Equity in the modern administrative state

The focus of this chapter is not so much upon equitable doctrine in private law as upon equitable remedies, particularly the injunction and declaration, and their use in what might be called the ‘public law’ of the United Kingdom, the United States, Canada and Australia. Attention first is given to the relationship between constitutional law and public or administrative law and the differing dimensions this provides for the application of equitable remedies. Consideration then is given to the advantages of equitable remedies, the need for an ‘equity’ to attract intervention, the position of the Crown, and the unconscientious exercise of statutory power as attracting equitable remedies. The vantage point Equitable remedies have a characteristic suppleness which makes them readily adaptable both in complex disputes between private parties and also where the cause of complaint is the exercise, or threatened exercise, of ‘public power’ by either or both of the other branches of government. That division of power may be explicit or implicit in a written and rigid constitution, or may be accepted as a method of government under the system associated with the United Kingdom. Hence, I would, with respect, readily adopt the view of the editors of the current (the seventh) edition of De Smith’s Judicial Review that both the exercise of judicial review and the principles enunciated through judicial review have a constitutional basis. Further, as Professor Sykes observed over fifty years ago, in his essay ‘The Injunction in Public Law’, every question of administrative law seems equally to be an issue of constitutional law, albeit the converse proposition perhaps cannot be maintained. This, thus, provides the vantage point from which to consider the role of equitable remedies in the modern administrative state. Further, it surely would be to perpetuate conceptual myopia to continue to teach and practice ‘administrative law’ as a discrete discipline removed from its constitutional moorings. As to teaching, for too long that was the state of affairs, certainly in Australian law schools, and notwithstanding the conferral of jurisdiction by section 75(v) of the Constitution in matters in which a writ of mandamus or prohibition or an injunction ‘is sought against an officer of the Commonwealth’. From the outset a federal minister was taken to be such an ‘officer’.