Re-evaluating the Collateral Challenge in the Era of Statutory Interpretation
A collateral challenge impugns the validity of an administrative decision in a proceeding that is not specifically designed for the modification or setting aside of that decision. On the current state of the law, there is a presumption in favour of collateral challenge in an inferior court, which can be displaced by a contrary legislative intention. I argue, however, that the current presumption lacks a clear doctrinal basis, and that it places too much emphasis on statutory interpretation as a useful tool for rebutting, or indeed vindicating, the starting presumption (let alone determining what administrative law ‘grounds’ a collateral challenge might encompass). I suggest a rearticulation of the presumption as an expression of a defendant’s entitlement to vindicate legal rights. I point out, however, that contemporary norms of administrative law may otherwise demand a stricter approach to permitting collateral challenges. On this alternative view, a challenger must identify clear legislative authorisation for what is essentially a judicial review function.