Introduction to Administrative Law



Introduction to Administrative LawWhat is Administrative Law?Concerns the legal rules & institutions directed at keeping the ‘governors’ (principally, decision-makers in the executive arm of govt) ‘accountable’ Executive arm ‘the administration’ of gov’t focus of admin law is on the legal regulation of the exercise of power by the executive branch of gov. (Legal ctrl of the legislative branch is the core concern of constitutional law.) What are the Separation of Powers3 arms of gov Legislature (makes law); Executive (administers law ); andJudiciary (Courts & Judges - interpret and apply the law)Why keep them separate? Prevent concentration of powerAn external check on powerWhat is the Rule of Law The law binds both govts & citizens.No ruler is above the lawLaws should be written & public, enforced with due processIts core principles are:Clear separation of powers & independence of the crts & judiciaryLegal certaintyPrinciple of legitimate expectationEquality before the lawThe rule of law requires a fair & equal application of powerWhat is Judicial & non-judicial modes of accountabilityJudicial (by the courts)is a supervisory function – not to usurp powers of administration but to supervise the exercise of it (separation of powers) Some of the grounds for review are that the decision maker:breached the rules of natural justice; did not observe the correct legal procedures; did not have the authority to make the decision. misinterpreted or did not apply the relevant legislation.Non Judicial (not by the courts):eg administrative tribunals merits review review of an administrative decision involves considering afresh the facts & law relating to that decision Ombudsmenlegislation allowing access to info.Legislation limiting the purposes for which gov can use info. Public Law v Private LawRelations btw citizens – privateRelations btw governors & the governed – publicInstitutional v Functional concept of Administrative LawGov functions -v - Public functionsA Regulatory ApproachFocus on the future - influencing human behaviour & its outcomes3 Components:Set of standards that tell people how they should behave System for monitoring compliance System for promoting future complianceAdmin law – a set of rules & principles about how decisions ought to be made, eg:Procedural fairnessConsistencyEtc..Review In the Federal SystemStrict separation of powersHCrt has jurisidiction to undertake judicial review – s75(v) Constitution Kerr Committee 1971 Report:Establishment of new Fed CrtSimplified procedures for Administrative Review Fed Crt/Fed Mags CrtAdministrative Decisions (Judicial Review) (ADJR) Act 1977 (Cth)Administrative Appeals Tribunal (Administrative Appeals Tribunal Act 1975 (Cth))merits review of administrative decisions aims to provide a mechanism of review that is fair, just, economical, informal & quickdoes not have a gen power to review decisions made under Cth legislation. The Tribunal can only review a decision if an Act, regulation or other legislative instrument states that the decision is subject to review by the Tribunal What Modes of Review Available In QLDNot the same constitutional/sep of powers restrictions as the Fed System Tribunals exercise both ‘judicial type’ & administrative functions SCrt – Judicial Review Act 1991Queensland Civil & Administrative Tribunal merits review (Queensland Civil and Administrative Tribunal Act 2009) Information Privacy Act 2009 Object: the fair collection & handling in the public sector environment of personal info. & a right of access to, & amendment of, personal info in the govt’s possession or under the govt’s ctrl Ombudsman Freedom of Information From 1 July 2009, the Right to Information Act 2009 replaced the Freedom of Information Act 1992 Judicial Review & Scope of Judicial reviewWhat is Administrative Law?What is admin law?Admin law is on the legal regulation of the exercise of power by the executive branch of govtWhat does it do?Admin Law regulates govt decision making Q is the decision lawful? – Judicial review by crtsQ Is the decision correct? – Merits review External review: by tribunals, a commission, a board Internal review: the minister, another public servant For Eg: Applying for a licence (firearm, car, boat, builders)Obtaining a passport or visaApplying for a govt benefit Adopting a child Key Points To RememberWhat is the Separation of powers?Executive, Legislature, Judiciary – therefore a crt can only supervise the executive, not make decisions for themPublic v Private law distinction:Should decisions by those exercising “public functions” subject to Admin Law?Regulatory approach to Admin Law focus on improving govt decision makingFederal Admin Law & State Admin Law system & components – legislation, crts, tribunals, ombudsman What Decisions Are Subject To Judicial Review?Sources of judicial review powers (jurisdiction to hear an application for judicial review)Crt hierarchy (Fed & State) What is the function performed by judicial review? Legality v Merits reviewFed Crt: Sources of review jurisdiction - the ADJR Act What Are The Sources Of Judical Review Powers?Constitution s75(v) - High Crt using com lawCom Law: Inherent jurisdiction - Supreme Crts using com lawStatutes:Cth: ADJR Act (Cth) Fed & Fed Mags Ct using powers under that ActJudiciary Act s 39B (Cth) applies to Fed Ct using com law powersQld:JR Act (Qld) Supreme Ct using powers under that ActCourt Hierarchy – Cth SystemCourt Hierarchy – State SystemThe Function Of Judicial Review (Appeal V Review)Appeal v ReviewCan the crt substitute their own decision for that of the original decision-maker? Appeal – yes; Review – No.Judicial Review v Merits ReviewSep of Powers Doctrinea foundational principle of Austn administrative law, that ‘the merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power &, subject to political ctrl, for the repository alone’: Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36What Is Merits Review?Examines whether the correct & preferable decision has been made considering all the relevant facts & circumstances of the case & any policy on which the decision is basedMay result in the decision of the reviewer being substituted for that of the original decision maker Is undertaken by members of the executive – Ministers, statutory boards & tribunalsMay be internal or external – look at statuteWhat is Judicial Review ?The Q is - Was the decision made in accordance with the law? i.e. look at the legality of a decision rather than the merits e.g.:Answer Plan:Did the decision maker have legal authority to make the decision? – look @ the relevant legislationDid the decision maker apply the correct statutory criteria when making the decision? (Haneef case)Did the decision maker apply the rules of natural justice? ADJRA s5(1)(a)Did they take irrelevant considerations into account when making the decision? ADJRA s5(2)(a)Administrative Decisions (Judicial Review) Act 1977 (ADJRA)Substantially declaratory of the com lawBut:Com law grounds of review broadenedShift away from focus on remedies to whether or not a grounds of review could be established i.e. can a legal error be shown?Applications to either Fed Crt or Fed Mags Crt‘Scope of the Act’Key to the scope of the ADJRA - “Decision to which this Act applies”Application for review may be bought by ‘aggrieved persons’ in relation to:a decision to which this act applies (s5);proposed & actual conduct engaged in for the purpose of making a decision to which this act applies (s6);a failure to make a decision to which this act applies (s7) “decision to which this Act applies” means:‘Decision to which this Act applies’ defined in s 3 – Interpretation:"decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not & whether bf or after the commencement of this definition): ?(a)? under an enactment referred to in paragraph?(a), (b), (c) or (d) of the definition of enactment ; or ?(b)? by a Cth authority or an officer of the Cth under an enactment referred to in paragraph?(ca) or (cb) of the definition of enactment ; other than: (c)? a decision by the Gov?General; or (d)? a decision included in any of the classes of decisions set out in Sch?1. “enactment” means:"enactment" means: ??(a)? an Act, other than: ???????? (i)? the Cth Places (Application of Laws) Act 1970 ; or ???????? ?(ii)? the Northern Territory (Self?Government) Act 1978 ; or ????? (iii)? an Act or part of an Act that is not an enactment bc of s3A (certain legislation relating to the ACT); or (b)? an Ordinance of a Territory other than the A.C.T or the N.T; or (c)? an instrument (including rules, regulations or by?laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section?3A; or ?(ca)? an Act of a State, the A.C.T or the N.T, or a part of such an Act, described in Sch?3; or ?(cb)? an instrument (including rules, regulations or by?laws) made under an Act or part of an Act covered by paragraph?(ca); or ??(d)? any other law, or a part of a law, of the N.T declared by the regulations, in accordance with section?19A, to be an enactment for the purposes of this Act; &, for the purposes of paragraph?(a), (b), (c), (ca) or (cb), includes a part of an enactment. “decision to which this Act applies”A decision, (or conduct engaged in for the purpose of making a decision or a failure to make a decision);Of an administrative character;Made under an enactment.Decisions excluded:Governor GeneralSchedule 1Report or recommendation before a decision is made - s 3(3) – this is a decision to which Act appliesWhat is the meaning in s5 of “decision’’Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321A final decision (“final or operative & determinative”) or,An intermediate decision if and only if legislation provides that the intermediate decision must be made before making the final decisionOtherwise, not a decision reached as a step along the way to reaching the final decision “of an administrative character”mean?Purpose is “the exclusion of decisions of legislative or judicial character” Griffith University v Tang (2005) 221 CLR 89 p 123. Subordinate legislation not reviewable but decisions under it areQueensland Medical Laboratory V Blewett (1988) 16 ALD 440 – Decision to change table by Minister Health Insurance Act 1973 – held legislative in character how to decide if it is an administrative decisionFederal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582 – Federal Airports Corporation Act decision to change landing fees administrative in nature - FAC had to act commerciallyTo help decide if it is an administrative decision:Administrative decisions apply gen rules to specific cases while legislation contains the content of gen rulesParliamentary ctrl through disallowance indicates legislative intentProvision of merits review indicates its administrativeWhat does “under enactment” & “private decisions of statutory authorities”meanGriffith University v Tang (2005) 221 CLR 89 The decision must be:Expressly or impliedly required or authorised under an enactment; &The decision must itself confer, alter or otherwise affect legal rights or obligationsA decision of a ‘public body’? – why not reviewable?What is ‘decisions on non-govt entities under statutory schemes of regulation’NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277Held: the decision was not made under an enactmentWEA’s decision was the operative decision authorised by the ActAWBI Ltd’s veto power was not a decision made under the Wheat Marketing Act (1989) (Cth)What is ‘Conduct engaged in for the purpose of making a decision’ – s 6s3(5) definition – “including…” therefore not exhaustive ABT v Bond per Mason CJ at 342: …the concept of conduct looks into the way in which proceedings have been conducted, the conduct of proceedings, rather than the decisions made along the way with a view to the making of a final determination. Thus conduct is essentially procedural & not substantive in character .Once a final decision is made, conduct leading to it is not independently reviewable but should be considered in the context of the review of the decision itself (Minister for Immigration & Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 20) – therefore a s6 review cannot be made once a final decision is made (must then be a s5 review)‘failure to make a decision’ – s 7s3(2) definition of ‘making a decision’If a duty to make a decision exists & the decision is not made in the prescribed time or if no prescribed time then an unreasonable delay an applicant may request a s7 review Tutorial Q’sTutorial: Diff Approaches to the scope of administrative law—comparing Datafin & the ADJR ActIn what sense was the Take-overs Panel a remarkable body? Is the Panel an example of any of the trends in contemporary governance associated with privatisation, outsourcing etc?How did the English Crt of Appeal define the scope or reach of administrative law (in particular, judicial review) in this case?Why did the crt conclude that it may in practice be difficult for aggrieved persons to get a remedy, even though the Panel’s decisions were in principle subject to judicial review?Is the extension of administrative law norms to non-State decision-makers exercising so-called ‘public functions’ the only way for law to regulate their decisions? What are the alternatives? Tutorial: Different Approaches to the scope of administrative law—comparing Datafin and the ADJR ActThe ADJR ActWhat sort of actions can be reviewed under the ADJR Act?Is it possible that a decision made by a non-govt decision-maker could be reviewed under the ADJR Act?What are the main elements an applicant needs to estab to succeed under the ADJR Act?In what circum can applicants under the ADJR Act demand reasons be given for the actions they are challenging? What ‘grounds of review’ may be difficult to argue without a statement of reasons? (Administrative law imposes various standards of behaviour (norms) on administrators. In the context of judicial review, these administrative law norms are referred to as grounds of review.)If an applicant can show that a ground of review has been made out (ie the decision-maker made a legal error) are they entitled to a remedy? Describe the key diff’s btw the approaches to judicial review taken in Datafin & under the ADJR Act.What is the purpose of administrative law? How should its success or failure be judged? (see Text, 1.3 for some ideas)Judicial Review & Scope of Judicial reviewWhat is Administrative Law?What is admin law?Administrative law is on the legal regulation of the exercise of power by the executive branch of govtWhat does it do?Admin Law regulates govt decision making Q is the decision lawful? – Judicial review by crtsQ Is the decision correct? – Merits review External review: by tribunals, a commission, a board Internal review: the minister, another public servant For Eg: Applying for a licence (firearm, car, boat, builders)Obtaining a passport or visaApplying for a govt benefit Adopting a child The Key points to rememberWhat is the Separation of powers?Executive, Legislature, Judiciary – therefore a crt can only supervise the executive, not make decisions for themPublic v Private law distinction:Should decisions by those exercising “public functions” subject to Admin Law?Regulatory approach to Admin Law focus on improving govt decision makingFederal Admin Law & State Admin Law system & components – legislation, crts, tribunals, ombudsman What Decisions are subject to Judicial Review?Which decisions are subject to judicial review?Sources of judicial review powers (jurisdiction to here an application for judicial review)Crt hierarchy (Fed & State) What is the function performed by judicial review? Legality v Merits reviewFed Crt: Sources of review jurisdiction - the ADJR Act What are the Sources of Judical Review Powers?Sources of Judicial Review powers are:Constitution s75(v) - High Crt using com lawCom Law: Inherent jurisdiction - Supreme Crts using com lawStatutesCth: ADJR Act (Cth) Fed & Fed Mags Ct using powers under that ActJudiciary Act s 39B (Cth) applies to Fed Ct using com law powersQld:JR Act (Qld) Supreme Ct using powers under that ActCourt Hierarchy – Cth SystemCourt Hierarchy – State SystemThe Function of Judicial Review (Appeal v Review)Appeal v ReviewCan the crt substitute their own decision for that of the original decision-maker? Appeal – yes; Review – No.Judicial Review v Merits ReviewSep of Powers Doctrinea foundational principle of Austn administrative law, that ‘the merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power &, subject to political ctrl, for the repository alone’: Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36what is Merits ReviewExamines whether the correct & preferable decision has been made considering all the relevant facts & circumstances of the case & any policy on which the decision is basedMay result in the decision of the reviewer being substituted for that of the original decision maker Is undertaken by members of the executive – Ministers, statutory boards & tribunalsMay be internal or external – look at statuteWhat is Judicial Review The Q is - Was the decision made in accordance with the law? i.e. look at the legality of a decision rather than the merits e.g.:Answer Plan:Did the decision maker have legal authority to make the decision? – look @ the relevant legislationDid the decision maker apply the correct statutory criteria when making the decision? (Haneef case)Did the decision maker apply the rules of natural justice? ADJRA s5(1)(a)Did they take irrelevant considerations into account when making the decision? ADJRA s5(2)(a)Administrative Decisions (Judicial Review) Act 1977 (ADJRA)Substantially declaratory of the com lawBut:Com law grounds of review broadenedShift away from focus on remedies to whether or not a grounds of review could be established i.e. can a legal error be shown?Applications to either Fed Crt or Fed Mags Crt‘Scope of the Act’Key to the scope of the ADJRA - “Decision to which this Act applies”Application for review may be bought by ‘aggrieved persons’ in relation to:a decision to which this act applies (s5);proposed & actual conduct engaged in for the purpose of making a decision to which this act applies (s6);a failure to make a decision to which this act applies (s7) “decision to which this Act applies” means:‘Decision to which this Act applies’ defined in s 3 – Interpretation:"decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not & whether bf or after the commencement of this definition): ???????????????????? (a)? under an enactment referred to in paragraph?(a), (b), (c) or (d) of the definition of enactment ; or ???????????????????? (b)? by a Cth authority or an officer of the Cth under an enactment referred to in paragraph?(ca) or (cb) of the definition of enactment ; other than: ???????????????????? (c)? a decision by the Gov?General; or ???????????????????? (d)? a decision included in any of the classes of decisions set out in Sch?1. “enactment” means:"enactment" means: ???????????????????? (a)? an Act, other than: ????????????????????????????? (i)? the Cth Places (Application of Laws) Act 1970 ; or ???????????????????????????? (ii)? the Northern Territory (Self?Government) Act 1978 ; or ??????????????????????????? (iii)? an Act or part of an Act that is not an enactment bc of s3A (certain legislation relating to the ACT); or ???????????????????? (b)? an Ordinance of a Territory other than the A.C.T or the N.T; or ???????????????????? (c)? an instrument (including rules, regulations or by?laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section?3A; or ??????????????????? (ca)? an Act of a State, the A.C.T or the N.T, or a part of such an Act, described in Schedule?3; or ??????????????????? (cb)? an instrument (including rules, regulations or by?laws) made under an Act or part of an Act covered by paragraph?(ca); or ???????????????????? (d)? any other law, or a part of a law, of the N.T declared by the regulations, in accordance with section?19A, to be an enactment for the purposes of this Act; &, for the purposes of paragraph?(a), (b), (c), (ca) or (cb), includes a part of an enactment. “decision to which this Act applies”A decision to which this Act applies:A decision, (or conduct engaged in for the purpose of making a decision or a failure to make a decision);Of an administrative character;Made under an enactment.Decisions excluded:Governor GeneralSchedule 1Report or recommendation before a decision is made - s 3(3) – this is a decision to which Act appliesWhat is the meaning in s5 of “decision’’Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321A final decision (“final or operative & determinative”) or,An intermediate decision if and only if legislation provides that the intermediate decision must be made before making the final decisionOtherwise, not a decision reached as a step along the way to reaching the final decision “of an administrative character”mean?What does “of an administrative character” mean?Purpose is “the exclusion of decisions of legislative or judicial character” Griffith University v Tang (2005) 221 CLR 89 p 123. Subordinate legislation not reviewable but decisions under it areQueensland Medical Laboratory V Blewett (1988) 16 ALD 440 – Decision to change table by Minister Health Insurance Act 1973 – held legislative in character how to decide if it is an administrative decisionFederal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582 – Federal Airports Corporation Act decision to change landing fees administrative in nature - FAC had to act commerciallyTo help decide if it is an administrative decision:Administrative decisions apply gen rules to specific cases while legislation contains the content of gen rulesParliamentary ctrl through disallowance indicates legislative intentProvision of merits review indicates its administrative“under enactment” & private decisions of statutory authoritiesWhat does “Under an enactment” mean?Private decisions of Statutory Authorities?Griffith University v Tang (2005) 221 CLR 89 The decision must be:Expressly or impliedly required or authorised under an enactment; &The decision must itself confer, alter or otherwise affect legal rights or obligationsA decision of a ‘public body’? – why not reviewable?decisions on non-govt entities under statutory schemes of regulationNEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277Held, the decision was not made under an enactmentWEA’s decision was the operative decision authorised by the ActAWBI Ltd’s veto power was not a decision made under the Wheat Marketing Act (1989) (Cth)“Conduct engaged in for the purpose of making a decision”What is ‘conduct engaged in for the purpose of making a decision’ – s 6?s3(5) definition – “including…” therefore not exhaustive ABT v Bond per Mason CJ at 342: …the concept of conduct looks into the way in which proceedings have been conducted, the conduct of proceedings, rather than the decisions made along the way with a view to the making of a final determination. Thus conduct is essentially procedural & not substantive in character .Once a final decision is made, conduct leading to it is not independently reviewable but should be considered in the context of the review of the decision itself (Minister for Immigration & Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 20) – therefore a s6 review cannot be made once a final decision is made (must then be a s5 review)“failure to make a decision”s7 – Failure to make a decisions3(2) definition of ‘making a decision’If a duty to make a decision exists & the decision is not made in the prescribed time or if no prescribed time then an unreasonable delay an applicant may request a s7 review Tutorial Q’sTutorial: Diff Approaches to the scope of administrative law—comparing Datafin & the ADJR ActIn what sense was the Take-overs Panel a remarkable body? Is the Panel an example of any of the trends in contemporary governance associated with privatisation, outsourcing etc?How did the English Crt of Appeal define the scope or reach of administrative law (in particular, judicial review) in this case?Why did the crt conclude that it may in practice be difficult for aggrieved persons to get a remedy, even though the Panel’s decisions were in principle subject to judicial review?Is the extension of administrative law norms to non-State decision-makers exercising so-called ‘public functions’ the only way for law to regulate their decisions? What are the alternatives? Tutorial: Different Approaches to the scope of administrative law—comparing Datafin and the ADJR ActThe ADJR ActWhat sort of actions can be reviewed under the ADJR Act?Is it possible that a decision made by a non-govt decision-maker could be reviewed under the ADJR Act?What are the main elements an applicant needs to estab to succeed under the ADJR Act?In what circum can applicants under the ADJR Act demand reasons be given for the actions they are challenging? What ‘grounds of review’ may be difficult to argue without a statement of reasons? (Administrative law imposes various standards of behaviour (norms) on administrators. In the context of judicial review, these administrative law norms are referred to as grounds of review.)If an applicant can show that a ground of review has been made out (ie the decision-maker made a legal error) are they entitled to a remedy? Describe the key diff’s btw the approaches to judicial review taken in Datafin & under the ADJR Act.What is the purpose of administrative law? How should its success or failure be judged? (see Text, 1.3 for some ideas)The constitutional (common law) judicial review regimeCommon law judicial review jurisdiction & State crtsJudicial review remedies: the basicsThe Scope Of Judicial Review (Which Decisions Are Subject To Judicial Review?)Sources of judicial review powers (jurisdiction to here an application for judicial review)Fedl Crt: Sources of review jurisdiction - the ADJR ActThe constitutional (common law) judicial review regimeCommon law judicial review jurisdiction & State crtsJudicial review remedies: the basicsTHE “CONSTITUTIONAL” JUDICIAL REVIEW REGIMESourcesConsitution s75(v) – High CrtJudiciary Act s39B(1) – Fed Crt Constitutional common law remediesWrit of mandamus, prohibition, injunction are stated also available is certiorari where it is required for effective exercise of stated remedies only where there has been a jurisdictional error – not available for non-jurisdictional error under these Constitutional heads of power Under com law certiorari is available for jurisdictional error & for non-jurisdictional error only where the error is apparent on the face of the record What is equired?Relieve must be sought against an “officer of the Cth”The NEAT decision? – private corporations performing regulatory functionsThe ‘matter’ concept Constitution confers jurisdiction & parliament may only make laws in respect of “matters” Can be no matter unless there is some immediate “right, duty or liability (obligation)” Must be a justiciable controversy (a dispute that involves some right, duty or obligation) Tang decision - High Crt’s application of the matter concept Additional sources of power:Constitution s 75(iii) Jurisdiction not defined in terms of remedies but that one party be “the Cth”Judiciary Act s 39B(1A)(c)All matters “arising under any laws made by parliament”Fed crt can review the legality of subordinate legislation – can’t under ADJRA – not of an administrative characterElements “High Crt” to exercise its orig. Constitutional (com law) judicial review jurisdictionMust be a ‘matter’ The Cth or an officer of the Cth must be a party to the disputeIf s75(v) is used the applicant must seek & be entitled to one of the stated remedies (although certiorari & declaration are also available if required (s32 Judiciary Act)Elements“Fed” Crt to exercise its orig. Com. law (derived from the Constitution) judicial review jurisdictionMust be a ‘matter’ Cth must be involved in the disputeIf s39B(1) is used: the applicant must seek & be entitled to one of the stated remedies If s39B(1A)(c) is used: then there must be a dispute relating to a right or duty under a law made by the Cth Parliament If s39B(1A)(a) and (b) are used:Then those sections must be made outJUDICIAL REVIEW - COMMON LAW REVIEWInherent com law jurisdiction inherited from superior crts of Englandinherent com law judicial review jurisdiction was developed through the law on whether particular remedies (prerogative writs of certiorari, prohibition & mandamus) were available. Certiorari issued to quash (that is, deprive of legal effect) decisions which were invalidly or unlawfully madeProhibition issued to prohibit the making of invalid decisions or actionsMandamus issued to compel the exercise of a public duty These writs were not concerned to allow crts to substitute their own decisions for administrators, but focused on the legality of decisions Justiciability –v- Non-JusticiabilityQ is the issue suitable for judicial review? – closely related to issues of jurisdiction & standingPrinciples taken into account:Are the applicant's rights sufficiently affectedWhat is the nature & subject matter of the dispute? (eg national security issues)Is there a privative clause (ousts jurisdiction of the crt)Is there a ‘matter’ if HC or Fed CtSeparation of powers doctrineEg limited review of prerogative powersUnique executive powersDeclare warEnter into treatiesConduct foreign diplomacyAward honoursGrant pardonsAppoint judgesIssues of national securityNon- JustibilityCCSU v Minister for Civil Service [1985] 1 AC 374Issue – did the use of prerogative powers make the dispute non-justiciable & further did the fact that the dispute dealt with national security make it non-justiciable?Held:Depends on the subject matter of the dispute – therefore a case by case basis used to determine if a matter is non-justiciable In this case it involved national security & therefore was non-justiciableMinister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 Cabinet decided that Stage 2 of Kakadu National Park to be included on World Heritage ListFact that power exercised was a prerogative power was inconclusive of whether it should be subject to judicial reviewHeld: the decision was non-justiciable – “the whole of the subject matter of the decision involved complex policy questions ..therefore the crt should vacate the arena & leave the decision to the political process”R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs , Ex Parte Abbasi [2003] UKHRR 76 CAPolicy considerations are non-justiciable, but Q of a legitimate expectation of consideration of diplomatic assistance was justiciable.Hicks v Ruddock (2007) 156 FCR 574 Judicial review remedies: IntroductionThe com. law approach-v- the statutory approach embodied in the ADJR Act Common lawThe writ is a formula with various ingredientsEg Certiorari Exercise of public powerMust affect the rights of a personAdministrative (or judicial for minor crts) decision makerJurisdictional error or error on face of the record The basicsJurisdictional errors all writs are available to remedy Non-jurisdictional errors only certiorari available to remedy a non-jurisdictional error of law but only if the error appeared ‘on the face of the record’jurisdictional error certiorari is retrospectivenon-jurisdictional errorcertiorari is prospective ADJRAQ is not ‘is a remedy available?’ but ‘has one of the specified grounds of review been established?’ If YES crt may, at its discretion, make one of the orders in s16No unremediable breaches of admin law norms (grounds of review)No distinction btw jurisdictional & non-jurisdictional errorsCom law remedies still relevant:State crts judicial reviewConstitutional com law judicial reviewProject Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355Whether the breach of a statutory requirement should render a decision retrospectively invalid or otherwise is determined by asking if it is the purpose of the legislation that such a decision should be invalid This decision was prospectively unlawful Tutorial: Different Approaches to the scope of administrative law—comparing Datafin and the ADJR ActIn what sense was the Take-overs Panel a remarkable body? Is the Panel an example of any of the trends in contemporary governance associated with privatisation, outsourcing etc?How did the English Crt of Appeal define the scope or reach of administrative law (in particular, judicial review) in this case?Why did the crt conclude that it may in practice be difficult for aggrieved persons to get a remedy, even though the Panel’s decisions were in principle subject to judicial review?Is the extension of administrative law norms to non-State decision-makers exercising so-called ‘public functions’ the only way for law to regulate their decisions? What are the alternatives? The ADJR ActWhat sort of actions can be reviewed under the ADJR Act?Is it possible that a decision made by a non-government decision-maker could be reviewed under the ADJR Act?What are the main elements an applicant needs to establish to succeed under the ADJR Act?In what circumstances can applicants under the ADJR Act demand reasons be given for the actions they are challenging? What ‘grounds of review’ may be difficult to argue without a statement of reasons? (Administrative law imposes various standards of behaviour (norms) on administrators. In the context of judicial review, these administrative law norms are referred to as grounds of review.)If an applicant can show that a ground of review has been made out (ie the decision-maker made a legal error) are they entitled to a remedy? Describe the key differences between the approaches to judicial review taken in Datafin & under the ADJR Act.What is the purpose of administrative law? How should its success or failure be judged? (see Text, 1.3 for some ideas)Tutorial: Green v Daniels (1977) 13 ALR 1What are the main elements of a judicial review application?Did the crt grant the P the remedy which she sought? (Explain why or why not?)What general lessons about the use of ‘policy’ by administrators can be drawn from this case?In what sense does this case illustrate the limited role played by judicial review?After the crt’s decision, how do you expect that the Director-General would have redetermined the plaintiff’s application?Judicial review Cont..Module 4What is the scope of judicial review? The constitutional (common law) judicial review regimeCommon law judicial review jurisdiction and State courtsJudicial review remedies: the basicsJudicial Review Regimes (means 3 sources of judicial review powers)Constitutional Judicial ReviewCommon Law Judical ReviewStatutory Judical ReviewConstitution (fed matter):s75(v) s75(iii)Gives the HCrt original jurisdictionJudiciary Act s39B(1) & s39B(1A)(c) gives Fed Crt original jurisdictionInherent com. law jurisdictionGives superior crts of record, i.e. Supreme Crts of the States original jurisdictionCTH:ADJRA – gives Fed Crt & Fed Mags Crt original jurisdictionState – e.g. QLDJRA – gives Supreme Crt original statutory jurisdictionIn both cases the HCrt & Fed Crt apply com. law remedies, norms, rules & principles as modified by the Constitutional or statutory origins of the crt’s power; e.g. certiorari not stated as a remedy in 75(v) and s39B(1) Crts apply com. law remedies, rules, norms & principlesCrts apply the relevant statutory scheme contained in the actJudicial review remedies an overviewCommon Law remedies:Prerogative WritsCertiorariProhibitionMandamusEquitable RemediesInjunctionDeclarationConstitutional remedies ADJRA remediesRemedies – Judicial ReviewCertiorari – a quashing order - to quash the original decisionIs Only available for Jurisdictional error if you make an application under the constitutionIf it is awarded for jurisdictional error it has a retrospective effect & makes the decision invalid (as if the decision had never been made)not available for Non jurisdictional error (but is if the error is apparent on the face of the record)If it is awared for non- jurisdictional error it has a prospective effect (makes the decision unlawful)ElementsMust be an exercise of public power (legal authority i.e pulic power)– public v private rightsForbes v New South Trotting Club Ltd (1979) 143 CLR 242 HCJohn Fairfax & Sons v Australia Telecommunications Commission [1977] 2 NSWLR 400 - NSWCAMust affect the rights of a person: decision must have some legal effect on rights Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 – publication of report had “had no legal effect & carried no legal consequences” (Mason CJ, Dawson, Toohey & Gaudron JJ at 580) even though detrimental to the applicant’s business reputationa preliminary decision is not usually sufficient3.has to be Administrative (or judicial) decision maker4.Has got to be an Jurisdictional error or error on face of the record (Craig v South Australia (1995) 184 CLR 163ProhibitionOnly available for jurisdictional errorGranted to restrain a decision maker from exceeding their powersBoth certiorari & prohibition operate to correct the same legal error but at different stages of the decision making processCertiorari – corrects error after, eg, deportation - to quash Prohibition – corrects error before, eg deportation - to restrain actual deportationELEMENTS - Same requirements to certiorari, but only for jurisdictional errorExercise of public power Must affect the rights of a person Administrative (or judicial for minor courts) decision makerJurisdictional error only (Craig)Mandamus Issued to command the performance of a public duty which is unperformedeg, remake the decision according to lawCertiorari – to quashMandamus – to remake lawfullyNote: Can be issued for non-jurisdiction error but only if issued in conjunction with primary remedy of certiorari ELEMENTS(authority - R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228)Must be an exercise of public power (a duty of a public nature exists) - John Fairfax & Sons v Australia Telecommunications Commission – writ of mandamus not granted – private obligation not a public duty The public duty must remain unperformed - attempt may be made to perform duty but duty may remain unperformed if misconstruedInjunction An equitable remedy – developed in private law – crt has a broad power to grant To do something – mandatory – instead of mandamus?To refrain – prohibitory – instead of prohibition? may be issued in cases of non-jurisdictional errorDeclarationNot coerciveCrt declares correct legal position Useful in public law, not so useful in private lawCrt has wide powers to grantConstitutional remediesS75(v) & s39B of Judiciary Actmandamus, prohibition & injunctionMandamus & Prohibition only available for jurisdictional error – certiorari as an ancillary remedy only & not for non-jurisdictional errorConstitutional injunction – may be avail for non-jurisdictional error – no HCrt decision as yetADJRA remedies s16 – to be construed widely 16(1) – review of decision under s516(2) – review of conduct under s616(3) – review of a failure to make a decision under s7 Legality/merits distinction still existsSee also Qld JRA remedies are contained in s30Essentially mirrors effect of common law remedies16(1)(a) – quashing order16(1)(d); 16(2)(b); 16(3)(c) – prohibitory orders16(1)(b) & (d), 16(2)(b); 16(3)(a) & (c) – mandatory orders16(1)(c); 16(2)(a); 16(3)(b) – declaratory ordersInterlocutory orders (?n the meantime order for a certain period of time”)Eg interlocutory injunction to prevent deportation until judicial review application is decidedSerious Q to be triedIrreparable injury can’t be compensated by damagesBalance of convenience favours granting the applicationADJRA s15 & 15A allow for Interlocutory order for stay of proceedingsRe-making a DecisionMinister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (Supplement 116–130) Issue – can an administrator remake a decision that they believe has been decided incorrectly?If jurisdictional error then there is no decision at all and it can be remadeUnless the statute contradicts this – eg decision is binding until overturned by crt Tutorial: Federal judicial review jurisdiction (Week 4)The Tourism Development Grants Act 2005 (Cth) provides that:There shall be a Tourism Grants Board (‘the Board’) appointed by the Minister.The Board may make grants of up to 5 million dollars for major development projects for the purpose of creating new tourist attractions.Where a development project will likely place significant demands on local water supplies, the applicant must submit a ‘water impact statement’.The Board must have regard to all information provided in submitted applications.The Board may seek and receive any further information it considers relevant.In its call for applications, the Board notes that the scheme involves significant opportunities for co-operative public-private developments. Under the terms of a consultancy contract, it forwards all applications received to a private company, Rational Accountancy Pty Ltd (‘RA’) and asks that a financial assessment of the applications be completed.RA’s report to the Board (a) summarises the complicated financial information provided in each application and (b) comments that its research demonstrates that demand for ‘theme park-style’ attractions (such as Dreamworld, SeaWorld etc) is diminishing. RA attaches the applications (all 35 of them) to its report, which it then forwards to the Board. The Board is yet to make a decision.Could an applicant who proposed to build a ‘theme park-style’ attraction seek review of RA’s report to the Board, either under the ADJR Act or under s 39B of the Judiciary Act?The Australian Telecommunications Authority (‘the ATA’) is the regulatory body which oversees the industry under the Telecommunications Act 1997 (Cth) (‘the Telecommunications Act’).Section 4 states: ‘The Parliament intends that telecommunications be regulated in a manner that (a) promotes the greatest practicable use of industry self-regulation; and (b) does not impose undue financial and administrative burdens on [industry participants].’The Telecommunications Act provides for the making of ‘self-regulatory codes’ which are to be developed by the industry itself. However, any industry codes which are developed must be registered with the ATA.The Telecommunications Industry Forum (‘the Forum’) is the peak industry association and has been developing self-regulatory codes for the industry. It has produced a technical performance code for mobile phone networks, which requires adoption of the new ‘DDD’ technology. The ATA registers the new code.(a) Advise on the reviewability under the ADJR Act of the ATA’s registration of the DDD Code.(b) Does the code registered by the ATA also have to be registered under the Legislative Instruments Act 2003 (Cth)? What is the consequence of it not being registered? (See Text, 276 or check the legislation.)Tutorial: Federal judicial review jurisdiction (Week 4)The following provisions appear in the Gene Technology Act 2005 (Cth):A person is guilty of an offence if the person knowingly deals with a genetically-modified organism (‘GMO’) without holding a GMO licence or if the person breaches a condition of their GMO licence.The Office of the Regulator is hereby established and the Regulator has the functions of:developing codes of practice;issuing licences to deal with GMOs, subject to any condition which the Regulator thinks fit.35. In determining whether to grant a s 2(b) licence, the Regulator must consider:(a) the risks posed by the licence application to persons or the environment;(b) any policy advice received by the organisation listed in Schedule 1. [Schedule 1 lists the Gene Technology Foundation Inc, a not-for-profit organisation.]36. Where a licence is granted, the Regulator must publish a notice on the Regulator’s website.98. The functions of the Regulator are to be exercised in accordance with any specific directions issued in writing by the Minister and with any applicable general policies of the Government notified by the Minister.The Gene Technology Foundation Inc has issued a report which argues that the government should not encourage any further research into important export crops until a national approach to the issue has been determined. Would this report be reviewable under the ADJR Act (assuming that a case was brought by an applicant with standing)?REMEDIESJudicial Review Regimes - 3 sources of judicial review powersConstitutional Judicial ReviewCommon Law Judical ReviewStatutory Judical ReviewConstitution (fed matter):s75(v) s75(iii)Gives the HCrt original jurisdictionJudiciary Act s39B(1) & s39B(1A)(c) gives Fed Crt original jurisdictionInherent com. law jurisdictionGives superior crts of record, i.e. Supreme Crts of the States original jurisdictionCTH:ADJRA – gives Fed Crt & Fed Mags Crt original jurisdictionState – e.g. QLDJRA – gives Supreme Crt original statutory jurisdictionIn both cases the HCrt & Fed Crt apply com. law remedies, norms, rules & principles as modified by the Constitutional or statutory origins of the crt’s power; e.g. certiorari not stated as a remedy in 75(v) and s39B(1) Crts apply com. law remedies, rules, norms & principlesCrts apply the relevant statutory scheme contained in the actOverviewCommon Law remedies:Prerogative WritsCertiorariProhibitionMandamusEquitable RemediesInjunctionDeclarationConstitutional remedies ADJRA remediesRemedies – Judicial ReviewCertiorari – a quashing order - to quash the original decisionOnly available for Juris. error if you make an application under the constitutionIf it is awarded for juris. error has a retrospective effect & makes the decision invalid (as if the decision had never been made)not available for Non juris. error (but is if the error is apparent on the face of the record)If it is awared for non- juris. error it has a prospective effect (makes the decision unlawful)ElementsMust be an exercise of public power (legal authority i.e pulic power)– public v private rightsForbes v New South Trotting Club Ltd (1979) 143 CLR 242 HCJohn Fairfax & Sons v Australia Telecommunications Commission [1977] 2 NSWLR 400 - NSWCAMust affect the rights of a person: decision must have some legal effect on rights Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 – publication of report had “had no legal effect & carried no legal consequences” (Mason CJ, Dawson, Toohey & Gaudron JJ at 580) even though detrimental to the applicant’s business reputationa preliminary decision is not usually sufficient3.has to be Administrative (or judicial) decision maker4.Has got to be an Jurisdictional error or error on face of the record (Craig v South Australia (1995) 184 CLR 163ProhibitionOnly available for jurisdictional errorGranted to restrain a decision maker from exceeding their powersBoth certiorari & prohibition operate to correct the same legal error but at different stages of the decision making processCertiorari – corrects error after, eg, deportation - to quash Prohibition – corrects error before, eg deportation - to restrain actual deportationElements - Same as certiorari, but only for jurisdictional errorExercise of public power Must affect the rights of a person Administrative (or judicial for minor courts) decision makerJurisdictional error only (Craig)Mandamus Issued to command the performance of a public duty which is unperformedeg, remake the decision according to lawCertiorari – to quashMandamus – to remake lawfullyNote: Can be issued for non-jurisdiction error but only if issued in conjunction with primary remedy of certiorari Elements(authority - R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228)Must be an exercise of public power (a duty of a public nature exists) - John Fairfax & Sons v Australia Telecommunications Commission – writ of mandamus not granted – private obligation not a public duty The public duty must remain unperformed - attempt may be made to perform duty but duty may remain unperformed if misconstruedInjunction An equitable remedy – developed in private law – crt has a broad power to grant To do something – mandatory – instead of mandamus?To refrain – prohibitory – instead of prohibition? may be issued in cases of non-jurisdictional errorDeclarationNot coerciveCrt declares correct legal position Useful in public law, not so useful in private lawCrt has wide powers to grantConstitutional remediesS75(v) & s39B of Judiciary Actmandamus, prohibition & injunctionMandamus & Prohibition only available for jurisdictional error – certiorari as an ancillary remedy only & not for non-jurisdictional errorConstitutional injunction – may be avail for non-jurisdictional error – no HCrt decision as yetADJRA remedies s16 – to be construed widely 16(1) – review of decision under s516(2) – review of conduct under s616(3) – review of a failure to make a decision under s7 Legality/merits distinction still existsSee also Qld JRA remedies are contained in s30Essentially mirrors effect of common law remedies16(1)(a) – quashing order16(1)(d); 16(2)(b); 16(3)(c) – prohibitory orders16(1)(b) & (d), 16(2)(b); 16(3)(a) & (c) – mandatory orders16(1)(c); 16(2)(a); 16(3)(b) – declaratory ordersALSOInterlocutory orders (?n the meantime order for a certain period of time”)Eg interlocutory injunction to prevent deportation until judicial review application is decidedSerious Q to be triedIrreparable injury can’t be compensated by damagesBalance of convenience favours granting the applicationADJRA s15 & 15A allow for Interlocutory order for stay of proceedingsRe-making a DecisionMinister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (Supplement 116–130) Issue – can an administrator remake a decision that they believe has been decided incorrectly?If jurisd. error then there is no decision at all and it can be remadeUnless the statute contradicts this – eg decision is binding until overturned by crt Grounds of review Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 JUDICIAL REVIEW REGIMESConstitutionalCommon LawStatutoryConstitution:s75(v) s75(iii)Gives the HCrt orig. jurisdictionJudiciary Act s39B(1) & s39B(1A)(c) gives Fed Crt original jurisdictionInherent com. law jurisdictionGives superior crts of record, i.e. SCrts of the States original jurisdictionCommonwealth:ADJRA – gives Fed. Crt & Fed. Mag Crt orig. jurisdictionState – e.g. QLDJRA – gives SCrt original statutory jurisdictionIn both cases the HCrt & Fed Crt apply com.law remedies, norms, rules & principles as modified by the Constitutional or statutory origins of the crt’s power; e.g. certiorari not stated as a remedy in 75(v) and s39B(1) Crts apply com. law remedies, rules, norms & principlesCrts apply the relevant statutory scheme contained in the actGROUNDS OF JUDICIAL REVIEW:Breaches of “administrative law norms”The reasons why a decision is unlawful or invalidValues & grounds of reviewRule of lawNote the intersection of the rules of statutory interpretation & judicial review principles Common law – jurisdictional error / non jurisdictional error – what remedy is available?ADJRA – no consideration of jurisdictional error / non-jurisdictional error but must be a decision to which the act applies – “under an enactment” Categories Of Grounds Of Review – 3 TypesProcedural grounds – conduct of decision makerReasoning process groundsGrounds to do with the decision itself ADJRA s 5(1)(a) & s 6(1)(a)TYPE 1 - BREACH OF THE RULES OF PROCEDURAL FAIRNESS (NATURAL JUSTICE)2 Types of breachThe fair hearing ruleThe rule against biasBREACH OF THE FAIR HEARING RULE2 issues to determine:When does the rule apply? (when is someone entitled to a fair hearing)What does the rule require in the particular circumstances of the case? (content of the hearing)Issue 1.SCOPE OF THE RULE -When Does The Rule Apply:Kioa v West (1985) 159 CLR 550, Supplement, 156-176 A decision which affects an individual’s rights, interests or legitimate expectations – attracts a com. law duty to afford procedural fairnessLegitimate expectation – a reasonable expectation which cannot be disappointed without giving a fair hearingUnless:a clear statutory intention to the contraryThe person is not affected in a meaningful & direct way Expansion of the concept of legitimate expectation:Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 existence of a regular adopted known decision-making practice may create a legitimate expectation that it will applied in the instant caseRe Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1, Supplement, 205-222. The rules of procedural fairness are presumptively applicable to administrative decisions – McHugh & Gummow JJ in Lam quoting McHugh J dissenting in TeohJudges in Lam criticised decision in Teoh:The mere fact that a legitimate expectation is disappointed will not breach the hearing rule if no unfairness or practical injustice is occasionedIn Lam the mere fact that that the department did not keep its promise to contact the children's carers did not breach the rule bc on the facts of the case it did not deprive the applicant of the opportunity to advance his caseCrts will only require those procedures that fairness requires in the circumstances – see text p140-141 Statutory exclusion of the rule:Must be a direct & clear intentionThere is a general rule against decreasing citizens rights & freedoms in interpreting legislation Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, Supplement, 176-190Argued that the code of statutory procedures excluded the fair hearing rule – majority said noFurther amendments to Migration Act 1958 (Cth) to overturn the decision Issue 2.Content Of The Hearing Rule- What Does It RequireLook at the statute to decide if the person has had a fair opportunity to put their case - the overriding requirement - LamIncludes:Adequate notice that an adverse decision may be made;Disclosure of prejudicial allegations with sufficient details to enable a meaningful hearing on the critical issues arising for that decision (Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, Supplement, 190-198);An opportunity to adduce relevant evidence & make relevant submissions;Allowance of sufficient time to prepare for the hearing.THE RULE AGAINST BIAS Actual bias (harder to prove)Must establish that decision maker had a closed mind and was not open to persuasion Apparent bias (less harder to prove)Would an informed and fair minded lay observer reasonably apprehend that the decision maker might not bring an impartial mind to the decision to be madeDerogatory or insulting commentsPersonal connections with interested personsPrior involvement with the issuePersonal pecuniary interest Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Supplement 222–241) Issue: did Minister’s specific comments about Mr Jia’s case show bias?Held: by majority – noKirby’s dissent: imputed bias made out Type 2.REASONING PROCESS GROUNDS – CTRL OF ADMINISTRATIVE CHOICE (DISCRETION)Considerations groundsImproper or unauthorised purposeInflexible application of a rule or policyActing under dictationUnauthorised delegationCONSIDERATION GROUNDS OF REVIEWWas an irrelevant matter taken into account?Were relevant matters ignored?ADJRA s 5(2)(a) & (b); ??????(a)? taking an irrelevant consideration into account in the exercise of a power; ???????(b)? failing to take a relevant consideration into account in the exercise of a power;How to decide what must be considered by the decision maker:Does the statute contain an obligation on the decision maker?If it yes - was this obligation breached? i.e Did they take in other matter s? Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Supplement 246–259) Ground of failure to take account of a relevant consideration only succeeds if decision maker is bound to consider it.To decide what a decision maker is bound to consider (& what will be an irrelevant matter) you must look at statuteExpressly statedImplied by subject matter scope and purpose of the actNot every failure will result in the decision being set aside – may be irrelevant or minorCrts must allow for decision maker’s discretion & not simply substitute their own decisionIf multiple matters to consider then weight to be given to each generally at discretion of decision maker unless ‘manifestly unreasonable’ consideration is given or not given to a particular matterSee ADJRA s 5(2)(g) & 6(2)(g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;A minister of the crown must be given scope for broader policy considerationsTickner v Chapman (1995) 57 FCR 451 (Supplement, 260–269) The Act required publication of a notice seeking submissions & consideration of these submissionsMinister considered a report which included over 400 submissionsHeld: Minister’s consideration was not adequate – it did not involve “an active intellectual process directed at the material he was obliged to consider”IMPROPER OR UNAUTHORISED PURPOSESDecision maker acted for a purpose which is extraneous to (unauthorised) the statutory schemeSee ADJRA s 5(1)(e) s 6(1)(e) and s 5(2)(c) & 6 (2)(c)5(1)(e) s 6(1)(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;s 5(2)(c) & 6 (2)(c)an exercise of a power for a purpose other than a purpose for which the power is conferred;INFLEXIBLE APPLICATION OF A RULE OR POLICYGreen v Daniels (1977) 13 ALR 1Policy did not accord with the ActFailure to apply policy? May be failure to consider a relevant matterFair hearing rule may apply before a published policy or a representation is ignoredACTING UNDER DICTATIONDecision makers own reasoning power must not be overwhelmed by the views of anotherADJRA s 5(2)(e) & s 6(2)(e)an exercise of a personal discretionary power at the direction or behest of another person;Rendell v Release on Licence Board (1987) 10 NSWLR 499 (Supplement 273–280) Board failed to exercise its discretion as set down by parliamentUnauthorised delegationPowers legally conferred on a particular decision maker must be exercised personally – not by some other body or personNot specifically mentioned in ADJRA but will come under s 5(1)(c) & (d) & s 6(1)(c) & (d)s 5(1)(c) & (d) (c)that the person who purported to make the decision did not have jurisdiction to make the decision; ?(d)? that the decision was not authorized by the enactment in pursuance of which it was purported to be made; s 6(1)(c) & (d)(d)? that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision; (e)? that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made; Decision makers can rely on administrative assistance but must still make the decision personallyTickner v Chapman (1995) 57 FCR 451 Type 3.DECISIONAL GROUNDSJurisdictional error jurisdictional v non-jurisdictional errorerrors of law errors of fact Wednesbury unreasonableness (next week)Jurisdictional errors: relate to the scope of the decision makers power to decide (i.e. establishing their jurisdiction)all writs available to remedy certiorari is retrospectiveNon-jurisdictional errors:relate to decisions made in course of exercising established jurisdiction only certiorari available to remedy a non-jurisdictional error of law but only if the error appeared ‘on the face of the record’certiorari is prospective This distinction no longer applies in England But applies in In Australia - Constitutional remedies only available for jurisdictional errors therefore the distinction remains Remember the purpose of JR is to keep administrative decision makers within jurisdictionJURISDICTIONAL ERRORCraig v South Australia (1995) 184 CLR 163, Supplement, 299-310.Distinction btw judicial (courts) & administrative decision makers in deciding what will be a jurisdictional errorNarrow approach for judicial decision makers they have authority to decide Q’s lawBroad approach for administrative decision makers they do not have authority to decide Q’s of law Kirk v Industrial Court of New South Wales [2010] HCA 1, [60-77] To observe that inferior crts generally have authority to decide Q’s of law "authoritatively" is not to conclude that the determination of any particular Q is not open to review by a superior crt… The "authoritative" decisions of inferior crts are those decisions which are not attended by jurisdictional error. That directs attention to what is meant in this context by "jurisdiction" & "jurisdictional". It suggests that the observation that inferior crts have authority to decide Q’s of law "authoritatively" is at least unhelpful. ‘Inferior courts will be outside of jurisdiction by:‘misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior crt is performing or the extent of its powers in the circumstances of the particular case.’ Parties are constitutionally entitled to seek review where jurisdictional errors can be made out: ‘Legislation which would take from a State Supreme Crt power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.’Broad approach to jurisdictional error: Whenever the law to be applied is misconstrued jurisdictional error is likely to resultJurisdiction is exceeded by an administrator: ‘an error which causes it to identify a wrong issue, to ask itself a wrong Q, to ignore relevant material, to rely on irrelevant material, or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion’ – Craig p. 179 – and this includes:Breaches of procedural fairnessBreaches of reasoning process groundsErrors of Law v Errors of FactGeneral rule:Fact finding is the job of administrative decision makers – not the crts as this may involve judges in the merits of administrative decisionsi.e Only error of law is reviewable not errors of fact.Exceptions:Review of jurisdictional facts No evidence rule1.Jurisdictional factsThe decision makers power is dependant upon the existence of a particular factEnfield v Development Assessment Commission (2000) 199 CLR 135, Distinction btw ‘general’ & ‘special’ industryApplications relating to special industries ‘must not’ be granted unless further conditions were fulfilled Decision of classification of the industry was a jurisdictional fact & open to reviewQ is one of statutory interpretation2.No evidence ruleGround is made out if ‘there is no evidence to support’ a finding which is a critical step in the ultimate conclusion – see text p 173ADJRA s 5(1)(h) ‘there was no evidence or other material to justify the making of the decision’ – but note s 5(3) ‘this ground shall nor be made out unless’…WEDNESBURY UNREASONABLENESSAssociated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 A decision maker may not make a decision which is so unreasonable that no reasonable decision maker acting according to law could have made it.ADJRA ss 5(1)(e), 5(2)(g), 6(1)(e), 6(2)(g)JRA (Qld) ss20(2)(e), 21(2)(e), 23(g) Categories of cases for unreasonableness:Unjustified unequal treatmentCouncil of the City of Parramatta v Pestell (1972) 128 CLR 305Failure to enquireLuu v Renevier (1989) 91 ALR 39Capricious use of power (arbritary – on a whim, upredictable)Edelsten v Wilcox (1988) 83 ALR 99IrrationalityMinister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Wednesbury unreasonableness is restricted to discretionary decisionsDoesn’t apply to fact finding errors or when decision maker is under a duty to exercise a power Judicial Review & Human RightsJR may protect basic human rightsAustralia – no charter of rightsParlt can only legislate according to constitutional limits and HC has interpreted basic rights & principles as embedded in the Constitution as well as specifically statede.g.: right to JR of certain decisions, separation of powers Grounds of review & Procedual FairnessModule 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 JUDICIAL REVIEW REGIMESConstitutionalCommon LawStatutoryConstitution:s75(v) s75(iii)Gives the HCrt original jurisdictionJudiciary Act s39B(1) & s39B(1A)(c) gives Fed Crt original jurisdictionInherent com. law jurisdictionGives superior crts of record, i.e. SCrts of the States original jurisdictionCommonwealth:ADJRA – gives Fed. Crt & Fed. Mag Crt original jurisdictionState – e.g. QLDJRA – gives SCrt original statutory jurisdictionIn both cases the HCrt & Fed Crt apply com.law remedies, norms, rules & principles as modified by the Constitutional or statutory origins of the crt’s power; e.g. certiorari not stated as a remedy in 75(v) and s39B(1) Crts apply com. law remedies, rules, norms & principlesCrts apply the relevant statutory scheme contained in the actGROUNDS OF JUDICIAL REVIEW:Breaches of “administrative law norms”The reasons why a decision is unlawful or invalidValues & grounds of reviewRule of lawNote the intersection of the rules of statutory interpretation & judicial review principles Common law – jurisdictional error / non jurisdictional error – what remedy is available?ADJRA – no consideration of jurisdictional error / non-jurisdictional error but must be a decision to which the act applies – “under an enactment” Categories Of Grounds Of Review – 3 TypesProcedural grounds – conduct of decision makerReasoning process groundsGrounds to do with the decision itself ADJRA s 5(1)(a) & s 6(1)(a)TYPE 1 - BREACH OF THE RULES OF PROCEDURAL FAIRNESS (NATURAL JUSTICE)2 Types of breachThe fair hearing ruleThe rule against biasBreach Of The Fair Hearing Rule2 issues to determine:When does the rule apply? (when is someone entitled to a fair hearing)What does the rule require in the particular circumstances of the case? (content of the hearing)Issue 1.SCOPE OF THE RULE -When Does The Rule Apply:Kioa v West (1985) 159 CLR 550, Supplement, 156-176 A decision which affects an individual’s rights, interests or legitimate expectations – attracts a com. law duty to afford procedural fairnessLegitimate expectation – a reasonable expectation which cannot be disappointed without giving a fair hearingUnless:a clear statutory intention to the contraryThe person is not affected in a meaningful & direct way Expansion of the concept of legitimate expectation:Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 existence of a regular adopted known decision-making practice may create a legitimate expectation that it will applied in the instant caseRe Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1, Supplement, 205-222. The rules of procedural fairness are presumptively applicable to administrative decisions – McHugh & Gummow JJ in Lam quoting McHugh J dissenting in TeohJudges in Lam criticised decision in Teoh:The mere fact that a legitimate expectation is disappointed will not breach the hearing rule if no unfairness or practical injustice is occasionedIn Lam the mere fact that that the department did not keep its promise to contact the children's carers did not breach the rule bc on the facts of the case it did not deprive the applicant of the opportunity to advance his caseCrts will only require those procedures that fairness requires in the circumstances – see text p140-141 Statutory exclusion of the rule:Must be a direct & clear intentionThere is a general rule against decreasing citizens rights & freedoms in interpreting legislation Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, Supplement, 176-190Argued that the code of statutory procedures excluded the fair hearing rule – majority said noFurther amendments to Migration Act 1958 (Cth) to overturn the decision Issue 2.Content Of The Hearing Rule- What Does It RequireLook at the statute to decide if the person has had a fair opportunity to put their case - the overriding requirement - LamIncludes:Adequate notice that an adverse decision may be made;Disclosure of prejudicial allegations with sufficient details to enable a meaningful hearing on the critical issues arising for that decision (Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, Supplement, 190-198);An opportunity to adduce relevant evidence & make relevant submissions;Allowance of sufficient time to prepare for the hearing.--Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6--THE RULE AGAINST BIAS Actual bias (harder to prove)Must establish that decision maker had a closed mind and was not open to persuasion Apparent bias (less harder to prove)Would an informed and fair minded lay observer reasonably apprehend that the decision maker might not bring an impartial mind to the decision to be madeDerogatory or insulting commentsPersonal connections with interested personsPrior involvement with the issuePersonal pecuniary interest Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Supplement 222–241) Issue: did Minister’s specific comments about Mr Jia’s case show bias?Held: by majority – noKirby’s dissent: imputed bias made out Type 2.REASONING PROCESS GROUNDS – CTRL OF ADMINISTRATIVE CHOICE (DISCRETION)Consideration Grounds Of ReviewWas an irrelevant matter taken into account?Were relevant matters ignored?ADJRA s 5(2)(a) & (b); ??????(a)? taking an irrelevant consideration into account in the exercise of a power; ???????(b)? failing to take a relevant consideration into account in the exercise of a power;How to decide what must be considered by the decision maker:Does the statute contain an obligation on the decision maker?If it yes - was this obligation breached? i.e Did they take in other matter s? Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Supplement 246–259) Ground of failure to take account of a relevant consideration only succeeds if decision maker is bound to consider it.To decide what a decision maker is bound to consider (& what will be an irrelevant matter) you must look at statuteExpressly statedImplied by subject matter scope and purpose of the actNot every failure will result in the decision being set aside – may be irrelevant or minorCrts must allow for decision maker’s discretion & not simply substitute their own decisionIf multiple matters to consider then weight to be given to each generally at discretion of decision maker unless ‘manifestly unreasonable’ consideration is given or not given to a particular matterSee ADJRA s 5(2)(g) & 6(2)(g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;A minister of the crown must be given scope for broader policy considerationsTickner v Chapman (1995) 57 FCR 451 (Supplement, 260–269) The Act required publication of a notice seeking submissions & consideration of these submissionsMinister considered a report which included over 400 submissionsHeld: Minister’s consideration was not adequate – it did not involve “an active intellectual process directed at the material he was obliged to consider”Improper or unauthorised purposesDecision maker acted for a purpose which is extraneous to (unauthorised) the statutory schemeSee ADJRA s 5(1)(e) s 6(1)(e) and s 5(2)(c) & 6 (2)(c)5(1)(e) s 6(1)(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;s 5(2)(c) & 6 (2)(c)an exercise of a power for a purpose other than a purpose for which the power is conferred;Inflexible application of a rule or policyGreen v Daniels (1977) 13 ALR 1Policy did not accord with the ActFailure to apply policy? May be failure to consider a relevant matterFair hearing rule may apply before a published policy or a representation is ignoredActing under dictationDecision makers own reasoning power must not be overwhelmed by the views of anotherADJRA s 5(2)(e) & s 6(2)(e)an exercise of a personal discretionary power at the direction or behest of another person;Rendell v Release on Licence Board (1987) 10 NSWLR 499 (Supplement 273–280) Board failed to exercise its discretion as set down by parliamentUnauthorised delegationPowers legally conferred on a particular decision maker must be exercised personally – not by some other body or personNot specifically mentioned in ADJRA but will come under s 5(1)(c) & (d) & s 6(1)(c) & (d)s 5(1)(c) & (d) (c)that the person who purported to make the decision did not have jurisdiction to make the decision; ?(d)? that the decision was not authorized by the enactment in pursuance of which it was purported to be made; s 6(1)(c) & (d)(d)? that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision; (e)? that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made; Decision makers can rely on administrative assistance but must still make the decision personallyTickner v Chapman (1995) 57 FCR 451 Grounds of review & Procedual FairnessModule 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 JUDICIAL REVIEW REGIMESConstitutionalCommon LawStatutoryConstitution:s75(v) s75(iii)Gives the HCrt original jurisdictionJudiciary Act s39B(1) & s39B(1A)(c) gives Fed Crt original jurisdictionInherent com. law jurisdictionGives superior crts of record, i.e. SCrts of the States original jurisdictionCommonwealth:ADJRA – gives Fed. Crt & Fed. Mag Crt original jurisdictionState – e.g. QLDJRA – gives SCrt original statutory jurisdictionIn both cases the HCrt & Fed Crt apply com.law remedies, norms, rules & principles as modified by the Constitutional or statutory origins of the crt’s power; e.g. certiorari not stated as a remedy in 75(v) and s39B(1) Crts apply com. law remedies, rules, norms & principlesCrts apply the relevant statutory scheme contained in the actGROUNDS OF JUDICIAL REVIEW:Breaches of “administrative law norms”The reasons why a decision is unlawful or invalidValues & grounds of reviewRule of lawNote the intersection of the rules of statutory interpretation & judicial review principles Grounds Of judicial ReviewCommon law – jurisdictional error / non jurisdictional error – what remedy is available?ADJRA – no consideration of jurisdictional error / non-jurisdictional error but must be a decision to which the act applies – “under an enactment” CATEGORIES OF GROUNDS OF REVIEW 3 types:Procedural grounds – conduct of decision makerReasoning process groundsGrounds to do with the decision itself ADJRA s 5(1)(a) & s 6(1)(a)1.BREACH OF THE RULES OF PROCEDURAL FAIRNESS (NATURAL JUSTICE)2 Types of breachThe fair hearing ruleThe rule against biasBREACH OF THE FAIR HEARING RULE2 issues to determine:When does the rule apply? (when is someone entitled to a fair hearing)What does the rule require in the particular circumstances of the case? (content of the hearing)scope of the rule -WHEN DOES THE RULE APPLY:Kioa v West (1985) 159 CLR 550, Supplement, 156-176 A decision which affects an individuals rights, interests or legitimate expectations – attracts a com. law duty to afford procedural fairnessLegitimate expectation – a reasonable expectation which cannot be disappointed without giving a fair hearingUnless:a clear statutory intention to the contraryThe person is not affected in a meaningful & direct way Expansion of the concept of legitimate expectation:Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 existence of a regular adopted known decision-making practice may create a legitimate expectation that it will applied in the instant caseRe Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1, Supplement, 205-222. The rules of procedural fairness are presumptively applicable to administrative decisions – McHugh & Gummow JJ in Lam quoting McHugh J dissenting in TeohJudges in Lam criticised decision in Teoh:The mere fact that a legitimate expectation is disappointed will not breach the hearing rule if no unfairness or practical injustice is occasionedIn Lam the mere fact that that the department did not keep its promise to contact the children's carers did not breach the rule bc on the facts of the case it did not deprive the applicant of the opportunity to advance his caseCrts will only require those procedures that fairness requires in the circumstances – see text p140-141 Statutory exclusion of the rule:Must be a direct & clear intentionThere is a general rule against decreasing citizens rights & freedoms in interpreting legislation Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, Supplement, 176-190Argued that the code of statutory procedures excluded the fair hearing rule – majority said noFurther amendments to Migration Act 1958 (Cth) to overturn the decision 2.CONTENT OF THE HEARING RULE- what does it requireLook at the statute to decide if the person has had a fair opportunity to put their case - the overriding requirement - LamIncludes:Adequate notice that an adverse decision may be made;Disclosure of prejudicial allegations with sufficient details to enable a meaningful hearing on the critical issues arising for that decision (Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, Supplement, 190-198);An opportunity to adduce relevant evidence & make relevant submissions;Allowance of sufficient time to prepare for the hearing.--Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6--2. THE RULE AGAINST BIAS Actual bias (harder to prove)Must establish that decision maker had a closed mind and was not open to persuasion Apparent bias (less harder to prove)Would an informed and fair minded lay observer reasonably apprehend that the decision maker might not bring an impartial mind to the decision to be madeDerogatory or insulting commentsPersonal connections with interested personsPrior involvement with the issuePersonal pecuniary interest Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Supplement 222–241) Issue: did Minister’s specific comments about Mr Jia’s case show bias?Held: by majority – noKirby’s dissent: imputed bias made out 3.REASONING PROCESS GROUNDS – CTRL OF ADMINISTRATIVE CHOICE (DISCRETION)Consideration Grounds Of ReviewWas an irrelevant matter taken into account?Were relevant matters ignored?ADJRA s 5(2)(a) & (b); s 6(2)(a) & (b)How to decide what must be considered by the decision maker:Does the statute contain an obligation on the decision maker?If it does was this obligation breached? i.e Did they take in other matter s? Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Supplement 246–259) Ground of failure to take account of a relevant consideration only succeeds if decision maker is bound to consider it.To decide what a decision maker is bound to consider (& what will be an irrelevant matter) you must look at statuteExpressly statedImplied by subject matter scope and purpose of the actNot every failure will result in the decision being set aside – may be irrelevant or minorCrts must allow for decision maker’s discretion & not simply substitute their own decisionIf multiple matters to consider then weight to be given to each generally at discretion of decision maker unless ‘manifestly unreasonable’ consideration is given or not given to a particular matterSee ADJRA s 5(2)(g) & 6(2)(g)A minister of the crown must be given scope for broader policy considerationsTickner v Chapman (1995) 57 FCR 451 (Supplement, 260–269) The Act required publication of a notice seeking submissions & consideration of these submissionsMinister considered a report which included over 400 submissionsHeld: Minister’s consideration was not adequate – it did not involve “an active intellectual process directed at the material he was obliged to consider”Improper or unauthorised purposesDecision maker acted for a purpose which is extraneous to (unauthorised) the statutory schemeSee ADJRA s 5(1)(e) s 6(1)(e) and s 5(2)(c) & 6 (2)(c)Inflexible application of a rule or policyGreen v Daniels (1977) 13 ALR 1Policy did not accord with the ActFailure to apply policy? May be failure to consider a relevant matterFair hearing rule may apply before a published policy or a representation is ignoredActing under dictationDecision makers own reasoning power must not be overwhelmed by the views of anotherADJRA s 5(2)(e) & s 6(2)(e)Rendell v Release on Licence Board (1987) 10 NSWLR 499 (Supplement 273–280) Board failed to exercise its discretion as set down by parliamentUnauthorised delegationPowers legally conferred on a particular decision maker must be exercised personally – not by some other body or personNot specifically mentioned in ADJRA but will come under s 5(1)(c) & (d) & s 6(1)(c) & (d)Decision makers can rely on administrative assistance but must still make the decision personallyTickner v Chapman (1995) 57 FCR 451 Statutes that are limiting availability of Judicial Review“Ouster or privative clauses”What Are Limites On Judicial Review?Clauses in legislation that purport to exclude the crt’s judicial review jurisdiction are called ‘privative’ or ‘ouster’ clauses 1st state that :s75(v) of the Constitution entrenches the HCrt’s jurisdiction to issue prohibition, mandamus & injunctions against ‘officers of the Commonwealth’2nd What is the Issue? Q is there inconsistency btw the privative clause & s 75 of the Constitution?If the decision is made under Commonwealth legislation:Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476Privative clause only applied to decisions made ‘under the Act’Therefore a decision infected by jurisdictional error was not covered by the privative clause bc it was ‘no decision at all’ i.e. outside of the jurisdiction given by the ActTherefore jurisdictional error was not protected by the clause & there was no conflict with s 75 If jurisdictional error was protected then there would be a direct conflict with s 75 & the clause would be constitutionally invalid Alleged error was denial of procedural fairness therefore a jurisdictional error & not protected by the clause non-jurisdictional error may be protected if wording clear & unambiguousIf the decisions is made under State legislation:Kirk v Industrial Court of New South Wales [2010] HCA 1, [60-77]: Inferior crts will be outside of jurisdiction by:‘misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior crt is performing or the extent of its powers in the circumstances of the particular case.’ In this case there were 2 jurisdictional errors identifiedThe Qs for the HCrt were: (a) whether the Industrial Crt’s decision was affected by jurisdictional error; &, if so, (b) whether the privative clause operated to prevent the Crt of Appeal from issuing relief by way of certiorariHCrt held that State Parlt’s cannot, through privative clauses, oust judicial review for jurisdictional errorThis places the treatment of State privative clauses on the same footing as that set out in Plaintiff S157 for Cth privative clausesParties are constitutionally entitled to seek review where jurisdictional errors can be made out: ‘Legislation which would take from a State SCrt power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.’FactsConvictions in the Industrial Court of NSW for offences against the Occupational Health and Safety Act 1983 (NSW) Application to the NSW Crt of Appeal for relief in the nature of certiorari to quash the convictions on the basis that the Industrial Crt had fallen into jurisdictional error A privative clause provided that a decision of the Industrial Crt is ‘final & may not be appealed against, reviewed, quashed or called into Q by any crt or tribunal’ The Crt of Appeal held that there was no jurisdictional error affecting the Industrial Crt’s decision & thus Q’s concerning the operation of the privative clause did not arise.Statutes that are limiting availability of Judicial Review“Ouster or privative clauses”What Are Limites On Judicial Review?Clauses in legislation that purport to exclude the crt’s judicial review jurisdiction are called ‘privative’ or ‘ouster’ clauses Issue:s75(v) of the Constitution entrenches the High Court’s jurisdiction to issue prohibition, mandamus & injunctions against ‘officers of the Commonwealth’Issue: How does s 75 affect Cth & State ouster clauses?Decisions under Commonwealth legislation:Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476Privative clause only applied to decisions made ‘under the Act’Therefore a decision infected by jurisdictional error was not covered by the privative clause bc it was ‘no decision at all’ – i.e. outside of the jurisdiction given by the ActPlaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (continued):Therefore jurisdictional error was not protected by the clause & there was no conflict with s 75 If jurisdictional error was protected then there would be a direct conflict with s 75 & the clause would be constitutionally invalid Alleged error was denial of procedural fairness – therefore a jurisdictional error & not protected by the clause – non-jurisdictional error may be protected if wording clear & unambiguousDecisions under State legislation:Kirk v Industrial Court of New South Wales [2010] HCA 1, [60-77]: Convictions in the Industrial Court of NSW for offences against the Occupational Health and Safety Act 1983 (NSW) Application to the NSW Crt of Appeal for relief in the nature of certiorari to quash the convictions on the basis that the Industrial Crt had fallen into jurisdictional error A privative clause provided that a decision of the Industrial Crt is ‘final & may not be appealed against, reviewed, quashed or called into Q by any crt or tribunal’ The Crt of Appeal held that there was no jurisdictional error affecting the Industrial Crt’s decision & thus Q’s concerning the operation of the privative clause did not arise.Inferior crts will be outside of jurisdiction by:‘misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior crt is performing or the extent of its powers in the circumstances of the particular case.’ In this case there were 2 jurisdictional errors identifiedKirk v Industrial Court of New South Wales [2010] HCA 1, [60-77] (continued):The Q’s for the HCrt were: (a) whether the Industrial Crt’s decision was affected by jurisdictional error; &, if so, (b) whether the privative clause operated to prevent the Crt of Appeal from issuing relief by way of certiorariHCrt held that State Parlt’s cannot, through privative clauses, oust judicial review for jurisdictional errorThis places the treatment of State privative clauses on the same footing as that set out in Plaintiff S157 for Cth privative clausesParties are constitutionally entitled to seek review where jurisdictional errors can be made out: ‘Legislation which would take from a State SCrt power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.’INTERNAL REVIEWInternal review of a decision must be distinguished from reconsideration of a decision.What is Internal review? A form of merits review 1st required level of review bf any external review is permittedMust be authorised by the statute under which the decision is made may be by the Minister, a review board or committee or more snr department officer E.g. Freedom of Information Act 1982 (Cth) s54(1) Internal review by dept. (application plus fee) then external review by AAT - s55(1) INTERNAL REVIEW – Reconsideration of a decisionIssue: is it lawful to reconsider a decision?The default position: once a lawful decision has been made it stands unless & until it is reversed on appeal, quashed by a judicial review or set aside, varied or replaced with a substitute decision by merits reviewBut – this only applies to intra vires decisions (within power) An ultra vires decision is not really a decision at all – only a purported decisionSee Minister for Immigration and Multicultural and Indigenous Affairs v Bhardwaj (2002) 209 CL 597 (see text p 117-118) Any breach of the rules of procedural fairness is a very serious matter. It is described as a “jurisdictional error”. If procedural fairness is denied, the decision can be said to be a decision not lawfully made, and there is not a decision in law or in fact (eg: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598). It will be as if the decision was never made.In that case, the Immigration Review Tribunal cancelled Mr Bhardwaj’s student visa. At the time of making the decision, bc of an administrative oversight by the Tribunal, it was not aware that Mr Bhardwaj had requested an adjournment of the hearing bc of illness. Could it remake the decision when it discovered this fact? The HCrt found that the initial failure to provide a hearing breached the procedural fairness requirements of the Migration Act 1958, constituting a failure to properly exercise the decision-making power. As a result of this jurisdictional error, the first decision could be ignored. The second decision was validly made. Q – can an administrator remake a decision that they believe has been decided incorrectly?Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (Supplement 116–130) If jurisdictional error then there is no decision at all & it can be remadeUnless the statute contradicts this – eg decision is binding until overturned by crtOMBUDSMANWhat is the history of estab. of ombudsmanOrigins: Sweden 1809, NZ 1962, England 1967, WA 1971, QLD: Ombudsman Act 2001 (Qld)Cth Ombudsman (CO)established by the Ombudsman Act 1976Kerr Committee 1971 recommended a ‘Gen. Counsel for Grievances’ for complaints against administration ‘within the system of administrative review rather than in the parlt-executive context’Bland Committee 1973 recommended an adjudicator neutral btw the complainant & the agencyA statutory creation no constitutional recognition at Cth levelState What the functions & Jurisdiction of the Ombudsman are Ombudsman Act 1976 - Sect 5 (1)? Subject to this Act, the Ombudsman: ???(a)? shall investigate action, being action that relates to a matter of administration, taken either bf or af the commencement of this Act by a Dept, or by a prescribed authority, & in respect of which a complaint has been made to the Ombudsman; & ?(b)? may, of his or her own motion, investigate any action, being action that relates to a matter of administration, taken either bf or after the commencement of this Act by a Dept. or by a prescribed authority;… What Ombudsman Can not Investigate?Exclusions – s 5(2) – action which the ombudsman is not authorised to investigateIncludes: Action taken by a Minister, a judge, or in relation to proceedings in parlt or employment in the public service (promotions etc..)What Is The Ombudsman jurisdiction is Limited To?Jurisdiction is limited to:Investigation of actionWhich relates to a matter of administrationTaken by a dept. or a prescribed authorityReceived as a complaint or initiated by the Ombudsman What are the meaning of these words?Action: s 3(7) – includes: the making of or a refusal or failure to make a decision & the formulation of a proposalMatter of administration: not defined in act but likely to have the same meaning as under the ADJRA i.e. a decision which applies the law as opposed to a decision which creates the law note the term ‘relates’ which broadens the scope of this provision beyond that of the ADJRA Dept. or prescribed authority: broadly defined - includes a body corporate estab. for a public purpose in accordance with the provisions of an enactment (s 3), including a govt ctrld company (unless specifically excluded) (s 3A)Complaints or initiated by ombudsman useful but not common for ombudsman to initiate investigationsNote – need not be done under an enactment:The action need not be done ‘under an enactment’ may have been an exercise of non-statutory power or an action merely incidental to the exercise of a statutory or non-statutory power Making Complaints to ombudsmanService is free to the complainantNo standing requirements but ombudsman has wide discretion not to investigate, e.g. frivolous complaints, complainant does not have a sufficient interest, there is a more suitable means of review available such as an internal complaints procedure or merits review Ombudsman Investigation & ActionInquisitional rather than adversarialWide powers of investigation including compulsion to give evidence & produce documents (same as Royal Commissions)Typically unrestricted access to agency filesBasic function is to investigate & resolve complaints Many complaints resolved by negotiation & compromiseCannot make coercive orders nor make determinations of legal rights & obligationsCan only report & make recommendations to the agency against which the complaint relatesIf formal recommendations are not followed then ombudsman can make a special report to the relevant minister (the Prime Minister for CO)Publicity may exert pressure on relevant agency to complyWide ranging powers to make recommendations allow for solutions not available to crts & tribunals e.g. an apologyInformality & inability to coerce may actually strengthen the ombudsman’s ability to negotiate settlements?ConclusionPart of as system of political accountability centred on parlt. A type of gen. govt complaints dept.Bolsters the notion that govt is bound by rules upholding the rule of law?Do we need an ‘Integrity Branch of Govt’? See John McMillan, ‘The Ombudsman and the Rule of Law’ (2005) 44 Australian Institute of Administrative Law Forum 1. (Supplement 491–506) Does the Ombudsman need constitutional recognition or does it work ok as it is?EXAMINATIONThe exam will consist of 4 questions in allThere are 3 short answer questions worth 10 marks each and 1 hypothetical question worth 30 marksYou must answer every questionThe exam is 2 hours longThe exam is open bookSee the ‘Guide to answering a hypothetical question’ posted on studydesk on Wednesday 18 October.Intended to assist students to develop a method to answer hypothetical Qs on judicial review.The guide is not complete, for example the rules & tests for standing are not included in the guide, but the guide does offer a framework to answer a question. Only a few cases have been included (in italics) and students must add relevant cases to all sections of this guide in order to properly answer any question. Cases and/or relevant sections of statutes must be used as authority for any law, rule or legal principle applicable to a particular hypothetical question. Use of the guide is not compulsory and students may use their own method to answer a question. What is Administrative Law?Concerns the legal rules & institutions directed at keeping the ‘governors’ (principally, decision-makers in the executive arm of govt) ‘accountable’ Executive arm = ‘the administration’ of gov’t focus of administrative law is on the legal regulation of the exercise of power by the executive branch of govt. (Legal ctrl of the legislative branch is the core concern of constitutional law.) Separation of Powers3 arms of government Legislature (makes law); Executive (administers law ); andJudiciary (Courts & Judges - interpret & apply the law)Why keep them separate? –Prevent concentration of powerAn external check on powerRule of Law The law binds both govt’s & citizens.No ruler is above the lawLaws should be written & public, enforced with due processIts core principles are:Clear separation of powers & independence of the crts & judiciaryLegal certaintyPrinciple of legitimate expectationEquality before the lawA fair, equal application of powerJudicial modes of accountability Judicialby Judicial Review – a supervisory function – not to usurp powers of administration but to supervise the exercise of it (separation of powers) Some of the grounds for review are that:The decision-maker breached the rules of natural justice; The decision-maker did not observe the correct legal procedures; The decision-maker did not have the authority to make the decision. non-judicial modes of accountability Non Judicial:eg administrative tribunals merits review - review of an administrative decision involves considering afresh the facts & law relating to that decision OmbudsmenLegislation allowing access to informationLegislation limiting the purposes for which govt can use information Public Law v Private LawRelations btw citizens = privateRelations btw governors & the governed = publicInstitutional v Functional concept of Administrative Law= Govt functions v Public functionsA Regulatory ApproachFocus on the future - influencing human behaviour & its outcomesComponents:Set of standards that tell people how they should behave System for monitoring complianceSystem for promoting future compliance Admin law = a set of rules & principles about how decisions ought to be made, eg:Procedural fairnessConsistencyEtc..FREEDOM OF INFORMATIONFreedom of Information Act 1982 (Cth)Object s 3?? (1)? The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by: ???????????(a)? making avail to the public info about the operations of dept’s & public authorities &, in particular, ensuring that rules and practices affecting members of the public in their dealings with depts & public authorities are readily available to persons affected by those rules and practices; and ???????????????????? (b)? creating a gen. right of access to info in documentary form in the possession of Ministers, depts & public authorities, limited only by exceptions & exemptions necessary for the protection of essential public interests & the private & business affairs of persons in respect of whom information is collected & held by depts & public authorities; &???????????????????? (c)? creating a right to bring about the amendment of records containing personal info that is incomplete, incorrect, out of date or misleading. ???????????? (2)? It is the intention of the Parlt that the provisions of this Act shall be interpreted so as to further the object set out in subsection?(1) & that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate & promote, promptly & at the lowest reasonable cost, the disclosure of info. Who can request documents? Anyone – s 11(2)Right of access ???????????? (2)? Subject to this Act, a person's right of access is not affected by: ????????????(a)? any reasons the person gives for seeking access; or ????????????(b)? the agency's or Minister's belief as to what are his or her reasons for seeking access. What can be requested? S 11(1), s 4(1)11(1)(1)? Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to: ???(a)? a document of an agency, other than an exempt document; or ????(b)? an official document of a Minister, other than an exempt document. 4(1)"document" includes: ???????????????????? (a)? any of, or any part of any of, the following things: ????????????????????????????? (i)? any paper or other material on which there is writing; ???????????????????????????? (ii)? a map, plan, drawing or photograph; ? (iii)? any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; (iv)? any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device; (v)? any article on which information has been stored or recorded, either mechanically or electronically; ??????????????????????????? (vi)? any other record of information; or ???????????????????? (b)? any copy, reproduction or duplicate of such a thing; or ???????????????????? (c)? any part of such a copy, reproduction or duplicate; but does not incl:: ???????????????????? (d)? library material maintained for reference purposes; or ???????????????????? (e)? Cabinet notebooks. ‘Of an agency’ includes a govt dept. or body corporate created by statutePt 11 of Sch 2 exempt agencies for certain types of content ss7(2) & 7(2AA) e.g. docs held by medicare that relate to commercial activities (2)? The persons, bodies & Depts specified in Part?II of Schedule?2 are exempt from the operation of this Act in relation to the docs referred to in that Schedule in relation to them. (2AA)? A body corp estab by or under an Act specified in Pt?III of Sch?2 is exempt from the operation of this Act in relation to docs in respect of the commercial activities of the body corp. Docs from intelligence or defence agencies (s 7(2A)Official doc. of a Minister exempt if originated from an intelligence or defence agency (s 7(2B)Procedure for making a requestS 15(2)(2)? The request must: ????? (a)? be in writing; & (b)? provide such info. concerning the doc. as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; &(c)? specify an address in Aust. at which notices under this Act may be sent to the applicant; & (d)? be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone directory; & (e)? be accompanied by the fee payable under the regulations in respect of the request. Exempt documents – Part IV‘Public Interest’ – e.g. s 33(a)Documents affecting national security, defence or international relations ??????????????????A doc is an exempt doc if disclosure of the doc under this Act: ???????????????????? (a)? would, or could reasonably be expected to, cause damage to: ????????????????????????????? (i)? the security of the Cthh; ???????????????????????????? (ii)? the defence of the Cth; or ??????????????????????????? (iii)? the international relations of the Cth; or PART IV--EXEMPT DOCUMENTS 32. Interpretation ? 33. Docs affecting national security, defence or international relations ? 33A. Docs affecting relations with States ? 34. Cabinet docs ? 35. Executive Council docs ? 36. Internal working docs ? 37. Docs affecting enforcement of law & protection of public safety ? 38. Docs to which secrecy provisions of enactments apply ? 39. Docs affecting financial or property interests of the Cth ? 40. Docs concerning certain operations of agencies ? 41. Docs affecting personal privacy ? 42. Docs subject to legal professional privilege ? 43. Docs relating to business affairs etc. ? 43A. Docs relating to research ? 44. Docs affecting national economy ? 45. Docs containing material obtained in confidence ? 46. Docs disclosure of which would be contempt of Parlt or contempt of crt ? 47. Certain docs arising out of companies & securities legislation ? 47A. Electoral rolls and related docs ?Review Internal review s 54(1) within 30 daysAAT further 60 days - s 55(1)Appeal to Federal Crt Q of lawAlso review by Ombudsman s 57(1) QueenslandInformation Privacy Act 2009 Object: the fair collection & handling in the public sector environment of personal information & a right of access to, & amendment of, personal information in the govt’s possession or under the govt’s ctrl Freedom of Information - From 1 July 2009, the Right to Information Act 2009 replaced the Freedom of Information Act 1992 ................
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