4 - The Uni Tutor
4. THE FRAMEWORK FOR JUDICIAL REVIEW 9
Jurisdiction of the Courts 9
State Supreme Courts 9
High Court 10
Refugee Review Tribunal; Ex p Aala (Gaudron, Gummow & Kirby JJ) 10
Plaintiff S157/2002 v Commonwealth 10
Federal Court 10
Judiciary Act 1903 (Cth) ss39B, 44 10
Administrative Decisions (Judicial Review) Act 1977 (Cth) [ADJR Act] 10
ADJR Act (Cth) Jurisdiction: Decisions subject to review 11
What is a decision? 11
ABT v Bond (High Court) 11
Kelson v Forward (1995) 60 FCR 39 11
Electricity supply Association of Australia Ltd v ACCC (2001) 113 FCR 12
Edelsten v Health Insurance Commission (1990) 27 FCR 56 12
Century Yuasa Batteries Pty Ltd v Federal Commissioner of Taxation (1997) 73 FCR 528; 143 ALR 477 FCA 12
Peverill v Meir (1989) 95 ALR 401; 20 ALD 491 FCA 12
Of an administrative character? 13
Evans v Friemann 13
Lamb v Moss 13
Under an enactment? 13
Chittick v Ackland (1984) 1 FCR 254 (per Lockhart & Morling JJ)]: 13
ANU v Burns 13
Right to life Association Case 13
Griffith University v Tang 14
General Newspapers v Telstra 14
“Public Power” exercised by non-governmental body 14
Neat Domestic Trading v AWB 14
Griffith University v Tang 14
Minister for Immigration and Ethnic Affairs v Guo 15
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 15
Limits on the Scope of Judicial Review 15
Judicial limits 15
Humane Society International Case (2005) 15
Legislative limits 15
Privative clauses (ouster clauses) 15
Privative clauses must comply with the Hickman principles: 16
R v Hickman (1945): 16
Project Blue Sky v Australian Broadcasting Authority (1998) CLR 355 16
Justiciability 16
Public / private 16
Status of the decision-maker 16
Source in statute – precluding review of prerogative and other non-statutory decisions 17
Appropriateness 17
Cormack v Cope (1974) 131 CLR 432 17
South Australia v Cth (1962) 108 CLR 130] 18
Public/Private 18
“Public power”: R v Panel on Take-overs & Mergers; Ex p Datafin 18
Neat Domestic Trading v AWB Ltd 18
Griffith University v Tang 19
5. JUDICIAL REVIEW AND CRITERIA FOR LAWFUL DECISION MAKING 20
Foundation for Judicial Review 20
Attorney-General v Quin 20
The Legality Merits/Distinction – Foundation cases 21
Chief Constable of the North Wales Police v Evans [1982] 3 ALL ER 141 21
Green v Daniels (1977) 13 ALR 1 22
Attorney-General (NSW) v Quin (1990) 170 CLR 1 22
Minister for Immigration and multicultural affairs v Yusuf 22
Jurisdictional Fact Review 23
Timbarra Protection Coalition In v Ross Mining NL (1999) 46 NSWLR 55 23
Corporation of the City of Enfield v Development Assessment Commission 23
“Subjective” Jurisdictional Facts 24
Re MIMA, Ex p Applicant S20/2002 24
Melbourne Stevedoring (C&M p 663) 25
Liversidege v Sir John Anderson [1942] AC 206 25
R v Connell; Ex Parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 25
George v Rocket (1991) 170 CLR 104 26
6. JUDICIAL REVIEW OF UNAUTHORISED DECISION MAKING 27
Grounds of judicial review: 27
1. The Principle of Legality 27
The scope of the principle of legality 27
1.1 Statutory authority 27
Entick v Carrington (1765) 19 St Tr 1030 [“SS Search warrant”] 27
Congreve v Home Office [1976] QB 629 [“TV License”] 28
Church of Scientology v Woodward (1982) 154 CLR 25 28
1.2 Non-statutory authority 29
Sec 61 Constitution 29
A v Hayden (No 2) (1984) 156 CLR 532 [“Hotel & ASIS”] 29
Clough v Leahy (1904) 2 CLR 139 29
Minister for Immigration and Multicultural and Indigenous Affairs v Vardarlis (2001) 110 FCR 491 [“Tampa Case”] 30
1.3 Statutory Interpretation 30
Common law approaches, assumptions and presumptions 31
Implied incidental power 31
Herscu v The Queen (1991) 173 CLR 276 31
Limitation of implied incidental power by three main principles: 31
Use of power for an unauthorised purpose and supplementary to the statutory scheme: Kent v Johnson (1972) 21 FLR 177 [“Telecom Tower”] 31
Established freedoms and immunities: Coco v The Queen (1994) 179 CLR 427 31
Pecuniary Burdens and Penalties: Attorney-General v Wilts United Dairies Ltd (1921) 37 TLR 884 32
Access to the courts 32
Fundamental Human Rights: Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 32
Involuntary detainment 33
Al Kateb v Godwin (2004) 219 CLR 562 33
1.5 Statutory Interpretation: Rule-making 33
Has the subordinate legislation been validly authorized? 33
Seeligson v City of Melbourne [1935] VLR 365 [Pamphlets] 34
Re Gold Coast City Council By-Laws [1994] 1 Qd R 130 [GCCC shops] 34
The complement / supplement distinction 34
Shanahan v Scott (1957) 96 CLR 245 [“VIC Eggs”] 34
Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 35
The regulate/ prohibit distinction 35
Swan Hill Corporation v Bradbury (1937) 56 CLR 746 [“Prohibiting buildings”] 35
Foley v Padley (1984) 154 CLR 349 [“Mall Flyers”] 35
The means/ ends distinction 36
Paull v Munday (1976) 9 ALR 245 [“Fire & source”] 36
Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629 36
Reasonable Proportionality and the purpose/subject matter distinction 36
South Australia v Tanner (1989) 166 CLR 161 [“Zoo & Avery”] 36
2. The decision maker 37
Express powers of delegation 37
Secs 34A, 34AA and 34AB of the Acts Interpretation Act 1901. 37
Delegates must exercise their own discretion 37
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 {“The alter ego” principle} 38
O’Reilly v State Bank of Victoria (1982) 153 CLR 1 [“Deputy Tax Commissioner”] 38
Circumstances in which the general principle applies 39
Administrative necessity 39
Where there is an express power of delegation 39
Nature of the power 39
Re Reference under section 11 of Ombudsman Act 1976 for an advisory opinion: Ex parte Director General of Social Services (1979) 2 ALD 86 [“Daniels signature”] 39
Uncertainty 40
King Gee Clothing Pty Ltd v Commonwealth (1945) 71 CLR 184 40
7. JUDICIAL REVIEW: LEGISLATIVE SCOPE & PURPOSE 41
Grounds of judicial review 41
1. Acting for an Unauthorised (or Improper) purpose 41
Municipal Council of Sydney v Campbell [1925] AC 338 [“Martin Place”] 41
Samrein Pty Ltd v Metropolitan Water, Sewerage & Drainage Board (1982) 41 ALR 467 [“JV with GIO”] 41
R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981) 151 CLR 170 [Aboriginal land] 42
Schlieske v Minister for Immigration & Ethnic Affairs (1988) 79 ALR 554 [“Allegations”] 43
Statutory indeterminacy – How to determine the purpose of the Act. 43
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [“NZ TV”] 43
15AA Regard to be had to purpose or object of Act 44
2. Considering Irrelevant Matters 44
Water Conservation and irrigation Commission (NSW) v Browning (1947) 74 CLR 492 HCA [“Irrigation & Italian”] 44
R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 45
O’Shlack v Richard council 45
Murpheyores Inc Pty Ltd v Cth (1976) 136 CLR 1 [“Fraser Island”] 45
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 [“Milk Scheme”] 45
Roberts v Hopgood [1925] Ac 578 [“Council Wages”] 46
Ex parte SF Bowser & Co v Re Municipal Council of Randwick (1927) [“Petrol pumps”] 46
3. Failing to Consider Relevant Matters 47
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 [“Nursing fee”] 47
Peko wallsend (HC) [“New info.”] 48
Tickner v Chapman (1995) 57 FCR 451 [“Hindmarsh Bridge”] 49
Hindi v Minister for Immigration & Ethnic Affairs (1988) Not hugely important 50
8. JUDICIAL REVIEW: PROCEDURAL FAIRNESS 51
Judicial review: procedural fairness 51
A fair hearing 51
When Natural justice applies Three points understood to frequently overlap: 52
1. The Implication Principle 52
Cooper v Board of Works for the Wandsworth District (1963) 143 ER 414 [“house demolish” 52
Ridge v Baldwin [1964] AC 40 [“Constable dismissal”] 53
Kioa v West (1985) 159 CLR 550 [“Departmental Report”] 53
1. ADJR’s implied application of the principle of natural justice 53
2. Common law doctrine of procedural fairness 53
3. Legislative intention to observe the procedures of natural justice 54
State of South Australia v O’Shea (1987) 163 CLR 378 [A state case which examines prerogative powers] 54
Jarratt v Commissioner of Police for New South Wales (2005) 221 ALR 95; (2005) 79 ALJR 1581 [“Commissioner dismissal”] ^^ 55
Legislative Implication 55
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 55
The right or interest affected by a decision 56
Kioa: 56
Annetts v McCann (1990) [Extends the doctrine of what a right and interest is.] 56
2. The Concept of Legitimate Expectation 56
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 [“Minister’s Policy”] 56
Attorney general v Quin 57
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 57
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 58
3. Stages at which procedural fairness will be afforded 59
Advisory reports & Recommendations 59
Where statute provides a hearing, code of procedure or right of appeal 59
• Re: A fair hearing, the Migration Act provides an exhaustive statement of natural justice. 59
A statutory appeal as an exclusive remedy: Twist v Randwick Municipal Council (1976) 136 CLR 106 [“Dilapidated House”] 60
A statutory appeal as an exclusive remedy: Marine Hull & Liability Co Ltd v Hurford (1985) 62 ALR 253 [“Cease Insurance business”] 60
Wilcox J: 60
Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 61
4. Possible qualifications to the implication principle 62
Urgency 62
South Australia v Slipper (2004) 136 FCR 259 62
5. Content of hearing rule 63
Must the person who decided hear? 63
The requirement to give proper notice of the decision and the requirement of disclosure 63
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 63
5.4 The hearing 64
Sullivan v Department of Transport (1978) 20 ALR 323 64
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 ^^^ 64
A duty to inquire 66
Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 66
Exparte applicants S134 66
Unexplainable delay 66
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 66
Representation 66
Cains v Jenkins (1979) 28 ALR 219 66
Rules of evidence & cross-examination 67
O’Rourke v Miller (1985) 156 CLR 342 67
6. Reasons for a Decision 67
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 67
7. Probative Evidence 67
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per (Mason CJ) 67
Minister for Immigration & Ethnic Affairs v Pochi (1980) 31 ALR 666 68
8. The rule against Bias 68
8.1 Pecuniary interest 68
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 68
Clenaye 68
Hot Holdings v Creasy (2002) 210 CLR 438 68
8.2 Reasonable Apprehension of Bias 69
Webb v R (1994) 181 CLR 41 at 74 69
Laws v ABT (1990) 170 CLR 70 69
Minister for Indigenous and Multicultural Affairs v Jia (2001) 205 CLR 506 69
Vakauta v Kelly (1989) 167 CLR 568 70
9. Effect of Breach of Procedural Fairness & Discretion of Court 70
9. EXECUTIVE POLICIES, DIRECTIONS AND REPRESENTATIONS 71
1. Policies must be consistent with enabling Act 71
Green v Daniels (1977) 13 ALR 1 71
2. The Non-Fettering Rule: Policies must not be inflexibly applied 71
Green v Daniels (1977) 13 ALR 1 71
Rendell v Release on Licence Board (1987) 10 NSWLR 499 71
British Oxygen Co Ltd v Minister of Technology 72
Peninsula Anglican Boys School 72
R v Moore; ex p Australian Telephone Officers Assoc 72
Hindi v MIEA 72
3. The Non-Abdication Rule: Discretion must not be exercised at the Direction or behest of another person 73
In a matter of high government policy where the discretion has been entrusted to the Permanent Head of the Department. 73
R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 73
Ansett Transport Industries (Operations Pty Ltd v Cth (1977) 139 CLR 54 73
In a matter of high government policy where the discretion has been entrusted to an independent body. 73
Breadmanufacturers of NSW v Evans 73
3.1 Statutory Directions 74
NSW Farmers’ Assoc v MPIE 74
Riddell v Secretary DSS 74
4. Administrative Tribunals & Government Policy 74
Re Drake and MIEA (no 2) 74
Administrative Decisions Tribunal Act 1997 (NSW) Sec 64 75
Public Reliance on policies etc 75
5. Representations & Estoppel 76
Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic (1990) 92 ALR 93 76
Procedural Fairness & Policies etc 77
Contractual Fetters 77
10. LAW, FACT & EVIDENCE 78
1. The Law/Fact Distinction 78
Melbourne Stevedoring case 79
1. The Fact/Law Distinction: Errors in interpreting and applying the statute 80
Azzopardi v Tasman 80
Melbourne Stevedoring. 80
Hope v Bathurst City Council (1980) 144 CLR 1 81
2. Judicial Review on grounds of error of law 81
Common law - Jurisdictional Error of Law 81
Craig v State of South Australia (1995) 184 CLR 163 81
Common law - Error of law on the Face of the Record 82
3. No evidence under the ADJR Act 82
ADJR Act (Cth) 82
11. BREACH OF STATUTORY DUTY 84
Jianxin v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 85
2. Statutory Duty to Provide a Service 85
3. Statutory duty to enforce and implement the law 86
12. WEDNESBURY UNREASONABLENESS 87
‘Species’ of unreasonableness 87
1.1 Examples 87
• Community standards/ human rights norms 87
• Livelihood extinguished 87
Edelston v Wilcox (1988) 83 ALR 99 87
• Inconsistent or unequal treatment of similar cases 87
Sunshine Coast Broadcasters v Duncan 88
• Multiple powers: use of an inappropriate power 88
• Irrational or devoid of plausible explanation 88
• Lack of reasonable proportionality 88
South Australia v Tanner 88
1.2 Duty of Inquiry 89
MIMIA, ex p S134/2002 89
13. CONSEQUENCES OF UNLAWFUL DECISIONS 90
1. Invalidity 90
2. Breach of associated statutory requirements 90
14. STANDING 92
ACF v Cth 92
Onus v Alcoa 93
Bateman’s Bay 93
Right to Life Association (NSW) Inc v Secretary, Commonwealth Department of Human Services and Health (1995) 128 ALR 238 94
EPA Act 1979 (NSW) s123 94
3. RULE-MAKING 95
Definitions 95
Minister of Fisheries 40 FCR 381 95
Terminology used in naming delegated legislation 96
Requirements for making valid delegated legislation 96
Consultation requirement 96
NSW: Subordinate Legislation Act 1989 (NSW). 96
What happens if consultation not undertaken? 96
“Professional vetting” 96
Publication Rules 97
Golden-Brown v Hunt (1972) 19 FLR 438 97
Watson v Lee (1979) 144 CLR 374 97
Tabling requirement 98
Interpretation Act (NSW) s40(1) 98
Sunset Clauses 99
Ways to control delegated legislation 99
Parliament 99
Administrative control 99
Judicial control 99
14(2). REMEDIES 101
1. Certiorari 101
Ainsworth v Criminal Justice Commission 101
Hot Holdings Pty Ltd v Creasy 101
2. Prohibition 101
3. Mandamus 101
Statutory mandamus: NSW 101
4. Habeus Corpus 102
Tampa cases 102
5. Injunction 102
6. Declaration 102
Discretion of Court 103
4. THE FRAMEWORK FOR JUDICIAL REVIEW
Jurisdiction of the Courts
State Supreme Courts
State Supreme Courts of general jurisdiction have inherent jurisdiction to review the legality of State administrative decisions.
Available remedies include: -
• Prerogative writs
• Injunctions (from equitable jurisdiction)
• Declarations in absence of alternative relief conferred by Statute.
• Mandatory injunction by virtue of the statute
• Award damages by virtue of general jurisdiction in private law matters and cross vesting
• Exercise federal jurisdiction, but won’t in some circumstances such as judicial review of a federal matter. Jurisdiction of Court (Cross Vesting) Act 1987 (State and Cth enactments) s6: ‘special federal matter’ which state’s are excluded from exercising.
The legal basis for judicial review is that the administrator must have legal authority for its decisions and actions, such that: -
a) Powers must not be sub-delegated unless authorized
b) Decisions must not be so uncertain that they cannot operate
c) Discretion must not be abused by: -
a. acting for an improper purpose
b. disregarding relevant matters
c. having regard to irrelevant matters; or
d. making a manifestly unreasonable decision
d) Procedural fairness must be observed
a. The hearing rule
b. The rule against bias
e) Discretion must not be fettered by
a. inflexibly applying policy or
b. acting at the behest of another
f) Procedures must be complied with:-
a. But it must be asked whether it was the intention of the legislation that non-compliance should result in invalidity (or some other consequence)
High Court
Has appellate jurisdiction from Commonwealth, State and Territory Courts.
It also has its original jurisdiction pursuant to Section 75 of the Constitution: -
The High Court has original jurisdiction in all matters
(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party …
(v) in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth
Refugee Review Tribunal; Ex p Aala (Gaudron, Gummow & Kirby JJ)
Findings: It is preferable to refer to these writs as ‘constitutional writs’ than prerogative writs:
Plaintiff S157/2002 v Commonwealth
Findings: An ordinary Act of Parliament cannot abrogate the Court’s constitutional jurisdiction:
Federal Court
Judiciary Act 1903 (Cth) ss39B, 44
Section 39B(1) of the Judiciary Act 1903 (Cth)
The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth
Section 39B(1A) of the Judiciary Act 1903 (Cth)
The original jurisdiction also includes jurisdiction in any matter in which the Commonwealth is seeking an: -
a) injunction or a declaration; or
b) arising under the Constitution, or involving its interpretation; or
c) arising under any laws made by the Commonwealth Parliament, other than criminal prosecutions
Section 44 of the Judiciary Act 1903 - allows the High Court to remit matters
commenced in its original jurisdiction to the Federal Court
Administrative Decisions (Judicial Review) Act 1977 (Cth) [ADJR Act]
Simple procedure for judicial review of Commonwealth administrative decisions by way of application for an order of review
Requires reasons to be given for reviewable decisions and codifies the grounds of review in broad terms
The Federal Court may also hear appeals on questions of law from various tribunals, eg Administrative Appeals Tribunal
However, the Federal Court cannot review State judicial review matters (and see Re Wakim; ex p McNally in that the conferral of state jurisdiction on the Federal Court under cross-vesting legislation are invalid)
ADJR Act (Cth) Jurisdiction: Decisions subject to review
Section 3(1) of the ADJR Act - “decision to which this Act applies” means a decision of an administrative character made, proposed to be made, or required to be made… under an enactment
Section 5 - A person who is aggrieved by a decision that has been made may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds…
Section 6 - Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision; a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on any one or more of the following grounds…
Section 7 - Where a person has a duty to make a decision and the person has failed to make that decision, a person who is aggrieved by the failure may apply to the Court for an order of review in respect of the failure to make the decision (within the prescribed time or if no prescribed time, unreasonable delay)
What is a decision?
ABT v Bond (High Court)
Findings: A reviewable decision under ADJR are ‘final’ or ‘operative’ and ‘determinative’ decisions, rather than steps in the reasoning process.
Provided there is a reviewable decision, the court may examine the underlying reasons for the decision to the extent that they expose a permissible ground of review of the decision.
An essential quality of a decision reviewable under Section 5 is that it is a substantive determination
Procedural conduct is reviewable under Section 6
Distinction between ‘substantive, final and operative decision’ and ‘a mere expressio of opinion or a statement of which can of itself have no effect on a person’ in the following two cases:
Kelson v Forward (1995) 60 FCR 39
A report produced to MRPA, made allegations of sexual harassment at Australian War Memorial. Report was ‘capable’ of affecting the rights of individuals, even in a very non-radar way. i.e. ‘independent capacity to be the instrument of silent and/or collateral injurious affection to the applicants’.
Electricity supply Association of Australia Ltd v ACCC (2001) 113 FCR
TPA s28 provided that ACCC was to make available to public general information about matters affecting the interests of consumers. Based on legal advice, ACCC issued 2 allegedly incorrect media releases stating that electricity suppliers could be liable under the Act for damage caused to electrical appliances. ESAA, unsuccessfully urged ACCC to correct its published view. Court dismissed on ground that publication decision were not a reviewable decision.
• E.g. of a mere expression of an opinion. There were 2 opposing forms of legal advice. Report itself was purely advisory. Not affecting anyone’s rights or interests, merely an opinion, because the ‘decision’ is the one that adjudicates the 2 opposing views. The ACCC’s report on itself, although made pursuant to an act, did not have any ramifications.
A decision that statute requires or authorises
Edelsten v Health Insurance Commission (1990) 27 FCR 56
Facts: HIA Act laid down multi-step process for deciding whether Medical practitioner had claimed medicare benefits excessively. Court held that those steps, which were a preliminary investigation and report, were not ‘decisions’, since by themselves they resolved nothing: Just because Act authorises steps, doesn’t mean it’s actually decisions.
Self-executing provisions
A statutory provision which stipulates a rule without specifically requiring an administrative decision be made to apply that rule. The view taken in some cases is that administrative application of such provisions is not a decision of administrative character.
Century Yuasa Batteries Pty Ltd v Federal Commissioner of Taxation (1997) 73 FCR 528; 143 ALR 477 FCA
Facts: Where a letter of demand is sent by the commissioner to the company notifying it that it had incurred a late payment penalty under the ITA, court held this was not an ADJR reviewable ‘decision’: the incurrence of late penalties was a natural consequence, not a decision.
However, a decision which leads to the penalty is a reviewable one.
Peverill v Meir (1989) 95 ALR 401; 20 ALD 491 FCA
Process of ‘ticking boxes’ as to whether it came within Medicare benefits was a decision.
Of an administrative character?
Evans v Friemann
Findings: Of an administrative character in a broad sense “administrative” is distinguished from “legislative” and “judicial”; there is no “examination” required. These include matters of commercial, managerial or personal nature.
Lamb v Moss
Findings: Magistrates conducting committal proceedings are acting administratively
Under an enactment?
Chittick v Ackland (1984) 1 FCR 254 (per Lockhart & Morling JJ)]:
Findings: Court held that, on the one hand, the term ‘instrument’ is apt to include documents of an administrative as well as a legislative character, since even ‘rules, regulations and by-laws’ can have that dual character. On the other hand, not all administrative documents are caught by the term, but only those which satisfy the following three requirements: Lockhart & Morling JJ: For a document to answer the description of an instrument made under an Act… it must first be a “document made ‘under’ an Act”… The word ‘under’, in the context of the Judicial Review Act, means ‘in pursuance of’ or ‘under the authority of’: [Evans v Friemann (1981) 35 ALR 428, per Fox J (at 436)]… Further, for a document to be an instrument for the purposes of s3(1) it must be a document under which decisions of an administrative character can be made. We think that some additional quality is required to give a document the status of an instrument for the purpose of s3(1) … the document must be of such a kind that it has the capacity to affect legal rights and obligations.
A decision is not reviewable if the power cannot be sourced to statute (eg common law power to contract)
ANU v Burns
For decision made under a contract to be reviewable, the proximate or immediate source of the power must be the enactment, not the contract.
Right to life Association Case
Facts: Decision of therapeutic goods act. Right to Life Association wrote to secretary objecting clinical trials conducted on an ‘abortion drug’. Secretary replied with letter, saying the trials won’t be stopped. Majority held that letter gave rise to a reviewable decision under ADJR.
Lockhart: The Secretary is the guardian of the public interest under condition (e). If he becomes aware of matters or circumstances which would lead him to conclude that to conduct or continue the trial would be contrary to public interest, how can he ignore them, even if he may have been under no duty to have made himself aware of them in the first place? But where matters and circumstances have been brought to his attention which relevantly bear on the question of the public interest and he then proceeds to form an opinion and reach a conclusion with respect to them, it seems to me that he may have made a reviewable decision under the ADJR Act
Griffith University v Tang
o The decision must confer, alter or otherwise affect legal rights or obligations and in that sense derive from the enactment
o A bare capacity to contract does not suffice to endow subsequent contracts with the character of being made under an enactment
o The power to affect the other party’s rights and obligations is derived from entering into an agreement
General Newspapers v Telstra
General conferral of capacity to enter contracts does not make the decision reviewable
Reviewable decisions are decisions which are given force or effect by the enactment which authorises them
“Public Power” exercised by non-governmental body
Neat Domestic Trading v AWB
Facts: Private corporation given a role in a scheme of public regulation – Wheat Marketing Act. The corporation had power to veto decision by the Wheat Export Authority to consent to export of wheat
Findings: The private corporation’s decision was not “under an enactment” – it did not need statutory authority to give it capacity to provide an approval.
The private corporation’s decisions were neither authorised nor empowered by the Act – they flowed from the Corporations Law
Griffith University v Tang
Facts: University excluded a student from the PhD program for reason of academic misconduct (alleged fraudulent research results)
Student claimed that in University appeal process there was procedural unfairness, failure to comply with mandatory procedures, errors of law etc
Findings: High Court (by majority) held that judicial review was not available as the decision to exclude was not a decision “made under an enactment”
The test for “made under an enactment”
a) The decision must be expressly or impliedly required or authorised by the enactment AND
b) The decision must itself confer, alter or otherwise affect legal rights or obligations
The capacity to affect legal rights and obligations must be derived from statute, not contract or some other private law source
Critique: The source of the University's power to make the decision was, and was only, the University Act – there was no other legal source of power.
The majority’s characterisation conceals the reality that the relevant "arrangement" between the University and the respondent consisted solely in the exercise by the University of its statutory powers under the Higher Education and University Acts, namely the powers to "provide education at university standard" and ultimately to "confer higher education awards"
Minister for Immigration and Ethnic Affairs v Guo
Not a re-hearing of the merits
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
The scope of judicial review is more limited than a right of appeal
• Statutory appeal, which doesn’t attach the ancillary functions of the appellate.
• Court cannot substitute decision of inferior Court. Can only send back to inferior Court to be decided again.
• Not all decisions are reviewable [Peko per Mason J]: e.g. privative clause, discretion by statute too broad
Limits on the Scope of Judicial Review
Judicial limits
Courts don’t wish to intervene in acts of the Executive government.
Humane Society International Case (2005)
Facts: The Plaintiffs wanted to sue Japanese fishing company; who were fishing for whales for ‘scientific purposes’, and sought an injunction to be served on the Japanese.
Findings: Court declined the application as the Japanese wouldn’t recognise our legislation and the government wanted to use diplomatic channels.
Legislative limits
Privative clauses (ouster clauses)
Privative clauses provide that a decision should not be challenged, appealed against, quashed or called into question or subject to prohibition, mandamus, injunction etc.
• Yong Jun Quin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695
• Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468 Plaintiff S157/2002 v Commonwealth of Australia, [164 – 176]
• R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
• Hockey v Yelland (1984) 157 CLR 124 dealt with ‘final and conclusive’ clause, which ‘does not preclude judicial review of decision’.
• Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 Houssein v Under Secretary, Department of Industrial Relations & Technology (1982) 148 CLR 88 just because there’s a certificate of ‘conclusive evidence’ doesn’t preclude judicial review.
• O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 if there’s a reasonable effort to make it bona fide, it’s ok.
Privative clauses must comply with the Hickman principles:
R v Hickman (1945):
1) made bona fide.
2) related to subject matter of relevant statute. i.e. made in bad faith
3) reasonably referrable to power of decision maker.
Other Limits
• By giving decision-making body a very wide jurisdiction.
• By providing that a provision is not intended to affect the validity of a determination
Project Blue Sky v Australian Broadcasting Authority (1998) CLR 355
a) By including evidentiary clauses deeming all things done and, that a certain result has been achieved on production of a certificate, or other formal proof of proper form
b) By way of self-executing decision, that is, a decision where the ‘decision’ follows automatically from the existence of objective facts
c) By providing in legislation that only certain decisions are reviewable, thereby excluding others, which may then only be challenged at common law on limited grounds
d) By amending the range and scope of the grounds of review themselves; and
e) By making certain aspects of the decision-making process legislative rather than administrative in character.
Justiciability
Judge-made Criteria for Justiciable
Public / private
a) may review of domestic bodies for procedural unfairness (Forbes case)
Status of the decision-maker
a) Progressively abandoned e.g.
a. Governor: R v Toohey ex p NLC; FAI v Winneke
b. Cabinet: Env Min v Peko-Wallsend; SA v O’Shea
Powers of the Crown or derived from the Queen; Davis v Commonwealth (1988) 166 CLR 79 at 93; 82 ALR 633; R v Toohey: ex parte Northern Land Council (1981) 151 CLR 170, 219
Areas typically classified as prerogative - Conduct of foreign affairs, declaration of war and peace; entering into treaties; dissolution of parliament; appointment of departmental officers; how debts are paid.
Diminuition of prerogative and expansion of executive powers: Mason in R v Toohey ex parte Northern Land Council (1981) 151 CLR 170, 219: If it affects the right of citizens, more than likely an exercise of executive rather than prerogative powers. Justiciability rests very heavily upon whether a legitimate expectation or right is affected. If so, then it is more than likely a reviewable one. Thus, if what has been traditionally understood as a prerogative power fulfils the latter criteria, than it’s more likely to be an executive power.
Source in statute – precluding review of prerogative and other non-statutory decisions
a) Today judicial review at common law depends on “appropriateness”; see
a. CSU case
b. R v Toohey ex p NLC (Mason and Wilson JJ obiter
c. Environment Minister v Peko-Wallsend
Appropriateness
Consider the Source, Status and Subject Matter
Wilcox J in Environment Minister v Peko Wallsend:
a) Does the decision directly affect the rights, interests or legitimate expectations of an individual?
a. Whether or not it alters the legal rights/obligations, enforceable by or against that person.
b. Whether or not that decision deprives the person of some benefit which they had in the past, which they would legitimately expect that it would continue.
c. Where there’s an assurance by the decision maker that a right won’t be withdrawn, but it is and it deprives a person of some benefit or advantage.
d. Consider functional limitations of adversary adjudication
e. Consider whether the issue is capable of resolution by legal criteria or ascertainable objective standards
Cormack v Cope (1974) 131 CLR 432
Facts: There were 6 bills that were passed but hadn’t made it to senate. It was an internal working of Parliament that before the matters were voted on in Senate, there would be a Joint Standing Committee. The Governor General proclaimed that the bills passed in lower house, and deemed them to have gone through the joint standing committee. 2 Senators brought in an action that this was invalid, because it didn’t go through joint standing process.
Findings: It wasn’t justiciable, because there was no precedent on this issue before; may only rely on policy considerations.
b) Are there other features of the decision which make it inappropriate for judicial review?
a. Consider separation of powers / democratic issues
South Australia v Cth (1962) 108 CLR 130]
Findings: As the Contract was statutorily enacted, Commonwealth wished for resolution to be made politically, not litigiously. Accordingly, the decision was better resolved by executive government.
Public/Private
Domestic bodies, such as sporting and professional organisations (whether or not
supported by statute)
a) Must observe their rules
b) Must observe procedural fairness when exercising “regulatory” functions, such as disciplining or expelling a member: Forbes case
c) This is implied into the rules of the body
The court’s jurisdiction over domestic bodies has variously been derived
a) From a member’s interest in the property of that body
b) A (fictional) contract between the members
c) Unreasonable restraint of trade or a profession
d) “Public” power
a. Gibbs J in Forbes: the public nature of the activity
b. Murphy J in Forbes: power to affect members of the public to a significant degree
“Public power”: R v Panel on Take-overs & Mergers; Ex p Datafin
a) Decisions under a self-regulatory code are reviewable if
a. There is a “public” element
b. The jurisdiction is not wholly consensual
i. The Panel’s jurisdiction applied to all, whether or not members of a body represented on the panel
c. Indicia of “public” power implied through the devolution of power to the Panel by the Government
i. Considerable indirect legal support
ii. Self regulatory code recognised and supported by the Dept of Trade & Industry
iii. Woven into the fabric of government regulation
iv. Statutory sanctions exercisable by the Dept of Trade & Industry
v. Power to affect the rights and interests of citizens
Neat Domestic Trading v AWB Ltd
Facts: Wheat Marketing Act established a “single desk” system of export marketing of wheat. If a grower wants to export wheat but not through AWB, he has to get the approval of a statutory corporation, the Wheat Export Authority
WEA must consult AWB and get the approval in writing of AWBI
Neat applied six times but each time was vetoed by AWBI. Neat sought ADJR review on grounds of inflexible application of policy
Findings: The majority held that AWBI’s decision was not made “under an enactment”. In making its decision AWBI only had to pursue its private commercial objectives – it did not have to take
“public” considerations into account.
Having been given a wheat export monopoly and being required by companies law to pursue its commercial interests, it did not make sense to impose “public regarding” obligations on the company.
“No sensible accommodation” could be made between public and private considerations
The Court drew attention to two tests to determine whether a decision is made under an enactment:
1. Proximate source test - What is the proximate source of power? What is the most immediate source of power? [the contract or the Statute?]
2. Legal Force and Effect test – When a decision is made under an enactment, it’s necessary one that is authorised or required by it.
Gleeson CJ left the issue of reviewability open
a) there was nothing unlawful about the policy and its application – either in private or public law
b) The virtual monopoly AWB enjoys is one conferred by the legislative scheme – a scheme which is regarded as being in the national interest
c) It is inaccurate to describe the scheme as pursuing purely private interests – Australian wheat growers cannot compete on their own in international markets
d) Some grounds of review may be available in this statutory context
Kirby J (in dissent)
a) AWBI is reviewable and acted unlawfully.
b) AWBI exercised public power
c) Affected a great number of people
d) Recognised in statute
e) No other remedy – no contractual relationship and AWB is exempt from TPA
Griffith University v Tang
Facts: Griffith University established by statute. The Higher Education Act (Qld) gives universities the exclusive right to confer higher education awards. The Supreme Court of QLD and Court of Appeal held the matter to be reviewable. Although the University Council had plenary powers, it had delegated those powers in a highly structured way – so as to maintain proper standards of scholarship and preserve
the intrinsic worth of research degrees.
Findings: The Court held that it was simply a consensual relationship – voluntarily
entered into – and which neither party was bound to continue. Admission and exclusion are matters that lie at the very heart of the existence of Universities and are essential to the fulfillment of their basic function
5. JUDICIAL REVIEW AND CRITERIA FOR LAWFUL DECISION MAKING
Foundation for Judicial Review
a) statutory interpretation rationale
b) common law rationale
c) “general legislative intent”
a) statutory interpretation rationale
The courts have justified their function of reviewing administrative action by reference to the legality/merits distinction: -
o The court’s function is to ensure that administrators act within the power conferred by Parliament – are not acting “ultra vires” or in excess of jurisdiction
o The court is not reviewing the wisdom or correctness of administrative decisions, actions or policies
Attorney-General v Quin
Brennan J noted that the essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government. …
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise.
Judicial review is analyses the implied limitations on the extent or the exercise of statutory power, but not to secure judicial scrutiny of the merits
b) Common law rationale
The courts develop and impose controls on government which they believe are normatively justified, in the same way as they develop civil liability.
There is no need to manufacture positive legislative intent to justify judicial review, because statutes are read subject to common law principles.
c) “general legislative intent”
Principle: sovereignty of Parliament is a fundamental element of the constitutional
Order. As such,
a) Any change to the constitutional order must be by democratic process, not by judges
b) privative clauses may prevent judicial review
a. The reasoning used by the courts to take the sting out of privative clauses may be defeated if the source of the judicial review principle is the common law.
i. The Courts defeat this by claiming it was an ultra vires decision or a decision affected by jurisdictional error is not made “under the Act” and thus is not protected by the privative clause
Forsyth modifies the rationale by claiming that the “intention of Parliament” is to leave it to the judiciary to evaluate, within the limits expressed by Parliament, fairness and reasonableness in the particular case, i.e. “general legislative intent”
Adherence to “ultra vires” is a gentle but necessary discipline: -
a) The fig-leaf of ultra vires is not deceptive
b) everyone know what it hides: judicial creativity
c) fig-leaves, like swimming costumes, preserve the decencies of subtle constitutional interaction
The Legality Merits/Distinction – Foundation cases
Ex parte; Aala (2000) 204 CLR 82 at 163 per Hayne J: “There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on her or him, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction... The former kind of error concerns departures from limits upon the exercise of power the latter does not.”
Associated Provincial Picture House Lt v Wednesbury Corporation [1948] 1 KB 223 Facts: SEC Act (UK) provided that a licensed cinema could open on a Sunday only with the permission of a local authority. Plaintiff Company was given permission, on the condition that ‘no children under the age of 15 shall be admitted…’ Plaintiff sought a declaration that the condition was invalid, on grounds that it was unreasonable.
Findings: The Court found that discretion must be exercised reasonably. Decision-maker must consider all matters that they are bound to consider, and must exclude what are otherwise irrelevant considerations. A failure to do this is to act unreasonably. Court’s role in the process is to essentially determine whether the court has contravened the power that they were allowed. The Court is given authority to interfere with the merits review process, in identifying what is rational and what isn’t.
Irrationality principle – a ‘decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’: (Council of Civil Service Unions v Minister for Civil Service [198] AC 374 per Lord Diplock at 410)
Chief Constable of the North Wales Police v Evans [1982] 3 ALL ER 141
Principle: It is not the role of the judiciary to substitute their role for the decision maker.
Green v Daniels (1977) 13 ALR 1
Facts: A School leaver lodged application with the Commonwealth Employment Service (CES) in Hobart to be paid unemployment benefits under S107 of the Social Security Act [The Act], which provided that…
a person must (a) be 16 years of age, … satisfy D-G that he - (i) is unemployed… (ii) capable/willing to undertake work…(iii) taken reasonable steps to obtain work… to qualify for unemployment benefits.
She was informed that as a school leaver, she would not qualify for the benefit until the commencement of the next school year. This was based on the Director General’s policy, which aimed to guard against the improper payment of benefit to school leavers, who later decided to return to school. Green commenced proceedings in the HC, seeking a declaration that she was entitled to unemployment benefits during that holiday period.
Findings: Court held that the D-G’s policy conflicted with the terms of s107 of the Social Security Act. In effect, the Act was applied so widely that no school leaver was permitted to obtain benefits until the end of the school vacation. Stephen J held that the decision to deny her unemployment benefits was invalid.
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Findings: Brennan J:
The warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power.
Although the Court has no jurisdiction to cure administrative injustice or error, ‘Wednesbury Unreasonableness’ appears to open the gate to judicial review of merits taken within power. When properly applied, it leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power.
‘The duty and jurisdiction of the court do not go beyond the declaration and enforcing of the law which determine the limit and governs the exercise of the repository’s powers. … the court has no jurisdictions simply to cure an administrative injustice or error. The merits of administrative action, to the extent to which they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. ’
Minister for Immigration and multicultural affairs v Yusuf
Findings: Identifies from Craig v South Australia a non-exhaustive list of whether jurisdictional error has been committed from a substantive perspective:
• Identified a non issue
• Asked a wrong question
• Ignored relevant material
• Relied on irrelevant material that affects the exercise of their power.
Jurisdictional Fact Review
Judicial review is available if it is an essential condition of the existence of jurisdiction, that a certain event or requirement has in fact (objectively) occurred and the administrator purports to act as though that event or requirement has not in fact occurred
Review of “jurisdictional fact” requires
a) “Objectivity”: did Parliament intend that the fact must actually exist?
b) “Essentiality”: did Parliament intend that the absence or presence of the fact will invalidate the action?
The Court may conduct this through: -
a) de novo judicial review (see Enfield)
b) reviewing court determines the existence of the fact afresh
c) evidence before and reasoning of administrator is of no concern
d) Reviewing court receives fresh evidence – more or different – subject to the curial rules of evidence
e) No doctrine of deference on jurisdictional facts
Timbarra Protection Coalition In v Ross Mining NL (1999) 46 NSWLR 55
Facts: Tenterfield Shire Council gave a DA for Ross Mining to extend mining facilities. The EPA Act required a species impact statement if a development was likely to threaten a species. The development consent was posited on the basis that there were no threatened species.
Findings: the Court held that the decision whether a species impact statement was required was a jurisdictional fact (or condition precedent) which the Land and Environment Court had to determine for itself. Spiegelman CJ couched the judgment based on parliamentary intention, i.e. Parliament evinced an intention that this fact must exist in order for the counsel to make the decision. The Court must thus intervene to make the finding of fact.
Corporation of the City of Enfield v Development Assessment Commission
Facts: Act provides that if proposed development, for which consent is sought, is “special industry”
a) less departure from plan allowed
b) consent cannot be granted unless the local council gives concurrence
c) there must be public participation
d) there is a third party right of appeal
Act defines “special industry” as meaning an industry where the processes, methods, materials, goods are likely: -
a) to cause or create smells or
b) to discharge foul substances and thereby detrimentally affect life, health or property, or produce offensive conditions in the locality
Findings: High Court held that characterisation of the proposed development as “special industry” is a jurisdictional fact. This is because the legislation ‘does not define the criterion of operation as the opinion of the relevant authority as to the classification of the development’:
Enfield was followed in NSW in Woolworths v Pallas Newco
Factors in deciding whether a fact is a jurisdictional fact: -
a) Objective/subjective statutory language (as in Timbarra, Enfield) – but this is not determinative
b) Role the fact plays in the statutory scheme (eg Timbarra: SIS plays a ‘pivotal’ informational role)
c) Nature and qualifications of decision maker
d) The extent to which there is an evaluative component to the fact (but see Timbarra, Enfield – highly evaluative)
e) Interests at stake
f) human rights
g) public participation (Timbarra; Enfield)
“Subjective” Jurisdictional Facts
If the precondition is committed to the discretion (eg satisfaction or opinion) of the administrator (“subjective fact”), review is available for
a) Error of law in interpreting jurisdiction
b) Abuse of or failure to exercise discretion
c) For example having regard to irrelevant matters or failing to have regard to relevant matters
d) Including it seems extreme irrationality but not “Wednesbury unreasonableness”: Applicant S20/2002
Re MIMA, Ex p Applicant S20/2002
Facts: Migration Act provides that the Minister must grant a protection visa if s/he is satisfied that the applicant is a refugee, or if not so satisfied, must refuse to grant the visa
Issue: RRT reasoned that because the applicant lacks credibility the Tribunal cannot be satisfied with the corroborating evidence and gives no weight to it
Argument: (based on Gummow J in Eshetu) “irrational and not supported by logical grounds”
Gleeson CJ
a) It is not sufficient to establish some faulty inference of fact
b) Read the RRT’s reasons benevolently
McHugh & Gummow JJ (Callinan J agreeing)
a) It is not irrational for a decision maker to proceed on the footing that no corroboration can undo a conclusion that the applicant’s claim is a lie
b) Melbourne Stevedoring not Wednesbury unreasonableness provides the appropriate standard of review where the issue is whether a “subjective jurisdictional fact” is satisfied
Kirby J dissenting in S20
a) RRT committed a jurisdictional error: factfinding miscarried to a significant degree such that it did not meet the standard of decision making contemplated by Parliament
b) “not a real exercise of jurisdiction” Reviewing court must be vigilant where the life and liberty of a vulnerable individual is at stake
Melbourne Stevedoring (C&M p 663)
Issue: “If Board is satisfied that the employer is unfit, the Board may cancel its registration”
Finding: Jurisdictional error if there is a total absence of any foundation in fact for the fulfillment of the precondition
a) A mere insufficiency of evidence or other material to support a conclusion of fact when the finding of fact has been committed to the tribunal is not enough
b) However, while insufficiency of evidence is not a ground of review, it may be inferred from insufficient material together with other errors of law (in this case improper purpose and inflexible application of policy) that the decision-maker has misconceived or misunderstood the nature or limits of its jurisdiction
Liversidege v Sir John Anderson [1942] AC 206
Facts: Court had to decide the meaning and effect of a power conferred on a minister to determine a person during wartime if the minister had ‘reasonable cause to believe’ that the person was a security risk.
Findings: The Court held that it was for the Minister and not a court to decide whether there were reasonable grounds for a person to be detained… the statutory standard was a subjective rather than objective one.
Atkin L’s dissent - When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
R v Connell; Ex Parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
Finding: ‘Where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts’.
There’s an expectation that when they are conferred a power to make a decision, they have to make it reasonably. Where it’s shown to be unreasonable/ misconstrued the statute in such a way, that it’s void. ‘If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion requires has not been formed.’
George v Rocket (1991) 170 CLR 104
Findings: There needs to be grounds for the decision before it may be reasonable.
6. JUDICIAL REVIEW OF UNAUTHORISED DECISION MAKING
Grounds of judicial review:
1. The Principle of Legality
Government action is invalid if there is no legal authority to support it.
The scope of the principle of legality
Ways in which a decision can be outside of authority (also found in s 5 of the
AD(JR) Act.)
• that procedures that were required by law to be observed in connection with the making of the decision were not observed;
• that the person who purported to make the decision did not have jurisdiction to make the decision;
• that the decision was not authorized by the enactment in pursuance of which it was purported to be made;**
• 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;
** NB. No. of exceptions.
Three forms of government entities:
Executive agencies: Established by government action eg. A government department.
Statutory agencies: Also statutory authorities or statutory corporations. E.g. The wheat export authority. Only empowered to behave as prescribed in the statute.
Government corporations s51(xx): Companies set up under the Corporations power pursuant to the Corporations Act 2001 (Cth). Endowed with authority to act as a natural person: sec 124 of the Corporations Act. Not subject to the ultra vires doctrine, but susceptible to constitutional restraints concerning the activities it can engage in.
1. Statutory authority
Entick v Carrington (1765) 19 St Tr 1030 [“SS Search warrant”]
Facts: Entick was under investigation by the Secretary of State, who issued a search warrant to enter his home and cease papers which allegedly contained writings criticizing the government. Entick sued the Secretary for trespass.
Issue: In defence, it was argued that they were using the warrant issued to conduct the search.
Findings: This was rejected, as the Secretary was acting outside power. It was not enough that it was a long standing practice. Not enough that people in the past acquiesced, or that it was a means to an end for government, or that it was an enforcement of criminal law. Sued in tort for damages.
Congreve v Home Office [1976] QB 629 [“TV License”]
Facts: People had to pay for a license to use television. Terms and conditions of the license were varied pursuant to a separate provision, posing an increase of 6 pounds a year. Many license holders tried to renew their license early to escape the introduction of the provision (had 2 licenses at the same time). However, the home office sent out letters instructing the license holders to pay the extra 6 pounds.
Findings: This was an invalid exercise of power. The purpose was just to get revenue. The purpose was inconsistent with the purpose of the power that they were purportedly acting in pursuance of.
Church of Scientology v Woodward (1982) 154 CLR 25
Facts: The church commenced an action against the HC, to constrain ASIO from conducting an investigation of Church’ affairs. Church contended that they were acting outside statutory parameter, as the investigation was not a matter of security as required by the ASIO Act.
S17 provided, the functions of ASIO were ‘to obtain, correlate and evaluate intelligence relevant to security’, to communicate that intelligence to other relevant parties… and other Cth agencies ‘in respect of matters relating to security’.
Wilson J struck out the claim, holding there was a clear legislative intent expressed in the Act that the D-G’s actions were not subject to ordinary judicial review.
Findings: HC reversed this on appeal. But were divided on whether they could review ASIO’s security assessment in order to determine whether they were acting outside the Act.
Gibbs J: Act impliedly excluded courts from doing so, ‘at least concerning security provisions… should not be reviewed by the courts’. The Statutory function of ASIO, to inquire whether a matter was ‘relevant to security’ was of such a nature that judicial review was impractical. But ASIO’s decisions would not be immune to legal challenge if individual rights are involved.
Mason J conferred with Gibbs. S 17 was exclusive and comprehensive list of what ASIO was authorized to engage in. Yet in determining whether those functions would be required in determining security issues, it’s difficult to challenge ASIO’s decision making, given security is fluctuating. It is inevitable that some intelligence gathered would not constitute a security threat, but this does not mean it is irrelevant to security. It may simply lead instead to the conclusion that the person was not a security threat.
Murphy & Brennan JJ dissented on this issue: No exercise of Cth power could be excluded from judicial review. But agreed that this was difficult to prove.
2. Non-statutory authority
The acts and decision made by the executive without statutory authority but which are in the usual operation and administration of the affairs of government.
Sec 61 Constitution
61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
A v Hayden (No 2) (1984) 156 CLR 532 [“Hotel & ASIS”]
Facts: Plfs were ASIS employees. During the 1983 ASIS training operation, a hostage operation was simulated, but they did not seek permission of the hotel. Enquiry launched. Plfs sought an injunction against the Cth, which was going to reveal their names to the police. They argued that since they worked for ASIS, it would be a breach of confidentiality and would endanger national security.
Findings: ASIS should still act within the law and be responsible for their breaches of the law. It’s the cornerstone of parliamentary democracy and otherwise would be contrary to the rule of law. Impossible to rule out that national security will not take place over public interests in the administration of justice. Highly likely that former will prevail.
Wilson & Dawson JJ indicated that the government’s view of what constituted national security would always carry weight. The Cth was immune from criminal prosecution, but individual operatives may still be criminally liable.
Brennan J: Maybe they could be exempt from criminal operations in times of war, when allowed by statute.
Main Principles:
• No executive power can authorize a breach of the law.
• Officers of government agencies or government bodies, though acting on orders, must accept the consequences of their breach.
• No immunity for breaches of the law can be granted without parliamentary dispensation.
Clough v Leahy (1904) 2 CLR 139
Issue: Does government by virtue of executive power, have the power to set up an enquiry? (I.e. to interrogate)
Findings: Since citizens are allowed to ask questions, nothing prohibits government also to ask questions.
The three main constraints on executive power:
• It can be overridden by and cannot be exercised inconsistently with statute: see Tampa Case
• Executive power cannot justify a governmental act which would not be actionable at common law; such as defamation, interference with admin of justice.
• Subject to exceptions (such as protection of national sovereignty), executive power will not authorize government action that is coercive, punitive, intrusive or threatening in nature.
Minister for Immigration and Multicultural and Indigenous Affairs v Vardarlis (2001) 110 FCR 491 [“Tampa Case”]
Facts: On a Norwegian cargo ship, 438 refugees were part of people smuggling out of Indonesia. Captain sought to land at Christmas Island, but this was denied. Upon entering into territorial waters, they were immediately secured by special forces SAS and detained. All of the refugee applications were refused (since they were still on a Norwegian ship - law of the land is the law of the ship).
Issue: Vardalis (Victorian HR lawyer) argued that government action in detaining was unlawful and should have been allowed to process application.
Findings: Cth won in FC, as the Constitution recognised the retention of prerogative powers, which allowed the executive to protect the realm from invasions. The counter argument was that detaining and expelling tampa refugees involved an executive exercise of powers in defiance of an existing statute, i.e. the Migration Act. (Recall, the executive cannot exercise powers contrary to what is already provided by statute).
French J’s reasoning behind the deviation from what we understand as being the correct articulation of the law was that Australia has a sovereign right as a sovereign nation, to prevent people that are not part of the Australia community from entering into Australian territory. No where in the Migration Act was there an intention to extinguish the power of executive to act the way they did.
Beaumont J agreed.
Black CJ (in dissent): There is no residual prerogative power to exclude lawful non-citizens, and ‘the power to protect Australia’s borders during time of peace must arise from Statute.’ (But because Black CJ thought the case was a national sovereignty issue, this argument failed).
NB. The Executive now retains the power to behave in the manner demonstrated in this case by force of statute in sec 7A of the Migration Act 1958 (Cth), which operates retrospectively.
3. Statutory Interpretation
Two main points:
1) The words in the statute should be given their ordinary meaning.
• This literal or purposive approach to statutory interpretation is captured in s 15AA of the Acts Interpretation Act 1901 (Cth) which provides the construction of an Act should promote the purpose or object underlying the Act.
(2) Words of general application are read down so as not to apply to particular factual situations. Occurs when statute impinges on fundamental rights recognised by the common law.
• This protection operates by way of rebuttable presumptions that Parliament did not intend to:
o invade common law rights;
o restrict access to the courts;
o abrogate the protection of legal professional privilege;
o exclude the right to claims of self incrimination;
o interfere with vested property rights;
o alienate property without compensation;
o interfere with equality of religion; or
o deny procedural fairness to persons affected by the exercise of public power.
Common law approaches, assumptions and presumptions
Implied incidental power
Herscu v The Queen (1991) 173 CLR 276
Principle: An officer responsible for the administration of a state is clothed with a general authority and capacity to administer the statute.
Limitation of implied incidental power by three main principles:
1. Clear and unambiguous statutory language is required to authorize activity by a public official that is otherwise tortious or interferes with a fundamental right, freedom or immunity.
2. a statutory power must not be used for an unauthorised purpose.
3. activity that is ancillary in nature must complement, not supplement the statutory scheme.
Use of power for an unauthorised purpose and supplementary to the statutory scheme: Kent v Johnson (1972) 21 FLR 177 [“Telecom Tower”]
Facts: Telecom (now Telstra) sought to put up a transmission tower in Canberra. This tower was going to have restaurant and tourist facilities in it. The power allegedly only authorized tower for telegraphic purposes.
Findings: This was an ‘excess’ of the implied powers and considered supplementary rather than complementary.
Established freedoms and immunities: Coco v The Queen (1994) 179 CLR 427
Facts: Coco was convicted of offering a bribe to the Cth Officer, contrary to the Crimes Act s73(3). This hinged on evidence from tape-recorded telephone conversations via a listening device installed by police officers. The Police purported to act in pursuance of the Invasion of Privacy Act, which provided that the Judge could grant approval to use a listening device.
Findings: Whilst the Act authorized the listening advice, it didn’t authorize the unlawful entry (i.e. trespass) into the person’s home to store the listening advice. Therefore the evidence was illegally obtained. The act didn’t authorize what was otherwise a tortious conduct.
At ‘Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. … the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct. But the presumption is rebuttable … if there is a clear implication … if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless.’
In this case, it failed the test.
• Immunity from a breach of the law can only be from clear expression or pain intendment.
Pecuniary Burdens and Penalties: Attorney-General v Wilts United Dairies Ltd (1921) 37 TLR 884
Facts: During war time in Britain, the Food Controller (a government minister) recognised efficient and inefficient dairy producers. It set up a license scheme for all dairy producers, which penalized excessive production of milk by efficient dairy producers (in order to encourage them not to over-produce so they would not flood the market and the inefficient dairy production would be able to survive). The Food Controller argued that they were using the ‘Defense of the realms’ Act.
Findings: This was invalid as it was imposing a pecuniary burden. You cannot impose a penalty. Only parliament can do so. And this must be through unambiguous language.
Access to the courts
There is presumption that the legislature does not intend to deprive the citizen of access to the courts. (But note arguments concerning privative clauses and prohibitive fee schemes).
Fundamental Human Rights: Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273
Facts: Dealt with international convention on rights of a child. Australia ratified, but did not incorporate into municipal law. It provided that in any administrative decision concerning a child, the child’s best interests must be a primary consideration. Teoh applied for a permanent residency visa. Whilst waiting process, committed a drug offence > 2 years. Minister considered that Teoh had wife, children and was sole the bread winner, but still felt these were not compelling enough reasons to override the “bad character” under s501. Ordered his deportation.
Findings: The majority held that the decision was invalid. The ratification of the Convention gave rise to a legitimate expectation that the minister would act in conformity. Teoh was denied procedural fairness as he could not put forward evidence on the severe affects on his family.
Deane, Toohey, Gaudron JJ: With regards to conventions that are ratified, but not implemented in Australia, in the absence of statutory provisions to the contrary, administrative decision-makers needed to act conformably to the convention.
Involuntary detainment
A person can be involuntarily detained only by a finding of guilt by the Judiciary. But Chu Khen Lim at noted that an exception to Administrative, not punitive detention. For example, mental illness, quarantine, detention of immigrants seeking refugee status.
Al Kateb v Godwin (2004) 219 CLR 562
Facts: Al Kateb was a stateless person. Refugee claim was denied. Government had power to detain and process them, but it was not reasonably practicable that Al Kateb would be sent back home in the foreseeable future.
Issue 1: Did the Migration Act apply to Al Kateb?
Finding 1: Gummow and Kirby JJ applied a purposive reading. The Act was founded on the conception that those held in detention were going to be released eventually, once process completed.
McHugh, Hayne, Callinan and Hayden JJ (majority) did not agree. McHugh J applied a prima facie reading and thought the act authorized the lawful detention of non-citizens, even if they’re not removed in the foreseeable future.
Issue 2: Was this constitutionally valid?
Finding 2: Detention of non-citizens by executive is not in contravention of Chapter III, because the purpose of the detention is not punitive, it’s administrative.
(NB. Gummow argued that indefinite intention becomes punitive. Gleeson CJ sided with majority, but based his reasoning on the Aliens power to allow indefinite detention.)
5. Statutory Interpretation: Rule-making
The regulation is a “statutory rule” within the meaning of the Subordinate Legislation Act 1989 if it must be approved by the Governor. Has the Minister complied with this Act; in particular has a RIS been prepared, his prior notice of rule-making been given and has there been public consultation? If not, what is the consequence of non-compliance? The Act specifically provides that non-compliance with the procedures required by the Act does not effect the validity of the statutory rule.
The Regulation must also be tabled in Parliament in accordance with the Interpretation Act 1987 (NSW). That Act also provides for the consequence of non-compliance; viz failure to table does not affect the validity of the regulation.
Has the subordinate legislation been validly authorized?
Two main principles ought be noted at the outset:
1. The issue of validity is decided by a process of statutory construction applied to both the parent Act and the subordinate rule.
2. The court does not examine the wisdom or expediency of the subordinate rule.
Seeligson v City of Melbourne [1935] VLR 365 [Pamphlets]
Facts: The Local Gov. Act (VIC) provided that a council could make by-laws ‘generally for maintaining the good rule and government of the municipality’. The Melbourne City Council made a by-law providing as follows: ‘no person upon any street, footway or other public place shall give out or distribute….pamphlets etc.
Findings: The Supreme Court upheld its validity, because it complied with the purpose of the Act. The council was the best to determine this.
NB. You can have a very broad power, but very specific legislation. They can read it down to apply to certain circumstances. At It is important to remember that all legislation must of necessity be in more or less general terms, and it is not rendered any the more or the less invalid because an attempt to suppress an evil may conceivably brand as an offence some act which in particular circumstances is harmless.
Re Gold Coast City Council By-Laws [1994] 1 Qd R 130 [GCCC shops]
Facts: Local Gov Act (QLD) provided that a council could make by-laws ‘in its opinion necessary or conducive to the good rule and government of the area…’ GCCC introduced by-law prohibiting commercial activity on the road or adjoining land unless permit issued by council.
Findings: The by-law was too broad and thus declared invalid. It could potentially prohibit shops too, even though what it was intending to do was to prohibit stalls being set up. It would be too difficult to read down or sever and the council was instructed to re-draft.
The complement / supplement distinction
Shanahan v Scott (1957) 96 CLR 245 [“VIC Eggs”]
Facts: Marketing of Primary Products Acts (VIC) provided that the Governor could make regulations ‘necessary or expedient for the administration of the Act, or for carrying out the objects of the Act’. The Governor made Reg 44, providing that it was an offence of a person to place eggs in cold storage or subject them to preservative treatment. The purpose was to make it practically difficult in Victoria to store or sell eggs produced in NSW.
Findings: HC found this invalid. Dixon CJ, Williams, Webb & Fullagar JJ:
Such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorize the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But … will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.
… the regulation is an attempt not to complement but to supplement the plan of the legislation or…that is not confined to the same field of operation as the provisions of the Acts.
Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402
Facts: S164 of the Act provided that the Governor-General could make regulations ‘prescribing all matters… as may be necessary or convenient to be prescribed for giving effect to this Act.’
Findings: The GG could authorize for more effective administration of provisions actually contained in the Act, but could not vary or depart from any positive provisions made by the Act.
Dixon, McTiernan, Williams, Webb, Fullagar & Kitto JJ: A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operations which the Act marks out for itself.
The regulate/ prohibit distinction
Swan Hill Corporation v Bradbury (1937) 56 CLR 746 [“Prohibiting buildings”]
Facts: Municipal by-law prohibited the erection of any building unless approved by council.
Findings: This by-law was invalid on the basis that in essence it was declaring the erection of any building illegal, unless at the council’s approval. Instead should have expressed that any construction of building must have council approval first.
Dixon J: Prima facie a power to make by-laws regulating a subject matter does not extend to prohibiting it altogether or subject to a discretionary licence or consent. By-laws made under such a power may prescribe time, manner and circumstance and they may impose conditions, but under the prima facie meaning of the word they must stop short of preventing or suppressing the thing or course of conduct to be regulated…
• Prohibition may be valid if expressly authorized by the Act…
Foley v Padley (1984) 154 CLR 349 [“Mall Flyers”]
Facts: Rundle Street Malls Act (SA) provided that Council could make by-laws ‘regulating, controlling or prohibiting any activity in the Mall or any activity in the vicinity of the Mall that is, in the opinion of Council, likely to affect the use or enjoyment of the Mall’. Council then makes law that ‘no person shall give out pamphlet…without permission.’
* Distinguishable from Seelingson given direct authorization.
Issue: Argued that this should be invalid, because the provision was too wide.
Findings: This was not invalid. Court regarded the intention of parliament when dealing with the opinion of a reasonable person would form.
Gibbs J: The power to regulate, control or prohibit is in terms wide enough to include any degree or form of conditional prohibition and the subject of the power is not something indispensable to the life of the community, such as the erection of buildings.
The means/ ends distinction
Paull v Munday (1976) 9 ALR 245 [“Fire & source”]
Facts: Heath Act (SA) s94C provided that Governor could regulate for or with respect to… regulating, controlling and prohibiting the emission of air impurities from fuel burning equipment or any air impurity source’. The Governor made reg 7of the Clean Air Regulations providing that ‘no person shall… light, maintain or permit to burn any open fire on any land or premises without the written approval of the Local Board of Health’. Paull lit a fire, but argued that Reg 7 was not authorized by 94C, since 94C prohibited fire-lighting equipment, i.e. prohibition of the source, not the actual fire.
Findings: The regulation was invalid as it was beyond power.
But Gibbs CJ –
< 251> “A power to do one thing cannot be validly exercised by doing something different, even if the effect of what is done is the same as that which would have resulted from doing what was permitted. A regulation … is not valid if made for or with respect to other matters, even if its practical consequence is the same as that of a regulation for or with respect to the specified matters. A regulation cannot be upheld as within power simply because it appears to have no wider practical effect than a valid regulation would have; whether a statute allows certain means to be adopted, it does not permit the adoption of different means which happen to lead to the same end.”
Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629
Facts: An Act conferring power to make regulations ‘relating to the safeguards and measures to be taken for securing the safety and health of persons…’ did not support a regulation providing that ‘Every drive and tunnel shall be securely protected and made safe for persons employed therein’.
Findings: PC – ‘the power conferred by [the Act] related only to the means for achieving an end and not the creation of the end itself’: at 641. I.e. the regulation did not tell a contractor what measures it was to take to secure the safety of persons, but merely imposed an absolute duty to ensure safety.
Reasonable Proportionality and the purpose/subject matter distinction
South Australia v Tanner (1989) 166 CLR 161 [“Zoo & Avery”]
Facts: The Waterworks Act (SA), s10 provided that the Governor could regulate, control and prohibit the use of land within a watershed or within a watershed zone. The by-law provided that ‘no person shall erect, construct, enlarge or establish a piggery, zoo or feedlot on any land within a watershed’. Regulation defined ‘Zoo’ as ‘any building, enclosure, yard or structure on any land upon or within which any animals, birds, reptiles… are kept primarily for the purpose of display or exhibition.’
Tanner set up an avery.
Findings: It was a valid exercise of power. Provided the first articulation of the reasonable proportionality test, expressed in several ways:
• Whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose.
• Whether the regulation goes beyond the restraint which could reasonably be adopted for the prescribed purpose.
• There must be a directness and substantiality of connection between the likely operation of the regulation and statutory object to be served.
Largely about impression? The Avery was understood to fall within the notion of a zoo. There was evidence that the Avery could generate enough public interest to put it in the same category as a Zoo.
Brennan J dissented – lack of any attempt to provide factors for protection of area resource. The prohibition applying to the entire watershed area was too broad and needed more specificity. Thus it could not have been reasonably adopted as a means of fulfilling the statutory object.
2. The decision maker
Latin maxim delegatus non potest delegare: a delegate may not delegate to another person the power which has been delegated to them.
When the parliament vests power in one person, they are to use the power personally. The exercise of power by another is normally considered invalid. However this maxim is not absolute. Exceptions:
1. An express power to delegate
▪ Normally in writing.
▪ Delegate can exercise power in their own right.
2. An express power to appoint an authorised officer
▪ Not always, albeit normally in writing.
▪ Understood at times as a matter of admin necessity.
3. An implied power to authorize
4. An implied power to delegate (‘Carltona principle’)
Express powers of delegation
Most of the common law principles that we will look at and you have been asked to read about relating to the delegation of power under an express power of delegation have been codified:
Secs 34A, 34AA and 34AB of the Acts Interpretation Act 1901.
Delegates must exercise their own discretion
The minister retains the power to exercise the power, but the delegate has the right to exercise the power at their own right and discretion. Minister can’t enforce the manner in which the decisions are to be exercised. Minister may issue guidelines, but it cannot be compulsory. A failure to follow the guidelines does not mean that the exercise of power is invalid.
Sec 34A Acts Interpretation Act 1901 (Cth)
Where, under any Act, the exercise of a power or function by a person is dependent upon the opinion, belief or state of mind of that person in relation to a matter and that power or function has been delegated in pursuance of that or any other Act, that power or function may be exercised by the delegate upon the opinion, belief or state of mind of the delegate in relation to that matter.
There are four categories which of authorized decision making:
1. Principal – authorized decision maker in the legislation.
2. Delegate – to whom the power has been delegated to
3. Agent – able to exercise the power under exceptional circumstances on behalf of principal and delegate, where there is a ‘practical administrative necessity’.
4. Administrative Assistant - unable to exercise power but is able to assist in the making of decision – i.e. research etc.
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 {“The alter ego” principle}
Principle: A power conferred by statute upon a minister can ordinarily be exercised on his or her behalf by another officer, without the need for any formal delegation. Implied purely as a matter of necessity.
• O’Reilly deals with the notion that the minister can carry out business through its responsible officers. But the decision is that of the Minister, not the delegate. NB. this is not always the case. [E.g. senior public servants, such as departmental secretaries and sub-commissioners are able to authorize junior employees to act for and on their behalf]. Departmental officials may act in the name of the Minister.
O’Reilly v State Bank of Victoria (1982) 153 CLR 1 [“Deputy Tax Commissioner”]
Facts: s264 of Income Tax Assessment Act gave Commissioner of Taxation the power to require production of books documents etc. Commissioner delegated to Deputy Commission, who in turn authorized a tax officer.
Issue: Could the commissioner act through a duly authorized officer and not exercise the power himself?
Findings: Gibbs & Wilson JJ based conclusion on administrative necessity.
Gibbs CJ : The notice may be given by the authorized agent of the designated person, whose act will be the act of the principal, unless the statute on its proper construction requires the notice to be issued only by the person who is designated. [Refers to Carltona] … when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his department.
Although the Act itself contemplates that the delegation will only be to a Deputy Commissioner, this was not practicable and it seems that the Parliament must have known a practical necessity that the powers conferred on the Commissioner by the Act should be exercised by the officers of his Department who were acting as his authorized agents.
Circumstances in which the general principle applies
A power to authorise cannot be implied where…
• the minister’s power is by way of review of his or her departmental ecretary: Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363
• where the minister’s function under the legislative provision ‘is a central feature of the legislative scheme’: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 38, per Mason J.
To determine whether the power must be exercised personally, you must look at nature, scope and purpose of the power. If it’s a routine admin task, probably not personal exercise. But if there is likely to be serious and drastic consequences, it probably needs personal exercise.
Administrative necessity
• Volume of the decision-making.
• Does not interfere with individual rights.
• E.g. In O’reilly, it was considered that for the commissioner or deputy com. to deal with the taxation of millions would reduce to chaos.
Where there is an express power of delegation
• An express incorporation of a power to delegate does not necessarily extricate an implied power. See O’Reilly at
• However, it is a more likely argument that there is an implied power to delegate.
Nature of the power
• O’Reilly: Gibbs J – Must evaluate the nature of the power and how serious the consequences are.
Re Reference under section 11 of Ombudsman Act 1976 for an advisory opinion: Ex parte Director General of Social Services (1979) 2 ALD 86 [“Daniels signature”]
Facts: Under S14, Director-General of Social Services could delegate power under Social Services Act 1947 (Cth). The delegate, Mr. Prose, had signed a letter affirming the refusal of unemployment benefit to a school leaver. Letter signed as “L J Daniels, Director-General”. Mr. Prowse then signed own initials alongside.
Findings: The tribunal held that the letter was an invalid exercise of delegated power. : Where relevant power is:
1. Not delegable, the only acts which the power can be exercised:
a) Acts of the authority
b) Acts which, having regard to the nature of the power, may authorize another to perform on his behalf and which have been so authorized. [Carltona principle] (may use name of authority)
2. Delegable, and has been delegated, the delegate may without further authorization:
a) Act in the effective exercise of the power
b) Acts are not treated as vicariously done by the authority, or an agent to exercise the authority’s power; he may validly exercise the power vested in him. (Must use Delegate’s own name)
It must be clear that the decision was made under the delegate’s own right. Instead, on its face, it would have mislead the applicant into believe the decision was made by the director-general, and falsely conclude that there was no further right to appeal.
Uncertainty
Certainty is a potential criterion of legal validity of legislative instruments. King Gee is an expression of the common law view that a requirement of certainty only ever originates, expressly or impliedly from the statute being administered. Certainty is not a head of review unless the subordinate act expressly or impliedly requires certainty.
King Gee Clothing Pty Ltd v Commonwealth (1945) 71 CLR 184
Principle: Dixon J I am not prepared to subscribe to the doctrine that certainty is a separate requirement which all forms of subordinate legislation must fulfil….
…uncertainty, as a test of validity, arose form the nature of the power. On this footing, in the end, the question comes back to ultra vires.
• Endorsed by: Television Corporation Ltd v Cth (1963); Pyneboard Pty Ltd v Trade Practices Commission (1982)
• Note that s 5(2)(h) of the ADJR Act (Cth) provides a ground of review for an exercise of a power in such a way that it is uncertain.
Issue is whether the administrative decision, or delegated legislation, is so uncertain that it cannot operate with certainty. The court must first endeavour to give the decision or instrument a sensible, ascertainable meaning. Ultimately, the degree of certainty required will depend on the subject matter and purpose of the legislation and the understanding of those to whom the decision is directed.
7. JUDICIAL REVIEW: LEGISLATIVE SCOPE & PURPOSE
Grounds of judicial review
1. Acting for an Unauthorised (or Improper) purpose
The person to whom a statutory power is conferred, can only exercise the power only for the purpose for which it is conferred. If for any ulterior purpose, it is invalid. S5(2)(c) ADJR – deals with judicial review for exercise of power for purpose other than for which power is conferred.
Note:
• Little jurisprudence, because there’s very little evidence.
• But court is enlivened to the possibility.
• Generally adjudicates only on the evidence before them.
Municipal Council of Sydney v Campbell [1925] AC 338 [“Martin Place”]
Facts: Concerned the case where Martin Place was going to be extended. The respondents sought an injunction to stop the council from resuming their land. Argued that it was not for the purpose of an extension as authorized by the Act, but rather to retain and rent out the place, so that rent earnings could be used to finance the extension. Since this was a council decision, it was much easier to prove evidentially. They applied for injunction. Succeeded first time. Council tried a second time and asked to be reviewed on the language of the Statute. Street CJE gave permanent injunction.
Findings: Court held that this was valid because it was clearly inferred that the purpose of the second attempt to resume the land was identical to the first. A body such as the Municipal Council of Sydney, authorized to take land compulsorily for specified purposes, will not be permitted to exercise its powers for different purposes, and if it attempts to do so, the Courts will interfere: Whether it does so or not is a question of fact.
Samrein Pty Ltd v Metropolitan Water, Sewerage & Drainage Board (1982) 41 ALR 467 [“JV with GIO”]
Facts: Similar situation as Campbell. The Board was authorized by the Metropolitan Water Sewerage and Drainage Act to undertake a compulsory resumption of land for any purpose pursuant to the Act. Tried to erect 42 story building on a block of land. The building development was a JV with GIO. However, the Board only required 21 stories for its own purpose. The rest was for an ulterior purpose, i.e. to provide financing to enable the Board to acquire the office space it needed.
Findings: The true, substantial and dominant purpose was to get accommodation. Seeking to do this via joint venture in order to secure finance was a subsidiary purpose.
Even an improper purpose, so long as it’s not a substantial purpose will be valid. (compare to Kent v Johnson)
Distinguished Thompson v Randwick Municipal Council (1950) 81 CLR 87, at where no attempt would have been made to resume the particular land if it had not been the desire of the council to make a profit from the resale and to reduce the cost of construction of the new road.
In this case, the provision was ‘both the initiating and the abiding purpose of the resumption’
R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981) 151 CLR 170 [Aboriginal land]
Facts: Unalienated land claim on Peninsula. Aborigines wanted to make it clear that they held the land. Under r 5, the town boundaries of Darwin were extended to include much of the Cox Peninsula. Council challenged the validity of this to the Aboriginal Land Commissioner (i.e. Toohey J), arguing that R5 was invalid as it was made for an unauthorized purpose. Toohey J refused to order discovery of government docs, and thought an inquiry could not be held on ‘ulterior purpose’, since it was an act of the Crown (mostly prerogative).
Issue: Was the claim open to review, especially for an unauthorized purpose?
Finding: HC majority held that the exercise by the Administrator of the power conferred by the Act could be reviewed on the ground of unauthorized purpose.
The Planning Act could be reviewed, because it was a statutory authorization. It was fundamental to the separation of powers doctrine and it was unconstitutional, unless the parliament seeks to exclude judicial review, at the instance of the litigant.
Gibbs J felt it was open to the court to review the exercise of power for the purpose of which the statute doesn’t authorize: < 192 & 193 > No convincing reason can be suggested for limiting the ordinary power of the courts to inquire whether there has been a proper exercise of a statutory power by giving to the Crown a special immunity from review. IF a statutory power is granted to the Crown for one purpose, it is clear that it is not lawfully exercised if it used for another. The courts have the power and duty to ensure that statutory powers are exercised only in accordance with the law. They can in my opinion inquire whether the Crown has exercised a power granted to it by statute for a purpose which the statute does not authorize. The onus of proving that the Crown did act for an unauthorized purpose lies on those who make that assertion.
Stephen J: Says about the same thing. Open to us whether the exercise of power was valid within the scope: Unless a Parliament, acting constitutionally, can be seen from the terms of its grant of power to have excluded judicial review, the courts will, at the instance of a litigant, examine the exercise of powers so granted, determining whether their exercise is within the scope of Parliament’s grant of power. This will be so whether the grant of power be to the representative of the Crown, to a Minister of the Crown or to some other body or person.
Mason J examined the doctrine of prerogative powers. Sovereign power was immune to attack, based on Mala fides: There was no doubt that an exercise of prerogative power was considered to be immune from attack for mala fides. General rule doesn’t apply anymore. Anyhow, it did not matter because here, it was not a prerogative power, but a statutory discretion.
Murphy J was not in dissent for the decision but in dissent on the issues. It’s a breach of separation of powers. Not for judiciary to scrutinize subordinate legislation. That is the power of parliament.
Schlieske v Minister for Immigration & Ethnic Affairs (1988) 79 ALR 554 [“Allegations”]
Facts: Appellant was twice arrested and sought to be detained. Held in custody and extradicted for drug offenses. On the second instance, the Minister for Immigration issued a deportation notice pursuant to S20 of Migration Act: Deportation of human persons (with criminal records). But the appellant didn’t have criminal record, only allegations.
Findings: This was an unauthorized exercise of power by the Federal Minister, as it was used for the improper purpose of a ‘disguised extradition’. Wilcox J at The relevant principle is that the power to deport a prohibited non-citizen, while wide and unqualified by any statutory condition, must be exercised for the purposes of the Migration Act, that is to say, in aid of the sovereign right of this country to determine who shall be permitted to enter it and who should be excluded therefrom.
Statutory indeterminacy – How to determine the purpose of the Act.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [“NZ TV”]
Facts: AVI Act had 3 objectives: (i) To give effect to the policies and direction of govt; (ii) To ensure Aus TV is controlled by Australians for the benefit of Australians; (iii) to perform in a manner consistent with Australia’s intl treaty obligations.
Issue: To produce one harmonious concept of the purpose.
Findings: The treaty obligation objective was to prevail, and that the broadcasting standard which gave preference to Australian content was inconsistent with this obligation. So an Act purporting that objective was an invalid Act.
Test: ‘The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’… Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court to determine which is the leading provision and which the subordinate provision, and which must give way to the other.
• The same is effectively said in the Acts Interpretation Act 1901 (Cth) at s 15 AA:
15AA Regard to be had to purpose or object of Act
(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
2. Considering Irrelevant Matters
• A position can be invalid where an irrelevant consideration has been taken into account. S5(2)(a) ADJR
• Two issues commonly arising:
(a) What factors were taken into account before the decision maker?
• Look at what was on the record. (i.e. Oral evidence, documents before the decision maker, submissions,)
(b) Of the matters taken into account, were any irrelevant.
• Refer to statute. Determine whether the decision maker had jurisdiction to look at those matters, by examining the ‘nature, scope & purpose of the Act’.
Water Conservation and irrigation Commission (NSW) v Browning (1947) 74 CLR 492 HCA [“Irrigation & Italian”]
Facts: Irrigation Act 1912 (NSW) s145A provided that the holder of a farm lease must not transfer that lease to another without consent of Irrigation Commissioner. Granting or refusing of consent ‘shall be entirely in the discretion of the Commission’. S241 provided that leases could only be held by alien subjects provided that they were naturalised.
Commissioner refused to consent transfer from Mr C to Mr B (who was Australian citizen, but of Italian birth). Considerations: The irrigation project was a very valuable resource, best allocated to returned soldiers. Italians weren’t considered to be good irrigation farmers.
Supreme Court held that the decision was invalid, being based on irrelevant considerations. The discretion conferred was not supposed to be arbitrary or uncontrollable, though wide, but could be exercised ‘with a view only to promote the object of the Act’, namely to see that, so far as possible, the irrigation farms are occupied by capable and desirable farmers’.
Findings: HC unanimously allowed the appeal against SC decision. Dixon J: the commission was an administrative body entrusted with a full discretion, unconfined so long as the discretion fell within the scope and purpose of the act.
It was not the purpose of the Court to look into a question of policy. The width and variety of the power conferred were such that the commissioner could take into consideration matters of policy including those which are not considered by the Court to be just and fair.
The management and control of irrigation leases were a question of fact, and so long as discretion was exercised in good faith, not a finding for which the court could interfere.
This principle has been consistently approved in later decisions. Both O’Sullivan at and ABT at held that public interest considerations can be taken into account, unless there was a positive indication that they were to be excluded.
O’sullivan v Ofara : Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made.
R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979)
Issue: Whether Broadcasting tribunal could refuse consent of the transfer of radio broadcasting license, on public interest ground.
Findings: The power conferred by the Act which required that the transfer of the license required the consent of the tribunal, meant that public interest considerations fell within the scope of this power. The general rule: A discretion, expressed without any qualification, is unconfined except in so far as it is affected by limitations to be derived by scope and purpose of statute.
O’Shlack v Richard council
Facts: Dealt with the wide discretion for Court to reward costs. Land Environment Act provided a special interest standing. (Person did not need to be aggrieved.) Mr. O brought action to protect Koala habitat which was going to be affected by Richmond river works. Findings: Public interest of this nature should not necessarily attract a cost order against the unsuccessful applicant, because it would be prohibitive against applicants.
Murpheyores Inc Pty Ltd v Cth (1976) 136 CLR 1 [“Fraser Island”]
Facts: Murpheyore held mining lease on Fraser Island. Wanted to export sand, but could only do so with consent from Minister under Customs Regulations (Cth). Minister decided to conduct an enquiry into the environmental impact of the mining under the Environmental Impact Proposals Act. Murpheyore argued both unconstitutionality and unlawfulness in considering the environmental impact.
Findings: Challenge was rejected by HC. Stephen J held that the Act covered such a wide range of prohibitions that it would be wrong to impose factors that could not be taken into account. It wouldn’t be incorrect or inappropriate to take into account the environmental impact, and was thus lawful.
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 [“Milk Scheme”]
Facts: The Agricultural Marketing Act established a milk marketing scheme, to provide for self regulation of dairy industry.
The South Eastern region urged the Board that they should be paid more for their produce. They sought pursuant to the Act, that the Minister should conduct investigation on complaints made on the operation of the scheme. This was expressly provided for in Act. But Minister refused to appoint a committee for reasons that the complaint made were unsuitable and too wide for investigation. He contended that because of the unfettered discretion, he only needed to consider the complaint fairly. He deferred to the Board.
Findings: These reasons were held to be bad in law. Minister was directed to consider the complaints.
Lord Reid:
• Parliament must have conferred the discretion with the contention that the Act should be construed as a whole. Section provided that minister had the power to amend or revoke the scheme.
• Even the widest issue should be investigated if it was genuine and substantial.
Lord Pierce
• Parliament intended that an independent committee should be set up, so that the report would be tabled before parliament and parliament can consider this. By not doing so, it was thwarting the intention of parliament, to be able to scrutinize the complaints.
Roberts v Hopwood [1925] Ac 578 [“Council Wages”]
Facts: Metropolis Management Act empowered the council to pay council employees whatever wages they saw fit. Over a two year period, they said that it should act as a model council and pay a model wage of an increase of 4 pounds a week. The district auditor disallowed this increase, as it was contrary to law, imposing a surcharge.
Findings: Court held that this surcharge was correctly imposed and that the council had acted contrary to law. The council, in maintaining a standardised wage rate for each employee, had failed to take into account the nature of the work being performed, the significant decline in post war cost of living, and the standard rate paid by other industries. ‘…The council should only do what justice and common sense would demand….fair, just and reasonable’
The wage increase was disproportionate and unjust. It was a penalty imposed on rate payers. The wages were gifts and gratuities in disguise.
Ex parte SF Bowser & Co v Re Municipal Council of Randwick (1927) [“Petrol pumps”]
Facts: Local Government Act provided that the local council could on such conditions as it sought to impose, grant permission to a person to place a structure on a public place. Pursuant to this, the council gave permission to a garage owner to erect two petrol pumps, on the condition that they were both Australian made machines.
Finding: The Court held that the council did not have the power to impose these conditions, as they were in excess of its powers. Street CJ (Ferguson and Davidson JJ concurring) said that the council was entitled to act in the public’s interest, so long as it would be within the limits that were entrusted to it by the legislature, via the Local Government Act in consideration of municipal interests.
The origin of the product is really not an issue that would affect at municipal level. The question whether a policy should be adopted of preference to goods of Australian origin over those of foreign countries is a question of general concern and general interest to be dealt with by the Legislature of the country, and not by a body exercising limited powers of local government within a limited area.
3. Failing to Consider Relevant Matters
• Almost asking the court to consider merits review. So quite difficult. Essentially a defacto merits review.
• A decision can be held to be invalid where a decision maker has failed to consider a relevant matter: s5(2)(b) AJDR
Breach can happen in two ways:
1. By a failure to consider a relevant matter to which they had an active or constructive knowledge. Person challenging would have to establish two matters: That there is an express or implied obligation to consider a particular matter; and there was failure to discharge this obligation.
2. By failure to conduct an inquiry to obtain potentially relevant information: Duty to inquire. (Found in statute)
(NB. Part 8 of the Migration Act specifically omits this head of review. It is much easier to argue based on the same points based on natural justice.)
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 [“Nursing fee”]
Facts: Applicant conducted a nursing home for which it received a Cth subsidy. It was required under National Health Act, to obtain approval to increase fee payable for nursing home patient. At first instance, permanent head of health refused. This was then reviewed by the Minister. Before making decision, Minister had to refer this application and enquiry to the nursing home’s fee review committee. The report came back and the fee increase was not acceptable. Minister simply wrote ‘agreed’ without reading the report.
Issue: The minister did not reach an independent decision, so they failed to take into account relevant issues that were raised by the applicant in support of an application for fee increase.
Deane J heard matter on first instance, and his reasons were affirmed by CA at
1) The power conferred on the Minister was a power that had to be exercised personally. It could not be exercised by a responsible officer of the department. But the minister was nonetheless entitled to adopt the report and any consideration contained in it. However, in doing so, he accepted the burden of any error of law in the report, and was thus not immune from an attack based on an error of law.
2) The statute was silent on the matters to be taken into account. Whilst this could be construed as providing an unfettered discretion, the nature of the statute seems to imply limits to this discretion:
… it is largely for the decision-maker, in light of the matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to taken into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.
Peko wallsend (HC) [“New info.”]
(Previously examined on polycentricity aspect)
Facts: Concerned the second stage of turning Kakadu into a national park. Peko-wallsend were miners who had a mining lease granted by federal government. Found a uranium deposit. Aboriginal land rights (NT) Act s50 provided functions for aboriginal land commissioner. Aborigines could apply for claim of unalienated crown land.
Commissioner was to ascertain whether the applicant was the traditional land owner and recommend to the Minister for grant to be made. Commissioner then had to comment in report on any detriment to persons or communities that might result if claim succeeded. S11 provided that where commissioner recommends for grant to be made and minister is satisfied, then should recommend course to Governor General.
Commissioner held inquiry and recommended grant be made to 10% of block. Commissioner commented on detriment to Peko, but wasn’t aware that its uranium entire deposit lay wholly within this block. The Minister at the time was succeeded by another minister, who without reference to subsequent information, recommended to the governor-general that the grant should be made.
Issue: Where new information is in possession, or where the position has changed since a prior report…
Finding: Gibbs CJ:
If it is a material fact, the Minister is bound to consider it. If it was not unreasonable for the Minister to rely on a departmental summary, and if there are insignificant or insubstantial omissions of fact, it does not give rise to complaint.
If there is in the possession of the Minister, at the time when he considers the matter, material which shows that the position has changed since the Commissioner made his report, or that for any reason the Commissioner’s comments were based on an erroneous view of the facts, the Minister is bound to take that material into account.
Mason J notes that because the omitted factors could have affected decision (were substantial and significant), the minister had to take into account. From - goes through 5 areas that you need to know to understand this head of review.
Failure to take into account a Relevant Consideration
1. Where decision maker ‘ought to have regard to’
2. Factors that decision-maker is bound to consider, determined by construction.
i) Express:
i. Exhaustive
ii. Inclusive
ii) Implicit: Subject matter, scope and purpose. Where discretion is unconfined, still refer to these factors.
(e.g. Water Conservation v Browning)
3. Where a consideration is so insignificant, that the failure to account would not have made at material difference.
4. Limited role of Court to review decision must be kept in mind. Not the function of court to substitute decision, but only to limit exercise of discretion. (Wednesbury)
5. May take into account broader policy reasons, particularly re: (2) when exercising a broad discretion.
This has been supported in Yusuf 206 CLR 323 at per McHugh, Gummow, Hayne JJ: Question of fact, material to ultimate decision, are determinable by way of subjective thought processes of decision maker, not by the objective or external assessment of the court. Court said that the factors to take into account as relevant, is purely up to the decision-maker on the side. When decision maker looks at the issues in good faith, you cannot interfere.
(understand Yusuf in conjunction with peko wallsend)
Brennan J qualifies on what Mason says at : Minister is bound to enquire where (i) information is credible; (ii) information is significant; (iii) an adequate reason for non-disclosure of information to the Commissioner during his inquiry has been disclosed; & (iv) the Minister decides that, if the information were true, it would affect his decision.
Department doesn’t need to draw Minister to every fact and detail. Part of department’s function is to analyse and evaluate what Minister may wish to have regards to. This is necessary for efficient performance of departmental function.
Minister must draw attention to ‘salient facts’.
Tickner v Chapman (1995) 57 FCR 451 [“Hindmarsh Bridge”]
Facts: Chapman wanted to build Hindmarsh Bridge. But Minister said that construction of bridge would destroy sacred sites. Pursuant to Act, set up an enquiry, to support declaration made by Minister that the area was of significance to Aboriginal people. The report had to make representations to the Court and due considerations had to be given.
Minister appointed Professor Saunders to make her report, which contained over 400 submissions including an anthropologist and 2 confidential lecturers on ‘secret women’s business’. After only two days of receiving the report, Minister made declaration and gave evidence to Justice O’Claghlin that one of his assistants had read it.
Findings: Court said that this wasn’t good enough. Minister had to look at the report personally and could not delegate to departmental officer, because the decision was going to affect the rights and interests of numerous third parties.
Black CJ held that it wasn’t enough to say that the secretary or researcher had read the secret women’s business. It may be against aboriginal custom to examine the information, but in a situation where you’re exercising such contentious discretion, you must look at it and waive the custom.
Supported by Burchett and Kiefel JJ If the Aborigines wished to avail themselves to legal remedies, they had to let go of their preservation of confidentiality.
Hindi v Minister for Immigration & Ethnic Affairs (1988) Not hugely important
Facts: A citizen of Lebanon was coming to Australia on compassion grounds. Entire family could no longer live in Liberia, as there was social unrest. Minister’s delegate rejected application, and said that ‘they had taken everything into consideration’ without evidencing what they actually took into consideration.
Findings: Shepphard J: the decision maker must consider all relevant materials placed before him, and give him proper, genuine, realistic consideration.
• This has been approved and applied in FC in minister for immigration in Pashmforoosh 18 administrative law decisions 77.
8. JUDICIAL REVIEW: PROCEDURAL FAIRNESS
Judicial review: procedural fairness
What is natural justice?
AJDR Act at s5(1)(a)
• Mostly applies to decisions that are going to adversely affect the interests of a person or corporation. (E.g. Decision to cancel a license, benefit, dismissing employee, imposing a disciplinary sanction, damaging reports.)
• Less likely to apply to routine, policy-making etc.
• Just because something appears to be unfair/unreasonable doesn’t mean it’s not in accordance with procedural fairness.
There are 2 primary rules underlying the concept of natural justice:
1. audi alteram partem - (“hear the other side”) ie a person whose interests will be affected by the decision should be given a hearing before that decision is made.
2. nemo debet esse judex in propria sua causa - (“no one shall be judged in his own case”) i.e. the decision maker must be unbiased. If a person has preconceived opinions, a vested interest or personal involvement in a matter they should not attempt to settle that matter. Conventionally, a person is expected to declare any interest and step aside if it could be deemed that the decision was arrived at for reasons other than the merits of the case.
A fair hearing
To comply with natural justice, a hearing should conform to the following requirements:
1. A hearing appropriate to the circumstances
• Not necessarily judicial hearing, could just be an exchange of letters, or a face-to-face oral hearing.
2. A hearing before the decision
• You can have a preliminary decision prior to hearing and the outcome can be known.
3. Full disclosure before the decision
• A person is entitled to know before the decision is made, the case they are going to meet. Normally, it will be described for them, the decision that will be made on and on what basis.
• Important that any info that will be adverse or prejudicial is disclosed.
4. A reasonable opportunity to respond
• Depends on the complexity of the issue.
5. Genuine consideration of any submission
• Not essential that a hearing is undertaken personally by the decision-maker. However, the decision-maker must be fully aware of everything that was written by that person, and give it proper consideration. (Latter is unnecessary if the power can be delegated i.e. Caltona principle).
Other aspects of natural justice
1. Absence of bias
• Apprehended biased
2. Evidence to support a decision or the probative evidence rule
• Reasons must be cited and cannot be speculative. Evidence must be relevant to the fact in issue.
3. Inquiry into disputed matters or duty to inquire
• A duty to enquire is normally brought about when a person raises a new issue, or casts doubt on an issue that is very central.
When Natural justice applies Three points understood to frequently overlap:
• The implication question: Is there an implied duty to accord natural justice?
• The exclusion question: Has the legislature evinced an intention to exclude the obligation to observe one or other of the requirements of natural justice?
• The content question: what kind of hearing is required to be given?
1. The Implication Principle
The common law approach
• The exercise of power affecting rights will trigger intervention (i.e. natural justice will be afforded).
• Applied, unless legislative intention to exclude it.
Cooper v Board of Works for the Wandsworth District (1963) 143 ER 414 [“house demolish”]
Natural justice – Duty to observe
Facts: Cooper brought an action against the Board of works, which demolished his house. Board argued that this was justified by s76 of Metropolis Act, which stated that they could demolish any house that was built without consent. Did not provide opportunity to respond.
Findings: Rule discharged. Although the Act did not require notice and a hearing to a party before his house was demolished, common law principles of natural justice supply them. Court disagreed with Board. The Board was acting in a judicial capacity and the principle that ‘no man shall be deprived of his property without an opportunity of being heard’ is applicable. Deprivation of property requires an opportunity for people to defend. There could be no harm to the Board from hearing the plaintiff before they subjected him to so serious loss. S76 carried such enormous consequences that the right to be heard was undoubtedly implied. The requirement of a hearing serves the public order, does substantial justice and fulfils the purpose of the statute.
Ridge v Baldwin [1964] AC 40 [“Constable dismissal”]
Natural justice – Duty to observe – Effect of breach of the principles
Facts: Ridge was chief constable of police. Dismissed based on corruption. Decision made pursuant to legislation, which provided the power to suspend or dismiss a constable for negligent conduct in duty. Rights and reputation was severely affected (especially his pension rights).
Findings: The appeal must be allowed. There is ‘an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation’ (per Lord Reid). If you are going to interfere, must provide opportunity to be heard. Where the power to be exercised involves a charge made against the person who is dismissed, the principles of natural justice have to be observe before the power is exercised. Such a decision given without regard to the principles of natural justice is void. Accordingly, the dismissal of the appellant was null and void.
Kioa v West (1985) 159 CLR 550 [“Departmental Report”]
Natural justice – Duty to observe - Deportation
Facts: Concerned 2 Tonga citizens and their daughter and s5(1)(5) Deportation Act. Applied for review of deportation order and refusal of temporary & permanent entry Visas. The departmental paper prepared raised issues that were attached to an interview conducted with Kioa. Made a no. of submissions in the interview, which were dealt with in the report but taken out of context. It became more prejudicial and given a ‘departmental flavour’.
Substantive Issue: Should Kioa have been given a copy of the report and an opportunity to respond.
Arguments:
1. ADJR’s implied application of the principle of natural justice
Because ADJR has a head of review for denial of natural justice, it must be inferred that the principles of natural justice would also apply to the Acts affected by the ADJR Act.
At Mason J thought this wasn’t the case. The ADJR Act doesn’t impose an obligation that the rules of N.J. should be applied to every decision to which that Act applied
2. Common law doctrine of procedural fairness
Mason says that when a person’s rights or interests are to be affected by a decision, there is a prevailing expectation on their part that they will be afforded an opportunity to be heard.
Natural justice: … when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it… [Right or interest relates to] personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.
Procedural fairness: more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e. in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.
Finding: Per Mason, Wilson, Brennan and Deanne JJ (Gibbs CJ dissenting): Appeal allowed. Because the decision maker decided to reject the application based on the information obtained from the departmental report, Kioa should have been given an opportunity to reply to those statements, especially those considered highly prejudicial. The rules of natural justice apply to an exercise of power under the Migration Act 1958 (Cth) to order the deportation of a prohibited immigrant. Earlier cases to the contrary, for example, Salemi v Mackellar (No 2), have been superseded by legislative amendment. The Kioas were denied procedural fairness by the failure to provide them with the opportunity to respond to material in the departmental submission which was prejudicial to them, particularly the allegation that Mr Kioa had been actively involved with persons who were seeking to circumvent Australia’s immigration laws. The likely effects of deportation of the Kioas on their daughter, Elvira, who was an Australian was a relevant consideration to be taken into account by the delegate of the Minister, but these had been property considered. Although general humanitarian principles needed to be considered by the delegate, there was no legal obligation to take into account various provisions of the International Covenant on Civil and Political Rights or the Declaration of the Rights of the Child.
3. Legislative intention to observe the procedures of natural justice
Brennan agrees with Mason of the common law doctrine of natural justice being relied upon. But argues that the application of natural justice is to be defined by the statute. I.e. the only way you can say you’ve been denied natural justice, is to look at the scope of the statute. He warns against people willy-nilly saying they’ve been denied procedural fairness.
There’s not just an automatic right on procedural fairness on the basis that it should be afforded. If the power is capable of affecting good or affecting ill with regard to the interests of a person, then there probably will be a duty of natural justice. He indicated that the extent to which this is to apply must be ascertained by the statue creating the power to make the decision.
: A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise. The person … does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made.
Deane J at : In the absence of a clear contrary legislative intent, a person who is entrusted with statutory power to make an administrative decision which directly affects the rights, interests, status or legitimate expectations of another in his individual capacity is bound to observe the requirements of natural justice or procedural fairness.
Powers of based squarely on policy considerations (O’Shea) or legislative nature (ie Bread Manufacturers) are examples of instances where the presumption of a fair process being a prerequisite to lawful decision making will be rebutted.
State of South Australia v O’Shea (1987) 163 CLR 378 [A state case which examines prerogative powers]
Natural justice – Legitimate or reasonable expectation – Release on licence
Facts: Sec 77 of criminal law empowered a judge to convict criminal offences against young children and order detainment at her majesty’s pleasure. Sec 7a – the governor, might by recommendation, see fit that the person be released. Sec 64(5) of correctional services – provided that parol board is not to recommend to governor in council, the release of a person unless 2 medical practitioners had examined him and that he was fit to be released. O’Shea was incapable of controlling sexual instincts and was detained.
• 2 medical practitioners examined him and said he was fit to be released.
• Board considered reports at meeting, which offender had attended. Recommended that Mr. Oshea be released on various recommendations.
• Governor-general was then supposed to decide whether to act on recommendations
• But recommendations were intervened by parliament (i.e. the cabinet), who recommended that O’Shea should not be released.
• So Governor did not follow the board’s recommendations.
Issue: Did O’Shea get procedural fairness?
Findings: Per Mason CJ, Wilson, Brennan and Toohey JJ (Deane J dissenting): Natural justice had not been denied. O’Shea was not owed a duty to be accorded with P.F. The prisoner by his oral and written submissions to the Board had been afforded the opportunity of placing all relevant material before the ultimate decision-maker. Cabinet was concerned with issues of public interest. Cabinet’s advice to the Governor related to matters concerning the public interest and these were essentially policy and political considerations. If O’Shea given an adequate opportunity to respond to the board on public interest issues, that would suffice, as the cabinet was reconsidering the material that was already raised before the Board. O’Shea may have hoped to be released but hope is not enough to ground a legitimate expectation.
Wilson and Toohey JJ – the statute gave unfettered discretion as to what public interests are required. They were happy to leave public interests issues to the parliament where it’s best dealt with, albeit that it was not an ideal way of protecting individual rights.
Brennan J - refers to his judgment in Kioa v West and focussed on statutory intention.
Deane J (in dissent) – If a person is deprived of their liberty, they have to be afforded N.J. at every step of the decision making.
Jarratt v Commissioner of Police for New South Wales (2005) 221 ALR 95; (2005) 79 ALJR 1581 [“Commissioner dismissal”] ^^
Facts: Jarrett a deputy commissioner was fired. Similar to Ridge v Baldwin provisions. Power to remove people at any time. At first instance, Simpson J disagreed, finding that Jarrett had been invalidly removed from office as he was not afforded PF.
Issue: Commissioner argued that his removal was just an exercise of crown prerogative, so PF did not apply.
Findings: HC said that even though case may seem to be dealing with crown prerogative, the power of the governor to dismiss police officers under s51, required the exercise of procedural fairness on the basis that it was a statutory power that was being exercised. Court will imply into a statute a duty to accord procedural fairness or natural justice.
Jarrett was dismissed under his employment contract and under the Police Act. The Police Act did not specifically state, nor exclude grounds of PF. Where the dismissal was made in pursuance to the Act, there was a duty that had to be complied with, which abrogated the crown prerogative power.
Legislative Implication
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Facts: Miah, Bangladesh citizen, applied for a protection visa under Migration act, Sec 65 (a person to which Aus owed an obligation of protection for refugee convention.) Claimed fear of safety on political grounds. By time of application, political situation in Bangladesh had changed. Delegate relied on U.S. state departmental reports and reuter business briefing and refused application. Miah made s75(v) application to HC.
Issue: Legislative framework obliged decision maker to have regards to p.f.
Findings: Affirmed Brennan’s approach in Kioa.
Gleeson & Hayne directly cites Brennan at ‘the true construction of the statute will determine not only whether the rules of natural justice apply, but also what those rules require. … Where, as in the present case, the statute addresses the subject of procedure with particularity, manifesting an intention to address in detail the presently relevant requirements of procedural fairness, then the intention of Parliament as to the issue that has arisen will be decisive.
Gaudron J decided on similar vein of Gleeson & Hayne. Could not understand the difference between what Brennan and Mason said in Kioa. Both argued that if parliament evinces an intention to exclude n.j., it will not exist. If they fail to do that, than it does exist.
McHugh agrees with Gaudron, and then at qualifies – An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from ‘indirect references, uncertain inferences or unequivocal considerations’. Must be express. Statute will provide the scope of the application of NJ.
Kirby J said that NJ is deeply entrenched in common law, and implicit to all legislation.
NB. After [Miah], the migration legislation was amended, indicating that provisions re: NJ were exhaustive. Nothing further could be implied.
The right or interest affected by a decision
Kioa:
A right or interest must be substantial enough to be recognised as one that affects an individual, as opposed to the public at large.
Annetts v McCann (1990) [Extends the doctrine of what a right and interest is.]
Facts: 2 young jackaroos disappeared. Parents were represented at colonial inquest. Principle: You can represent interests other than your own.
2. The Concept of Legitimate Expectation
Types of expectations…
• … arising from a government promise or undertaking, either given specifically to a person or generally to the public in a statement of government policy.
• … either that an existing licence will be renewed or that advance warning will be given of the prospect of non-renewal.
• … that an established liberty or interest will not be taken away or that a beneficial recommendation will not be overturned.
• … arising from an established course of practice and
• … that an opportunity will be given to demonstrate compliance with the statutory criteria for a benefit or concession.
Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629
Natural justice – Legitimate or reasonable expectation – Illegal alien
Ng illegally entered Hong Kong in 1976. He became a partner in a factory business which employed several workers. In 1980 the government announced a change in immigration policy whereby illegal immigrants would be interviewed and each case treated on its merits. Ng reported to an immigration officer, was interviewed, and detailed until the Director of Immigration made a removal order against him. He appealed to the immigration tribunal. It dismissed his appeal without a hearing. On applying for judicial review, the Court of Appeal of Hong Kong granted him an order of prohibition against the Director to prevent the execution of the removal order until Ng was given the opportunity to put his case to the Director. The Attorney-General of Hong Kong appealed to the Privy Council.
Held: Appeal dismissed; order of certiorari quashing the removal order substituted for the order of prohibition. Although there may be no general rule that an illegal alien has a right to a hearing, conducted in accordance with the principles of natural justice before a removal order is made against him, nevertheless Ng had a right to such a hearing under the particular circumstances of the case. He had a legitimate expectation of being accorded such a hearing because the expectation had a reasonable basis. Such expectations ‘may be based on some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision’. There is no reason why this principle should not be applicable when the person affected is an alien. The principle that a public authority is bound by its promise to follow a certain procedure applied in this case because of an announcement made outside Government House that each case would be considered on its merits. It is in the interest of good administration that a public authority should act fairly and implement its promise as long as this does not interfere with its statutory duty. Ng should have been given the opportunity to explain the humanitarian grounds on which he might have been allowed to stay in Hong Kong.
Council of Civil Service Unions v Minister for the Civil Service (“GCHQ” case) [1985] AC 374
Natural justice – Legitimate expectation – Denial – Non-justiciable prerogative power
Government Communications Headquarters (‘GCHQ’) was a branch of UK public service. Its main function was to ensure the security of military and official communications and to provide signals intelligence for the government. Over 400 people were employed and since 1947 they had the right to belong to national trade unions of which there were six represented at GCHQ. They, in turn, were members of the Council of Civil Service Unions. There had been a well-established practice of consultation between management and unions on matters concerning alterations to employment terms and conditions. Between 1979 and 1981 industrial action occurred at GCHQ on seven occasions. In 1984 the Secretary of State for Foreign and Commonwealth Affairs announced in the House of Commons that the staff at GCHQ would no longer be permitted to belong to national trade unions; there had been no consultation with the employers or their unions. They sought and were granted declaration that the Minister’s instruction was invalid and of no effect because of her failure to consult. The Court of Appeal reversed this decision and dismissed the application for judicial review.
Held, on appeal to the House of Lords: Dismissed. Irrespective of whether powers exercised directly under the prerogative are immune from challenge in the courts, delegated powers under the prerogative are not necessarily immune. The instruction involved in the present case was pursuant to a Minister’s power under an order in council. There was no reason why the mode of exercise of that power could not be reviewed by the courts (per Lord Fraser). The majority were of the view that it was not the source of power (that is, prerogative or statute) that is determinative of whether the decision of the executive is subject to judicial review. Rather, the controlling factor was the justiciability of the subject matter. The appellants had a legitimate expectation that they be consulted before the benefit of trade union membership was withdrawn. This was based on past practice and the Minister’s failure to consult entitled them to judicial review of the instruction. However, this right was overridden by national security considerations. Evidence on behalf of the Minister was to the effect that the reason for her decision not to consult had been to avoid the risk of industrial disruption at GCHQ which would threaten national security. Whether the decision was in fact necessitated by national security requirements was non-justiciable.
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Natural justice – Duty to observe – Non-renewal of approval – Decision of Governor in Council – Legitimate expectation
The insurance company had, for 20 years, carried on the business of workers’ compensation insurance in Vic. Approval to do so was required from the Governor in Council for each 12-month period. On 2 December 1980 the company applied for renewal of approval for 12 months from 31 December 1980. Interim approval effective until 1 June 1981, was given. On 18 May the Minister advised the company that he would recommend to the Governor in Council that the application not be approved. ‘A summary of the case’ against the company was se out. The company sought particulars of the matters raised by the Ministers and asked for an opportunity to answer them. This opportunity was not given.
Held, by majority: The case concerns ‘an application for the renewal of an approval which closely resembles an application for the renewal of a licence. It is in this area that the concept of “legitimate expectation” has facilitated the application of the natural justice requirements’ (per Mason J). The principle that a statutory discretion affecting rights it to be exercised according to the rules of reason and justice equally applied when the discretion is vested in the Governor in Council. ‘The mere fact that he is the repository of the decision does not warrant the implication that the discretion is entirely at large.’ The company had ‘a legitimate expectation that its approval would be renewed or, at the very least, that it would not be refused without its having an opportunity of meeting objections raised against it’. The legislature had not dispensed in the statute with the requirements of natural justice. It is proper ‘to attribute to Parliament the intention that the Governor in Council will act in conformity with natural justice by giving to the company an adequate opportunity to present its case, as for, example, by written submissions…’.
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 [“Minister’s Policy”]
Natural justice – Legitimate or reasonable expectation – Criminal deportation
Facts: The Migration Act provided that the minister could order deportation of a non-citizen convicted of an offence. The deportee had a right to appeal to the AAT, which could then make recommendations to Minister not to deport. The reasons of a minister rejecting AAT recommendations were to be tabled in parliament.
The minister had published a policy on criminal deportation, stating that an AAT recommendation would be rejected ‘only in exceptional circumstances and only when strong evidence can be produced to justify’ the rejection of the recommendation.
Issue: Minister made a decision to reject AAT recommendations that were favourable to Mr. Haoucher.
Findings: Per Deane, Toohey and McHugh JJ (Dawson and Gaudron JJ dissenting): The effect of the published, considered statement of government policy by the responsible minister prescribing procedural steps to be followed in a case such as the present resulted in the appellant having a legitimate expectation such that procedural fairness required that he be accorded an opportunity of being heard on the questions of whether the recommendations of the Tribunal should be overturned by reason of ‘exceptional circumstances’ and whether ‘strong evidence can be produced to justify’ such an overturning of the Tribunal’s recommendation. HC held by majority that the minister’s decision was invalid has he had not accorded Haoucher NJ. The legitimate expectation was that the minister would defer to the AAT.
McHugh J – … the common law … gives a person the right to be heard before the exercise of a statutory power prejudices some right, interest, privilege or benefit which that person can legitimately expect to obtain or enjoy in the future. The common law right to be heard may of course be excluded by statute. But an intention to exclude … ‘is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations.’
Cites examples:
• Attorney general v Shiu: [an undertaking giving rise to L.E.] A policy announcement that illegal immigrants would be interviewed and their cases considered on their merits gave rise to a L.E. that an immigrant would not be deported without the policy being implemented.
• Heatley: [Course of conduct creating a L.E.] Where members of the public had a L.E. that they would continue to receive the customary permission to go on to racecourses upon the payment of the stated fee to the race course owner.
• FAI insurance: FAI was supposed to continue to approve and renew insurance each year unless good reason to refuse.
McHugh distinguishes slightly the ‘legitimate expectation that a person will obtain or continue to enjoy a benefit or privilege… from a mere hope that he or she will obtain or continue to enjoy a benefit or privilege.’
Deane agrees with McHugh J. Principles of N.J. are valuable. In each case, there needs to be a clear legislative intent to exclude them.
Attorney general v Quin
Natural justice – Legitimate expectations - Limitations
Principle: Per Mason CJ, Brennan and Dawson JJ (Deane and Toohey JJ dissenting): Appeal allowed. Mason - All the court can do with regard to legitimate expectations, is to provide some form of procedural protection. There was a legitimate expectation that the Attorney-General, in considering whether or not to recommend appointment, would accord procedural fairness, that is, the opportunity to answer material which was adverse. However, the new policy for appointing magistrates was in conformity with the Act. They cannot make an order of substantive protection in the form of an order requiring the decision-maker to exercise his or her discretion in a particular way. There was no justification for granting relief in a form which would compel the Executive to adhere to an approach to judicial appointment which it had discarded in favour of a different approach which, in the opinion of the Executive, was better calculated to serve the administration of justice and make it more effective. The grant of substantive relief in the present case would effectively prevent the Executive from giving effect to the new policy. In speaking of a duty to act fairly, care must be exercised that it is identified only with procedural obligations. The merits of administrative actions as distinct from legality are for the repository of the relevant power.
The hearing rules operated traditionally to protect lawful entitlements such as property rights and rights to protect reputation. The notion of legitimate expectation has developed as a legal device to ensure that people have a right to put their side of a story where fairness would require this having regard to:
• The nature of the benefit (FAI Insurances) or activity (Heatley; Forbes)
• An undertaking or promise (AG (Hong Kong) v Shiu)
• An established course of conduct (GCHQ)
• A published, considered statement of policy (Haoucher), including an international agreement that Australia has entered into (Teoh)
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Natural justice – Legitimate expectations - Deporation
Principle: Appeal dismissed. Ratification of the rights of child convention gave rise to a legitimate expectation. Although the Convention was not part of Australian municipal law, ‘legitimate expectations are not equated to rules of principles of law’ per Mason CJ and Deane J. Ratification of international convention ‘is not to be dismissed as a merely platitudinous or ineffectual act’; it evidences ‘internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children’. It is ‘positive statement’ that the executive government and its agencies will act in accordance with the Convention and this is an ‘adequate foundation for a legitimate expectation… that administrative decision makes will act in conformity… and tread the best interests of the children as a primary consideration’. As the children’s best interests were not treated as the primary consideration procedural fairness required that the persons affected be given notice and an adequate opportunity of presenting a case.
NB. This case is now contentious because it takes the notion of L.E. too far. An L.E. is not understood as something you don’t know anything about. You must prove some form of subjective knowledge of your ‘L.E.’
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Natural justice – Legitimate expectations
Facts: Lamb was Vietnamese, imprisoned for a no. of years. Ordered deportation. Advised that he should indicate any interests of his children that minister should take into account. There was evidence from Ms. Tran that children would miss him.
Minister requested contact numbers of his children’s carers, but never contacted the carers before Lamb’s order for deportation.
Issue: Did Lamb have a legitimate expectation that since they made an enquiry on contact numbers, they should have contacted them, to which Lamb could then respond?
Findings: Per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ: Dismissed application. Minister for Immigration, Local Government and Ethnic Affairs v Teoh did not apply. L.E. had gone too far. Lam had lost no opportunity to advance his case. Followed Quin. He did not rely to his disadvantage on the statement of intention of the Department. L.E. cannot give rise to substantive rights, only procedural rights. I.e. If they had interviewed Ms. Tran, Lamb had an opportunity to reply. But does not mean that the decision maker must take into account Ms. Tran’s evidence. It was not shown that there was procedural unfairness or a failure to properly to take into account the interests of his children. The term ‘legitimate’ is not to be taken to mean entitlement, but to have the lesser meaning of ‘reasonable’. Likewise the term ‘expectation’ is uncertain, referring to what a reasonable person might be ‘expected to expect’ in the objective sense. In Australian administrative law, ‘legitimate expectation’ in the Teoh sense refers to procedural protection only, not substantive protection. The concern is with the fairness of the procedure not the fairness of the outcome.
McHugh and Gummow: The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. But at least a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome.
Gleeson CJ distinguished Shui and held that ‘not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation.’ … No attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment… A particular example of such detriment is a case where a statement of intention by a decision-maker has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker.
Recalls McHugh’s dissent in Teoh. No need for separate doctrine of L.E. N.J. is enough. It has a distinct role in that fabric. In the absence of a clear contrary legislative intention, those rules require a decision-maker ‘to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it’: from Kioa. If adopted, there’s no need for L.E.
What does fairness require? Refer to Quin, where Brennan qualifies L.E. again: So long as the notion of legitimate expectation is seen merely as indicating ‘the factors and kinds of factors which are relevant to any consideration of what are the things which must be done or afforded’ to accord procedural fairness to an applicant for the exercise of an administrative power… may usefully focus attention on … what must be done to give procedural fairness to a person whose interests might be affected by an exercise of the power. But if the according of natural justice does not condition the exercise of the power, the notion of legitimate expectation can have no role to play…
As known in Yusuf, it is up to the decision maker as to what is a material factor. So long as decision maker identifies the factors it takes into account, that’s all that’s required to N.J.
Hayne notes a problem with Teoh. L.E. is a subjective state of mind, and we cannot deal with this. At .
But ultimately, the case stands for…
Callinan: at If a doctrine of ‘legitimate expectation’ is to remain part of Australian law, it would be better if it were applied only in cases in which there is an actual expectation, or that at the very least a reasonable inference is available that had a party turned his or her mind consciously to the matter in circumstances only in which that person was likely to have done so, he or she would reasonably have believed and expected that certain procedures would be followed.
3. Stages at which procedural fairness will be afforded
Advisory reports & Recommendations
Earlier in Testro, it was held that a report was not required to accord N.J. where it contained advice or recommendations, as it did not ‘of its own force prejudicially affect the rights of the company, the affairs of which were the subject of the investigations’.
Though not overruled, in light of Annets v McCann, ‘it is beyond argument that the view of the majority in that case would not prevail today.’ Both this case and Ainsworth held that the obligation to accord natural justice applied to a report that was advisory and not self-implementing, as the report could damage the reputation of a person or company…
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Certiorari – Scope and availability as a judicial remedy
The Queensland Government sought advice from the Commission with respect to the introduction of poker machines into the State. The Commission’s report was highly critical of the Ainsworth group of companies, ascribed certain conduct to the group, and recommended that they ‘not be permitted to participate in the gaming machine industry in Queensland’. The particular recommendation was based on other government reports; it was not clear if they accuracy was checked; no inquiry was made of the Ainsworth group and they were not informed of the Commission’s intention to report adversely with respect to them and given no opportunity to answer. Publicity of the report was widespread. Ainsworth alleged breach of the rules of natural justice and sought relief by way of certiorari and mandamus.
Held, per Mason CJ, Dawson, Toohey and Gaudron JJ: ‘The function of certiorari is to quash the legal effect of the legal consequences of the decision or order under review’. As the report had ‘no legal effect’ and carried ‘no legal consequences’, certiorari did not lie to correct the failure of the Commission to comply with its duty to proceed in a way that was fair to the appellants. When a report or recommendation operates as a precondition or as a bar to a course of action it may be quashed. Such was not the case here; the Ainsworth group could still be granted a licence under the Gaming Machine Act 1991 despite the Commission’s recommendation. Prohibition would been available if sought in time.
Where statute provides a hearing, code of procedure or right of appeal
• Re: A fair hearing, the Migration Act provides an exhaustive statement of natural justice.
Example: Migration Act 1958 - Sect 127A
Exhaustive statement of natural justice hearing rule
(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
• In two following cases, all the Act says is a ‘right of appeal’. Does this imply that there’s a procedure that must be applied
A statutory appeal as an exclusive remedy: Twist v Randwick Municipal Council (1976) 136 CLR 106 [“Dilapidated House”]
Natural justice – Legislative restriction
Facts: Twist had an old dilapidated house. Council was empowered to demolish any house held to be dilapidated and unsightly, pursuant to an Act. They notified Twist by letter and gave 60 days to lodge an appeal to court. Twist didn’t lodge the appeal, nor did he do so in the extra 30 days extension. Council demolished the house. Twist then brought proceedings in the HC for a declaration.
Findings: ‘The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal’ (per Barwick CJ). However, the rule may be displaced by the legislature which may provide for the exercise of such a power without a hearing being afforded the affected person. This legislative intention must be made ‘unambiguously clear’. But if legislation has made provisions for a hearing before a person or his property is affected, ‘the court will not be warranted in supplementing the legislation, even if the legislative provision is not as full and complete as the court might think appropriate’. It appeared that the legislature had not addressed this question, thus, it was appropriate to assume that it was not the legislature’s intention to exclude PF. In the present case, in enacting s 317B, the legislature has provided an opportunity for the owner of a property to be heard before his rights are finally affected. (McHugh J also stated this in Miah).
Issue 2: Implications of the Right of Appeal.
Findings 2: It is not for the court to intervene and insist that the Council should have heard the owner before making the order. If the appeal was only available after the house was knocked down, than it most likely suggests that no NJ was to be afforded. Damages would not be adequate, and the same house could not be re-built. Mason J at … It could scarcely be said that a limited right of appeal on the part of the owner is an adequate safeguard for him or that it constitutes an indication that the duty of fairness is displaced…
Mason J suggested that the legislative intention to be discerned where a statute permitted a full de novo appeal against a decision was that the appeal was the only redress for correcting a breach of natural justice in making the decision.
NB. Hearing de-novo: Appeal by way of re-hearing…. Compare with an appeal on the point of law.
A statutory appeal as an exclusive remedy: Marine Hull & Liability Co Ltd v Hurford (1985) 62 ALR 253 [“Cease Insurance business”]
Facts: Acting federal treasurer, pursuant to Insurance Act says that Marine Haul was not permitted to conduct business as an insurer. Marine Hall not given opportunity to be heard before notice. Sec 63 provided that a company issued with notice, could seek reconsideration by the Treasurer and thereafter appeal against Treasurer’s decision to AAT. 2 days after notice, without seeking reconsideration or review under AAT, Marine commenced proceedings under ADJR 5(1)(a) for order that notice was invalid and breach of natural justice.
Wilcox J:
1. Natural justice would apply.
2. Legislative intention to remove the opportunity to be heard can only be affected by clear words.
3. While urgency may limit the right to a hearing, urgency alone cannot be grounds for natural justice.
4. The Insurance Act provided for an appeal to the AAT. When such is provided and efficacious and comprehensive, the obligation to give natural justice is not thereby limited but the available remedies are limited. Different from Twist. Remedy is not through ADJR, but from AAT.
5. Capable of exercise before irretrievable damage was done, the legislature must be taken to have evinced the intention that in the event that the Federal Treasurer failed to act in accordance with NJ the direction should not be regarded as invalid in law. ‘They are merely susceptible of challenge before the Tribunal. It follows that the decision of the Acting Treasurer to make the directions affecting the present applicant is not invalidated by his failure to give to the applicant a prior opportunity to be heard.’ (Remedy is provided to re-hear the decision.) ( at )
Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57
Issue: Does the right to a full de novo merit review of a delegate’s decision by the Refugee Review Tribunal evinced Parliament’s intention to exclude natural justice?
Findings: There is no general rule that a right of appeal or review necessarily denies or limits the application of the rules of natural justice. Parliament must evince the intention to exclude.
List of factors considered:
(a) Natural of original decision – preliminary or final
• N.J. requirements are less likely to apply to preliminary decisions.
• But if final and immediate consequences, more likely that NJ will apply.
The decision on Miah’s application was going to be complete and effective. NJ would thus need to apply.
(b) Decision made in public or private
• If private, may not apply.
• If an open hearing, than NJ will likely apply.
This decision was made private in Miah
• Not always the case. This requirement is quite flimsy.
(c) Formalities required for original decision
• In Miah there was a requirement to give reasons and various other forms of procedures in place to deal with applications. So harder to say that the existence of an appeal right, was excluded at an earlier level, when statute expressly provides for procedures that have to be followed at a decision-making level.
• Cf Twist, where there were no such requirements. Right of appeal was the sole means by which NJ would be afforded
(d) Urgency of original decision
• Is a significant factor which may attend an original decision, and may imply that NJ is limited, if not excluded entirely.
• This was significant in Twist, because Twist’s house was a danger to the surrounding neighbourhood. But Miah’s application sat on decision-maker’s desk for 13 months. There was no urgency. So NJ must be available.
(e) Nature of the appellant body – judicial, internal, ‘domestic’
• If it’s a Court, then easier to infer a right of appeal was intended to exclude NJ at earlier level, because the court is an open and superior tribunal in determining rights.
• Where less likely to be independent, NJ must apply to all levels of decision-making.
• Domestic processes – one which people affected have consented. E.g. professional association like law society. (See Cowen)
• In Miah, it was not domestic, internal or a court. Did go to tribunal and was independent.
(f) Breadth of appeal – de novo or limited
• de novo – NJ is limited
• de limited – NJ is unlimited
(g) Nature of the interest and subject matter
• The Migration Act is very important and not trivial.
McHugh J balances these factors to decide whether the right of appeal de novo would exclude NJ at decision-making level. But finds it insufficient to say that parliament wouldn’t accord NJ in this case, given the only point that truly indicated parliament wanted to exclude NJ was the de novo hearing. But that was in itself, insufficient. Important though that is, it does not outweigh the inference to be drawn from the fact that the refusal of the application may put an applicant’s life or liberty at risk and, as a practical matter, will often – perhaps usually – mean that an applicant will be detained in custody pending the review of the delegate’s decision.
Calvin v Carr [1980] AC 574
Natural justice – Breach of the rules – Effect
Calvin was part-owner of a racing horse. After its poor performance in a race, an investigation was held by the stewards. The jockey was charged with a breach of the Rules of Racing and Calvin was named as a party to the breach and disqualified for one year. An appeal to the Committee of the Australian Jockey Club was dismissed as was an appeal to the SC of NSW.
Held, per Lord Wilberforce: Even if the stewards had failed to observe the principles of natural justice, their decision for the purposes of the appeal to the Committee of the Club was not void. The Committee, therefore, had jurisdiction to entertain the appellant’s appeal. The appeal hearing itself was governed by the Rules of Racing. It is ‘an essentially domestic proceeding, in which experience and opinions as to what is in the interests of racing as a whole play a large part’. Those who participate in the sport ‘have accepted the Rules of Racing, and the standards which lie behind them; they must also have accepted to be bound by the decisions of the bodies set up under those rules’ so long as it can be objectively said that they had fair treatment and consideration of their case on its merits’. Calvin’s case had received ‘full and fair consideration’. There was no basis on which the court ought to interfere.
4. Possible qualifications to the implication principle
Urgency
(see discussion in Miah)
Heatley v Tasmania Racing and Gaming Commission (1977) 137 CLR 487
Natural justice – Duty to observe
Heatley was served with a ‘warning-off notice’ by the Commission. It required him not to enter any racecourse in Tasmania for an indefinite time.
Held: When a person’s rights are affected by a statutory authority, it is bound to hear him before exercising power over him. Heatley had the ‘right’ to enter racecourses because the statute made the betting by members of the public with bookmakers lawful, but only on racecourses, and to that extent Heatley was denied opportunity which other member of the public had. There are measures such as ex parte injunctions to deal with emergency situations. However, when a warning-off notice effective for an indefinite period is issued, fairness requires that the Commission give notice to the person affected of its intention to issue the notice, and of the grounds, and must first afford that person the opportunity to be heard before taking action.
South Australia v Slipper (2004) 136 FCR 259
Facts: Court said in this case that the Cth had acted unlawfully, when they utilised a special process provided for by the Lands Acquisition Act for urgent compulsory land acquisition in S.A. to dump nuclear waste. Special process allowed them to exclude NJ in the process. Were they correct in invoking power in special process provision?
Fin J (): What is urgency?
1. Particular stat framework in which power exercised, will be given full effect in determining what procedural fairness requires.
2. If it’s urgent, PF won’t require giving of notice, or right to be heard, where in the circumstances it would frustrate the process.
3. Need for urgent exercise, in exceptional circumstances can reduce content of PF to nothingness.
4. Relative seriousness of consequences to a person may mean content of PF is afforded, even if fairness can only be accorded in an attenuated form.
5. Just because there’s no apparent likelihood that the person directly affected by the exercise could successfully oppose its exercise, does not diminish or practically exclude the obligation to afford PF.
6. To determine what PF requires, not for the court to decide what better or fairer decisions could have been made.
5. Content of hearing rule
The starting point is once again the statute and/or the nature of the interest or legitimate expectation held by an affected person. The cases that follow are an attempt to distil some of the basic principles relating to the matters a person is entitled to know. The two headings regarding notice and disclosure contain cases setting the principles that Mason J in Kioa v West described as the ‘pith or kernel’ of fair decision making. An individual affected by a decision is entitled to notice of all material that is adverse and critical to a decision making process so that the person can respond accordingly.
Must the person who decided hear?
General rule is that NJ does not require hearing to be conducted (whether written or oral) by the decision-maker. E.g. Decision-maker was not formally required to conduct the hearing in FAI or in O’Shea. In White v Ryde, it was the local council.
Main requirements that need to be observed when decision-maker is not one who conducts hearing:
• If new info comes to light after hearing conducted, person given a further hearing of info: O’Shea and Peko Wallsend.
• If summary of hearing or briefing paper contains adverse information, it must be disclosed to the aggrieved person and given an opportunity to give comment: Kioa; Veal.
The requirement to give proper notice of the decision and the requirement of disclosure
The level of specificity required re: duty to disclose/give notice has been a real problem since Kioa and Miah. In Kioa, Brennan J said there’s only a duty to disclose allegations that are ‘credible, relevant and significant’.
Gray J in VEAL (FFC): I am of the view that all that is required is that the information should not lack credibility either on its face, or by reason of the circumstances in which it came to the notice of the decision-maker. I am far from convinced that a rule should be developed that regards as credible only those documents emanating from official sources. Threshold credibility is a low one, indeed to exclude only those kinds of information that would necessarily be dismissed out of hand.
Allsop J in NIB (2002): Relevant to the assessment… will be… the quality of the material and the risk of subconscious influence.
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411
Facts: Applicant applied for protection visa. Refused and then refused again by RRT. In course of review, the tribunal received a letter containing allegations against appellant. This included info adverse to appellant to claim protection. The author in this letter requested that info be kept confidential. So neither the existence of the letter or contents were disclosed to appellant.
Tribunal affirmed the decision of delegate, claiming to do so without placing any weight on this new info. In the decision, it was the first time that applicant VEAL had heard this new info. Appellant sought judicial review. At first instance, Federal Mag granted. Then went to FFC who overturned the decision.
Findings: HC followed Kioa. PF required tribunal to inform the appellant of the letter and substance of allegations. But qualified this - tribunal does not have to give them a copy of the letter, or disclose info as to who the author was, but must make known to the appellant the substance of the allegations. Applying Kioa, info contained in letter was ‘relevant, credible and significant’.
As soon as tribunal decided that something was credible, it could not be ignored, even if they do not base their decision on it. What was ‘credible, relevant and significant’ information must be determined by a decision-maker before the final decision is reached. Will affect whether the decision-maker must give an opportunity to the person affected to deal with the information… must … be understood as referring to information that cannot be dismissed from further consideration. (NB. The moment the decision-maker thinks they have to consider it further, it must be disclosed by the decision-maker … not to be understood as depending upon whatever characterization of the information the decision-maker may later choose to apply to the info when expressing reasons for the decision that has been reached.)
The question of the sub-conscience effect of letter is not relevant. (Though it may be for an apprehension of bias.)
5.4 The hearing
News Corporation Ltd v National Companies and Securities Commission (1984) 156 CLR 296
Natural justice – Preliminary decisions
The National Companies and Securities Commission proposed to hold a preliminary investigation in private into suspected offences of News Corporation. The Company challenged the NCSC’s decision to deny it the right to be present throughout the hearing or to cross-examine witnesses.
Held, per Mason, Wilson and Dawson JJ, with whom Gibbs CJ and Brennan J concurred: As the NCSC Act requires the Commission to observe the rules of natural justice at its hearing, it was for the court to consider what the rules of natural justice require in this particular circumstance. The word ‘hearing’ in the NCSC Act is not a term of art. The present hearing was an investigation based on a mere suspicion. There was no charge, no person being accused, and no legal rights being affected. The rules of natural justice would be observed if, as the NCSC proposed, each witness called upon to give evidence was allowed legal representation with the freedom for that representative to participate in the examination of the witness, and for the provision of a transcript of his evidence. More widespread participation of the company in the hearing would frustrate the purpose of the hearing which was ‘to gather relevant information from a wide range of sources’.
Sullivan v Department of Transport (1978) 20 ALR 323
Facts: Sullivan applied to AAT for review of a decision by the Department not to renew on medical grounds his pilot license. He was unrepresented at the tribunal hearing. Appealed to the FC on the ground that the tribunal had erred by not offering him an adjournment to call his doctor.
Issue: Was the tribunal under obligation to do so?
Finding: Looked at ambit of power that he was acting under. Section 39AAT required that tribunal ensured every party to the proceedings before it be given a reasonable opportunity to present his case. Constituted a statutory recognition of an obligation which the law would, in any event, imply.
Deane J said that the objectives of expedition and of lack of formality or technicality and the requirements of fairness, will ordinarily be best achieved by a ready identification of the issues which are in dispute between the parties in a particular application for review. Combined with the duty to act judicially by a tribunal (as stated in R v Moodie), this meant that the tribunal will at times be required to mention what could be raised. But this did not extend so far that the tribunal was obliged to ensure that parties took advantage of all opportunities that they were entitled to.
Because Sullivan did not ask for an adjournment, the tribunal was under no obligation to suggest one.
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 ^^^
Facts: Citizen of Iran came by boat on forged passport without visa. Arrived in Port Headland and was interviewed. He said that he was coming to Australia to get married and to get a job. The only available visa was a protection visa. He told tale of political persecution in Iran.
After refusal of application by the minister, made a further application to the Tribunal. But this contained large factual inconsistencies with previous claims. Just before tribunal hearing, application was made claiming he was unfit to be at the hearing. Tribunal requests Woolmara psychologists to determine his psychological state, which showed that he was very anxious and had a history of self harm. Asked by tribunal whether he wanted to proceed, he was keen to do so. But the hearing did not go well.
His rep argued that the conflicting accounts could be explained by PTS disorder. The tribunal was prepared to disregard the conflicting accounts up until the hearing (based on the PTS). But were unconvinced by the conflicting accounts and facts at the hearing itself. Determined that he did not have a well-founded fear of persecution. Fed mag dismissed claim, and an appeal made to FFC.
Findings at FFC: Grey J found that the tribunal was wrong. Three errors:
1. No evidence before tribunal upon which it could be satisfied that person was actually suffering from PTS disorder.
2. The Tribunal should have made an assessment as to the extent the PTS would have affected his credibility, before making a finding of credibility.
3. Tribunal failed to find whether he was competent to take the hearing.
Issue: whether The RRT had denied the respondent procedural fairness by failing to order further psychological assessment of his condition; by accepting that the applicant suffered PST and by accepting the effects of PST withut expert medical advice.
Findings at HC: No denial of PF..
Gummow, Hayne, Gleeson CJ agreed.
READ IN THIS ORDER: Callinan, Gummow* (must read), Hayne, Gleeson.
The no evidence ground: …to conclude that there was post stress dis.
Even if the Court made no finding of PTS itself, it could not prevent the tribunal from disregarding the earlier inconsistent accounts (on the basis of PTS). The HC couldn’t interfere with tribunal decision, because this was a finding of Fact and not illogical or irrational. In any event, there was sufficient material to make a finding that the respondent was suffering from PTS.
The credibility finding: The tribunal thought they were under a duty to enquire.
High Court disagreed. Tribunal had a discretion, and not an obligation to undertake further enquiries.
The competency requirement: Gummow and Hayne JJ noted that the assumption the tribunal made, was completely without foundation. No common law basis or statutory obligation. But that does not mean that it cannot be a denial of procedural fairness where individual cases, particularly in circumstances where particular procedure had to be followed. But not in this case. It was only after the respondent said he was fit to plead that he argued PTS. Gummow J and Hayne J cite s20: when determining whether or not a tribunal reaches satisfaction at their discretion, they could include consideration of factual matters, but the critical question on review is whether the determination is illogical or irrational or not based on findings of fact.
A duty to inquire
Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553
Facts: Singh and wife, both Indian citizens wanted to be protected by Australia for terrorist allegations. Documents found not authentic.
Principle: The documents were so central to the claim that there was a duty to inquire about these documents. It was simple to do so, but DFAT chose not to because they were not asked to.
Exparte applicants S134
Facts: S33 of Migration Act said you can make a claim on protection visa based on spouse. Applicant did not have details of husband’s claim. Tribunal had available to it such details. But HC said they were under no duty to go further and look for other information.
Unexplainable delay
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171
Facts: A prolonged and unexplained delay by tribunal amounted to failure of procedural fairness. In this case, the decision was based so much on the demeanor and attributes of people giving evidence that it really needed to be recorded immediately. Involved Bangladeshis: husband, wife and daughter. It was an inter-religious marriage. Tribunal held two hearings, couple of years apart. Went to find facts on Bangladeshis view on interreligious marriage. Made judgment a year later.
Findings: Court said you cannot make a proper assessment, based on two different hearings, two years apart and the judgment a year later, and spanned over 5 years, when it’s really based on demeanor. Allowed the appeal. The delay meant a failure of proper assessment.
• Where a tribunal draws out procedures to such an extent, that its capacity to discharge statutory duty is likely to be ‘materially diminished’, then a case of procedural unfairness arises.
Representation
• There are no common law rights to representation.
Cains v Jenkins (1979) 28 ALR 219
Facts: Cain was the secretary of union, campaigning re: communism. Board of union decided to lay charges against in. Cain wanted someone to be with him at the hearing, just for advice, not for representation. This was refused.
Finding: No duty of administrative decision maker to provide representation. Just like in Dietrich v R, there is no such right at the expense of public. Correct approach is to assess capacity of person to be able to speak on his behalf, having regards to the seriousness of matter, and complexities of issues.
Cain was a man of considerable experience, capability and more than capable to conduct own case. So there was no denial PF.
Rules of evidence & cross-examination
O’Rourke v Miller (1985) 156 CLR 342
Facts: No right to cross-examine your accusers at administrative level. O’Rourke was a constable. He tried to us his badge to gain access to a shop. Used insulting language and was drunk. Police made clear to O’Rourke of all allegations against him. Provided him opportunity to respond to the allegations of misconduct. Appointment was terminated. Sought review, that the principles of NJ gave him the opportunity to cross-examine.
Findings: Court said that NJ requires that he be informed of allegations, to be able to answer them, but not an opportunity to confront accusers.
6. Reasons for a Decision
Statute normally covers this with provision for written notification.
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Facts: Osmand was a surveyor who was overlooked for a promotion etc. Appealed to public service board, and was dismissed.
Principle: There is no general duty at common law, or as a duty of PF, which requires an administrative decision-maker to provide reasons.
Exception: Special or exceptional circumstances, amounting to a duty at common law.
Finding: In this case, there was no statutory provision. Kirby P said there was a common law duty to give reasons, because it was attached to common law duty to act fairly and reasonably. Examined international jurisprudence. HC said this was misconceived. Looked at UK authority.
7. Probative Evidence
This is a contentious area, much like wednesbury unreasonableness, because it entails to some extent fact finding.
Statute: Separately addressed in ADJR in ss5(1)(h) and 5(3); 6(1)(h) and 6(3).
Common law: Understood to be part of NJ
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per (Mason CJ)
Administrative Decisions (Judicial Review) Act 1977 (Cth) – Meaning of ‘decision’; meaning of ‘conduct’
The Australian Broadcasting Tribunal made various decisions, findings and rulings in an inquiry which is held under s 17C(1) of the Broadcasting Act 1942 (Cth).
Findings: Recognised no evidence ground as coming into our jurisdiction (Mason CJ). Where there’s no evidence of any probative value to support finding of fact, amounts to a reviewable error. But contentious as to which category of error this falls under.
Minister for Immigration & Ethnic Affairs v Pochi (1980) 31 ALR 666
Facts: Brennan was President of AAT at the time. Reviewed the decision of Migration Minister who decided Pochi should be deported. Pochi was Italian man who had lived in Australia for 20 years. He was accused of marijuana trading in Italy.
Findings: Brennan P said he wasn’t going to deport a person based on a mere suspicion. This was not probative evidence.
8. The rule against Bias
Statute: Not separately provided in AJDR.
Common law: Understood to be under NJ.
Bias at common law now only has 2 heads:
1) Actual bias
2) Reasonable apprehension of bias
8.1 Pecuniary interest
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fact: Dealt with judge who had a pecuniary interest in the outcome. Judge had 6000 shares in the receivers (bank), dealing with Ebner’s bankruptcy.
Clenaye
Facts: Borrower brought proceedings against ANZ. The judge, after the hearing, reserved judgment for later. During intervening period, Mendes J’ mother died and he inherited 2500 shares in ANZ after the hearing. He didn’t mention this.
Finding: In both cases, there was no reasonable apprehension of bias. Interests were too small. There is no automatic freestanding rule of disqualification based on judge’s pecuniary interests. Test: If a judge has a NOT insubstantial pecuniary or proprietary interest in the litigation, then they should indicate.
The circumstances in neither of these appeals were present. With regard to duty to disclose, there’s no such duty. Rather it’s a matter of prudence and professional practice. Would have breached practice if failure to disclose would have affected the outcome of the proceedings.
Hot Holdings v Creasy (2002) 210 CLR 438
Facts: The Mining Act sec 57 allowed minister to make decisions on granting mining exploration licenses. 2 bases for decision:
(1) The scheme that minister set up was to take advice of mining warden.
(2) Minister for Mining said to go with appellants.
At a meeting, M, B & P were present. B & P prepared the minute. M just sat there. Suggested that Hot Holdings should get the license.
Issue: Respondents brought application of judical review, based on apprehension of bias, because both P & M had pecuniary interest in outcome. P’s son had shares in hot holdings. M had shares in a company who had an option to purchase 80% of hot holdings if it got the license.
Findings: The court said no reasonable apprehension of bias, because the remoteness of the relationship between P & son would not have affected the decision making process. M was not responsible for writing the minute, but his role was so peripheral in the overarching decision making process that it did not affect the decision.
• Wrong to say generally that every case where information is placed before decision maker, by person with interest, that the decision is going to be affected.
• Wrong to assume that in every case, a decision maker is going to make the same level of independence as a judge.
8.2 Reasonable Apprehension of Bias
Defining cases:
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [4]
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 91–2
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]–[32]
Webb v R (1994) 181 CLR 41 at 74
Laws v ABT (1990) 170 CLR 70
General test: Whether the relevant circumstances are such that a fair minded and informed person might reasonably apprehend that the decision maker might not bring or have brought an impartial mind to bear on the decision. (Ebner at )
Webb v R (1994) 181 CLR 41 at 74
Principle: Deane J identified four main categories in bias:
1. Interest
2. Conduct
3. Association
4. Extraneous information
Laws v ABT (1990) 170 CLR 70
Facts: Laws had programs which may incite racial hatred. In the initial tribunal, three members had found a breach of standard. But the decision was thrown out on NJ ground. A newly constituted tribunal was then to re-hear the matter. One of the original three had publicly gone in ABC radio and made remarks. John Laws legal teams sought defamation proceedings against this member. The member then used the defence of truth. Laws then used this as apprehended bias argument.
Findings: A defence is a legal pleading, and not evidence of anything else. No apprehension of bias.
Minister for Indigenous and Multicultural Affairs v Jia (2001) 205 CLR 506
Facts: Minister wanted to deport Jia. AAT reversed decision initially. Minister went on radio before making decision, said he was tired of leniency on criminal deportees.
Findings: HC said that the minister was not actually biased or apprehendedly biased.
Gleeson CJ & Gummow J: Decision-makers…, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. … The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. N.J. does not require the absence of any predisposition or inclination for or against an argument or conclusion.
Vakauta v Kelly (1989) 167 CLR 568
Facts: Personal injury case. The judge made a passing remark about a few doctors. Later, it was argued that there was apprehended bias.
Findings: You cannot expect that a judge would be completely unbiased. Of course they’ll have views. But does not mean they don’t take evidence into consideration.
Example of where apprehended bias is apparent: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Recall, the Chinese Catholics case
9. Effect of Breach of Procedural Fairness & Discretion of Court
Breach of the duty to observe procedural fairness is a jurisdictional error: Plaintiff S157/2002. The decision is invalid and must be re-made observing procedural fairness. No general rule that it must be re-made by another decision-maker. But Court may order this if there was a reasonable apprehension of bias by the original.
The grant of an administrative law remedy is in the discretion of the Court: Refugee Tribunal, ex p Aala.
9. EXECUTIVE POLICIES, DIRECTIONS AND REPRESENTATIONS
Introduction
• Administrators use policies to guide them in use of their statutory power.
• Policies are desirable as they promote consistency, predictability, efficiency and accountability: Re Drake & Minister (no. 2)
• Policies which impact on members of the public must be disclosed under FOI legislation.
• General principles applying the policies
1. The policy must be consistent with the enabling Act
2. Discretion must not be fettered.
3. A policy must not be applied inflexibly
4. Discretion must be independently exercised
5. Administrators are not bound by their policies.
1. Policies must be consistent with enabling Act
Green v Daniels (1977) 13 ALR 1
The departmental policy was adopted and applied so widely that no school leaver was permitted to get benefits until the end of their schooling vacation. The policy became the conclusive consideration and prevented the decision maker from considering the statutory criteria.
2. The Non-Fettering Rule: Policies must not be inflexibly applied
Under both the common law and ADJR Act, the subject matter and context is relevant to the degree of flexibility/ weight given to a policy.
Common law: Policies must not be applied inflexibly
ADJR Act: a discretionary power must not be exercised in accordance with a rule or policy without regard to the merits of the particular case.
Green v Daniels (1977) 13 ALR 1
Policy precluded consideration of applications of a particular kind and was inflexibly applied.
Rendell v Release on Licence Board (1987) 10 NSWLR 499
Facts: Rendell had received a mandatory life imprisonment sentence. Minister had policy that life term prisoners must spend at least 10 years in prison. Parole board inflexibly applied this policy.
Findings: CA held that this was invalid. Person entrusted with discretion, must not act to the behest of another body. I.e. Should not simply apply the Minister’s policy. Parole board is an independent body and must preserve that independence.
• The subject matter is relevant to the degree of flexibility/weight given to the policy.
1. Policy dealing with similar cases and allocating scarce resources
British Oxygen Co Ltd v Minister of Technology
Facts: Grants where purchase was > 25 pounds. British Oxygen bought numerous lots of oxygen cylinders, each costing 20 pounds, but in total equalling a few million pounds. Policy inflexibly applied and grant was rejected.
Findings: The large government Department can adopt ‘rules’ to deal with the myriad of similar cases. Not required to consider every case on its merits, provided it is willing to make exceptions.
Peninsula Anglican Boys School
Facts: Funding to non-gov schools for school buildings. Only 20% applications successful. School made application and commission looked favourably, but wanted more information. But whilst looking for new info, the policy was changed. Wilcox condoned this, Commission could still apply the consistency of the government policy.
Findings: The Commission advising Minister can frame its advice in terms of the relationship between government policy and the particular application. No need to re-canvass all relevant issues in relation to each application.
~ Industrial tribunal’s wage-fixing principles:
R v Moore; ex p Australian Telephone Officers Assoc
Findings: A single commissioner can apply the principles, previously made by a full bench, provided it is willing to consider making an exception if asked to do so. Although the doctrine of precedent does not apply to tribunals, a single commissioner should be slow to depart from decisions of broad principle earlier established by the full bench.
~ Policy dealing with individual circumstances where the personal stakes are high.
Findings: A policy cannot define in advance of particular cases the limits of relevancy (see Brennan J in Re Drake)
Hindi v MIEA
Facts: Hindi permanent residence application on ‘compassionate or humanitarian’ grounds was refused. Departmental handbook stated that the power was intended for those whose circumstances had changed after arrival in Australia. But Hindi’s circumstances changed before he got to Australia.
Findings: The decision maker must give ‘proper, genuine and realistic consideration’ to the merits of the application. Close consideration of individual circumstances is required.
~ See also MIEA v Tagle
3. The Non-Abdication Rule: Discretion must not be exercised at the Direction or behest of another person
Common law
• The person or body entrusted with a discretion must exercise that discretion independently rather than submit to the instructions, views or policy of another person or body. ~ Unless the enabling legislation authorises binding directions to be given.
ADJR Act
• A personal discretionary power must not be exercised at the direction or behest of another person.
Generally, there may be consultation provided that it falls short of surrendering the power. ASK: DID the decision-maker exercise an independent discretion, or did another body impose its wishes: see Rendell v Release on Licence Board.
In a matter of high government policy where the discretion has been entrusted to the Permanent Head of the Department.
R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177
Facts: Application made to Director-General of Aviation [head of department] to grant permission to import aircraft. Application met criteria, but there was government policy that there should only be two airlines. Director-general consulted with the Minister, who affirmed the policy. The DG refuses application.
Findings: Majority dismissed IPEC’s application.
Windeyer department heads are bound to follow government policy.
Kitto, Menzies, Taylor & Owen: Government policy is relevant, but the decision must be made by the departmental level, not at the political level.
Ansett Transport Industries (Operations Pty Ltd v Cth (1977) 139 CLR 54
Issue: Commented on the issues in IPEC Air in obiter.
Findings: Aitcken J: Minister may seek to influence or persuade & Departmental Head may accede.
In a matter of high government policy where the discretion has been entrusted to an independent body.
Breadmanufacturers of NSW v Evans
Facts: Independent price-fixing body. Minister has a statutory veto power.
Findings: Gibbs J: Minister’s view should be taken into account. Can be treated even as decisive as weighing the relevant matters. But a fine line must be drawn between obeying the minister (unlawful) and granting the largest price increase the Minister will not veto (lawful).
Mason & Wilson JJ: consultation is allowed, but must not simply follow direction.
Aitken J: not proper to even ‘sound out’ the minister.
See also Rendell v Release on Licence Board.
3.1 Statutory Directions
• Where legislation authorises direction to be given.
Whether the direction can confine or fetter a discretion is a matter of statutory interpretation.
NSW Farmers’ Assoc v MPIE
Facts: The Act authorised the Minister to intervene in setting the minimum reserve price for wool.
Findings: The statute provided a high threshold before minister could intervene, which meant that the minister was ultimately allowed to do so.
Riddell v Secretary DSS
Findings: Minister could provide general guidance but not dictate the result of an exercise of discretion (to waive recovery of a social overpayment security overpayment).
4. Administrative Tribunals & Government Policy
• The no-fettering rules apply, unless modified by statute.
- Appeal tribunal must have regard to relevant government policy.
- Appeal tribunal is not bound to apply the primary decision-maker’s policy if that does not produce the correct and preferable decision: Drake v MIEA.
- Weight to be given to the policy is for the tribunal.
- The policy cannot be applied if it is unlawful (i.e. policy is inconsistent with the enabling Act): Re Goodson and Secretary DEETYA.
Drake v MIEA
Facts: Drake was a U.S. citizen, sentenced to 12 months for having cannabis. Brought him within the criminal deportation power. But magistrate recommended release in 3 months. Minster applied the criminal deportation policy, where Drug traffickers and child sex offenders will be deported. But there was a right of appeal to the AAT, and the latter could decide for itself.
Findings: The AAT’s function is not supervisory. It erred in law by failing to make an independent assessment of whether to apply the Minister’s policy. It abdicated its function of deciding for itself what the correct and preferable decision was. It merely ascertained whether the Minister had acted reasonably in accordance with his policy.
This decision was remitted to tribunal.
Re Drake and MIEA (no 2)
Facts: Brennan J urged caution in departing from government policy, especially Ministerial policy.
• importance of consistency in decision making
• Limitations on adjudicative tribunals as policy makers, though they may contribute incrementally.
• Political responsibility of ministers.
AAT has drawn distinctions between types of policies
(1) Basic Policy:
- Made at the political level (relatively binding) and policies implementing basic policy (more flexible): Re Becker.
(2) Policies regulating an entire industry
- Policies regulating an entire industry and allocating a scarce resource (relatively binding):
- E.g. Re Jetopay: Dealt with fisheries policy. Public interest – conservation on the resource and industry. Tribunal shouldn’t depart from these policies. Once AAT interferes, as it impacts on all other operators in fisheries.
- But policies which apply to particular individuals where the public interest is more diffuse (more flexible). E.g. Criminal deportation policy
Administrative Decisions Tribunal Act 1997 (NSW) Sec 64
Must give effect to a valid policy that has been certified by a minister as government policy, unless the policy produces an unjust decision in the circumstances of the case.
- Unlike the VCAT Act 1998 (Vic) the ADT does not have to apply a policy which produces an unjust decision.
Public Reliance on policies etc
Are there public law remedies, where government changes its policy or reneges on a representation or undertaking or gives wrong advice?
– “Administrative estoppel”? “Substantive fairness?”
Public Law
– As a general rule the private law doctrine of estoppel does not apply to the exercise of public functions. [The rationale is the ultra vires doctrine. Administrators cannot give powers they haven’t got, or fetter discretions that have to be exercised in the public interest.]
– Administrators exercising discretion in the public interest cannot be held to their policies, representations, undertakings or promises
– Procedural fairness does not extend to holding administrators to their policies etc even where a legitimate expectation has been generated.
• Contrast English cases in matters of human rights
• English cases rejected by Australian High Court in Lam’s case
5. Representations & Estoppel
Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic (1990) 92 ALR 93
Facts: Mr. Kurtovic had been ordered to be deported. Appealed to AAT. AAT recommended to the minister that deportation order should be revoked. Minister did so. At this time, the department warned Kurtovic that if he committed another offense, he will likely be deported. A new minister then came into scene and decided to deport Kurtovic on the original offense, not on any new offense.
Findings: Argument succeeded at first instance. But FFC overturned. We don’t have a doctrine of estoppel in Admin law. Furthermore, Kurtovic’s case fell at the threshold. He had relied n the representation to his detriment. But he eventually succeeded on the case based on procedural unfairness. There was adverse material which was not disclosed to Kurtovic.
Gummow J: Public law cases often fall at the hurdle of establishing the elements of estoppel.
1. There must be a clear and unambiguous representation or undertaking of a present or future act
2. The person making the representation must have intended that it be relied on…
3. there must be detrimental reliance (not emotional or psychological detriment)
4. it must have been reasonable to rely on the representation
▪ not reasonable to rely on government policy statements because government is free to change its policies
• Estoppel cannot be invoked where the performance of the promise or representation would be ultra vires. (Any qualifications would only concern intra vires representations).
• A power may be spent (i.e. only exercised once) in making a decision. Distinguished from estoppel.
• Some procedural requirements may be waived or non-compliance does not result in invalidity, in which case the decision stands.
• It may be that an estoppel can be raised where the representation is to the past (once and for all) exercise of discretion in favour of the person relying on it (see Windeyer J in Brickworks)
Facts: Mining applicant received letter of consent from council. At all times, applicant acted consistently with representation. Council took the mining quarry to court, claiming it had no consent.
Findings: More likely that the Court would refuse in its discretion to grant a remedy to a public authority that seeks to enforce its “change of mind”. Or the case may be decided applying the presumption of regularity
• Ostensible authority and presumption of regularity:
– In limited circumstances, a person dealing with government may assume that the officer with whom s/he is dealing has the requisite authority to make decisions; but
• it must be lawful to delegate
• there must be evidence justifying the assumption (e.g. a regular practice of that officer dealing with similar matters)
• Estoppel may operate where government acts in a “private capacity”
Procedural Fairness & Policies etc
Prior to AG v Quin
– Possible balancing approach where legitimate expectations have been generated.
• Fairness or good administration requires public authorities to honour their undertakings unless there is a countervailing public interest: AG (Hong Kong) v Ng Yuen Shiu (Privy Council)
• Ng’s case involved an undertaking as to procedure
• In some English and Australian cases Ng’s case used to enforce the substance of an announced policy or undertaking
Australian position since Quin
– Reviewing court will not enforce the substance of a policy, promise, undertaking or representation: Quin; Re MIMA ex p Lam
• A legitimate expectation at best attracts procedural protection e.g.
– if departed from in the individual case (Teoh)
– if application of the policy involves consideration of circumstances personal to the individual affected (Haoucher)
– Where a particular procedure is promised, the procedure that accords with procedural fairness will be enforced, which may be different from the promised procedure (dicta in Quin)
– To obtain relief, procedural unfairness must be shown, not merely departure from a representation as to procedure: Re MIMA ex p Lam
Contractual Fetters
• As a general principle, a public administrator cannot by contract disable itself from performing a statutory duty or exercising a statutory discretion in the public interest by binding itself or its officer not to perform the duty or exercise the discretion in a particular way in the future
– The contract is invalid, unless authorised by statute.
– See cases discussed by Mason J in Ansett Transport Industries v Cth
Mason J obiter in Ansett
1. Where government enters a contract which relates to a discretion vested in an administrator who is a not party to the contract, the unfettered exercise of the discretion may be sufficiently preserved if the validity of the contract is upheld, provided that it is enforceable only by way of action for damages and not specific performance
2. If a contract is authorised by statute and valid, the remedy for breach of contract depends on whether the contract preserves the discretion or converts the discretion into a duty
a. If it preserves the discretion: damages only
b. If it converts the discretion into a duty: specific performance
10. LAW, FACT & EVIDENCE
1. The Law/Fact Distinction
Distinguishing between errors of fact and errors of law.
Finding the primary facts: Determining the primary facts is a question of fact and is not reviewable even if the finding is perverse.
Finding the law: Statutory interpretation is a question of law, including the deciding whether a word or phrase bears its ‘ordinary meaning’.
Interpreting the law: The meaning of a word bearing its ‘ordinary meaning’ is a question of fact. The meaning of technical or legal terms is a question of law.
Drawing inferences from the primary facts and applying the law to the facts: Applying ‘ordinary’ words or phrases to the facts as found is a question of fact; however an error of law will be made if there is no evidence to support the conclusion or if the facts admit of only one conclusion (see Hope v Bathurst CC). The court will not review the weight of evidence. Provided there is some evidence for the inference, neither want of logic nor unreasonableness nor insufficient evidence constitute errors of law (see ABT v Bond) unless, it would seem, the irrationality is extreme (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant s20/2002).
Some Types of Errors of law
• Law has been misunderstood.
• There is no evidence to support the conclusion.
• The facts admit of only one conclusion.
• (Inferring from the inadequacy of the material + errors) decision maker has misunderstood its jurisdiction.
Common law
Judicial review at common law on errors of law depends on the error being ‘jurisdictional’, or being ‘apparent on the face of the record’.
Jurisdictional error of law
Errors of law that go to jurisdiction ( reviewable
Errors made within jurisdiction ( not reviewable (unless apparent on the face of the record).
• Craig v South Australia signaled an expansive view as to the range of errors of law committed by administrators that would be held to be jurisdictional. Today, very little leeway to make non-jurisdictional errors of law.
• The ground of ‘error of law on the face of the record’ has become correspondingly irrelevant.
Summary
Errors of law are reviewable
Common law, the error ‘goes to jurisdiction’ or goes to power “vires”.
• Or even if it is ‘within’ jurisdiction, the error appears on the face of the record.
ADJR; Judicial Review Act: permit review of all errors of law.
= But effectively, there’s little difference between common law and ADJR act.
• Often, a statute provides for an appeal on a question of law (e.g. Hope v Bathurst CC – provides review opportunity from Land and evaluation court to supreme court of NSW.
Errors of fact are reviewable
At Common law, errors of fact are reviewable where…
1. If it is an essential condition of the existence of jurisdiction that a certain event or requirement has in fact (‘objectively’) occurred and the administrator purports to act in circumstances where that event or requirement has not in fact occurred. (“jurisdictional fact review”): Timbarra; Enfield.
2. If there is no evidence to satisfy an essential (jurisdictional) statutory element, then the court can intervene (“No evidence”)
Melbourne Stevedoring case
Facts: Board had enquired whether Melbourne stevedoring was fit to employ waterside workers. The evidence was that there had been lots of absentees in the work force, which wasn’t adequately supervised and reported to the board. But very flimsy. There were four cases of workers being absent, and three of them were easily explained. Two cases – they had been absent, but company wasn’t to blame. The other worker had only been absent for 15 minutes. Not much evidence against the company. But still proceeded to deregister the company. The person conducting the enquiry announced the policy of the board, to ensure that there was close supervision of the workers. The stevedoring company went to HC in original jurisdiction, to get prohibition of the enquiry getting any further. They argued it was acting outside jurisdiction.
Findings: To satisfy the ‘no evidence’ ground of review, there must be no evidence whatsoever. If there were some evidence, no matter how flimsy, the court cannot intervene.
3. If a serious fact-finding error constitutes another ground of review.
E.g. If the court can infer that the decision maker ‘asked the wrong question’, ‘applied the wrong test’ or otherwise misconceived its jurisdiction.
Melbourne Stevedoring Case
Findings 2: If insufficient evidence may in combination with other grounds (e.g. improper purpose) support an inference that the board has misunderstood and misconceived its jurisdiction, then the courts can intervene.
Erroneous fact finding could also constitute other grounds, such as failure to have regards to a relevant matter (Peko Wallsend) or taking into account irrelevant matters.
In s20, HC signaled that Wednesbury unreasonableness should not be applied to fact finding, only the ultimate decision.
1. The Fact/Law Distinction: Errors in interpreting and applying the statute
Three stages of decision making
1. Finding the facts
2. Finding and interpreting the law
3. Applying the law to the facts
1) Findings of facts
Finding the primary facts and drawing inferences from them is a question of fact. These are not reviewable even if they are manifestly illogical or perverse
Azzopardi v Tasman
Findings: Illogicality and perversity does not constitute an error of law, unless the fact finding was so miscarried that it can be drawn from inferences that the decision maker ‘asked the wrong question’, ‘applied the wrong test’ or misconstrued its jurisdiction’.
It is reviewable if there was no evidence to support the finding:
Melbourne Stevedoring.
The HC has not yet resolved whether the no evidence ground applies also to primary fact finding..
2) Finding and interpreting the law
Statutory construction is a question of law, including deciding whether a word of phrase bears its ordinary meaning: Agfa-Gavaert.
If a word or phrase bears its ordinary meaning, its meaning is a question of fact (i.e. dictionaries can be consulted).
If it is a technical or specialist word, then it is a question of law. (May require expert evidence).
If it a composite of technical and ordinary words, it is a question of law: Agfa-Gavaert.
3) Applying the law to the facts
Applying technical words or phrases to the facts as found is a question of law.
Applying ordinary words or phrases to the facts as found is a question of fact.
However, an error of law will be made if there’s:
• no evidence to support the conclusion, or
• if the facts admit of only one conclusion: Hope v Bathurst CC.
Provided there is some evidence for the inference, the court will not review the weight of evidence. Want of logic, unreasonableness or insufficient evidence, are NOT errors of law: ABT v Bond. But the court may infer misconception of jurisdiction: Melbourne Stevedoring.
Hope v Bathurst City Council (1980) 144 CLR 1
Facts: Issue was whether Hope’s land was “rural land” as defined in Act as including land used for carrying on the business of grazing. 80% of land had been used for many years for cattle and horses.
Findings: HC held two errors made.
1) Error of law in construing the statute as requiring that an activity had to be significant to constitute a business.
2) Error of law in finding that the land was not being used to carry on the business of grazing.
a. “Business” bears its ordinary meaning. May be found in dictionary, as “a commercial enterprise as a going concern”
b. Based on facts admitted, there was only one conclusion, i.e. transactions were entered into on a continuous and repetitive basis for the purpose of making a profit and the activity had a permanent character.
2. Judicial Review on grounds of error of law
Common law - Jurisdictional Error of Law
At common law, a distinction is drawn between errors of law which go to jurisdiction (or power) which are reviewable; and errors within jurisdiction, which are not reviewable, unless…
• the error is an error of law and
• it appears on the face of the record and
• review is not precluded by a privative clause.
Courts have not provided us with an explanation of whether error is within or outside jurisdiction. The courts appear to reason backwards from the desired outcome.
In Craig v SA, the HC signaled that all errors of law made by administrators should be regarded as jurisdictional.
Craig v State of South Australia (1995) 184 CLR 163
Facts: Craig applied for an application like Dietrich – legal representation. Magistrate had to make various findings about Mr. Craig.
Findings: HC found that any errors that magistrate made were within jurisdiction were errors of fact. So would not intervene. Within the course of deciding, the HC spoke of the doctrine of jurisdictional error and application in law, distinguishing between inferior courts and administrative bodies:
A broad doctrine of jurisdictional error is applied to administrators – all errors of law, including abuses of discretion, are reviewable.
A narrow doctrine of jurisdictional error is applied to inferior courts, allowing courts to make errors within jurisdiction which are not reviewable unless the error is one of law and apparent on the face of the record.
Common law - Error of law on the Face of the Record
Becoming irrelevant, because of the expansion of jurisdictional error of law (Craig v SA) and due to ADJR Act, where all errors of law, whether jurisdictional or not, are reviewable.
Elements:
1. The error must be one of law
2. Must be apparent on the face of the record.
3. Decision is valid until quashed by certiorari
4. Unlike other errors, which were affected ab initio from the start.
A ‘Finality clause’ does not prevent review on this ground: Hockey v Yelland, (unlike privative clauses). It simply cuts off appeal, but not judicial review.
“Apparent on the face of the record”
The record comprises the document which initiates the proceedings, the pleadings if any, and the formal order. (Northumberland CAT, ex p Shaw). Few exceptions. (see SC Act (NSW) s69(4), includes the reasons expressed by court or tribunal.)
3. No evidence under the ADJR Act
ADJR Act (Cth)
• Drafted in 1970s
• Slightly different from the common law stated principles.
• Grounds of review:
Sec 5(1)(c) The person did not have jurisdiction to make the decision.
Sec 5(1)(f) decision involved an error of law, whether on not it appears on the record.
However, errors must materially affect the decision. I.e. but for the error, the decision would or might have been different. ABT v Bond.
Sec 5(1)(h) There was no evidence or other material to justify the making of the decision.
There is some authority (Rajamanikam) that this had to be satisfied in addition to satisfying either:
(a) was required by law to reach a decision only if a particular matter was established, and there was no evidence or other material which s/he could reasonably be satisfied that the matter was established.
or
(b) based the decision on the existence of a particular fact, and that fact did not exist.
In other words, if there is some material, review is unavailable.
Re: (a) - “No evidence to support an essential statutory requirement”. The requirement must be a precondition in law to the making of the decision. The impugned finding must be critical to the decision: Gaudron & McHugh JJ in Rajamanikkam.
Re: (b) “reliance by the decision maker on a non-existant fact”. Very difficult, as it is limited to critical facts to the final decision: Curragh; Rajamanikkam.
Onus of disproof:
• Must negative the existence of fact. Not enough simply to establish lack of probative evidence: Curragh.
• The court is not limited to the evidence before the decision maker.
11. BREACH OF STATUTORY DUTY
1. Statutory duty to make a decision or exercise a power
A statutory duty to make a decision carries with it:
• an implied duty to consider whether or not to exercise the power, and
• a duty to exercise discretion according to law
* If not, a constructive failure to decide
• An actual (failure to consider at all) or constructive failure (not according to law) to make a decision can be compelled by mandamus.
In cases of delay, failure to seek mandamus could constitute a discretionary reason to deny later relief:
NAIS v MIMIA (Obiter)
Facts: There was extreme delay for the refugee tribunal to make a decision. Some judges touched on issue whether the applicants for asylum should have sought mandamus prior to decision being made, in order for the tribunal to speed up. Minister did not raise the issue and didn’t argue it.
Findings: In cases of extreme delay, it may be a factor in refusing a remedy, where the person did not earlier seek mandamus to compel the decision maker.
Kirby J thought it was quite unrealistic to expect applicants to seek mandamus to compel refugee tribunal to reach speedy decision.
• The duty to consider whether or not to exercise the power can be negated by statute.
Migration Act s 417
• Minister has the power to substitute for the decision of the RRT a decision more favourable to an asylum seeker if the Minister thinks it is in the public interest.
• But s7 MA expressly provides that “the Minister does not have a duty to consider whether to exercise the power” even if requested.
MIMIA, ex p S134/2002
Facts: Minister refused to exercise the power.
Findings: As the Act states that the Minister does not have a duty to consider whether to exercise the power, mandamus is not available.
ADJR Act s7 - Addresses the failure to make a decision, within a prescribed time. Review can be sought where there is delay.
“Unreasonable delay” is an objective test:
Thornton v Repatriation Commission
Findings: If the delay for a considered reason? (E.g. the outcome of litigation in a similar case) and not by reason of neglect, oversight or perversity? Is the delay for a finite rather than indefinite period?
Jianxin v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455
Facts: Case dealt with applications for permanent residence by Chinese nationals after Tiananmen massacre. Bob Hawke extended protection for Chinese nationals already in Australia. There was an increase of applications, but not sufficient resources.
Findings: There were unreasonable delays in dealing with applications lodged prior to Tiananmen. Remedy: declaration and order to determine within 8 weeks.
No unreasonable delay in dealing with application lodged after dramatic increase. It was reasonable to deal with applications chronologically.
2. Statutory Duty to Provide a Service
Whether a duty to provide a service can be enforced depends on matters such as:
• The nature of the function to be performed. (is it an essential service? A monopoly service?)
• The impact of non-performance. (e.g. on trade and commerce)
• The seniority of the official on whom the function is conferred.
• The practicability of judicial enforcement.
Mudginberri Station Pty Ltd v Langhorne (1985) 7 FCR 482
Facts: Orders were made under the Export Control Act prohibiting the export of meat unless it had been inspected by an authorized officer. Orders did not specify whether an application must or may be granted or even who is to deal with it.
Mr. Langhorne made a decision to refuse meat inspectors to the Mudginberri station because there was a picketline.
Findings: FFC held that there is a non-discretionary duty on the Department to provide inspectors. Factors considered:
• Provision of inspectors is essential to the carrying on of the relevant trade and commerce.
• A monopoly service which cannot be provided privately.
• Intended to be exercised by a local official ‘as a matter of course’
• The Rights and obligations of would-be-exporters hedged around the object and criteria, ‘if such and such happens…’ with some precision. So there was no discretion.
Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739
Facts: A remote aboriginal community sought an ADJR act requiring telecom to provide a standard telephone service in accordance with the Community Service Obligations.
Findings: FC held that it was judicially unenforceable. Too broad a discretion which affects public interest. Conceived that if there was total failure to provide service, then judicial relief would be available. But so long as there was a timetable developed to provide services, it was not for the court to destruct this. Judgment on which community should get priority is something that’s best left to Telecom.
3. Statutory duty to enforce and implement the law
There is a public duty to enforce the law, but law enforcement discretion is unlikely to be disturbed by the courts, except perhaps where discretion is foreclosed.
Standing is a difficulty as the applicant is not usually directly affected: Federal Commissioner of Taxation v Biga Nominees.
However, standing may be extended to allow private enforcement of government legality. In Batemans Bay Case, acknowledged that standing may be more liberally applied and extended when government is breaking the law.
Legislation may permit civil enforcement of the law. E.g. Environmental Planning & Assessment Act
12. WEDNESBURY UNREASONABLENESS
Common Law and ADJR Act: an exercise of power that is so unreasonable that no reasonable person could have so exercised the power (“Wednesbury unreasonableness”).
• An independent ground of review.
• A distinction must be made between “I think you are wrong” (not reviewable) and “you are being so unreasonable that no reasonable person could sensibly take that view” (reviewable).
Lord Greene pointed out that ‘unreasonableness’ is apt to cover all the grounds of review.
- Irrelevant consideration
- Improper purpose
- Extremely unreasonable
And despite no other ground is reached, a decision can still be set aside on unreasonableness. But requires something overwhelming.
‘Species’ of unreasonableness
• intolerable breach of Community standards/human rights norms
• Inconsistent or unequal treatment of similar cases.
• Multiple powers: use of an inappropriate power
• Irrational or devoid of plausible explanation
• Lack of reasonable proportionality.
1.1 Examples
• Community standards/ human rights norms
Decision that is so outrageous in its defiance of accepted moral or community standards.
E.g. the arguments but not the findings in Kruse v Johnson, Wednesbury
• Livelihood extinguished
Edelston v Wilcox (1988) 83 ALR 99
Facts: ITA Act provided that the Commissioner of Taxation could require ‘any person by whom any money is due to a taxpayer’ to pay all or part of that money to the commissioner in satisfaction of an outstanding taxation debt. Commissioner issued notice requiring Health Insurance Commission to pay to tax office 100% of any medibank payments owing to Dr. Edelston, which would be his entire livelihood.
Findings: Court regarded that it was so unreasonable as to constitute legal unreasonableness as to set it aside.
• Inconsistent or unequal treatment of similar cases
Parramatta CC Pestell
Facts: A special rate was levied on all industrial land in order to develop an area for industrial purposes. This was not imposed on residential areas, despite deriving the same benefit. HC thought this was unreasonable.
Sunshine Coast Broadcasters v Duncan
Facts: A Radio station was not permitted to broadcast in neighbouring locality. 8 others were allowed. The application of the guideline applied against one and not against another without any rational justification.
• Multiple powers: use of an inappropriate power
• E.g. to avoid paying compensation
• Irrational or devoid of plausible explanation
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 112 ALR 211
Finding: Decision was fundamentally flawed because of a statistical fallacy in formula for allocating fishing quotas.
Prasad v MIEA (1985) 6 FCR 155
Facts: Mr. Prasad’s application for PR was refused by Department of Immigration on basis that his marriage to a woman who was a PR was not genuine. Part of the evidence for that finding was that the parties, in separate interviews, had given inconsistent accounts of the details of their marriage.
Finding: Wilcox in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have exercised it.
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [ 2003] HCA 30 (17 June 2003)
Findings: Majority expressed the view that Wednesbury unreasonableness should be confined to the ultimate decision (obiter), rather than the logic applied in fact finding. Not to be used for irrationality.
Some argue that S20 signals an indication that the HC may develop a separate ground for extreme irrationality for fact finding. At the very least, the case caution in using Wednesbury in challenging fact finding.
• Lack of reasonable proportionality
Extreme caution should be exercised in applying proportionality.
South Australia v Tanner
Findings: HC was willing to ask whether delegated legislation was disproportionate to the end to be achieved and thus invalid.
Subsequently, HC has emphasized that proportionality is not an independent ground of review. Further, it has confined the reasoning in Tanner to judicial review of delegated legislation, and then only to legislative powers that are ‘purposive’ rather than legislative powers which operate on a particular subject matter. See dicta in Cunliffe.
In UK courts- Wednesbury and proportionality are treated separately. Whereas here, it seems that proportionality is within the test of wednesbury un/rs.
1.2 Duty of Inquiry
Where there has been a failure to obtain information that is readily available and centrally relevant the decision may be unlawful on grounds of
• unreasonableness
• or failure to have regard to relevant considerations
• or denial of procedural fairness
Thus the failure to inquire is not an independent ground of review.
But there is recognition of a limited duty of inquiry:
Wilcox J in Prasad (obiter): a court on review may receive evidence as to the material actually and constructively before the decision maker, as well as material which the decision maker unreasonably failed to ascertain.
• e.g. up to date facts: Bropho v Tickner
• or facts not within the knowledge of the applicant: Chan v MIEA.
But it is not the decision-maker’s duty to make the applicant’s case.
MIMIA, ex p S134/2002
Facts: Mrs. B applied for refugee status in Australia, not knowing her husband had already been granted refugee status/protection visa in Australia. Had they known, a ‘spousal dependency’ application would have been easier.
Issue: Whether RRT failed to take into account a material fact; viz the applicants’ membership of the same family unit as their spouse/father who was in Australia and had been granted refugee status.
Finding 1: The privative clause cannot prevent review of jurisdictional errors.
Finding 2: (Gaudron and Kirby JJ in dissent) In satisfying itself of the subjective jurisdictional fact, the tribunal is under no obligation to reach a state of satisfaction respecting criteria which the applicant did not advance. i.e. not a mandatory consideration.
Finding 3: Minister has the power to substitute for the decision of the RRT a decision more favourable to an asylum seeker. [B asked Minister to exercise its power, having regard to what was now public knowledge. But Minister refused to do so].
• “If the Minister thinks it is in the public interest to do so”
• Must report to each House if the Minister does so
• Must be exercised by the Minister personally.
A refusal to exercise the power was not invalid for failure to take into membership of the same family unit as a refugee. Minister’s discretion is not conditioned on being satisfied that the applicant is a refugee.
(Kirby & Gaudron JJ agreeing – felt powerless) As the Act states that the Minister does not have a duty to consider whether to exercise the power, mandamus is not available.
13. CONSEQUENCES OF UNLAWFUL DECISIONS
1. Invalidity
Unlawful government action is ‘invalid’, ‘void’ or a ‘nullity’.
At common law, certiorari quashes a decision ab initio.(The only prerogative remedy that will wipe the slate clean from the start)
Under ADJR, the Court can decide the date from which an invalid decision can be set aside.
However affected persons must assume the regularity of government action until a judicial ruling is obtained. E.g. a decision can be appealed even if it is unlawful.
The court has a discretion to refuse relief where innocent parties would be affected or a remedy would be futile.
2. Breach of associated statutory requirements
Breach of associated statutory requirements while unlawful, may / may not result in invalidity.
Example where it may be invalid:
• Public consultation is so essential to the decision making process that a breach of such leads to the invalidity of the decision.
Examples where it may not be invalid:
• Using the wrong form may not result in breach.
• Where you challenge a failure to observe a procedure at early stage, you are most likely to get a remedy. (But usually, the case deals with situations after the decision is made.)
• Failure to table does not affect validity – NSW, but leads to repeal of the Act – Cth
• Failure to publish doesn’t make the law invalid, but it does mean it hasn’t begun operation.
Project Blue sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Facts: There was a requirement for the ABA to perform functions in a manner consistent with Government policy, ministerial direction and Australia’s obligations under international agreements.
Issue: Despite declaring a breach, the Court would not declare that the programme standard was invalid. What was the consequence of the breach?
Findings: Must work out the consequences on a case by case basis.
• The enabling Act may spell out the consequence: E.g. failure to table statutory rules in NSW is said not to affect validity, but in the Cth, the failure to table effects a repeal.
• If the consequence must be implied, ask: Was the purpose of the legislation that an act done in breach of the provision should be invalid?
• Relevant factors in deciding the consequence :
1. The language of the statute
2. The subject matter
3. The nature of the requirement and who is responsible for ensuring compliance
4. Public inconvenience and injustice to persons who have no control over those entrusted with compliance.
It is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.
But although contravention is not invalid, it is a breach of the Act and therefore unlawful. A person with sufficient interest is entitled to sue for a declaration that the Act has been breached, and in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.
ADJR Act (Cth)
Review where procedures that were required by law to be observed in connection with the making of the decision were not observed.
14. STANDING
General
Standing: the ability to institute and maintain court (tribunal) proceedings
Capacities in which individuals or groups may participate:
5. Friend of the court (amicus curiae)
▪ Inherent discretion of court
▪ Not a party to the proceedings
▪ May inform the court on issues about which the court may remain ignorant if left to the parties alone
6. Intervention: participation by a 3rd party e.g. HREOC or AG in an action already under way.
▪ Becomes a party to the litigation
▪ Interests may be different from those of the parties
▪ Intervention must be permitted by law, although the AG always has the capacity to intervene to protect the public interest.
Historically, test for standing was different depending on the remedy. Today, there has been a considerable convergence on a ‘sufficient connection with the subject matter’ test.
Consider:
1. The reasons given for limiting standing
2. Does restrictive standing mask justiciability issues?
• A plf can sue without joining the AG when:
1. If the interference with the public right is such that some private right is at the same time interfered with.
2. Where no private right is involved, if he or she has a special interest in the subject matter of the action (ACF v Cth; Onus v Alcoa)
• Shift of emphasis from nature of interest to connection with subject matter: Onus v Alcoa
ACF v Cth
Facts: Iwasaki company proposed to establish a tourist resort. To finance the project, required foreign exchange approval by the Cth. Before approval, an environmental impact process had to be conducted, under EPIP Act. ACF (Australian Conservation Foundation) commenced proceedings in HC for a declaration and injunction, claiming that the Cth proposed to give approval without complying with EPIP. ACF was an incorporated association that was established to advocate on environmental clauses.
Findings: Decision was struck out on a lack of standing.
“An interest … does not mean a mere intellectual or emotional concern. A person is not interested…, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle …. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give standing.”
Onus v Alcoa
Facts: Aboriginal women brought proceedings against Alcoa. Instead of challenging the govt decision, they challenged the corporation, seeking compliance with the Aboriginal cultural heritage. In the course of constructing the smelter, the argument was that there would be a breach of heritage legislation. Were granted standing by HC.
Findings: There was a much closer connection with the subject matter than other Aborigines.
Stephen J: Distinguishes the ACF Case. Finds that the criterion of ‘special interst’ supplies no mechanical rule. Each case requires a curial assessment of the importance of the concern which a plaintiff has with the subject matter and the closeness of the plaintiff’s relationship to that subject matter.
Bateman’s Bay
Facts: Aboriginal land council established a funeral benefit fund in competition to a similar fund operated by the ACBF, a private company. ALC were being unlawfully subsidized by NSW government.
Findings: HC granted standing to ACBF.
Recognises that the subject matter of administrative law litigation is the observance by public bodies of statutory limitations on their powers. Where unlawful expenditure of public money is alleged and there is a need for urgent interlocutory relief or where the AG’s fiat has been refused or is unlikely to be granted, a restrictive application of the ‘special interest’ test is not warranted – the special interest test should be construed as an enabling, not restrictive, stipulation
ADJR Act: “person aggrieved” includes a person whose interests are affected by the decision/ conduct/ failure.
Examples
- Vocational and professional interests confer standing: Ogle v Strickland
Facts: Granted standing of Catholic priests to challenge censorship board on a film.
Findings: FC thought it was a ‘necessary incident’ of their vocation to challenge blasphemy. (Criticized in McBain, but not overturned).
- Participation in a primary decision-making process confers standing: US Tobacco v Minister for Consumer Affairs
Facts: US Tobacco was seeking judicial review of minister’s decision to make declaration that certain tobacco was unsafe. There had been a conference in the TPA in which AFCO had applied to intervene to support minister’s decision. At first instance, weren’t allowed to intervene. But FFC did grant intervention.
- Capacity to represent the public interest: ‘Woodchip Export Licence’ cases. Derived from …Sackville factors
1. objects of organization
2. status as a peak organization
3. recognition by government, (e.g. govt. funding)
4. research and other activities related to subject matter.
Right to Life Association (NSW) Inc v Secretary, Commonwealth Department of Human Services and Health (1995) 128 ALR 238
Facts: Clinical trials were being conducted in Australia. Right to life wrote to the secretary of department, asking for a stop of the trials. Secretary refused to do so. This was challenged.
Findings: FFC held that the association did not have standing under the ADJR Act as a ‘person aggrieved’ to challenge the failure of the secretary to take action under the Therapeutic Goods Act.
Gummow J: A decision not to intervene is not a decision under ADJR. Manifestly unenthusiastic about Sackville factors.
Beaumont J: organization doesn’t get funding or acknowledgement by Govt, or represented on any consultation committees.
Lockhart J: hasn’t engaged in any research.
Despite all these factors pointing to a lack of Sackville factors, the judges were not keen of latter.
At the end - the object of the good had nothing to do with the Therapeutic Goods Act.
Statutory Reform
EPA Act 1979 (NSW) s123
Any person may apply to the Land and Environmental Court for an order to remedy or restrain a breach or instrument made under the Act.
Any person includes public interest litigants and competitors.
3. RULE-MAKING
Definitions
Delegated legislation – legislation made by an administrator in the exercise of a power
conferred by statute.
• they have the force of the empowering statute
• must be within legislative power of the delegator and not be so wide as to be uncertain or amount to abdication of legislative power
• includes rules, regulations, ordinances and by-laws and orders-in-council
• note the legality of this process: Dignan
Subordinate legislation – Legislation created by individuals or bodies other than parliament and authorised by an Act of parliament. Include rules, regulations, ordinances, by-laws, statutory instruments, and proclamations.
The main features of the Legislative Instruments Act 2003 (Cth):
Scope of application: The Act applies to ‘legislative instruments’, which are defined in sec 5(1), (2) as:
• instrument in writing
• of legislative character
• is or was made in the exercise of a power delegated by Parliament.
• “legislative character”: If it determines the law, alters content of law (rather than simply applying law in a particular case), if it has direct or indirect effect of affecting privilege or interest imposing obligation, creating a right, oe varying or removing an obligation or right.
Minister of Fisheries 40 FCR 381
Facts: Fisheries management plan brought out to respond to overfishing was held to be invalid, because it was ‘fundamentally flawed by a statistical fallacy inherent in its operation… The relevant provisions of the plan were capricious and irration, such that no reasonable person could ever have devised it.
Lockhart at : “Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact the laws.”
There is a general principle that delegated legislation must be within the powers conferred by the statute – it includes grounds such as unreasonableness and uncertainty.
- Thus delegated legislation is not invalid on the ground of unreasonableness per se, but because the Parliament would not have intended the empowering Act to be unreasonable.
- Court found that the formula was indeed not what Parliament intended and therefore void.
Terminology used in naming delegated legislation
Cth uses 3 major labels:
• regulations (must be published, and attract parliamentary disallowance procedures),
• disallowable instruments (basically the same)
• statutory rules (must be published, but not subject to disallowance).
NSW uses 2 major labels:
• ‘statutory rules’ (attract the operation of Interpretation Act 1989)
• ‘principal statutory rules’ (attract consultation requirements and sun-set rules)
Requirements for making valid delegated legislation
Consultation requirement
NSW: Subordinate Legislation Act 1989 (NSW).
s 5(1) Sets up a Regulatory Impact Statement (RIS) scheme, and a public notice and comment procedure, for the making of statutory rules. The regulation review committee is the watchdog.
Sch 3, Subordinate Legislation Act, 1989 (NSW) – examines the various incidences where consultation is not required for regulations. For example, consultation is not required if principal statutory rule is likely to have a non-trivial impact on members of the community. It is not required for minor changes.
Minister can say RIS is not required because contrary to public interest [s 6(1)(b) and s6(1)(c)(ii)]
RIS must provide a cost-benefit analysis of the proposed subordinate legislation including: objectives to be achieved, an assessment of alternative means that objectives might be achieved, costs and benefits (Sch 2, 1 (c))
If RIS required, notice of intention to make legislation must be published in the Gazette and newspapers. It must include details of where legislation/RIS may be inspected, and inviting submissions: s 5 (2)(a)
What happens if consultation not undertaken?
Requirements not met may affect the validity of the subordinate legislation (s 9(1))
Commonwealth:
See Legislative Instruments Act 2003 ss 17 -19
“Professional vetting”
Proposed legislation cannot be submitted to the Governor unless the AG or Parliamentary
Counsel has certified that it is legally made. Subordinate Legislation Act (NSW) s 7(c).
Publication Rules
NSW: the rule itself must be published in the Gazette: Interpretation Act 1987 (NSW) s 39(1). If it fails to be published, the rule is not void but is only effective from the date of its Gazettal. Interpretation Act 1987 s 39 (2A)
Commonwealth: Legislative Instruments Act 2003 provides for the Federal Register of
Legislative Instruments. Instruments must be made available to the public: s 29. A failure to register means that the instrument is unenforceable: s 31.
Golden-Brown v Hunt (1972) 19 FLR 438
Facts: Involved the Aboriginal tent embassy on the lawns of old Parliament House.
Notification of the regulations to remove from embassy were required to be put in the Gazette.
S12(2)(a) Seat of Govt (Admin) Act: making of Ordinance shall be notified in the Gazette, and place where copies can be obtained.
Two issues:
• Notice said: “ordinances” - which was deceptive b/c only 1 ordinance
• “making” - not clear whether made, or yet to be made
With these 2 things alone legislation would have been sufficiently notified.
However there was issue of the details as to place where copies can be obtained. Referred to postal address and AGPS (~ lay person wouldn’t have known what this was). But should have specified an address, where people can pick it up. Thus, the legislation was inoperative until proper notice was given.
Ordinance was therefore not operative at the time the police purported to act under it, or at the time of the hearing.
Watson v Lee (1979) 144 CLR 374
Facts: Plaintiff was taking currency out of Australia without the RBA’s approval.
Issue: Illustration of the court’s approach to categorisation of procedural requirements.
Decided under previous statutory publication requirements:
Findings:
s 48(1)(a) Acts Interpretation Act – shall be notified in the Gazette means published in full.
s 5(3) Statutory Rules Publication Act – Short form of compliance: must give notice of rule having been made, and the place where copies can be purchased.
- unanimous that there was a common law requirement that the citizen has a right to
know the law and be able to access the law;
- therefore when delegated legislation is created, the citizen is entitled to know that the
by-law or rule will be published;
- each judge has different understanding as to what publication entailed; Ratio is hard to extract as all judgments focussed on different questions nonetheless, this is clear: If it is not available it is not operational – once it becomes available it becomes operational.
Can you pick a majority answer to the following issues?
i) Whether publication of the rule is a precondition to its coming into force? Majority – YES
ii) If “yes” to (i), what section of what Act is the basis of a publication requirement?
iii) Whether a Rule could in those days never come into operation unless it was available to the public on the day it was Gazetted? Barwick J says that if you subsequently run out of stock, it would not affect the operation of the ordinance. But if from the beginning, there is no stock, than the ordinance is inoperative.
iv) Whether a rule stopped operating if it ran out of print? Barwick seems more stringent and dogmatic. Most say no.
v) Whether the case assumed that there were common law rules about publication before statutory requirements were passed? Barwick identifies a whole series of common law rules – common person test.
Dissenting:
Mason J - believed copies didn’t have to be available then and there.
Gibbs J – publication merely directory, not mandatory instructions. There was substantial compliance with Acts interpretation Act (at the time). So long as it states where it can be purchased, it’s ok.
Tabling requirement
Legislation must be tabled within a specified time of its making so that it is viable for
parliamentary review. When disallowance is passed, the legislation ceases to have effect not retrospectively, but from that moment on.
If subordinate legislation is not tabled as required, thus becoming inoperative, it will nevertheless have had legal effect in the interim.
Interpretation Act (NSW) s40(1)
Statutory Rules must be laid before both houses of parliament within 14 sitting days (IA s
40(1)). A disallowance motion may be made within 15 days of tabling. (IA s 41(1).). If a
disallowance motion is passed, the subordinate legislation ceases to have effect. (IA s41(2)). However, subordinate legislation survives failure to table before Parliament: (IA s 40(4)). There is provision for later disallowance under (IA s 10(5b)(b).).
Section 48 of the Acts Interpretation Act has been replaced at the Commonwealth level by Part V of the LIA (legislative instruments Act).
Section 38 of the LIA requires that instruments must be tabled within 6 days of being registered on the Legislative Instruments Register.
Parliament now has 15 days to disallow it pursuant to s 42 of the LIA.
Tabling when parliament is in recess:
(See 6.4.3 & 6.4.5 ): Tabling must be done in session. When tabling is delayed, within the intermediate period, it is not invalid.
Case discussed in class: Thorpe v Minister for Aboriginal Affairs (1990) 26 FCR 325
Sunset Clauses
S 10(2) Subordinate Legislation Act 1989. Legislation ceases to have effect after 5 years 1 day.
Can have annual extensions for up to 5 yrs. After that, legislation has to be re-made. This prevents occasion for reconsidering particular regulatory schemes, and means existing
schemes must come under scrutiny. Also prevents huge amounts of old subordinate
legislation accumulating.
See also Part 6 of the LIA 2003.
Ways to control delegated legislation
Parliament
1. Repeal of governing Act
2. Scrutiny of Bills by a Senate Standing Committee
3. Tabling and disallowance rules
4. The empowering Act may contain limitations and procedures
5. Choice of cabinet at next election
6. Terminology - a) determines the specific rules and procedures applicable to the specific delegated legislation; b) use of mandatory or directory terms determines
whether requirements are mandatory or discretionary
7. Sunset clauses
Administrative control
1. Professional vetting
2. Publication rules (Gazettal)
3. Consultation requirements
4. Explanatory memoranda - during the process of making delegated legislation, there
is usually a requirement that Ministers and other officers of government departments need to prepare an explanatory statement (attached to the Bill form)
Judicial control
Judicial review can really only help after a person has suffered some sort of grievance
1. Doctrine of simple ultra vires - ensuring the subordinate legislation is authorized by enabling Act. (Take note of the terms and definitions within the Act)
2. Extended ultra vires - ensuring subordinate legislation is consistent with the intention of parliament e.g. reasonableness, certainty.
3. Procedural ultra vires - ensuring subordinate legislation is both made and applied
consistently with any procedural requirements ~ a) within the Act itself; b) in administrative law generally.
Questions to be answered
a) When is a statutory rule made?
b) When does a statutory rule become operative?
c) Can the rule be retrospective in its operation?
[prima facie, retrospectivity is frowned upon. The elasticity of the concept is that it’s ok if it’s a positive application, but not an adverse application. Overarching principle however is that retrospective rules cannot precede the date of commencement of the Act, or else it would be outside the ambit of the act.]
d) When does a statutory rule cease to be operative?
e) What is the effect of its inoperation?
14(2). REMEDIES
1. Certiorari
• Traditional remedy for jurisdictional error, procedural unfairness & error of law on the face of the record.
• Only remedy that can get rid of an unlawful decision.
• Today it is enough that the decision has a discernible legal effect; e.g. a step in a process (e.g. preliminary decision) capable of altering rights, interests or liabilities: Hot Holding v Creasy
* As long as it’s a required step in the statutory procedure, leading to a legal effect, then sufficient.
Ainsworth v Criminal Justice Commission
Facts: Report investigating the gambling industry. Highly critical of Ainsworth and said shouldn’t be able to operate in QLD.
Finding: Certiorari not available where a report was not connected to a train of decision making leading to a decision capable of altering rights, interests or liabilities.
Finding 2: Declaration was the appropriate remedy.
Hot Holdings Pty Ltd v Creasy
Finding: Certiorari available where a preliminary decision is a mandatory relevant consideration for the final decision maker
2. Prohibition
• To restrain the respondent from taking further action where it is exceedings its powers.
• Traditionally granted for want or excess of jurisdiction and procedural unfairness
• Could have been granted in Ainsworth had application been made prior to publication of the report.
3. Mandamus
• Commands the performance of a public duty, including where there has been:
• An actual failure to exercise a discretion
• A constructive failure – i.e. a failure to exercise discretion according to law.
• But cannot compel a discretion to be exercised in a particular way.
In Ainsworth, this remedy was not available, because the CJC had no duty to investigate the gambling industry.
Statutory mandamus: NSW
s65 Supreme Court Act 1970 (NSW)
The Court may order any person to fulfill any duty in the fulfillment of which the person seeking the order is personally interested
4. Habeus Corpus
• To test the legality of detention or imprisonment.
• Protects the citizen’s liberty (e.g. immigration detention, parole).
• It must be established that:
i) The detention is attributable to the detainor
ii) The detention is unlawful
iii) The detainee has a legal right to be released
• there does not need to be a total restraint on freedom of movement: MIMA v Vadarlis
Tampa cases
Issue: Did the actions of the Cth in preventing the rescuees on the MV Tampa from entering Australia – including putting SAS troops on board – constitute detention for the purposes of habeas corpus?
Findings:
Beaumont & French JJ: No because they had no freedom to land in Australia and the Cth actions were incidental to its lawful power to prevent them entering Australia.
Black CJ (Dissenting): Yes – in a real and practical sense, the Cth had assumed ‘complete control over the bodies and destinies’ of the rescuees.
Equitable remedies
• All purpose remedies
• Available against public and private respondents
• Borrowed from private law to overcome technicalities of prerogative remedies: see discussion in Enfield
• But historically more restrictive standing
5. Injunction
• Prohibitory or mandatory order
- interlocutory or perpetual
• A coercive remedy, breach of which contributes contempt of court
• Can be sought against any ground in judicial review
• An all purpose remedy, including
- enforcement of the criminal law: Onus v Alcoa
▪ The wide discretion of the court is an adequate safeguard against abuse: Cooney
6. Declaration
• A conclusive statement of the pre-existing rights of the parties
- falling short of re-exercising a discretion: MIEA v Guo
• An all purpose and most widely used remedy in administrative law. (Not coercive)
- Ainsworth: Available where a prerogative remedy was not.
- Appropriate against the governor.
As at common law
• Doesn’t not authorize the court to re-exercise the administrator’s discretion: Conyngham
• Damages are not available: Park Oh Ho
• But the High court not only quashed the unlawful deportation order, it also granted a declaration that the detention was unlawful.
• This resolved finally most elements of a separate tort action.
Discretion of Court
• All the remedies are discretionary
- Including the ‘constitutional writs’: Re Refugee Review Tribunal; Ex parte Aala
• The discretionary barrier varies depending on the remedy sought
• Relevant factors in exercising discretion
1. Delay in applying for judicial review
2. Futility (e.g. Licence has expired)
3. Disproportionate prejudice to those relying on the decision.
4. Lack of good faith in applying for judicial review (e.g. using the court as a political platform)
5. Acquiescence or waiver (e.g. bias).
6. Alternative remedy which is equally convenient, beneficial and effectual; e.g.
▪ merits review by a tribunal: Bragg v DEET; NSW Breeding & Racing Stables v ADT
▪ Where injunction sought to enforce compliance with legislation, there is an alternative of criminal prosecution for breach of the legislation. Given if it was in Civil Proceedings:
- The defendant does not have the protections of the criminal law, is exposed to double jeopardy and may be imprisoned for contempt of court.
- There is a moral dimension to using the criminal law
- Even the Attorney General may be refused an injunction where AG tried to prevent women from having an abortion.
7. Injunction to enforce compliance with the law may be granted:
• In an emergency
• Where prevention is more consistent with the purpose of the Act than punishment after commission (e.g. Onus v Alcoa) group preventing Alcoa from building aluminium smelter, to prevent damage of aboriginal cultural heritage.
• Where the penalty is not adequate deterrent e.g. where Harris continued to sell flowers at cemetery, despite fines, which she accounted for in costs
• With legislative support, e.g. local government and environmental legislation in NSW. 1979, any person in NSW has standing in environ law.
1. Parliamentary Attempts to protect from invalidity
• Privative clauses, e.g.
1. Making remedies unavailable
2. Removing or limiting grounds of judicial review Migration
3. Placing time limits on applications for review
4. Providing that defects do not affect ‘validity’.
• Too many unmeritorious litigations. Clogging the courts. As court concerned only with procedural grounds, they simply remit the decision. Same decision results, but just via different procedures.
• Federal magistrates court is now given the same jurisdiction as the High Court to examine migration issues, due to the influx of cases.
• Consumer claims tribunal is well known to have privative clauses.
1. Provide you with cheap remedy, so they prohibit appeals to supreme court etc.
Responses:
• Improve decision-making by the department at the primary level. There are some very shabby decision-making.
• If there’s immunity granted, than careful decision-making does not become part of the culture.
• To say you have no recourse to the rule of law, is effectively saying that the government is above the rule of law.
Plaintiff S157
A decision:
• is final and conclusive; and
• must not be challenged, appealed against, reviewed, quashed or called in question in any court, and
• is not subject to prohibition, certiorari, mandamus, injunction or declaration in any court on any account.
Plus time limit for seeking review
• Privative clauses – purporting to prevent judicial review – must be distinguished from ‘finality clauses’
1. A provision that ‘a decision is final’ or ‘final and conclusive’ cuts off appeals but does not preclude judicial review, not even for error of law on the face of the record: Hockey v Yelland
• ‘shall not be questioned clause’ tries to cut off grounds of judicial review.
• ‘no certiorari clause’ tries to cut off judicial review by removing available remedies.
• Time limit tries to cut off applications to court after the time has expired.
Privative clauses must be read subject to the Constitution S157/2002
• Cth legislation cannot remove the s75 jurisdiction of the High Court.
• A privative clause cannot operate to confer judicial power on a non-judicial body.
1. Thus a non-judicial decision maker cannot be empowered to determine conclusively the limits of its own jurisdiction.
Apart from Constitutional issues, privative clauses are not given a literal interpretation.
• A basic presumption of statutory interpretation is that Parliament did not intend to remove the courts jurisdiction.
[Plaintiff S157/2002]
• A decision involving jurisdictional error is a purported decision i.e. no decision in the eyes of the law’ and thus cannot be protected by a privative clause.
1. Only decisions under the Act, i.e. validly made, are protected from judicial review.
• This interpretation is consistent with State courts’ interpretation and avoided the need to strike down the Migration Act privative clause as unconstitutional. interpret in such a way as not to give it much effect at all.
• A privative clause does not protect from judicial review decisions that:
1. Transgress constitutional limits
2. Involve jurisdictional error
3. Breach a duty to observe procedural fairness
4. Involve fraud, bribery dishonesty or other improper purpose
• Some procedural or other requirements may be construed as not essential to the validity of the decision (e.g. project blue sky).
• Further qualification on any protection which a privative clause affords: The ‘Hickman provisos’ (R v Hickman; Ex p Fox & Clinton). The decision must....:
1. Be a bona fide attempt to exercise the power.
2. Relate to the subject matter of the legislation.
3. Not on its face go beyond power.
Court will not stand by and allow a decision to go unchallenged, if it’s not a good faith exercise, doesn’t on its face relate to subject matter or go beyond power.
• Time limits on judicial review
1. Are they in the nature of a ‘statute of limitation’ or a privative clause?
2. English courts treat it as a statute of limitation, except on grounds of fraud.
• Plaintiff S157 did not deal satisfactorily
1. Callinan J in Plaintiff S157 dealt with constitutional issues.
2. Signals to parliament that if they put time a non-extendable limit, that could be unconstitutional. It would be valid for HC to extend or provide criteria not to extend, i.e. regulatory provisions.
• Migration Litigation Reform Act 2005
1. Imposes uniform time limits on judicial review.
2. Attempts to make ‘purported decision’ not a decision in law unreviewable after the limit for applying for judicial review has expired.
▪ 28 days from actual notification of a ‘migration decision’ which includes a privative clause decision’ and a ‘purported privative clause decision’.
▪ Can be extended by a further 56 days.
3. Directs migration cases to the Federal magistrate court (FMC)
4. Gives the FMC the same jurisdiction as the High Court in constitution s75(v).
• Deters unmeritorious applications
1. Prohibits lawyers, migration agents and others from encouraging litigation if the litigation has ‘no reasonable prospect of success’ – even if it is not hopeless or bound to fail.
2. If this prohibition is contravened, the Court may make a personal costs order.
3. The lawyer must NOT commence litigation unless the lawyer certifies in writing that there are reasonable grounds for believing that the litigation has a reasonable prospect of success.
• Time-limited privative clauses at State level
1. Woolworths v Pallas Newco (NSW)
2. Distinguished Plaintiffs S157/2002
3. Held that a time limited privative clause (3 months) in State planning and development control legislation can prevent jurisdictional fact review outside the time limit. Like in Enfield
4. The legislative purpose is to provide certainty to decisions granting development consent.
5. Interpretation influenced by the expanding range of jurisdictional errors – in this case jurisdictional fact review.
6. However, even after the 3 months period the Hickman principle applies – the decision is only protected from judicial review if:
▪ It is a bona fide attempt to exercise the power
▪ It relates to the subject matter of the legislation
▪ It is reasonably capable of reference to the power on the face of the content.
• Further, a decision is not protected if it breaches a restriction which is construed as being of such significance or requirement that is essential, indispensable, imperative or inviolable.
1. E.g. procedural fairness.
2. Severance
- Where a decision or instrument is partly invalid.
2. The invalid part(s) may be severed if excision does not alter the substance or operation of the original decision.
3. The decision or instrument may be read down so as to bring it within power (e.g. the majority in Foley v Padley)
7. Standing
• Standing: the ability to institute and maintain court (tribunal) proceedings
• Other capacities in which individuals or groups may participate:
1. Friend of the court (amicus curiae)
▪ Inherent discretion of court
▪ Not a party to the proceedings
▪ May inform the court on issues about which the court may remain ignorant if left to the parties alone
2. Intervention: participation by a 3rd party e.g. HREOC or AG in an action already under way.
▪ Becomes a party to the litigation
▪ Interests may be different from those of the parties
▪ Intervention must be permitted by law, although the AG always has the capacity to intervene to protect the public interest.
• Historically different tests for remedies
• Today considerable convergence on a ‘sufficient connection with the subject matter’ test.
• Consider
1. The reasons given for limiting standing
2. Does restrictive standing mask justiciability issues?
Where there would be insufficient standing
- When person affected does not bring matter to court. E.g. where a local councilor is sacked by the minister. The community may bring about the matter.
Certiorari & Prohibition
most liberal in standing, given they are directed at public illegality.
• ‘person aggrieved’
1. a person who has a peculiar grievance of his or her own beyond some grievance suffered in common with the rest of the public: R v Surrey JJ
▪ local resident’s standing to quash road closure order
Mandamus
more difficult because if there’s a duty, there must be a correlative right. stems on notion of public right.
• mandamus lies to enforce a public duty
• specific legal right or sufficient interest or special interest in the duty
1. e.g. participation in the proceedings being challenged: Sinclair v Mining warden environmental activist saving Fraser island from being mined. Participated and lodged in public objection in mining warden’s court. therefore had standing. (this was later distinguished in another case)
s65 Supreme Court Act 1970 (NSW)
Now we have the any one personally interested provision.
• e.g. family reputation: Bilbao v Farquhar
Summary: Prerogative remedies
• Sufficient connection with the subjection with the subject matter of the litigation.
Injunction & Declaration
• The attorney General always has standing to enforce ‘public rights’
1. ex officio do it themselves or
2. on the relation of a private person (relator proceedings) which seems to overcome the problem of standing
• the AG’s decision discretion whether or not to bring proceedings is not justiciable as it has been deemed proreogative power;
1. R v Toohey ex p NLC, Mason J obiter
English authority says we should not question AG. But in…
• See discussion in Bateman’s Bay LALC v ACBF
Different in Australia. In England, the AG is consciously divorced of politics. AG is not a source of legal advice for other departments. Only gives legal opinions in very high level legal matters, particularly IL. But in Australia, our AGs are political animals. They are first and foremost politicians, not lawyers. It is well documented that the AG is unlikely to go against his political mates.
we should either say that the AG’s decision is reviewable, or alternatively forgetting about the AG (seems the better way) and broaden standing for person to seek judicial review without help from AG.
• Private person
1. If the interference with the public right is such that some private right is at the same time interfered with.
2. Where no private right is involved, if he or she has a special interest in the subject matter of the action (ACF v Cth; Onus v Alcoa)
• Shift of emphasis from nature of interest to connection with subject matter: Onus v Alcoa
ACF v Cth
• Facts: Environmental impact legislation. Triggered Cth EIS legislation, when approved foreign investment. Cth abandoned the EIS process, and granted consent to foreign investment. Govt admitted they broke the law. But then challenged the standing of the ACF. HC held that the ACF did not have standing. As a result, the there was a lacuna (Murphy J). Govt could break the law without judicial review.
Laid down test of ‘special interest’ – not mere emotional or intellectual concern. (which was all that ACF had).
- Must have a stake in the outcome of litigation.
- Based on the lacuna, Murphy J granted a standing.
Onus v Alcoa
• Facts: Aboriginal women brought proceedings against Alcoa. Instead of challenging the govt decision, they challenged the corporation, seeking compliance with the Aboriginal cultural heritage. In the course of constructing the smelter, the argument was that there would be a breach of heritage legislation. Were granted standing by HC. Much closer connection with subject matter than any other aborigines.
• Stephen J: Standing involves in each case a curial assessment of the importance of the concern which a plaintiff has with the subject matter and the closeness of the plaintiff’s relationship to that subject matter.
Bateman’s Bay
• Facts: Aboriginal land council & NSW government were unlawfully spending public money. HC granted standing to a competitor to bring to court’s attention. The applicant was a competitor of Aboriginal land council. Both provided life insurance benefit to Aboriginal community. But ALC were being subsidized from public money. Found to be unlawful. Only remaining issue was standing.
• Where unlawful expenditure of public money is alleged and there is a need for urgent interlocutory relief or where the AG’s fiat has been refused or is unlikely to be granted, a restrictive application of the ‘special interest’ test is not warranted.
• The special interest test should be construed as an enabling, not restrictive, stipulation.
ADJR Act
• ‘person aggrieved’ which includes a person whose interests are affected by the decision/ conduct/ failure
• examples…
• vocational and professional interests under standing: Ogle v Strickland granted standing of Catholic priests to challenge the censorship board of a film. FC thought it was a ‘necessary incident’ of their vocation to challenge blasphemy. (criticized in McBain, but not overturned).
• Participation in a primary decision-making process confers standing: US Tobacco v Minister for Consumer Affairs example of intervention.
US tobacco was seeking judicial review of minister’s decision to make declaration that certain tobacco was unsafe. There had been a conference in the TPA, in which AFCO had applied to intervene to support the minister’s decision. At first instance, weren’t allowed to intervene. But the FFC did grant intervention.
• Capacity to represent the public interest: ‘Woodchip Export Licence’ cases. Derived from …
1. objects of organization
2. status as a peak organization
3. recognition by government e.g. govt funding.
4. research and other activities related to subject matter.
(Sackville factors)
• Not needed anymore, EPBC Act provides for judicial review in FC, and Environmental interest groups have standing.
• But Right to life:
1. Decision challenged was to not
2. Refused to put a stop to the anti-abortion drug. Clinical trials were being conducted in Australia. Right to life wrote to secretary of department, asking for a stop of the trials. – Breach of criminal law of state. Secretary refused to do so. This was challenged.
3. Gummow J: a decision not to intervene is not a decision under ADJR. Manifestly unenthusiastic about Sackville factors.
4. Beaumont J: organization doesn’t get funding or acknowledgement by Govt, or represented on any consultation committees.
5. Lockhart J: hasn’t engaged in any research.
6. (all his point to a lack of Sackville factors. But all judges weren’t keen on these factors anyway).
7. At the end - the object of the good had nothing to do with the Therapeutic Goods Act.
Statutory Reform
• e.g. EPA Act 1979 (NSW) s123
- any person may apply to the Land and Environmental Court for an order to remedy or restrain a breach or instrument made under the Act
- Any person includes public interest litigants and competitors.
Public Interest Litigation
• Public interest litigation includes:
1. Third party merits appeals
2. Judicial review by ‘any person’
3. Civil enforcement by ‘any person’
• The high cost of litigation is a disincentive for those who litigate to protect public interests and have no financial interest.
1. Rules of procedure were designed for economic or ‘inter-parties’ litigation.
• Disincentives to public interest litigation can be reduced in a no. of ways, including:
1. Not requiring a public interest litigant to give an undertaking for damages (interlocutory injunction)
2. Not awarding costs to an unsuccessful public interest litigant
3. Not requiring a public interest litigant to lodge security for costs
4. Removing privative clauses from legislation (especially time limits)
5. Restructuring the discretion to refuse remedies
6. Shifting the burden of proof
7. Legal aid and pubic interest advocacy bodies (e.g. EDO).
Why reduce standing?
• Should apply justiciability test, not standing
• Lack of damage. OTH, suggests that it doesn’t matter govt act is illegal, so long as there’s no damages involved.
AAT CTH standing
• Sec 27(1) The application may be made by or on behalf of any person(s) whose interests are affected by the decision.
• Sec 27(2) An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association.
• Subsec (2) does not apply in relation to a decision given before the organization or association was formed or before the objects or purposes of the organization or association included the matter concerned (s27(3))
• Sec 30(1A) the Tribunal may, in the discretion, make any other person whose interests are affected by the decision on a party to the proceedings – on application by the person.
1. Notes that s30 refers only to ‘persons’ thus excludes unincorporated associations.
• Re Control Investment and ABT (No 1) transactions by Rupert Murdoch, to bid to t/o channel 10 in Melb. ¾ given standing to intervene – ALP given standing based on objects or purposes, and Australian journalist assoc – interests affected because it had an interest in representing its members. Justice & Broadcasting – objects and purposes referred to public access to the media. Rupert Public interest movement – refused standing to intervene. Objects were too remotely removed, with no specific reference to the media.
1. Broad interpretation of ‘interests affected’
• Re Gay Solidarity Group and MIEA Criminal deportation decision. Only permanent residences could bring proceeding, illegal immigrants had no standing. Person (illegal immigrant) ordered to be deported was a homosexual. Gay Solidarity. Its object was to combat everything, including discrimination. The decision was not related to discrimination, but incrimination.
1. There must be a real connection between the decision and the association’s objects.
25.05.06
Merits Review
Commonwealth – Admin appeals tribunal
No further appeal after AAT. Goes to federal court.
- Represents a generalist appeals tribunal. Exposed to a wide variety of law. So does not attach itself with any particular agency or group.
NSW – Admin Decisions tribunal
Further appeal level available.
Values of independent merits review
• to ensure that all decisions of government are correct and preferable
• to improve the quality and consistency of government decision-making
1. feedback into primary decision-making
2. feedback into policy and legislative development.
• To provide a mechanism of review that is cheap, informal and quick.
• To enhance the openness and accountability of government.
Function of Cth AAT: s43(1)
• The tribunal must make a decision:
1. Affirming the decision under review, or
2. Varying the decision under review, or
3. Setting aside the decision under review
▪ And making a decision in substitution
▪ Or remitting the matter for reconsideration in accordance with any directions or recommendations.
• AAT must ask: what is the correct or preferable discretion decision in the circumstances and on the material before it at the time of review? Drake v MIEA
• AAT is not bound by the findings or the reasons of the original decision-maker : Drake v MIEA
1. NOT SUPERVISORY
2. not bound by reasons or facts of the primary decision-maker
Held: On the issue of whether the Tribunal had attached such importance to Ministerial policy that it failed to exercise independent judgment: The function of the Tribunal is to review administrative decisions which are under attack. The Tribunal is not restricted to considerations which are relevant to judicial determinations.
• Has all the powers and discretions of the primary decision-maker
1. But must act within power. intra -vires.
• AAT’s decision is deemed to be that of the primary decision-maker
• AAT may stay the operation or implementation of the decision being reviewd (s41)
• AAT has a very limited discretion to refuse to review
1. May refuse e.g. if application is frivolous or vexatious; if agreement reached between the parties.
2. Contrast the discretion of a Court or Ombudsman.
• AAT’s rulings on questions of law are not final and binding.
• There is no legal onus of proof (unless legislation so provides, e.g. FOI Act) Commonsense burden [McDonalds]
• The legislation conferring jurisdiction on the AAT may limit or vary its powers or procedures.each decision made comes from legislation that confers jurisdiction on AAT. This legislation can modify the powers, procedures, standing etc of the AAT. e.g. FOI Act contains several modifications – such as requiring onus of proof.
Role of policy in AAT decisions
• Brennan J urged caution in departing from government policy, especially Ministerial policy: Re Drake and MIEA (No 2)
• AAT has drawn distinctions between types of policies.
1. BASIC more flexible, or Political relatively binding: Re Becker
2. Policies regulating an entire industry and allocating a scarce resource (relatively binding): Re Jetopay
3. Policies which apply to particular individuals, where public interest more diffuse (more flexible)
AAT jurisdiction
- Each reviewable decision must be directly referable to an enactment which expressly gives the AAT jurisdiction to review that decision (contrast ADJR, Ombudsman)
- Jurisdiction does not depend on the decision being valid as a matter of law i.e. when primary decision by administrator is unlawful : Collector or Customs v Brian Lawlor Automotive
- AAT must accept the constitutionality of legislation: Re Adams and Tax Agents Board
i) There is a power of reference – to the Federal Court under s45.
- AAT cannot give an advisory opinion – unless specifically authorized (e.g. Ombudsman Act 1976 (Cth) ss 10A, 11)
AAT Membership
- President – a Judge of the Federal Court
- Judges of a Cth court appointed to AAT (about 18)
- Deputy presidents; legal practitioners enrolled for not less than 5 years (about 6 full-time, 5 part-time)
- Senior members: (about 8 full time, 9 part time)
i) Legal practitioners (enrolled for not less than 5 years) or
ii) Persons who have special knowledge or skill relevant to the duties.
- Members: (about 4 full time, 33 part-time)
i) Legal practitioners or
ii) At least 5 years experience at a high level in industry, commerce, public admin, industrial relations, the practice of a profession or the service of a government or
iii) Uni degree in law etc.
iv) Special knowledge or skill in relation to any class of matters
AAT Standing
- s27(1) application made by or on behalf of any person(s) whose interests are affected by the decision.
- S27(2)
- S27(3)
Etc discussed previously
AAT’s access to information
- sec 37: lodging of documents with tribunal (‘T documents’)
- statement of reasons (requires a statement setting out findings on material on questions of facts, evidence from other materials, and give reasons) for decisions
- Must lodge every other relevant document in his/her control or possession. THIS TEST IS OJECTIVE (since amendments last year)
- Notwithstanding any rule of law, relating to privilege or the public interest in relation to the production of documents, or AG’s public interest certificate. Must be informed, even if they can’t release this information to others
Limitations on access: persons other than AAT
- sec 36: Disclosure to other persons restricted – AG’s Public Interest Certificate on grounds of
i) Security, defence or international relations of Australia
ii) Disclosure of deliberations of Cabinet
iii) For any other reason that could form the basis for a claim of Public Interest Immunity (Crown Privilege) in judicial proceedings. For this reason, the AAT can override certificate on the basis of parties’ need to know, but paying due regard to AG’s reasons
- sec 36A: Answering questions where the AG intervenes on public interest ground – similar to s36 above
- State AG’s can also certify that disclosure would be contrary to the public interest: s36B
ADR
- AAT Act provides for
i) Conferences
ii) Conciliation
iii) Mediation
iv) Case appraisal
v) Neutral evaluation
- Note that there is no statutory requirement that the parties must consent to ADR.
Hearings before AAT
When you make an application for appeal, you give a statement of reasons. But these aren’t considered pleadings.
- Representations is permitted: sec 32
i) Representatives should not act as adversaries
- Government respondent has a positive duty to assist the Tribunal
i) S33(1AA): The person who made the decision must use his or best endeavours to assist the Tribunal to make its decision.
- AAT must pursue the objective of providing, a mechanism of review that is fair, just, economical, informal and quick s2A
- AAT must conduct proceedings with as little formality and technicality and as much expedition as the legislation and a proper consideration of the matter permits: s33
- AAT is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate: s33
- The general principle is that the proceedings should be held in public: s35
• S 35
1. Hearing shall be in public except in special circumstances
2. Where the tribunal is satisfied that it is desirable (due to e.g. confidentiality)
▪ Order hearing to be private
▪ Evidence to be restricted from access
▪ Disclosure of evidence or of contents of a document
• S 39
1. Subject to ss35, 36, 36B – tribunal shall ensure that every party to a proceeding is giving r/s opportunity to present case, and present case in particular to inspect any documents to which the tribunal proposes to have regard to make submissions in relation to those documents. (PROCEDURAL FAIRNESS DUTY)
Reconciling Procedural fairness duty, with ability to use confidential information, not even being able to disclose to parties. in the past, info used to be disclosed to lawyers. Now, FC overruled that. but now, tribunals can be guided by the rules of evidence. and insofar as they are designed to produce a body of logically probative material.
Re Pochi and MIEA Pochi ordered deportation for drug offenses. Minister for immigration sought to adduce evidence from NSW police, that Pochi’s involvement in drug trafficking was more wide-spread than appears in trial. Police gave evidence in confidentiality, to which Pochi was not permitted to attend. Lawyer was permitted to attend. Much of the evidence was untested, hearsay and opinion evidnece. commonsense reasoning. Thus, Brennan decided not to give any weight to it.
Decided on the balance of. ordered no deportation.
Brennan J’s reasoning…
- where evidence is given in the absence of a party, its probative force must be of particular cogency if it is to be acted on. would justice be better served by the reliance on the evidence.
FC elevated Brennan’s reasoning
Sullivan v Department of Transport Sullivan in air force. pilots license cancelled. appealed decision. self-representation. Didn’t know right to summons witness, and ask adjournment. in the result, a critical witness (medical practitioner) didn’t provide evidence. As tribunal did not help or advice him to get witness, or offer adjournment, evidence was not presented to tribunal. Appeal to the FC, and appeal was successful, because the tribunal failed to address a critical matter. But on Procedural fairness, the FC said the tribunal had NOT acted unfairly. The AAT should sit back. Must act like a passive adjudicator. Decision-maker only has to provide a reasonable opportunity to provide the case. But don’t have to ensure the person takes the best advantage of that hearing. Lecturer thinks that it was a circumstance that the tribunal should have helped.
- s39 requires AAT to afford a r/s opportunity to present one’s case not to ensure that a party takes the best advantage of that opportunity. (federal court)
Australian Postal Commission v Hayes
Aus post was video-taping Hayes. Solicitor for Hayes came across hearing room, where they were playing the video, and asked for disclosure. tribunal agreed. But then auspost argued right to be heard, and effectively cross-examine. So need the video not to be disclosed. Wilcox J agreed. Video could be withheld until after cross-examination.
- the opportunity to present one’s case includes the opportunity to effectively cross-examine
- s39 does not require that access to documents to be given at any particular point in time.
i) Party permitted to withhold a surveillance video until the applicant had given evidence and then confront her with it in cross-examination.
- In subsequent decisions, AAT has deprecated ‘trial by ambush’: Re Taxation Appeals NT94 etc
Appeal to Federal Court
- right of appeal to Federal Court s 44
i) on a question of law
ii) court can make limited findings of fact provided
a) the finding of fact are not inconsistent with those made by the AAT (unless the AAT’s findings are the result of an error of law; and
b) the court considers that it is convenient, having regard to e.g. efficient resolution of the matter.
- only the ultimate or operative determination of the AAT can be appealed: DG social services v Chaney
i) unless legislation provides for an appeal in interim. E.g. AAT refuses standing.
- the AAT may, with concurrence of the President, refer a question of law to the Full Federal Court: S45
- Judicial review is available
i) Of the final or operative decision: ABT v Bond reviewable under adjr act
ii) Procedural conduct is reviewable under s6: Australian Postal Commission v Hayes.
Ombudsman
Q3 in exam will focus on the avenues of revue. Jurisdiction, strategy. Etc.
Focusing on Cth Ombudsman
- Ombudsman Act 1976 (Cth)
Values of Ombudsman tribune of the people review
- Inexpensive, informal, private, prove to be very effective, Independent
- Can only make recommendations no determinative power
i) But has the ‘power of embarassment’ – can report maladministration to Parliament.
ii) Contrast industry ombudsmen. usually has determinative powers. Specialist bodies. Real danger that they’ll be ‘captured’ by the .
iii) industry they regulate.
- Resolving complaints on government business enterprises.
- What do they do? Investigates defective administration – a broad concept (‘maladministration’)
- Extensive investigative powers (contrast industry ombudsman). Similar to the role of royal commission.
- Can initiate own investigation
- Develops standards and codes for official conduct
- Complainant is not required to establish ‘special interest’.
- How are they appointed? Usually on 7 year contract. Can only be removed by resolution of both houses of parliament, on limited grounds of proof of misconduct. Similar to judges removal. Some are more closely identified with the government.
- Where are they located? In NSW and Cth, the ombudsman are very close to the executive. Others have argued its better to locate them within parliament.
Maladministration
- Ombudsman can investigate matters of law or like tribunals, can investigate matters of fact. Can also investigate where that action is unreasonable, unjust, improperly discriminatory.
- Can look at the law or practice behind the action and criticize.
- Reasons should be given but they were not.
- Action was otherwise defective or wrong. (including delay, neglect, rudeness, bias)
- More concerned to ensure a good process of government.
Jurisdiction: s5(1)
- Taking of action, which includes:
i) The making of a decision or recommendation
ii) The formulation of a proposal
iii) Failure or refusal to take any action, make a decision or recommendation, or formulate a proposal.
- That relates to ‘a matter of administration’: not defined.
- By a ‘department’ or ‘prescribed authority: defined.
“prescribed authority” means:
- a body, whether or not incorporated, established for a public purpose by, or in accordance with the provisions of an enactment (with exceptions)
- a Cth-controlled company unless excluded by regulation
- Cth court and tribunal registries
- holders of offices established by enactment (unless excluded by regulation).
- The Administrative (not operational) matters of Australian Federal Police and Defence forces.
Exclusions from jurisdiction: s5(2)
- actions taken by a minister is precluded.
- Judges, magistrate, coroner.
- No jurisdiction over the employment within the Public service. (Because there’s a special body in Cth that deals with this.)
- Action taken in relation to the appointment of a person to a statutory office.
Discretion not to investigate; s6
• Delay (more than 12 months aware of action)
• Frivolous, vexatious, not in good faith
Conduct of investigation
• Private and confidential
• Extensive investigative powers
1. Same powers as a royal commission
2. A person cannot rely on public interest immunity or private privilege or a statutory secrecy provision to escape the obligation to furnish information
3. Trade off: use-immunity
• A-G can issue certificate that disclosure would prejudice security, defence, international relations, Cth/State relations, Cabinet & Executive Council proceedings – rarely issued.
• Right to be heard before a person is criticized; see ATSIC v Cth Ombudsman
Outcome of investigation
• No power to make definitive findings.
• Ombudsman can only express opinions and give recommendations: see ATSIC v Cth Ombudsman
• Recommendations: e.g.
1. Give reasons
2. Reconsider decisions
3. Action to rectify, mitigate or alter effects of decision
4. Cancel or vary decision
5. Amend law or practice
6. Other appropriate action, including ex gratia payments
Ombudsman reports
• If the Ombudsman decides not to investigate
1. To the complainant with reasons
2. If the ombudsman decides to investigate, the complainant must be furnished with particulars of the results
3. The complainant has no right to the ombudsmans report to the department or prescribed authority.
▪ But if adequate and appropriate remedial action is not taken, the Ombudsman may provide the complainant with his/her recommendations and further comments.
4. If remedial action recommended
▪ To Department or prescribed authority, and to responsible Minister.
5. If not of the opinion that remedial action is necessary
▪ To department or prescribed authority with particulars of the results of the investigation.
6. If adequate, appropriate and timely action is not taken
▪ To the Prime minister & ultimately Parliament.
7. Annual and special reports to Parliament
8. Where the Ombudsman considers that a public authority is or may be guilty of a breach of duty or misconduct, the Ombudsman must report her or his opinion to the appropriate authority.
References and Judicial Review
• references to the AAT for an advisory opinion on questions relating to the taking of action or the exercise of a power.
1. referred to the Ombudsman: s10A
2. referred by the principal officer on the recommendation fo the ombudsman: s 11
• Reference to the Federal Court of questions relating to the exercise of a power: s11A
1. By the Ombudsman or principal officer
• Judicial review: ATSIC v Cth Ombudsman
ACCESS TO INFORMATION
• FOI legislation reverses the presumption. It presumes that every person has a right to information except for…
Reasons for decision
• Common law: Osmond v PSB
1. No duty to give reasons at common law
2. It is preferable for parliament to create the duty
• General statutory rights: Cth
1. ADJR Act s13
2. AAT Act s28
- The rationale to give reasons are very similar to the reason for procedural fairness.
- Means to distill standards, in order to treat people similarly
- Want reasons to be given, so that you know what you can appeal on.
ADJR Act s13
• Duty to give reasons on request
• In respect of a decision to which the Act applies, reviewable under sec 5
• Requester must have standing to apply for review
• Requester does not have to first lodge an application for review since part of the reason why you want reasons to begin with is to see whether there’s any point to appeal for review.
• Section 13 statement must:
1. Set out the findings on material questions of fact
2. Refer to the evidence or other material on which those findings were based
3. Give reasons for the decision
• Whenever Cth legislation requires reasons to be given the statement must do those three things: AI Act s25D
Yusuf: The requirement to set out findings on material questions of fact is concerned with the subjective thought processes of the decision-maker. strong dissent from Kirby
• It does not require the decision maker to set out findings on facts which are objectively material.
- Whatever the decision maker thought doesn’t make the decision right. But if the decision-maker sets out the subjective thought processes, you can see where the decision maker went wrong. E.g. regards to irrelevant matters. Use it to argue your case.
Re Palmer & Minister for the Capital Territory not in text book
- The statement of reasons must be intelligible, must fully inform the requester and must deal with all the substantial points.
- The statement must incorporate findings of fact made by other officers or experts
MIEA v Wu Shan Liang
- Reviewing court must not subject the statement to microscopic scrutiny in pursuit of error
- Review of reasons is not an invitation to reconsider the merits.
Limitations on the ADJR s13 right to be fully informed
- Schedule 2: Decisions to which s13 does not apply. criminal justice, employment, commercial activities. (seems there’s no need for this section, given all the other sections available to withhold information).
- S 14: public interest immunity
- S 13A: Personal or Business affairs of a third person.
Where s13A or s14 applies
- the statement must be given omitting the confidential information or
- does not have to be given if the statement would be false or misleading.
ADJR s14: Public interest immunity
- If the AG certifies disclosure of any matter would be contrary to the public interest by reasons that it would:
i) Prejudice Australia’s security, defence or international relations
ii) Involve the disclosure of deliberations of cabinet or cabinet committees.
ADJR s13A: Personal or Business Affairs
- IF the information relates tot eh personal affairs or business of a third person, other than the requester, and the information
i) Was supplied in confidence or
ii) Was supplied under a statutory duty or
iii) Would reveal a trade secret or
iv) Would contravene a statutory secrecy clause
AAT Act s28
- the duty to give reasons on request is similar to ADJR s13.
i) Requester must have standing to apply for review
ii) AAT must have jurisdiction
iii) Requester does not have to first lodge an application for review
iv) The statement must do these ‘3 things’
- The AG’s certificate does not prevent the AAT from obtaining a full statement.
NEXT CLASS FOI ACT
FOI Act (Cth)
1. ‘Right to know’ about government functions and operations and internal rules and policies which affect members of the public in their dealings with government. Cth FOI Act ss8, 9, 10.
2. Every person has a legally enforceable right to obtain access to a document of an agency or an official document of a Minister unless the document is an exempt document. Cth FOI Act s11
3. Right of access to personal records and right to bring about amendment of personal records if incomplete, incorrect, out of date or misleading.
4. Rights of review of decisions denying access.
“Right to know”
s8 & s9
Access to documents
- The right of every person to access government-held documents.
i) Without having to demonstrate a need to know
ii) Subject to exemptions for agencies and documents
iii) Documents includes any information which is capable of being reduced to written or visual form.
- Agencies must take reasonable steps to assist an applicant in identifying the documents and directing requests to the appropriate agency.
- Fees and charges for application, search, retrieval, time and copying. May be expensive.
- ‘Reverse FOI’: duty to consult third persons affected by disclosure.
i) Personal info of 3rd
ii) business, commercial
- Time limits: deemed refusal and the applicant can seek external review.
- REFUSAL OF ACCESS:
i) Work involved is a substantial and unreasonable diversion of resources.
ii) Document does not exist or cannot be found.
iii) Exempt agency
a) Wholly exempt
b) Exempt in respect of certain documents (e.g. commercial information)
iv) Exempt document: PART IV don’t need to know
Conclusive certificate exemptions
- In respect of certain categories of documents, a conclusive certificate can be issued that the document is exempt. e.g. national security documents
- AAT is constrained on review. AAT is then only able to…
i) Can only decide whether reasonable grounds exist for the exemption
ii) Can only recommend revocation of certificate
iii) Onus is on the Minister or agencyGov must justify why info not released.
iv) Proceedings must be held in private
v) AAT is not permitted to inspect the document unless it is not satisfied that there exist reasonable grounds for the certificate.
The question atm before HC is whether the AAT can go behind the minister’s reasons, and consider more generally where the reasons lie?
- unless in the public interest, there is a presumption to disclose: s33
- cabinet & executive council documents: ss34, 35
- Internal working documents: if disclosed matter would relate to opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purpose of, the deliberative processes involved in the functions of the Cth Govt.
- AND would be contrary to the public interest.
but there are exclusions…
- Genuine public interest test:
1. agency must particularize the public interest
2. ‘frankness and candour’ is too generalized.
RIGHTS OF REVIEW
• Internal review is a prerequisite so long as there’s someone more senior.
1. Unless the decision was made by the Minister or principal officer.
• Ombudsman
1. Certificate of unreasonable delay
2. In other cases, can only make recommendations
3. Cannot investigate decisions of a Minister
• AAT on the merits
1. Onus is on the agency of Minister
2. Obligations on AAT to ensure that exempt documents are not disclosed
3. Limitations where conclusive certificate issued
Exempt documents AND conclusive certificate has been issued: AAT can only make recommendations and supervise.
Even if they think the Minister is exempting the document unreasonably, the AAT doesn’t have the right to disclose it. They only make recommendations.
• Judicial review
1. appealing on the question of law
EMAIL ADMIN: jsin8825@mail.uysd.edu.au
FIRST TWO QUESTIONS: grounds of judicial review. Hypothetical NSW Act.
• Principles of judicial review
• Administrative law statutes: ombudsman, ADJR, rule-making legislation
• (15mark) policy, and theoretical
THIRD QUESTION:
• Areas of review - Is it better to go to AAT? Ombudsman?
Problem question
X company establish new factory where something discharged in waters. S41 license application.
Minister – may grant, review or revoke licenses. having grounds to all applications will be decided on merits evaluation, carried out by EPA in consultation with applicant.
But when X applied – without referring to EPA, refuses. Decided to not to grant licenses to new industries.
GROUNDS OF REVIEW:
- Failure to regard a relevant matter.
- Procedural fairness
i) Legitimate expectations that EPA would be referred.
ii) Published policy, for which the Minister has abandoned. This removes the basis for a legitimate expectation: Quin
iii) X isn’t being singled out. It’s the nature of a policy decision: O’Shea
- But is the policy ultra vires and inflexible? Green v Daniels
i) The fact that the Minister has closed his mind to all licenses of a particular class, until water quality is improved – too inflexible a policy?
Y company applies for a renewal. There’s a preliminary order from the EPA, to upgrade equipments. EPA completes and recommends the license to be renewed. The Minister refuses.
- FAI Insurance: a person applying for renewal has a legitimate expectation.
- Also Haoucher (McHugh): two legitimate expectations. (2 stage decision making process – EPA and Minister). Unless there’s exceptional circumstances. If new and exceptional circumstances in second stage, then the new evidence must be given at the second stage.
- Other judges said the very terms of the policy gave rise to
- If new info comes into light, person must be given further hearing: O’Shea.
- May mention the doctrine of administrative estoppel (even though we don’t have it in Australia). No doctrine of substantive fairness in any event (unlike English courts): Lam. It’s unreasonable to rely on policies, because they may be changed.
Z company is a revocation: at the hearing, Green peace allowed to be represented by council and cross-examine. But EPA refuses Green peace to
- Standing
i) Object of act and object of organization.
ii) Sackville factors
iii) Participation of the primary decision maker. Given Green peace had : Sinclair v Mining warden
- Grounds of review
i) Procedural fairness: apprehension of bias.
ii) Annetts. Even a preliminary decision maker must observe procedural fairness. Reputations at stake. Also a legitimate expectation. If the parents had been given leave to be represented, to cross-examine. But then revoked. HC said no, they had a legitimate expectation.
iii) Peko-wallsend: failure to regard to relevant matter. If they had regarded to the new information, they would have had to reopen the inquiry to give opportunity to respond.
- Remedies
i) Mandamus wouldn’t be available here.
ii) Declaration is possible – minister acted contrary to law in denying procedural fairness. But wouldn’t achieve much.
iii) Injunction – to enforce breach of the law. Proceed directly against Z company for breach of law. Batesman Bay case: If the entity is the government, then Batemans Bay acknowledges that standing may be more liberally applied and extended when government is breaking the law.
EPA recommends that should not revoke. New evidence, not included. Minister
JURISDICTION SUMMARISED
NSW – general Supreme Court has inherent common law jurisdiction to review NSW government. (Certiorari, Mandamus, Prohibition)
- Find some of the reform of the remedies in Supreme Court act.
- Other states have ADJR acts
- We do have ADT act (but we don’t study this and we are not expected to know it. We choose to study the common law).
CTH – no inherent jurisdiction, statutory courts.
- HC [created by constitution and given jurisdiction by constitution, under s75]
- FC [had to be given jurisdiction – no inherent jurisdiction. First given by ADJR act. But when it was found that there were things falling outside of ADJR – given second set: s39B Judiciary act]
- FMC [Created with the same jurisdiction as the HC, s75(v)]
No evidence provisions in ADJR act – not used much. But there are some complicated no evidence grounds in common law?
All errors of law are reviewable in ADJR. Less in common law. But now, common law is catching up.
At common law, no right to get reasons. Likewise, in NSW – But there’s a right to get reasons that are reviewable under ADT. But under ADJR, you can get reasons.
ADJR – remedies are much simpler (similar to common law, but the ADJR leaves out the technical terms of certiorari, mandamus etc). No difficulty for the federal court, to get bogged down by centuries of common law technicalities.
FC can choose date where decision becomes invalid.
................
................
In order to avoid copyright disputes, this page is only a partial summary.
To fulfill the demand for quickly locating and searching documents.
It is intelligent file search solution for home and business.
Related searches
- tutor for free online chat
- free math tutor online chat
- qs uni ranking 2020
- best free typing tutor download windows 10
- typing tutor free download for windows 10
- typing tutor download windows 10
- uni toll pass
- uni high school irvine
- uni epass
- chapter 4 the outsiders quiz
- chapter 4 the outsiders questions
- chapter 4 the clause answers