Administrative law summary - The Uni Tutor
Administrative Law Summary 5
1. THE FRAMEWORK OF ADMINISTRATIVE LAW 5
1.1 SCOPE AND OBJECTS OF ADMIN LAW 5
1.1.1 Admin Law Accountability Mechanisms 6
1.2 LEGALITY/MERITS DISTINCTION 6
1.2.1 Legalities Review 7
Wednesbury (p146-8) ********* 7
Quin (per Brennan J) 7
1.2.2 Merits Review and Tribunals 7
1.2.3 Nature of Merits Review 8
Greenham 8
1.2.4 The Administrative Appeals Tribunal (AAT) 8
Collector of Customs (NSW) v Brian Lawlor 9
Drake v MIMEA (p71-2 ****) 9
1.2.5 The Ombudsman 9
1.2.6 Human Rights Agencies 10
1.2.6.1 Human Rights and Equal Opportunity Commission 10
Brandy v HREOC (1995) 11
1.2.6.2 Discrimination 11
CBA v HREOC (1997) (p129-30 text **** ) 11
1.2.7 Other Accountability Mechanisms 11
1.3 INTRODUCTION TO JUDICIAL REVIEW 12
1.3.2 High Court Judicial Review 12
1.3.3 Federal Court Judicial Review 13
1.3.4 Associated and Accrued Jurisdiction 13
1.3.5 Migration Act 13
1.3.6 Remedies 13
1.3.6.1 Certiorari and Prohibition 14
1.3.6.2 Mandamus 14
1.3.6.3 Equitable Remedies: Injunction & Declaration 14
1.4 JUSTICIABILITY AND JURISDICTION 14
1.4.1 Justiciability in the common law 14
CCSU (House of Lords) p18*** 15
Minister for Arts, Heritage and Environment v Peko-Wallsend (1987) Federal Court p21**** 16
Re McBain; Ex Parte Australian Catholic Bishops Conference (2002) p17-8 **** 17
1.4.2 Jurisdiction and the ADJR Act 17
1.4.2.1 ‘Decision’ & ‘Conduct’ 17
Director-General of Social Services v Chaney (1980) ******* 17
Lamb v Moss (1983) 18
ABT v Bond p28-33 ***** 18
Right to Life Association v Secretary 18
Kelson v Forward (p33-4 *******) 19
Electricity Supply Association v ACCC (p34-5 ********) 19
Edelsten v Health Insurance Commission (p35*****) 19
Century Yuasa Batteries Pty Ltd (p36****) 19
Peverill v Meir (p36***) 19
1.4.2.2 ‘Of an administrative character’ 19
Central Queensland Land Council Aboriginal Corporation (p37-8********) 20
Federal Airports Corporation v Aerolineas Argentinas (1997) p28-9 ******** 20
1.4.2.3 ‘Under an Enactment’ 20
Chittick v Ackland (1984) 20
General Newspapers (1993) (p40-2 *********) 20
1.5 SPECIAL ISSUES IN ADMINISTRATIVE LAW 21
1.5.1 Formulating the Grounds of Review 21
CCSU v Minister for the Civil Service 21
1.5.2 Jurisdictional Errors of Law 21
Ex Parte Hebburn Ltd; Re Kearsley Shire Council 21
Yusuf’s Case (Minister for Immigration v Yusuf) p154 *************** 22
Johnson (***********) 22
1.5.3 State of Mind Phraseology 22
Liversidge v Sir John Anderson 22
R v Connell 22
Kruger ?******** 22
George v Rockett 22
1.5.4 Jurisdictional Facts 23
AG (NT) v Hand 23
Timbarra Case ************ 23
MIEA v Naumouska 24
Australian Heritage Commission v Mt Isa Mines 24
1.5.5 Discretion and Deference 24
MIMA v Jia 25
1.6 STATUTORY EXCLUSION OF JUDICIAL REVIEW 25
Anisminic’s Case (1969) House of Lords 25
S157 v Commonwealth 26
R v Hickman 26
S157 v Commonwealth 26
2. CRITERIA FOR LAWFUL DECISION-MAKING 27
2.1 UNAUTHORISED DECISION MAKING 27
2.1.1 Prerogative and Common Law Executive Powers 28
A v Hayden 28
Congreve v Home Office (p13*****) 28
Tampa Case (p17*******) 28
2.1.2 Statutory Unauthorised Decision-Making 28
Church of Scientology Case (p15-6********) 28
2.1.3 Subordinate Legislation and Unauthorised Decision Making 29
McEldowney’s Case (p30********) 30
Shanahan v Scott (1957) p32****** 30
Swan Hill Corporation v Bradbury (1937) p34****** 30
Foley v Padley (1984) p36 31
State of SA v Tanner 31
2.1.4 Decisions not Made by an Authorised Person 32
2.1.4.1 Distinction between a Delegate and an Agent 32
O’Reilly v Commissioner of the State Bank of Victoria 33
DSS v Alvaro (1994) p58****** 33
Fazal Din v Minister for Immigration & Multicultural Affairs 33
2.2 LEGISLATIVE SCOPE AND PURPOSE 34
2.2.1 Improper Purposes 34
Woolara Council Case 34
Municipal Council of Sydney v Campbell (p78*****) 34
R v Toohey; Ex Parte NLC (p79*******) 34
2.2.1.1 Multiple Purposes 35
Samrein p86***** 35
Schlieske v MIEA p87****** 35
Kent v Johnson – Telstra Tower Case (p28****) 35
2.2.2 Considering Irrelevant Considerations 35
Sean Investments v McKellar 36
Water Conservation v Browning ****** 36
2.2.3 Not Considering Relevant Consideration 37
Sean Investments (p104*****) 37
Tickner v Chapman (p111****) 38
Hindi v MIEA (p116********) 39
2.3 PROCEDURAL FAIRNESS 39
Cooper v Wandsworth Board of Works (p138****) 39
Ridge v Baldwin (1964) p139**** 40
2.3.1 Theoretical Sources of Procedural Fairness 40
2.3.2 The Tests for Procedural Fairness 41
Kioa v West ****** 41
Kioa v West 42
2.3.3 The Nature and Role of Legitimate Expectations 42
Haoucher v MIEA(1990) p150-4**** 42
FAI Insurance Ltd v Winneke (1982) p155-8**** 42
A-G (NSW) v Quin (1990) p158-9**** 43
MIEA v Teoh (1995) p159-62*** 43
Re MIMA; Ex Parte Lam 43
2.3.4 Qualifications to the Threshold Test 44
2.3.4.1 The ‘Direct and Immediate’ Qualification 44
SA v O’Shea (1987) p168**** 45
2.3.4.2 The Statutory Exclusion Qualification 45
Coco v R 45
Annetts v McCann (p166*****) 45
Heatley v Tasmanian Racing and Gaming Commission (1977) 45
Marine Hull and Liability Insurance Co Ltd v Hurford (1985) brick***** 45
2.3.5 The Hearing Rule 46
2.3.5.1 Exceptions/Modifications to the Hearing Rule 46
Testro Bros Pty Ltd v Tait (1963) 47
Ainsworth v Criminal Justice Commission (1992) p176**** 47
Re MIMA; Ex Parte Miah **** 47
Calvin v Carr (Privy Council) p177-8**** 48
2.3.6 The Bias Rule 49
MIMA v Jia and White 49
Johnson v Johnson 50
Vakuta’s Case 50
R v Commonwealth Conciliation and Arbitration Commission 50
Koppen v Commissioner for Race Relations 50
2.3.6.1 Exceptions to the Bias Rule 50
2.4 EXECUTIVE POLICIES 51
Rendell v Release on License Board p200*** 51
MIEA v Tagle p201**** 51
British Oxygen Co Ltd v Minister of Technology p202*** 51
Peninsula Anglican Boys’ School v Ryan p204*** 51
R v Clarkson p205*** 51
Bread Manufacturers 52
Telstra Corporation Ltd v Kendell 52
2.4.1 Legal Consequences of Ignoring or Breaching Policy 52
Gerah Imports Pty Ltd v Minister for Industry 52
Nikac v MILGEA 52
2.4.2 Ministerial Directions 52
R v Anderson; Ex Parte Ipec-Air 52
Bread Manufacturers v Evans 53
2.4.3 Statutory Directions 53
Ridell v Secretary of the Department of Social Security 53
Smoker v Pharmacy Restructuring Authority 53
2.4.4 Tribunals and Policy 53
Drake v MIEA 53
2.5 THE ERROR OF LAW/ERROR OF FACT DISTINCTION 54
2.5.1 Errors of Law 54
2.5.1.1 Fact-finding 54
2.5.1.2 Rule Stating 55
2.5.1.3 Rule Application 55
Azzopardi v Tasman UEB p21*** 55
Collector of Customs v Agfa-Gavaert p23*** 55
Pozzolanic p26*** 55
Hope v Bathurst p28*** 56
2.6 UNREASONABLENESS 56
2.6.1 Making a Decision that is Devoid of Any Plausible Justification 56
Taveli v MIEA 56
Chan v MIEA 56
2.6.2 Giving Excessive or Inadequate Weight to a Relevant Consideration 56
2.6.3 Making an Erroneous Factual Finding on a Point of Some Importance 57
GTE (Australia) Pty Ltd v Brown (p39 fact/law materials) 57
2.6.4 Failure to Seek Information Readily Available and Centrally Important 57
Prasad v MIEA p234*** 57
Videto v MIEA p236*** 57
2.6.5 Failing to Have Proper Regard to a Departmental Policy 57
2.6.6 Making a Decision That Had an Unnecessarily Harsh Effect 57
Edelston v Wilcox p243**** 57
2.6.7 Choosing an Irregular and Unnecessary Course of Action 57
Wheeler v Leicester City Council 57
2.6.8 Inconsistent of Discriminatory Decisions 58
Parramatta City Council v Pestell 58
Sunshine Coast Broadcasters Ltd v Duncan 58
3. CONSEQUENCES OF UNLAWFUL DECISION-MAKING 58
Wattmaster 58
Re Kretchmer (AAT 1988) 59
Bhardwaj 59
Project Blue Sky v ABA 59
4. STANDING 59
ACF v Commonwealth 60
Onus v Alcoa 60
North Coast Environmental Council v Minister for Resources (1995 FC) 60
Bateman’s Bay Local Aboriginal Land Council (1998 HC) 60
Administrative Law Summary
1. THE FRAMEWORK OF ADMINISTRATIVE LAW
1.1 SCOPE AND OBJECTS OF ADMIN LAW
• Intended to control government or executive administrative activities
• Review developed in light of responsible government, parliamentary sovereignty and the separation of powers
• S75(v) of the Constitution entrenches the judicial review of administrative decisions
• Theoretically states could override judicial review, but they have resisted
• Some objectives of administrative law:
1. To supervise the limits of governments ‘public powers’
• Ultra vires doctrine
• Separation of powers
• Rule of law
2. To give individuals rights to ensure that decisions are made fairly, rationally and impartially (administrative justice)
3. To encourage certain values in government decision-making (better decision-making)
• Tensions in administrative law
• Community interests vs individual rights
• Red lighters vs green lighter (Harlow and Rawlings)
• Red light theories
• Focus on protection of privacy and individual rights
• Wary of the expansion of state power
• Suspicious of legislative and executive
• Wade: ‘keep the powers of government within their legal bounds, so as to protect the citizen against their abuse’
• Profoundly liberal
• Interventionist (Padfield(p97)?; Roberts(p99)?; Bowser(p100)?****)
• Conflict with green lighters on the grounds of relevant considerations
• Is social change driving the grounds of relevant considerations?
• Green light theories
• Pro-state as democratic will
• Suspicious of courts
• John Griffiths ‘The Politics of the Judiciary’
• Courts should not frustrate the policies of welfare states (eg. Roberts v Hopwood [1925]**********; Murhpyores (p95); Browning (p92))
• Continuing issue in Admin law is the tension between ‘unelected’ judiciary and ‘elected’ parliament
• Sub-issue is that specialist bodies may have a greater grasp of the statute – who is to decide interpretation?
• Dicey was hostile to administrative law as he thought it was redundant where responsible government operated properly
• Problematic given the executive is not really checked by parliament given to the two-party system, and;
• Growth in discretionary executive power with the growth in the regulatory state
• Contemporary challenges:
• Privatisation and contracting out: the conversion of public functions into private functions
• Legislative restriction of judicial review (eg Migration Act)
1.1.1 Admin Law Accountability Mechanisms
• The four key planks are:
1. Accountability to parliament
• Parliamentary committees, question time, and responsible government generally
2. Review by executive itself (eg. independent tribunals, ombudsman)
3. Judicial or ‘legalities’ review
4. Rights to information
• Rights to reasons (such as those in the ADJR Act and the AAT Act)
• Freedom of Information (FOI) legislation (with significant exemptions)
• Not all mechanisms technically involve a review of a decision, though all have a role in promoting accountability for government decisions
• The ‘new administrative law’ is constituted by:
• AAT Act 1975
• ADJR Act 1977
• Ombudsman Act 1976
• FOI Act 1982
1.2 LEGALITY/MERITS DISTINCTION
• The executive has the role of making substantive decisions – ie. it determines the merits:
• Finds the facts
• Determines policies
• Makes discretionary judgements
• Applies the law
• Falls to the judiciary to ensure that decisions are made according to the law:
• Ensures that relevant criteria of legality have been complied with (procedural fairness, not ultra vires)
• Separation of powers dictates that the judiciary cannot usurp executive power – therefore cannot engage in merits review
• The legitimacy of judicial review is often said to hinge on this distinction
• ‘It is not the function of the court to substitute its own decision for that of the administrator by exercising discretion the legislature has vested in the administrator’ (Mason J in Minister for Aboriginal Affairs v Peko-Wallsend)
• ‘If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk’ (Brennan J in Attorney General (NSW) v Quin)
1.2.1 Legalities Review
• Traditionally undertaken by superior courts as part of inherent or common law supervisory jursidiction
• Limited criteria/grounds of review
• Grounds of review are distilled in S5 of the ADJR Act
• Illegality, irrationality and procedural impropriety (per Lord Diplock in CCSU)
• Process for judicial review involves scrutiny of the original decision-making process
• ‘Judicial review is concerned, not with the decision, but with the decision-making process’ (Evans p148 ******)
• Burden is on the applicant to demonstrate a legal error
• Remedy very rarely involves the substitution of an executive decision; administrator to remake the decision according to the law
• Common law remedies illustrate this:
• Certiorari: quashes a legally flawed decision
• Prohibition: prevents the making of a legally flawed decision
• Mandamus: compels a legally proper consideration of the exercise of a discretion or duty
• Courts do not grant damages under judicial review
Wednesbury (p146-8) *********
Facts: DM had discretion to grant a license to operate a cinema on a Sunday
• Burden of proof is on the applicant to prove a breach of the law
• Made clear the distinction between appeal and review
• Outlined the criteria of unreasonableness: decision is only invalidated when the decision made was so unreasonable that no reasonable DM could have made the decision
• A high standard of proof, well beyond mere disagreement with the decision
Quin (per Brennan J)
• Courts should not substitute the decisions of administrators with their own
• Separation of powers remains constantly in the background (Brennan J)
• The power has been invested in the administrator by parliament, it has not been invested in the courts
• For the courts to exercise such power would invoke serious questions of legitimacy
1.2.2 Merits Review and Tribunals
• Merits developed in opposition to legality review
• There is no inherent merits review, it arises out of statute, and is undertaken by tribunals
• Note that some states give merits review power to courts (eg. SA district court)
• At the commonwealth level, the separation of powers means that courts cannot undertake merits review
• Chapter III courts cannot exercise executive power
• Tribunals will often be structured in non-legal manners to facilitate merits review
• Expert, non-legal members
• Usual rules of evidence not binding
• Variety of tribunals
• Many names
• Powers are determined by statute
• ‘review tribunals’ – adjudicate disputes about primary decisions about entitlements/liabilities
• Can be single or double tier review
• Specialist or generalist
• State and Commonwealth tribunal systems are separate
1.2.3 Nature of Merits Review
• Usually as follows, but ultimately dependent on statute:
• ‘Standing in the shoes’ of the original decision maker
• De novo review (Drake v MIMEA)
• They issue a second decision, binding unless challenged in a court
• Reexamine the merits (including facts, law, policy and discretion)
Greenham
• No burden of proof to demonstrate the original decision-maker made a mistake or made an unlawful decision
• Tribunal can simply remake the decision as they see fit
• Therefore, the grounds of merits review are simply that the decision was wrong, and the remedy is a new decision
1.2.4 The Administrative Appeals Tribunal (AAT)
• The major commonwealth merits review body
• Established as part of the ‘new’ commonwealth administrative law
• Not all states have equivalents
• Many of the general principles of tribunal law were developed through interpretation of the AAT Act
• Establishes the Administrative Review Council [AAT Act, part V]
• Constitutionally it is part of the executive (hence avoiding separation of powers difficulties)
• Functionally, however, it is very judicial
• Adjudicative model
• Legalistic approach, though not bound by evidence rules
• Legal representation often used
• Judges sit on the tribunal (see persona designata and Drake)
• The AAT Act includes a right to reasons [s28 AAT Act]
• Jurisdiction
• Jurisdiction is conferred upon the AAT by the statute which authorised the decision under review [s25(1) AAT Act]
• Must specifically authorise AAT review
• Therefore can only be a body to review statutory power, not prerogative powers (as the latter have no statute to confer jurisdiction)
• Limited to ‘decisions’
• The failure to make a decision is also a decision [s25(5)]
• Defining ‘decision’ is difficult
• Similar problem in relation to courts under ADJR Act (ABT v Bond)
• Must be ‘ultimate’ or ‘operative’ decision (not intermediate steps)
• Difficult because where a decision was not lawfully made, then no true decision exists
• How can a non-decision be reviewed?
• Can hear reviews from other tribunals
Collector of Customs (NSW) v Brian Lawlor
Facts: problem of reviewing an unlawful (and therefore no-existent) decision arose.
• ‘Decision’ in s25 refers to decisions in fact, regardless of legality, so long as it is a purported exercise of the powers conferred by the statute
• The powers of the AAT, defined in s43(1):
• Review a decision
• Exercise all powers and discretion of the original decision maker
• May affirm, vary, substitute or remit the decision
• Powers are subject to the limitations in the original statute which confers jurisdiction to the AAT
Drake v MIMEA (p71-2 ****)
• Upheld persona designata doctrine allowing federal court judges to serve as president of the AAT
• Tribunals do not review reasons, they review decisions (de novo review)
• Should decide based on whether the decision was the correct or preferable one
• Should not inflexibly apply government policy
• Policy is relevant, but the individual merits also must be considered
• Tribunals should balance consistency and individual merits on a case by case basis
• Review is contemporaneous
• Is considered afresh (Drake; Greenham)
• Subject to a legislative intention to the contrary, matter will be considered with reference to current facts and policy
• Hence, the tribunal will accept new evidence
• Generally will apply new law if there is any
• Exception is if the applicant has an accrued right, in which case the old law is applied (Esber p 77*******************)
1.2.5 The Ombudsman
• An independent watchdog with no determinative powers; only recommendations
• The Cth ombudsman is funded by the executive, though in some states and overseas they are considered officers of parliament
• No enforcement powers, but:
• Can report to the Prime Minister
• Can report to parliament or make media releases
• Agencies and departments can respond to draft reports
• Does have a formal investigative power which can be enforced in the Federal court
• Role is often divided in two:
• Fly Swatting: individual complaint
• Lion Hunting: systemic improvements
• There are a huge number of complaints
• The ombudsman has discretion over which will be investigated
• Factors for the decision are set out in s6 of the Ombudsman Act; if the ombudsman believes,
• 12 months have passed since the action being complained was known about [s6(a)]
• The complaint is frivolous/vexatious or not in good faith [s6(b)(i)]
• The complainant does not have sufficient interest in the subject matter [s6(b)(ii)]
• In all the circumstances it is not worth an investigation [s6(b)(iii)]
• Can also have ‘own motion’ investigations – instigated by the ombudsman themselves
• Has jurisdiction for any ‘matter of administration’ by a government department or a prescribed authority (p107-9 text *****)
• Need not be final, operative decisions (cf ADJR Act and ABT v Bond)
• Problems with ombudsman effectiveness
• Probably not too troublesome if systemically under funded, yet it still looks good (Dennis Pearce)
• The reputation of the office may be brought into question by the proliferation of private ombudsmen
• Can the ombudsman consider issues that are contracted out?
1.2.6 Human Rights Agencies
• Another administrative investigative body (p121ff***)
• More specific than the ombudsman as they are concerned specifically with human rights
• Human rights are expanding as a category
• Courts should give ‘a greater measure of attention to the impact of legislative proposals on fundamental human rights’ when interpreting legislation (Coco v R)
• There are expanding grounds of legality (Teoh)
• The jurisdiction of HR bodies extends to private organisations
1.2.6.1 Human Rights and Equal Opportunity Commission
• Broad raft of rights defended
• Tries to prevent discrimination based on
• Sex, marital status or pregnancy or potential pregnancy or family responsibilities, or sexual harassment
• Race, colour, descent or national or ethnic origin
• Physical or mental disability
• Defends, freedom of movement, speech and association, and equal opportunity in employment
• Human rights issues to do with Aboriginal Australians and Torres Strait Islanders
• Systemic focus – less fly swatting
• Most functions are reposed in the president (especially complaints)
• Though specific specialist commissioners exists, mainly with a systemic focus
• President can report to the minister
• Generally uses informal means of enquiry
• A complaint must be about a breach of a right listed in the schedule (p122 text)
• HREOC has restricted remedial powers
Brandy v HREOC (1995)
• Court held that HREOC had no determinative powers
• President can terminate a complaint if
• Complaint is lodged after 12 months
• It is better dealt with in another fashion
• Better suited to Federal Court
• Better remedy available elsewhere
• It is not a substantive complaint
• No unlawful discrimination
• Trivial, vexatious, misconceived etc.
• There is no reasonable prospect of conciliation
• Where a complaint has been terminated the complainant has recourse to the Federal Court with all its remedies
• The Brandy limitation does not apply to states
1.2.6.2 Discrimination
• Has a dual nature:
• Different treatment on illegitimate grounds
• Treatment which fails to recognise that relevant differences justify differential treatment (see p128 Gaudron & McHugh JJ *****)
• Legislation tends to define it as ‘any distinction, exclusion or preference’ on certain listed grounds
• Legislation distinguishes between direct and indirect discrimination
• Direct: distinction on a prohibited ground
• Indirect: general requirements impact on certain groups more harshly
CBA v HREOC (1997) (p129-30 text **** )
• Issue is one of ‘objective’ boundaries of reasonableness, not whether or not a better decision was open
• Indirect discrimination is to be judged based on whether the negative impact is proportional and reasonable to the benefits
• There may be some costs or requirements inherent in a particular job (p124 text ***)
1.2.7 Other Accountability Mechanisms
• Mediation (eg. AAT)
• Internal review
• Customer Service Charters
• Rights to information
• Right to reasons (s28 AAT, s13 ADJR Act)
• Notification of review rights
• Freedom of Information
• Privacy legislation
• Criminal investigation agencies
• Civil Law remedies
1.3 INTRODUCTION TO JUDICIAL REVIEW
• Anatomy of a judicial review application:
1) Jurisdiction of the court (can it review?)
• Inherent in state courts, but may be difficult at the commonwealth level
2) Justiciability (is review appropriate?)
• Parts 1&2 (jurisdiction and justiciability) run together in the context of the ADJR Act – there is no separate question of justiciability
3) Criteria of legality (is a ground of review established?)
4) Remedy (is one available for the reviewed decision/action?)
5) Standing (who can apply for review?)
• The ADJR Act determines jurisdiction
• It does not have jurisdiction conferred upon it as the AAT act does
• The common law origins in the prerogative writs are now supplemented by the equitable remedies of injunction and declaration
• S75 of the Commonwealth Constitution entrenches judicial review
• High Court has original jurisdiction
• Must be limited to legalities review, by implication of separation of powers
• Technical problems led to the statutory scheme: ADJR Act
• Is based upon common law principles, subject to minor qualifications (p152-3 brick ***)
1.3.2 High Court Judicial Review
• S75 gives the High Court original jurisdiction in all matters in which;
• The commonwealth (or someone on its behalf) is a party
• A writ of mandamus or prohibition or an injunction is sought against an ‘officer of the commonwealth’
• S75 does not define the substantive law, so the common law survives
• It is unclear whether or not any grounds of review (as opposed to remedies) are entrenched in the constitution
• If not, and only the remedies are constitutional, then it is theoretically possible for parliament to legislate away any or all grounds for remedies
• The commonwealth or an officer of the commonwealth is a phrase that does not include incorporated bodies
• S44(2A) of the Judiciary Act allows the High Court to remit matters to the Federal Court
• Judiciary Act also enables the court to grant remedies not mentioned in s75(v) if they are necessary to effectuate the remedies mentioned in s75(v)
• Also has provisions for bigger jurisdiction [s30 and 33 Not in materials: check*********]
1.3.3 Federal Court Judicial Review
• Main Administrative law court for commonwealth decisions
• Jurisdiction mainly (but not exclusively) derived from the ADJR Act
• ADJR Act was intended to simplify judicial review
• But many jurisdictional problems remained
• There was a perceived need to broaden the Federal Court’s jurisdiction to ensure the High Court was not the first port of call
• Hence s39B(1A) and s44(2A) of the Judiciary Act
• S39B(1A)
• Original jurisdiction of the Federal Court now includes any matter:
• in which the Commonwealth is seeking an injunction or declaration [s39B(1A)(a)]
• arising under the constitution, or involving its interpretation [s39(1A)(b)]
• any matter arising under the laws of the Commonwealth [s39B(1A)(c)]
• But if jurisdiction is derived from this section then the applicant is forced to turn to common law principles and cannot rely on the ADJR Act
1.3.4 Associated and Accrued Jurisdiction
• Jurisdiction required by the courts in order to deal with the whole matter at hand
• Associated jurisdiction
• S32 of the Federal Court Act: can consider extra-jurisdictional matters if they are associated with matters within the jurisdiction of the court
• Is limited to claims arising under other federal laws
• S39B(1A)(c) has limited its importance
• Accrued jurisdiction
• Arises out of a superior court’s inherent power to settle the controversy before it
• Does the non-federal matter (often common law) arise out of common transactions and facts? (Tetron)
• Even when the intra-jurisdictional part of the matter fails, the court can still grant a remedy as part of accrued jurisdiction
• Post-Wakim this is the only method of federal judicial review of state executive action
1.3.5 Migration Act
• ADJR Act not available
• Review now available in the High Court’s original jurisdiction or under the Federal Court’s s39B jurisdiction
• Privative clause was upheld but with limited operation
1.3.6 Remedies
• There are two types:
• Common law and equitable remedies: certiorari (to quash/undo), prohibition (to prevent), mandamus (to compel), injunction and declaration
• Statutory remedies: eg. S16 ADJR Act
• High Court has been forced to evaluate its inherent jurisdiction
• Prerogative writs have become constitution writs
• Raises questions now as to whether the availability of relief at common law and in the original jurisdiction of the High Court may be governed by different criteria
• For example, the constitution writs (though discretionary) may be less likely to be refused on discretionary grounds (see Aala)
• May increase the uncertainties and technicalities of the common law ‘prerogative’ remedies (see p186-7 ****)
• Limitations and technicalities of prerogative writs make equitable writs of continuing and significant role (Gaudron J in Enfield****)
1.3.6.1 Certiorari and Prohibition
• Share the same criteria
• Have different timing
• Prohibition before the action
• Certiorari after the action
• Prohibition is issued if a body is considering an issue outside its jurisdiction
• Certiorari is issued for a decision that has been made outside a body’s jurisdiction, or if there has been an error of law apparent on the face of the record
• Available ‘whenever any body of persons have legal authority to determine questions affecting the rights of subjects, and having a duty to act judicially, act in excess of their legal authority’ (Atkin LJ in R v Electricity Commissioners; Ex Parte London Electricity Joint Committee Co (1920) KB)
• Not as strict as it once was, but still requires that an application for certiorari be directed at a decision with a discernible legal effect (see Ainsworth and Hot Holdings)
1.3.6.2 Mandamus
• Issued to compel performance of a duty
• Can also apply to compel the exercise of a discretionary power, though not to compel the merits of its exercise
• Doesn’t depend on the character of the decision-making body
• Issued by a superior court, and cannot be issued against a superior court
• Often goes with certiorari, but is often thought to imply the original decision was a nullity
1.3.6.3 Equitable Remedies: Injunction & Declaration
• Injunction
• Prohibits or compels
• Punishment of a breach is contempt of court
• Flexible: all that is required is an error of law, and that the applicant have standing
1.4 JUSTICIABILITY AND JURISDICTION
1.4.1 Justiciability in the common law
• Justiciability is not a separate question under the ADJR Act – it is a jurisdictional issue (p26ff ****)
• Justiciability is linked to standing (McBain Case)
• Factors relevant to justiciability:
• Position of the decision-maker and the nature of the power (prerogative or statutory)
• Individualised effect?
• Policy decisions or determinative ones?
• Subject matter
• What is the ground of review? (may be easier to establish justiciability in relation to some grounds of review)
• Justiciability is the suitability of a particular exercise of public power for review by the courts
• Traditionally a threshold issue
• Is distinct from jurisdiction requirement
• Is a question of whether it is appropriate to exercise jurisdiction, rather than a question of whether jurisdiction exists
• Seems to be an attempt to distinguish between legal issues and political or policy issues
• Is this evidence of the failure of the legality/merits distinction?
• Some decisions should not even be questioned on the grounds of legality
• Non-justiciability and the rule of law
• Surely the rule of law requires that all members of the public, and the executive, be subject to the law – this seems incongruous with non-justiciability
• ‘No immunity of a federal legislative or executive act from judicial review is possible. This is the constitutional guarantee of equality under the law’ (Brennan J, 1997 – Bond Law Review)
• Perhaps that it is a self-restriction makes it consistent with the rule of law – not an immunity, just a restraint. Power to review still exists, it is simply not exercised.
• Perhaps can be consistent if the rule of law is taken to imply simply that it is important to secure compliance with the law – the means is irrelevant, and judicial review is just one of many means.
• S75(v) can ensure that the High Court has jurisdiction, but it may not be used due to concerns about justiciability
• The rationale for justiciability
• Constitutional concerns (mainly separation of powers)
• Competence concerns
• Some decisions are too policy rich for the courts
• Fuller and polycentricism: there are too many interrelated issues
• Different executive powers and justiciability
• Statutory power: usually assumed to be justiciable
• All statutory powers have implied limits (R v Toohey)
• No automatic immunity from review even for ministers, crown’s representatives and probably even cabinet (Peko; SA v O’Shea)
• But often a light touch. In Church of Scientology, the courts noted that national security concerns might well practically prevent a successful action, even if they did not legally prevent the action.
• Prerogative powers: often, but not always
• Common Law powers: rarely justiciable
• The historical ‘in principle’ immunities are fading away
CCSU (House of Lords) p18***
Facts: Union busting case under Thatcher. Minister for Civil Services decided that no-one in the Communications Headquarters should be entitled to union membership, exercising the prerogative power to control employment in the executive. Neither employees nor the union were consulted.
• Two stage test for reviewability of a prerogative power
1. In principle justiciable, so long a decisions affect rights, interests or legitimate expectations
• At least for the ground of procedural fairness, though other ‘irrationality’ grounds not ruled out
2. But some subject matter is non-justiciable (especially in this case, national security)
• Held that there was a legitimate expectation of consultation and hence a denial of procedural fairness
• But, due to the subject matter of the decision, was not justiciable
• Held that national security was ‘par excellence a non-justiciable question’
• Lord Roskill noted a number of potential categories:
• Making of treaties
• Defence of the realm
• Prerogative of mercy
• Granting of honours
• Dissolution of parliament
• Appointment of ministers
Minister for Arts, Heritage and Environment v Peko-Wallsend (1987) Federal Court p21****
Facts: Federal cabinet made a decision to nominate stage 2 of Kakadu National Park for World Heritage Listing. Mining companies took the whole thing badly.
• Accepted CCSU on prerogative powers
• Held that the decisions of ministers or the Governor-General in council are justiciable
• Held that this decision was not reviewable
• Argued that this decision was unreviewable because it was high level policy and polycentric (p167****)
• Bowen CJ – ‘the whole subject matter of the decision involved complex policy questions…’
• Wilcox J argued the two-fold test:
• Did the decision have a direct and immediate effect on rights; and
• Was it covered by a subject matter exception
• Wilcox argued that decision did not, of itself, impact on Peko in a negative way
• Moreover, it fell in the subject-matter exception of international relations
• The whole issue of polycentricism seems to pre-suppose a failure of the legality/merits distinction
• If the court were not purporting to discuss the merits (ie the policy), then surely polycentricism would not be an issue
• Only ‘matters’ are justiciable under s75(v) of the Commonwealth Constitution and s39B(1)
• Sometimes conceptualised in the language of justiciability
Re McBain; Ex Parte Australian Catholic Bishops Conference (2002) p17-8 ****
Facts: Bishops were seeking to invoke s75(v) jurisdiction to have a decision of the Federal Court, to which they were not a party, quashed
• Since judges in the Federal Court are ‘officers of the Commonwealth’ there was the possibility of jurisdiction
• Held there was no matter in this case and therefore no justiciable issue (Gleeson J)
• The applicant had no interest in the original case
• There was no controversy that could be solved by the court
• Was seeking to enliven the subject matter of a controversy between others that had already been quelled (Hayne J)
1.4.2 Jurisdiction and the ADJR Act
• Right to reasons are available under the ADJR Act [s13]
• The framework for remedies is set out in s16 of the ADJR Act
• All discretionary and all in line with the common law
• Can quash or set aside a decision [s16(1)(a)] – cf. certiorari
• Can refer the matter back to decision-maker with or without directions [s16(1)(b)] – cf. mandamus
• Can declare the rights of parties [s16(1)(c)] – cf. declaration
• Can order the parties to do anything necessary to do justice [s16(1)(d)] – cf. mandamus/prohibition/injunction
• With the notable exception of damages, which can’t be ordered
• Are interpreted in line with the legality/merits distinction
• S5 of the ADJR Act sets out the grounds of review
• P152 notes the differences with the common law *********
• Core of the legislation are ss5-7
• Review of ‘a decision to which this act applies’ by ‘a person who is aggreived’ [s5 ADJR Act]
• Review of conduct leading up to a decision [s6 ADJR Act]
• Review of a failure to make a decision [s7 ADJR Act]
• The Act applies to [s3(1)]:
• Decisions;
• Of an administrative character;
• Under an enactment; but
• Not Governor General decisions; and
• Not Schedule 1 decisions
• (see also s3(2), (3) and (5) p26-7 ****)
• These factors mark out jurisdiction
1.4.2.1 ‘Decision’ & ‘Conduct’
Director-General of Social Services v Chaney (1980) *******
• Deane J outlined four possible senses of decision
• The mental process of making up one’s mind
• An announced or published ruling or adjudication on any question of substance or procedure (essentially approved in Lamb v Moss)
• An announced or published ruling or adjudication which effectively resolves an actual substantive issue
• An announced or published ruling or adjudication which effectively disposes of the matter at hand
Lamb v Moss (1983)
• Not limited to a final determination of rights as obligation which may be said to have an ultimate effect
• Premature applications should be dealt with through the court’s discretion to refuse
• Overridden by ABT v Bond
• Interpretation left little room for ‘conduct’ – ie. most things are decisions anyway
ABT v Bond p28-33 *****
Facts: Allan Bond had done dodgy deals with Bjelke-Peterson. ABT ruled that Bond was not a fit and proper person to hold a television license in Queensland, but had not yet revoked his license.
• Court held that the decision was reviewable, as it was a statutory step along the way
• Though held that the effect of the decision on reputations was insufficient to make it a decision.
• Mason J argued that ‘made under an enactment’ implied a decisions must be determinative
• Egs in the ADJR Act generally imply determinative decisions which are separate from conduct
• Also justified on policy grounds – decision-making should not be interrupted
• Mason J’s two-part test for a ‘decision’ must be made by or under a statute
1. It must be final or operative and determinative
2. Exception is a decision which is step along the way specifically provided for by statute
• Ie. decisions that are made as essential preliminary steps under the statute
• Therefore decisions and conduct are totally distinct: decisions are substantive and conduct is procedural
• Conduct could include adjournment or natural justice issues
• Note, however, that mere steps along the way may give rise to a ground of review after the final and operative decision has been made
Right to Life Association v Secretary
Facts: The secretary had the power to direct a clinical trial to be stopped as contrary to the public interest. The secretary refused to exercise that power.
• Court held that the refusal to exercise the power did constitute a decision under s3(2) of the ADJR Act
• Applies even when there is no duty on the Secretary to make a determination
• When the matter has been brought to the attention of the decision-maker, review is possible
• Applies even if there was no duty to seek the issues out
• Investigation reports
• S3(3) of the ADJR Act says that the making of a report is considered a decision
• Only applies when the report is a condition precedent to the making of a decision
• When a report is specified in the enactment, but the enactment does not dictate that it must be considered, then s3(3) might not apply
Kelson v Forward (p33-4 *******)
Facts: The enactment conferred the power on the MPRA to make a report, but did not include the use of the report, if any.
• Finn J held that s3(3) of the ADJR Act did not catch the report as a decision
• However, there was nonetheless a reviewable decision
• It did not channel in a further inquiry – it was a final and operative decision in and of itself
Electricity Supply Association v ACCC (p34-5 ********)
Facts: The ACCC had the statutory power to educate the public. It informed the public through advertisements about the possibility of suing for damage caused by power surges
• Court held that the advertisements did not determine any rights or obligations
• Simply expressed opinions
• Therefore, had no operative effect or finality
• When is there a decision because it is specifically required or authorised by the statute?
Edelsten v Health Insurance Commission (p35*****)
Facts: Legislation provided for investigations to be made where a doctor may have been making excessive charges to Medicare. Edelsten claimed that there had been a denial of natural justice in various steps taken prior to formal reports to a committee, which was to report to the minister
• Held that though in some cases a step may be authorised by legislation, it will not be reviewable unless it is substantive
• In this case, was early stages of an administrative process’
• This seems to be much more limited than Mason J’s exception in Bond – he did not limit the exception to substantive steps
• Are self-executing provisions decisions?
• Are when a course of action is mandated by statute and a decision-maker is not required. The right or liability seems to arise directly from statute
• But can any rules truly apply themselves?
Century Yuasa Batteries Pty Ltd (p36****)
Facts: A taxation fine for late payment.
• Held that self-executing actions are not reviewable
Peverill v Meir (p36***)
• Per Burchett J
• All rules require a determination of facts
• The ADJR Act is specifically concerned with decisions ‘required to be made’ as well as discretionary decision [s3(1)]
• Even when administering a strict statutory scheme, determining whether or not certain facts fall within statutory criteria will constitute a reviewable decision
1.4.2.2 ‘Of an administrative character’
• Administrative is a residual category, and therefore difficult to define
• Is essentially anything neither legislative or judicial
• Focus has been on the administrative/legislative divide (since administrative and judicial have huge crossover)
• Courts have been traditionally unsuccessful at making the distinction (Tooheys; Blewett)
Central Queensland Land Council Aboriginal Corporation (p37-8********)
• Listed some potential factors for dividing between administrative and legislative:
• General rules (legislative) vs. application of rules (administrative)
• Parliamentary supervision (legislative)
• Consultation requirements (legislative)
• Merits Review (administrative)
• Binding legal effect (ie. affect the operation of statutory provisions – changing the law) (legislative
Federal Airports Corporation v Aerolineas Argentinas (1997) p28-9 ********
Facts: FAC Act allowed the corporation to determine aeronautical charges
• Traditionally the test had been general (legislative) vs. particular (administrative) exercises of power
• Held that this was only one relevant consideration, and was inconclusive
1.4.2.3 ‘Under an Enactment’
• ADJR Act includes a commonwealth act, and ‘an instrument (including rules, regulations and by-laws) made under such an act’ [s3]
• Two questions:
• What is an instrument?
• When is a decision made ‘under’ and enactment?
Chittick v Ackland (1984)
Facts: An employee was dismissed pursuant to the HIC’s ‘manual of the terms and conditions of employment.
• Defined an instrument:
1. Document must be made under an enactment (ie. authorised by statute)
2. Document must be one under which administrative decisions can be made (not legislative decisions)
3. Document must have the capacity to affect legal rights and obligations (force and effect must come from the enactment – not mere identification)
• Held that the HIC manual was made under an enactment which authorised the commission to unilaterally alter employment conditions
• Distinct from a document that was simply part of employment contract
• For a decision to be ‘under’ an enactment, a direct link must be drawn between the decision to be reviewed and the statute (even if implied)
• The statute must ‘require or authorise’ the decision (Mason J in Bond)
• But how proximate to a statutory source of power must a decision be?
General Newspapers (1993) (p40-2 *********)
Facts: Telstra, a statutory corporation, had the powers of a natural person as granted by statute. Decision was made under the general powers of a legal person, not under a specific statutory provision.
• Held that it did not constitute a decision ‘under’ an enactment
• The act was not given force or effect by the enactment, but rather by contract law principles applying to legal persons
• Used ANU v Burns as authority
• Was about a sacking under a contract, not the entering into a contract
• Even less proximate to the statute, since the power had already been exercised and was now governed by other laws
• Perhaps could have distinguished Burns?
• As a result of General Newspapers government business enterprises fall through the net of accountability
1.5 SPECIAL ISSUES IN ADMINISTRATIVE LAW
1.5.1 Formulating the Grounds of Review
• Separation of powers prevents judges from engaging in decisions that exercise anything other than judicial power
• This has led to the avoidance of subjective conditions for judicial review (see the Wednesbury limitations on unreasonableness)
• 18 ground of review in the ADJR Act
• Reflect common law principles
• Reflect an attempt by the ADJR drafters to be specific and limited
• Not simply a codification – allows for an expansion of the common law
• See especially s5(1)(j) – ‘otherwise contrary to law’
• 18 are often grouped into general categories:
CCSU v Minister for the Civil Service
• Lord Diplock isolated 3 broad grounds for review
• Illegality
• Irrationality
• Procedural impropriety
• Illegality – was the decision authorised by the statute? (see esp. ultra vires doctrine)
• Statutory construction is particularly important
• Irrationality
• Attack on the reasoning process
• Especially includes things such as unreasonableness
• Also includes ‘considerations’ grounds, and improper purpose
• Procedural impropriety
• Natural justice or procedural fairness
• Debate between those who think these are sourced from common law presumptions (Mason) and those who think they are implied in statute (Brennan)
1.5.2 Jurisdictional Errors of Law
Ex Parte Hebburn Ltd; Re Kearsley Shire Council
• Not all errors of law are reviewable – some are non-jurisdictional
• They are misconstructions of the statute such that a decision-maker misunderstands the jurisdiction it is to exercise, which include a decision-maker;
• Using a wrong or inadmissible test
• Misconceive its duty, or not apply itself to the question the law prescribes
• Misunderstanding the nature of the opinion which it is to form (R v Connell)
Yusuf’s Case (Minister for Immigration v Yusuf) p154 ***************
• Lists jurisdictional errors from Craig;
• Evidence a broad approach, and are not exhaustive
• Jurisdiction is usually used in reference to bodies, and ultra vires more commonly used in reference to individuals
• Conceptually, however, they are the same
Johnson (***********)
• Even given a broad category of jurisdictional error, it is still necessary to specify the fault in order to gain review under the ADJR Act
• Generally courts cannot substitute their own decisions for those of the decision maker (Green v Daniels)
• Will only substitute if there is only one possible legal alternative (Attorney General (NT) v Hand)
• Substitution is not appropriate where the issues requires judgement, discretion, or formation of an opinion
1.5.3 State of Mind Phraseology
• Statutes commonly use phrases such as ‘if the minister is satisfied’
• All statutes must limit discretionary power in some way – power cannot be unfettered (R v Toohey)
Liversidge v Sir John Anderson
Fact: ‘If x has reasonable cause’ phrase
• Majority held that the decision-maker alone had the right to decide if there was reasonable cause
• Subject to the qualification that there was bona fide reason to have ‘reasonable cause’
• Dissent by Lord Atkin (now good law)
• ‘Reasonable cause’ must exist as a matter of fact
• Argued that ‘if x has reasonable cause’ is distinct from ‘if x believes he/she has reasonable cause’
• If it is an ‘if X then Y’ type of statute, then it is necessary to turn to statutory interpretation to determine how reviewable X is
• Even if phrased ‘if x thinks’ or ‘if x is satisfied’ there must still be reasonable grounds to think this
R v Connell
• Though ‘satisfied’ implies a subjective test, the subjective elements are in fact irrelevant
• A decision-maker cannot fool or mistake themselves into more power
• Moreover, the existence of a state of mind provision does not preclude the operation of other grounds of review
Kruger ?********
• Must exercise power reasonably, and therefore must approach ‘satisfaction’ reasonably
George v Rockett
Facts: ‘If it appears to the justice… there are reasonable grounds for believing’
• Where a statute requires ‘reasonable grounds’ for a state of mind, there must be facts sufficient to induce that state of mind in a reasonable person
1.5.4 Jurisdictional Facts
• Ordinarily, if a decision-maker gets facts wrong, this is not grounds for review (Waterford, per Brennan J)
• If there is a statutory precondition for the exercise of a power, then a court can argue without the existence of that precondition, no power exists
• Therefore, jurisdictional facts are reviewable beyond the usual legality/merits distinction
• A jurisdictional fact exists if a statute (Timbarra);
• Conditions the power on the existence of the fact
• Conditions the validity of the decision on the existence of the fact
• If a factual precondition is not mandatory, then it will not be a jurisdictional fact, it will be a directory provision
• If a decision-maker repeatedly flouts a directory provision, then an applicant may be able to seek an injunction (Project Bluesky)
• If a judge determines that a provision is not a jurisdictional fact, then the court can still undertake standard review
• But can’t adduce new evidence to determine a facts existence or otherwise
• Would have to say that the finding of fact was Wednesbury unreasonable
• Pretty much all based on statutory construction
AG (NT) v Hand
Fact: Minister could make a land claim provided it was not a public road. Could the court revisit whether or not it was a public road?
• Determination of whether it was a public road was a necessary condition of the exercise of power
• Therefore, court could intervene and determine whether or not the road was public
Timbarra Case ************
Facts: When applying for approval of a development that was likely to threaten species it was necessary to submit a species impact statement. Green bodies thought it was likely to threaten species. In judicial review they wished to bring evidence that the development was likely to hurt species, so needed to establish a jurisdictional fact.
• Spigelmann J
• The existence of a jurisdictional fact is based on statutory construction
• Approved the two-part test noted above, but phrased as;
1. Objectivity: does the fact need to objectively exist?
2. Essentiality: is the fact essential to the validity of the decision under the power?
• Relevant factors to consider when establishing whether the legislature intended to create a jurisdictional fact
• Statutory phraseology
• Does it include a state of mind provision? Not decisive, but existence of a state of mind provision will make it less likely to be a jurisdictional fact
• Whether or not it is preliminary
• If it is combined with the substantive decision-making then it is less likely to be a jurisdictional fact
• Mandatory language
• If the language is ‘shall’ rather than ‘may’ it is more likely to be a jurisdictional fact
• Where the fact is something people are likely to disagree on (ie. is contentious) then it is less likely to be jurisdictional fact
• Inconvenience
• If the courts are likely to receive a flood of appeals, then it is less likely it is a jurisdictional fact
MIEA v Naumouska
Facts: Naumouska entered the country, filled out a passenger card stating she was not married, and then tried to get husband in as well. If a false or misleading passenger card, then the immigrant is illegal
• This was ruled a jurisdictional fact
Australian Heritage Commission v Mt Isa Mines
Facts: AHC may enter a site on the heritage list if it has ‘aesthetic, historic, scientific or social significance’
• This was held to be a very subjective area involving a lot of discretion
• Therefore was not a jurisdictional fact
1.5.5 Discretion and Deference
• Discretion exists where the effective limits of power still allow a number of courses of action
• Even where discretion exists, there must still be limits of power (Padfield)
• K.C. Davis – where rules run out tyranny begins
• Discretion increases the risk of tyranny
• Discretion therefore needs to be controlled, structured and checked
• Based on two assumptions;
• Discretion is problematic
• Discretion is inevitable
• Aronson identifies both covert and overt deference to the executive
• Covert
• Fact/law distinction
• Jurisdictional error and non-jurisdictional error
• Jurisdictional facts
• Hickmann principle
• Overt are few and far between in Australia (as noted in Enfield)
• But can be based on the perceived expertise of the decision-maker
• Should agencies be given deference in their specific fields?
• Would have the apparent advantages of expertise and consistency
• Both the US and Canada have developed doctrines of overt deference to agencies
• Chevron (US) – Where the statute is unclear, defer to the agency unless its decision is unreasonable. Only applies to rules established, not specific cases
• Baker v Canada (Canada) – Where a decision-maker has validly entered into the decision making process, review will only be undertaken if the decision is patently unreasonable. Varying standards of deference (patently unreasonable, unreasonable, correctness) are accorded on the basis of the nature of the decision-maker
MIMA v Jia
• Loosens the bias rule for political figures
• Political figures must be able to express their opinions
1.6 STATUTORY EXCLUSION OF JUDICIAL REVIEW
• Statutory exclusion occurs through privative clauses
• Clauses whose intent is to exclude judicial review, either in full or in part
• Constitutional tension between parliament and the courts
• Parliamentary supremacy
• Often good reasons for wanting to oust judicial review
• Leighton’s hypothetical ‘nice’ government privative clause is one that privileges flexible, less adversarial, quicker and cheaper dispute resolution
• Rule of law and access to courts
• Courts have been very reticent to allow administrators the power to determine the limits of their own jurisdiction
• Any confined power must be reviewable
• To take the rule of law arguments too far would be to constitutionalise judicial review (because parliament could not override it)
• Would conflict with the notion of plenary legislative power
• Already a theoretical problem at the state level
• However, s75(v) of the Commonwealth Constitution does entrench the High Court’s jurisdiction to grant the constitutional writs where there has been a jurisdictional error by an officer of the commonwealth (S157 Case)
• Note, however, that the High Court has not precluded legislative exclusion of grounds of review
• Can the legislature remove all the grounds of review?
• Courts have essentially avoided the full effect of privative clauses
• Deny that they are disobeying parliament
Anisminic’s Case (1969) House of Lords
• If the error is such that there was no valid decision, a privative clause will not apply
• This occurs where there has been a jurisdictional error leading to a nullity
• Therefore, only decisions within jurisdiction were protected by privative clauses
• At common law only really had review over jurisdictional error anyway
• Similar reasoning has been applied to even the strongest language
• Time clauses are generally accepted
• No appeal/finality clauses
• Have been interpreted as only applying to tribunals and statutory appeal (Hockey v Yelland)
• Denial of specific remedy clauses
• Such as no certiorari, quashing or challenge (see Houssein)
• Effective, but only to the extent of ousting review on non-jurisdictional grounds (errors in Houssein were on the face of the record)
S157 v Commonwealth
Facts: Migration Act excluded all remedies except one
• High Court ruled that the decisions that involved a jurisdictional error were not decisions under an enactment (as they were nullified), and therefore the privative clause did not apply to them
• Emphasised two principles:
• If privative clause is ‘reasonably open’ then courts should read it consistently with the constitution
• Presumption that parliament did not intend to limit the court’s jurisdiction/review
• Federal privative clauses
• Are worthy of special consideration due to s75(v), though the federal approach has been applied to state privative clauses as well (Darling Casino 1997 HC)
• Are often patently unconstitutional (see eg. R v Coldham)
• Are read in light of Hickman
R v Hickman
• Privative clauses cause a dispute internal to statutes
• On one hand considers power to be limited (by purpose etc.)
• And yet, on the other hand, does not constrain it by review
• Courts are required to read the statute to reconcile the inconsistency
• Privative clauses do not reduce judicial review, they expand the decision-maker’s power
• To reconcile the statute use the Hickman provisos to determine if a power was ultra vires;
• Must be a bona fide exercise of power
• Must relate to the subject matter of the statute
• Must be reasonably capable of reference to the power
• (added by Coldham) Must not breach an inviolable limitation (such as where the power relies on the existence of a jurisdictional fact)
• By reconciling the statutory provisions they were saved from constitutional invalidity
S157 v Commonwealth
• Accepts that the privative clause requires the court to reconcile it and other provisions in the statute
• BUT, effect of the privative clause is not best described as expanding the decision-makers power, constrained only by the Hickman provisos
• Actual limits of the decision-maker’s powers are to be determined by reading the privative clause and the statute together
• Won’t always coincide with the Hickman provisos, though these may represent the outer limit of a decision-maker’s power
• High Court then turned to Anisminic reasoning – a jurisdictional error is not a decision
• BUT, whether or not there is a jurisdictional error depends upon the reading of the statute and the privative clause
• Look to the privative clause to determine whether particular limits are inviolable
• If so, then there is a breach that the privative clause doesn’t cover
2. CRITERIA FOR LAWFUL DECISION-MAKING
• There are competing theories of the source of the criteria: common law or statute.
• Statutory source: ultra vires theory
• Judicial review is the product of the will of the legislature, which wishes to confine executive action
• Judicial review is just an elaborate exercise of statutory interpretation
• The strong thesis: there is not substantial judicial creativity
• The weak thesis: the judges read these into statutes unless the parliament specifies otherwise
• Statutory source theory is good because it;
• Secures parliamentary sovereignty
• Secures democracy and separation of powers
• Statutory source theory is bad because;
• It is totally fictional – judges have been driving judicial review
• There is no justification for applying judicial review to prerogative powers and executive common law power
• Parliamentary sovereignty does not require parliament to have a monopoly on law-making; it only requires that parliament be able to override
• It stops judges for taking responsibility for the development of the law
• Common law source
• The criteria of legality are products of judicial reasoning developed in the common law
• Strong version: they are bedrock constitutional norms
• Weak version: the exists unless abrogated by the legislature
• Common law source theory is good because;
• It deals with the reality and practice of the courts
• Ie. they include prerogative powers and private bodies etc.
• Common law source theory is bad because;
• It provides no gain in clarity about the role of the courts or the criteria of legality
• It makes no difference, because it can be overridden by statute anyway
• It authorises judicial activism, and lessens the focus on statute
• Judicial review can be sourced from the constitution, so there is no real need to turn to the common law for a theoretical source
• But what about state review?
2.1 UNAUTHORISED DECISION MAKING
• Encapsulated in s5(1)(d) of the ADJR Act
• If the decision ‘was not authorised by the enactment pursuant to which it was purported to be made’
• Public power requires a legal source
• To go beyond that power is to act ultra vires
• Ie. the power to run tramways does not extend to the power to run a bus service (London County Council v Attorney General)
• Issues of jurisdictional fact and state of mind provisions go to whether the decision has been authorised
• No jurisdictional fact, no authorisation
• No reasonable state of mind, no authorisation
• Judicial review can be conceptualised almost entirely within the rubric of unauthorised decision-making
• Sources of legal authority
• Statute
• Prerogative powers and common law powers
2.1.1 Prerogative and Common Law Executive Powers
• Often less susceptible to review than statutory power as their boundaries and purposes are less clear (Mason J in Toohey)
• Main question regarding executive power is whether or not it exists, though the power can be limited in scope;
• Common law powers are limited by executive heads of power (Davis v Commonwealth)
• Prerogative powers are confined to acts which are not intrusive, punitive or threatening
A v Hayden
• Can’t be authorised to commit criminal acts
Congreve v Home Office (p13*****)
• Held that the executive cannot levy a tax without statutory support
• Therefore, held that the Home Office could only use the power to revoke a license for a proper purpose
• Could not simply use it as a revenue raiser without statutory authority
• Congreve is demonstrative of the extreme reluctance of common law courts to impose taxes or fines without explicit authorisation
• Lord Denning goes all the way back to the 1688 Bill of Rights to determine that the executive cannot levy a tax without statutory support
Tampa Case (p17*******)
• Held that the existence of a prerogative power is a justiciable issue
• Therefore, the court could review if the expulsion of aliens is a prerogative power exists
2.1.2 Statutory Unauthorised Decision-Making
• Unauthorised decision-making is most commonly with reference to statutory authority
• Powers tend to be more concrete and limited (see Mason J in Toohey)
Church of Scientology Case (p15-6********)
Facts: ASIO was investigating the Church of Scientology.
• High Court held that it could review decision made by ASIO
• The statute has listed the general function of ASIO as including ‘reasons of security’
• Therefore, the could review whether the Church of Scientology is a security threat
• National security is commonly considered unjusticiable as a commonwealth power
• But since this was a statutory power it was reviewable to determine if the action was authorised by statute
• But there remain significant practical limitations, given it will be extremely difficult for a person to get the required evidence with secrecy laws
• In relation to legislative powers, legal authority is strongly tied to the other criteria of legality (as evidenced by Brennan J writing extra-curially)
• Both theories (statutory and common law) about the sources of the criteria of legality, emphasise the importance of statutory interpretation
• General textual considerations include (p19-20****)
• Nature of the interests affected
• Nature of the power
• Nature of the decision-maker
• Relevance of extrinsic materials
• Common law presumptions/assumption (p21*******). All the following require clear statutory authority to be allowed by the courts;
• Intrusive action
• Imposition of a tax or penalty (Attorney General v Wilts United Dairies; Congreve v Home Office p25***)
• Vested legal rights and common law protections (Coco p23***)
• Deprivation of a court’s ordinary jurisdiction (Johnson p26***)
• Implied powers exist to the extent that they are required to support the express powers effectively
• Must be necessary or reasonable to support the express powers
• Court held there were implied powers in Smethwick Corporation, but not in Kent v Johnson
• Sometimes common law presumptions are obviated by Acts interpretation legislation (p22*****)
2.1.3 Subordinate Legislation and Unauthorised Decision Making
• Subordinate delegation includes delegated legislation and the transfer of power to a another party (not parliament) who can make legislation, regulation or by-laws
• There are two basic methods of control of subordinate legislation:
• Parliamentary control
• Senate standing committee on regulations and ordinances
• Legislative requirements for tabling
• Possibilities of disallowing the legislation
• Gazetting requirements
• Judicial (ultra vires) limitations on delegated legislation
• General delegation of powers can make review more difficult (hard to deal with rationality grounds etc)
• Usually just ultra vires, but sometimes proper purpose
• Can’t directly challenge commonwealth regulations/subordinated legislation under the ADJR Act
• Are decisions of a legislative character, not an administrative one
• Can mount an indirect challenge by waiting for a decision and then arguing it is based on invalid legislation
• Could challenge under the High Courts original jurisdiction, or in the s39B jurisdiction of the Federal Court
• Basic approach to determining the validity of subordinate legislation is set out in McEldowney’s Case
McEldowney’s Case (p30********)
• To determine if subordinate legislation is valid;
• Determine the scope, object and purpose of the authorising/primary act
• Determine the scope, object and purpose of the subordinate legislation
• Does the scope, object and purpose of the subordinate legislation fall inside the authorising act
• The courts view of whether the subordinate legislation promotes the common good is irrelevant
• No real guide to determining the scope, object and purpose beyond statutory interpretation
Shanahan v Scott (1957) p32******
Facts: The authorising act allowed for the power to make regulations necessary and expedient for the administration of the Act. Regulations were made banning the refrigeration of eggs without permission. A NSW producer, selling his eggs in NSW was refrigerating them in Vic and got busted.
• Held that the power to regulate does not extend to the power to prohibit (Swan Hill)
• Dixon J noted that the power to do anything ‘necessary or expedient’ does not extend the power of the act
• Subordinate legislation can only complement, not supplement, the power of the authorising act
• Held, since the authorising act was intended only to regulate eggs sold in Victoria, and the prohibition was broader than that, that it was unauthorised
Swan Hill Corporation v Bradbury (1937) p34******
Facts: Council could make regulations ‘regulating and restraining’ building. They then prohibited building without the consent of the council.
• The power to regulate does not extend to power to prohibit
• In this case, the general prohibition with the power to license seems to have been caught by the same reasoning
• Although there was no blanket prohibition, Dixon J focussed on the scope of the discretion and the difficulties of overcoming or challenging that discretion.
• Therefore, could still operate as an effective prohibition
• The subject matter of the statute is important to determining what the legislature would have intended
• The fact that building is part of the life-blood of the community was indicative that it should not be too strenuously restrained
• It is possible that court hostility could be avoided if;
• Not phrased in terms of general prohibition with exceptions, but in terms of a general allowance with the power to prohibit (though in substance they may be the same thing)
• If the council had been operating under some kind of guidelines, such that the discretion was not unfettered
Foley v Padley (1984) p36
Facts: Authorising act allowed for by-laws ‘regulating, controlling or prohibiting’ activities which in the opinion of the council are likely to affect the use or enjoyment of Rundle Mall. By-law prevented the distribution of things to bystanders/passers by in the mall.
• Could the activities prevented be reasonably regarded (given the state of mind provision) as being likely to affect the use or enjoyment of Rundle Mall?
• Ie. was the subordinated legislation within the purpose of the authorising act?
• The majority held that it was a reasonable and authorised decision
• Could have been challenged as unreasonable, governed by the state of mind provision
• Given the provisions did not affect people with a pre-existing relationship (only by-standers), it was not unreasonable
• May have caught some people with good intentions, but not so many that it would be unreasonable
• Is for the administrator, not the courts to weight the individual freedoms against public amenity
• Brennan J
• Believed that the council could not have reasonably thought that the distribution would affect the use or enjoyment of the mall
• Statutes can also authorise on the basis of purpose, rather than subject matter:
State of SA v Tanner
Facts: The authorising statute allowed for regulations for the purpose of reducing pollution in the watershed. The regulation prohibited the construction of piggeries, zoos, feedlots or aviaries.
• Majority held that the regulation was valid
• The power conferred was a broad one and purpose-based
• Was discretionary – leaving ultimate regulations to the experts
• Test is one of reasonable proportionality: are the means used reasonably proportionate to the ends intended by the authorising act
• Is this simply a reformulation of the Shanahan v Scott supplement/complement test? (see especially Brennan J)
• Brennan J in dissent
• Regulation was without differentiation based on risk of pollution
• Therefore, was not a sufficiently direct and substantial connection to the authorising act
• So Draconian that it in fact supplemented the authorising act
• Federal Court has emphasised post-Tanner that the test is not about judging fairness or merits
• It is about whether the means chosen by the regulation seek to widen the purposes of the authorising act (Dover Fisheries, p42****)
• But it seems likely that any decision of this kind will inevitably be laced with value judgements
2.1.4 Decisions not Made by an Authorised Person
• For a decision to be authorised it;
• Be within the boundaries of the conferred power
• Be made by a decision-maker with the authority to exercise that power
• Main focus is statutory powers
• General rule: delegates non potest delegare
• A person invested with power must exercise it personally, and cannot delegate it on
• Only a presumption, which can be overridden expressly or by necessary implication
• Reasons for the rule:
• It was the intention of parliament to vest that power in that person
• Accountability
• Problems with the rule:
• Ignores the nature of public administration – many people working collectively
• Ignores other channels of accountability (eg. Ministerial responsibility)
• Categories of authorised decision-maker
• Statutory office holder
• Such as ‘the minister’ etc.
• Statute provides for process of delegation from the first delegation receiver (express delegation)
• Person acting with de facto authority
• Acting as an agent or alter ego of the delegate
• Some old cases refer to this as implied delegation
2.1.4.1 Distinction between a Delegate and an Agent
• Not always clearly drawn in the cases
• Brennan J in In re Reference Under s11 of the Ombudsman Act is not taken to correctly state the principles
• A delegate
• Has formal authority under an instrument expressly provided for in statute
• They decide in their own right
• An agent
• Acts on behalf of the decision-maker
• Decision is deemed to be the decision of the office-holder
• Only allowed where it can be implied from a statute
• A delegate is governed and appointed by express statutory authority
• Therefore, can’t further delegate without statutory authority
• Agency is a matter of statutory construction. Relevant factors;
• Nature of decision-maker
• Carltona Principle: the legislature could not have intended for the minister to do everything themselves. P54****
• High-ranking or low-ranking?
• Terms of the legislation
• Nature of the power
• The more discretionary, the less likely to allow delegation. Cf. mechanical exercises
• Regularity of exercise
• The more regular, the higher the likelihood agency can be implied (Peko-Wallsend; O’Reilly’s Case)
• Administrative necessity (Carltona’s Case)
O’Reilly v Commissioner of the State Bank of Victoria
Facts: Tax legislation allowed the tax commissioner to call a taxpayer to hearing before him. The power was delegated to deputy commissioners under a formal power to delegate. Power was then used by a chief investigation officer.
• Court held that even where the express power to delegate exists, one can nonetheless have another person act as an agent of the office holder
• Mason J dissented, and suggested that the express power to delegate should preclude the possibility of agency
• Majority emphasised that;
• The power was exercised routinely
• Parliament must have known, as a matter of practical necessity, that powers would have been exercised by others (esp per Wilson J)
• Cf. Peko-Wallsend (p58 ***)
• Nature of power was important to those affected
• Not routinely exercised
DSS v Alvaro (1994) p58******
Facts: Rodda did not have a formal delegation of power, though a formal power to delegate did exist. The secretary had delegated his or her powers to another officer. Rodda purported to make two decision: one to raise a debt, and another not to waive the debt.
• Commentary was obiter
• With respect to mechanical types of decisions, the act probably allowed further delegation
• With respect to discretionary decisions with a more direct impact on rights, the act probably did not allow it
Fazal Din v Minister for Immigration & Multicultural Affairs
Facts: An English test, that applicants for immigration status were required to pass, was approved by the minister. Some who failed the first test could sit a second test. Some officers in the department drafted the second test and it was never approved by the minister.
• Held that the minister or a specific delegate should have approved the case
• Distinguished O’Reilly (which applied agency, even where a statutory power to delegate existed)
• Carltona principle was not strong in this case – the minister easily had the capacity to approve the test
• Wherever possible courts must preserve ministerial responsibility in order to ensure accountability
• Express delegation already diminishes it to some extent, agency does so even further
• O’Reilly is a special case, and administrative necessity must be a strong argument
2.2 LEGISLATIVE SCOPE AND PURPOSE
2.2.1 Improper Purposes
• Matter to be established:
• The authorised purpose for which the power can be exercised (a question of law)
• The purpose for which the power was in fact exercised (a question of fact)
• As a question of fact this may be difficult to determine in decision-making body with multiple members (Wilcox J in Peko-Wallsend; R v Toohey)
• Terminology can be either improper purpose (traditional) or unauthorised purposes (ADJR Act wording)
• The authorised purpose may be express or implied in the statute
• Improper purpose is consistent with the idea that there is no such thing as an unfettered discretion (Padfield)
Woolara Council Case
• Clearly not an issue of moral right or propriety
• Is an issue of authorisation: motivation of the decision-maker is irrelevant
Municipal Council of Sydney v Campbell (p78*****)
Facts: MCS could compulsorily acquire land to extend streets. The MCS could also carry out improvements or remodelling of any part of the city. MCS used their land acquisition powers to extend to Martin Pl. The MCS then acquired land adjacent to Martin Pl in order to recoup the costs of the Martin Place remodelling when land values increased. They claimed they needed to acquire this land in order to remodel/improve Martin Pl. There was no evidence to support that claim.
• Held that the second acquisition was invalid and not authorised by either of the statutory powers
• Irrelevant whether the recouping of costs was a laudable purpose, it was not authorised in the statute
R v Toohey; Ex Parte NLC (p79*******)
Facts: Darwin town boundaries were increased so as to avoid a claim on the land by Aboriginal Australians. It was not possible to claim land in a town.
• Held that the courts could review the decision of the Crown’s representative in the NT (the administrator)
• Court rejected arguments against:
• ministerial responsibility,
• Courts review ministerial decisions (Padfield), so why not minister’s decisions by proxy
• Besides which, ministerial responsibility is a concept of dubious effectiveness anyway
• courts should not review policy,
• So long as the legality/merits distinction is maintained, policy is not at threat
• counsels of the Crown are secret
• Courts can assume that parliament conferred the powers for a purpose or purposes
• Unless parliament excludes review the courts will review to ensure that powers are only used in accordance with their authorised purposes
• Authorised purposes, if not spelled out, will be inferred from a construction of the act as a whole
• The Planning Act was only intended to control planning, not prevent Aboriginal land claims
• Mason J notes that prerogative powers may be less susceptible to review for improper purpose by virtue of their purposes and boundaries being less clear
2.2.1.1 Multiple Purposes
Samrein p86*****
• Sets out the tests in instances of multiple purposes
• Some improper purposes among proper purposes can still give ground for review
• Improper purposes must be susbstantial
• Improper purposes must have caused the decision to be made
• ‘but for’ the improper purposes, the decision would not have been made
• Held in this case that a subsidiary improper purpose did not abrogate the overall legitimacy of the decision
Schlieske v MIEA p87******
• There may be many activating purposes purposes for a decision
• Must look to the substantial purpose
• It is impermissible for a decision-maker to try to use one purpose to disguise another
Kent v Johnson – Telstra Tower Case (p28****)
Facts: Applicant objected to the tourist enterprise in the Telstra tower. Statute allowed for the building of communications infrastructure
• Court held that the tourist enterprise was a substantial purpose, and was unauthorised
• What of statutory indeterminacy
• Sometimes there is no clear purpose
• Sometimes there are multiple competing purposes in a statute
• Courts generally try to rank purposes in order of importance in order to give a coherent reading to the statute (Project Bluesky)
2.2.2 Considering Irrelevant Considerations
• Outlined in s5(2)(a) of the ADJR Act
• Combined with failure to consider relevant considerations, they set an agenda of relevance
• Intended to ensure there are some broad constraints of rationality (see Lord Diplock in CCSU)
• Will always be contentious, and open to wide differences of opinion (Dixon J in R v Trebilco)
• Two broad questions:
• What was considered? (question of fact)
• Were any of the matters considered irrelevant? (question of law)
• Criteria of relevance are sourced from statute
• Which may have enumerated criteria (which may, or may not, also be exhaustive)
• Or may be unconfined, in which case the courts simply read the statute
• Political considerations are generally valid
• The higher up politically, the more likely it is necessary to take public interests into account
• Statute is read in the context of social and legal norms
• Ie. gender, race and personal bias will probably be irrelevant
Sean Investments v McKellar
Facts: The discretion to fix fees ‘having regard to the costs necessarily incurred’
• Court held that this in no way excluded considerations such as impact of the fees on residents
• Enumerated criteria are not necessarily exclusive
• What constitutes ‘consideration’ of an irrelevant matter?
• Is a question of fact, so should look to reasons, contemporaneous document etc.
• Can look at an irrelevant consideration, so long as it is recognised as such and does not affect the decision (per Burchett J in Australian Conservation Foundation v Forestry Commission)
• A court will look behind a decision-makers denial to see if an irrelevant consideration was taken into account
• Silence (a failure to give reasons) is little protection
• ‘if the decision-maker does not give any reason for his decision, the court may be able to infer that he had no good reason’ (Public Service Board v Osmond)
• If all the evidence points in the direction opposite to that the decision-maker took, the court may conclude he had no rational reason (Lonrho plc v Secretary of State for Trade and Industry)
• Rule in Jones v Dunkel may assist: can infer adverse facts from a failure to give evidence
• Though tempered by practical considerations (can’t give reasons to everyone all the time) (Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs)
• Interaction of improper purpose and irrelevant considerations
• Improper purpose uses a ‘but for’ test
• Irrelevant considerations may only be ignored if they are ‘insignificant’ (Peko-Wallsend)
• Otherwise, the court does not try to guess what the decision-maker would have thought and will simply invalidate the decision
• Improper purpose may be more useful as it has more compulsion to the decision-maker to alter the decision
Water Conservation v Browning ******
Facts: The irrigation commission has the right to refuse lease transfers in certain areas. It was an unconfined discretion. During wartime there was a policy of not transferring to ‘enemy’. Applicant was Italian.
• High Court held that being Italian was not an irrelevant consideration
• The legislation was emphatic in its conferral of discretion: ‘entirely in discretion’
• Emphasised the legality/merits distinction
• Dixon J argued that there needs to be something in a statute to encourage courts to impinge on discretion
• READ ROBERTS V HOPWOOD****
• Policy can only be taken into account to the extent it is consistent with the statute
• The decision-maker is not bound to apply policy
2.2.3 Not Considering Relevant Consideration
• What is a mandatory relevant consideration is said to be a matter of statutory construction
• Though it will often depends on what considerations are actually placed before the decision-maker
Sean Investments (p104*****)
Facts: Decision by the Health Department not to raise nursing home fees went to the minister for review. Part of the review process was a committee of inquiry making a report. The minister wrote agreed on the departmental recommendation.
• Court held that the minister had not failed to consider relevant considerations
• The ground of failing to consider a relevant consideration is only made out when the decision-maker has failed to take into account a decision he was bound to make
• Applicant cannot simply lay out an exhaustive list of possible considerations and claim that the decision-maker has not considered one of them
• Deane J also held that the decision-maker was entitled to rely upon the committee’s report
• But the report itself must not have included any errors of law, such as the considerations grounds
• The minister must properly consider the report
Peko-Wallsend (p106*******)
Facts: The minister, when deciding whether or not to accept a land claim, was to first consider the report of the Aboriginal Land Commissioner, who was required to consider the detriment on other persons or communities. The report did not include the full extent of the detriment to Peko. The minister was informed in correspondence after the release of the commissioner’s report. Government changed, a new minister approved the claim, but was unaware of Peko’s corrections of the document.
• Held that the minister had failed to consider a relevant consideration
• Mason J set out the general principles as follows;
• Failure to take account of a relevant consideration will only be made out where the decision-maker is bound to take it into account (Sean Investments)
• A minimum threshold
• The fact that the person constructing the report was bound to take it into account was sufficient for the court to hold that the minister had to consider it
• Whether or not there is an obligation to consider is ‘determined by construction of the statute conferring the discretion’
• Where the discretion is unconfined in the statute, courts should exercise caution in implying relevant considerations
• Where the statute expressly states relevant considerations, the court must determine if they are exhaustive or inclusive
• Where the statute does not expressly state relevant considerations, they must be implied from the subject matter, scope and purpose of the act
• Even where the decision-maker is bound to take into account a relevant consideration, if that consideration was ‘insignificant or insubstantial’ (per Gibbs J) and the decision would have been no different there will not be invalidation
• Generally weighted towards the decision-maker, though there may also arise questions of unreasonableness
• Mason J emphasises vigilance against merits review
• The principles apply to ministers
• The decision-maker must consider the most recent or accurate information of which he had actual or constructive knowledge
• Obligation to use the most recent information can probably be read into every statute (Mason J)
• Confirmed the principle in Sean Investments that a decision-maker may rely on an accurate report
• But held that, as in this case, a decision-maker cannot rely on a report which fails to take into account a relevant consideration
• But probably need not look behind incorrect the incorrect report if the factual errors are not brought to the minister’s attention
Tickner v Chapman (p111****)
Facts: Hindmarsh Island Bridge Case. The minister was required to consider the report of a commissioner before making a declaration under the Aboriginal & Torres Strait Islander Protection Act. Evidence led that the minister could not have personally read all 400 representations appended to the report. Some could certainly not have been read as they were marked as secret women’s business, not to be read by men. Legislation made it clear that the responsibility could not be delegated.
• Black CJ held that consideration requires some ‘active intellectual process directed at that representation’
• Confirmed by the act, given the importance of the consequences of the power
• Reading the report (which reflected on the representations), and discussing them with a staffer was insufficient
• Did not constitute an active intellectual process directed at the representations
• Staffer can assist, but the minister cannot substitute their staffer’s considerations for their own
• Staffer may sort representations into categories, summarise technical material, and sometimes summarise some representations, but not those which must be seen to be considered (ie. photos)
• Goes beyond simply relying on legislative context as Sean Investments and Peko do
• Tickner is possibly a bit on the rigorous side given the nature of government administration
• Tickner has subsequently been restricted
• Von Doussa J argued that the minister needed to have ‘direct physical access’ to the submission, but need not read every word, which would constitute an impossible burden (Chapman v Luminus Pty Ltd (no.5))
Hindi v MIEA (p116********)
Facts: Application by the Hindi family for permanent residency, which was rejected. The family would have likely had to go to Lebanon.
• Relevant considerations must be given ‘proper, genuine and realistic consideration’
• Phrases such as ‘has been read’, ‘has been made aware of’ and ‘have been noted’ do not indicate sufficient consideration
• Shephard j held that there was not proper consideration, given the difficulties the Hindis would face were understated in the letter setting out the decision-maker’s reasons
• The language in Hindi has been criticised as giving license to merits review (per Spigelmann J in Bruce v Cole)
2.3 PROCEDURAL FAIRNESS
• Described as natural justice in s5-6 of the ADJR Act
• Common law and ADJR Act are substantively identical on procedural fairness (Kioa)
• Clear focus on the procedure of an administrative decision
• Falls more neatly than other grounds of review on the legalities side
• Probably better conceptualised separately from the irrationality-type grounds – considerations, unreasonableness (Lord Diplock in CCSU)
• The basic rules:
1. The hearing rule: eg Cooper’s Case requiring notice and a hearing
2. The rule against bias
3. The probative evidence rule
4. A duty to enquire
• The last two (3&4) are not considered, and are probably subsumed under reasonableness
• Australian courts have rejected the contention that procedural fairness requires decision-makers to give reasons
Cooper v Wandsworth Board of Works (p138****)
Facts: the council snuck onto Cooper’s land at night to destroy a building he had erected. Cooper had not given notice of it’s creation under council regulations.
• Court held he should have been given the opportunity for a hearing as the decision had a significant capacity to affect Cooper’s rights
• Note that this case (and cases of the same time) define rights in a traditional sense: property rights, dismissals from public office, expulsions from professional associations
• Bias rule:
• Should not be biased in fact (ie. by a financial interest)
• Should not be biased in appearance (apprehended bias)
• Reasonable people might have apprehended that the decision-maker was biased
• The two stages of procedural fairness
1. Should the duty to afford procedural fairness be implied?
• Often described as a threshold question
• Concerns the scope of procedural fairness – should it be imposed on the decision-maker
2. If the duty exists, what does it require in this case?
• A question of content
• Is flexible and determined in the circumstances of each case
• By Kioa, procedural fairness had expanded so much that some were questioning if a threshold question remained
• Procedural fairness is considered a jurisdictional error
• Allows review for procedural fairness under s75(v) of the constitution
Ridge v Baldwin (1964) p139****
• Rejected the contention that procedural fairness obligations only applied to quasi-judicial administrative functions
• Procedural fairness was imposed on ordinary adminstrative decision makers
2.3.1 Theoretical Sources of Procedural Fairness
• Procedural fairness is said to be useful on both instrumental and intrinsic grounds
• Instrumental: substantive rules fail in the absence of good procedural rules (See Megarry V-C in John v Rees p139**)
• Instrinsic: more difficult to quantify, but may include value of participation, issue resolution (see also John v Rees), giving people respect, culture of democracy
• Procedural fairness must not become so burdensome that it imposes undue burdens to the point that it calls into question its own legitimacy (Megarry V-C in McInnes v Onslow Fane)
• Note also that excessive procedural fairness requirements would also call separation of powers into question – the judiciary limiting the capacity of the executive to perform its work
• Two basic approaches to the source of procedural fairness:
1. Legislative implication (the ultra vires theory) (Brennan J in Kioa)
• Parliament intends for statutes to be subject to procedural fairness
• When the exercise of power directly affects in individual they can claim procedural fairness
2. Common law duty, which comes in two sub-versions
a) Rights-based approach (old approach – Cooper’s Case)
b) Universal implication theory; though some acknowledged exceptions (Mason J in Kioa)
• There is another approach: The multi-factorial theory (supported in Durayappah and Salemi)
• Designed to revive the threshold test in procedural fairness
• Should consider a number of factors in determining whether procedural fairness requirements apply
• Nature of the interest affected
• Nature of the power being exercised
• The specific decisional criteria
• Nature of officer making the decision
• Effect or impact of the decision
• The legislative procedural framework under which the decision was made
• Whether the circumstances imply that procedural fairness is required
2.3.2 The Tests for Procedural Fairness
Kioa v West ******
Facts: Deportation case
• Overturn Salemi – should read procedural fairness into the deportation power
• Held there had been a breach of procedural fairness, which did apply in the circumstances
• Mason J on the threshold test:
1. Procedural fairness applies when an administrative decision exists that affects rights, interests or legitimate expectations
2. Subject to two qualifications:
a) Subject to clear statutory intention to the contrary
b) Rights, interests and legitimate expectations must be affected in a direct and immediate way
c) Note that this may intersect with justiciability: may be unlikely to be imposed in a policy/political decision (CCSU?***)
• Brennan J:
• Procedural fairness derives from statutory interpretation
• Question of statutory construction has a universal answer: procedural fairness is read into the statute
• Therefore, clear statutory exclusion is required to preclude procedural fairness
• So long as ‘statutory power is apt to affect individual interests’, procedural fairness will apply
• Legitimate expectations are irrelevant, since the focus is on the statute
• Qualifications to procedural fairness are substantively the same as Mason J
• Defining ‘legitimate expectations’
• Expectation needs to be reasonable, though not necessarily held by the relevant person (Teoh)
• Though procedural fairness applies to a legitimate expectation, there can be no entitlement to have the expectation enforced
• Defining ‘interests’
• Very broad
• ‘rights and interests’ includes ‘personal liberty, status, preservation of livelihood and reputation as well as proprietary rights and interests’ (per Mason J in Kioa)
• Brennan J has an even broader definition:
• Contemplates ‘an almost infinite variety of interests’, not limited to ‘proprietary or financial interests or reputation’
• Is more concerned with the ‘manner in which it is apt to be affected’ – ie. are the individuals interests affected in a manner substantially different from the public at large
• Procedural fairness applies where the interests of particular individuals are mandatory relevant considerations
• Has this definition made the notion of legitimate expectation redundant?
• Probably still relevant to content – legitimate expectation in Teoh led to the requirement that Mr Teoh be heard on a specific issue
• Kioa shifted the focus from the threshold question (relatively easy to satisfy), to a question of content
• ‘Critical question’ is ‘what does the duty to act fairly require in all the circumstances’ (per Mason J in Kioa)
Kioa v West
Further facts: Decision-maker had been informed that the applicant was assisting other illegal immigrants and purposefully evading authorities. These were never put to the applicant.
• Where the decision contains reasoning based upon reasons personal to the applicant, then that applicant may deserve a hearing
• If the applicant has been subject to damaging allegations, he or she deserves the opportunity to answer those allegations
• Even if the decision-maker did not explicitly place great weight on those allegations (per Brennan J)
2.3.3 The Nature and Role of Legitimate Expectations
Haoucher v MIEA(1990) p150-4****
Facts: Convicted criminal appealed against a deportation order. AAT, which in this instance could not issue a new binding decision, decided, on the basis of the effect on Haoucher’s children among other things, to recommend to the minister that the deportation order be revoked. Minister chose to ignore the recommendation. His policy stated that he would only do so in exceptional circumstances.
• Held that procedural fairness obligations applied and had been breached
• McHugh J (in the majority)
• A legitimate expectation gives rise to procedural fairness obligations
• Legitimate expectations must be reasonable
• Legitimate expectations must go beyond a mere hope
• Legitimate expectations can be based on government policy, which will determine the content of procedural fairness obligations
• Therefore, Haoucher had a right to be told what constituted the ‘exceptional circumstances’ mentioned in the government policy
• Deane J questioned if legitimate expectations had any role in the threshold stage at all
• Argued that procedural fairness applied generally to government executive decision making (subject to Mason J’s qualifications in Kioa)
• Dissenters, Gaudron and Dawson JJ, both held that procedural fairness obligations applied
• But argued that in having a hearing with the AAT, Haoucher had been given adequate opportunity to express his case
• Should be considered as one whole decision-making process, not separate ones (see O’Shea)
FAI Insurance Ltd v Winneke (1982) p155-8****
Facts: Pre-Kioa. Governor in Council was required to give annual approval or renewal for carrying out the insurance business for worker’s compensation liability. FAI’s license had not been renewed, and it argued a denial of procedural fairness as it had not been given a hearing.
• Mason J makes a tri-partite distinction about licenses:
1. Application
• Procedural fairness does not apply
2. Renewal
• Procedural fairness will apply due to legitimate expectation that the license would be renewed
3. Revocation
• Procedural fairness definitely applies
• Note that procedural fairness applies even to the Governor in Council
• In this case the economic interests, and the possible slur on reputation were enough to ground procedural fairness
• Note that this distinction between licensing arrangements might not be useful post-Kioa
• Procedural fairness may apply even to application case
• However, the content might well be satisfied simply by considering the application
• Note, however, that content could change if there were an adverse allegation from another source (Haoucher)
A-G (NSW) v Quin (1990) p158-9****
Facts: Quin, a magistrate, missed out on appointment when his court was restructured. He successfully argued the government had not afforded him procedural fairness. When the application was reconsidered, the government applied a new policy stating that those judges who had missed out had to compete with new applicants. Quin argued that his application should be considered on the same terms as his colleagues who had been reappointed.
• Court held that legitimate expectations cannot be substantively enforce, which was essentially what Quin was requesting
• It would meant that courts would be interfering with merits review
• Even if the legitimate expectation is purely procedural, courts will not enforce it
MIEA v Teoh (1995) p159-62***
Facts: The whole deportation and rights of the child business.
• An international treaty will give rise to a legitimate expectation, except where there exists executive or statutory indications to the contrary
• Therefore, the right to a hearing arises whenever the executive acts in breach of an international treaty to which they are a party
• No substantive enforcement of legitimate expectations
• Argued it was analogous to Haoucher’s Case
• Questionable – government policy was in conflict with the international treaty. Messages weren’t nearly as clear.
Re MIMA; Ex Parte Lam
• Questions Teoh without overturning it
• McHugh and Gummow JJ
• Reject the argument that Teoh is analogous to Haoucher
• Speculate that Teoh may be confined by the fact it was a child’s interest, and an issue ‘in respect of which any civilised person would hold expectations’
• Teoh should probably not apply more generally to international law
• Is inconsistent not to consider international obligations relevant considerations, but to nonetheless expect a hearing on them
• Seems to add to the body of law the executive is expected to be held to
• Perhaps, the content of procedural fairness in these instances should be substantially lowered
• Argued that the role of legitimate expectations is only with respect to the question of content (see McHugh J in Teoh)
• Procedural fairness is presumptively applied anyway
• Will be one of many factors which decide on the content of a procedural fairness obligation
• Callinan J
• Very critical of Teoh
• Also suggested legitimate expectations should only be relevant to questions of content
• Gleeson CJ and Hayne J
• Not as critical, or as forthcoming
• Gleeson CJ seems to assume that legitimate expectations are still relevant to the threshold question
• Hayne J refuses to express an opinion
• All judges note that a failure to do something a decision-maker said they would do (ie. making further enquiries) does not of itself constitute a breach of procedural fairness
• Must show that there was some unfairness – that the applicant was not fully heard etc.
2.3.4 Qualifications to the Threshold Test
2.3.4.1 The ‘Direct and Immediate’ Qualification
• The two qualifications probably exclusively define the threshold question (Lam)
• Everything else will only relevant to the question of content
• Three differing approaches exists:
1. It overlaps with justiciability requirements (ie. can’t challenge policy-type decisions)
• To see the similarity compare Peko-Wallsend with Kioa
• Note, however, that ‘direct and immediate’ does not have the same category based exemption
• While one need not consider justiciability under the ADJR Act, will nonetheless need to consider whether ‘direct and immediate’ with regards to procedural fairness
2. Only ‘direct and immediate’ if judicial, not if legislative
• Court in Bread Manufacturers v Evans said that this argument had been dead since Ridge v Baldwin
3. Will be direct and immediate when the decision-maker is required to consider an individual’s interest (per Brennan J in Kioa)
• Probably the best guide
• Would probably make sense to require procedural fairness where a decision-maker is permitted, but not required, to consider individual interests and does so (Aronson & Dyer)
SA v O’Shea (1987) p168****
Facts: Was a two-step decision-making process: 1) the parole board makes recommendations; 2) the governor of SA decides (on the basis of what Cabinet tells him or her to decide). O’Shea was heard at the first step, but not at the second.
• Held that O’Shea’s rights had been affected in a direct and immediate way
• Mason CJ held that the fact that Cabinet is a political body is irrelevant
• Procedural fairness was not excluded on the basis it was a policy decision
• Was not the development of a broad and general policy, which might exclude procedural fairness
• Was a consideration of O’Shea’s personal characteristics
• Wilson and Toohey JJ, and Brennan J’s judgements do seem to indicate that the political nature of the decision and decision-making body are relevant
• But decided more substantively on the issue of content (Gaudron J seems to explain O’Shea this way in Haoucher)
• However, held that O’Shea had effectively had a hearing
• The decisions were best considered part of one decision-making process
• Note that this is much the same as the decision in Haoucher’s Case where the majority deemed multiple steps part of one decision-making process
2.3.4.2 The Statutory Exclusion Qualification
Coco v R
• The test for exclusion of common law rights is ‘a stringent one’
• The name of a section is insufficient to abrogate procedural fairness (Miah)
• Migration legislation now purports to exclude some procedural fairness
• Can, with clear enough words, abrogate procedural fairness
• Need clear words of necessary intendment (Annetts; and per Mason J in Kioa)
Annetts v McCann (p166*****)
Facts: Concerned the Coroner’s Act
• Ruled that procedural fairness obligations were applicable
• It is not sufficient that the legislature might have assumed procedural fairness obligations did not apply when it was drafting
• Require ‘plain words of necessary intendment’
• Can also in some circumstances have implied exclusion by necessary implication
• Urgency may be a factor that can lead to implied exclusion
• But must be ‘by reason of overriding necessity’ (per Deane J in Kioa v West)
Heatley v Tasmanian Racing and Gaming Commission (1977)
Facts: Regarding the commission’s power to exclude a person from race tracks.
• The need for urgent decisions in some circumstances will not justify the general preclusion of procedural fairness in other circumstances
Marine Hull and Liability Insurance Co Ltd v Hurford (1985) brick*****
Facts: Treasurer could issue a notice stopping an insurer from continuing business. Insurer claimed that the treasurer had not complied with the requirements of procedural fairness before issuing the notice.
• Held that there was a breach of procedural fairness
• Wilcox J argued that for urgency to affect procedural fairness, there needs to be evidence of the need for urgency in that particular fact situation
• Furthermore, urgency will not abrogate procedural fairness, it will only lower the content
2.3.5 The Hearing Rule
• It is often difficult to determine the requirements of procedural fairness in the context of statutory procedural provisions
• Relevant factors to determining the content of procedural fairness requirements
• Statutory context
• Look to the general procedures envisaged – eg. An investigative procedure may be frustrated by disclosure (NCSC Case)
• Circumstances of the individual decision
• Severity of consequences, urgency etc
• Subject matter of decision
• Importance of interests
• Rules or practices of the tribunal or decision-maker
• Legitimate expectations may be relevant in this way
• What is required as part of the hearing rule is variable
• Sometimes the content with be close to non-existent
• Usually need notice, and disclosure of particular aspects of the case made out against someone
• Notice must adequate in the circumstance
• What must be disclosed? P180 and Miah****
• What is fair depends on the circumstances, not every case need replicate a judicial hearing, but the more judicial the context, the more formal the hearing requirements should be (Mobil Oil)
• What sort of hearing? Written submissions sufficient? p180****
• The hearing rule can in principle be delegated, but not always (p179 ****)
• Since procedural fairness is presumptively applied, it is insufficient to expect the inclusion of a substitute to exclude procedural fairness, as expressio unius est exclusio alterius might otherwise suggest
• The statutory protection of some rights will not exclude other common law rights (Annetts v McCann)
• Legislative silence may well indicate that the common law should fill in the gaps (per McHugh in Baba v Parole)
• Legislative procedures will not exclude supplementation by the common law (such an approach was adopted in Twist v Randwick Municipal Council and has fallen out of favour)
2.3.5.1 Exceptions/Modifications to the Hearing Rule
• Three kinds of statutory schemes may have an influence on the hearing rule
• Preliminary decision-making
• Rights of appeal
• Codes ??**
• Are procedural fairness rules excluded from preliminary decisions?
Testro Bros Pty Ltd v Tait (1963)
Facts: An inspector could prepare a report on a company
• Court took a very restrictive view
• Held that a preliminary report was not determinative and could not affect right
• Therefore, was not subject to procedural requirements
• Overruled in Annetts v McCann – said the result would not prevail today
Ainsworth v Criminal Justice Commission (1992) p176****
Facts: CJC constructed a report contrary to the interests of the Ainsworth Companies. Further decisions were to follow.
• Where preliminary decision-making procedures involve many steps, so long as procedural fairness is met on the whole, there is no breach
• Held in this case, however, the report was an independent step
• Functions of later committees were fundamentally different
• There was little capacity for later committees to redress the injustice once the report entered the public domain
• Business reputation is an interest clearly attracting procedural fairness (see also Koppen)
• For more on whether to characterise a step as independent or part of an overall process see Gaudron J in Haoucher’s Case and Mason J in O’Shea
• What of the existence of rights of appeal?
• See Marine Hull p172 brick and p136-7 of the brick ****
Re MIMA; Ex Parte Miah ****
Facts: Application for refugee status was knocked back. Solicitors stuffed up and forgot to lodge his appeal. He commenced proceedings in the High Court’s original jurisdiction claiming he had been denied procedural fairness
• Dissenters, Gleeson CJ and Hayne J, argued the legislative scheme precluded procedural fairness obligations
• Crucial were the right to reasons and right to appeal
• Thought that the language of a ‘code’ was exclusive
• McHugh J (in the majority)
• Only question was whether or not the act excluded the common law rights to procedural fairness
• The code refers to dealing ‘fairly’ which reinforces the assumption that procedural fairness should apply (dodgy argument)
• The legislation does not claim to be exhaustive
• The nature of the interests involved reinforce the presumption procedural fairness should apply
• Rights to Appeal: no general rule exists that dictates that full merits review limits or excludes procedural fairness. However, the following factors can indicate this to be the case:
• Whether or not the original decision was preliminary or final
• Decision was final, subject to appeal rights, which made procedural fairness more likely to be read in
• Whether the original decision was made in public or in private
• Where reputation is affect, procedural fairness is more likely
• Formalities required for the original decision
• Where they are required, procedural fairness is more likely
• Where they are absent, the right to appeal is more likely to exclude procedural fairness (see also Twist)
• Urgency of the original decision
• Nature of the appellate body – judicial, internal, ‘domestic’
• The more court-like the appeal body, the more likely procedural fairness is excluded at first instance
• Breadth of appeal – de novo or limited
• Must have de novo review to even get the argument for exclusion off the ground
• Nature of the interests and subject matter
• On balance these factors could neither exclude, nor reduce to nothing, the procedural fairness requirements in this case
• The ‘code’ argument:
• Too weak to be very influential
• The minister’s assumptions in parliamentary materials does not override the text of the legislation
• Overuses the expressio unius rule
• Note that McHugh in this judgement that disclosure rules are general
• Favours Brennan J’s formulation in Kioa that all matters which are ‘credible, relevant and damaging’ must be put to the individual
• Cf. Mason J in Kioa who indicates that only damaging considerations from other sources must be disclosed
• What about when appeal rights have been exercised?
• Can this cure a procedural fairness defect in the original decision?
Calvin v Carr (Privy Council) p177-8****
Facts: Horse Racing. Who really cares? Defect in the first decision. Had full de novo review.
• Procedural fairness obligations are often implied for some non-statutory domestic bodies
• Especially sporting clubs and professional associations
• No clear and absolute rules for whether appeal right cure a defect
• Three categories can be isolated:
• Where the appeals are likely to cure: eg. The original body, or an enlarged version of it, provides a full rehearing
• Where the appeals are unlikely to cure: eg. Where appeals are not impartial, or there is no way of redressing the initial injustice
• Intermediate cases: similar considerations as to whether the existence of an appeal right would exclude procedural fairness
2.3.6 The Bias Rule
• Presumptively applies to all government decision makers, including judges, but the standards differ.
• For instance it’s not reasonable to expect a very high standard of impartiality from a political minister (Jia & White) (But see Kirby’s dissent)
• Must recognise and accommodate differences from judicial methodology (Ebner)
• Statute can by express words or by necessity abrogate the rule against bias
• But courts will be extremely unwilling
• The rationale for bias is twofold;
• It is presumed impartial decisions will be more accurate
• It promotes legitimacy and confidence in government (Johnson v Johnson especially per Callinan J)
• There are now only two categories of bias, despite what the brick says
• Actual Bias
• Presumed/Apprehended/Ostensible Bias
• Deemed bias no longer exists
• Used to be where someone had a direct pecuniary interest in decision.
• Abolished by Ebner, which decided that presumed bias now encompasses this category.
• Said ‘financial and property interests are likely to be of particular significance’
• Presumed bias is a more likely ruling, as it is less pointed and easier to prove
• Unless it is excluded by statute (ie. Migration Act)
MIMA v Jia and White
Facts: Ruddock made statements on the radio saying that he believed a particular group of refugees were not of good character if they had committed particular offences (here rape) but added he would have to ‘weigh up the proper course of action’
• Court set out the test for actual bias: a pre-existing state of mind which prevents the proper consideration of the materials relevant to the decision
• Subjective test – have to determine someone’s actual state of mind
• The decision maker’s mind need not be blank, merely open to persuasion
• Court also considered presumed bias
• Held it was legitimate to form a general opinion about the types of conduct that would constitute ‘bad character’
• Minister could form general opinions (a kind of policy) about what constituted ‘good character’ so long as he did not make another error
• Kirby J in dissent
• The comments were not general (not policy), but rather specific to the case at hand
• Commentary on the specific case was indicative of bias
• Test for presumed bias: whether general circumstances are such as to give rise to a reasonable apprehension of a lack of impartiality possibly impacting on a decision
• The test is viewed from the perspective of a ‘fair minded member of the public’ (well established law, see eg Livesey v NSW Bar Association, Vakuta’s case)
• Again, mind need not be seen as blank, merely as open to persuasion (Jia & White)
• Apprehended bias is available even when a claim for actual bias fails (Jia & White)
• Will almost inevitably be based on comments made by the decision-maker
Johnson v Johnson
Facts: Judge in marriage breakdown made statements that implied both of the main witnesses (husband and wife) would give unreliable evidence.
• Court held that there was not bias
• Comments should be viewed in the light of subsequent conduct
• A fair minded member of the public is not taken to know the details of the law, but is assumed to know the particulars of the case
Vakuta’s Case
Facts: Judge called expert witnesses for GIO insurance the ‘unholy trinity’ and other names.
• Presumed bias found, but not actual bias
• Court emphasised that it would be inevitable that judges would form opinions about repeat players
• But this judge had gone too far
• Court also noted that in some circumstances it is a good idea for a judge to intervene
R v Commonwealth Conciliation and Arbitration Commission
Facts: President of the Cth Conciliation and Arbitration Commission had previously said reducing the wage differential between men and women was good, then got called on to judge case that involved that issue.
• Can have made statements on the issue in advance, so long as the decision-maker’s mind is still open
• The expression of opinions is generally acceptable
Koppen v Commissioner for Race Relations
Facts: Commissioner said her kid had experienced similar discrimination to the victim in the case
• Court held there was bias
• Raises questions of how much experience and knowledge is attributed to the public – eg. Is experience of racism attributable?
2.3.6.1 Exceptions to the Bias Rule
• There are two accepted exceptions to the bias rule:
• Necessity
• Waiver
• Necessity
• See for example Ebner, where a judge with an undisclosed proprietary interest in the outcome was allowed to continue due to the death of a central witness
• The bias rule cannot be invoked to frustrate the operation of a statute (per Mason and Brennan JJ in Laws v ABT)
• Deane J set two requirements in Laws
• Procedural fairness should only be compromised to the extent necessary
• It can only be compromised if it does not produce positive or substantive injustice
• Waiver
• Where the use of bias has been strategic, and parties have waited without objecting though they had an opportunity to do so (See Toohey J in Vakuta)
• Very unlikely to be granted if the bias has been serious
2.4 EXECUTIVE POLICIES
• Policy can be followed so long as it is not inconsistent with the statute (Green v Daniels)
• Cannot use policy to add to or confine power in a brittle or inflexible way (Green v Daniels)
• Policy cannot effectively remove a statutory discretion
• Two principles establish limitations on the extent to which policies can be followed:
• S5(2)(e) of the ADJR Act: an exercise of a personal discretion can not be at the direction or behest of another person – rule against dictation/abdication
• S5(2)(f) of the ADJR Act: an exercise of discretionary power can not be in accordance with a rule or policy without regards to the merits of the particular case – rule against inflexible application of policy
Rendell v Release on License Board p200***
Facts: Parole board refused the parole of a prisoner. They stated that they wouldn’t recommended release because to do so would be against government policy, and the minister would just reject the recommendation.
• Court held that this was not allowed
• Even a futile recommendation may be legally necessary
• It is for the minister to shoulder legal responsibility for the rejection
MIEA v Tagle p201****
• Must consider individual circumstances and not be compelled by policy
British Oxygen Co Ltd v Minister of Technology p202***
• Application of policy is acceptable so long as the decision-maker exhibits a willingness to consider faults in the policy
• In instances where a decision-maker will have to make a high volume of decisions, the formulation of policy will be an absolute necessity
• But the decision-maker must not shut ears to argument against the policy
Peninsula Anglican Boys’ School v Ryan p204***
• It is acceptable to rely on policy, so long as decision-makers are prepared to accept arguments of exceptionality
• Must be prepared to listen to particular circumstances
R v Clarkson p205***
• It is acceptable to rely on policy or general principles so long as the decision-maker is prepared to see if the circumstances fit the policy
• Need not reconsider the policy every time
• May in fact require commissioners to apply policy
• If questions of policy are to be asked, they should be done so on appeal
Bread Manufacturers
• Can decide that policy should apply in the circumstances, so long as the decision-maker thinks through that themselves
Telstra Corporation Ltd v Kendell
• ‘Behest’ as in the ADJR Act means no real independent decision
• Different from taking the opinion of another person into account
2.4.1 Legal Consequences of Ignoring or Breaching Policy
• Generally policy statements are not legally binding: decision-makers can depart from them
• Based on separation of powers – the executive cannot limit discretion given by the legislature
• Departure from policy may give rise to grounds of review
• Breach of the hearing rule
• Failure to consider relevant considerations (though if it is considered and ignored, then cannot be a breach on this ground)
Gerah Imports Pty Ltd v Minister for Industry
• States the general principle: non-statutory rules have no legal force
• This is true even if the statute contemplate the formulation of rules
Nikac v MILGEA
Facts: Minister departed from an AAT recommendation against his policy of requiring exceptional circumstances and strong evidence. His ‘transition policy’ applied to one of the applicants.
• The Minister can misunderstand the policy without grounding any review
• This was because it was his own policy, and misunderstanding it was therefore not materially different from knowingly departing from it
• However, not having considered the transition policy was a failure to consider relevant considerations
• A policy applicable to the case is always a relevant consideration
• Unless that policy is so insignificant it could not have affected the decision
2.4.2 Ministerial Directions
• Generally the dictation and inflexible application principles apply to ministerial directions/policy
• But can a decision-maker act as a minister directs in some circumstances?
• Some suggest responsible government requires this
• Two questions:
• Did the decision-maker act under dictation/inflexibly? (a question of fact)
• Was the decision-maker allowed under law to act in this fashion (a question of law)
R v Anderson; Ex Parte Ipec-Air
Facts: Decision-maker awaited government direction before making his decision
• No clear majority view
• Court disagreed over whether the decision-maker had acted on government policy determinatively or with policy as only a relevant consideration
• Court disagreed over whether or not the decision-maker had a duty to act on government policy
• Court did agree that policy was a relevant consideration
• SEE Ansett v Commonwealth p212****
Bread Manufacturers v Evans
• There can be no universal answer to whether or not a decision-maker should act on a government policy
• Must consider a number of factors;
• Particular statutory function
• Nature of the question to be decided
• Character of the tribunal
• General drift of statutory provisions
• Nature of the views expressed on behalf of the government
2.4.3 Statutory Directions
• Many statutes now include provisions allowing direction by a minister
• Is often unclear as to how much weight the decision-maker must place on policy guidance
• If bound to comply with the directions of the minister, then the minister holds the true power
Ridell v Secretary of the Department of Social Security
Facts: According to the statute the Secretary ‘must’ act in accordance with the Minister’s directions which he ‘may’ give regarding the exercise of the Secretary’s power.
• Held that the direction was invalid as it was too exclusive
• The decision-maker could not take into account the individual circumstances
• The statute vested power in the Secretary, and the Minister could not usurp that power
Smoker v Pharmacy Restructuring Authority
Facts: Authority ‘shall’ comply with relevant guidelines, which ‘must’ be determined by the Minister. Minister directed that no new pharmacy should be established within 3km of an existing one.
• Court held that ‘guideline’ can mean anything the legislature intends it to mean
• Emphasis on the firmness of the language (but note firm language in Ridell)
• Any good reason to distinguish Ridell and Smoker? Probably not.
2.4.4 Tribunals and Policy
• Should the AAT be in the shoes of the original decision-maker in terms of requirements to consider policy?
• May conflict with general duty to come to the correct and preferable decision
Drake v MIEA
• Brennan J gave the leading judgement
• Should generally apply policy, unless;
• Unlawful
• There are strong reasons to suggest its application would result in an unjust decision in the circumstances
• Where policies deal with ‘polycentric’ decisions tribunals should probably be less likely to depart from policies
• Though must still consider the circumstances of the case
• Note that tribunals do depart from policy where they believe it is just to do so (Re Goodson and Secretary of DEETYA – on departmental policy as to what constitutes reasonable steps)
2.5 THE ERROR OF LAW/ERROR OF FACT DISTINCTION
• Distinction arises in:
• S5(1)(f) of the ADJR Act
• In judicial review at common law
• Could only get certiorari for errors of law on the face of the record
• Statutory appeals (eg s44 of the AAT Act)
• All areas where the distinction arises are about determining when courts should be willing to review the decisions of administrators and tribunals
• Generally courts feel they should not be considering factual determinations
• Courts are badly placed to decide such facts
• Evaluating facts is not objective (like evaluating law is?!?!?)
• Overloading of courts
• Separation of powers and legality/merits distinction
• Things are very rarely clear:
• Some facts are errors of law, such as jurisdictional facts
• Ostensibly factual errors can be characterised as legal errors – the distinction is malleable
2.5.1 Errors of Law
• Terminology is unclear
• Sometimes used to encompass all reviewable errors – ie. establishing a ground of review is establishing an error of law (Tuite v Allen)
• But some ADJR Act grounds can be conceptualised as errors of facts (p33***)
• Read Paschvremouch (p37-9***) – in some cases where a fact is found unreasonably and then a case is founded on it, there may be review for unreasonableness
• Often used to mean errors in the interpretation of statutory or general law
• Issue of errors of law/fact arise in the context of applying legislation
• Statutory appeals on questions of law; or
• If using s5(1)(f) of the ADJR Act
• Determination of whether there has been an error of law is usually broken into three stages:
• Fact-finding
• Rule stating
• Rule application
2.5.1.1 Fact-finding
• There is no error of law in simply making a wrong finding of fact (Brennan J in Waterford v Commonwealth)
• Even perverse findings of fact aren’t errors of law if they are supported by some, albeit insufficient, evidence (read Azzopardi, p21***)
• Only exception is the ‘no evidence rule’
• No evidence ground is set out in the ADJR Act in s5(1)(h)
• Confined by s5(3) of the ADJR Act, and is only made out if:
• Decision-maker is required by law to make a finding of fact, and there was no evidence which could reasonable support that finding of fact [s5(3)(a)]; or
• The decision-maker relied on a fact, and the applicant can prove the absence of that fact [s5(3)(b)]
2.5.1.2 Rule Stating
• Whether errors of interpretation constitute errors of law is subject to some general principles (see Pozzolanic; Agfa)
• The meaning of ordinary or technical words or phrases is a question of fact
• The meaning of words having a technical legal meaning is a question of law
• The question of whether a word is in an ordinary or legal sense is a question of law
• Construction of the statute is always a process of law
• Note that Agfa makes clear how confusing this is – the interpretation of words, and their meaning within the statute are interdependent
2.5.1.3 Rule Application
• Is generally a question of law
• When facts are necessarily either within or outside a statutory description and the decision-maker decides otherwise, there is an error of law (Hope v Bathurst, p29****)
• Exception is where the statute uses ordinary terms – application of fact to those terms is a question of fact
• The caveat to this exception is that it only applies when the conclusion reached is reasonably open
• Ie. Whether the conclusion was open or not is a question of law
Azzopardi v Tasman UEB p21***
Facts: Hurt his knee. Decision maker found he had not hurt his knee.
• Held that even perverse findings of fact (or findings lacking in probative force, or that no reasonable person could have made) are still findings of fact
• Can nonetheless make an error of law in the application, such as misapplication of facts to statute (hence, not inconsistent with Hope v Bathurst)
Collector of Customs v Agfa-Gavaert p23***
Facts: On of the relevant phrases was a composite phrase – half technical, half ordinary meaning.
• Both parties conceded that whether or not it was a composite phrase was a question of law, as determining whether meanings were ordinary or legal is a question of law
• Can determine part of a meaning by reference to trade meaning, without having to consider the whole phrase in terms of technical meanings
• Provided that such an interpretation does not lead to a result which is ‘absurd, inconvenient, anomalous or illogical, futile or pointless, or artificial’
Pozzolanic p26***
Facts: Question of whether or not something was ‘connected with’ something else
• Could not simply adopt the ordinary meaning, as it was too imprecise
• When reading a broad phrase which could refer to many things, must look to the purposes of legislation – a question of law, not fact
Hope v Bathurst p28***
Facts: ‘carrying on a business’
• The meaning was a question of fact
• However, the application of facts to the meaning was a question of law
• The decision-maker’s decision was not reasonably supportable
2.6 UNREASONABLENESS
• Outlined in s5(2)(g) of the ADJR Act:
• ‘an exercise of power so unreasonable that no reasonable decision-maker could have exercised the power’
• Picks up on the language of Wednesbury, and is basically a circular formulation
• Some judges have tried to define better:
• ‘decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them’ (Wilcox J in Prasad)
• Sometimes a shorthand for ‘irrationality grounds’; an independent ground of review
• Note Lord Diplock in CCSU refers to irrationality grounds
• But usually used in its more confined sense, especially in Australia
• Wednesbury test is a high burden
• But it nonetheless invites qualitative assessment of decisions
• Statutory unreasonableness is understood in its usual sense, not in Wednesbury term (p248***)
• Best way to argue is from an established category of cases – argue by analogy
• All the categories overlap, and they are not closed
2.6.1 Making a Decision that is Devoid of Any Plausible Justification
Taveli v MIEA
• Most frequent ground is where the decision-maker has had a failure of logic, such that the decision is perverse even by the decision-maker’s own criteria
• Is rare, but possible, that all relevant facts point in one direction and the decision-maker goes in the other direction
Chan v MIEA
• Case decided, arguably, on the basis that the decision-maker misconstrued the proper refugee test
• But some judges also relied on unreasonableness
• Sometimes unreasonable conclusions can indicate that the test applied was the wrong one
• Given the accepted facts, no reasonable decision-maker could have reached the decision made without applying a wrong test
2.6.2 Giving Excessive or Inadequate Weight to a Relevant Consideration
• Mentioned as a possibility by Mason J in Peko-Wallsend
• Be cautious, judges will unlikely to buy this without strong suppor’t
2.6.3 Making an Erroneous Factual Finding on a Point of Some Importance
GTE (Australia) Pty Ltd v Brown (p39 fact/law materials)
Facts: Department had made a significant miscalculation of price in coming to its decision
• Held that the finding was unreasonable given the mistake of fact
• Note that the High Court has not supported unreasonableness on the basis of fact finding (Gummow J in Abebe and Eshetu)
2.6.4 Failure to Seek Information Readily Available and Centrally Important
• General presumption is that there is no duty to enquire
Prasad v MIEA p234***
Facts: Application refused on the basis that Prasad’s marriage was not genuine
• Court can look to facts that the decision-maker would have learned but for acting unreasonably
• Where it seems clear that readily available information was not sought out though it was centrally important, there can be an unreasonable decision
• In this case the failure to seek explanation for trivial or irrelevant inconsistencies was sufficient to ground unreasonableness
Videto v MIEA p236***
Facts: Applicant was advised by the department that he could not try to make out compassionate grounds, though he could.
• The fact that the department had misled the applicant was sufficient to ground a duty for the department to enquire
• Also cited for the argument that a decision-maker cannot avoid a relevant consideration by discouraging evidence on that point
5 Failing to Have Proper Regard to a Departmental Policy
• Or, more fully; failing to have proper regard to a departmental policy or representation on which a person had based their application for a concession
• For example in Nikac, the doctrine of legitimate expectations, and Khan
2.6.6 Making a Decision That Had an Unnecessarily Harsh Effect
Edelston v Wilcox p243****
Facts: Tax department threatened to shut down (or was it tax?) a doctor’s surgery if the doctor did not cough up the money he owed.
• Legislature must not have intended for the taxation power to be used to too harsh an effect
• Would have had an unreasonably harsh effect on Dr Edelston, and was unreasonable
• Also held to be too harsh in R v Barnsley Corporation; Ex Parte Hook
2.6.7 Choosing an Irregular and Unnecessary Course of Action
• Or, more fully; choosing a course of action that in itself is lawful, but where the same objective could have been achieved by an alternative and more regular course of action which does not detract from fundamental rights
Wheeler v Leicester City Council
Facts: A sporting club was denied access to a ground due to a failure to denounce a South African sporting tour
• Held that it was unreasonable, as there were far better methods of achieving the objective of stopping racial discrimination
• See also Secretary, Dept of SS v O’Connell and Sevel
2.6.8 Inconsistent of Discriminatory Decisions
• Or, more fully; making a decision that is demonstrably inconsistent with other decisions or apparently discriminates against a person, where there is no apparent justification for doing so
Parramatta City Council v Pestell
Facts: Only industrial properties were levied to pay for general city improvements
• Can’t levy a small group to the benefit of the whole
Sunshine Coast Broadcasters Ltd v Duncan
Facts: Though all applicants were being licensed at once, some were told that the places had already been filled.
• Held that it was unreasonable
3. CONSEQUENCES OF UNLAWFUL DECISION-MAKING
• Generally, a decision made in breach of a ground of review, is a nullity
• Which is to say, it was, in law at least, never made
• Comes up against some serious practical problems
• The decision has been made, and has often had consequences
• If nullities were decisions that had never been made, then they could not be appealed (see Macksville)
• Would frustrate the point of appeal rights in many circumstances
• If an error affects only one part of the process, does it invalidate the whole?
• Two traditional possibilities:
• Void: had no existence, and ineffective for all circumstances
• Voidable: valid and operative unless and until duly challenged, but then considered void ab intitio (Forbes v NSW Trotting Club)
• Neither are helpful anymore (Bhardwaj)
• Confusion is the product of two conflicting principles
• Legality
• Suggests that where a decision-maker has acted illegally, the order made should have no legal affect
• Suggests the usual consequence should be a nullity
• Separation of powers
• Deciding whether or not something is legal is a function of the courts – prior to that, one should consider the decision regular and lawful
Wattmaster
• Order, even if erroneous at law, still has exists and has effect until it is quashed by a court
• When courts do order a quashing, it should generally be from the date of the original decision (see also Wandsworth Board of Works v Cooper)
• Cannot simply ignore a decision one considers invalid (Hoffman-La Roche)
• Quashing from original date should be upheld
• The discretion to refuse a remedy is not exercised lightly (Park Oh Ho)
Re Kretchmer (AAT 1988)
Facts: Person dismissed a case without the relevant authority
• Tribunal considered whether or not this should be upheld
• Usually it would be for a court (not the tribunal) to quash or review the decision
• Held in this case that there was no original decision (because it had been erroneously made), so they could consider the case
• Nonetheless pointed to special circumstances
• Jurisdictional error
• Agreement by the parties
• No rights of third parties involved
Bhardwaj
• The two categories (void and voidable) are unhelpful
• Test is what the legislature intended to have happen if invalidated due to an error of law
• To the extent a tribunal made a jurisdictional error (which includes procedural fairness), there is no decision at all
• The duty to make the decision remains unperformed
• Decision-maker may not only remake the decision, but is required to do so
• It is unclear if this is good general precedent
• There is no absolute theory of nullity
• Can at least appeal from legally erroneous decisions
• Erroneous decision can also have some legal consequences
• Mayze p254***
• Hoffman-La Roche p25***
• Craig
• Declarations of invalidity only binds the parties, and only apply to the decisions challenged (Wattmaster Alco)
• Not all illegal action is invalid. Is a matter of two questions:
• Is the decision invalid?
• What consequences flow from that?
Project Blue Sky v ABA
Facts: The content standards set were in breach of the treaty obligations enshrined in the authorising Act
• The question of whether a breach leads to invalidity is a question of statutory interpretation
• High Court ruled that this was a valid illegality
• Looked at the consequences of the alternative
• But ultimate solution was a declaration of illegality, with the capacity to apply for an injunction if the problem was remedied
• Is this substantially different from the Federal Courts remedy of delayed nullity?
4. STANDING
• Connected to justiciability: suitability for the review of a particular decision
• Historical focus was the defence of private rights against the state
• Generally an individual will not have the right to defend public interests
• Usually left to the Attorney-General with:
• ‘Own Motion’ cases run by the A-G; or
• ‘Relator’ actions, where the A-G allows an individual to pursue a case
• Movement has been towards the relaxing of rules about standing
• But legislatures have not yet taken on any proposals for ‘open standing’: allowing any party to have standing.
• Also, the law may be becoming more complex
• Standing is ‘a house of many rooms’ (Bateman’s Bay Case)
ACF v Commonwealth
Facts: Australian Conservation Foundation wished to pursue a case against a developer
• Court held that an ordinary member of the public who has no greater interest than any other member of the public does not have standing
• Therefore, the ACF did not have standing
• However, if a person has a ‘special interest in the subject matter of the action’ they may have standing
• Must go beyond a ‘mere intellectual or emotional concern’
Onus v Alcoa
Facts: small group of Aboriginal Australians sought review of some development approval
• Distinguished ACF
• Distinct interests – tied to a small area of land, and small community of people
• Beyond common opinion on social policy
• Stephen J
• ‘special interest’ provides no real rule of thumb
• It invokes curial assessments of the importance of the concern and the closeness of that concern to the individual
• Courts will try to reflect community values
North Coast Environmental Council v Minister for Resources (1995 FC)
Facts: Environmental group seeking standing for public interest litigation
• Court held that the NCEC had standing
• Probably (though not stated as such) decided differently from ACF because of changing community values (see Stephen J in Alcoa)
• Sackville J outlined several factors which gave the NCEC a ‘special interest’
• Peak organisation in the area
• Had received government funding
• Was represented on government committees
• Had run conferences/projects on the issue
• Had shown particular interest in forestry management (the subject matter)
• But really, couldn’t all these factors be true of ACF as well???
Bateman’s Bay Local Aboriginal Land Council (1998 HC)
Facts: Two rival businesses provided traditional aboriginal burial. One was funded by the government, and the other objected.
• Generally, commercial interests of trade rivals have been insufficient to ground standing
• The courts wished to avoid trade litigation in administrative law
• In this case, held the council had standing
• Court seemed to loosen standing for injunctions and declarations
• Suggested that standing is a ‘house of many rooms’
• Court held that in some cases, standing will be allowed for commercial rivals where the use of public monies has influenced the apprehended economic loss
• Court dismissed the Attorney-General as insufficient to defend the public interest
• Hence, standing is currently weighted in favour of public bodies
• S5 ADJR Act refers to ‘a person aggrieved’ which is thought to be at least as generous as the CL test, though no case law is available
RANDOM
• Approaching an admin problem:
• First identify the decisions that could be challenged/reviewed
• When to turn to s39B or inherent jurisdiction (Note: it can be pled in the alternative to the ADJR Act)
• When ADJR Act is excluded due to Schedule 1
• Review is of a preliminary nature
• Review of prerogative powers
• Decisions of the Governor General
• Decisions under state legislation and state power (use associated/accrued jurisdiction)
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