ADMINISTRATIVE LAW

NOTES

Reminder

The purpose, and sole purpose, of judicial review proceedings is to determine whether the administrative tribunal has acted according to law. If it has purported to act in excess of its jurisdiction, properly understood, generally its decision will be invalid and an improper exercise of power.

However, the underlying assumption of judicial review proceedings is that by whatever law a power has been conferred on the decision maker, so long as there is compliance with the jurisdictional limits imposed by that law, the decision-maker will be free to exercise the power as he or she thinks fit in the circumstances that are presented.

OriginsThe historic origin of judicial review of administrative action is to be found in the ancient prerogative writs of mandamus, prohibition and certiorari.  The prerogative writs arose from the royal prerogative, or the monarch's right or privilege over subjects.  The writ was issued by the King's Bench or Queen's Bench division of the Royal Courts.  Its use was closely associated with the rights of the Crown and particularly the prevention of encroachment upon those rights.

The origin of the prerogative writs derived from the fact that all lawful jurisdiction was based on Royal authority and an exercise of power not authorised by the Royal authority was a usurpation of that authority and should be restrained.  Mandamus compels the performance of a public duty; it orders a decision maker to make a particular decision or perform a particular action required by law.

Prohibition prevents conduct outside jurisdiction; orders a person not to make a particular unlawful decision or perform a particular unlawful action.

Certiorari quashes past conduct for which there was no jurisdiction and deprives the decision of legal effect.

Declarations are simply statements by the court that a decision is invalid; that a proposed decision would be invalid or that a particular action or duty should be performed. It is not a coercive remedy.

Injunctions may either prohibit a particular act or require that an act be done.

Introduction

Historically, the judicial review remedies have been of three types:

• The prerogative writs or orders – principally certiorari, prohibition, mandamus and habeas corpus

• The equitable remedies of declaration and injunction

• Statutory remedies, such as those available under the ADJR Act

Section 75(v) of the Commonwealth Constitution confers jurisdiction on the High Court of Australia where "a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth". 

For nearly a century these writs were known as the prerogative writs until the High Court, and particularly Gaudron and Gummow JJ, expressed the view in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, that the separation of powers mandated by the Constitution made the writs provided for in the Constitution fundamentally different to the prerogative writs which were associated with the executive or administrative power of the Crown.  Henceforth, they are called the constitutional writs.

Section 75(v) gives the High Court original jurisdiction to grant prohibition, mandamus or an injunction against Commonwealth officers.

Section 75(v) of the Constitution invests the High Court with original jurisdiction in all matters:

"iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;...v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. "

The original jurisdiction of the High Court contained in sec 75(v) of the Constitution above has also been conferred on the Federal Court by virtue of sec 39B of the Judiciary Act 1903.

Sec 44(2A) of the same Act also permits the High Court to remit to the Federal Court (quite apart from the jurisdiction conferred by the AD(JR) Act) a matter arising under sec 75(iii) of the Constitution.

Those two provisions are in the following terms:

"39B(1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(2) The reference in sub-section (1) to an officer or officers of the Commonwealth does not include a reference to –

(a) a person holding office under the Conciliation and Arbitration Act 1904, or the Coal Industry Act 1946; or

(b) a Judge or Judges of the Family Court of Australia."

"44(2A) Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia."

Sec 33 of the Judiciary Act 1903 appears to invest the High Court with powers additional to those contained in paras 75(iii) and (v) of the Constitution.

Section 33 of the Judiciary Act 1903 is in the following terms, paras (c) and (e) of sec 33(1) being relevant to administrative review:

(1) The High Court may make orders or direct the issue of writs:(a) commanding the performance by any court invested with federal jurisdiction, of any duty relating to the exercise of its federal jurisdiction; or

(b) requiring any court to abstain from the exercise of any federal jurisdiction which it does not possess; or

(c) commanding the performance of any duty by any person holding office under the Commonwealth; or

(d) removing from office any person wrongfully claiming to hold any office under the Commonwealth; or

(e) of mandamus; or

(f) of habeas corpus.

(2) This section shall not be taken to limit by implication the power of the High Court to make any order or direct the issue of any writ.

The Federal Court also has power to make orders and issue these writs under s 23 of the Federal Court of Australia Act 1976, where the Court has jurisdiction in a matter (in particular, under s 39B(1A), as discussed), even when mandamus, prohibition and injunctions are not sought.

The topic of remedies itself, is very large and often over-technical – in particular, the prerogative remedies because of their ancient history. It was the over-technicality of the prerogative remedies that drove administrative law to borrow the simpler, all-purpose equitable remedies of injunction and declaration.

There is a limited nature to these remedies in the sense that the courts must stop short of re-exercising the administrator’s discretion.

The remedies are also limited in the sense that compensation is not available on judicial review.

To obtain compensation or damages for unlawful administrative action, the complaint must be framed within tort or contract.

Further, all the remedies are discretionary – they may be refused even though unlawfulness has been established.

ADJR Act 1977

The ADJR Act was intended to overcome many of the technical issues associated with obtaining writs under s75(v) of the Constitution.

The ADJR Act sought to codify the principles of judicial review and reform the procedures, in order to provide a simple alternative to the traditional complex judicial review processes under Constitutional judicial review.

The ADJR Act focuses less on the availability of remedies and shifts attention to whether a legal error could be established, that is, a breach of a ground of review.

Probably the most important aspect of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (apart from creating a statutory right to reasons for decision) is the fact that it creates a single, all-embracing and extremely flexible remedy, the "order of review", for a breach in respect of any of the decisions or conduct covered by the Act. See ADJR Act section 16.

There is a power to make orders quashing or setting aside a decision (s 16(1)(a)); this power is more flexible than the constitutional and other remedies because it can be directed to part only of a decision and because the court has a discretion as to the date from which the order is to have effect.

There is a power to remit a matter to a decision maker for further consideration; the order may include such directions as the court thinks fit (s 16(1)(b)). There is a power to declare the rights of the parties (s 16(1)(c)) and a power to direct any of the parties to do or refrain from doing any act or thing where the court considers necessary in order to do justice between the parties (s 16(1)(d)).

There are also powers to restrain unlawful conduct (s 16(2)) and to compel the making of a decision (s 16(3)).

These powers are sufficiently flexible to do all the work done by the constitutional and general law remedies, yet with added flexibility. The powers are also discretionary. The Act does not expressly state any criteria for the exercise of this discretion, and in practice the Federal Court has applied principles similar to those that apply in the context of non-statutory remedies.

An application under the Act may be made by a ‘person who is aggrieved by’ a decision, conduct or failure to make a decision (ss 5–7). This is defined to include a person ‘whose interests are adversely affected’ by the decision, conduct or failure (s 3(4)). While this standing rule differs in

form from those applying in respect of the constitutional and other remedies, it has been said that it is no narrower.

An order of review may contain any one or more of the features listed in that section. It allows orders which are effectively in the nature of certiorari, prohibition, mandamus, declaration or injunction, but without any of the technicalities arguably surrounding some of those remedies at common law/equity.

However, a judge's power to fashion the remedy to fit his conception of the justice of the case is not completely at large. Thus, in Minister for Immigration & Ethnic Affairs v Conyngham (The Platters Case) (1986) 68 ALR 441, the Full Federal Court indicated that although section 16 certainly conferred power upon the court to fashion a remedy which required a Minister to exercise a discretion in a particular way e.g. by directing the issue of a licence or the making of a payment), this was not an appropriate course of action in the instant case.

The effect of Wilcox J.'s order at first instance had been to convert policy guidelines into a legal requirement. The statute vested the Minister with a discretion, which he and not the court should exercise. The court should not fashion an order which substantively enforced mere policy guidelines as if they were legal requirements: the Minister is generally free to depart from policy guidelines (although he may be obliged to provide procedural fairness before doing so -- see Haoucher). As Sheppard J. said (at 453):

"Wide though the provisions of section 16 of the Act are, they do not in my opinion authorise the making of a declaration unless what is being declared is a right in the true sense of the word. The guidelines themselves conferred no rights. They operated only to indicate to those administering the Act and to those who might be concerned to apply for the temporary entry of entertainers the manner in which the application for a temporary entry permit would usually be dealt with."

Park Oh Ho v Minister for Immigration & Ethnic Affairs (1989) 167 CLR 637, illustrates the obverse side of the coin: parties who had established that their immigration detention was unlawful were entitled not only to an order which set aside the initial detention order (thus entitling them to be released), but also to an order positively declaring the period of detention they had already served as unlawful (thus potentially grounding a claim for damages for wrongful imprisonment).

Lastly, although the ADJR Act makes no mention of the court's discretion to refuse relief notwithstanding that grounds have been made out, it is clear that such a discretion exists on at least as broad and flexible a basis as applies to prerogative writs or equitable remedies (as to which see later): see Lamb v Moss (1983) 49 ALR 533.

General Law

Certiorari and Prohibition

1. Introduction

Certiorari and prohibition probably remain the two most important remedies in judicial review, although the simplicity and flexibility of the declaration certainly makes that remedy a very attractive one. Of course, for most federal decisions the choice will be ADJR review where there is a single flexible remedy: the "order of review" (see above).

A writ of prohibition restrains the person to whom the writ is directed from doing something unlawful that is proposed to be done or from continuing to do an unlawful act already begun. The ground on which the writ is issued is that the decision or conduct under review is infected by a jurisdictional error so that it has no effect at law.

An order for certiorari has two parts: to remove the official record of the impugned decision into the court making the order; and then, if the action is found to have been unlawful, to quash the impugned decision. This remedy is appropriate if a decision has some legal effect but is liable to be set aside for breach of a ground of review. In such a case, the remedy can be said to wipe the slate clean.

An order for certiorari is usually coupled with a writ of mandamus to direct that the matter be considered afresh according to law.

It is evident, then, that prohibition and certiorari are closely related, and the question of which is appropriate turns on whether the official conduct has concluded and been fully implemented. When a decision has been made but no further action is pending, certiorari alone might suffice. When unlawful conduct is proposed or is occurring, prohibition might be the more suitable remedy. An added feature of certiorari is that it can be used to quash a decision that is infected with an error of law, even though that error is not a jurisdictional error provided the error appears on the record.

The standing rules for certiorari and prohibition are generally considered to be the same. A party to the impugned decision-making process will have standing. A stranger to that process can have standing subject to the discretion of the court. Generally, if a stranger has a personal interest in the outcome of proceedings or would be adversely affected by the outcome, standing is more likely to be granted.

However, at State level (at least in States other than Victoria and New South Wales ADJR-like statutes are available) and for review in the High Court's original judicial review jurisdiction under section 75 (v) of the Constitution, the common law prerogative writs (or orders in the nature thereof) remain critically important.

In most States and Territories, one no longer seeks prerogative writs as such, but rather "orders in the nature of prerogative writs".

The proceedings are then dealt with like any other proceeding on originating motion, which means that there generally will not be any pleadings or discovery and that the matter is heard on affidavit evidence. Where it is considered necessary or desirable for there to be pleadings and discovery, it is possible to make an application under Rule 4.07 to have the proceedings continue as if they had been commenced by writ.

Examples of situations where such a procedure might be adopted include where one is seeking ordinary common law remedies like damages for negligence or breach of contract against the government as well as judicial review remedies (although that situation can also be dealt with by commencing separate proceedings by writ and then seeking an order that those proceedings and the judicial review proceedings be heard together).

Another example is the situation that existed in R v Toohey; Ex Parte Northern Land Council (1981) 151 CLR 170, where the applicant asserted that a decision to extend the town boundaries of Darwin had been made for an improper purpose (to frustrate an Aboriginal land claim) and that discovery was likely to result in production of documents that would establish the assertion.

By comparison, in jurisdictions which retain the prerogative writ procedure properly so-called (e.g. the High Court), one must generally make an application for an order nisi for the prerogative writ in question.

This is effectively an application for leave to proceed, with the application being dealt with on affidavit evidence where the task of the judge is essentially similar to that applicable to an interlocutory

injunction i.e. you simply have to establish that there is a serious question to be tried and the order nisi will then normally be granted.

The matter then proceeds to a full hearing (also generally on affidavit evidence) where, if successful, the remedy granted will be an order absolute for the prerogative writ in question.

2. The nature of Certiorari and Prohibition

Both certiorari and prohibition had their origins in supervision by superior courts of the actions of inferior courts (and later tribunals  exercising judicial or quasi-judicial functions). However, as we will see later, the scope of both remedies has gradually been extended to a reasonably wide range of decision-makers being neither courts nor tribunals. Nevertheless, some traces of the historical origins of the remedies still remain (see below at point 12).

Certiorari is in essence a two part remedy.

The first part is an order removing the official record of the impugned decision-maker into the superior court issuing the certiorari order.

The second part is an order quashing or expunging the impugned decision, and the record thereof. That is, certiorari is used to wipe the slate clean.

Prohibition, on the other hand has a largely negative aspect. It prohibits the impugned decision-maker and those relying on the decision from doing something illegal which they are about to do, or from continuing on an illegal course of action already commenced.

Accordingly, the main difference between certiorari and prohibition is in the timing of the application to the court. Certiorari cannot be used until there is something to quash e.g. a decision, or warrant. Prohibition can be granted before then, at a time when the decision-maker has not reached a final or otherwise quashable decision.

Indeed, prohibition can only be used where there is still something remaining to be prohibited. The remedies therefore largely overlap, and are commonly sought cumulatively or in the alternative. Certiorari and prohibition would both be sought, for example, whenever a final decision contemplates the taking of further steps to enforce it. Both remedies would also be sought where, although the final decision needs no further enforcement, it is still operating to the applicant's disadvantage.

3. The Effect of Certiorari and Prohibition

Certiorari quashes the impugned decision. It does not compel the decision-maker to start again. Mandamus should also be sought, where that is wanted. Nor can a certiorari application be regarded as analogous to an appeal. It is merely an application for judicial review of the decision, so that the superior court cannot substitute its own decision for that which is quashed.

A certiorari order operates retrospectively, in the sense that once the order is made the quashed decision is treated as a nullity from the moment it was first pronounced.

Sometimes, this could produce great inconvenience and injustice (e.g. where many parties have organised their affairs in reliance on the quashed decision). In such a situation, the court might be minded to grant only a declaration and not certiorari, which will then make the court's decision effectively only prospective. Although there are some precedents for granting certiorari but suspending its operation for some time (to allow the administration to get its house in order), it has also sometimes been doubted that the effect of certiorari can be suspended in this way. In one notable case, the High Court declined to grant certiorari to quash an unconstitutional order because many third parties had acted on the faith of that order, but issued prohibition to stop further steps to enforce it. See Re Wakim; Ex parte McNally (1999) 163 ALR 270.

Prohibition is simply a negative or restraining order (a little like an injunction). It does not quash anything. The court can grant a partial prohibition where the applicant asked for an unlimited prohibition. The court can also grant a partial certiorari, that is, an order quashing part only of the impugned decision.

Mandamus -- Orders to Perform Duties

1. Introduction

The prerogative writ of mandamus is a judicial command addressed to and compelling the respondent to perform a public duty.

This remedy is particularly appropriate if the person responsible for discharging the public duty either has failed to perform it or has constructively failed to perform it—in the sense that any purported performance was infected with jurisdictional error and was therefore not a legally effective performance of the duty.

The test for standing of a person who seeks a writ of mandamus has been variously described as requiring a ‘specific legal right’, ‘legal right’, ‘real interest’ and ‘special interest’. It is generally considered stricter than the standing rules applying to certiorari and prohibition.

A tribunal invested with jurisdiction to hear and determine a matter will almost always be under a positive duty to entertain a matter within its jurisdiction. The tribunal cannot capriciously decline to hear a case. Jurisdiction to determine a matter includes a duty to hear it -- see Re Jarman; Ex Parte Cook (1997) 188 CLR 595.

The remedy is ancient and retains significant technicalities, so that other remedies especially declaration are usually more attractive. However, mandamus is still frequently granted in the High Court's original jurisdiction, pursuant to section 75 (v) of the Constitution (it is a remedy expressly granted to the High Court). Mandamus has become even more popular having regard to the High Court's decision in Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 (16 November 2000), which significantly liberalised the criteria for grant of what are now to be referred to as "constitutional writs" (rather than "prerogative writs" where one is seeking relief under section 75 (v)).

2. The Demand and Refusal

The older case law required the mandamus applicant to prove that they had demanded that the respondent perform the relevant duty, and that the respondent had actually or constructively refused. This was said partly to be because it was felt that the respondent should not be sued without first being clearly warned, and partly to ensure that they had been no way for of entitlement to performance.

However, it now seems that proof of a distinct demand should be seen rather as a matter of evidence, relevant to the question of whether the respondent actually or constructively refused to perform the relevant duty, rather than as an inflexible requirement -- see Re Media, Entertainment and Arts Alliance; Ex Parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379.

For example, where a Family Court judge, at the parties' suggestion, had made a consent order denying that he had jurisdiction to hear a matter, specifically so that the issue could be tested in the High Court by mandamus application, the Court suggested that there had been no

"refusal" to exercise jurisdiction -- see R v Ross-Jones; Ex Parte Beaumont (1979) 141 CLR 504.

Another obvious example is that the expiry of a statutory deadline for performing a duty makes it pointless to seek a mandamus to compel it performance, unless the Court can treat the time limit as directory.

Sometimes it is possible to infer a refusal to perform the relevant duty from the official's conduct e.g. prevarication or progress donation. However, whether underlying amounts to a refusal is a question necessarily depending on the facts and treat context of each case.

Whether an official is guilty of an actual refusal to perform his/her duty is a question of fact. However, whether a "constructive refusal" to exercise jurisdiction has occurred as much more to do with legal questions about the extent of the official's power, than with the facts.

In the case of constructive refusal, a purported performance of the duty is treated as an instance of the official declining or refusing to perform it at all, because their purported performance is legally void. See R v War Pensions Entitlement Appeals Tribunal; Ex Parte Bott (1933) 50 CLR 228 at 242-243 per Rich, Dixon and McTiernan JJ:

"A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to know performance because he misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him."

Whether the refusal or failure to perform a duty is actual or constructive, it is clear that it must precede the institution of the mandamus proceedings. See e.g. R v Commissioner of Metropolitan Police; Ex Parte Blackburn [1968] 2 QB 118.

3. Bodies or people to whom Mandamus Lies

Although one generally refers to the mandamus respondent as an "official, even a private person can be a respondent to the extent that they bear a public duty -- see e.g. Re O'Rourke (1986) 7 NSWR 64.

Unlike certiorari and prohibition, mandamus has never generally been regarded as limited to cases where the respondent's powers can be classified as "judicial" or "quasi-judicial". Thus, it seems that mandamus is available in respect of a magistrate's decision on whether to commit a defendant to stand trial, even though that decision might be immune from certiorari or prohibition (at least arguably -- see above).

4. Crown Servants: A Vanishing Immunity

Mandamus originally did not lie against the Crown, or against its servants or agents acting as such. This was because of the Crown's general common law immunity from suit, and because it was thought incongruous for an order in the sovereign's name (as mandamus was) to issue against the sovereign.

However, as Crown immunity from suit at common law has come to be eroded, so too has Crown immunity from the prerogative writ of mandamus.

Aronson & Dyer suggest that the Court would probably hold that there is no Crown immunity, except, perhaps, for a small range of duties performed by the Governor General or Governors (see 2nd edition page 586).

In Commissioner of State Revenue (Victoria) v Royal Insurance Aust Ltd (1994) 182 CLR 51, the mandamus applicant had paid too much stamp duty for a number of years. It wanted a refund, which the Commissioner was empowered to make, once she had determined the fact and amount of overpayment. The Commissioner made the necessary determination but refused the refund. The Court rejected an argument that mandamus did not lie to compel the payment of government moneys, because of Crown immunity, but did not specifically state that Crown immunity no longer applied.

R v Toohey; Ex Parte Northern Land Council (1981) 151 CLR 170 accepted that applicants can allege bad faith and improper motives against the Crown but did not clearly determine whether Governors etc were subject to certiorari or mandamus. Gibbs CJ suggested (at CLR 186) that "on the present state of the authorities", certiorari and mandamus might not lie.

In FAI Insurances Ltd v Winneke (1982) 151 CLR 342, the Court held that it was improper to seek declaratory relief against the Governor, or the

Governor-in-Council, and that the Attorney-General (as representing the Governor) was the appropriate defendant.

Thus, on the present state of authorities, the safest thing to do when one is seeking mandamus against the Governor etc (or against any body which might be held to be the "Crown") is to seek in the alternative a declaration against the Attorney-General.

5. Commonwealth Officers as Respondents

Note that section 75 (v) of the Constitution gives the High Court jurisdiction in all matters in which mandamus is sought against an officer of the Commonwealth. The Federal Court also shares this jurisdiction as a result of section 39B Judiciary Act 1903 (Cth).

Note that Family Court and Federal Court Judges are "officers of the Commonwealth" for the purpose of section 75 (v), as are Commonwealth Ministers and royal commissioners.

Also note the High Court's liberalisation of the grounds for grant of the "constitutional writs" (including mandamus) in Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 (16 November 2000).

6. The Nature of the Duties Enforced by Mandamus

Mandamus lies to compel performance of a public duty which is justiciable and unperformed. A power (discretion) is not a duty, and a statute which says "may" usually grants only a power. Mandamus is nevertheless frequently issued in context where the statute has said "may".

Whilst "may" indicates a discretion, the repository of the discretionary power is usually under a duty at least to consider its exercise, where an appropriate request is made and may sometimes even be under a duty to exercise it in a particular way if there is no permissible reason indicating why should not do so. In the latter situation the discretion has effectively run out: the repository of a discretionary power cannot exercise or declined to exercise it on arbitrary or otherwise impermissible grounds.

Thus, in Commissioner of State Revenue (Victoria) v Royal Insurance Aust Ltd (1994) 182 CLR 51, the High Court granted mandamus to compel the Commissioner to exercise of a statutory power to refund overpaid stamp duties. The Commissioner had relied upon the fact that

the relevant Act merely said that she "may" refund the money, once she had determined (as she had) the fact of overpayment, and the amount.

The Court said that this was misconceived. The power to refund was indeed discretionary, but it was a discretion which could be exercised only on relevant considerations. There being no permissible considerations in favour of refusing a refund in this particular case, the discretion in that regard had effectively run out: there was only one course lawfully open to her.

Mandamus could therefore be granted, not just to command her to consider the refund application according to law (the usual form of an order of mandamus where there is a discretionary element), but to command the refund itself.

A judicial officer who thinks that he/she cannot hear a matter because of reasonable apprehension of bias when that is not the case can be compelled to hear the matter by mandamus -- see Re Polites; Ex Parte Hoyts Corporation Ltd (1991) 173 CLR 78.

In Ward v Williams (1955) 92 CLR 496, the Court distinguished between a duty to do an act, and a duty to exercise a discretion. Both duties can be commanded by mandamus, but there is a huge difference in the legal consequences of the form of mandamus granted in each case.

A mandamus limited to commanding a rehearing cannot guarantee that the litigant will get the desired result the second time around, because the mandamus will not compel the manner of a discretion's exercise.

Thus, a revenue officer's discretionary power to assess the value of a dutiable transaction will not attract a mandamus compelling the making of a particular assessment -- see Cuming Campbell Investments Pty Ltd v Collector of Imposts (Victoria) (1938) 60 CLR 741. But compare the Royal Insurance case discussed above. Thus, where a litigant is unsure whether the relevant official has any discretion, it would be advisable to seek mandamus in alternative forms, one commanding the exercise of a discretion, and the other commanding the doing of a particular act.

Lastly, it must be remembered that the duties which mandamus enforces must be public (as opposed to private). That will usually mean that the duty must be sourced to a statute (as opposed to the prerogative or a contract).

Thus, in Barnett v Minister for Housing and Aged Care (1991) 31 FCR 400 the court declined to grant mandamus to compel the making of a grant or even the making of a decision regarding grant eligibility, because the relevant grant programme was entirely non-statutory.

Note, however, that non-statutory (i.e. prerogative) exercises of power may be subject to judicial review by other remedies e.g. injunction or declaration -- see Minister for Arts, Heritage and the Environment v Peko-Wallsend Ltd (1987) 75 ALR 218. Duties sourced solely in contract are usually private, and therefore beyond the reach of mandamus.

Thus, Windeyer J indicated in Belcaro Pty Ltd v Brisbane City Council (1963) 110 CLR 253 at 263 the council's duty to construct a drain would be public if imposed by Ordinance, but private if imposed by contract. Even before the partial privatisation of the telecommunications industry, Telstra's statutory obligation to maintain telex equipment hired from it by its customers was described as "private" and therefore not compellable by mandamus -- see John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] 2 NSWLR 400 at 406.

On the other hand, Nader J. held in Nicholls v Thiel (1983) 25 NTR 11 that the government insurance office's statutory obligation to indemnify negligent drivers could, if necessary, be enforced by mandamus at the suit of a plaintiff to whom a driver was liable. His Honour regarded both the insurer and its obligation as public.

7. The Effect of Mandamus

Generally speaking, mandamus consists of an order to do a positive act, rather than to desist from doing something (for which prohibition or injunction would be appropriate). Generally also, the relevant duty should not be of a continuing nature. Mandamus has no quashing effect and thus cannot undo something which has already been done. If you need to quash a decision you should seek certiorari or exercise a statutory appeal right (if available).

8. Discretionary Grounds for Refusing Mandamus

The court has a broad discretion to deny mandamus to an applicant, even where a good case has been made out. Appellate courts are reluctant to interfere with the primary judge's exercise of that discretion. In fact, it has sometimes been suggested that the court's exercise of this discretion "cannot be questioned" (although that is certainly putting it too high).

Grounds which have been held to be sufficient to refuse relief on discretionary grounds include:

delay; matters personal to the applicant; the conduct of the parties; inequitable and improper objects; absence of real and substantial injustice; absence of any "real merit" in the applicant's case; bad faith on the part of the applicant, either in the transaction out

of which the duty to be enforced arises or towards the court to which the application is made;

past approval by the applicant of the impugned conduct (waiver?); unwillingness of the court to intervene in pending criminal

proceedings; fraudulent or improper objects or conduct; "improper motivation" The reasonable availability of other remedies, having regard to:

*their comparative benefits and disadvantages, including their scope, timeliness and expense

*the applicant’s motives – trying to obtain a tactical benefit

*hardship to and the circumstances of the applicant

*statutory indicators

*other indicators such as abuse of process.

Thus, in Ex Parte Mullen; Re Wigley (1970) 91 WN (NSW) 497 the court refused to grant mandamus to a prosecutor in a private prosecution for draft dodging during the Vietnam War, to compel the imprisonment of the convicted person for non-payment of a fine. The prosecutor and defendant had colluded in the private prosecution to create a scapegoat or cause celebre to highlight the injustice of conscription.

Mandamus was originally regarded as a remedy of last resort, a remedy which would be granted when no other remedy was available. Thus, an applicant for mandamus should first exhaust all avenues of administrative redress (e.g. internal and external merit review).

In addition, mandamus might be refused on discretionary grounds if an effective alternative judicial review remedy is also available. Thus,

mandamus should generally be sought along with other alternative remedies e.g. certiorari, prohibition, injunction, declaration.

9. Statutory Mandamus

Note the availability of "statutory mandamus" in some Australian states e.g. Section 65 of the Supreme Court Act 1970 (NSW) states:

“The Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested.” See Dickinson v Perrignon [1973] 1 NSWLR 72.

In this case, Street CJ in Eq stated:

“Where appropriate, as in a case such as the present, the substantive law underlying the grant of prerogative writs would have relevance to the exercise of jurisdiction under ss 75 and 65. But the Court is relieved from the burden of evaluating a significant part of the technical and procedural considerations that have arisen to encumber rather than to enable the exercise of the Court’s supervisory powers.”

10. ADJR's Equivalent of Mandamus

The ADJR Act provides for the equivalent of mandamus. Section 7 of the ADJR act provides:

"7. (1) Where --

(a) a person has a duty to make a decision to which this Act applies;

(b) there is no law that prescribes a period within which the person is required to make that decision; and

(c) the person has failed to make that decision,

a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Court for an order of review in respect of the failure to make a decision on the ground that there has been unreasonable delay in making the decision."

Section 3 (1) defines "failure" to include "a refusal to make a decision". Query therefore whether the ADJR Act imports the common law

mandamus requirement for a refusal to make a decision (as opposed to a mere "failure").

Under the ADJR Act and at common law, there will be a failure or refusal to decide or act once any deadline has passed or if a delay is excessive, in terms of being ‘capricious and irrational” in the circumstances.

Declarations

1. Introduction

A declaratory order or judgment is simply a court's declaration or statement resolving a dispute as to the meaning or application of the law applicable to a situation in which the applicant has a sufficient interest. In a strictly technical sense, the order or judgment has almost no mandatory or restraining effect at all.

The standing rule for a declaration is the same as that for an injunction. A person must have a ‘special interest in the subject matter of the action’ in order to have standing to seek one of these remedies. Although this test is generally considered stricter than that for the prerogative remedies discussed earlier. See Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493.

The orthodox view is that whilst declarations are often accompanied by consequential relief ordering or restraining certain conduct, a mere declaration cannot be executed or enforced. Theoretically, a declaration neither commands nor restrains action.

It was not until the 20th-century that the remedy of declaration first began to be used in the field of judicial review of administrative action.

However, the case law has now developed to a point where the jurisdiction to grant declarations is really only limited by the usual discretionary factors applicable to other remedies, and to factors such as standing and justiciability.

The equitable remedies of declaration and injunction became available in common law judicial review proceedings as a result of the Judicature Act reforms in the UK, subsequently adopted in all States and Territories of Australia at various times (see Aronson & Dyer 2nd edition page 636 footnote 23).

The first case where the potential of the remedy was realised was Dyson v Attorney-General [1911] 1 KB 410, where Mr Dyson and 8 million other taxpayers received a government warning of criminal prosecution if they did not answer all the questions in a land tax return. Dyson commenced an action by writ and statement of claim against the Attorney-General (as representing the Crown), claiming bare declarations that he could not lawfully be compelled to complete the return.

He could have presented this argument as a defence to a criminal prosecution, but understandably regarded it as preferable to ascertain his rights without risking a conviction. The Court of Appeal held that Dyson could maintain his action despite his inability to claim consequential relief.

Thus, because Dyson held that declaratory relief is available when no consequential relief could be granted, it impliedly ruled that it is permissible to sue for a declaration in the absence of a cause of action. That proposition was confirmed in Australia in Sankey v Whitlam (1978) 142 CLR 1, where Gibbs ACJ said (at CLR 23) "The word 'right'... is used in a sense that is wide and loose." However, although "right" is used in a sense broad enough to go beyond any legal bonds/relationship between the parties, it is still said to be confined to the "sphere of legal relations".

This is in part because of the High Court's conception of the constitutional requirement for separation of judicial power and the meaning of the word "matter" in Chapter III (which effectively requires a real "controversy" of some sort). Thus, Gaudron, Gummow and Hayne JJ said in Egan v Willis (1998) 195 CLR 424 at 439:

"Declaratory relief should be directed to the determination of legal controversies concerning rights, liabilities and interests of a kind which are protected or enforced in the courts. This is so even though in the area of public law the ground of equitable intervention has not been limited to the protection of any particular proprietary or legal entitlement of the plaintiff."

The English Court of Appeal has observed somewhat more honestly that: "Collectively, these cases appear to constitute the development of a new advisory declaratory jurisdiction." Our High Court is unable to be quite that blunt because of its conception of the requirements of Chapter III as precluding advisory opinions -- see In Re Judiciary and Navigation Acts (1921) 29 CLR 257.

Thus, in Ainsworth v Criminal Justice Commission (1992) 174 CLR 564 Mason CJ, Dawson, Toohey and Gaudron JJ said (at CLR 581-582):

"It is now accepted that superior courts have inherent power to give declaratory relief. It is a discretionary power which ' [i]t is neither possible nor desirable to fetter... by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which may get the boundaries of judicial power. Hence declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have a 'real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties'."

2. The Declaration's Procedural Advantages

Given the enormous scope for declaratory relief, it has become perhaps the most popular judicial review remedy. There is no need to ponder most of the technicalities attending orders in the nature of prerogative writs. Moreover, discovery used to be freely available in a claim for declaratory relief, but rarely in prerogative proceedings.

However, most Australian jurisdictions have changed their discovery rules, narrowing the gap in this regard. Similarly, oral evidence was only exceptionally available in prerogative proceedings, whereas it was available as a matter of course in declaratory proceedings.

Lastly, the limitation period for declaratory relief is usually either six years or three years in most States and in the Federal Court, whereas time limits for prerogative relief (though extendable) are usually limited to a matter of months.

In most situations there is probably little procedural or evidentiary advantage these days in claiming a declaration (as opposed to orders in the nature of prerogative writs), but the declaration retains its advantages both as to standing rules and as to its scope and lack of technicality. 

It is the only remedy applicable to virtually all challenges to the legality of government decisions and conduct. Kirby J. said that the declaration's development "is one of the most important and beneficial adventures in the administration of justice during this century" -- see Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 at paragraph 89.

3. The Discretion to Refuse Declaratory Relief

Lockhart J. summarised the factors governing the discretion to refuse declaratory relief in Aussie Airlines Pty Ltd v Australian Airlines Limited (1996) 139 ALR 663 at 670-671:

"For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows:

(a) The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies. The answer to the question must produce some real consequences for the parties.

(b) The applicant for declaratory relief will not have sufficient status if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen'; or if the Court's declaration will produce no foreseeable consequences for the parties.

(c) The party seeking declaratory relief must have a real interest to raise it.

(d) Generally there must be a proper contradictor.

These other rules should in general be satisfied before the Court's discretion is exercised in favour of granting declaratory relief."

The declaration can also be granted in advance of any damage arising -- see Re Trade Practices Act 1974 (s 163A) (1978) 19 ALR 191 at 208 per Brennan J. This means that it may sometimes be rather a fine distinction as to whether the relief being sought is "hypothetical" or not (and therefore not a fit subject for judicial power).

For example, in Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297, Barwick CJ said (at 305):

"The jurisdiction to make a declaratory order without consequential relief is a large and most useful jurisdiction. In my opinion, the present was an apt case for its exercise. The

respondent undoubtedly desired and intended to do as he asked the Court to declare he lawfully could do. The matter, in my opinion, was in no sense hypothetical, but in any case not hypothetical in a sense relevant to the exercise of this jurisdiction. Of its nature, the jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of contract or a law. Indeed, it is that capacity which contributes enormously to the utility of the jurisdiction."

The limitation on the scope of declaration, however, is illustrated by Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399. The applicants alleged that they were victims of various contraventions of Commonwealth and State legislation prescribing misleading and deceptive conduct. The proceedings related to a NSW State government first home-buyers' scheme and operated through a range of private sector participants.

Questions arose concerning inter alia State government immunity. The primary judge referred the matter to the Full Court of the Federal Court, which gave answers in declaratory form. However, the High Court held that it was inappropriate for the Full Court to have answered questions relating to the liability of the private sector respondents because they had been too hypothetical. The respondents had not yet pleaded, no evidence had been taken, and there was no agreed statement of facts.

The answers were therefore held to have been hypothetical or advisory (and thus not an exercise of judicial power - see In Re Judiciary and Navigation Acts). They merely stated some legal propositions, which might or might not apply depending upon facts neither proved nor even pleaded.

The declaration can also be refused where it would be of little or no use, but courts are usually reluctant to characterise proceedings as useless. Thus, the plaintiff in Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 had been unlawfully forced to resign from the police force and wanted to be reinstated. The House of Lords lacked jurisdiction to grant such an order, but was able to pave the way for compensation proceedings by declaring that he had been wrongfully dismissed.

Declaratory relief may also be granted to vindicate reputation where it is too late to grant other relief (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564), or even perhaps where other relief was never available.

On the other hand, the Federal Court refused in an immigration matter to grant a declaration where it could not affect the decision itself and where there was no indication from the Minister that he would reconsider the matter even if the declaration were granted (indeed the history of such immigration matters suggested that the Minister was most unlikely to do so) -- see Minister for Immigration & Multicultural Affairs v Ozmanian (1996) 141 ALR 322.

Similarly, in Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201 the court refused to issue a declaration that the department's refusal to approve the transfer of a fishing licence was invalid, because the licence had expired and it was too late to seek its renewal.

4. Range of Respondents

The declaration has the obvious advantage over certiorari, prohibition and mandamus that it lies against virtually any person or body. Thus it will go to a private person, a club, a coroner, a Royal Commissioner, and the Attorney-General as representing the Crown.

As with mandamus, although a Governor's statutory functions (and probably prerogative ones as well) are susceptible to judicial review, the Governor should not be sued directly. Instead, the Attorney-General should be sued as representing the Governor.

Note that there has never been a requirement that respondents in proceedings seeking declaratory relief must be under a duty to act "judicially" cf certiorari and prohibition.

However, declarations cannot be granted against a superior court of general jurisdiction, or against one of its judges acting in his/her judicial capacity (as opposed to as persona designata).

5. Is the Declaration Enforceable?

Declarations are generally regarded as unenforceable except where coercive orders could have been granted in any event without the declaration.

However, it has been said that this does not matter, because it is "inconceivable" that any law-abiding Tribunal, official or citizen would disregard the declaration granted by a superior court -- see e.g. Vine v National Dock Labour Board [1957] AC 488 at 500.

However, the declaration has res judicata and issue estoppel effects as between the parties and can also affect non-parties. Moreover, where a "bare" declaration is granted the court almost always indicates a willingness to grant consequential relief e.g. injunction in the event that the declaration is ignored. See, for example Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355.

6. The Grounds for Declaratory Relief

Although declaratory relief is available in respect of not only existing legal errors but also ones that have not yet occurred, it does appear that the grounds are limited to jurisdictional errors and not non-jurisdictional errors of law. See Aronson & Dyer 2nd edition at page 651 and Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 especially per Hayne J.

Injunctions

Injunctions are available to protect statutory rights and to enforce the statutory obligations of officials or others; the remedy can be issued in prohibitory or mandatory form. An injunction is more flexible than other remedies and can be moulded to the circumstances of the case so as to allow the respondent an opportunity to rectify problems. Injunctions lie for both jurisdictional and nonjurisdictional illegality. See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

According to Aronson & Dyer at Chapter 17:

"The injunction was originally a purely equitable remedy. It is still equitable remedy, although the expansion of the injunctive jurisdiction was inevitable following the introduction of the judicature system, and has expanded even further as specific statutory schemes authorise orders often called "injunctions for particular purposes". The injunction started life in the field of private law, and most of its expansion has occurred there. In that field, its principal functions lie in the protection of pre-existing legal rights and interests. The public law injunction cannot claim the same historical legitimacy as its private law ancestor, although some analysts believe that the essentially private law taxonomy of injunctions can also explain the public injunction... Regardless of how the public law injunction might be theorised, one senses a judicial reluctance to exploit its full potential. The public law

injunction is more used now than then, but its development is disappointing."

The courts will generally only grant an injunction in public law where a statute can be characterised as evincing an intention to grant private statutory rights. Courts are reluctant to grant an injunction to a private person to enforce purely public rights.

However, the range of statutory situations where such private rights have been identified include: the right to prevent publication of evidence; local inhabitants' right to hold a fair or wake every year; the statutory monopolist's right to prevent illegal encroachment upon its monopoly; the exclusive right of occupancy of a stock route for prospecting operations; a landowner's rights to prevent a neighbour building without a valid permit; a statutory tenant's rights; a union member's statutory right to restrain invalid expulsion; a municipal councillor's right to participate in council meetings; and the right to continue to receive normal postal services.

Moreover, some recent High Court dicta suggest that at least some Justices see a considerably broader and more flexible role for the injunction in public law. See, for example, Gaudron J. in Abebe v Commonwealth (1999) 197 CLR 510 at paras 104-105:

"As appears from Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd, equitable remedies have a continuing role in public and administrative law. And in those areas, 'equity has proceeded on the footing of the inadequacy (in particular the technicalities hedging the prerogative remedies) of the legal remedies otherwise available to vindicate the public interest in the maintenance of due administration.'

Given the potential for administrative decisions to impact on existing rights and interests, and, also, on important and valuable statutory rights to which the individual might otherwise be entitled, it may well be that an injunction will lie to prevent an officer of the Commonwealth from giving effect to an administrative decision based on error, even if that error is not jurisdictional error. ..."

Statements by various Justices in Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 also suggest an emerging broader and more flexible view as to the availability of injunction in public law, especially per Kirby J at para 141 (note the paragraph also succinctly summarises

His Honour's view as to the scope and availability of the full range of public law remedies):

"Our search is thus for the essential characteristics of the constitutional remedies afforded by s 75(v). Those essential characteristics are sufficiently described in the reasons of Hayne J. So far as prohibition is concerned, it is "a judicial proceeding in which one party seeks to restrain another from usurping or exceeding jurisdiction". Mandamus commands "the fulfilment of some duty of a public nature which remains unperformed". With today's eyes, we see clearly that a performance by a repository of statutory power (including a federal tribunal) of its functions in breach of the rules of procedural fairness is (at least where the breach is substantial) no true exercise of jurisdiction and power in accordance with law. Such a purported exercise therefore amounts to an excess of jurisdiction. The constitutional writ of prohibition is thus available to restrain it. Mandamus is also available to command the performance of the power and jurisdiction in accordance with law. A constitutional injunction and the ancillary writ of certiorari are available, where necessary, to ensure the effectiveness of the foregoing remedies."

Assuming that it is available, the remedy of injunction offers numerous advantages over other remedies.

First, being an equitable remedy it can, like declaration, be fashioned very flexibly to fit the justice of the situation: it is not hidebound by any of the technical restrictions of the prerogative writs.

Secondly, it can be granted on an interim or interlocutory basis to restrain conduct pending the determination of the substantive issues in the proceedings. Injunction is commonly used to preserve the "status quo ante" until the rights of the situation can be definitively determined.

Note, however, the party seeking an interlocutory injunction will be required to give an undertaking to pay damages, in case he/she is found ultimately not to be entitled to the relief sought and in the meantime damage has been caused to the respondent through being restrained by the interlocutory injunction.

The capacity of the party seeking an injunction to meet a likely damages order may also be an issue at interlocutory stage i.e. an undertaking to pay damages by a party who has no money is not very useful.

Lastly, it should be noted that injunction in public law may be refused as a matter of discretion on the same sorts of grounds as any equitable remedy e.g. laches/delay; fraud; improper purposes or motives; waiver; other forms of disentitling conduct.