administrative law notes
TRANSCRIPT
ADMINISTRATIVE LAW
TABLE OF CONTENTS
Administrative Law______________________________________________________________________1
The Executive (2-7)____________________________________________________________________3
Reasons_____________________________________________________________________________4
Common Law Duty to give Reasons____________________________________________________4
Statutory Duty to give reasons________________________________________________________4
Freedom of Information__________________________________________________________________5
Main Exemptions (NSW)_____________________________________________________________6
Main Exemptions (Commonwealth)____________________________________________________7
Conclusive Certificates_________________________________________________________________8
Ombudsman_________________________________________________________________________9
Other means of accessing Information_____________________________________________________9
Procedural Fairness (Natural Justice)_____________________________________________________11
Judicial Review______________________________________________________________________20
Rationale________________________________________________________________________20
Review under the Administrative Decisions ( Judicial Review) Act_______________________________21
Remedies under Judicial Review______________________________________________________23
Privative Clauses__________________________________________________________________23
Institutional Distrust_______________________________________________________________23
Non-Justiciability – v rare____________________________________________________________24
Public / Private Distinction___________________________________________________________25
Time Extensions___________________________________________________________________25
Grounds for judicial Review______________________________________________________________25
Considerations____________________________________________________________________25
Unreasonableness_________________________________________________________________26
No Evidence______________________________________________________________________27
Exceeding POWERS - Minister (Ultra Vires) – AAT (jurisdictional error)______________________29
Jurisdictional Error –_______________________________________________________________30
Jurisdictional Facts:________________________________________________________________32
Delegation_______________________________________________________________________33
Dictation________________________________________________________________________34
Self –fettering – ‘Applying policy inflexibly’_____________________________________________34
Bad Faith and Improper Purpose_____________________________________________________35
Unauthorised Decision Making___________________________________________________________36
ADJR Act (8.2.1)_____________________________________________________________________36
The presumption of regularity__________________________________________________________36
Unauthorised Decision-Making:_________________________________________________________36
Statutory construction and public law__________________________________________________36
REGULATIONS - s 48 Acts Interpretation Act_______________________________________________36
Publishing requirements - Golden Brown v Hunt________________________________________37
Ultra Vires_______________________________________________________________________38
Guidelines__________________________________________________________________________40
Administrative Appeals Tribunal (AAT) – Merits Review______________________________________40
Standing_________________________________________________________________________40
Merits Review____________________________________________________________________40
Power and Discretion of original decision maker s43(1)____________________________________41
Evidence and Law before it._________________________________________________________41
Policy Considerations_______________________________________________________________41
Delegated Legislation_________________________________________________________________42
Checks on Power__________________________________________________________________43
THE EXECUTIVE (2-7)
= The relationship between the principle components of the executive.
~ CROWN >- head of executive arm of the government
~ CABINET >- ministers deterD1ined by the gov to make governmental decisions
~EXECUTIVE COUNCIL .>- formal version of the cabinet
~ MINI STERS >- elected by the people but are ministers of the crown
~ GOVT DEPARTMENTS .>- specialised govt sections to address specific issues
~ PUBLIC SERVANTS >- Employed under Public Service Act, serve minister, implement decisions
~ STATUTORY AUTHORITIES >- a body established by statute for management and delegation
~ STATUTORY OFFICES >- like a body but with a single office holder
~ QANGOS >- quasi autonomous non government organisation. Public and private eg RSPCA
~ CLUBS >- type of qango, sports/unions/professional associations which regulate access to employment
~ LOCAL GOVT elected councils appointed as bodies corporate by Local Govt Acts
~ ADMINISTRATIVE TRIBUNALS – Stat Authorities fulfil admin tasks of a quasi-judicial nature
Relationship is governed by a mixture of law and convention and politics
Public Service and Bureaucracy are politically and functionally dependent on Ministers and executive
Statutory Authorities and Tribunals are both formally and informally independent
Not always a strict separation though p 7
Privatization of the bodies -de facto privatization of low level decision making and contracting out.
REASONS_____________________________________________________________
COMMON LAW DUTY TO GIVE REASONS
(1) Osmond – no Common law duty
Could be forced to provide reasons through affidavit
- Spigelman Practice Note no 119.
BUT also Cypressvale v Retail Shop Leases – Qld Court of Appeal
suggested reasons where required – but only lower court. So Osmond.
STATUTORY DUTY TO GIVE REASONS
(1) Applicability
a. s28 AAT applies if appeal to the AAT is allowed
b. s13 ADJR applies if decision is:
i. of an administrative nature
ii. made under an enactment
(if both s13 and s28 apply under s13(11)(a) of ADJR use s28 of AAT)
c. Any express requirements under the enactment
d. s25D of AIA provides content for unspecified detail of reasons in other acts
e. Also briefly mention standing – who can apply.
f. Does application for review need to be made? – no just right to review s28
Para 15(2) (e) of Ombudsman Act authorises Ombudsman to take action where he or she is of the opinion that reasons should have been given, but weren’t, for a decision of a department or agency.
s13(5) - request made within 28 days or a reasonable time from receipt of decision
s13(1) – standing – must be entitled to make application under s5 – ie person aggrieved
(2) Content (Yusuf) or s25D AIA
a. State all material findings
b. All material evidence on which findings were based
c. Reasons for the decision
Materiality is determined by the original decision maker
(distinction in Yusuf between subjectively material and objectively material – HELD only subjectively material is required for adequate reasons)
Bad reasons, bias, discrimination etc do NOT constitute inadequacy of reasons.
may however disclose jurisdiction errors due to findings exceeding its authority or power (Yusuf), failure to take into account relevant considerations etc…
FREEDOM OF INFORMATION
No standing requirement – s11: ‘every person has a legally enforceable right to obtain access to documents – no need for a proprietary or any other interest’
“ If the institutions of representative and responsible government are to operate effectively and as the constitution intended, the business of government must be examinable and the subject of scrutiny, debate and ultimate accountability of the ballot box” Aust Capital TV v Commonwealth No2,
Re Eccleston & Department of Family & Community Services and Aboriginal and Islander Affairs
(1) Applicability
a. Minister s35 NSW FOI.
i. Ministerial Documents: “document held by the minister relating to the affairs of the agency and that is not an agency document” ss6 & 7 NSW FOI Act.
b. Tribunals/Agency (may have exemptions) s16 NSW FOI
s6 - govt departments, public authorities, local authorities, public offices
i. s13-15 requires agencies to publish internal manuals, workings and functions
c. Private Organisations
(2) Type of document
State the type of document your after
eg documents relating to assessment or advice given in response to Mr X’s application for ….’
(3) Exemptions
ADT has a discretion to release exemption documents s25(1), (3) FOI Act 1989(NSW)
Stands in the shoes of original decision maker who has this discretion
Mangoplah Pastoral Co v Great Southern Energy [1999] NSWADT
MAIN EXEMPTIONS (NSW) - see attachment
Cabinet Documents (submissions, records, deliberations) c1
10yr limitation, doesn’t apply to factual or statistical material
Executive Council Documents (as above) c2
Effecting law enforcement or public safety c4
Effecting relations with other governments
Personal affairs
Business affairs – trade secrets, info of commercial value c7
reverse FOI applies and third party interests must be consulted
Conduct of research which would be adversely affected c 8
Internal Working Documents c 9
Concerning operations of agencies – contains PI component c 16
must be substantially and adversely impacted
MAIN EXEMPTIONS (COMMONWEALTH) – see attachment
National security s33
State Relations s33A
Cabinet Documents s34
Executive Council Documents s35
Internal Working Documents s36
would it limit exchange of opinions, in frank manner
opinion, advise, recommendation obtained
consultation or deliberation
taken place in the course of , or for the purposes of
deliberative processes involved in the functions of an agency or minister
AND
would be contrary to the public interest s36 (1) (a)
DOESN’T include statistical or technical information or expert opinions on scientific or technical matters subsection 6(a)
Financial or property interests of the commonwealth s 38
Operations of agencies s 40
prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits 1(a)
prejudice the attainment of the objects of particular test examinations pr audits conducted 1(b)
substantial adverse effect on the management or assessment of personnel 1(c)
substantial adverse effect on the proper and efficient conduct of the operations 1(d)
AND
would be contrary to the public interest s 40 (2)
Personal privacy s 41– see exceptions
Business affairs s43
Public Interest qualification:
Re James and ANU
Public interest in having examiners not being threatened by disclosure of reputation v rights of individual as a PI – see also Re Burns and ANU.
applicant’s right to know is a public interest
Harris v ABC
Re Kamminga and ANU - access to referee’s reports
exemption s36, s40 – prevent frank and open opinions – failed PI test
confidentiality s45 see page 109.
convention that they are given and received in confidence
Colakovski v Aust Telecommunications Corporation - Kirby
wanted access to taped telephone conversations
s41 unreasonable disclosure of personal information
Right to correct information defined as ‘personal information’ s4
if out of date, incomplete, incorrect or misleading s48.
N.B - if access is refused adequate reasons must be given s26
- right of review – internally s53(1), then AAT s55 or Ombudsman s57.
Presumption of disclosure - Re Eccleston, Commissioner of Police v District Court of NSW
no general presumption – but arguable.
CONCLUSIVE CERTIFICATES
discretion to issue exemption certificates is reviewable
Shergold v Tanner
____________________________________________________________________________________
OMBUDSMAN
OTHER MEANS OF ACCESSING INFORMATION –
Ombudsman – access information as well as just documents
Ministerial Exemption
‘RELATES TO A MATTER OF ADMINISTRATION’ s5 p190
Administration v Policy – Booth, Glenister - distinction unclear – probably good
Booth v Dillon in practice still covers policy matters
specific decision or act or specific failure to decide or act = admin action
Admin v Commercial decisions s6(12)
no specific exclusion of comm decisions but power to decline s6(12)
- not judicial or legislative either
Glenister
‘BY A DEPARTMENT OR PRESCRIBED AUTHORITY’
s5 - s3 exemptions
Ministers – but ministerial advisors
public servants employment issues – hire/fire only
some tribunals
Courts
Powers and Procedures
Complaint (written or oral) or on ‘own motion’
Standing – no specifics but Ombud can decline of interest is insufficient s6(1)(b)
(ii)
After complaint lodged – Ombud does rest – becomes the complainant.
Discretion to decline to investigate
other right to cause of action in crt or tribunal s6(3) (reasonable)
12 months old – stale
hasn’t been taken up with agency first
commercial activity of department or authority s6(12)
Can’t be made to pay costs – cheap and easy avenue
Wide powers to obtain information and docs
Power is recommendatory only
investigates rule of law, justice, discriminatory etc–doesn’t matter if still legal
Political avenues – question time in parliament
ICAC
Legal Proceedings – Spigelman – Practice Note No 119.
Industry Ombudsman
PROCEDURAL FAIRNESS (NATURAL JUSTICE)
(0) Court
a. ADJR Act (See below)
i. Decision of administrative character
Minister for industry and Commerce v Toohey
classification of powers is not a sound basis for review
Subordinate legislation can’t be challenged under ADJR
could use JA Act s39(B)
ii. Made under an enactment
b. Judiciary Act
(1) Standing (identify what you are challenging)
Standing for Judicial Review
a. Person Aggrieved
b. Special Interest
Ogle v Strictland
Priests and Hail Mary Case
Sufficient standing – due to role & job of representing and protecting the church.
c. Commercial Interest
i. doesn’t necessarily exclude – Batemans Bay
ii. not necessarily enough – Alphapharm Pty Limited v SmithKline Beecham
Object of applicant v Objects of Statute
must relate to scope and purpose of the act
- private rights must be affected.
or public right but with special damage peculiar to himself from interference with that public right
– Boyce v Paddington Borough Council
not just pecuniary damage, and doesn’t have to be unique
‘special interest’ - ACF
not a mere emotional or intellectual concern – ACF v Cth
must gain some advantage other than winning or righting a wrong
They were involved in writing EIS – but still only had a political intellectual interest – no real effect on them at all
all depends on the case and the interests at hand
– Robinson v Western Aust Museum
Onus v Alcoa – has legitimate interest in protection of relics & lands – more than in ACF v Cth
‘affected to a greater degree or in significantly different manner to member of public’
ACF (2) v Minister for Resources (1989)
highlights a growing public perception of need to protect the environment. – ACF is there to represent public
interests
ACF national conservation org & forests national Estate
North Coast Environment Council v Minister for Resources (1994)397
NC recognised as advisor and representative in committees for environmental issues etc
government funded – standing as responsible body
regional or nation is no distinction w/ ACF
Application must be within 28 days of the decision in writing, although discretion to accept late applications (see below)
assertion of public rights and public wrongs is job of A-G.
at a parties request ex relatione, or by own initiative ex officio.
Bateman’s Bay Local Aboriginal Land Council v Ab Com Benefit Fundp 391
Commercial interest isn’t enough to disentitle you to standing
test for standing is enabling not restrictive
Standing for the AAT
- s27 (1)– ‘person be affected by the decision’
- s27(2) a organisation is affected by the decision if it relates to a matter included in the objects or purposes of the organisation
Standing for ADJR
“person aggrieved” s5(1)
not narrow (Tooheys)
– at least as generous as standing to seek equitable remedies - Ogle
(2) Jurisdiction
(3) Procedural Fairness – Duty to Afford
a. Is it excluded ?
Explicit statutory provisions – eg Migration Act
‘Clear manifestation of contrary intention” Kioa
i. Appeal to AAT usually excludes – may not be enough
b. Rights, Interests – FAI Insurance
“There is a common law duty to act fairly, in sense of according procedural fairness, in making of administrative decisions which affect rights, interests, and legitimate expectations”
– Kioa v Minister for Immigration and Ethnic Affairs
Broad interpretation – includes reputational interests – Kioa
personal liberty, status, preservation of livelihood, proprietary…
Stronger case with legal rights and interest – but not needed.
Importance of interest at stake
Interests indirectly affected – maybe not – Corio Bay and District Hospital v Minister for Family Services
direct and immediate way – Kioa.
Substantially different way applies to affect interests of public at large
political decisions - no duty of PF Peko Wallsend, O’Shea
general application – affect people due to membership of a class not there particulars.
Minister for Arts, Heritage and Environment v Peko Wallsend
cabinet decision – non justiciable
c. Legitimate Expectations note Lam – may be just for content
i. “undertaking” of hearing –Quinn, Coughlan
Administrative behaviours/practices: CCSU
Undertakings by administrators: amnesty in Salemi v MIEA( no2)
Clean record in Cole v Cunnigham
policy statements as undertaking – Haoucher v Minister for Imm
policy stating he would follow recs of AAT – didn’t
note: policy was tabled – not simply de facto policy
ratification of international conventions – Teoh
Lam (in Obiter) in general ratifications no LE
‘If proposed to make a decision inconsistent with legitimate expectation, Procedural fairness requires that the persons effected should be given notice and adequate opportunity of presenting a case against the taking of such a course’ - Teoh
Effect on rights interests etc
Large group – not individual – no PF
Pensinsula Anglican Boys School
Qld Medial v Blewett
Right to appeal curing the failure to give NJ – Twist v Council of the Municipality of
Randwick
it was a de novo hearing (from the beginning) – Hill v Green
but what happens if refused – life of liberty –argue PF.
if right is exercised! – definitely no PF
if not exercised depends on legislative intention – usually still duty to provide PF
Courtney v Peters
Preliminary Decisions and investigations
less likely to require PF
– Re Minister for Imm and Multicultural Affairs; Ex parte Miah
Level of Formality – more formal – more PF
less formal – right to appeal could be suffice
Failure to provide PF usually makes decision a nullity
(4) Content
a. “undertaking” of legitimate interests
b. Fair Hearing Rule
Right to know matters considered by the decision maker
Bond v ABT (No2)
need not be informed of the precise nature of matters which the DM might take into account.
Failure to provide adequate particulars: any stage in proceeding
courts reluctant to intervene on possible inadequate putting on notice
Romeo v Asher
more formal proceedings earlier intervention able earlier.
‘Duty to warn’ of adverse findings - administrator acts on material prejudicial to person and they don’t know of its existence.
even when they do but don’t know of its prejudicial nature
Somaghi v MILGEA, Heshmati v MELGEA
Public policy grounds for non disclosure – Ansett v Minister for Aviation
would break confidentiality
Rights arising out of administrative practices – Hamilton v MILGEA
introduced and formalised uniform procedures must be made available under normal circumstances
Rights to make submissions in response
Form of submissions: may have a right to oral submissions, particularly with credibility issues
– Chen v MIEA – applicant for refugee status
Legal Representation (s73 requires ART to ensure understanding of proceedings and have fullest opportunities to have evidence etc heard)
1. ability to understand proceedings - complexity
2. interests at stake
3. credibility of procedure
4. capacity to represent themselves w/o reliance on rep
Cairns v Jenkins
Krystic – age, grasp of English, educations
Canellis – right to rep doesn’t necessarily mean legal aid
also doesn’t extend to legal rep be provided to a witness at trial/inquiry
Right to Cross examine – O’Rourke v Miller
no general right to cross-examine.
look at circumstances, rules under which the DM was acting, nature of inquiry – here ad hoc employment dismissal
Right to have all members of the tribunals consider the issue
where there is power of delegation, the decision making body may look at the evidence and may make its own finding or adopt the delegates finding as its own without addressing the evidence or any summary of it
Re Macquarie University; Ex parte Ong
Breach of proper hearing = decision void
not necessarily fatal – but usually
Stead v Govt Insurance Commission.
Hamilton v MILGEA
c. Bias Rule (apprehended Bias, not actual)
- applies to judges only strictly speaking – weakened for others
‘Whether circumstances are such as might give rise in the mind of a fair minded and informed member of the public a reasonable apprehension that the decision maker might not be impartial and unprejudiced’ – Johnson v Johnson
not fanciful – Angliss Group
Justice must be done and be seen to be done - objective
Enber – no difference for pecuniary interests, (or interests of a son – Mr Phillips in Hot H)
Hot Holdings – mechanical function irrelevant, also a peripheral functions
- test as to a judge is different from that of a minister
Personal Connections:
Kaycliff- ABT chair unsuccessfully challenged – no discussion between parties
Koppen – conciliator successfully challenged because of statements about daughters
i. Prejudgment
1. of witness’s credibility
a. Lay - R v Watson, Ex parte Armstrong
Said credit was a “non-issue” he wouldn’t believe either
b. Expert – Vakauta v Kelly
c. Class of witness – Ferati v MIM –(refugee witness)
Note – judge is allowed to express tentative views in a clear provisional nature – Johnson v Johnson
2. about matters in issue and preconceptions
a. Ex parte Angliss Group
open mind != empty mind (Bertard Russell,p474)
is persuasion a genuine possibility?
Application to Administrators
Century Metals v Yeomans
|____________|_________________________________|
judge tribunal administrator
increasing strictness
Ministers meant to reflect public opinion, to be opinionated
Minister for Immigration v Jia
-minister required to consider national interests
Hot Holdings v Creasey
- McHugh ‘ focus must be on the nature of the advisor’s interest, the part that person played in the decision making process and the degree of independence observed by the decision maker in making the decision’
N.B dissent (Kirby)
should again goes to public perception
- increase accountability
- - is there a general impression of bias?
ii. Discrimination
(5) Discretionary Factors
(6) Waiver
i. Did they object? – required by Vakauta
ii. Why didn’t they object?
iii. Where they in a position to object?
1. Hostile negotiations
a. Presumed rejection, prejudice position/proceedings?
(7) cured prejudgment
a. statement qualified or withdrawn
but may involve ineradicable apprehension of prejudgment – Johnson
(8) Necessity
a. No other decision maker available
i. To give effect to statutory intention that tribunal perform its assigned functions – Laws v ABT (1990)
(9) Statutory Exemption
a. If expressly modified or excluded in statute (eg Migration Act – actual bias)
Remedies
b. Prerogative Writs
c. Constitutional Writs
d. Equitable Remedies
e. ADJR
f. Mandamus
g. Order of Review
h. Certiorari – error of law on face of the record
i. Declaratory Remedies – Golden Hunt v Brown
real not hypothetical – Jodex
not final decision – should usually revert back to tribunal
JUDICIAL REVIEW
addresses legality of administrative action.
Lawfulness of decision
Did they have the power to make the decision?
Ultra Vires - regs
Did they follow proper procedures?
RATIONALE
accountability
keeping discretion within the bounds of the law
Societal participation – ensuring democratic representation
- identifies problem areas – source of information
Openness – FOI, Reasons
Honesty
Consistency
Rationality - reasonableness
Impartiality – bias rule, natural justice, disinterested
Fairness
________________________________________________________________________
REVIEW UNDER THE ADMINISTRATIVE DECISIONS ( JUDICIAL REVIEW) ACT
Standing for ADJR
“person aggrieved” s5(1)
not narrow (Tooheys)
– at least as generous as standing to seek equitable remedies - Ogle
administrative character, made under an enactment s3
‘administrative character’ :
Minister for industry and Commerce v Tooheys Ltd p 338
Creation or formulation of new generalised rules = legislative
application of those general rules to particular cases = administrative
by-laws can be both – address the content and character
A decision not to make a determination is an administrative decision
SAT FM v ABC p 342
did it require notification in a gazette – legislative (SAT FM v ABC)
public consultation, policy considerations, power to ‘vary’ or amend
decision to promulgate a plan is not reviewable by AAT – legislative
some are subject and others not – others not administrative
Austral Fisheries
Queensland Medical Laboratory v Blewett p 339
decisions made under an enactment of the parliament by a Minister or his delegate under a statutory power may be legislative and direct and immediate not incidental.
‘Under and enactment’:
ANU v Burns p343.
the power to dismiss was under the contract not the university act.
can be both depending on inheritance
rights to review are additional to contractual rights etc…
‘a decision’ s5, ‘conduct for the purpose of making a decision’ s6
Australian Broadcasting Tribunal v Bond p 349
a decision which the statute requires or authorises
not simply steps in determination – it has finality
acts done preparatory to the decision are not ‘decisions’
if essentially preliminary - ok
substantive determination - ‘ you can or can’t do X’
finding of fact as a reviewable decision
if statute requires or authorises the particular finding
ordinarily – findings and inferences – no- merely steps in determination
Aust Broadcasting Tribunal v Bond
‘Conduct’ (ABT v Bond)
the way in which the proceedings were conducted
mainly procedural and not substantive in character
the process of decision making was flawed
inquiries preceding the making of the decision
an error of law in proceeding conduct precludes an error of law in the decision itself
– Chan Yee Kin v Minister for Immigration & Ethnic Affairs
or failure to perform a statutory duty s7
Decisions by the GG are not reviewable (AG (NT) v Minister for Aboriginal Affairs )
nor decisions listed in schedule 1.
REMEDIES UNDER JUDICIAL REVIEW
Common Law – prerogative writs + equitable remedies
Statutory – ‘order of review’ under ADJR
Constitutional – constitutional writs
PRIVATIVE CLAUSES
s474 Migration Act
Tries to exclude judicial review of executive action
less scrutiny
reduced costs and delays
political aims and issues
tribunal expertise
generally refused to apply to errors which are ‘jurisdictional’
– Plaintiff S157
s 75 Constitution allows the HC to hear matters against officers of the commonwealth
original jurisdiction
entrenched in the constitution and can’t be overruled by govt.
INSTITUTIONAL DISTRUST
subject to the rule of law.
even the government is subject to the judiciary
legal reasonableness v merits – v fine line
NON-JUSTICIABILITY – V RARE
ousting p359
too political
courts ill equipped
polycentric – v high policy content
dissolving parliament
treaty making
declarations of war
CCSU Case
Decisions made under the prerogative are justiciable
with exceptions based on subject matter
- too political
- war
- treaties
- national security
Church Scientology Inc v Woodward
lack of evidence doesn’t make it non-justiciable
judicial review of ASIO stuff despite evidentiary problems
Kakadu World Heritage Listing
- too political
abos, mining ….
Re Ditford; Ex parte Deputy Commissioner of Taxation (NSW)
if excess is in relation to s61 of Constitution – okay
not if merely just politically deficient or failing in conduct
Peko-Wallsend – even if you have standing matter must be justiciable
Spy Catcher Case
how to correctly catch a spy
(1) pretend your dead
(2) that you fell on your head
(3) wait like bait and
(4) then raise your eyebrows one at a time
PUBLIC / PRIVATE DISTINCTION
Datafin case - assignment
TIME EXTENSIONS
Hunter Valley Developments v Cohen p 382
Must seek review within 28 days – Lucic v Nolan
show an ‘acceptable explanation for the delay’ and that ‘it is fair and equitable in the circumstances to extend the time’ Duff, Chapman v Reilly
what actions have they taken in the mean time – have they rested on
their rights?
did the defendant suffer prejudice in the delay?
GROUNDS FOR JUDICIAL REVIEW
CONSIDERATIONS
- ADJR s 5(1)e + 2(a)&(b)
RELEVANT CONSIDERATIONS
something you are bound to do – Sean Investments, Peko Wallsend
matter of statutory interpretation
expressly – exhaustive or inclusive
implication from subject matter, scope and purpose of Act
decision is only set aside if failure to consider materially affected decision
sufficient weight given to relevant considerations is irrelevant
may be of issue in unreasonableness
applies to Minister but broad policy considerations may be relevant to Ministerial discretion
IRRELEVANT CONSIDERATIONS
Consideration of Irrelevant matter
ADJR - 5(2)(a) - taking an irrelevant consideration into account in the exercise of a power
- Must be expressly forbidden
- otherwise can still go to merits review – Roberts v Hopwood
Roberts v Hopwood - old school case about wages and cost of living
‘taking into consideration’
Orthodox or thin view
Mason J in peko wallsend
tick a box
must simply deal with it
Khan
Gummow J
‘proper, genuine & realistic consideration’
UNREASONABLENESS
ADJR s5(1)e + s5(2)g
Eshetu – group assignment
- Irrationality
Bond – decision can be valid not withstanding a flawed reasoning process
see also Austral Fisheries/Bienke/Fuduche
- Discrimination – rare
Parramtta CC v Pestell – inconsistent levy
NSW Aboriginal LC v ATSIC-80% of funds for NT was held discriminatory
Sunshine Coast v Duncan – guidelines not consistently applied
note – under ground of abuse of power and breach of s5(2)(j).
Treating people differently doesn’t constitute discrimination if they are differently situated – Bristol-Meyers Squibb v Minister for Health
- Disproportionality
‘you must not use a steam hammer to crack a nut if a nut cracker would do’ – Lord Diplock at 584.
means must be appropriate and necessary to obtain authorised objective
NSW v Macquarie Bank, SA v Tanner.
Bruce v Cole NSW CA doubted existence of independent proportionality ground in respect of judicial review of administrative action.
- Duty to Inquire
- see group assignment class 18.
NO EVIDENCE
Common Law Position
Fact finding is role of the decision maker
Orthodox View
- If no evidence at all (0, zilch)
- Bond – Mason
Broader View ( not widely accepted )
- Insufficient evidence
- evidence must have some probative value
- not just a suspicion or speculation p 572
-Pochi – Dean J - requirement stems from procedural fairness
Statutory Requirements
s5(1)(h) + s5(3)(a)-(b) ADJR
Rajamanikkam:
HELD: decision must be based on facts which do not exist
if 2 out of 8 are incorrect, decision is still okay.
FACTUAL ERROR OUTCOMES
Could equal
= error of law (Bond – no evidence at all for factual finding)
inference not reasonably open on facts
decision capricious Szelagowicz
improper exercise of power s5(1)f & e
common law stuff
Not an error of law is merely a wrong finding of fact – Waterford
OR unsound reasoning in reaching factual conclusions
OR illogical inference of fact is not error of law
-Bond
= ‘no evidence’ see above
= breach of consideration grounds
Pashmforoosh
finding of fact constitutes a decision reviewable
Taking into account facts found unreasonably or failing to take into account facts a reasonable decision maker would
= breach of procedural fairness
decisions must be based on probative and relevant material
not mere speculation or suspicion
EXCEEDING POWERS - MINISTER (ULTRA VIRES) – AAT (JURISDICTIONAL ERROR)
ADJR ss 5/6(1)(e)
(1) Person aggrieved by a decision to which this Act applies may apply … in respect of any one or more of the following grounds:
(e) that the making of the decision was an improper exercise of the power conferred by the enactment …
ADJR Act s 5(2)
The reference in para (1)(e) to an improper exercise of a power inc:
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
Higher seniority of decision maker allows greater discretion‐
Allows expanded bureaucratic discretion to overcome uncertain choices
Re Drake and Minister for Immigration and Ethnic Affairs
The application of a stated policy ensures consistency and fairness [SG 151]
A policy must be lawful
Repository of discretion must
Exercise discretion, and
NOT fetter discretion by being dominated by
policy
Statutory Interpretation
AIA 1901 (Cth) (Acts Interpretation Act)
15AA a construction which would promote the underlying purpose of the act is preferred
15AB extrinsic materials can be used to find the meaning of a provision
Incidental power must complement not supplement the primary power
London County Council v AG – trams != buses
must be necessary to fulfil the primary purpose
economics or convenience not good enough
Kent v Johnson(CB 8.3.23C)
Regulation doesn’t allow prohibition – Foley v Padle (CB 8.4.16)y, Melb Corp v Barry
Intentions to remove rights and freedoms must be unmistakeably expressed in legislature
Plaintiff S157 v Commonwealth
Coco v R
tap telephones necessitated trespass to install devices
BUT rights curtailed by trespass and specific legislative purpose not expressed.
Interpreted to minimise discrepancy between international and domestic law
Gleeson - Plaintiff S157 v Commonwealth
Authorisation of a tax or penalty is needed to be clear and concise
AG v Wilts United Dairies
Legislation to control supply of food does not authorise the levy of the payment of any money.
JURISDICTIONAL ERROR –
Decisions aren’t decisions at all because they didn’t have the power to make them
decisions are void and referred to as nullities
errors jurisdictional in nature or ultra vires
Certiorari is available for error of law on face of record
Equitable remedies – injunction, declaration
available on any error of law – jurisdictional or non jurisdiction
Non- jurisdictional error –
error made in conduct of lawful jurisdiction
still valid – unless on face of record
Craig – inferior court errors – presumed non-jurisdictional - DC- & Local Crt
Tribunals – presumed jurisdictional errors
NB: largely pointless distinction
ADJR – all errors are reviewable s5, 6, 7– no distinction s5(1)(f)
ERROR OF LAW ON THE FACE OF RECORD – Certiorari
Error of Law
Distinction between error of law and error of fact.
FACT – primary facts, material, judicial notice and knowledge of Decision Maker
LAW – Application of legal terms and standards to facts ‘as found’
No universal test for distinguishing – Agfa-Gavaert
ADOPTED Pozzalanic (1993)
Ordinary or technical meaning of words = LAW
Ordinary meaning or non technical meaning = FACT
Meaning of technical legal term = LAW
Construction of a term whose meaning is established (effect of word) = LAW
Whether facts fall within statute = LAW
BUT
When statute uses words according to ordinary meaning and reasonably open on facts fall within words = FACT
Whether a phrase is composite ie FACT or LAW it is LAW.
all that is needed is that it be used differently to ordinary speech
Record
initiating documents, pleadings, formal order – no transcripts, exhibits, reasons
Craig, s69 NSW Supreme Crt Act.
JURISDICTIONAL FACTS:
courts will intervene
Facts which are preconditions for the exercise of power
OR
facts which ‘in truth’ must exist before a decision maker can validly act
Approval of Minister – requirement – not jurisdictional error but procedural
ABC v Redmore p469
No confinement of power – merely procedural
Project Blue Sky v Australian Broadcasting Authority
‘An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends on whether there can be
discerned a legislative purpose to invalidate any act that fails to comply with the condition.’
look at language of statute
subject matter and objects
consequences for parties of holding void every act done in breach
Directory conditions – procedural
Mandatory conditions – jurisdictional error
pointless classification
Errors in determination of jurisdictional facts are judicially reviewable on evidence before it.
Parisienne Basket Shoes v Whyte:
Legislature can make jurisdiction contingent on
(1) actual existence of state of facts
(2) on decision maker’s opinion that facts exist
DON’T INFER (1) unless clearly expressed. Usually (2)
Corporation of the City of Enfield v DAC – assignment
DELEGATION
Who can exercise a power?
Expressed Statutory repository
+
Delegate
+
Authorised Agents / Carltona Doctrine / alter ego theory
O’Reilly
NOT IN READINGS
GJ Coles & Co v Retail Trade Industrial Tribunal p474
“An Officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.”
‘It is not the act which declares the award invalid but the common law doctrine that an act dependant on a mandatory condition is void if the condition is not fulfilled. However the doctrine of de facto officer, when applicable prevents the nullification of such an act.”
Alter Ego Rule – Carltona Doctrine
The decision of an official of a minister is the decision of the minister
Administrative Functions only – O’Reilly v State Bank of Vic Commissioners
also Metro Borough and Town Clerk of Lewisham v Roberts
legislative functions can’t be entrusted to a subordinate.
Was the action on behalf of X or was it Y using the powers of X.
DICTATION
degree of outside influence – ‘Acting at the behest of outside bodies’
R v Anderson; Ex parte Ipec-Air Pty Ltd p 495
acting other than in due exercise of discretion
‘to hold valid a decision given at a political level instead of at the permanent administrative level would be to contradict the Regulations’
Anzett Transport Industries(Operations) v Commonwealth
giving weight to government policy is not dictation.
SELF –FETTERING – ‘APPLYING POLICY INFLEXIBLY’
ADJR s5(2)(f)
‘in exercise of discretionary power in accordance with a rule or policy without regards to merits of particular case’
Green v Daniels – Dole and school holidays case
Drake
policy must always be lawful
Guidance is permissible and desirable
Policy must never be so inflexible that decision maker refuses to listen to an argument for exemption – Khan v Minister for Immigration
Decision maker must give proper, genuine and realistic consideration to merits of case and be ready in a proper case to depart from any applicable
policy – Khan v Minister for Immigration
BAD FAITH AND IMPROPER PURPOSE
ADJR s 5(1)
Discretionary power must be exercised to achieve legislative purpose; otherwise decision is ultra vires
explicit or implied purpose
purpose can’t be private or illegitimate public purpose
levels of influence on decision maker if removed
Motivating Purpose test; Only the power which has been conferred for that purpose can be used
Thompson v Randwick Council
Doesn’t matter if ulterior purpose was to raise money for legitimate purpose.
R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council [9.2.12C]
Land zoning changed to prevent future aboriginal land title claims not legitimate.
Schlieske v minister for immigration and ethnic affairs [9.2.18C]
Improper purpose to use the migration at for extradition –“it is not the purpose of the Migration Act to aid foreign powers to bring fugitives to justice
Samrein v MWSD Board [9.2.17c]
“but for” test would the decision maker have reached the same decision “but for” the irrelevant consideration
Mixed Purposes and Collective Decisions
IW v City of Perth –
Gummow J – fatally flawed if one person
Toohey J – But for
UNAUTHORISED DECISION MAKING
Governments require legal authority for action they undertake known as ‘ the principle of legality’
ADJR ACT (8.2.1)
5 Applications for review of decisions
(1)(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(1)(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(1) (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(1)(e) that the making of the decision was an improper exercise of the power conferred by the enactment …
(1)(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
SOURCE OF EXECUTIVE POWER
Government is a legal person
It may sue or be sued, employ staff, conduct an enquiry, own and rent property etc etc.
Known as prerogative power – allows governments to enter treaties , declare war etc
not statutory
there are 3 constraints -Clough(1904) (CB 8.2.19)
1. It can be overridden by, and cannot be exercised inconsistently with statute
2. Executive power cannot justify a government act that would be actionable at common law
3. executive power will not authorise action that is coercive, punitive, intrusive or threatening – see CB for case references
VARDALIS (2001)
Controversial (Tampa case)
Differing judgments
French J
o Extended Clough
o Coercive approach was legitimate under prerogative powers
o So executive could determine who could enter Australia
o Subsequent legislative change to support judgment
Contrast with Black CJ
o Stressed that such power needed to rely on statute – but no statute here to prevent arrival of unlawful citizens at peacetime
JARRATT (2005)
Involved traditional common law rule that executive could dismiss its servants at its pleasure
Found no longer applicable under modern administrative law
Unlike Vardalis, the Court did not rely on old prerogative mechanisms
THE PRESUMPTION OF REGULARITY
omnia praesumuntur rite et solemniter esse acta – ‘all acts are presumed to have been done rightly and regularly’ also known as the ‘indoor management rule’ –Royal British Bank v Turquand (1856) (8.2.25
Rebuttable
onus falls in the party wishing to dispute the validity of an action or decision Cubillo v Commonwealth (2000)
STATUTORY CONSTRUCTION AND PUBLIC LAW
Four Criteria
1. Common law and Statutory rules
2. Principles derived from legal policy
3. presumptions based in the nature of legislation
4. general linguistic canons applicable to any piece of prose
Literal approach or Purposive approach (CB 8.3.3)
refer Act Interp Act 15AA(1)
IS THE CROWN SUBJECT TO STATUTORY LAW
Basic presumption before Bropho and supported by Province of Bombay v Municipal Corporation of Bombay was a presumption that the Crown was not bound by a statute that affected it adversely. The crown being Gov. or GG and in some cases extending to statutory bodies doing government business
Bropho v Western Australia (1990)
Section 17 of the Aboriginal Heritage Act 1972 of Western Australia prohibited the destruction or damage of aboriginal sites except with the consent of the responsible State Minister. The Act did not expressly say whether it bound the Crown, although the Act provided that it applied to "all places" in Western Australia.
“A stringent and rigid test for determining whether the general words of a statute“ bind the Crown “is unacceptable” at 218
for statutes passed after the judgement, the court will look at the whole circumstance to see if the crown should be bound at 218
Minister if Immigration v Teoh (1995)
The HC held that when the executive ratified a covenant, at least when concerned with, human rights, it was declaring to the outside world and the Australian community that it was bound by the covenant.
the HC held that a decision maker was required to give some regard in its decision making process
BUT there was criticism
the government introduced a bill Administrative Decisions (Effect of International Instruments) Bill 1999 to override this
domestic legislation is presumed not to violate rules of international law
REGULATIONS - S 48 ACTS INTERPRETATION ACT
A regulation is a regulation if it is stated as a ‘regulation’ – s48
Was it published in the right gazette? ie NSW regulation in NSW gazette
If copies not available – Statutory Rules Publication Act 1903 s 5(3)
reg doesn’t take effect till they are made available
NOT void abanitio
Internet as a ‘place’( see below)
PUBLISHING REQUIREMENTS - GOLDEN BROWN V HUNT
Regulations are made when signed by GG.
not operative till notice given
operative when notice given or at a subsequent date
Watson v Lees
anterior dates must be ‘expressly and intractably specified” by parliament
becomes invalid if not tabled.
Has ordinance been made with reasonable clarity
s48(1)(c) Cth, s40(1) NSW tabled in both houses within 15 sitting days.
after which ceases effect if Cth s 48(3) Cth.
NSW survive lack of tabling
Thorpe v Minister of Aboriginal Affairs
election rules – valid within the 15 days
Cth Parliament Research and Development Tax Concession Scheme
2 years of laws and decisions invalid – retrospectively amended
A disallowance motion can be laid within another 15 of tabling.
s48(4) Cth, s41(1) NSW
if passed the legislation ceases to have effect
or if not disposed of within 15 days also ceases effect (Cth) s48(5)
if not then becomes void – but is valid until.
ie void abinitio.
Clearly and inexplicably state a ‘place’ where it can be obtained s12(2A)
though the mail is not a ‘place’ - Golden-Brown v Hunt
is the internet a place? – possibly – address – location
stipulate addresses not just name of shop. GB v Hunt
must be extremely clear and precise
– ‘making’ of ‘ordinance(s)’ not suffice p 302
GB v Hunt
Copies must be available and in stock on that day p 305
presumption of regularity
onus on the person to prove they were not available
Watson v Lees
if not it is inoperative not invalid
- Watson v Lee
- inoperative till notification s48 AIA
NSW must state the whole rule
Commonwealth - just state title and where copies can be obtained
ULTRA VIRES
Outside scope of the act
1. Identify scope of parent legislation
2. Identify scope of subordinate law
3. Does (2) fit within (1). – McEldowney v Forde
‘necessary or convenient’ to achieve the purpose of the act.
the delegated legislation must be ancillary and incidental
not widen the purposes of the act OR
add a new or different means of carrying it out
Shanahan v Scott
‘regulate or prohibit’
Paull v Munday p 440
emissions not source – ie means not end result controlled
Foley v Padley – “when a power to make by-laws is conditioned upon the existence of an opinion, it is the existence of the opinion and not its correctness which satisfies the condition”
opinion must be held, and must be reasonable.
Melbourne Corp v Barry
regulate doesn’t include a power to prohibit
‘means v ends’
Where a power to make a subordinate law for a purpose, HC adopts a proportionality approach
South Australia v Tanner
Lawlor – AAT can hear appeals from an ultra vires decision
Scrutiny Committees Senate Standing Committee on Regs and Ordinances (Cth)
Regulation Review Committee (NSW)
does it accord with statute
trespass unduly on personal rights/liberties
unduly make rights dependant on non reviewable decisions
contain matter more appropriate for primary legislation
GUIDELINES
- Disallowable instruments – s46(a) AIA
Does the power exist to publish guidelines ie delegated power?
- Dignan’s case.
Common Law duty to publish
Watson v Lee – Mason J
ADMINISTRATIVE APPEALS TRIBUNAL (AAT) – MERITS REVIEW
OBJECTIVES OF THE AAT
To ensure a review is fair, just, economical, informal and quick (AAT 2A)
33 (b)That proceedings are conducted with as little formality and technicality, and with as much expedition (c) is not bound by rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
The AAT has no general power to award cost, but there are limited exceptions s69B
The AAT does not exercise C/wealth judicial power, it exercise administrative or executive power Drake v Minister for Immigration and Ethnic Affairs
STEP 1 JURISDICTION OF AAT
s 25 Any federal enactment decision can be reviewed by the AAT
Jurisdiction is strict
Provisions are construed strictly and if anything is required to be done prior to attempting AAT review it must be done
Re Reynolds and the Defence Force Retirement and Death Benefits Authority (2000)
o Required mediation before seeking ATT review in statute, plaintiff had not sort mediation, therefore AAT refused application
Re Carey and Collector of Customs
o Where a provision is regarded as mandatory, it must be fulfilled prior to a AAT hearing. the AAT will decline jurisdiction if it has not been fulfilled- tick boxes on forms
1) Enactment
a) s3(1) - = Cth Act of Parl or instrument thereunder or Ordinance of External territory (not ACT/NT)
2) Decision
a) What is a decision?
i) s3(3) includes
o Making or refusing to give an order
o giving or refusing to give a licence, consent etc
o retaining an article (FOI)
o Doing or refusing to do any act or thing
STANDING
s27 (1) AAT Act interests affected by a decision
(2) organisation is affected if decision relates to matter in objects or purposes.
Application made within 28 days – s29
MERITS REVIEW
was the decision of the administrator correct or preferable?
whole decision is looked at again – fresh look at facts, law, policy…
ARC “Better Decision Report”
Also Kerr report 1971 –
improve quality and consistency of agency decisions
provide assessable and responsive review mechanisms
enhance openness and accountability of government
Not bound by rules of evidence s 33(1)(c)
little formality and technicality s33(1) (b)
Application of procedural fairness – ‘ambush evidence’
APC v Hayes, Prica, Bessey
Appeal to FC on question of law s44(1). – note this isn’t judicial review.
POWER AND DISCRETION OF ORIGINAL DECISION MAKER S43(1)
Remake the decision
Exercise same powers and discretions conferred on the primary decision maker
Brian Lawlor – the AAT can still hear an appeal from a decision which was ultra vires.
if it was purported to be intra vires.
EVIDENCE AND LAW BEFORE IT.
can look at fresh evidence, apply the current law (if changed), re-looks at everything
Drake v Minister for Immigration and Ethnic Affairs
Esber v Commonwealth
conditional right under old law, satisfied conditions after law repealed
yet on appeal they used old law
Note strong dissent by Brennan J.
distinguished accrued rights and a granting of a current right.
POLICY CONSIDERATIONS
Drake and Minister for Immigration and Ethnic Affairs (No. 2)
Following policy fosters consistency
at cost of individualised justice
accountability
Policy must be consistent with the statute and allow ministers to take into account relevant considerations and not force irrelevant consideration
There is no statutory duty for the minister or tribunal to follow policy
there is Common Law obligation (Drake)
esp. if approved by parliament
can only follow lawful policy!
‘practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. ie If it were shown that the application of ministerial policy would work an injustice in a particular case’
s12 injustice = balance between detriment suffered by those effected and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community’
all from Drake
DELEGATED LEGISLATION
1. Is it labelled as a regulation? – s48 AIA Act 1901
legislation made by an administrator under a power conferred to them under statute
Dignan's Case (Victorian Stevedoring and General Contracting Co ply LId and Meakes v Dignan (1931) 46CLR73
delegates non potest delegare: the delegate must not delegate.
Separation of Powers: Legislative power only to be exercised by the legislature
s 3 of the Transport Workers Act 1928 (Cth)
Government would be impossible without delegation of law making power
'The further removed the law-making authority is from continuous contact with parliament' -ss51 & 52 per Evatt J.
'The greater the extent of law-making power conferred the less likely it is that the enactment will be law w respect to any subject matter assigned to the Corn Parliament.’
Exceptions in times of war or national emergency or under circumstances where essential to retain in some authority a continuous power of alteration or amendment of regulations.
Separation of powers – executives ability to make laws p 339
prerogatives
CHECKS ON POWER
Senate Standing Committee
-checks from inappropriate provisions by reference to specified criteria initially as Scrutiny of Bills secondly on Regulations and Ordinances
Requirement of explanatory statement involving Ministers and other department offices
Tabling and Disallowances rules and publication rules
Subordinate legislation will only be valid to the extent to which it is authorized by governing statute
-thus limits usually made by construing empowering statutes.
The power to regulate and activity is not the same as the power to prohibit Foley v Padley, Paul v Munday