principles of administrative law notes

Principles of Administrative Law Notes

Introduction

What is Administrative Law?

A branch of “public” law (i.e. not “private” law); Controls and regulates the exercise of administrative power by the Executive arm of government; typically concerns administrative decisions or conduct of government officials / public servants which may affect the interests of private individuals. Under the separation of powers, it is the responsibility of the legislature to make rules, and the judi-ciary to resolve individual disputes

Challenging an Administrative Decision

Who will hear a challenge? • Internal review • Merits review before an appeals tribunal • judicial review under the ADJR Act 1977(Cth) in the Fed Ct/Fed Ct. Ct • judicial review under the general/common law in the Fed Ct/HCA.

Who can bring a challenge? • Someone who has standing and who has obtained the reasons for the decision.

How can the decision be challenged? • For judicial review, legal grounds of review have to be made out. • For merits review, the applicant can attack the general merits of the primary decision as well

(i.e., can argue that the primary decision-maker got it wrong on the facts and the law).

What remedies are available if the challenge is successful? • For judicial review, remedies are limited in scope as judicial review court cannot substitute its

own decision for that of the primary decision-maker. • For merits review, there is scope for the merits review body to substitute its own decision.

If more than one course of challenging the decision is available, which course is best?

Sources of Administrative Power

Statute • Directly conferred by express provision (“Principal” Repository) • Indirectly conferred where:

• Principal delegates (the “Delegate” effectively becomes the Repository) • Principal has an authorised agent (the “Agent” acts as the Principal Repository) • Principal, Delegate or Agent has administrative assistant (the “Assistant” helps out the

Repository). • N.B: When delegates make a decision, they do so in their own name - agents however,

are not making the decision in their own name, but on behalf of the person who is law-fully authorised to make the decision.

Sub-ordinate / delegated legislation • Parliament confers authority on Executive (via Statute) to make rules relating to administration

of that Statute (i.e. regulations, by-laws, etc.) • Subordinate legislation is a legislative rule made by an executive agency pursuant to an authori-

ty delegated by legislature • Commonly deals with matters of detail and procedure to supplement the primary rules of an

act, but not intended to deviate from the authorising act • Rules made must be lawfully within the scope of the primary Statute • Powers otherwise conferred similarly to Statutes (i.e. directly or indirectly) • Parliamentary committee assess the validity of subordinate laws to ensure they do not exceed

the powers conferred or infringe rights • Enables more frequent change in areas where flexibility or adaptation in legislative crier this are

required

Quasi-legislation • Policy documents, booklets, memoranda to staff and other internal documents (which are not

legislation); • Used to provide guidance in administrative decision-making process; • Must be consistent with governing legislation; • Must not be applied inflexibly.

Common Law Powers • Royal prerogative powers that have existed for centuries (e.g. the power to pardon, to confer

honours, to enter treaties, etc.); • These are powers emanating from and associated solely with the Crown and exist within s61

of the Constitutions • Executive powers (i.e. powers that ordinary citizens have).

Rule of Law

No person is above the law, all people are subject to the same law, and remedies protect individuals from abstract rights


Individual citizens should not be subject to arbitrary power of other citizens or government. Government (i.e. anyone within the executive who claims to be a repository of power) cannot take coercive action against citizens without clear and existing legal authority

• Entick v Carrington Everyone is bound by the same law (i.e. no special treatment according to personal status). Separation of powers highlights separate levels of decision making and allows from judicial scrutiny of executive and legislative decisions Parliamentary sovereignty focuses on the idea that the legislative branch is ultimately supreme over the executive and the judiciary

Ministerial Responsibility

Ministers are responsible for the administration of their government departments. The “Ministry” (i.e. the Executive) only maintains office as long as it holds the confidence of the Par-liament and therefore Ministers are accountable to the Parliament. Administrative decisions made within a Minister’s department can therefore be challenged at the highest level.

Review of Legality vs Merits

Constitutional doctrines (especially Separation of Powers and Parliamentary Supremacy) impact on Administrative Law. In particular:

• If the Parliament decides to make a person within the Executive branch a repository of adminis-trative decision-making power, it is not for the Courts to usurp that function if the repository makes a bad decision.

• The Executive (politically mandated by the community) must be permitted to carry out its ad-ministration without being restrained by the courts.

• BUT the Executive cannot determine the limits of its own power - that is the role of the Courts. There is an ongoing tension between the three branches of government. Judicial Review of administrative decisions is therefore restricted to the legality of the decision and decision-making process.

There is no automatic right to merits review, and must be provided for by statute.

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Minister of Aboriginal Affairs v Peko-Wallsend Ltd(1986) 162 CLR 24, at 40-41

JUDGMENT: Mason J: “The limited role of a court reviewing the exercise of an adminis-trative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion

which the legislature has vested in the administrator. Its role is to set limits on the exer-cise of that discretion, and a decision made within those boundaries cannot be im-

pugned”.


Merits reviews are not constrained by court processes and formalities, but must still act lawfully, or it would open itself up to judicial review

Privatisation, corporatisation and contracting out Privatisation: where a government sells of an activity to the private corporation, it divests itself of a function

Eg. Telstra, Commonwealth Bank, Medibank Contracting out: where a private entity is contracted to perform the functions of a government agency, some control remains with the government

Eg. Metro Corporatisation/commercialisation: the process of managing or running something principally for fi-nancial gain

Eg. Australia Post

Issues Reduces accountability and transparency of government Administration law is concerned with government decisions If a decision is not made by government, then judicial review is generally not available

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Plaintiff M61 FACTS: Involved refugees applications made by refugees in an off-shore detention cen-tre. The application was denied by the employees of a private company in control of the

application process. JUDGMENT: S75(v) allows for an action to be reviewed by 'an officer of the Common-

wealth' HC stated that the question at hand should not be answered by the court and is not necessary. The decision to refuse the status is left to the Minister, who relied on the advice given by the employees. The employee merely made recommendations, and so

was not the one who rejected the application.

R v Panel on Take-overs and Mergers; Ex Parta Datafin FACTS: Involved a decision made by a private body.

JUDGMENT: Held that it was subject to judicial review due to its public nature. Focus was on the effect of the decision, not the source of the power. Can be the subject of ju-

dicial review mainly to natural justice.

Jurisdiction The first essential step for an applicant in judicial review proceedings is to satisfy the court that it has jurisdiction to hear the matter. When a court accepts that it has power to interfere, it is recognising that it has jurisdiction to conduct judicial review.

Common Law Jurisdiction

Judicial review originated in the inherent common law jurisdiction of superior courts to grant certain remedies, which enabled a court to examine whether a public sector body was complying with the limits imposed by the law:

• Certiorari (to quash an invalid decision) • Prohibition (to prohibit a decision-maker from further unlawful activity) • Mandamus (to compel a lawful exercise of power) • Habeas corpus (to require the release of a person unlawfully in custody)

The inherent jurisdiction of the superior courts to conduct judicial review expanded to include the granting of remedies that were traditionally “private” law remedies:

• Injunction (of a “prohibitory” or “mandatory” type); • Declaration (court declares the legal obligations of a public agency).

In relation to decisions made by Commonwealth public officials, no court has inherent common law jurisdiction to conduct judicial review:

• The High Court is a creature of The Constitution, and therefore its powers are constitutional (not inherent);

• The Federal Court is a creature of statute and its jurisdiction is limited to those areas determined by parliament (Federal Court of Australia Act 1976 (Cth)

The High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the commonwealth, under s 75(v) of The Constitution.

• But note that section 44(2A) of the Judiciary Act 1903 allows the High Court to remit any pro-ceedings initiated in its original jurisdiction to the Federal Court for determination.

The Federal Court has a similar jurisdiction under s 39B of the Judiciary Act 1903 (Cth).

The jurisdiction conferred by these provisions are taken to mean jurisdiction to conduct judicial re-view at common law (“or under the general law”)

The essential requirements to establish FC or HCA jurisdiction to engage in judicial review at CL: 1. a matter (involving a controversy about rights, duties or liabilities); 2. an entitlement to a remedy (e.g. mandamus, prohibition, certiorari, injunction or declaration); 3. relief is sought against an “officer of the Commonwealth”

Jurisdiction

“Justiciability” at Common Law Even if the High Court or Federal appear to have prima facie jurisdiction to conduct judicial review at common law, the court may refuse to hear and determine a matter on the basis it is non-justiciable.

A court may determine a matter to be “non-justiciable” because it does not consider the situation to be amenable to judicial intervention. This means that the court takes the view that either:

• it could not resolve the issue (very rare); or • it should not resolve the issue. (Note: it is rare for (a) to be the reason.

Whether a claim is justiciable may also depend on whether the decision relies on legal standards rather than political ones. Many issues in government are not suitable for evaluation by the judicial methods, whether because of the nature of the issues, the limitations of the judicial review, or the ex-istence of a more suitable alternative methods of scrutiny. The following are justiciable;

• Government decision involving prerogative powers • Cabinet decisions • Decision with a close relationship to national scrutiny • Decision of international relations

The court would have regard to, for example: • the source of the power (e.g., constitutional or prerogative vs. statutory); • the status of the decision-maker (e.g., Prime Minister or Cabinet vs. a departmental officer); • the nature of the decision-making power (e.g. one relating to national security vs. a particular

individual’s application for a mining licence); • whether the issue for determination is real or hypothetical.

But it is usually difficult to argue a matter is non-justiciable

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Re McBain; ex parte Australian Catholic Bishops Conference FACTS: Infertility Treatment Act only allowed married or de facto women to a man to get IVF treatment. McBain wanted to provide IVF to a single woman. McBain sought a dec-laration by the Federal Court that the Act was inconsistent with Commonwealth anti-dis-crimination laws and was successful. ACBC sought judicial review of the FC decision.

JUDGMENT: ACBC had made submissions as 'amicus curiae' but was not a party themselves. Held BCB was unsuccessful. Proceedings did not give rise to a matter. The presence of a matter is a pre-requisite for the exercise of judicial power. Matter must be real case, not hypothetical. As none of the parties wanted to appeal, there was no justi-

ciable matter.

Jurisdiction

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Minister for Arts, heritage and Environment v Peko-Wallsend Ltd FACTS: Cabinet decided to nominate land in Kakadu National Park for World Heritage

Listing. Was an exercise of prerogative power. Peko had mining interest in the land, which would have been affected by the listing. Peko challenged the decision for denial

of natural justice and won at first instance, but was reversed by the full court. JUDGMENT: Held prerogative powers can be subject to judicial review. But this was

non-justiciable because the subject matter involved complex policy questions. Cabinet is not necessarily immune from judicial review.

Council of Civil Service Unions v Minister for the Civil Service FACTS: Prime Minister had prerogative power regarding terms of employment of GCHQ staff. Made a decision that GCHQ staff old not longer belong to a union. No consultation with staff of GCHQ or CCSU. CCSU and 6 GCHQ staff sought to challenge the validity

of the decision. JUDGMENT: Held if justiciable, the minister;s decision would have been reviewed for a breach of natural justice. Prerogative powers are subject to judicial review. Question is the nature of the power, not its source. Matter was non-justiciable because it involved

national security.

FAI Insurances v Winneke FACTS: FAI had been on the list of approved providers of workers compensation. The government decided not to renew FAI as an appointed provider. FAI sought a right of reply. Government argued that the issue was not justiciable because final approvals were made by the government in Council acting on ministerial advice (I've. Executive

Council). JUDGMENT: Held the decision was void for denial of natural justice. Decision made by the executive council is not free from review. The council has the power to make deci-

sions across a variety of areas but is not free from review.

Hicks v Ruddock FACTS: Hicks was caught by the US in Pakistan training with terrorists, and was held by

US authorities in Guantanamo Bay. Hicks sought judicial review of a decision by the Minster who denied his release. The Minister argued that is was non-justiciable as it in-

volved issues of foreign relations. JUDGMENT: Dismissed Minister's application. Just because it involved issues of foreign

relations didn't necessarily preclude judicial review. Case involved serious issues of deprivation of liberty and detention which counterbalanced non-justiciability.

Jurisdiction

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Jurisdiction

Jurisdiction under the ADJR Act

Section 5 of the ADJR Act allows a person to apply for an order of (judicial) review: • to the Federal Court or the Federal Circuit Court; • in respect of “a decision to which this Act applies”; • if the person is “aggrieved” by that decision.

Section 6 allows the same courts to hear an application made by a person aggrieved by “conduct for the purpose of making a decision to which this Act applies”.

Section 7 allows the same courts to hear an application made by a person aggrieved by a decision-maker’s failure to make a decision.

Section 3(1) defines “decision to which this Act applies” as: • a decision “of an administrative character”; • made “under an enactment”; • but not a decision by the Governor-General or a decision included in any of the classes speci-

fied in Schedule 1 of the ADJR Act.

4 essential requirements for a litigant to invoke Federal Court or Federal Circuit Court jurisdiction under the ADJR Act. You MUST establish that there is:

1. a decision or “conduct for the purpose of making a decision”; 2. this decision or conduct was of an administrative character; 3. this decision or conduct was made under an enactment; and 4. there is a person aggrieved (NB: relates to standing).

Before a final decision is made, the decision-maker may undertake a number of preliminary steps which could be seen as “conduct” or each step even a “decision” in itself. For example:

• deciding to investigate a matter; • assembling facts; • interviewing a witness; • reading a report, or other secondary-source material; • engaging an expert consultant; • drafting a preliminary decision (but not the final one).

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Jurisdiction

Decision / Conduct

Section 3(2) lists examples of types of “decisions” which appear to have the quality of finality: (a) making, suspending, revoking or refusing to make an order, award or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or

permission; (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction (e) making a declaration, demand or requirement (f) retaining, or refusing to deliver up, an article; (g) doing or refusing to do any other act or thing.

Section 3(3) provides that in certain circumstances the making of a report or recommendation, before the final decision is made, is deemed to be a “decision”.

Section 3(5) provides that “conduct” includes doing anything preparatory to the making of a deci-sion, including the taking of evidence or the holding of an inquiry or investigation.

“Administrative Character”

The phrase “of an administrative character” describes all decisions which the Executive makes, namely all decisions which are:

• made by Ministers, public servants, government agencies and others in executing or carrying into effect the laws of the Commonwealth; and

• not of a judicial character; and • not of a legislative character.

Legislative acts are concerned with the creation or formulation of new rules of law having general application. Administrative acts are concerned with the application of those general rules to particular cases.

”Under an Enactment”

In relation to whether a decision is “made … under an enactment”, section 3 of the ADJR Act defines “enactment” to include:

• an act; • an instrument (including rules, regulations or by-laws) made under such an Act.

Test: Per the plurality of Gummow, Callinan & Heydon JJ in Griffith University v Tang, a decision will have been made under an enactment if:

• The decision was expressly or impliedly required or authorised by the enactment (similar to ‘decision’ requirement, above); and

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Australian Broadcasting Tribunal v Bond JUDGMENT: Mason CJ: A reviewable decision is one is which is provided for by statute.

Conduct that is procedural in nature can be reviewable decision.

Jurisdiction

• The decision itself confers, alters or otherwise affects [someone’s] legal rights or obligations

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Jurisdiction

Supreme Court of Victoria

At common law, the Supreme Court of Victoria has an inherent jurisdiction to conduct supervisory judicial review. This inherent jurisdiction was established with the settlement of Victoria and is con-firmed in the Constitution Act 1975 (Vic).

The SCV’s statutory jurisdiction comes from the Administrative Law Act 1978 (Vic) (‘AL Act’). The AL Act introduced some significant reforms:

• A right to a ‘statement of reasons’ (s 8); • Incorporation of those reasons in the ‘record’ of a tribunal (s 10); • More liberal standing rules (s 11); and • Displacement of privative clauses (s 12).

Unlike the ADJR Act, the AL Act does not codify the grounds of review or remedies. The limited purpose of the Act was emphasised in Monash University v Berg

Requirements for Review under the AL Act

The AL Act enables statutory applications for judicial review to be made of the ‘decisions’ of ‘tri-bunals’.

1. ‘Decisions’ • A.B v Lewis

2. ‘Tribunals’ A tribunal is defined as a body that is bound to observe one or more of the rules of natural justice. When the Act was passed, the scope of natural justice was significantly narrower than it is today. This change affected the scope of the definition of ‘tribunal’ under the AL Act.

• FAI Insurances v Winneke

3. Grounds for review under the Act • Keller v Drainage Tribunal

4. Method of applying for review • AL Act ss 2-6

5. Stay orders and interim relief • AL Act ss 6, 9

6. Standing under the AL Act The AL Act test is very similar to the ADJR Act test (see below), but the AL Act has not been the sub-ject of many cases.

• AL Act 1978 (Vic), s 2 (definition of a ‘person affected’) and s 11.

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Privative Clauses

Governments and legislatures may want to limit the ability of courts to interfere with certain deci-sions. The government’s desire for judicial restraint may occur especially in relation to:

• decisions made by specialist administrative tribunals (e.g. Refugee Review Tribunal); • decisions involving significant social or policy considerations (e.g. migration or labour rela-

tions) • decisions that are otherwise politically “sensitive”.

Privatise clauses in legislation is one which attempts to prevent a court pronouncing on the lawful-ness of administrative action taken under statute. A privatise clause which on its face appeared to oust the HC's jurisdiction would be effective provid-ed the purported exercise of power was bona fide attempt to exercise the power, it related to the sub-ject matter of the legislation, and was reasonably capable of being referred to the power.

The government, through legislature, may enact a “privative” clause in an attempt to: • remove the jurisdiction of the courts to judicially review such decisions; and • as a consequence, to prevent courts from ruling on the lawfulness of such decision-making.

Only relate to common law jurisdictional review, and not merits review!

Types of Private ClausesFINALITY CLAUSES- A clause that precludes any right of appeal will no impose any significant limitation upon judicial

review, because judicial review is not an appeal - 'No appeal' clause: confirmation that the relevant Act contains no statutory right of appeal, but

does not mean no review

NO CERTIORARI CLAUSES- A clause providing that a decision or act shall be questioned

Hockey v Yelland FACTS: Decision of medical board were final and conclusive, and did not allow for ap-peals. JUDGMENT: The provision do not oust the jurisdiction of the Supreme Court to issue writs of certiorari. The words 'appeal or otherwise' meant appeal or in the nature of an appeal. When determining the privative clauses, one must include the entirety of

the clause and Act.

Anisminic v Foreign Compensation Commission FACTS: Foreign Compensation Act s4(4) stated that the determination by the Commis-sioner of any application made to them under the act shall not be called in question in

any court of law. JUDGMENT: Determination refers to a legally made determination. All errors of law were jurisdictional therefore privative clauses couldn't protect determinations infected with an error of law. Although Parliament did not include jurisdictional review in the Act, it was

clear that it attempted to exclude it, arising problems.

- May exclude the remedy of certiorari except for jurisdictional errors

NO JUDICIAL REVIEW CLAUSES- Constitution provides for entrenched right of judicial review (s75(v))

A decision will be within jurisdiction if it; 1) Was a bona fide attempt to exercise its power 2) Related to the subject matter of the legislation 3) Was reasonably capable of reference to the power given to the tribunal

* Test is now insufficient on its own

Gleeson CJ (Plaintiff S157) 1) When legislation is enacted to implement a treaty, interpret in favour of treaty obligations. 2) Courts won't impute to the legislature an intention to abrogate or curtail fundament rights, unless

it is clear manifested in legislation

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R v Hickman FACTS: Act established local reference boards to settle employment disputes in the coal mining industry. Reg 17 stated that a decision of the board shall not be chal-

lenged, appealed against, quashed or called into question... In any court. JUDGMENT: Did not conflict with s75(v).

Re Refugee Review Tribunal, Ex parte Aala FACTS: Aala's refugee application was refused, sought review by tribunal and then

Federal Court. RRT claimed it had read all the material from previous hearings, but in fact had not. Aala sought review in HC via s75(v) for the breach of natural justice, which

was excluded from Migration Act as a ground of review. JUDGMENT: S75(v) entrenches HC's jurisdiction being made in excess of jurisdiction

for which prohibition is available. Remedies under s75(v) are discretionary and referred to 'constitutional writs'.

Plaintiff S157/2002 v Cth FACTS: Privative clause decisions was final and would not be subject to review or relief

(s474). Plaintiff had a refugee application rejection and sought review in HC, and ar-gued that s474 conflicted with s75(v) and struck out.

JUDGMENT: Privative cluause couldn't exclude HC's jurisdiction under s75(v). The Hickman test is simply a rule of statutory construction to assist in reconciling provisions. S474 old not deny natural justice, and so clause was valid but ineffective. Although the

clause was valid, the court held that parliament could not have possibly intended to apply it to jurisdictional error. Jurisdictional error is not affected by privatise clauses be-cause those decisions are not decisions at all. Legislation cannot alter the HC's jurisdic-

tion.

3) Constitutional Is framed upon the assumption of the Rule of Law 4) Privative clause should be construed against the presumption that the legislation did not intend to

deprive citizens from access to the courts 5) When interpreting a clause, consider whether the whole Act and attempt o achieve a reconcilia-

tion between clauses and legislation

TIME LIMITED CLAUSES

NO INVALIDITY CLAUSES

Exceptions- Tentative or provisional assessments - 'Conscious maladministration of the assessment process'- deliberate failure to comply with the Act

Privative clauses and state legislation

- State parliaments cannot enact privatise clauses to restrict jurisdictional review for jurisdictional error - Constitution prevents the states from removing the defining qualities of Supreme court's - Quality includes ability to conduct jurisdictional review

- Kick v Industrial Relations Commission NSW - Privatise clauses are beneficial where they promote finality but not where they clash with the

Constitution

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Bodruddaza v Minister for Immigration FACTS: Migration Act s486A imposed a max time limit of 84 days for applications to HC. B's Vizard had been refused by the Department but his review application was

made 1 day late. Sought judicial review of Department's decision by HC, but was out-side of 84 day time limit. Minister argued that the application should be dismissed be-

cause it was out of time. JUDGMENT: S486A was invalid. No ability to take into account the range of vitiating cir-

cumstances that may affect administrative decision making. Strict time limit subverts the constitutional purpose of remedy provided by s75(v).

Federal Commissioner of Taxation v Futuris FACTS: Futuris disputed a capital gains assessment by the Commissioner made under Income Tax Assessment Act 1936 so it sought judicial review under s39B of Judiciary

Act. S175: the validity of any assessment shall not be affected by reason that any of the provisions of the Act have not been compiled with.

JUDGMENT: Where s175 applies, errors in the process of assessment do not go to ju-risdiction and so do not attract the remedy of a constitutional writ under s75(v) Constitu-

tion or under s39B of Judiciary Act.

Privatise clauses and New Administrative Law

- Statutory judicial review had the effect of erasing privatise clauses effect - ADJR Act s4: Act to operate notwithstanding anything in existing laws

- Pre-ADJR Act are ineffective - Post-ADJR Act are unaffected, use principles of Plaintiff S157

Determinations which are afflicted by some jurisdictional error are not determinations, but pur-ported determinations (Anisminic).

In Aala, the High Court clarified (and expanded) the definition of its power to issue writs under 75(v) of The Constitution:

• Prohibition and mandamus are not “prerogative writs” for the purposes of referring to the origi-nal jurisdiction of the Court under s 75(v).

• They are “constitutional writs” (as is the writ of injunction). • Certiorari and declaration are “ancillary” writs which may issue if necessary. • The constitutional and ancillary writs may be issued for “jurisdictional error”. • “Jurisdictional error” includes a breach of procedural fairness. • A remedy under s 75(v) does not lie as of right; it is discretionary. • “Jurisdictional error” for the purpose of s 75 writs is now clearly wide in definitional scope

(Yusuf)

1. What does the Parliament have to say exactly, in drafting a privative clause, to stop courts interfer-ing with decisions by way of judicial review?

2. Commenting on one and will it be effective

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Standing

A person, entity, or group who has “standing” (locus standi) in relation to a complaint, has the right: • Commence legal proceedings • to invoke the jurisdiction of the court; to be heard by the court in relation to that complaint; or

to have the complaint determined by the court. It is 'a metaphor to describe the interest required, apart from a cause of action as understood at com-mon law, to obtain various common law, equitable and constitutional remedies'.

Standing is rarely an issue where the complaint relates to a “private” interest of the complainant – the complainant clearly has standing. Examples:

• the personal interest in not being deported; • the commercial interest in having a licence to carry on business as an insurer renewed; • the personal interest in not having one’s house demolished.

Standing is more controversial where the interest is not obviously “private” in nature, but seems to be more “public”. For example:

• a government decision to approve a certain development that impacts on the environment may not impact on any particular private interests, but the public as a whole;

• a government decision to lengthen retail shopping hours may affect members of a trade union as a whole.

Arguments in favour of restricting standing: • The law should limit the class of people with standing to initiate legal proceedings to challenge

the validity of government decisions and actions • The role of courts should be to adjudicate disputes between parties that concern their individ-

ual interests (not to resolve disputes on issues of general public policy). • Parties whose private interests are at stake have more of an incentive to ensure the legal issues

are properly framed and argued. • If every “busybody” was allowed to challenge administrative decisions, the government admin-

istration would be impeded, and courts would be inundated with public interest litigation.

Arguments against restricting standing: • Individuals should have access to the courts • If government action is unlawful, why should a “technical” standing requirement prevent the

courts from restraining that unlawfulness? • Public interest litigation plays a valuable role in enforcing legal compliance and government

accountability. • Inappropriate litigation can be better managed through other powers available to the court (e.g.,

costs orders, summary dismissals).

Attorney General's Fiat

The AG is the first law officer of the Crown and represents the public interest AG traditionally had standing to seek judicial review of decisions that affect public rights

Standing

Can seek review on his/her own motion, or can permit the action to be brought on his/her behalfThe Attorney-General has ex officio status to challenge certain actions which affect the public interest. An individual or organisation may, with the Attorney-General’s consent, obtain his fiat and sue in his name (e.g. McBain) (but this is a rarely used method). Decision to seek review or permit someone else to seek review is not itself reviewable In practice, the AG rarely beings such actions or grantsi fiat to someone else to bring the actions The more common method by litigants is to satisfy the court that they satisfy the legal standing re-quirements. AG is unlikely to interview on an issue of a Cabinet Minister.

Standing at Common Law

At common law, where public rights or interests were involved, a party was able to obtain relief (without relying on the Attorney-General’s fiat) where:

• the interference with the public right was such that some private right of the person was at the

same time interfered with; or • In the absence of interference with a private right, a party suffered special damage peculiar to

himself from the interference with the public right (Boyce v Paddington Borough Council). (Special interest test)

A person has a “special interest” if he or she (ACF):

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Australian Conservation Foundation v Commonwealth JUDGMENT: Held that the ACF did not have standing. The court applied a modified

version of Boyce's test; a mere intellectual or emotional concern in a manner will be in-sufficient to give someone a special interest in that matter. It must be likely to gain some advantage, other than the satisfied action of righting a wrong. Even if the ACF members could show a special interest, this would not be enough. Mere belief or concern, how-

ever genuine, does not in itself constitute sufficient interest. Dissent: If you have a right to be heard (or make a submission) then you should have

standing to ensure that relevant provisions are observed.

Onus v Alcoa of Australia Ltd FACTS: Victorian Act prohibited actual or likely disturbance to or interference with Abo-riginal cultural relics. Alcoa planned t build a smelter, which may have interfered with

nearby relics. Onus Slough to enforce the Act to stop Alcoa. JUDGMENT: Held Onus had a special interest due to the particular nature of their rela-tionship created an interest. This case expanded notion of 'special interest'. The women had a special interest that was greater than a general/public interest. It is necessary to show, with comparison to the public at large, that the plaintiffs would be affected to a substantially greater degree. Each matter would involve an assessment of the impor-tance of the concern of the plaintiffs. What is a sufficient interest will vary according to

the subject matter of the litigation.

Standing

• is likely to gain some advantage if the action succeeds (other than the satisfaction of righting a wrong, upholding a principle or winning a contest); or

• is likely to suffer some disadvantage if the action fails (other than a sense of grievance or a debt for costs).

• A special interest does not mean a mere intellectual or emotional concern.

In confirming 'special interest', the court also said • Having an intellectual or emotional interest as well won't prevent standing • An interest can include non-material interests (eg. Spiritual interests) • Lack of physical access to the land was not a barrier to finding a special interest.

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Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (SA) FACTS: There was a decision to allow Sunday trading in Adelaide's Central Shopping District. The Union challenged the decision because it's members would have to work

on Sunday's. JUDGMENT: The rule is flexible and the nature of the subject matter of the litigation will dictate what amounts to a special interest. Shop assistants, as a class or people, have an interest in the trading hours of the shops in which they are employed, which is diffi-dent from and greater than that of the general public. Representative bodies, such as

unions, can get standing if the members do.

Standing

Standing under the ADJR Act

Section 5 of the ADJR states that an application for judicial review can be made by “a person who is aggrieved” by a decision. Section 6 has a corresponding requirement in relation to conduct. Section 3(4) defines “person aggrieved” as including “a person whose interests are adversely affect-ed”.

The ADJR Act’s “person aggrieved” test is regarded as the same as the common law’s test for standing (Tooheys v Minister for Business and Consumer Affairs) *

• Ellicott J: The words 'a person who is aggrieved' should not... Be given a narrow construction. As long as a person has a grievance in relation to a decision beyond that which they have as an ordinary member of the public, they will be aggrieved in the related sense. Indirect or contin-gent interest may be sufficient to give someone standing

Cases decided in either jurisdiction can therefore be used to address issues of standing arising in both.

21

Australian Institute of Marine & Power Engineers v Secretary, Department of Transport FACTS: Challenged a decision of the secretary to issue (for tax purposes) a 'manning notice', which estimated the number of workers required for a ship to be crewed. Ar-

gued secretary set minimum number of crew was too low. JUDGMENT: Institute did have standing. The effect was cumulative as none of the fac-

tors by themselves would give standing, but collectively they did.

North Coast Environment Council v Minister for Resources FACTS: NCEC represented 44 groups in NSW. Minister granted export licence for wood

chips, NCEC made submissions. JUDGMENTS: Sackville J: Just because NCEC made complaints about procedures,

had objects and its role, did not individually point to standing. Other cumulative factors showed NCEC concerns that were 'far more than mere intellectual or emotional'. If the

group can show a connection to the land in question, may point to standing.

Right to Life Assoc (NSW) v Sec, Commonwealth DHS FACTS: Secretary had approved trials of abortion pill but has power to stop trials if in

public interest. RTL asked for trials to be stopped. JUDGMENT: Lockhart J: Held RTL did not have standing. Incorporation will not auto-matically give an organisation standing. Objects are relevant but this does not trans-

mute into a right of standing. RTL's objects included making the public and politicians aware of the a city of human life and need to defend it against abortion. The Act was not

directed at the wider social issues RTL sought to raise, it was confined to the quality, safety, efficacy and timely availability of goods. RTL only had an intellectual, philosophi-

cal and emotional concern, and not affected by general public.

Standing

Joinder Means allowing another party to become involved in an application, usually after it has commenced Section 12 ADJR confers a discretion on the court to allow a 'person's interest in a decision' that is being challenged in proceedings before the court to be made a party to those proceedings. The phrase is different to s3(4)(a) which mentions a 'person aggrieved' Cases suggest that these2 terms mean the same thing Application can be granted unconditionally or subject to conditions the court think fit (s12(2)(a)) Court has a discretion whether to join a party (s12(2)(b)) If joined as a party, you may also be liable for a share of costs, but can appeal decisions

22

Argos v Corbell, Minister for Environment and Sustainable Development (ACT) FACTS: Proposed development of a derelict shopping centre in ACT. Ministers had

made decision to approve. 3 applicants challenged the decision; the landlord, super-market owner and IGA operator in nearby towns. Supermarket operators claimed they would lose 10% profits. Landlord claimed loss of tenants/rent if the supermarket opera-tor went out of business. Applicants were not given a chance to commoner on the pro-

posal. JUDGMENT: Supermarket operators were 'persons aggrieved' but landlord was not. No need to directly link the objects of the Act with the person;s interests. Whether a person is aggrieved is a matter of fact and degree of interest. A decision which affects the in-terest of one person directly may affect the interest of other indirectly. Applicant must have interests affected. To limit standing to the objects of an Act would undermine an

important purpose of the ADJR Act. The availability of judicial review serves to promote the rule of law and improve the quality of administrative decision-making as well as vin-

dicating the interests of persons affected.

Animals' Angels v Secretary, Department of Agriculture FACTS: AA has a permanent Australian representative but no members. Investigated an

export from Fremantle to Malaysia and found ILE breached various export standards. Licence was not suspended and AA contended this. Argued AA did not have standing. JUDGMENT: It was an international body but had an Australian representative and so

had standing and objects intersected with the purpose of the Act.

Walton v Scottish Ministers (UK) FACTS: Involved a road building scheme. Act required environmental assessment. Wal-ton and 10,000 others commented and the head of the pressure group, but challenged

on an individual basis. JUDGMENT: Walton had standing as an individual. If you have the right to participate in

the process, you have the right to standing. There are some circumstances where a person might not participate but may have standing. Open standing may be appropri-

ate in some circumstances. Rule of law will not be maintained if no one was able to have standing. Environmental cases are different and deserve a more flexible ap-

Standing

Court will not join parties if it will increase case length

Amicus Curiae Someone who is joined as a 'friend of the court' and so will assist the court Role of Amicus Curiae ('friends of the court') is less common in Australia Appearance as amicus Curiae is at the discretion of the court Court has the discretion to decide the nature of the appearance They are not a party to the case and so cannot call witnesses, adduce evidence or appeal a decision, but are usually not liable for costs.

23

Reasons for Decisions

Arguments for decision-makers being obliged to give reasons: • encourages better decision-making and reduces the possibility of “whimsical” decisions being

made; • enhances transparency of administrative decision-making; • ensures accountability of administrative decision-makers; • enhances the legitimacy of the decision-making process; • informs individuals as to whether the decision has been lawfully made (i.e., allows them to dis-

cern potential grounds of judicial review); and • in this sense, the provision of reasons is only fair as it allows proper scrutiny of the decision.

Arguments against decision-makers being obliged to give reasons: • decision-makers under time constraints (or who are lazy) may be inclined to generate standard-

ised or “pro-forma” reasons; • some decisions are politically sensitive and it would not be in the public interest to disclose

reasons (e.g. which involve national defence and security issues); • all that fairness requires is the decision-maker to observe principles of natural justice from be-

ginning to end of the decision-making process - it does not require reasons to be provided af-terwards.

Right to Reasons at Common Law

There is no general right to reasons at common law. This general principle at common law was recently restated by the High Court in Wingfoot Australia v Kocak. However, in that case the High Court made it clear that the common law is subject to modifi-cation by statute. That case concerned the adequacy of reasons provided by a medical panel, which a statute expressly obliged it to give.

Public Service Board (NSW) v Osmond JUDGMENT: HC Held there is no general rule of common law or principle of natural jus-

tice requiring reasons to be given. It is up to Parliament to decide what should be subject to an obligation to provide reasons. In special circumstances, there might be an obliga-

tion to provide reasons.

Baker v Canada JUDGMENT: No general common law duty to prove reasons. But it might be implied to

appropriate circumstances of fairness or where the decision has significant impact

Reasons

Right to Reasons under ADJR Act

S 13(1) of the ADJR provides that a person aggrieved by a decision to which the Act applies can re-quest from the decision-maker a statement in writing which:

• sets out the decision-maker’s findings on material questions of fact; • refers to the evidence or other material on which those findings were based; and • gives the reasons for the decision (Must state the actual process of reasoning; Wingfoot Aus-

tralia v Kocak). • Acts Interpretation Act: instrument small also set out the findings on material questions of fact

and refer to the evidence or other material on which those findings were based.

The decision-maker must provide the written reasons within 28 days of receiving the request (s 13(2)).

The decision-maker may refuse to give the written reasons if: • the aggrieved person makes the request more than 28 days after written notice of the terms of

the decision was given (or otherwise the request has not been made within a reasonable time): s 13(5);

• written reasons have already been given: s 13(11)(b); or • the decision is of a class specified in Schedule 2 of the Act: s 13(11)(c).

The Court may order that further, more adequate, particulars of the reasons be provided by the deci-sion-maker: s 13(7).

However, s 13A allows a decision-maker to exclude certain information from a statement of written reasons:

• information relates to the personal affairs or business affairs of a third party; • confidential information and those protected by privilege;

25

Minister for Immigration v Taveli JUDGMENT: Must provide actual reasons, which must not be contrived to hold up in

court. Should not omit any possible error.

Allen Allen & Hemsley v ASC JUDGMENT: Not sufficient to simply list the considerations taken into account. Need to

indicate the role played by each consideration in the reasoning process.

Minister for Immigration v Wu Shan Liang JUDGMENT: Can use standard form paragraphs for reasons. Do not need to be over

zealous when looking into reasons.

Reasons

• trade secrets and governmental workings; • information obtained by the decision-maker from a third party that was under a statutory oblig-

ation to supply that information; • information not permitted to be disclosed by reason of some other express statutory prohibition

to disclose the information.

26

Grounds of Judicial Review

Government powers must not be exercised in excess of their power or jurisdiction. Common law has developed three major grounds of judicial review:

1. Ultra Vires 2. Procedural Fairness 3. Jurisdictional Error

Within each of these three major categories, a number of distinct grounds have developed. The distinct grounds within in the three major categories are sometimes similar, if not the same.

ADJR Act and the Common Law

The grounds in the ADJR Act (the “Act”) are regarded as a codification of the grounds developed at common law (with some exceptions). Section 5 an 6 of the Act contain the codified grounds. Under the Act, there is no practical point in distinguishing between “ultra vires” and “jurisdictional error” (but the distinction is still relevant at common law). Generally speaking, cases decided under the common law are relevant to the application of the pro-visions under the act.

Ultra Vires

• Literally means “outside power”. • If an administrative decision-maker acts ultra vires, this effectively means she has acted in a

way that goes beyond the administrative power that the law has conferred on her (i.e., she has done something in her official capacity which the law does not permit).

• Key principle governing judicial review, in that government decision and powers must not be made in excess of its lawful power

Decision Not Authorised by Statute

ADJR Act: • Section 5(1)(d) allows a challenge to a decision not authorised by statute. • Section 6(1)(d) allows the same challenge in relation to conduct of a decision-maker leading

up to the making of the decision.

At Common Law: • Governments and their officers cannot do anything which is not authorised by law

• Entick v Carrington: established unequivocally that government action which intrudes on an individual's existing rights will be unlawful unless there is legal authority to support the action

5 Applications for review of decisions(1) A person who is aggrieved by a decision to which this Act applies … may apply to the Federal Court

or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds: (d) that the decision was not authorised by the enactment in pursuance of which it was purported to be

made; 6 Applications for review of conduct(1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making

a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Fed-eral Court or the Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds:

Shanghai v Scott FACTS: Egg marketing scheme was set up under Marketing of Primary Products Acts to establish an Egg Marketing Board. The Act gave power to the Governor to make regu-lation, who made a regulation prohibiting the cold storage of eggs without consent of

the Board. The plaintiff challenged their prosecution of storing eggs in freezers. JUDGMENT: Regulation was invalid because it went beyond the scope of the Act,

which was the marketing of eggs vested in the Board. Regulations cannot be used to expand the scope of power.

• If administrative decision-makers misconstrue the law, what they do will still be outside their powers;

• e.g. Haneef (Minister misinterpreted “association”) • Executive branches of government given power by Statute to regulate activity cannot make reg-

ulations that go beyond the power conferred by Parliament. • Principles derived from cases decided under common law are relevant to the application of the

ADJR Act provisions.

29

Foley v Padley FACTS: Section 11(1)(a) of the Rundle Street Mall Act gave council power to make by

laws regulating, controlling or prohibiting 'any activity in the Mall... That is in the opinion of the council, likely to affect the use and enjoyment of the Mall'. Council made by law 8

which prohibited persons giving out or distributing anything in the mall, to any by-stander or passer by without the permission of the council. Foley was charged with sec-

tion 8 breach, and challenged the decision. JUDGMENT: Held that the by-law was valid. Gibbs CJ: words meant that the goods had

to be given to strangers. Legislation gave council prohibiting everything by gave a conditional prohibition as the council had discretion.

Paul v Munday FACTS: Decision maker acted outside scope of the Health Act to make regulation re-

garding air impurities. Rule 7 stated that no person must have open air fire and permit-ted impurities.

JUDGMENT: HC found regulation was invalid: power was only regarding impurities, not the source of them.

Procedural Ultra Vires

Statutes may specify steps or requirements to be observed or fulfilled by an administrative decision-maker before making the final decision. TEST: Ask whether it was the purpose of the legislation that a decision made in breach of the re-quirement should be invalid (Project Blue Sky) ADJR Act:

• Section 5(1)(b) allows a decision to be challenged on the basis that procedures that were re-quired by law to be observed in connection with the making of the decision were not observed.

• Section 6(1)(b) allows the same challenge in relation to conduct of a decision-maker leading up to the making of the decision.

At Common Law:

30


or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds: (b) that procedures that were required by law to be observed in connection with the making of the

decision were not observed; 6 Applications for review of conduct(1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making

a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Fed-eral Court or the Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds: (b) that procedures that are required by law to be observed in respect of the conduct have not been,

Project Blue Sky v ABA FACTS: Australian programs had to occupy a particular percentage of prime time TV>

Section 122 set the Australian content standard, while section 160(2) stated that the regulations had to conform to perform functions in a manner consistent with in-

ternational treaties and agreements with foreign nations. JUDGMENT: HC held that the actions did breach but did not affect the validity of the regulations. An act done in breach of a procedure is not invalid- must look at whether an act done in breach of the procedure should be invalid. There must be a connection of purpose, language, subject and consequences of the Act. The sections were goals

to be achieved, and so a breach would not result in validity.

SAAP v Minister for Immigration JUDGMENT: Decision held to be invalid for not complying with the requirements to give

written notice of adverse material disclosure during video link hearing.

Minister for Immigration and Citizenship v SZISO JUDGMENT: Decision held to be valid because written notice of hearing went to ad-

dress at which all 6 applicants lived, even though addressed to the wrong person. No substantive justice because all 6 still came to the hearing.

• The validity of decision used to depend on whether the procedural step was “mandatory” or “directory”.

• The modern approach is more purposive

In determining whether this ground is made out: 1. Identify the decision-maker, the decision made, and the statutory source of the decision-

maker’s power to make that decision. 2. Identify procedures that were required to be observed in connection with the making of that

decision. 3. Assess whether any of those procedures were not observed. 4. Assess whether it was the purpose of that particular statute that a decision made in breach of

the procedural requirement should be declared invalid (i.e. apply Project Blue Sky)

31

Improper Delegation

Legislation will often nominate a principal person in whom an administrative power is to be reposed (“Principal Repository”). The nature of government bureaucratic organisation and administration is such that it is not always practical for the Principal Repository to make every administrative decision.

The Principal Repository may need to: • obtain assistance from others so that he or she can then be in a position to properly make the

decision (the “Assistant”); • delegate the administrative decision-making power to somebody else, pursuant to an express

statutory authority to delegate (the “Delegate”)’ • have somebody make the administrative decision on his or her behalf, where there is no ex-

press statutory authority to delegate, but there is a practical administrative necessity to do so (the “Agent”) [often referred to as “implied delegation” or the “alter ego” principle].

The ADJR Act does not expressly provide for a ground of review on the basis of “improper delega-tion”, but the following provisions could apply:

• 5(1)(c) allows a decision to be challenged on the basis that the decision-maker did not have jurisdiction to make the decision;

• 5(1)(d) allows a decision to be challenged on the basis that it was not authorised by statute. • 5(1)(j) allows a decision to be challenged on the basis that it “was otherwise contrary to law”. • 6(1)(c), (1)(d) and (1)(j) allow the same challenges in relation to conduct of a decision-maker.


or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds: (c) that the person who purported to make the decision did not have jurisdiction to make the decision; (d) that the decision was not authorised by the enactment in pursuance of which it was purported to

be made; (j) that the decision was otherwise contrary to law.

6 Applications for review of conduct(1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of mak-

ing a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds: (c) that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have

jurisdiction to make the proposed decision; (d) that the enactment in pursuance of which the decision is proposed to be made does not authorize

the making of the proposed decision;

Improper Delegation

There is a common law presumption against a repository being able to delegate administrative pow-er. However, this presumption is rebuttable and can be varied expressly by statute.

There are general statutory rules relating to delegation (Acts Interpretation Act 1901 ss 34AA, AA, AB). If there is no express statutory power to delegate to a Delegate, sometimes courts will recognise a Principal Repository (or even a duly authorised Delegate) can authorise an Agent to make the ad-ministrative decision.

In determining whether this ground is made out: 1. Identify the Principal repository of the decision-making power in terms of the particular legis-

lation. E.g.: • “An application … must be determined by the Commissioner”; • “… the Minister may cancel the visa”.

2. Identify who made the decision in this particular case: • If the Principal (with no assistance), no issue of improper delegation. If the Principal

had assistance, did Principal make the decision or relinquish control of the decision-making responsibility? No ground of improper delegation if Principal retains control.

• If not the Principal, was the person a duly authorised delegate? If so, no ground of im-proper delegation.

• If not a duly authorised delegate, perhaps an agent? If so, no ground of improper dele-gation.

3. Conclude ground made out if the decision-maker is not the Principal, a duly authorised Dele-gate or a legally recognised Agent.

33

34AA Delegations Where an Act confers power to delegate a function or power, then, unless the contrary intention appears, the power of delegation shall not be construed as being limited to delegating the function or power to a specified person but shall be construed as including a power to delegate the function or power to any per-son from time to time holding, occupying, or performing the duties of, a specified office or position, even if the office or position does not come into existence until after the delegation is given. 34AB Effect of delegation Where an Act confers power on a person or body (in this section called the authority) to delegate a func-tion or power:

(a) the delegation may be made either generally or as otherwise provided by the instrument of delega-tion;

(b) the powers that may be delegated do not include that power to delegate; (c) a function or power so delegated, when performed or exercised by the delegate, shall, for the pur-

poses of the Act, be deemed to have been performed or exercised by the authority; (d) a delegation by the authority does not prevent the performance or exercise of a function or power

by the authority; and (e) if the authority is not a person, section 34A applies as if it were.

34A Exercise of certain functions and powers by a delegate Where, under any Act, the exercise of a power or function by a person is dependent upon the opinion, be-lief or state of mind of that person in relation to a matter and that power or function has been delegated in

Improper Delegation

34

Re Reference under Section 11 of the Ombudsman Act FACTS: DG had powers under the Social Security Act which he had delegated to a de-partmental official. Official rejected an application for social security, but signed in DG's

name. JUDGMENT: Held to be invalid exercise because it amounted to a repudiation of dele-gation. Where there was a power of delegation ad it had been exercised, there was no

practical administrative necessity.

O’Reilly v State Bank of Victoria FACTS: Commissioner of Taxation had power to issue notices to give evidence and

produce documents, and to delegate this power. Commissioner delegated the power to Deputy Commissioner, who had no power to sub-delegate. Authorised CIO to issue no-

tices in his name. O'Reilly and others received notices, and challenged decision. JUDGMENT: HC upheld validity of notices. Carltona principle is not limited to ministers. The existence of a power to delegate did not preclude authorising an agent. Practical administrative necessity was evidence. Gibbs CJ: Parliament could not have intended that the Commissioner and DC personally make all decision because it would reduce

the administration of the taxation laws to chaos.

Carltona v Commissioner of Works FACTS: Legislation allowed good and premises to be requisitioned by the Minister to assist in the war effort. Thousands of requisitions were made by senior officials rather

than the Ministers. Carltona was requisitioned, who applied for juridical review. JUDGMENT: Ministers cannot perform every function. Acts usually mean that the minis-ter must personally make the decision. It is sufficient that the decision was made under

the authority of the Minister by responsible official of the Department as agents.

Irrelevant Considerations

Administrative decision-makers must not take into account irrelevant considerations when exercising their discretionary powers. ADJR Act provisions:

• s 5(1)(e) allows a decision to be challenged on the basis that a decision-maker took into ac-count an irrelevant consideration (s5(2)(a)), or failing to take into account a relevant considera-tion in the exercise of power (s5(1)(b)).

In determining whether an irrelevant consideration was taken into account: 1. Ascertain what was in fact taken into account by the decision-maker; and 2. Assess whether anything taken into account was irrelevant.

Relevant Considerations


or the Federal Circuit Court for an order of review in respect of the decision on 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

in pursuance of which it was purported to be made; (2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a

reference to: (a) taking an irrelevant consideration into account in the exercise of a power.

6 Applications for review of conduct(1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making

a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Fed-eral Court or the Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds: (e) that the making of the proposed decision would be an improper exercise of the power conferred

by the enactment in pursuance of which the decision is proposed to be made;

Roberts v Hopwood FACTS: a local council was empowered to pay its employees such salaries and wages

as it feet fit. The council decided to pay both men and women £4 each per week. Roberts audited the council; he thought the wage was excessive and sought review of

the council's decision. JUDGMENT: Court agreed with Roberts. The council would, in my full view, fail in their duty if they allowed themselves to be guided in preference by some eccentric princi-

ples of socialist philanthropy, or by a feminist ambition to secure the equality of the sex-es in the matter of wages in the world of labour.

Improper Delegation

Administrative decision-makers must take into account all relevant considerations when exercising their discretionary powers.

To determine whether an administrative decision-maker failed to take a relevant consideration into account:

1. ascertain whether there was an express or implied statutory obligation for the decision-maker to consider a particular matter; and

2. assess whether the decision-maker failed to consider that matter.

36

Minister for Aboriginal Affairs v Peko-Wallsend FACTS: Peko challenged grant for failure to take into account relevant considerations. JUDGMENT: Relevant and irrelevant considerations are determined by looking at the

subject matter, scope and purpose of the legislation. Relevant considerations are hose which the decision maker must take into account. In every statute there is 'an implica-tion that the decision is to be made on the basis of the most current material available

to the decision maker.

Hindi v Minister for Immigration and Ethnic Affairs FACTS: Hindi applied for permanent residency on humanitarian grounds, but was re-

fused. Refusal stated 'I have noted' "I have read' etc but was set aside for failure to give adequate consideration.

JUDGMENT: Court will not look at weight given to relevant factors; still need to give proper, genuine and realistic consideration.

Improper Purpose & Bad Faith

Administrative decision-makers can only exercise their powers for the purposes for which they were conferred and in good faith. They cannot exercise their powers:

• for unauthorised or improper purposes; • in bad faith; or • fraudulently.

To determine if an administrative decision-maker has exercised power for an improper purpose: 1. Ascertain for what purpose the administrative power can lawfully be exercised (a question of

law determined by construing the statute);



in pursuance of which it was purported to be made; (g) that the decision was induced or affected by fraud;

(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: (c) an exercise of a power for a purpose other than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad faith.

6 Applications for review of conduct

R v Toohey FACTS: NLC lodged land claim on behalf of Aboriginal group. Government amended regulations to increase size of Darwin to include land under claim. Land rights legisla-tion didn't allow claims over land within a town boundary. Land rights legislation didn't allow claims over land within a town boundary. NLC sought judicial review before ALC

challenged. NLC appealed to HC to quash Commissioner's decision and compel him to hear the claim.

JUDGMENT: HC held that a high level office holder were not immune from judicial re-view. Scope of regulations must be within scope of power to make regulations. Improp-er purpose and bad faith can be inferred. It would be anomalous if a regulation which bore the semblance of property would remain valid, even though it should be shown in fact to have been made for unauthorised purpose; that would mean that a clandestine

abuse of power would succeed when an open excess would fail.

Improper Delegation

2. Ascertain for what purpose (or purposes) the administrative decision-maker actually did exer-cise the power (a question of fact determined by the available evidence and inferences made from that evidence);

3. Assess whether the administrative decision-maker’s actual purpose or purposes are in accor-dance with the lawful purpose (a question to be determined by applying the facts to the law);

4. If the administrative decision-maker had multiple purposes (some improper but others lawful), consider whether the improper purposes were substantial purposes.

The lawful purpose of an administrative power may be expressly stated in the statute or it can be im-plied by employing principles of statutory interpretation. The actual purpose of the administrative decision-maker may not always be obviously stated in the evidence. Inferences may often have to be drawn.

Can bring an action for review of conduct in relation to a decision on the grounds that fraud had tak-en place, or is taking place, or is likely to take place, in the course of the conduct.

38

Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board FACTS: Board had power to compulsorily acquire land for any purpose under the Metro Water Sewerage and Drainage Works Act. Decided to acquire S's land to build offices to house workers. Joint venture with GIO to build large office tower with a retail space. Board would get half of the office space and GIO would get the other half (tenants in

common). S challenged acquisition for improper purpose. JUDGMENT: HC rejected S's challenge. If the improper or unauthorised purpose is the dominant purpose, it would be invalid. Where the ulterior purpose is unauthorised, the

Plaintiff M79/2012 v Minister FACTS: P arrived on Christmas Island and was detained as an unauthorised maritime arrival. Granted temporary safe haven visa and bridging visa under a195A. He was prevented from making a valid application for protection visa. P argued that the visa

was done for an improper purpose. JUDGMENT: HC held the minister had not acted for an improper purpose because the

power to grant a visa in the public interest was a broad one.

SZFDE v Minister JUDGMENT: Fraud unravels everything. Fraud is different to bad faith; fraud does not require

the decision make do anything wrong, just that fraud existed. Can only happen when applicant did nothing wrong themselves. If a person had doubt that fraud may be involved, they must act.

Improper Delegation

39

Unreasonableness

Administrative decisions must not be “unreasonable”.

It is clearly implicit in the ground of unreasonableness that the court must assess the merits of an ad-ministrative decision. Different administrative decision-makers might arrive at a completely different result, but neither might be said to be “unreasonable”.

A successful challenge on another ground of judicial review (e.g., improper purpose, procedural ultra vires, or failure to take into account a relevant consideration) may often lead to the ground of unrea-sonableness being made out by necessary implication. But if all other grounds of judicial review ad-vanced by an applicant fail, the ground of unreasonableness might still succeed on its own.

Under s5(1)(e), a decision may be reviewed on the grounds that the decision was 'an improper' exer-cise of the power conferred by the enactment in pursuance of which it was purported to be made. Improper exercise includes an exercise of a power that is so unreasonable that no reason able person could have exercised that power (s5(2)(g)).



in pursuance of which it was purported to be made; (2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a

reference to: (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised

the power; 6 Applications for review of conduct(1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making

a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Fed-eral Court or the Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds: (e) that the making of the proposed decision would be an improper exercise of the power conferred

by the enactment in pursuance of which the decision is proposed to be made;

Associated Provincial Picture Houses Ltd v Wednesbury Corp FACTS: Legislation gave power to authorities to grant licences to cinemas to open on Sunday's

'subject to conditions as the authority thinks fit to impose'. WC granted a licence to APPH to open on a Sunday, subject to the condition that no children under 15 were allowed, even if they

were accompanied by an adult. APPH sought a declaration that the condition was invalid based on unreasonableness.

JUDGMENT: Found to be unreasonable. If a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. Must be

overwhelmingly unreasonable (objective test).

Improper Delegation

41

Minister for Immigration and Citizenship v Li FACTS: Li applied for a skilled work visa. Incompetent migration agent gave the wrong information to skills assessor, who gave a negative assessment. Li sought new skills as-sessment. Review before Migration Review Tribunal. More problems arose with informa-

tion to new skills assessor, where the new migration officer informed MRT. Sought ad-journment to allow mistake to be fixed. MRT refused the adjournment.

JUDGMENT: French CJ: reasonableness is an implied condition for the valid exercise of statutory power (and so is rationality- but not all rational decisions are unreasonable). Unreasonableness is a condition which may be applied to a decision which lacks an evidence and intelligible justification. Gageler J: unreasonableness is not confined to

why a decision was made; it extends to how a decision is made.

No Evidence

An administrative decision must be supported by evidence.

2 conditions; 1) The allegation of no evidence must relate to a matter upon which the exercise of power depends

(essential statutory element) 2) There must be absolutely no evidence in support of that matter


or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds: (h) that there was no evidence or other material to justify the making of the decision;

(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular

matter was established, and there was no evidence or other material (including facts of which he was entitled to take notice) from which he could reasonably be satisfied that the matter was estab-lished; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

6 Applications for review of conduct(1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making

a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Fed-eral Court or the Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds: (h) that there is no evidence or other material to justify the making of the proposed decision;

(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a) the person who proposes to make the decision is required by law to reach that decision only if a

particular matter is established, and there is no evidence or other material (including facts of which he or she is entitled to take notice) from which he or she can reasonably be satisfied that the matter

No Evidence

To determine whether this ground is made out at common law: 1. Identify the particular administrative decision-making power that has been exercised. 2. Identify any facts or “essential elements” upon which a lawful exercise of that power must be

based. E.g.: • Power to accept exercisable only if “the applicant is beautiful”; • Power to cancel employer’s registration exercisable only if employer “is unfit to continue

to be registered as an employer ”; • Power to suspend broadcasting licence exercisable if licence holder is “no longer a fit

and proper person to hold the licence”. 3. Assess whether there is an absence of any foundation in fact to support the decision.

• This requires assessing whether the evidence before the administrative decision-maker could be seen as satisfying those “essential elements”.

• If there is some evidential basis for an inference leading to the foundation of the decision (even if illogical or inadequate), the ground is not made out.

To determine whether this ground is made out under the ADJR Act: 1. Identify the particular administrative decision-making power that has been exercised. 2. Then, in terms of a s 5(3)(a) challenge::

• Identify any particular matters which much be established at law before the decision could be reached [N.B. arguably the same as “essential elements” under common law];

• Assess whether there was no evidence or other material from which he could reasonably be satisfied that the matter was established [N.B. is this just a restatement of the common law or is it wider as Mason CJ suggested?].

3. Alternatively, in terms of a s 5(3)(b) challenge: • Identify any particular facts upon which the decision was actually based; • Assess whether a particular fact upon which the decision was based did not exist, that

fact was “critical” (Gaudron & McHugh JJ), and there was no other evidence or material to support the decision (Gleeson CJ).

43

R v Australian Stevedoring Industry Board FACTS: Stevedoring Industry Act gave ASI Board power to control or suspend registra-

tion of an employer if, after having conducted an inquiry, it was satisfied that the em-ployer was unfit to continue to be registered, or had acted in a manner whereby the proper performance of Stevedoring operators would be interfered with. Board com-

menced an inquiry into the Melbourne Stevedoring Co (MSC). It had received 4 com-plaints of employers being absent without permission. MSC sought writ of prohibition to prevent the inquiry. 3/4 of the complaints could be explained and did not result in de-

lays. JUDGMENT: HC granted the prohibition- there was no basis on which the Board could be satisfied that the company was unfit, or acted to interfere with operations. The inad-equacy of the material is not in itself a ground for prohibition. Requires an absence of

material.

No Evidence

44

Australian Broadcasting Tribunal v Bond JUDGMENT: Mason CJ: Findings of fact is not generally reviewable by courts, but has the exception of no evidence. At common law, want of logic is not synonymous with er-ror of law. So long as there is some basis for an interference- in order words, the partic-

ular interference is reasonably open, even if that interference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no

error of law has taken place.

Minister for Immigration v Rajamanikkam FACTS: R's application for a protection visa was rejected by the Refugees Review Tri-bunal. The rejection was based on 8 factors. R challenged the decision on the basis

that 2/8 factors were found to not exist. JUDGMENT: Court found against R. Decision was not 'based on' the 2 factors. But for

test: need to show that but for the factors, the decision would not have been made.

Fettering Discretion

Legislation that confers discretionary power on administrative decision-makers often does so in a “skeletal” way.

Administrators need to develop policies or guidelines to apply the legislation to the many types of cases that arise. This ensures:

• consistency between cases which involve similar circumstances; • predictability of decision-making; • fairness to individual citizens; • the integrity of administrative decision-making in a liberal democracy.

A policy or guideline must be consistent with the legislation. A decision-maker reposed of discretionary power must still exercise that discretion as Parliament in-tended it to be exercised. The decision-maker may take a lawful policy into account but must not allow to policy to “fetter” the ultimate discretion. The particular circumstances of the case must be considered, such that the decision-maker feels free to depart from the policy if appropriate.

ADJR Act provisions: • Section 5(1)(e), when read with s 5(2)(f), allows a decision to be challenged on the basis that

the decision-maker exercised of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.

• Section 6(1)(e), when read with s 6(2)(f), allows the same challenge in relation to conduct of a decision-maker.

In determining whether this ground is made out: 1. Identify the particular administrative decision-maker and the statutory/regulatory power that

has been exercised. 2. Identify any policy/guideline which the decision-maker applied in the exercise of his or her

power. 3. Assess whether that policy is a lawful/consistent policy in terms of the statutory/regulatory

power in the context of the statutory scheme. (if not, the policy is an irrelevant consideration). 4. If the policy is lawful, assess whether the decision-maker applied it having regard to the par-

ticular circumstances of the case at hand (if not, the ground is made out).

British Oxygen Co Ltd v Minister of Technology FACTS: Industrial Development Act allowed the Board of Trade to give grants for capital

expenditure on new plant and equipment. Board formulated a policy that no grounds were to be given for machinery or equipment costing less than £25. British Oxygen ap-plied for a grant for oxygen cylinders, each of which cost £20, but with a combined total

of £4Million. BO challenged the decision for inflexible application of policy. JUDGMENT: The vernal rule is that anyone who has to exercise a statutory discretion

must not 'shut his ears to an application'

No Evidence

46

Rendell v Release on Licence Board FACTS: Rendell was serving a life sentence and applied for parole. Prisons Act provid-ed that the Board was required to make a recommendation to Cabinet on whether or not to grant parole, criteria included time spent in prison. cabinet would make its own

decisions on whether to follow the Board's recommendations. Board had its own policy that it would only recommended parole if it was sure that Cabinet would grant it. Rendell

had only served 8 years, and so was not granted parole., and sought judicial review. JUDGMENT: Quashed Board's decision. There is no absolute rule that the body must

ignore known government policy. On the other hand, it must not be so influence by that policy that it fails to perform its own functions, as the statute contemplated. It is often

useful and sometimes necessary for administrators to adopt guidelines but such guide-lines must be compatible with the legislation conferring the discretion.

Acting Under Dictation

A decision-maker reposed of administrative power cannot let others dictate how the power is to be exercised. Parliament intended the decision to be made by the decision-maker it nominated; it did not intend for some other person to make it.

ADJR Act provisions: • Section 5(1)(e), when read with s 5(2)(e), allows a decision to be challenged on the basis that

the decision-maker exercised a personal discretionary power at the direction or behest of an-other person.

• Section 6(1)(f), when read with s 6(2)(e), allows the same challenge in relation to conduct of a decision-maker.

In determining whether this ground is made out: 1. Identify the particular person/body reposed of the particular administrative decision-making

power. 2. Identify any external person/body who communicated a view or tried to influence the deci-

sion-maker to decide the case in a particular way. 3. Assess whether the repository of power:

• merely took into account what was said (i.e. ground not made out); or • acted at the direction or behest of that person (i.e., ground made out subject to consider-

ation of 4.) 4. If the decision-maker did act at the behest of that other person (the “dictator”), is the dictator

the responsible Minister? How will that impact on your advice as to whether the Court will find this ground is made out?

Ansett Transport Industries (Operations Pty Ltd v Commonwealth) FACTS: Secretary of the Department of Transport had a discretion under Regulations to allow the importation of aircraft into Australia. Secretary proposed to allow he importa-tion of 4 aircraft. Ansett sought to restrain the importation alleging that it had breached

the 2 airline policy. JUDGMENT: Barwick J: I do not regard the observance of government policy as any

breach of his duty. Gibbs CJ: it would not be wrong for the secretary to give weight, and indeed conclusive

weight, to the policy of the government. Mason J: a decision maker was not entitled to abdicate his responsibility for making a

decision by merely acting on a direction given to him by the Minister. Murphy J: The duty of those in a department is to carry out the lawful directions and

policy of their Minister. It is the Minister who is responsible to the government and the parliament for the directions and policy.

Aitkin J: there is nothing improper in the Minister requesting his to act in a particular manner... Nor is there any failure of duty by the head of a department of government in

acting in accordance with such request

No Evidence

48

Telstra Corporation Ltd v Kendall JUDGMENT: The ground in s5(2)(e) encompasses 'where the decision maker gives no real independent attention to the discretion which is conferred upon him/her, so that the exercise of the discretion is really the exercise of that discretion by some other person. The exercise of discretion is question 'must be a real exercise of discretion by the deci-sion-maker, not an acceptance by the decision maker of a direction by some other per-

son to whom the making of the decision has been entrusted.

CPFC v Minister for Immigration FACTS: CPFC was an asylum seeker on board an Indian boast which was intercepted in 2014 outside Australian territorial waters. Martine Powers Act s72(4)permits maritime officers to detain persons and take them to a place either in or outside of the migration zone. Power can be exercised where a person or vessel that they're on is suspected of being involved in a contravention of Australian Law. NSC instructed the maritime offi-cers to take them back to India. Diplomatic negotiations were undertaken with Indian officials to accept them. Indian refused, and the asylum seekers were detained on the ocean of nearly a month, eventually being taken to Cocos Islands. CPFC argued that the detention was not authorised because the maritime officers who detained them

were working under dictation of the NSC. JUDGMENT: Acting under dictation was not made out.

French CJ: subject to practical constraints, such as weather conditions and the avail-ability of fuel and provisions on a vessel, a maritime officer is not required to consider the exercise of power as though it was a personal discretion requiring a weighing of relevant factors. When exercising the power under s72(4) of the Act in response to a high executive direction in pursuance of governmental policy, maritime officers do not

thereby act under dictation unlawfully. Keifel J: the exercise of power under s72(4) will required a decision to be made by the Executive Government as to the place where persons such as the plaintiff should be

taken. That decision will be passed down, through a chain of command, to the maritime officer who exercises that power.

Bread Manufacturers of NSW v Evans JUDGMENT: The problem is not one which admits of an answer having universal appli-

cation. One must take into account the particular statutory function, the nature of the question to be decided, the character of the tribunal, and the general drift of the statu-tory provisions in so far as they bear on the relationships between the tribunal and the responsible Minister, as well as the nature of the views expressed on behalf of the gov-

ernment.

No Evidence

49

Procedural Fairness

Procedural fairness refers to the requirement that decision-makers act fairly when carrying out their decision-making functions. The doctrine of “procedural fairness” has its origins in the common law:

• It used to be referred to as the duty of decision-makers “to act judicially”. • It is now also commonly referred to as “natural justice”.

The ADJR Act provisions do not generate requirements of natural justice in a given decision-making scenario (Kioa v West). Whether or not the rules of natural justice apply in a situation is determined by common law princi-ples.

Sections 5(1)(a) and 6(1)(a) simply: • provide a statutory basis for challenging a decision for breach of natural justice; • on the assumption that the common law recognises certain natural justice rules applying in the

particular situation.

The two established rules at common law: 1. the right to be heard (“the hearing rule”); and 2. the right to have a decision made free from bias (the rule against bias).

The hearing rule requires that a decision-maker: • gives a person an opportunity to be heard; • before exercising a discretionary power in a way that might adversely impact on that person’s

interests.

The rule against bias requires that decision-makers: • be unbiased (i.e., impartial) when exercising their discretionary powers (actual bias); or • not act in a way which would lead a fair-minded observer to entertain a reasonable apprehen-

sion of bias (apprehended bias).

Hearing Rule

Requires that before a decision is made adversely affecting a person's right, interest or legitimate ex-pectation, the decision-maker must given the person prior notice that a decision may be made, the information on which the decision on may be based and their rights to make a submission in reply.

A breach of the hearing rule is established upon assessment of the following questions in relation to a particular situation:

• Does the law recognise the situation as one where there is a duty to accord natural justice? (i.e., will the common law imply the duty to hear?)

• Has the legislature evinced an intention to exclude the requirement to observe natural justice? (i.e. does the statute expressly or impliedly take away any right to be heard which the common law might otherwise have recognised?)

• Exhaustive statement to that effect • If the common law recognises a duty to hear in the situation, and the legislature has not ex-

cluded it, what is the content of the requirement to hear? (i.e., what kind of hearing does the law oblige a decision-maker to give a person?)

• Has the decision-maker failed to give that kind of hearing to the person concerned in this situa-tion? (i.e. apply the law to the facts)

Kioa v West FACTS: Kioa had a temporary student visa. Deportation order was made against him

and his family.. The order relied on a report which said that Kioa had changed address without notice (not genuine desire to seek extension) and had tried to circumvent laws.

Argued Kioa had not had the opportunity to respond to the allegations. JUDGMENT: Mason J: Common law duty to act fairly in he sense of according pro-

cedural fairness. There are two qualifications to this; the decision must affect rights, in-terest and legitimate expectations of an individual citizen in a direct and immediate way,

and can be excluded by a clear manifestation for a contrary intention. Brennan J: how it applies depends on the nature of the statute.

Plaintiff M61/2010E v Cth FACTS: The plaintiffs were 2 Sri Lankan asylum seekers detained offshore. They were not allowed to apply for a visa under the Migration Act unless in the public interest.

Refugees Status Assessment and Merits Review processes were se up, which could make recommendations. Plaintiffs received a negative outcome from the process., and

argued a breach of procedural fairness. JUDGMENT: The processes were the steps taken for the purpose of the Act, therefore procedural fairness applied. Rights and interest were directly affected. Inquiries would

prolong plaintiff's detention for the length of the assessment/review, and so affected their liberty. Does not matter the nature of the statute; must determine whether the

statute excludes procedural fairness is what is important. It is unnecessary to determine the root of the statute.

Hearing Rule

The hearing rule will apply when consideration has been given to: • the nature of the decision; • the nature of the decision-maker; • the adverse affect (or potential adverse effect) the decision will have on the interest of the per-

son who seeks to be heard.

Historically, courts would imply a requirement to observe natural justice principles where some fun-damental right or entitlement was at stake. Examples include:

• a property right; (Cooper v Wandsworth Board of Works) - Powers granted by that statute are subject to a qualification which has been repeatedly recognised, that no man is to be deprived of his property without having an opportunity of being heard. The plaintiff should have been given a hearing, and this was implied by the statute. Although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.

• employment / income security; (Ridge v Baldwin) - Decision void for breach of natural justice for failure to notify and provide a hearing. Con-

firmed that natural justice applies to both courts and includes administrative decision mak-ers.

LEGITIMATE EXPECTATIONS- Expectations held by an applicant, that the government will act in a particular way, that is given

rise to be some government behaviour - Includes express undertakings, regular practice, ministerial policy, licence renewals, and ratifica-

tions of treaties. - Legitimate expectation when used in the field of public law either adds nothing or poses more

questions that in answers and thus is an unfortunate expression which should be disregarded (Plaintiff S10/2011)

- Both unnecessary and unhelpful and may well distract from the real question; namely what is re-quired in order to ensure that the decision is made fairly in the circumstances having regard to le-gal framework

The courts no longer emphasise the need to point to some enforceable right in order to invoke the principles of natural justice. A right to be heard will now be recognised in situations where a decision affects a person’s rights, in-terests or legitimate expectations, which include:

• personal interests (non-financial); (Annetts v McCann)

52

Plaintiff S10/2011 JUDGMENT: Power should be exercised with procedural fairness to those whose inter-

est may be adversely affected by the exercise of that power. Decisions maker does have to consider procedural fairness, or will be invalid. This is only a presumption and

so can be overruled by statute. Court imply that one must follow procedural fairness, as well as other procedures that uphold procedural fairness.

Hearing Rule

• a business repetitional interest; (Ainsworth v Criminal Justice Commission)

• an expectation that a licence will be renewed; (FAI Insurances Ltd v Winneke: approval was revoked and should have been given opportunity to comment)

• an expectation by a non-Australian citizen that he or she will be granted a visa or not be de-ported

- Kioa v West; Mason J in Kioa: the reference to 'right or interest' must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

- Haoucher v Minister for Immigration: not given opportunity to contend deportation and there was an expectation that the policy would have been followed

- Minister for Immigration & Ethnic Affairs v Teoh)

Remember that the doctrine of procedural fairness is concerned about ensuring procedural protection but not substantive protection. The right to be heard about a legitimate expectation should not be confused with the right to have that legitimate expectation.

53

Annetts v McCann FACTS: Annett's son worked with a friend as a Jackaroos on an outback station in WA.

They were found dead in the desert. One died of thirst, the other from a shotgun wound. The parents asked to give submissions but the coroner refused.

JUDGMENT: It can not be taken as settled that when a statute confers power that af-fects a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of neces-sary intendment. Express mention of some procedural rights does not stop others from

being implied. Reputation is an interest to submissions, but this would not exclude other implied rights. Implied procedural fairness at the time of the case, not at the time of the

statute beginning- cannot be frozen at time legislation was passed.

Ainsworth v CJC FACTS: CJC prepared a report about the industry in Queensland; report contained ad-

verse information about Ainsworth. Ainsworth was unaware of the report until it was tabled in Parliament, he was not given a chance to respond (due to parliamentary privi-

lege). Statute governing CJC required it to ac independently, impartially, fairly and in the public interest.

JUDGMENT: HC found in breach of procedural fairness. References in a statute to a duty to act fairly confirm rather than exclude procedural fairness. Reputation as an in-terest to which procedural fairness applies extends to business or commercial reputa-

tion. If there was future decisions of the report, it could be considered an irrelevant con-sideration, via declaration.

Hearing Rule

Duty to provide hearing can be excluded by • Express statutory language; or • the statute otherwise showing that is what the legislature intended.

Natural justice principles might be excluded were the statute has apparently addressed the issue of a hearing, e.g. where:

• the decision-making process is multi-layered and a night to be heard is given at one level but not another;

• there is a right to appeal the decision (any breach of natural justice by the original decision-maker could be “cured” at the re-hearing)

BUT even when Parliament has provided what natural justice is afforded in a manner, courts may still hold common law principles have not been displaced

54

Minister for Immigration v Teoh FACTS: Teoh was denied permanent residency status on basis of a serious criminal

drug possession and importation. He had 7 independent children. Should have given weight to Convention to the Rights of the Child article 3 that all actions affecting children

and their best interested shall be given primary consideration. CROC was not part of Australia's domestic law. Although he was unaware of CROC, he sought judicial review. JUDGMENT: Mason CJ and Deane J: expectation that administrative decision makers

will act in conformity with the convention. Government behaviour gave rise to subjective expectation that it would act in a particular way. In order for the plaintiff to rely on this

expectation, there was no need for a subjective expectation. It was not necessary that a person seeking to set up a legitimate expectation should be aware of the Convention. Toohey J: legitimate expectations do not depend on the state of mind of the individual

concerned. McHugh (dissent): person cannot lose an expectation that he/she does not hold.

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah FACTS: Whether Migration Act provisions which contained a code of procedure for

dealing with visa applications breached procedural fairness. Intended to replace com-mon law requirements of procedural fairness. Miah's application for a protections visa

was rejected because of political changes back home and challenged decision. JUDGMENT: HC held it was a breach of natural justice, and wasn't excluded by code.

cannot exclude by reference to fairness. Natural justice was not to be excluded by indi-rect references, uncertain inferences or equivocal considerations. The code was inclu-

sive, not exclusive. The explanatory memorandum said differently, but there was not need to refer to extrinsic materials as the wording of the code was clear.

Hearing Rule

Excluding Right to be Heard

HC has considered that provisions limiting or excluding the duty, although rare, may be difficult or impossible for Parliament to draft legislation that is sufficiently clear for the courts to accept common law requirements of the duty to hear.

The duty of an administrative decision-maker to provide a hearing can be excluded by: • express statutory language; or • the statute otherwise showing that is what the legislature intended.

Natural justice principles might be excluded (or, at least, a decision not invalidated by their breach) where the statute has apparently addressed the issue. This could be achieved where:

• the decision-making process is multi-layered and a right to be heard is given at one level but not another: South Australia v O’Shea

• there is a right to appeal the decision (any breach of natural justice by the original decision-maker could be “cured” at the re-hearing).

However, sometimes legislation may clearly seem to suggest that parliament intended the common law principles of natural justice to be excluded from an administrative procedure, but courts never-

55

Saeed v Minister for Immigration and Citizenship FACTS: Saeed's application for a work visa as a cook was rejected because of inquiries

suggested she had not met the requirements. JUDGMENT: Upheld Saeed's claim of breach of natural justice. Gave narrow interpreta-

tion to relevant section- confined it to 'in relation to the matter it deals with'. Focus of procedure was for on-shore, not off shore processes.

South Australia v O'Shea FACTS: O'Shea had been convicted of child sex offences. Cabinet could release on pa-role if 2 conditions were met; reports by 2 medical practitioners that not risk of reoffend-ing, and recommendations to Cabinet from Parole Board. Board had the medial reports,

recommended to Cabinet to release O'Shea, but Cabinet refused it. JUDGMENT: No breach of procedural fairness. Cabinet is not necessarily immune from

duty of procedural fairness. Political and policy decisions are different, not related to individual circumstances. It was a multi-stage process, and applicant had been given a hearing prior to the Board's recommendations. Practical difficulties regarding the confi-dentiality of Cabinet hearings. Decisions to give hearing may have decreased public confidence in system. Giving someone a hearing will not necessarily change the out-

come.

Hearing Rule

theless refuse to accept the legislatures obvious intent (see, in particular, the case of Miah outlined below and, more recently, the case of Saeed v Minister for Immigration and Citizenship

OTHER FACTORSCPCF v Minister for Immigration: safety, chain of command, no rights affected, practical circum-stances, frustrate operation of policy

56

Hearing Rule

Content of the Requirement to be Heard

The bare minimum required of administrative decision-makers: • prior notice that a decision will be made;

- A person is entitled to know the case sought to be made against his and be given an opportu-nity of replying to it (Kiao v West)

• disclosure of the substance of the information on which the decision is proposed to be based (i.e. a summary of the case against the individual); and

• an opportunity to comment on that information and to present the individual’s case against the proposed decision (this could simply be in writing).

Beyond the bare minimum: • an oral hearing and cross-examination might be required if they are likely to assist the decision-

maker to resolve certain issues, such as: • matters of credit, veracity or reputation (best determined by the decision-maker assessing

the witness demeanour in person); • disputed facts that need to be resolved; • subjective views of aggrieved persons (e.g. refugee claiming a well-founded fear of perse-

cution (Chen Zhen Zi); • incapacity of persons to speak on their own behalf • serious allegations with consequences in the event of an adverse finding (e.g. profession-

al misconduct) • legal and / or factual complexity of the issues.

• the right to have a legal representative speak at a person’s behalf at a hearing might be afforded, but regard must be had to the circumstances of the case, e.g.:

• the capacity of the person to speak on his / her own behalf; • the legal and / or factual complexity of the issues; • seriousness of the matter and consequences that may flow from adverse findings.

• There is no absolute entitlement to representation even where livelihood is at stake. But that is not to say that in all cases a tribunal can refuse it with impunity. The seriousness of the matter and the complexity of the issues, factual or legal, may be such that refusal would offend natural justice principles (Cains v Jenkins)

57

Applicant VEAL of 2002 FACTS: Migration case where plaintiffs were seeking visas. Plaintiff was accused of

crimes, which was contained in a letter to the tribunal, which was not disclosed to him. JUDGMENT: Procedural fairness does not require full disclosure, providing substance of allegations was sufficient. HC was striking a balance between the need to conserve confidentiality and the needs of the appellant. No weight was given to the ;enter and

was no practical injustice, but this did not discharge procedural fairness.

The Rule Against Bias

Decision maker must be free of any reasonable suspicion or apprehension of bias or preconception, arising from circumstances such as the decision-maker's financial or personal interests, prior express of views or previous role in the decision to be made

There are two types of bias: 1. Actual bias (very difficult to prove); and 2. Apprehended bias (most common).

The rule is breached if there are reasonable grounds for suspecting bias, Eve if the decision maker is not actually bias. A person likely to be affected by a decision is more likely to be treated fairly if the decision maker approaches the case with an open mind.

The consequences of a bias argument being made out: • disqualification of the decision-maker (before the decision is made); or • the decision is void (if decision is already made).

Generally, the bias rule applies universally to all administrative decision-making (and is more strictly applied to courts and tribunals).

The test is if a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the question they are required to decide. (Ebner) There are two steps involved in the application of this standard:

1. Identify what matter might lead a decision-maker to decide a case other than on its legal and factual merits, e.g.:

• Interest (e.g., financial/pecuniary interest, or family interest) • Conduct (e.g., hostile conduct by the decision-maker during or outside the pro-

ceedings) • Association (e.g., decision-maker’s spouse has an interest in outcome) • Extraneous Information (e.g., where a judge is disqualified by reason of having

heard some earlier case)

2. Identify if there is a logical connection between that matter and the feared deviation from the course of deciding the case on its merits.

3. Any exceptions to the bias rule • Exclusion or modification by statute • Waiver (Vakauta v Kelly)

- Can be express (judge discloses upfront interest and parties object/agree) or implied (silence or non-action)

• Necessity (Ebner v Official Trustee) - No alternative decision maker (eg. Statute state that a particular person must make the deci-sion)

Hearing Rule

CHARACTER OF THE DECISION MAKER- Fair minded lay observer - Does not need to have detailed knowledge of the law, but must try to be informed to the extend

necessary to make an informal judgment

59

Ebner v Official Trustee in Bankruptcy FACTS: Judge was a trustee and beneficiary of a trust which had shares in ANZ, and he

told the parties of his interest. Contrast to Clenae case were the judge had inherited shares after the trial ended but before giving judgment, did not disclose his interest.

Hot Holdings Ltd v Creasy FACTS: Minister made decisions to grant a mining exploration licence to Hot Holdings. Officers Ho helped prepare advice to Minister had shares, or relatives held shares in a company associated with Hot Holdings. Minister had no knowledge of the share hold-

ings. Unsuccessful competitors sought judicial review of breach of the rule against bias.

JUDGMENT: No breach of the rule because it didn't satisfy the second step of the Ebn-er test. Minister was fair and independent. The role of the officers 'peripheral' and

shareholding of relative was too far removed. If there is a situation where the decision maker doesn't have the interest but others do, it is too far removed.

Minister for Immigration; Ex parte Jia FACTS: Mr Jia and Mr white were convicted of serious crimes. The immigration depart-ment cancelled their visa. they appealed to the AAT and won, so the AAT sent the deci-sions back to the Minister to be remade. Before remaking, the Minister went on the ra-dio and made comments about the AAT and the statutory test of good character. He

had also written to the AAT President on the matter. The Minister then made decisions to cancel the visas.

JUDGMENT: No breach of the rule. Minister must still be open to persuasion, but stan-dard is not as as for a judge. A minister is different to a judge because a minister is a political officer. Minister could therefore hold strong views without infringing the rule.

Minister don't need the same impartiality as judges. Gleason CJ and Gummow J: A state of mind described as a bias in the form of pre-

judgment is one so committed to a conclusion already formed as to be incapable of al-teration, whatever evidence or arguments may be presented.

Vanuatu v Kelly FACTS: Judge sat on many personal injury cases. 3 doctors had appears before him previously,

and he made disparaging remarks about them in the case. JUDGMENT: Breach of the bias rule. Judges will have views, not necessarily biased. Can be

useful to disclose views, but must still be open to persuasion during litigation.

Hearing Rule

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Jurisdictional Error

Under the ADJR Act the ground of “jurisdictional error” is covered by ss 5(1)(c) and 6(1)(c). It is rarely utilised however, as the other grounds in the Act are usually sufficient. The ADJR Act has no distinction of ultra vires and jurisdictional error for grounds of review; only refers to error of law (s5(1)(c))

For jurisdictional error, consideration is given to: • The nature of the error that is made by a decision-maker; and • whether that error negatively impacts on the decision-maker’s jurisdiction to decide on the

matter (i.e. such that their authority to decide is taken away).

Errors made a decision-maker which: • negatively impact on the decision-maker’s power / jurisdiction to decide the matter are jurisdic-

tional errors; • do not negatively impact on his or her power to ultimately decide are non-jurisdictional errors

(or errors made within jurisdiction). - Non-jurisdictional error of law is an error which parliament did not intended to invalidate

an administrative decision

There are two basic types of error: 1. An error of fact;

• Refers to a decision-maker’s finding or determination where the error can be seen without reference to any legal or technical standard (e.g. the hat was black, not white).

2. An error of law • Refers to a decision-maker’s finding or determination where the error can only be seen by

drawing upon some legal standard or requirement (e.g. having regard to the statutory def-inition of “beautiful”, it would be an error to take into account physical characteristics of an applicant)

Narrow Jurisdictional Error

Jurisdictional errors were originally said to occur where the error was an essential precondition to the valid exercise of the decision-maker’s power. E.g.:

• Commissioner must determine applications [the power] of a person who “…resides in Aus-tralia” [essential pre-condition].

• Minister may order the deportation of [the power] of “… a person who is not a citizen of Aus-tralia” [essential precondition].

These are examples of jurisdictional error in the narrow sense and roughly corresponds to narrow ul-tra vires — i.e. there was no power for the decision to make the decision in the first place.


It is important to note that Craig's case does not create a fixed list. the case confirmed jurisdictional error is a central organising concept of the state. Does have a connection to seriousness -issue and impact- and so more determinative to call it a jurisdictional error.

- Something small may not be a jurisdictional error.

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Minister for Immigration v Yusuf JUDGMENT: HC confirmed that the list of errors in unlisted (endorsed Craig's case). Ju-

risdictional error can cover various errors of law.

Kick v Industrial Relations Commission (NSW) JUDGMENT: Extended the entrenchment of judicial review for jurisdictional error to

State Supreme Court. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdic-

tional error.

Timbarra Protection Coalition Inc v Ross Mining FACTS: RM applied to extend and modify gold mine. Legislation required a Species Impact Statement if it would significantly affect threatened species. Application was approved by no SIS was provided. Timbarra challenged the approval but was dis-

missed as the decision to require a SIS was not a jurisdictional fact. JUDGMENT: NSW Court of Appeal overturned the decision and it was a jurisdictional fact. Must determine if it was a pre-condition, and whether it was based on opinion or belief. The opinion of the decision maker could also be a jurisdictional fact. The deci-

sion of whether the SIS is necessary was based on legislative scheme.

Plaintiff M70/2011 v Minister for Immigration FACTS: Australian Government made an arrangement with Malaysia to send asylum

seekers there for processing. Minister made a declaration under s198A(3) of the Migra-tion Act that Malaysia was a suitable country. To make the declaration, 4 criteria were to be met, including effective assessment procedures, protections and whether they met human rights standards. However, Malaysia is not a party to the Global Refugee Pro-

gram. JUDGMENT: HC held declaration was invalid. The criteria are objective jurisdictional facts; they had to exist as legal obligations. There were no laws in place in Malaysia.

Criteria were subjective jurisdictional facts; they depended on the opinion of the Minis-ter. No basis for the Minister to have opinion that the criteria were met. Declaration must be based on continuing circumstances, not a hope/belief or expectation that the speci-

fied country will meet the criteria.


There must be focus on the wording and content of the statute rather than previous cases.

TEST: If logical minds may differ or may be the same in respect to conclusions draw from the evi-dence. If there is a basis for the decision, it will not be irrational.

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SZMDS case JUDGMENT: HC stated that the subjective jurisdictional facts can be reviewed on the

basis I of irrationality. Reasonable minds can reach different conclusions looking at the same material- this will not be irrational. Not every lapse of logic will result in a jurisdic-

tional fact.


Broad Jurisdictional Error

The UK has expanded jurisdictional error, so that the notion captures not only errors of fact or law that are essential preconditions to the exercise of power, but also any other error of law that a deci-sion-making body makes along the way (Anisminic Ltd v Foreign Compensation Commission)

An error of law includes: • taking into account an irrelevant consideration; • failing to consider a relevant matter; • making a decision based on no evidence; • acting for an improper purpose or in bad faith; • perhaps even acting unreasonably in the Wednesbury sense; and • procedural unfairness.

The notions of ultra vires and jurisdictional error are therefore now virtually indistinguishable — the concepts are often used interchangeably.

The High Court adopted a broad definition of jurisdictional error in Minister for Immigration v Yusuf. • “It is necessary, however, to understand what is meant by “jurisdictional error” under the gener-

al law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Refugee Review Tribunal):

• “falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some cir-cumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its au-thority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it”.

In an inferior court, a challenge is limited to narrow jurisdictional error. • Alternatively, could argue error of law on the face of the record. • Inferior courts = Magistrates Court or the County Court of Victoria

In an inferior tribunal, a challenge can be narrow OR broad.

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Exception: Error of Law on the Face of the Record

A jurisdictional fact is a fact that must be in existence for the decision to occur; if it is based on a decision, it is a jurisdictional fact. Error of law on the face of the record is an exception to the narrow jurisdictional error doctrine. A superior court may grant a writ of certiorari for an error of law on the face of the record where the applicant can show:

• there was an error of law (not fact); and • this error appears on the face of the record.

ADJR s5(1)(f) & s6(1)(f) - Application can be made for judicial review on the grounds that there was an error of law, whether

of not the error appears on the face of the record.

Administrative Law Act ss8&10 (Vic) - S8: statutory obligation to provide reasons - S10: reasons form part of the decision and accordingly are incorporated into the record

“The record” as outlined in R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw has been said to:

• “consist of all those documents which are kept by the tribunal [or inferior court] for a perma-nent memorial and testimony of their proceedings.”

• The record must contain at least: • the document which initiates the proceedings; • the pleadings, if any; and • the adjudication,

• but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them into the record.

Ordinarily, in the absence of statutory prescription, the record will comprise no more than the docu-mentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication (Craig v South Australia).

65

Collector of Customs v Agfa JUDGMENT: It is difficult to distinguish between issues of fact and law. Superior courts

can only review cases on the record. Record will usually comprise of; - Documents that initiate process

- Pleadings - Determination

Will not include; transcript of proceedings, exhibits or reasons for the decision.

Remedies

It is essential to have an understanding of: • what the client wants in terms of a resolution to his or her problem situation; • what the court is capable of giving by way of remedy; and • what the court is likely to give by way of remedy.

In relation to an impugned administrative decision, the aggrieved client may want: • only one particular court order/remedy; or • a combination of court orders/remedies.

Common Law Remedies

At common law, the major administrative law remedies are: • the prerogative writs of certiorari, prohibition and mandamus; and • the equitable remedies of injunction and declaration.

Certiorari

Certiorari is sought to quash or set aside a defective decision that has already been made.

The decision challenged must: • be made by a body having legal public authority (e.g. a body reposed of statutory power); and • have sufficient capacity to impact on the applicant’s rights or interests, resulting in a legal ef-

fect or legal consequences. Does not make new decision- instead gets rid of old one.

Hot Holdings v Creasy FACTS: 8 mining applications were made by different mining companies. The warden was required to prepare a report about which one should take priority. Usually the first

to apply gets given priority; here, all applications were made seconds after the opening become available. Warden wished to hold a ballot about which one should take priority. Creasy south to quash the ballot before it took place, as it may have legal effect or con-

sequences. JUDGMENT: Certiorari held. The Minister could only grant on the warden's report, who

had to decide on priority. Decision to hold a ballot would have legal effect.

Roberts v Hopwood FACTS: The District Auditor, Mr Roberts, found that the wages paid were excessive (more “gratuities” than “wages”). Pursuant to s 247 of the Public Health Act, he de-clared them “contrary to law” and surcharged the excess (totalling £5,000) to the

Councillors responsible for increase (which included Mr Hopwood) JUDGMENT: Hopwood and the other Councillors sought certiorari to quash the District

Auditor’s decision.

Remedies

Can be granted as an ancillary remedy to one of the constitutional writs -It has long been accepted that certiorari may issue as ancillary to the constitutional writs of mandamus and prohibition (Plaintiff S157/2002 v Cth)

Prohibition

Prohibition is sought to “prohibit” a decision-maker from making a defective decision or acting on it after it has been made:

• (same requirements as certiorari, except relates to a proposed decision) Requires that the power to be exercised is a public power Cannot be used if the decision has already been made or the action already taken place One of the constitutional writs under s75(v)

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Annetts v McCann FACTS: Mr McCann (the Coroner) refused to let counsel for Mr and Mrs Annetts make a

closing address at the coronial inquest. JUDGMENT: Mr and Mrs Annetts sought prohibition against the Coroner to prevent him

from making any finding or publishing any rider until he reconsidered the question of whether their counsel should be heard by way of closing address according to law

(they also sought a writ of mandamus in that regard).

R v Australian Stevedoring Industry Board FACTS: The Australian Stevedoring Industry Board decided to conduct an inquiry under

s 23(1) of the Stevedoring Industry Act 1949 (Cth) (“the Act”) to determine whether Melbourne Stevedoring Co Pty Ltd was :

unfit to continue to be registered as an employer; or had acted in a manner whereby the proper performance of stevedoring operations had

been interfered with. JUDGMENT: Melbourne Stevedoring Co Pty Ltd sought a writ of prohibition against the

Board to prevent it from proceeding with the inquiry.

Remedies

Mandamus

Mandamus is sought to compel the decision-maker to exercise a discretionary power and make, or remake, a decision according to law:

• decision-maker must be: • a public body or official; • who is obliged to perform a duty of a public nature recognised by law which remains

unperformed. Does not compel a particular outcome; creates a risk that an adverse decision will be made, as the decision maker is not forced to decide a certain way. Court will not order a particular decision to be made One of the constitutional writs

Injunction

Injunction is sought to restrain administrators from acting contrary to a legal obligation (“prohibitory” injunction) or to compel them to act in a certain way (“mandatory” injunction). Can be temporary or permanent, and can be issued against anyone, even the Crown Referred to in s75(v) of the Constitution Can be sought ex parte, urgently and in chambers

• Court can then make different orders after substantial evidence is given If alternative remedy is available, injunction will not be favoured

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Padfield v Minister of Agriculture, Fisheries and Food FACTS: The Minister refused to refer Mr Padfield’s complaint about Milk Board prices to

a committee of investigation under s 19(3)(b) of the Agricultural Marketing Act 1958 (UK).

JUDGMENT: Padfield sought a writ of mandamus to compel the Minister to do so.

R v Anderson; Ex parte Ipec Air Pty Ltd FACTS: Director-General of Civil Aviation refused to give permission to Ipec Air to im-

port five DC4 aircraft. JUDGMENT: Ipec Air sought a writ of mandamus against the Director-General to com-

pel him to do so in accordance with the law.

Ansett Transport Industries (Operations) Pty Ltd v Commonwealth FACTS: Ansett anticipated that a decision by the Secretary of the Department to Transport

would be made, giving 2 rival companies permission to import 4 aircraft (which it argued would be in breach of its contracts with the Commonwealth).

JUDGMENT: Ansett sought an injunction to restrain the Secretary from giving that permission (it also sought declarations as to the legal position of the parties).

Remedies

Declaration

Declaration is sought to conclusively declare the rights, interests and obligations of parties (which is normally adhered to by government administrators if made). Can be sought against anyone, including the Crown Flexible and versatile, but has some limitations Can be issued where no other remedy is appropriate (Eg. Plaintiff M76/2013 v Minister for Immigra-tion) Can make it clear and public that a decision is invalid

• Will not be produced if there was no foreseeable consequence to parties

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Associated Provincial Picture Houses Ltd v Wednesbury Corporation FACTS: The Wednesbury borough council granted a licence to Associated Provincial

Picture Houses to open its cinemas on Sundays, but imposed a condition that “no chil-dren under the age of fifteen years shall be admitted to any entertainment whether ac-

companied by an adult or not”. JUDGMENT: The cinema operators sought a declaration that the condition was ultra

vires and unreasonable.

Remedies

Jack v Manukau City Council (Unreported, High Court of New Zealand, Auckland, M 1698/99)

FACTS:

- Section 57 of the Dog Control Act 1996 (NZ) reposed in dog control officers employed by local government councils the power to seize a dog if there were reasonable grounds to suspect that the dog had “attacked” a person.

- Mrs Jack was the registered owner of a friendly 2-year-old german shepherd named “Reika”.

- One day in 1999 the local postman was making his daily deliveries in the vicinity of Mrs Jack’s home in Manukau City.

- As the postie approached Mrs Jack’s house, Reika ran outside and barked madly at him (although there was no physical contact between dog and postie).

- The postie fled and alerted dog control officers employed by the Council.

- Two dog control officers, accompanied by 4 police officers, later arrived at Mrs Jack’s house, burst through the front door, and seized Reika on the basis that he had “attacked” the postie.

- Mrs Jack sought a declaration in the High Court that Reika had not “attacked” the postie as there was no physical contact.

- Counsel for Manukau City Council submitted that physical contact was not determinative of whether a person had been “attacked” – it was the intent of the dog that was relevant.

- Counsel for the dog argued that such a submission was just plain silly (expert evidence from an an-imal psychologist was adduced which opined that the intentions of animals, as opposed to hu-mans, can never be properly ascertained).

ISSUE: Remedies / declaration

HELD:

- Held (Randerson J):

- An “attack” for the purposes s 57 of the Dog Control Act 1996 requires that there be physical contact between dog and victim (the Court made a declaration to that effect).

- Effect of the declaration:

- Manukau City Council accepted the implications of the declaration and realised they had no legal basis for continuing to detain Reika.

- Reika was reunited with the Jack family about 4 months after he was seized and was fed a big plate of sausages.

- POST SCRIPT

- In 2003 the New Zealand parliament amended the Dog Control Act 1996 so that dogs could be seized if they merely “rushed at” or “startled” a person (a result of lobbying by local gov-ernment councils who were not happy with the High Court decision).

- In 2006 Reika died.

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Remedies

Overlap of Remedies

The function of equitable remedies overlaps with that of the prerogative writs. Technical rules developed in relation to the prerogative writs, making the equitable remedies more flexible. Litigants will often take a “scatter gun” approach and specify a number remedies sought in their ap-plications for judicial review.

Ainsworth v Criminal Justice Commission Relevant decision:

• The Criminal Justice Commission, pursuant to ss 2.14(2)(c) and 2.18 of the Criminal Justice Act 1989 (Qld) prepared and submitted a report which dealt with matters relating to particular pok-er machine suppliers and manufacturers, including the Ainsworth group of companies (damag-ing its reputation).

Remedy sought: • Ainsworth Group sought:

• certiorari to quash the report; • mandamus to compel the Commission to perform its functions under the Act de novo

(i.e., again) but this time to observe the rules of natural justice; • a declaration that the Commission breach the requirements of procedural fairness.

• [The Court also noted that injunction could have been sought if the report had not yet been re-leased.]

Re Minister for Immigration & Multicultural Affairs; ex parte Miah Relevant decision:

• The Minister’s delegate refused to granted Mr Miah a protection visa under section 65 of the Migration Act 1958 (Cth).

Remedy sought: • Mr Miah sought:

• prohibition directed to the Minister prohibiting her from acting upon or giving effect to the decision (i.e., having Mr Miah deported);

• certiorari to quash the decision; • mandamus requiring the Minister to determine Mr Miah’s application for a protection visa

according to law (i.e., to observe the requirements of procedural fairness).

The Federal Court can grant the common law remedies under: • s 39B of the Judiciary Act 1903 (Cth) (mandamus, prohibition, injunction); • ss 21-23 of the Federal Court of Australia Act 1976 (Cth) (certiorari and declaration).

The High Court has original jurisdiction to grant same remedies.

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Remedies

Remedies Under the ADJR Act

Section 16(1) of the ADJR Act allows the Federal Court / Federal Magistrates Court / Federal Circuit Court to make any or all of the following orders:

A. quash or sets aside the decision; B. refer the matter back to the decision-maker for further consideration, with such directions as

the court thinks fit; C. declare the rights of the parties to which the decision relates; D. direct a party to do, or refrain from doing, something.

Conduct in relation to a decision: s16(2) Refusal to make a decision: s16(3) Applicant would not be required to specific remedies sought under AD(JR), but make an application under s16, and the court will decide on the appropriate remedy.

These are simplified versions of the common law remedies (without the old technical requirements).

Remedies are Discretionary

Even if a ground of judicial review is made out, the court does not have to grant a remedy, as they are discretionary.

Courts of review are disinclined to grant relief where: • the issues are hypothetical; • a remedy would be futile; • the applicant has delayed in bringing on the application; • the applicant has otherwise engaged in improper conduct in relation to the matter; • the applicant has alternative avenues for redress which should be explored before a court of

judicial review intervenes (e.g. merits review might be available): s 10 ADJR Act

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Tribunals and Merits Review

Judicial Review: • involves consideration of the legality of the decision and the decision-making process; • does not involve consideration of the merits of the particular decision (or, in theory at least, it is

not supposed to)

Merits Review: • involves consideration of the merits of the particular matter;

• primary decision-maker makes decision against applicant, based on his/her understand-ing of the law as applied to his/her assessment of the evidence and any relevant policy;

• merits review body (e.g., a tribunal) rehears the matter and remakes the decision based on its understanding of the law as applied to its assessment of the same evidence (and more) and relevant policy.

Theoretically, every administrative decision is capable of being criticised on a merits and a legality basis:

• Hot Holdings Ltd v Creasy • The Minister for Mines granted an exploration licence to Hot Holdings in preference to

Creasy’s application for a licence relating to the same land, based on an assessment of which of the two competing applications was to be preferred having regard to the rele-vant legislation.

• Judicial Review: • Ground of bias argued. • If successful, Minister’s decision quashed (certiorari) and matter would be remitted

back to Minister for reconsideration (mandamus). • Merits Review:

• Creasy would argue that, on objective assessment of all evidence, policies and ap-plicable laws, his application for the exploration licence is to be preferred.

• Merits review body could substitute its own decision for that of Minister.

• Project Blue Sky • The Australian Broadcasting Authority determined an Australian Content Standard which

required at least 50 per cent of all commercial television broadcasts between 6am and midnight to be “Australian programs”.

• Judicial Review: • Ground of procedural ultra vires argued. • The particular Australian Content Standard was declared invalid (declaration).

• Merits Review: • Project Blue Sky could argue that the particular Australian Content Standard should

be amended to read “Australian or New Zealand programs”. • Merits review body could substitute its own decision as to what the Australian Con-

tent Standard should be (i.e., it could amend it). • Kioa v West

Tribunals / Merits

• Minister’s delegate refused Mr and Mrs Kioa’s application for an extension of their tempo-rary entry permits and order their deportation on the basis of an assessment that: (a) Mr Kioa had apparently not been genuine in seeking a legitimate extension of his stay; (b) Mr Kioa was actively involved with others seeking to circumvent Australia’s immigration laws.

• Judicial Review: • Kioas argued breach of the requirements of natural justice (the hearing rule). They

sought orders under s 16(1)(a) and (1)(b) that the decisions be set aside and the mat-ters be referred back to the Minister’s delegate for reconsideration.

• Merits Review: • Mr Kioa could argue that he was genuine and not doing anything illegal. • Merits review body could substitute its own decision for that of Minister’s delegate

and grant entry permits/permanent visas.

• Wednesbury • The Wednesbury borough council granted a licence to Associated Provincial Picture

Houses to open its cinemas on Sundays, but imposed a condition that “no children under the age of fifteen years shall be admitted to any entertainment whether accompanied by an adult or not”.

• Judicial Review: • Cinema operators argued that the decision to impose the condition was so unrea-

sonable that no reasonable borough council could have made it. • Declaration sought that the condition was unreasonable and ultra vires.

• Merits Review: • Could argue that the licence condition was simply unreasonable, based on assess-

ment of general policy and legal considerations. • Merits review body could substitute its own decision for that of the borough council

and amend the licence by deleting the condition or varying it.

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Tribunals / Merits

Arguments for giving a right to have a primary decision-maker’s administrative decision reviewed on the merits:

• the primary decision-maker could have based his or her decision on an erroneous assessment of the facts (but still no legal error which could give rise to judicial review);

• the exercise of the discretion was simply unsatisfactory in the circumstances (but still no legal error);

• reconsideration of the matter entirely by an independent body reduces the risk of the decision being the wrong one:

• primary decision-makers fear having their decision overturned and are therefore more careful to reach the right conclusion;

• if the primary decision is wrong, the reviewing body can make it right; • participation, accountability and fairness.

Arguments against giving a right to review on the merits: • creates an inefficient government administration by drawing out the decision-making process; • the notion of a reviewing body being truly “independent” of the primary decision-maker is arti-

ficial (given that it too is part of the Executive branch of government).

Assessing the need and desire for merits review involves balancing competing values: • the need to ensure individual justice through a process of open and accountable government;

and • the demands of administrative efficiency.

Role of Courts v Tribunals

Judicial review of an administrative decision is conducted by courts. • N.B. there is no reason in theory why Parliament cannot confer power on courts to conduct

merits review

Merits review of a primary decision is usually conducted by way of: • internal review (e.g. by another public official within the same government department/agency

as the primary decision-maker); • external review (e.g. by an “independent” administrative tribunal).

Administrative tribunals fall within the Executive branch of government (but exhibit many features of courts).

Examples of administrative tribunals: • Victorian Civil and Administrative Tribunal (“the VCAT”); • Administrative Decisions Tribunal (“the ADT”) (NSW); • Administrative Appeals Tribunal (“the AAT”) (Cth).

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Tribunals / Merits

Categories of Merits Review

There are generally three categories of distinction made in the analysis of merits review bodies / agencies:

1. Internal / external • e.g., a superior within the same government department vs. an independent tribunal

2. Specialist / general • e.g., Refugee Review Tribunal vs. the AAT

3. First tier / Second tier • e.g., appeals from Social Security Appeals Tribunal (“the SSAT”) can then be made up to

the AAT

Rights to Merits Review

There is no general right to have an administrative decision reviewed on its merits. To challenge an administrative decision of a primary decision-maker on its merits:

• there must be an express statutory power conferred on a person / tribunal to conduct merits review in relation to certain decisions; and

• the particular decision challenged must have been made under an enactment which itself con-fers jurisdiction on the person/tribunal to conduct merits review in relation that particular type of decision.

Administrative Appeals Tribunal

The Commonwealth Administrative Appeals Tribunal (“the AAT”) was established by the Administra-tive Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

Important aspects of the AAT: • It is an “external” and “independent” tribunal. • Its general function is reviewing decisions that have been made by a primary administrative de-

cision-maker (but sometimes it is the second avenue for appeal if there has been internal re-view).

• When empowered to do so, it conducts a merits review of such decisions (i.e., it has power to make the correct or preferable decision).

• The source of its power of merits review derives principally from the AAT Act. • But the statute under which the administrative decision was made must also expressly confer

power on the AAT to conduct a review.

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Tribunals / Merits

Jurisdiction of AAT To Conduct Merits Review

Merits review is not as of right; a statute has to confer jurisdiction. The issue of whether the AAT has power to review an administrative decision is often expressed as whether the decision is “reviewable” by the AAT. An administrative decision is reviewable by the AAT if:

• an enactment / statute provides that applications may be made to the AAT for review of deci-sions made in the exercise of powers conferred by that enactment (s 25(1)(a), AAT Act 1975 (Cth)); and

• an application is made to the AAT pursuant to such a statutory provision (s 25(4), AAT Act 1975 (Cth)).

Although a statute may provide a right of review by the AAT, the powers of the AAT to conduct a re-view may be limited:

• The statute may confer power on the AAT to review only certain types of decisions made under the statute (s 25(3)(a) and (3)(b)).

• The statute may otherwise specify conditions on any right of review (e.g. only certain aspects of a decision are reviewable) (s 25(3)(c)).

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25 Tribunal may review certain decisionsEnactment may provide for applications for review of decisions (1) An enactment may provide that applications may be made to the Tribunal:

(a) for review of decisions made in the exercise of powers conferred by that enactment; or (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by

another enactment having effect under that enactment. … Enactment may provide for applications for review of decisions(3) Where an enactment makes provision in accordance with subsection (1), that enactment:

(a) shall specify the person or persons to whose decisions the provision applies; (b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and (c) may specify conditions subject to which applications may be made.

…Tribunal’s power to review decisions (4) Deleted.

Tribunals / Merits

A broad view has been taken of the meaning of “decision” for the purposes of AAT merits review.

A decision of an administrative decision-maker that is a nullity is still a decision for the purposes of invoking the AAT’s jurisdiction.

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Section 3(3), AAT Act 1975 (Cth).3 Interpretation(3) Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:

(a) making, suspending, revoking or refusing to make an order or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or per-

mission (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction; (e) making a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; or

Collector of Customs (NSW) v Brian Lawlor Automotive FACTS: Brian Lawlor Automotive's warehouse licence was cancelled by the Collector of Customs. BL sought review in the AAT, arguing that the collector had no power to can-

cel a licence. Collector argued that the AAT had no jurisdiction because he'd acted outside his powers.

JUDGMENT: In s 25 of the AAT act, the words “made in the exercise of powers con-ferred by that enactment” are to be interpreted as in purported exercise of powers by

conferred by the enactment.

Tribunals / Merits

Standing under the AAT Act

Section 27(1) of the AAT Act 1975 (Cth) provides that a reviewable decision can be challenged by any person whose interests are affected by the decision. A person “whose interests are affected” includes an organisation or association whose objects or pur-poses relate to the subject matter of the decision (s 27(2)). The standing test under the AAT is evidently similar to that for judicial review under the AJDR Act and at common law. Not everyone can claim standing in the AAT.

• The interest of which s 27(1) speaks is an interest which is affected by the decision to be re-viewed, not by the review.

Right to Reasons under the AAT Act

Section 28 of AAT Act 1975 (Cth) allows a person who is entitled to bring an application to the AAT to request written reasons (with similar procedures and exceptions as contained in the ADJR Act). Section 37 obliges the decision-maker whose decision is subject to a review by the AAT to lodge ma-terial documents (including reasons for their decision) with the AAT within 28 days of receiving no-tice of the application for review. [N.B. the AAT itself must also give reasons when it delivers its deci-sion in relation to the merits review application (see s 43)] .

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Re Control Investments v Australian Broadcasting Tribunal FACTS: ABT refused consent to News Group to acquire additional media outlets, so NG sought review in the AAT. 4 other groups joined as parties in support of AAT (Australian Labor Party,Justice in Broadcasting, Australian Journalists Association and Rupert Pub-

lic Interest Movement). JUDGMENT: The words 'interest are affected' denote an interest greater than as a

member of the general public and other than a person merely holding a belief that con-duct be prevented or the law observed (Davies J). It not need to be a legal interest but

it must be a relevant interest. Of the 4 organisations, the rupee Public Interest Move-ment was the only one denied standing to be joined, because it's objects did not relate

specifically enough to the decision under review.

Re McHattan & Collector of Customs (NSW) FACTS: CoC decided to impose customs duty on items to be imported by McHutton's client, contrary to his advice. McHutton sought review in AAT and argued that his busi-

ness reputation was adversely affected. JUDGMENT: Brennan J: interest are not limited to financial interest or legal; rights. they can include indirect interests. McHutton's standing was too remote and so did not have

standing.

Tribunals / Merits

Review on the Merits under the AAT

AAT has the power to remake a decision. It us a hearing de novo (from new) As hearings are de novo, the AAT may make its decisions on different evidence/arguments from those which were relied upon at first instance. The law applied by AAT in remaking its decision is the law in force at the time of the review, rather than at the time of the original decision. Section 43(1) of the AAT Act 1975 (Cth) provides that the AAT may exercise all the powers and dis-cretions that are conferred on the primary decision maker.

The effect of s 43(1) has been taken to mean that the AAT can conduct a de novo hearing not restrict-ed by the arguments and material put before the primary decision-maker (Greenham).

Correct or preferable This de novo hearing determines whether the primary decision was the “correct or preferable” one, based on the material before the AAT

The AAT performs this function by “standing in the shoes” of the primary decision-maker and arriving at its own decision (Esber).

In summary, on the basis that the AAT has jurisdiction to conduct a review, and that the applicant has standing, the AAT then:

• embarks on a de novo hearing;

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43 Tribunal’s decision on review(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that

are conferred by any relevant enactment on the person who made the decision and shall make a deci-sion in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and:

(i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommenda-

Drake v Minister for Immigration JUDGMENT: Bowen CJ, Dean J and Smithers J: The question for the determination off

the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material be-

fore the Tribunal.

Tribunals / Merits

• determines the correct or preferable decision on the material before it, by “standing in the shoes” of the original decision-maker.

In so doing, the AAT: • interprets the applicable law under which the primary decision-maker exercised his or her

powers; • considers any applicable policy in place (and makes an assessment of its lawfulness and ap-

plicability to the particular circumstances of the application for review before it) • applies the law and policy (if appropriate) to the facts of the case as it has determined them to

be.

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Shi v Migration Agents Registration Authority FACTS: Migration Agent had licence cancelled by MARA, he appealed to AAT which set aside MARA's decision and substituted its own. MARA appealed AAT decision on basis that AAT should have considered the information available at the time that MARA

made its decision. JUDGMENT: Court dismissed appeal and the Tribunal's decision was upheld.

Drake No 1 JUDGMENT: An uncritical application of government policy by the tribunal would be an

abdication of its function to reach a correct or preferable decision.

Tribunals / Merits

Role of the AAT in Relation to Policy

There is an inherent conflict between the AAT’s role as: • an “independent” tribunal performing a quasi-judicial function of reviewing a primary adminis-

trative decision; and • as a reviewing body “standing in the shoes” of the primary administrative decision-maker.

The two roles each give primacy to different competing values: • justice to the individual case; and • public policy from the Executive’s perspective.

Qualifications 1) Policy had to be consistently with the statute 2) AAT has an obligation not to apply inflexibly

Nature of the Hearing at the AAT

The AAT is not a court of law. It has a more flexible approach to its hearing procedures. Section 33 of the AAT Act gives the AAT significant discretion as to how proceedings are to be con-ducted before it. Emphasis is placed on:

• as little formality and technicality as the law and proper consideration of the issues will permit (s 33(1)(b));

• expedition of proceedings (s 33(1)(b)); • the AAT is not bound by the rules of evidence but may inform itself on any matter in such

manner as it thinks appropriate (s 33(1)(c)); • an “inquisitorial” as opposed to “adversarial” approach (although the latter is often adopted

where parties are legally represented).

But there are still basic principles that should be observed by the AAT. For example: • procedural fairness: Australian Postal Commission v Hayes; • decision must be based on logically probative evidence: Re Pochi and Minister for Immigration

& Ethnic Affairs; • findings of fact should ordinarily be determined in accordance with the civil standard of proof

(i.e., on the balance of probabilities): Epeabaka v Minister

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Drake v Minister for Immigration & Ethic Affairs (No 2) JUDGMENT: Brennan J: When the tribunal is reviewing the exercise of a discretionary power by the Minister, and the Minister had adopted a general policy to guide him in

the exercise of that discretion, the Tribunal should ordinarily apply that policy unless the policy is unlawful or unless it's application prosecutes an unjust decision in the circum-

stances of the case.

Tribunals / Merits

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33 Procedure of Tribunal (1) In a proceeding before the Tribunal:

(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b) the proceeding shall be conducted with as little formality and technicality, and with as much ex-pedition, as the requirements of this Act and of every other relevant enactment and a proper con-sideration of the matters before the Tribunal permit; and

(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

Re Pochi & Minister for Immigration FACTS: Plaintiff was convicted of the supply of Indian hemp, claiming he thought it was parsnips. He served time in prison, and then served with a deportation order, which he

challenged. AAT heard from police without P present. JUDGMENT: Brennan J: Flexible procedure does not go so far as to justify orders with-out a basis in evidence having rational probative force. The tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not.

Minister for Immigration v Poch JUDGMENT: Deane J: Findings of material facts of a statutory tribunal must ordinarily

be based on logically probative material. There will be little point in the requirements of natural justice aimed at ensuring a fair hearing by such a tribunal if, in the outcome, the

decision maker remained free to make an arbitrary decision.

Australia Post Commission v Hayes FACTS: Ms Barnbrooke had her compensation payments for a hand injury cancelled by

the Commission so sought review under AAT. The Commission had a video of her un-dertaking activities despite the injury. She asked to see the video prior to giving evi-dence, but the Commission refused. AAT directed that the video be disclosed. Com-

mission appealed to Federal Court for denial of procedural fairness. JUDGMENT: Direction of the Tribunal was a breach of procedural fairness because it so fettered the proposed cross-examination of B that her evidence could not be properly

tested.

Tribunals / Merits

Burden and Standard of Proof - McDonald v Director- General of Social Security JUDGMENT: Because the tribunal is not bound by the rules of evidence, there will be no legal onus on the appellant to prove his case. - Epeabaka v Minister JUDGMENT: A tribunal is more likely to arrive at the correct or preferable decision if it's obligation is to determine the existence of facts in accordance with the civil standard.

Remedies under the AAT Act

Under s 43 of the AAT Act, having arrived at the correct or preferable decision, the AAT may then: • affirm the decision under review; • vary the decision under review; or • set aside the decision under review (and substitute its own decision or remit the matter back

to the original decision maker with any directions or recommendations).

Section 44 allows a decision of the AAT to be appealed on a point of law.

Question of law Island v Secretary of Department of Justice: A question of law does not allow general merits review on appeal Kostas v HIA Insurance Services: the question whether there was no evidence to support a factual finding of the tribunal is a question with respect to a matter of law.

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44 Appeals to the Federal Court of Australia from decisions of the Tribunal Appeal on a question of law(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a ques-

tion of law, from any decision of the Tribunal in that proceeding.

Revision

4 possible avenues each in turn to “advise Simon”: 1. Merits review, internally 2. Merits review, externally (AAT) 3. Judicial review under ADJR Act 4. Judicial review under common law

Merits Review Internally

Does the statute provide for review? (there is / is no provision in the Act for internal review)

Merits Review Externally (AAT)

Does the statute provide for review of decision by AAT? Decision is / is not reviewable upon application made to AAT Does the AAT have jurisdiction?

• Section 25 of the AAT Act provides that a decision is reviewable by the AAT if the statute under which the decision is made provides that such applications can be made to the AAT.

• Section xx of the Aged Care Act provides a right of appeal to the AAT, but only in respect of de-cisions of the Secretary made under s xxxx As the decision relating to X was one made under such section (i.e. approval / revocation / reconsideration), the AAT is / is not an option.

Revision

JR under ADJR Act

Does FC / FCC have jurisdiction to conduct JR? • Decision / conduct • Administrative character • made under an enactment • Person who is aggrieved?

S5 allows FC / FCC to hear an application for JR if there is the 4 elements above.

Is the Commissioner’s decision a “decision” ? • A reviewable decision is generally one which is final, or operative and determinative the issue

of fact falling for determination (ABT v Bond). • The determination to reject under s xxx is “final” as it is the end point to the process of the ap-

plication being considered. • (also look to s 3(2))

Of an administrative character? • Made by a government agent carrying into effect Cth law. Not a decision of judicial or legisla-

tive character

Made under an enactment? • involves 2 criteria: decision must be expressly or impliedly authorise by the enactment, and the

decision must confer, alter or affect legal rights or obligations, and in that sense it must derive from the enactment (Tang).

• The decision here is clearly authorised by s xx of the Act. The power to decide an application also has to potential to confer significant rights on an applicant as set out in s xx

Person who is aggrieved? • See discussion on Standing

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Revision

Does party have standing? • Standing is established by showing that the applicant is a “person aggrieved”. This phrase is de-

fined in s 3(4) as a “person whose interests are adversely affected” by the decision, which is re-garded as substantially the same test developed by the common law (Tooheys).

• An applicant must therefore show that a private interest or otherwise a “special” interest has been adversely affected by the decision.

A third party’s interest: (Q2) • If no private interest that has been adversely affected, so must therefore demonstrated a special

interest. Such an interest cannot be a mere intellectual or emotional concern (ACF) • X Party must show the importance of its concern with the decision and the closeness of its rela-

tionship with the subject matter of that decision (NCEC v Minister for Resources). • The court will want to be satisfied of a number of factors that demonstrate third party’s interest

in the decision that goes beyond the interest of the ordinary member of the public. e.g. (NCEC): • Do third party’s stated objects in its constitution included an objective in relation to peo-

ple? • Organisation recognised by govt? • Receive govt funding? • Reputation in community as an organisation?

• Conclude - likely / not likely to have standing

Reasons • X can apply for written reasons for the decision under s 13 of the ADJR Act.

Decision challenged? - UV / JE / Proc. Unfairness UV Irrelevant considerations

• S 5(1)(e) read with s 5(2)(a) of the ADJR Act allows a decision to be challenged on the basis that the decision maker took into account an irrelevant consideration.

• To determine whether a consideration is “irrelevant”, regard must be had to the policy and ob-jects of the XX Act (Padfield). The statute must be construed.

• The Commissioner / decision-maker could argue that taking into account xx factor is not an ir-relevant consideration.

Acting under dictation Improper delegation Unreasonableness

• In a similar way as argued above, X could argue the decision was “unreasonable” in the Wednesbury sense.

• S 5(1)(e) with 5(2)(g) allows this challenge to be made if the decision was so unreasonable that no reasonable decision-maker could have made it.

• The threshold of this ground is high, and has been interpreted in Australia as meaning a deci-sion which, looked at objectively ********

Proc Unfairness Bias

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Revision

Remedies

Section 16 orders under ADJR Act

On the assumption that X establishes any one or more of the above grounds, they could seek the fol-lowing remedies under s 16 of the ADJR:

• an order that the decision be quashed or set-aside; and • an order that his application be referred back to the Commissioner to reconsider it in accor-

dance with the law (in particular, that the Commissioner did not give any consideration to x) and

• a declaration that, for the purposes of X, certain considerations are completely irrelevant and it would be unlawful for such characteristics to be taken into account by the Commissioner in relation to any application.

JR under CL

CL Jurisdiction (different) Standing (see above) Reasons - no right Grounds (see above) / no evidence differs Remedies

• s 16 = relevant prerogative writs / equitable remedies

Q2 from T2 2009 is VERY GOOD TO PRACTICE ON Judiciary Act 39B

Q4 good question for merits review • Does Act provide for merits review in relation to decision?

Q5 for privative clauses

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