorities. Indeed, in the absence of a bill of rights at federal level in Australia, 'human rights claims have found a home in administrative law'. Zagor contrasts 'the notorious rights reluctance of the Australian political system and its culture of deference and trust in the executive with the architecture of administrative justice that has developed over the past three decades, as well as the contentious role played by "legalism" as both a shield and a sword in the juridical arsenal for scrutinizing executive conduct. Drawing on Dyzhenhaus' metaphor of legal 'grey holes', Zagor describes how an impression of legality is created by the legislative and judicial endorsement of strategies which exclude 'more elevated and openly political forms of rights review' of executive conduct. This response to deferential government arguments is then explored through the examination of key cases - Tampa; Al-Kateb; Plaintiff S157; and Plaintiffs M61 and M70 cases - in which the judiciary have considered the source, depth, and breadth of the executive power in a migration context.