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LAWS2160-Administrative Law-Complete Study Notes Phillip Nguyen (z3160257)

Week 1.2 – Controlling the Executive -Administrative law= The body of rules, practices and institutions that regulate the exercise of govt power.-Addresses ideals of good govt (openness, fairness, participation, accountability, consistency, rationality, accessibility of judicial and non-judicial grievance procedures, legality and impartiality.)

Principle components of the Executive:1. The Crown 2. Cabinet: Government (an informal body of ministers)3. Executive Councils - Formal versions of cabinet - it is a constitutional institute.4. Ministers - Elected by the people and selected by the party- head of govt department. 5. Government Departments - No statutory rules on which departments should exist. 6. Public servant - Public Service Act. Must obey minister, be politically neutral, advise the

minister.7. Statutory authorities - includes local govt and administrative tribunals. The powers, duties and

obligations of local governments are governed by statute passed by the state govt.8. Statutory offices – Crown agents. Enjoy all crown prerogatives e.g. Ombudsmen, Auditors-

General.9. QUANGOS - Quasi Autonomous Non Government Organization. Public duties but private

membership via contracts10. Clubs - based more on private contracts.

Accountability in an Administrative State pg. 3-The increase in government control has led to a demand for heightened scrutiny of government, consistent with the democratic ideal that those who elect the government are entitled to call it to account.-Rule: Tribunals cannot make binding decisions like courts do.-Rule of law – challenge legality and propriety of government decisions.-Accountability=Obligations for exec and adm body to comply with law and observe limitation of power. Arise from relationship of responsibilities b/w public servants, minsters and parliament.-Who is accountable? Minister, public servants, govt agencies, tribunals and other review boards.-To whom?

1. Public . External, non-political supervision. 2. Judicial control : courts control the legality of bureaucratic behaviour3. Internal controls : administrators controlled by ministers (responsible to parliament) 4.External controls: independent auditors (Auditor-general), ombudsman

- For what? 1. Provides means to gauge how well govt complies with public expectations2. Allows public to impose obligations on govt (Mulgan, 2000 p7)3. Not aimed to prevent govt from governing: Simply to hold them accountable. Acc test and measure of trusteeship.4. Responsible govt, financial probity, legality, fairness, quality, consistency, honesty and integrity.

-Standard of Accountability: Relates to basic norms, expectations created by govt from its policies AND way public wants business to be committed.

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-Report of Royal Commission pg. 5: How public accountability is rendered:i. Directly to the public, both in their individual capacities and as a community.ii. Agency accountability act for and on behalf of the public.iii. Accountability of agencies to superiors.

Forms of Accountability pg. 8Political Accountability pg. 8-Parliamentary system of responsible government:

Ministers/Executive

Answerable Responsible GovernmentMinisters are head of and controls the Executive, individually (each Cabinet) and collectively(Cabinet as whole) accountable to Parliament.

Parliament

Answerable Representative GovernmentSince Ministers sit in Parliament, indirectly accountable to electorate through representative democracy.

Electorate

-What: Occurs through parliamentary accountability to principle of Responsible Govt. Responsible government incorporates moral and behavioural assumptions regarding how govt act in public interest.-Limitations:(1) Power: The less control Min has over Exec, greater the Exec discretion. Hence, political accountability focused on major policy choices rather than administrative justice in day-to-day decisions making.(2) Effectiveness hinges on control Min exert over Exec: strongest when department headed by Min.; Weakest in relation to independent statutory authorities.(3) Politically accountability contradicts other Accountability: Politically accountability requires govt to be inwardly (party) focused. Hence, duty of the Executive is inwardly focused to serving their elected government, which can diminish their duty towards the public.

♠H V Emy – ‘The Politics of Australian Democracy: Fundamentals in Dispute’ pg. 9- Ministers are individually responsible to Parliament for the affairs of their department – Parliament can call ministers to account for mistakes that occur in their department.- Cabinet is collectively responsible to Parliament and electorate – Parliament and people can dismiss a government that they are dissatisfied with.- Criteria for PA: 1. Ability of MP to question Minister 2. Govt policy info freely available 3. Min can control department. These are not met b/c of party disparity (Parl weaker than Exec, administration secretive, Min dependant on officials). PA inadequate.

Financial Accountability pg. 10- Auditor-General– Verification of the official use of money drawn from the public account (independent of Parliament).

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Governed by Auditor-General Act 1997 (Cth), Commonwealth Authorities and Companies Act 1997, Financial Management and Accountability Act 1997.- Audits of

Financial statements – verify whether government money has been used in accordance with a parliamentary appropriation and in compliance with financial legislation.

Performance audit – efficiency , effectiveness and regularity of government programs, concerning compliance with legislation, implementation of government policy, overall value for money.

-Aim to verify official use of $ drawn from public account. Pivotal in parliamentary role in ensuring proper use of public funds.

Administrative Law Accountability pg. 12-Aim: Safeguard the rights and interest of people and corporations in their dealings with government agencies.- Accountability mechanisms for safeguard:

i. Review of decision making. (1) judicial review in Courts, (2), merits review in Tribunal (3) Ombudsman, (4) internal review within agencyii. Protection of information rights – FOI legislationiii. Public accountability of government processes – Anti-corruption agencies, human rights commissions, specialist government inquiries, statutes regarding making of subordinate legislation.

- Three principles underpinning administrative law system:1. Administrative justice – rights and individuals of public should be safeguarded2. Executive accountability – those who exercise executive and coercive powers are accountable to public 3. Good administration – decision making should conform to universally accepted standards, such as rationality, fairness, consistency and transparency.

Sir Anthony Mason-‘Administrative Review: The Experience of the First Twelve Years’ pg.16 i. Effectiveness of Adm review: simplified court access, so govt more answerable.

ii. Parliamentary weakness : Parliament concentration on broad issues results in little space for supervision of adm action. Minister (therefore parliament) can’t adequately oversee their department.

Accountability Through Ethics and Integrity pg. 17- Legislation spells out values underpinning public service.- Redefinition of values to include a more comprehensive list that places far greater emphasis on the responsibility of public officials to serve the public and to observe principles that are also recognisable as core public law values.- Aim: Protection against inefficiency, fraud, corruption, infringement of HR etc (APS 2003) p19

The Historical Foundations of Australian Administrative Law pg. 22- The Admin Decision (Judicial Review) Act 1977: 1. What : General Admin Tribunal for MR of admin decisions. (ss5-7) Act not

intended to authorize judicial review of delegated legislation, but Fed Govt prepared to consider validity of delegated legislation made under Legislation.

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2. Act essentially codified CL : Introduced significant improvements to judicial review: 1. Possible to get reasons for decisions where ADJR applies 2. Remedies under ADJR simpler than CL 3. Challenges to decisions of Governor-General available at CL only.

Admin Appeals Tribunal: Empowered to review specified exercises of discretion, also reasons for decision are available and able to substitute its decision for that of original decision maker.Admin Review Council: Independent advisory with general supervisory oversight over admin review. Function is to carry out research and make recommendations on admin matters.

R Creyke & J McMillan-‘Administrative Law Assumptions-Then and Now’ pg. 25 Adm system coherent and integrated: Review extends to issues of substance and

procedure. Reviewable by multiple bodies, reflecting emphasis on protecting citizen against improper exercise of govt disc power. This not fully realise as O not given advocacy role. (p26)

Adm T central to Adm review: Unfortunately courts still at centre of adm law. Review of Adm action undertaken by ind external agencies: Now handled internally. Review of Adm action expert function: partial implementation but no move to create Adm

law division OR specialist bench within Federal Court. Adm law review mechanism uniform national application to Cwth Adm decision

making: move away from uniformity. No longer single ombudsman for cwth matters. Adm Law Review should result from aggregate individual challenge

Accountability Across the Public/Private Divide pg. 28-Govt increasing devolving duty to private sector:1. Privatisation : agency wholly or partially under private ownership (though sale or float of

govt shares; see Telstra)2. Commercialisation : Govt imposes private sector business structure on agency

owned/controlled by govt. Agency known as Govt Business Enterprise (GBE)3. Contracting Out : Govt service delivered to public by private body in contract with govt

agency. Accountability Issues:

1. What : Adm law statutes confined to Govt agencies (haven’t been amended). Unclear if judicial remedies applicable to private sector.

2. Apply : Although responsibility to do certain act can be transferred, accountability can’t. p30

3. Don’t Apply: GBE not in position to make govt decisions. (Adm review Council, 1995) p30

Migration Act 1958 -Migration act sets ground on when minister can reject a visa.-Decision to revokeno need for explanation or excuse.•Section 3:-Outlines the power of the minister-A lot of discretionary power in the act. Use of word “may”.

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Week 2.1 – Legality: Rules, Discretion & PolicyUnauthorised Decision-Making pg. 366-Government agencies need legal authority for any action they undertake- the ‘principle of legality.’- Most of this authority is legal authority (legislation) but executive authority (non-statutory) also provides authority for government activity.-Ultra vires= beyond the power

General Principles pg. 367The Scope of the Principle of Legality-Government action is invalid if there is no legal authority to support it (ADJR Act s59(1) b-f)-Much government action does not have statutory authority to support it but relies on the executive power of the government (Vadarlis)-This is best enshrined in the Administrative Decisions (Judicial Review) Act, an order of review can be sought on the following grounds:

◦5(1) (b) that procedures that were required by law to be observed in connection with the making of the decision were not observed; ◦5(1) (c) that the person who purported to make the decision did not have jurisdiction to make the decision; ◦5(1) (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;◦5(1) (f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

Different forms of government legal entity: pg. 3681. Executive agency – established by executive action, such as government

departments, through (1) legislation conferring power on officers of the agency or (2) executive power; e.g. government departments, boards, councils, committees etc.

2. Statutory agency – established by an Act of the Parliament, which limits the powers of the agency since it is a creature of the statute; e.g. ASIC

3. Government corporation – established in accordance with the Corporations Act 2001 (Cth) and has the legal capacity of a natural person. It is not subject to ultra vires doctrine. Legislation confers powers or imposes limitations on the functions of the government corporation.

Executive Power as a Source of Legal Authority for Government Action pg. 377-Executive power/prerogative power/inherent power/common law power - the functions of the government which are non-coercive and facilitatory in nature and can be undertaken without statutory backing, eg rent premises, employ staff, conduct inquiries, etc-The government can derive legal authority from the fact of its existence and role, and not from legislation – this can be traced to s61 of the Constitution:

“The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth”

-Prerogative power =special non-statutory functions that only the Crown can exercise as a residue of English history, such as entering into treaties, declaring war, pardoning criminal offenders and bestowing honours.

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http://www.austlii.edu.au/au/legis/cth/consol_act/adra1977396/s3.html#enactment


-Executive power = non-statutory powers that the Crown can exercise in common with other legal persons, such as the execution of contracts.-Government agencies established by executive action rather than legislation: ASIO, CSIRO, Human Rights Commission.

●Clough v Leahy (1904) (HCA) pg. 379▪Facts: The NSW Governor, by an exercise of common law authority to issue Letters Patent, could establish a commission of inquiry into whether criminal offences had been committed by the Machine Shearers and Shed Employees Union.▪Griffith CJ (Barton & O’Connor JJ): -Rule: The Executive Govt. cannot make lawful the doing of an unlawful act.-If persons acting under a Commission from the Crown were to do acts which, if done by private persons, would amount to an unlawful interference with the course of justice, the act would be unlawful and would be punishable.- Power of inquiry is not a prerogative right The power of inquiry is a power which every individual citizen possesses and provided that in asking these questions, he does not violate any laws, the Court cannot prohibit him from doing so.

Constraints on Executive power:1. It can be overridden by and cannot be exercised inconsistently with statute

(Barton v Commonwealth (1974))2. Cannot justify a governmental act that would be actionable at common law3. Executive power will not authorize government action that is coercive,

punitive, intrusive or threatening in nature (Chu Kheng Lim)

●Minister for Immigration and Multicultural Affairs v Vadarlis (2001) Federal Court (2001) (Full Federal Court of Aust.) pg. 380▪Facts: - MV Tampa rescued 433 people from a fishing boat that was sinking in international waters between Indonesia and Australia.-Tampa ignored request by Australian authorities not to enter Australian waters surrounding Christmas Island.-Vessel boarded by 45 Special Air Services troops who took charge of vessel and prevented further movement.▪Prior Proceedings: -TJ found that rescuees were being unlawfully detained by the Commonwealth and made an order that they be brought ashore on the Australian mainland-Federal Court held that the action taken was an exercise of executive power that was not abrogated by Migration Act 1958 (Cth)▪French J:-The executive power of the Commonwealth would extend to a power to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion.- It is so central to Australia’s sovereignty that it is not to be supposed that the Government of the nation would lack the ability to prevent people not part of the Australian community from entering.-Rule: Prerogative powers could be abrogated or written over by statute.- Held: Migration act did not abrogate the executive power. Action taken by the executive in relation to Tampa was within scope of executive power and did not amount to restrain amenable to habeas corpus.-Legislative powers include powers to make laws with respect to naturalization and aliens (s 51(xix), immigration and emigration (s 51 xxvii) and the influx of criminals (xxviii).

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▪Black CJ (Dissenting): As a general principle, the Executive cannot expel a person from Australia without statutory authority, although whether the principle applies to non-resident unlawful non-citizens is disputed (Brown v Lizars)-In times of peace, the executive’s power to protect Australia’s borders against the entry of unlawful non-citizens in times of peace derives from statute.-If there are any prerogative or non-statutory executive power, it has been abrogated by the Migration Act.

The Presumption of Regularity pg. 383- It is presumed, until the contrary is proven, that the decision or action of the official has been properly made or taken – ‘all acts are presumed to have been done rightly and regularly:’ Ministry for Natural Resources v New South Wales Aboriginal Land Council.-Where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of the prior act: McLean Bros & Rigg Ltd v Grice- Presumption is rebuttable, with onus on party wishing to dispute the validity of what has been done: Cubillo v Commonwealth

Concepts and Classifications pg. 339Legislative, Executive and Judicial Power- Legislative – making of a new rule of general application, operating in futuro. It applies either to the public at large or to a defined segment of the community, but not to a particular case. -Executive – application of a general rule to a particular case or situation. It involves (1) making decisions, issuing an order, and (2) formulating and implementing policy. These can merge when the statutory power that is being administered confers an unconfined discretion.-Judicial – a dispute is solved by an independent adjudicator applying the pre-existing laws of the land to the issue in dispute, and involves the ascertainment of disputed facts by evidence adduced by the parties, and submission by the parties on argument on factual and legal issues. The ruling is final and conclusive for the time being.-ADJR Act facilitates review of decisions of ‘an administrative character’- Jurisdiction of Ombudsmen is generally confined to investigating ‘administrative action’- Subordinate legislation can be declared invalid if made for an unauthorised purpose or by an unauthorised person.- The presumption against sub-delegation is applied more strictly in respect of powers that are judicial or legislative in character (a delegate cannot delegate).- A duty to take reasonable care to avoid loss or injury to another will not ordinarily attach to the exercise of powers of a subordinate legislative character.

Polycentricity pg. 341- Refers to matters which are marked by the numerous, complex and intertwined nature of the issues, of the repercussion, and of the interests and people affected.

LL Fuller-‘The Forms and Limits of Adjudication’ pg. 342- Judges would be tempted to assume the role of a mediator.- Courts move too slowly to keep up with a rapidly changing economic scene.- It is a question of knowing when the polycentric elements have become so significant and predominant that the proper limits of adjudication have been reached.

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Discretion pg. 343- Discretion =where there is power to make choices between courses of action or where, even though the end is specified, a choice exists as to how that end should be reached.’-When legislation uses ‘may’, ‘thinks fit’, ‘if satisfied’, ‘reasonable’ ‘choose’.

♠D J Galligan - ‘Discretionary Powers: A Legal Study of Official Discretion’ pg. 344- A noticeable feature of modern legal systems is the extent to which officials, whether they are judicial or administrative, make decisions in the absence of previously fixed, relatively clear, and binding legal standards. -Increased reliance on delegating powers to officials to be exercised at their discretion.-Expansion can be seen not only in powers expressly delegated, but also in levels of unauthorized discretion, in that officials assume to themselves the power to depart from, change, or selectively enforce authoritative legal standards.-Product of the growth of state regulation.

♠K C Davis- ‘Discretionary Justice: A Preliminary Inquiry’ pg. 345-2 principle needs are the elimination of unnecessary (inadequate) discretionary power and better control of necessary (excessive) discretionary power. To fix this, we need to confine powers, structure policies and checking the discretionary powers.-Structuring plans, policy statements, and rules, as well as open findings, open rules and open precedents-Checking administrative and judicial supervision and review-Confining discretion putting all necessary discretionary power within the boundaries, to put all unnecessary power outside the boundaries and to draw clean lines

♠D J Galligan- ‘Discretionary Powers: A Legal Study of Official Discretion’ pg. 345 Influences on officials:

o Good administrationo Effective and efficiento Being fair and equitableo Maintaining moral idealso Upholding procedural correctnesso Generally showing interest in and respect for those affected by official

decisions Good administration

o Concern to act rationally and purposivelyo Eliminate arbitrarinesso Formulate and publicise guidelines and policyo Respect procedural fairnesso Provide reasonso Treat individuals equally and fairly and all matters as important

Courts, or other special bodies, administrative officials may have of their own initiative highly developed principles of good administration

Executive Policies, Directions and Representations pg. 597The Role of Policy in Government Administration- Administrators urge the need for certainty, predictability and consistency which can best be achieved by administrative rules and policies.

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The Meaning of Policy pg. 598-The essential feature of an executive policy is that it is a non-statutory rule devised by the administration to provide decision-making guidance, particularly in administering legislation. -Formal – tabled in Parliament, endorsed by minister or Cabinet, published in agency manual.-Informal – originating in press release, a precedential decision of a court or tribunal, etc.

Discretion versus Policy: A Clash of Values? pg. 599-Executive policy is a non-statutory rule devised by the administration to provide decision-making guidance, particularly in administering legislation.-Directions are a more specific form of policy statement, usually given by one officer to another to indicate the parameters for making a particular decision.

♠Sir Anthony Mason- ‘That Twentieth Century Growth Industry, Judicial or Tribunal Review’ pg. 600-Departmental file preoccupied with the operation and preservation of policy, paying subsidiary attention to the ascertainment of facts and to the impact of policy on the interests of particular individuals.-Appeal book emphasis on the ascertainment of facts and how the individual is affected by rule and policy; the need to accord justice to the individual comfortably with the requirements of policy.-Administrators tend to be more concerned with the possible consequences of a decision than with its justice or rightness in the light of its facts.

♠Justice Marry Wilcox- ‘Judicial Review and Public Policy’ pg. 600-Administrators should, without interference on arguable matters, be left to administer. They should not be permitted to tyrannise; even when they do so as a matter of policy

♠L Curtis- ‘Crossing the Frontier Between Law and Administration’ pg. 601-Where policy is involved in a decision, those responsible for the policy are accountable for that policy.-Discretions are exercised in a fair and reasonable manner.-Rule: There is an expectation that the policies of an elected govt. should be carried into effect so far as they are not inconsistent with law and the exercise of any statutory power in a way which would defeat or frustrate the implementation of those policies would not be in accordance with that expectation-If decisions made in the exercise of administrative discretions are not in accordance with the policy objective of the legislation then the intentions of the government will fail.

The Legal Status of Executive Policies pg. 602- The way in which statutory rules and administrative policy interact in a particular situation is ultimately a question that turns on the interpretation of the statute that is being administered.Legal Relevance of Policies pg. 603- A government or decision-maker can adopt a policy to provide guidance in the exercise of a statutory discretion provided that:

1. the policy must not be incompatible with legislation: Gleeson CJ in Neat Domestic Trading

▪For example, it could paraphrase the legislation correctly, adequately identify the range of relevant matters, and not colour or confine legislation in a way that would be Wednesbury unreasonableness.

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2. some policy statements , unless publicly notified as required by FOI statutes, cannot be relied upon to the disadvantage of a person who was not aware of the policy (Public Service Act 1999 (Cth) s10(f); NSW s15)

Week 2.2 – Subordinate LegislationRule-making and Control of Subordinate Legislation pg. 264The Role and Importance of Subordinate Legislation-It is impracticable for the legislature to make all legislation. Hence, a subordinate or delegated role is played by the executive. -It is not subject to the same parliamentary and public controls as primary legislation, and alternative methods have been devised to ensure that the executive is accountable.-It is dependent for its validity on proper authorisation by an Act of Parliament.

Nature of Subordinate Legislation pg. 265-Subordinate legislation = legislative rule made by an executive agency pursuant to an authority delegated by the legislature. The authority to make subordinate legislation is usually contained in a section towards the end of a statute, delegating power to the GG, a governor, a minister or statutory authority to make rules to supplement the Act.-Subordinate legislations are a set of regulations telling how the legislation is to work.- Common features:

o Authorised by Parliament – it is legislation delegated from parliament to the executive.

o Usually, but not always, deal with the procedural details, rather than the broad framework of a legislative scheme.

o Must be notified in the Gazette o Can be disallowed by Parliament o Most rules are available to the public, but in a variety of ways

-They are not subject to the same parliamentary and public controls as primary legislation, but control mechanisms still exist:

requirement for executive adherence to statutory procedures public consultation in subordinate law-making appraisal of subordinate laws by parliamentary committees judicial scrutiny on their validity

- Boilermaker’s Case:o Found that, as a matter of fact, the court of arbitration and conciliation had violated

the separation of powers by issuing fines.o Shows how the court has insisted on a very strict separation of powers at the federal

level. Hence, hybrid courts of this type are not allowed. Advantages :

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o The comparative ease of amendment of subordinate legislation enables more frequent change in areas where flexibility or adaptation in legislative criteria is required, esp. in rules that regulate an industry or trade.

o Some rules have special relevance to members of a particular community, and sub. legislation enables a much higher level of participation by the members of that community in their formulation.

o If the government does not control the Senate, or anticipates a protracted legislative process, it can be a simpler method of law-making, e.g. through introducing them as regulations under an existing Act. However, this runs the risk of disallowance in the Senate.

Productivity Commission, Regulation and its Review 1997-98 pg. 267 There is often a lack of government justification and risk assessment for quasi-legislation It gives much discretion to regulators and, because of its convenience and lack of

scrutiny, is sometimes used as ‘backdoor regulation’ Confusion exists about the status and enforceability of many quasi-regulatory

arrangements as they are often less accessible than Acts of Parliament – some businesses choose to ignore quasi-regulation because they judge that full compliance is impossible or impractical.

However, in spite of these concerns, it allows greater collaboration between government, industry, and consumers and allows the development of more flexible, innovative arrangements.

Department of Prime Minister and Cabinet, Legislation Handbook, 2000 pg. 268 Examples of some matters which should be implemented only through Acts of

Parliament:o Appropriations of moneyo Fundamental changes to existing policyo Significant impact on individual rights and liberties

Forms of Subordinate Legislation and Statutory Instruments pg. 268- Regulation – subordinate rules made by the Governor or GG and are general in their application-Rule – matters of procedure made by a Court, eg Supreme Court Rules-By-law – an instrument limited to a specific geographic area, eg made by local council-Ordinance – laws made by the GG for the government of a territory-The distinction is usually not significant as the legal issue will usually be whether the subordinate legislation was authorised by the Act under which it was purportedly made. -The importance arises when legislation attaches certain consequences to instruments of a particular description.

Accountability and Control of Subordinate Legislation pg. 272- There is difficulty in imposing direct parliamentary control on subordinate legislation.-Several different approaches for ensuring accountability:

o Public consultation on proposed rule-making :- Publication of proposed rules before they are formally made- Failure to consult as required can spell invalidity

o Internal executive controls :

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- Formal executive procedures to control how subordinate legislation is prepared and drafted

- Should not contravene core public law principles designed to protect civil libertieso Publication of subordinate legislation :

- Upon being made, they are printed, numbered and made available for purchase by the public (usually in the Gazette)

- Maxim that “ignorance of the law is no excuse”o Parliamentary oversight :

- Legislation tabled in each house to enable scrutiny and possible disallowance - A breach of public law standards may result in adverse report by the Committee

and thus disallowance by either house of legislature.o Judicial review :

- Examine whether legislation was validly madeo Other mechanisms of administrative law review :

- Ombudsmen - Tribunals . However, it does not fall within the merit review function of a tribunal

to examine whether the subordinate legislation (as opposed to the decision made in pursuance of it) was correct or preferable.

Unauthorised Decision-making: Subordinate Legislation pg. 399Standard Principles – Special Issues- The validity of all executive action hinges on whether there is legal authority (Act of Parliament) to support it.-Was subordinate legislation validly authorised?

o Compliance with statutory procedural requirements:- Requirements specify how sub. leg. to be tabled in parliament, published and

notified to the public.- A common consequence of breach is that a subordinate rule will not commence

operation.o Substantive statutory authorisation:

- The rule must find support in the parent Act under which it was made- If not , the rule will be invalid – “ultra vires”

o Narrow statutory construction:- The executive must discern the intention of Parliament when making the

legislation. For example, a subordinate legislation rule thought to be ‘necessary or convenient’ will not support a rule that impose taxation or a penalty, condones entry onto private property or is retrospective in operation

o Compliance with administrative law criteria for legal validity: - Apply to a lesser extent because of other considerations- Exceptional examples: a law is invalid if its effect is disproportionate, unjust or

unreasonableo Consistency with other primary legislation:

- Subordinate rule is invalid if it conflicts with its Parent Act or another Act , unless there is an ‘override clause’.

o Constitutional compatibility:- must be compatible with Constitution, can conclude implied constitutional freedom

General Test of Validity pg. 401

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●McEldowney v Forde [1971] AC 632 pg. 401▪Lord Diplock held:

o The test for gauging if a subordinate rule was validly authorised by the parent Act under which it was purportedly made is a three-fold one:- Determine the meaning of the words used in the Act of Parliament itself to

describe the subordinate legislation - Determine the meaning of the subordinate legislation itself - Decide whether the subordinate legislation complies with that description (may

use the reasonable proportionality test in doing this).

●South Australia v Tanner (1989) 166 CLR 161 pg. 401-Steps the court has to take in deciding whether a delegated legislation is valid:

o Construe the terms in which the Parliament has conferred the power to make the regulation

o Ascertain the scope and legal effect of the impugned regulation o Determine whether the regulation having that scope and legal effect is within the

ambit of the powero Rule: Parliament should not be held to have delegated to another repository more

power than is clearly denoted by the words it has used.

The Means/Ends Distinction pg. 412● Paull v Munday (1976) [HCA]

▪Facts: The Health Act provided that the Governor could make regulations “for or with respect to…regulating, controlling and prohibiting the emission of air impurities from fuel burning equipment…” The Governor made a regulation preventing the lighting of open fire. ▪Gibbs J:-Rule: Where a statute allows certain means to be adopted, it does not permit the adoption of different means which happen to lead to the same end. -In determining whether or not the regulation is valid, the courts are only concerned with the question whether the statute permitted its creation. -A broad construction will not be given to subordinate legislation. -Held: The regulation was invalid. The power to make regulations for or with respect to regulating, controlling, or prohibiting the emission of air impurities from fuel burning equipment does not enable regulations to be made prohibiting the use of such equipment. The regulation, although assisting in bringing about the result which was apparently to be achieved, went beyond the power granted.

Reasonable Proportionality and the Purpose/Subject Matter Distinction pg. 413●South Australia v Tanner (1989) [HCA]

▪Facts: The Waterworks Act provided that the Governor could make regulations for “regulating, controlling or prohibiting the use of any land within a watershed…so as to reduce or prevent the deterioration or pollution of any water…” The Governor made a regulation providing that “no person shall…construct…a zoo…on any land within a watershed”. ▪Wilson, Dawson, Toohey & Gaudron JJ:-There is a choice of means where by the purpose is to be achieved, so long as there is a sufficient nexus between the means adopted and the ends to be achieved – the test of validity

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is whether the regulation is capable of being considered to be reasonably proportionate to the end to be achieved.-A court must exercise care not to impose its own untutored judgement on the legislator. It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power.

●Minister for Resources v Dover Fisheries Pty Ltd (1993) [FCA] pg. 416▪Held:-The governing tests for validity is whether the delegated legislation is within the scope of what the parliament intended when enacting the statute which empowers the subordinate authority to make certain laws.-Purposive (prevention) – one approach is to ask whether the delegated legislation is a reasonable means of attaining the ends of the regulation or rule making power. -Non-purposive (regulate subject matter) – the question is whether there is a real and substantial connection between the delegated legislation and the subject matter of the grant of power.

Unreasonableness as a Test of Invalidity pg. 417-Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws: Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd.

Legislative Instruments Act 2003 (Cth) pg. 5 of Supplementary booklet-s.24 & s.20: Legislative instrument is effective when registered.-s.31: If there is failure to register a legislative instrument, there is an alternative way by publishing it in the Gazette.-s.38: After registration, you table the legislative instruments after 6 sitting days. If it doesn’t occur w/in 6 sitting days, s.38(3) says it ceases.-s.45: Ceases to have effect=repealed.-s.15: If public has relied on legislation, but it has been repealed, you still get those rights/liabilities.-s.42: Either house can disallow legislative instrument.

s.42(1) : If parliament doesn’t do anything w/in 15 sitting days, then there is no chance for parliament to touch it again and it remains effective (motion remains effective).-s.48: Stops parliament from remaking a disallowed legislative instrument.

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Week 3.1 – Statutory Interpretation: Reasons for Decision (i) Statutory Interpretation pg. 384Statutory Construction and Public Law-France Bennion’s Statutory Interpretation:What the court does (or should do) is take an overall view, weigh all the relevant interpretive factors, and then arrive at a balanced conclusion. Interpretative criteria:

1. Common law and statutory rules 2. Principles derived from legal policy3. Presumptions based on the nature of legislation4. General linguistic canons applicable to any piece of prose

The Language of the Statute- Literal approach/plain meaning rule– words in a statute are given their ordinary and natural meaning: Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation. - If the language is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if leads to a result that may seem inconvenient or unjust.- Purposive approach – works alongside and not inconsistent with literal approach.

♣Acts Interpretation Act 1901 (Cth): pg. Supp. 29○ s15AA(1): In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.○ s15AB(1)(a) : Any material not forming part of the Act that is capable of assisting in the ascertainment of the ordinary meaning, is permissible.○ s15AB(2)(b): You can look at Royal commission, Law Reform Commission, committee of inquiry can be used for any clues on meaning of words.○ s15AB(2)(a)-(h): Lists the types of extrinsic material you are able to use.

Nature of the Subject Matter pg. 386-The court will not ordinarily regard a statutory discretion the exercise of which will affect the rights of a citizen as absolute and unfettered (FAI)- A power to regulate an activity can vary in scope according to whether the activity being regulated is socially desirable or obnoxious: Dixon J in Bradbury.

The Nature of the Power being Exercised pg. 387- Although each statutory provision is unique, some categories of administrative powers prompt a consistent interpretative response by courts.

The Nature of the Decision-Maker pg. 387- The nature and scope of a power can take colour from the character of the official who is to exercise that power.- A minister when exercising a power is expected to be impartial (Jia, Murphyores, Peko)

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Interpretation Statutes pg. 387- All jurisdictions have an interpretation statute to guide them, eg Acts Interpretation Act 1901 (Cth)

Extrinsic Materials pg. 388-Permissible to refer to contemporary material extrinsic to the Act, eg explanatory memoranda, second reading speeches, parliamentary debates, to resolve ambiguity or obscurity or to confirm the ordinary meaning of statutory language, and gather public policy objectives. See Cth s15AB; NSW s34. pg. Supp. 29

Common Law Approaches, Assumptions and Presumptions pg. 388- At heart, they are judicially inspired principles.- All common law presumptions are rebuttable. Some presumptions are easily rebutted by words in a statute and some are more resilient and prevail unless a statute contains clear, express or unambiguous words to the contrary.- Can point in different directions.

Implied Incidental Power pg. 389- It is common to find in statutes a provision stating that an agency can undertake any activity that is incidental to or consequential upon the functions or powers conferred on the agency by the statute: Lord Selbourne in AG v Great Eastern Railway.

●Herscu v The Queen – (1991) [High Court of Australia] pg. 389▪Facts:-Appellant was convicted of bribing the Queensland Minister for Local Government in the discharge of the duties of his office.-High court rejected appellant’s argument that activity for which payment had been made to the minister was not an explicit duty to his office.▪Verdict: -The duties of a public office include those lying directly within the scope of the office, ‘those essential to the accomplishment of the main purpose for which the office was created and those which, although only incidental and collateral, serve to promote the accomplishment of the principal purposes.’ (citing Nesbutt Fruit Products Inc v Wallace)-Ministers are imposed duties and responsibilities for the supervision of his department and not to exhaust his executive and administrative responsibilities.

Principles pg. 389Principles of implied incidental power is limited in operation by other principles of statutory construction:(1) Clear and unambiguous statutory language is required to authorise activity by a public official that is otherwise tortious or that interferes with a fundamental right, freedom or immunity: (Coco)(2) Statutory power must not be used for an unauthorised purpose. (Kent v Johnson)(3) Activity that is ancillary in nature must complement, not supplement, the statutory scheme. (Kent v Johnson)

●Kent v Johnson – (1972) [ACT Supreme Court] pg. 391-392▪Facts: -Canberra residents challenged the construction of Telecom Tower on Black mountain, one of the hills that ring the national capital. Tower was erected by the Postmaster General, relying on the authority conferred by the Post and Telegraph Act 1901 (Cth) and 2 other statutes to provide facilities for postal, telegraphic, telephonic and other like services.

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▪Smithers J: -Held statutes would not authorise the erection of a tower that contained a restaurant and tourist facilities.-A statutory power to erect any structure for ‘postal, telegraphic, telephonic and other like services’ it, of itself, is insufficient to authorise the erection of a tower of which an integral part goes beyond making provisions for such services.

Established Freedoms and Immunities pg. 392-Rule: Legislation is presumed not to abolish a fundamental right, freedom or immunity other than by express or unambiguous language.● Coco v The Queen (1994) High Court of Australia pg. 393-395▪Facts: -Mr Coco (businessman) was convicted of offering a bribe to a Commonwealth officer. The conviction hinged on evidence gleaned from tape-recorded telephone conversations via a listening device installed at the premises.-Device was installed by disguised police officers pretending to be Telecom employees fixing a fault. -Police were acting on approval of Judge Carter on the Supreme Court under s43(2)(c) of the Invasion of Privacy Act 1971 (Qld). ▪Mason CJ, Brennan, Gaudron & McHugh JJ: -Held power conferred by s43(2) to approve the ‘use’ of a listening device did not extend to approve the installation of a device by unauthorised entry onto private premises. Evidence obtained from the tape-recording is inadmissible under s. 46(1) of the Act, and Mr Coco’s conviction quashed.- It cannot be said that there is to be implied in s. 43 power in a judge to authorise conduct which otherwise would amount to a trespass.

Pecuniary Burdens and Penalties pg. 396●Attorney-General v Wilts United Dairies Ltd – (1921) [Court of Appeal] pg. 396-397▪Facts: -The Food controller (govt minister) imposed a system to regulate the sale and distribution of milk in the UK. Objective was to preserve nationwide viability of milk-producing industry by protecting less profitable milk-producing zones against direct competition from more profitable zones. -Licence condition that 2d per gallon be paid for all milk purchased in a profitable zone for sale in a less profitable zone.-Food controller contended that the condition was supported by Defence of the Realm Act that authorised him to regulate the supply and consumption of food in such manner he thought best and issue licences subject to such conditions he may determine.▪Scrutton LJ: -Held that condition was invalid and unenforceable as food controller adopted methods contrary to law.- It is inconceivable that Parliament, which may pass legislation requiring the subject to pay money to the Crown, may also delegate its powers of imposing such payments to the Executive, but in my view the clearest words should be required before the Courts hold that such an unusual delegation has taken place.

Access to the Courts pg. 396-Rule: Presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied: (Public Service Association (SA) v Federated Clerks’ Union)

(ii) Reasons for Decision pg. 892

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Duty to Provide Reasons for DecisionsThe Common Law Position

Advantages Disadvantages

Instrumentalist – Requirement to provide reasons encourage better and more rational decision making.

Undermine good decision-making by encouraging standardised statements which rely on precedents.Adds to cost and time involved in decision making.

Political theory – Enhance government transparency and accountability, which is inherently valuable.

Need to protect certain interests, such as national defence, security, confidential information, certain commercial interests.

Legalistic – Enable people affected to determine whether the decision was lawfully made and whether there are grounds for review or appeal, and assess the strength of their case.

Open to a level of scrutiny otherwise not available. The dangers of over-scrupulousness means courts must be sensitive to the danger of being led to a review of administrative error rather than error of law.

-There is no general duty that requires administrative (or judicial) decision-makers to provide reasons for their decisions, but such a duty may arise in ‘special’ or ‘exceptional’ circumstances so as to ensure fairness of an administrative decision based on natural justice (Osmond):

o Where failure to give reasons would render the right of appeal almost useless (Attorney-General (NSW) v Kennedy Miller Televisions Pty Ltd)

o If the matter was ‘strongly contested’ (Edwards v Giudice)o If there was ‘a final order of significant consequence’ (Edwards v Giudice)

-Reasons for/against providing reasons:o Encourage better and more rational decision-making

- BUT it may undermine good decision-making by encouraging standardised statements which rely on previously accepted justifications rather than a full consideration of the merits.

- It may also add to the cost and time involved.o Enhance government transparency and accountability . Also, the legitimacy of a

decision will be enhanced, particularly if the reasons demonstrate that the decision was not made arbitrarily and that issues raised by interested parties have been adequately considered.

o A matter of fairness – facilitates review and appeal.- BUT this confuses the fairness of the decision-making process (rules of

procedural fairness) with the question of the legitimacy of the decision made: “The rules of natural justice are designed to ensure fairness in the making of decisions and it is difficult to see how the fairness of an administrative decision can be affected by what is done after the decision has been made.

- It also opens the decision up to a level of scrutiny not otherwise available.o May give rise to policy reviews

●Public Service Board of NSW v Osmond (1986) HCA pg. 894

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-Facts: Osmond applied for a promotion but was not recommended for the position. He appealed to the Public Service Board but his appeal was dismissed. Osmond requested reasons for the board’s decision but was refused. ▪Gibbs CJ held:-There was no general rule of common law or principle of procedural fairness which required that reasons for decisions be given. -This is so even with decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons. -In special circumstances, natural justice may require decisions to be given.- The proposal by Mr Osmond that such a change should occur involves a departure from a settled rule on grounds of policy which ought to be decided by the legislature and not the Courts.

Statutory Duty to Provide Reasons for Decisions pg. 897♣s13 of ADJR Act: Any person entitled to make an application to the FC or Federal Magistrates Court in respect of a decision (of an administrative character, not made by the Governor-General, or excluded) is entitled to be provided with a statement in writing setting out findings on material questions of fact, evidence the decision was based on, and reasons for the decision. - Decisions for which reasons do not need to be given:

o Those not covered by the ADJRo Those for which a statement of reasons has already been given, or where the person

has a right to a statement of reasons under the AAT Act s28.o Decisions of Commonwealth Funds Management Ltd in relation to its commercial

activitieso Decisions excluded under Sch 2 of the Act

-Reasons do not need to include information which:o Relates to personal or business affairs of another person o Was supplied in confidenceo Would reveal a trade secreto The Attorney-General has certified that the disclosure of the information would be

contrary to the public interesto Would disclose cabinet deliberations or decisions

- Many statutes imposes a specific duty to provide reasons, eg ASIC under Corporations Act 2001.

♣Administrative Appeals Tribunal Act s.28 pg. 898 and Supplementary Materials pg. 32 Covers people with standing to appeal to the AAT Similar to ADJR Act-Requires a statement in writing in order to apply to the Tribunal for

review of the decision. Exclusions:

o Decision-maker does not need to provide the statement if reasons for decisions have already been given in writing.

o Information must not be disclosed if a relevant certificate has already been issued by the Attorney-General.

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●Content of Reasons:Minister for Immigration and Multicultural Affairs v Yusuf (2001) pg. 33 Supp.▪McHugh, Gummow and Hayne JJ held:-All that the tribunal is required to do so to set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision – “material” means subjectively material.-If it was objectively material, then it would mean that the tribunal would have to take consideration into account, which is too high a standard.-The tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

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Week 3.2 – Freedom of InformationThree FOI Strategies pg. 898-The Freedom of Information Act 1982 (Cth) seeks to improve community access to government information by:

o Imposing a duty on government agencies to publish certain relevant informationo Creates a general right of access to agency-held documentso Gives a person the right to annotate or correct personal records

Coverage of the Act pg. 899-Agencies =a department, prescribed authority or an eligible case manager (broad definition): s4-Prescribed authority =

o A body ‘established for a public purpose’ other than an incorporated body or Royal Commission

o Any other body declared to be so by the regulations if it was established by the Governor-General or is controlled by the Commonwealth

-During periods of privatisation, the question of who is an agency or prescribed authority can be difficult to determine, e.g. Telstra. Telstra no longer subjected to FoI.

Duty to Publish pg. 900♣Freedom of Information Act 1982 (Cth) :• s8: The responsible minister for an agency is required to publish annually:

o The particulars and functions of the agencyo Its powers affecting members of the public

•s9: The principal officer of an agency is required to make available any documents that are used by the agency or its officers in making decisions or recommendations; pg. Supp. 59•s10: No person shall be prejudiced ‘by reason only’ that the document required to be made available was not made available.

Access to Documents pg. 900•s11: ‘Every person’ has a legally enforceable right to obtain access to documents of an agency so long as they are not exempt: pg. Supp. 60.-Documents of an agency include not just documents over which the agency has physical control but also documents over which it has ‘constructive possession’, e.g. in a shared database (Beesley v Australian Federal Police (2001))-The Act only gives access to documents already in existence, and does not require agencies to create information.-Problems:

– person requesting access must provide enough information to identify the document – s15(2)

– costs, delay, unfavourable application of exemption provisions

Exempt Documents pg. 901 and Supp. pg. 67▪Covered by Pt IV of the Freedom of Information Act 1982 (Cth) . Includes:

- s33 National security - s33A Documents affecting relations with states - s34 Cabinet documents- s35 Executive Council Documents

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- s36 Internal working documents- s42 Legal professional privilege- s45 Material obtained in confidence

-Documents may be released with portions falling within the exemptions deleted. •s36: (1)(a) Exempts from disclosure documents which would disclose opinions, advice, recommendations, consultations and deliberations of an agency/minister/government where disclosure would be contrary to public interest.

o Does not recover reports or purely factual materialo Reflects the traditional concern with focusing on final decisions and outcomes of

government decision-making rather than focusing on the wide (and possibly contradictory) range of views which may have been put to government in the process of making its decision.

•s26(2): Agencies can sometimes not give notice of some of the reasons because the reasons could give hints on what is disclosed.

♣S Lamble-‘Media Use of FOI Surveyed: New Zealand puts Australia and Canada to

Shame’ pg. 902 In Australia, opposition members of Parliament were greater users of FoI than journalists. New Zealand had the most workable system of FoI of any of the Westminster nations

considered, while Australia had the least workable. In the USA:

o Journalists tend not to lodge formal FoI applications as they can often gain access to government information without resorting to formal legal processes – their system of government is said to have come from the people for the people.

o Freedom of press and freedom of speech are constitutionally enshrined in their Bill of Rights. Hence, it is harder for public servants to tinker with legislative matters.

o There is a clearly defined separation between the legislature and the executive. Hence, the executive is better insulated from meddling legislators.

o Requirement that agencies are to provide web access to FoI material. In Westminster nations e.g. Australia:

o Cabinet ministers are both the heads of different branches of the executive, and members of the legislature. Hence, cabinets are all-powerful and it is relatively much easier for politicians to interfere in the administration of legislation and to influence regulatory processes, including those relating to FoI requests by journalists.

o FoI statutes have many more and much less clearly defined exemptions.o Both Canada and NZ have independent commissioners or ombudsmen specifically

charged with administering FoI, while Australia does not.

Amendment and Annotation of Personal Records pg. 903•s48:-Access to the document must have been lawfully obtained by the applicant.-Does not include the right to exclude misleading, incorrect or out-of-date information: pg. Supp. 78•s50: -The amendment must not obliterate the text of the record as it existed prior to the amendment. -If the minister/agency does not amend the document, the applicant must be given an opportunity to provide a statement which may be added to the document by way of annotation unless it is irrelevant, defamatory or unnecessarily voluminous.

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●Public Interest and Confidentiality:Re Kamminga and Australian National University (1992) pg. 37 Supp.▪Facts: Kamminga sought access to reports by six referees relating to his unsuccessful applications for job positions. ANU refused access, claiming that the reports were exempt under s36 (internal working documents and contrary to public interest), s40 (concerning operation of agency) and s45 (material obtained in confidence) of the FOI Act. Kamminga sought review.▪Held:

Rule: In the absence of special circumstances a document is only exempt under the Act on the grounds of confidentiality if it is exempt under s45. It is not a factor to be taken into account when assessing the public interest under s36(1)(b).

o In determining whether disclosure would be contrary to public interest:- The tribunal needs to balance competing interests including the public interest in

the applicant’s right to know.- Since confidentiality is expressly provided for as an exemption under s45, it

should take special circumstances for it to be found that there are reasonable grounds for a s36 claim under this factor.

o Test/Criteria needed to establish a breach of confidence:- Plaintiff must be able to identify with specificity the information in question- The information must have the necessary quality of confidentiality and not, e.g.

public knowledge- The information was received by the defendant in such circumstances as to import

an obligation of confidence- There is actual/threatened misuse of that information

o Things to be taken into account to determine the existence of confidentiality and its scope:- If the information was supplied gratuitously or for a consideration- Past practice shedding light on the sensitivity of the information- Whether the confider has any interest in the purpose for which the information is

to be used- Whether the confider expressly warned against its disclosure

●Documents with Conclusive Certificate Exempt?:Re McKinnon and Secretary, Department of the Treasury [2004] pg. 42 Supp.▪Facts: The applicant applied for access to the documents: Bracket Creep and First Home Scheme. The respondent claimed exemptions. The applicant applied for review of the decisions refusing access. The Treasurer issued conclusive certificates which stated “that the disclosure of [the documents] would be contrary to the public interest”. Found: There were reasonable grounds for the claim that disclosure would be contrary to

public interest. Hence, the documents were exempt. Reasoning:

o Grounds relied upon by the treasurer in issuing the certificates:- Claim 1: Officers should be able to communicate directly, freely and

confidentially on issues which are considered to have ongoing sensitivity. The AAT felt that the possibility that premature disclosure would result in

want of candour in cabinet discussions or in advice given by public servants is so slight that it may be ignored.

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However, there is clear public interest in civil servants being able to communicate in confidence information directly to their responsible minister on issues that are considered to be sensitive.

- Claim 2: Written communications ensure that a proper record is maintained of the considerations taken into account. If there a risk of disclosure, then ministers may feel inclined to communicate sensitive advice orally rather than in writing. AAT found that the claim did not fail at the outset.

- Claim 3: The release of a document that discusses options that were not settled is potentially misleading and has the potential to lead to confusion, and to undermine the public integrity of the Government’s decision-making process. AAT agreed.

- Claim 4: The preparation of possible responses to questions in Parliament is a very sensitive aspect. It is appropriate that briefing and other material produced on a confidential basis in the preparation of these responses remain undisclosed. The release of such documents would threaten the protection of the Westminster-based system of Government. AAT agreed.

- Claim 5: The technical terms and jargon used could potentially mean that the documents could be misinterpreted – they do not contain sufficient information for an uninformed audience to interpret them correctly and reasonably. AAT agreed.

Held:o Tests for deciding whether documents subject to a conclusive certificate are exempt:

- Whether the test in s36(1) is satisfied - Whether there exist reasonable grounds for the claim that the disclosure of the

document would be contrary to public interest: Determined at the time of the review decision and not at the time the

conclusive certificate was given “Reasonable grounds” = grounds based on reason, as distinct from something

“irrational, absurd or ridiculous” on the one hand, or “fanciful, imaginary or contrived” on the other.

▪Downes J: -No certificates – Review the decision and substitute its own decision if the decision under review is not the correct or preferable one. -Existence of certificate – Determine the question whether there exists reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.

●Reasonable Ground for Claim of Contrariety to Public Interest: McKinnon v Secretary, Department of Treasury [2006] [HCA] pg. 49 Supp.▪Found: The AAT could not substitute its own opinion about whether disclosure would be contrary to the public interest by balancing the various factors for and against disclosure.▪Held:-It is enough if one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way. The tribunal’s task is to answer the statutory question: are there reasonable grounds for the claim that disclosure would be contrary to public interest?

Reasonable minds may very well differ, and the tribunal is not obliged to undertake a balancing exercise. Rule: The tribunal is not charged with the task of deciding what assessment of the public interest is to be preferred.

-The words “reasonable grounds” do not denote grounds which are “not irrational, absurd or ridiculous” – they must be given their ordinary meaning.

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▪Hayne J: - Tribunal’s task is to decide whether the conclusion expressed in the certificates can be supported by logical arguments which, taken together, are reasonably open to be adopted and which, if adopted, would support the conclusion expressed in the certificate. ▪Gleeson CJ and Kirby J (Dissenting judgement):-It does not mean that as long as there is one ground supporting non-disclosure for public interest, a claim will fail. The Tribunal must take into account all relevant considerations. -The fact that a reasonable ground was found should only be the beginning – it should lead to further inquiries which should include an examination of the public interest.-The context in which a Minister makes a decision is ‘there is a general right of access to information… limited only by exceptions and exemptions necessary for the protection of essential public interests – s3(1)(b).

Freedom of Information Act 1982 (Cth) : (More)▪Requests for access:•s15: Requests for access must be in writing (s15(2)(a)): Supp. pg. 61•s24A: Requests may be refused if documents cannot be found ((a) when all reasonable steps have been taken to find document) or does not exist (b)(ii): Supp. pg. 65•s61: Onus: Onus on agency or Minister to establish that the decision given was justified: Supp. pg. 79

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Week 4.1 – OmbudsmenOther Methods of Administrative Law Review pg. 180- Ombudsman was established in NSW in 1975 under the Ombudsman Act 1974 (NSW).-A large number of industry Ombudsman have also been established, some keep watch over industries that include both private and public sector providers of services. -All Australian public sector Ombudsman are part of the administrative/executive arm of government. They enjoy statutory independence under Ombudsman Act.- What it does:

o Investigate complaints from members of the public re government administrative action

o Self-initiated inquiries . Internal equivalents: customer compliant and internal review units, mediation and ADRs; service charters and codes of conduct

Ombudsman Offices – Their Structure, Role and Powers pg. 181Establishment of Ombudsman Offices in Australia-In NSW: est. 1975 – Ombudsman Act 1974 (NSW) -Commonwealth: est. 1976 – Ombudsman Act 1976 (Comm.) -Stable and have diversified in scope

- Energy and Water O. - Telecommunications Industry O. - Banking and Financial Services O. (the list goes on)

-Internationally: Australian Comm. O. covers the largest geographical jurisdiction of any O.

♣K del Villar-‘Who Guards the Guardians? Recent Developments Concerning the Jurisdiction and Accountability of Ombudsman’ pg. 184-Why such proliferation?

- its success, attractiveness of the style of review- conferral of additional functions and powers—jurisdiction that isn’t administrative

o Greater attention needed in the accountability of O.

♣ Interim Report of the Committee on Administrative Discretions (‘Bland Committee’) pg. 184•Accountability:

- Particular with financial accountability - Not attempt to usurp role of Parliament- Remove grievances through change in procedure- Not a policy maker in his own cast- Not to make fresh decisions, even if he prefers alternatives - Proper consideration given to all relevant considerations

Functions of the Ombudsman- 5(1) Subject to this Act, the Ombudsman: (a) shall investigate action, being action that relates to a matter of administration, taken either before or after the commencement of this Act by a Department, or by a prescribed authority, and in respect of which a complaint has been made to the Ombudsman; and (b) may, of his or her own motion, investigate any action, being action that relates to a matter of administration, taken either before or after the commencement of this Act by a Department or by a prescribed authority;

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http://www.austlii.edu.au/au/legis/cth/consol_act/oa1976114/s3.html#prescribed_authority

http://www.austlii.edu.au/au/legis/cth/consol_act/oa1976114/s3.html#department

http://www.austlii.edu.au/au/legis/cth/consol_act/oa1976114/s3.html#ombudsman



http://www.austlii.edu.au/au/legis/cth/consol_act/oa1976114/s3.html#department

http://www.austlii.edu.au/au/legis/cth/consol_act/oa1976114/s3.html#ombudsman


The Statutory Framework for Ombudsman Offices pg. 185Ombudsman Act 1976 (Cth)

Creation by statute s21 Appointment by the GG for a term of up

to 7 yearss28 Removal Can only be removed by

resolution of both houses of Parliament (ss21,28).

s6A of NSW Act NSW State: veto by a joint committee of both houses and the Police Integrity Commission.

s5 Function To investigate, “action that relates to a matter of administration”

s5 Jurisdiction Public services, executive and statutory authorities constituted for public purpose

State: Local authorities (inc NSW), police

s5 Jurisdictional limitations Cannot investigate action taken by a minister, by a court or concerning employment of a person in the public service

ss6, 6A Discretion not to investigate (mandamus cannot lie)

Grounds include:•If the complainant:

- is aware of issue for more than 12 months

- doesn’t have sufficient interest

•There is an alternative method for administrative or judicial review•Complaint not raised first with the agency to which it relates •Investigation not necessary

s7(1) Complaints Orally or in writing No fee

s7A Powers and procedure Informal and by way of prelim inquiries

ss9,13,14 Powers of royal commissions:

- require attendance, - administer oaths- require docs to be

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produced s35A Public Release of Info. Information is not released

publicly until it is in the public interest to do so

s12 Reports does NOT have determinative powers to alter admin decisions

s15 Report to agency and make recommendations

s16 Write report to PMs17 Write report to Parliament

Criteria for basing report or recommendation: see s15(1) (a) that the action: (i) appears to have been contrary to law; (ii) was unreasonable, unjust, oppressive or improperly discriminatory; (iii) was in accordance with a rule of law, a provision of an enactment or a practice but the rule, provision or practice is or may be unreasonable, unjust, oppressive or improperly discriminatory; (iv) was based either wholly or partly on a mistake of law or of fact; or (v) was otherwise, in all the circumstances, wrong;

Other independent agencies:- Inspector-General of Intelligence and Security: complaints from ASIO - Industry Ombudsman:

- Private Health Insurance O. – National Health Act 1953 (Cth) - Banking and Financial Services O. – accredited by ASIC

Functions of the Ombudsman pg. 188-Individual complainant vs. own motion investigation:

Resource implications-Monitor compliance with powers authorised by legislation: eg the use of telecommunications interception -Audit activity of public administration -Whistleblower protection legislation: O. becomes an agency to which disclosures can be made -Deals with complaint regarding FoI -Complaints of child abuse arising in public agencies -Standard-setting by publication of manuals and guideline -Discharge an industry O. function

Complaint Work of the Ombudsman pg. 188-Firstly they tell complainants how to raise the issue with the agency-Remedies provided: (from the most common)

o Explanation by the agency of the decision o Expediting agency action o Apology o Alteration of a decision o Financial payment, refund, reduced payment, compensation

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o System change/policy or law change Matters: administrative and usually things that a court/tribunal won’t be able to review -Lacks direct power to make a fresh decision: but usually do so anyway: Queensland Ombudsman 03-04 Annual Report: complaints about Mareeba Shire Council -Diversity of the issues under their review:

Commonwealth Ombudsman 03-04 Annual Report: Tax Agents’ Board of NSW NSW Ombudsman 03-04 Annual Report: DoCS

Ombudsman Offices – Special Issues pg. 193Ombudsman Characteristics♣B Barbour- ‘What are the Essential Features of an Ombudsman?’

- independence - jurisdictional certainty - investigative powers - accountability - ability to make statements in the public interest - accessibility - impartiality - fairness

Other essential features: own motion powers, determinative powers, accountability to the legislature, flexibility and informality, discretion in what not to deal with, confidentiality, effectiveness, and externality.

~ Effectiveness in customer complaint handling: Dispute resolution Benchmarks of Industry-Based Customer Dispute Resolution Schemes 1997 pg. 195: (Accessibility, Independence, Fairness, Accountability, Efficiency, Effectiveness) – for good practice in resolving disputes between customers and industry members.

Recommendatory Versus Determinative Powers pg. 196Recommendatory Determinative

To PERSUADE and PUBLISH

In INDUSTRY ombudsman schemes

SA O: Eugene Biganovsky:

Agencies do listen: - the O has a

wealth of knowledge

- useful recommendations

- respect and moral authority

- power even in where it has no jurisdiction

Make binding decisions:

Tele Industry O: - binding

award of $50,000

Banking & Financial Services O:

- binding award of up to $150,000

Groves: “Ombudsmen’s Jurisdiction in Prisons”

They derive their influence from

- stature, - experience

Pros: - transforms the body into a

traditional form of review- provide admin justice in

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- ability to work closely with admin officials

individual cases Cons: Quasi-small claims courts

- formalise current practices

Undermine their ability to influence administrative practices

- tempted to avoid lengthy investigations

- easier to vary/ remake the relevant decision

Pressure parties to adopt adversarial approach

- Agencies: less able to adopt procedures to settle dispute i.e. via negotiation

- O: won’t be able to adopt informal procedures

They require close and continued contract with the agency (unlike the courts):

- undermining their status as disinterested observers

Petre: (pg198)

Not necessarily more persuasive:EWON:

- potential to cost members lots of $$$

- very few cases resort to the use of determinative powers anyway…even when they have the powers

Waste of resources and time—no final outcome

EWON has determinative powers and it’s all good:

- the decision is binding on the members not the public

- upgrades matters as needed- increases costs for members

when matters are upgraded—incentive for them to resolve things ASAP

Locating the Ombudsman in the Framework of Government pg. 199-Parliamentary accountability:

- NSW parliamentary committee: has statutory role in examining reports of the O. - All Aust O: have to make annual AND special reports to the Parliament

-Executive: - O are just like executive agencies + statutory independence

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- Parliament: shown little interest in the O’s work—no partnership in developing standards for public administration

♣D Pearce-The Commonwealth Ombudsman: The Right Office in the Wrong Place pg. 200•The Ombudsman: a rival

- diverts citizens from the courts in pursuing complaints against the Executive- in a much stronger position to influence change: access to decision-makers, to files

•It’s odd and unique:- that persuasion and publicity can bring about the resolution of a dispute ▪Establishing the O. as part of Parliament: - carries out parliamentary functions, not judicial or executive - more pressure to the executive to give effect to recommendations - gives parliamentarians both formal and informal avenues to influence ministers- brings the 2 means by which citizens can complain outside courts system - can track the normative effect/role of the O in public administration - increase the status of the office and the public’s knowledge of it

Litigation and the Ombudsman pg. 201-Rule: Ombudsman can initiate litigation, or agencies can initiate litigation against Ombudsman to restrain investigations:●Booth v Dillon (No 2) [1976] [Supreme Court of Vic] pg. 202▪Facts: -Victorian Ombudsman: investigate complaints about homosexual assault committed on young offenders in jail. - Department of Social Welfare: says O was acting beyond its jurisdiction.▪Dunn J: -Ombudsman could not investigate because it was a policy, not an administration. -Unauthorised statement made by prison officer: not an action of a kind for which he was employed i.e. not administrative -Re: the boys’ dormitories: a matter of policy, not administration -A provision of funds: also a matter of policy -Rule: The O. can look into oversight of the prison officers, but not their unlawful behaviour; i.e. a matter of policy is outside the scope of the Ombudsman’s jurisdiction.

•Glenister v Dillon pg. 203Held: -What are matters of administration: took colour from separation of powers, and did not extend to matters related to the legislative and judicial functions of govt.-Not a matter of administration because it occurred in another branch of govt.

♣ Rule: Ombudsman cannot make findings:●Chairperson, Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1995) [Fed Court Aust.] pg. 204▪Einfeld J: -Rule: Ombudsman may report opinions (as opposed to determinations) touching on individual guilt. However, certain wordings (eg appear to be, apparent, prima facie) to express this cannot be used. - Rule: That s15 provides the O can make recommendations regarding its opinions not findings of breaches of the criteria in s15 . -A “finding” is a conclusion; an “opinion” is a conclusion that someone may have committed a wrong -For the O: express opinions are nonetheless opinions, no matter how far reaching

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-Here the O had made a “finding” of guilt, rather than reported an “opinion” of a breach

●Citipower Pty Ltd v Electricity Industry Ombudsman (Vic) Ltd [1999] [Supreme Court of Vic]

pg. 206▪Warren J: -Citipower argued the Electricity O (private O) did not have power to determine Citipower had breached implied contract between them and the consumers for uninterrupted supply. -Cl4.2(g): that the O is to bear in mind “current law and reasonable and relevant industry practice”—Citipower is bound by this—therefore determination was within O’s scope—Court shouldn’t review decision (given that it is not irrational)

Ombudsman across the Public/Private Divide pg. 207-The jurisdiction of the Ombudsman is mostly defined as covering the administrative actions of government departments and public authorities. Action taken by contracted service providers are often beyond that jurisdiction.

♣Administrative Review Council- the Contracting out of Government Services (1998 report) pg. 208 - Where a complaint cannot be resolved through discussion between the Ombudsman and contractor, Ombudsman can use powers under s15 to make a report to the agency that created the contract in question.-This will not derogate from the responsibility and responsibilities accountability of the government agency and in particular its responsibility to manage the contract. -The agency must then take steps to resolve this. It can do this by resolving the complaint themself or through contractual arrangements.

The Ombudsman and Human Rights pg. 209- Similar criteria: unjust, unreasonable, oppressive, discriminatory admin action.

Public Release of O.’s Investigations-The only way O. could release private investigations to the public are through:

i. Annual reports which the media picks up or ii. O. sending a report to Parliament

•s15: A report would go to Parliament when the ombudsman is unhappy with an agency’s reaction to the ombudsman’s recommendations.

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Week 4.2 – Merits Review: 1Internal Review pg. 227-Internal review=A process of review on the merits of an agency’s primary decision. It is undertaken by another officer within the same agency, usually a more senior officer.▪Advantages:

o Quick , inexpensive, and simpleo Ensures proper consideration is given to an issue within an agency before the decision

is reviewed by an external agency.o Peer assessment has the potential for a significant normative impact on fellow officerso Least threatening method of review .o As steps are generally taken within an agency to insulate review officers from those

whose decisions are being reviewed, the confidence of the independence of internal review is enhanced.- However, some form of bias appears to be inevitable.

o Improves overall decision making within the agency . ▪Disadvantages:

o Risk of perception by the public of lack of impartiality.o Adds another process to the review process which can be confusing.o Can prevent speedy resolution of a dispute by an external body.o Adds to the cost of administrative review – in the form of time, money and

aggravation.

▪Establishment of internal review:o By administrative action oro Provided for by statuteo By executive action:

- Some regular practice must be instituted administratively before there will be recognition of an internal review scheme.

- If a statutory scheme is in force, internal review based on executive power cannot be relied on as an alternative.

Limitation of Powers-The powers of the officer conducting an internal review inquiry are, subject to any statutory criteria, the same as those of the primary decision-maker. They are subject to same legislative limitations and must comply with the same policy. -Internal reviewer takes account of new evidence which has arisen since the primary decision was made.-Review may be triggered on request, but, subject to legislation, also by its own motion.- If statutory scheme is in force, internal review based on executive power cannot be relied on as an alternative. (Meschino)

Administrative Tribunals - Their Role, Structure and Relationship to Govt. pg. 116Categorising Administrative Tribunals ♣L W Maher - ‘The Australian Experiment in Merits Review Tribunals’ pg. 116 Five structural and procedural characteristics of tribunals:

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o They provide to each party appearing before them a reasonable opportunity of being heard.

o Carefully weigh evidenceo Interpret and apply the law o Expose their reasoning to the parties o Avoid bias, or the appearance of bias

Tribunals are created by statute to play a role perceived by the legislature to be important at the time. Therefore, there is infinite room for variety and flexibility in the rules concerning their mode of operation, jurisdiction, membership and procedure.

♣Australian Law Reform Commission - Review of the Adversarial System of Litigation: Federal Tribunal Proceedings pg. 117 A distinction is often drawn between ‘policy oriented’ and ‘court-substitute’ tribunals:

o The main role of policy oriented tribunals is to formulate and apply policy.o Court-substitute tribunals primarily act as providers of dispute resolution services.

In practice, there is no strict division.The main role of most Commonwealth tribunals is to review primary decisions taken by an executive department, i.e. administrative review.

Tribunals in the System of Govt. pg. 119-From the constitutional perspective, tribunals are located in the executive arm.-A non-judicial emphasis in the statutory injunction to many tribunals, to determine matters in a manner that is “fair, just, economical, informal and quick”. -One main difference between a tribunal and a court is that it does not have its own jurisdiction. It only has jurisdiction under the Act from which it was formed.

♣P Bayne - ‘Tribunals in the System of Government’ pg. 119-They can also be considered to be a part of the adjudication system because in deciding particular disputes they act, as are seen to act, like courts.

The Tribunal Framework in each Australian Jurisdiction pg. 120-Rule: Merit review tribunals can review only those directions specifically identified in legislation. Hence, the range of government administrative activity that is reviewable is far narrower than in the courts or by ombudsmen.- In some tribunal systems there is a right to appeal on the merits (issues of fact and law).

Administrative Appeals Tribunal-Legal status in Administrative Appeals Tribunal Act 1975 (Cth)-General jurisdiction to review administrative decisions under approx 400 C’wealth enactments, including veterans’ affairs, taxation, C’wealth employees’ compensation, FOI etc.-Right of appeal from SSAT and VRB – two-tier system of administrative review

Administrative Decisions Tribunal NSW-Legal status in Administrative Decisions Tribunal Act 1997-Replaces some existing tribunals and thus has divisions (Community Services, Equal Opportunity, Legal Services, Retail Leases, etc), - Exercises original jurisdiction in some areas, i.e. acts as the primary decision-maker, eg anti-discrimination and disciplinary matters

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-Includes appeal panel which can hear appeals from a division on a question of law and, with leave of the panel, can extend to a review of the merits of the decision.-Less formal procedures encouraged, e.g. mediation

~Merit review tribunal system monitored by the Administrative Review Council

Tribunal Independence of Govt. pg. 127- Tribunals are part of the executive branch, and appraise the merits of administrative decisions, looking broadly at legal, factual and policy issues.-The very reason for having a system of tribunal review of administrative decisions could be undermined if tribunals were subject to governmental influence in the same direct way as other executive officers are. Themes arising in analysis of tribunal independence:

o Membership :- Appointed by an executive officer such as a minister- The term is usually in the range of 3-7 years, though it has been as low as one

year.- Claims of political bias and affiliation in tribunal appointments are periodically

made.o Management :

- Generally assumed that a tribunal should be housed separately from the agency, and that a tribunal should have some control over its own budget and staff.

♣Sir Gerard Brennan - ‘Foreword’ – Tribunal Embracing Judicial Model pg. 128 Advantages of a tribunal embracing a judicial model:

o Public confidence in, and independent decision-making by, tribunals are better secured.

o It releases the political system from the burden of reviewing administration case by case and allows the political system to concentrate on the making of laws and broad policies.

o Provides an assurance of integrity and legality in administrative justice.

Merit Review – The Concept and Scope pg. 135- Tribunal “stands in the shoes of the primary decision-maker” (Re Costello and Secretary, Department of Transport).

o De novo = “anew” = fresh evidence

Administrative Appeals Tribunal Act 1975 (Cth): pg. Supp. 82-s43(1): In reviewing a decision, a tribunal may exercise all the powers conferred by any relevant enactment on the original decision-maker, and shall make a decision in writing either affirming, varying, or setting aside the decision: pg. Supp. 85-Limits (s25(1)): not all decision by C’wealth agencies are reviewable. Merits review tribunals can only review those decisions specifically identified in legislation. Therefore, the range of government administrative activity that is subject to merits review is far narrower than judicial review: pg. Supp. 82-Not vested with judicial (Ch III Court) power of the Commonwealth.

♠ Different Considerations than Raised : ●Re Greenham and Minister for Capital Territory (1979) [AAT] pg. 137

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▪Facts: Greenham sought review by the tribunal of the high valuation of his property. The tribunal rejected all his grounds of objection, but found that on other evidence the valuation should be reduced. The respondent minister argued that the tribunal should not go outside the grounds of objection stated by the applicant.▪A N Hall (Senior Member), V J Skermer & C A Woodley (Members):-Rule: The role of the tribunal is to review a decision, not just the reasons for the decision.- Rule: In reaching its decision, it is not restricted to the material that was before the decision-maker, nor by the statement of reasons lodged by the applicant. The tribunal is not precluded from considering any matter which is relevant to the decision under review.

♣Sir Gerard Brennan - ‘The Anatomy of an Administrative Decision’ pg. 138-Before a tribunal intervenes to set aside or vary a decision under review, it must come to the view that:

o The facts are different;o The laws apply differently; oro If there be discretion, there is a way of exercising it preferable to the way in which the

primary administrator exercised it.

♣ Material to be Considered : ●Drake v Minister for Immigration and Ethnic Affairs (1979) [FCA] pg. 139▪Bowen CJ & Deane J: -The question for the determination of the tribunal is whether that decision was the correct or preferable one on the material before the tribunal. i.e. the tribunal needs to pretend that the original decision was never made and start from scratch.-Tribunal is reviewing a decision, not reasons for that decision.-Tribunal is bound to apply law, but not required to decide consistently with executive policy. -Neither party bears onus of proving that the decision under review is prima facie right or wrong.

♣ Decision under Appeal Legally Invalid : ●Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) [FCA] pg. 140▪Facts: The Collector revoked Brian Lawlor’s warehouse licence under the Customs Act. The company appealed to the AAT, contending that the Act did not expressly or impliedly confer power on the Collector to do so, and hence the decision was invalid. The Collector argued that the tribunal did not have jurisdiction to set aside the invalid decision, as it was not a “decision” under the AAT Act, but a “nullity”. ▪Bowen CJ:-The AAT has jurisdiction to review a decision (or nullity, since it was made by the decision-maker acting beyond the jurisdiction of Customs Act), and determine whether it was properly made in fact and law. -If the tribunal was denied power to correct errors of law, the overriding purpose of the Tribunal to promote good government would be undermined and many applicants would be left without relief.-s25 of AAT Act states that AAT can review decision ‘ made in the exercise of powers conferred by that enactment’

Merits Review – Refining the Concept pg. 142-It is common for review tribunals to set aside agency decisions on the ground that they were unlawfully made, i.e. they can make decisions of law.

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http://www.austlii.edu.au/au/legis/cth/consol_act/aata1975323/s3.html#enactment


♣ “Curing” a Legal Error: ●Re Russel and Conservator of Flora and Fauna (1996) pg. 142▪L J Curtis: -A tribunal has the opportunity in an appropriate case, by remaking the decision, to cure a legal error and at the same time to decide that on all the facts and circumstances known to the tribunal the decision under review was correct or preferable.-A decision that is invalid because of procedural irregularity may nevertheless turn out, on a full examination of all the facts and taking into account all of the matters that ought to have been taken into account by the decision-maker, to have been the correct decision.

♣Power to Exercise Discretion Conferred upon Original Decision-Maker : ●Department of Social Security v Hodgson (1992) pg. 142▪Held: -s43 empowers the tribunal to exercise all powers and discretions conferred upon the original decision-maker provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred is not otherwise limited.

AAT Act 1975 (Cth)•s.25: Tribunal may review certain decisions made in the exercise of powers conferred by that enactment ((1)(a)) or another enactment ((1)(b)): pg. Supp. 82•s.2A: Tribunal to provide a “fair, just, economical, informal and quick” mechanism of review: pg. Supp. 84•s.39(1): Everyone given opportunity to present their case to the tribunal: pg. Supp. 84•s.43(1): Review by tribunaltribunal can exercise all powers and discretions conferred by any relevant enactment on person who made the decision and shall make decision in writing: pg. Supp. 85

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Week 5.1 – Merits Review: 2 Contemporaneous Review pg. 144-The general rule that the tribunal stand in the shoes of the original decision-maker may be affected when there are intervening changes between the date of the decision to be reviewed and the tribunal proceedings.

♦A change in administrative outlook:-Guiding rule:

◦A decision, once appealed to a merit review tribunal, becomes the responsibility of the tribunal and that the agency does not have any independent authority to alter or tamper with the decision at that stage.◦ “The power of the Tribunal to dispose of an application for review properly brought before it is not… terminated by the mere consent of the parties” (Re Bloomfield and Sub-Collector of Customs (1981))

-Legislation may override the general rule:◦After Bloomfield, the AAT Act was amended to provide that an applicant for review can withdraw an application (s42A) or that the tribunal can endorse a consent settlement reached by the parties (ss26, 42C).

♦A change in the facts:-An applicant has the right to present to the tribunal fresh evidence and submissions that were not before the original decision-maker (AAT Act (Cth) ss38, 39, 40).-In deciding whether or not a merit review body can look at facts that have occurred since the date of the primary decision it is always necessary to look closely at the legislation under which the decision was made to ascertain the nature of the decision that is under review. -It may be implicit in the legislation being administered that the facts are to be assessed at the date of the primary decision, and not at the date of the tribunal’s decision:

•A decision to cancel a person’s social security benefit: the correctness of that decision does not turn on whether the applicant repaired the breach that led to the cancellation at a later date (Freeman v Secretary, Department of Social Security (1988)).

Contrast – a decision to refuse a pension, where the applicant’s entitlement should be considered up to the date of the tribunal’s decision (Jebb v Repatriation Commission (1988)).

- In the case of reviewing a minister’s decision to disallow a change to certain rules since the change imposes “an unreasonable or inequitable condition affecting… rights”, the tribunal could look at facts after the date of the minister’s decision only to the extent that it sheds light on whether the rule change could be disallowed as unreasonable at the date of that decision: (Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992)).

♦Change in the law:-Principle: Commonly, the amending law will contain a transitional provision that states whether the new provisions apply to proceedings that are underway. If not, the general principle is that the case is to be decided by reference to the law as they stand at the date of the tribunal’s decision.-Main exception: Rule: Accrued rights are not diminished by a change in the law (Esber). The lodgement of a claim is usually treated as giving rise to an accrued right, rather than a

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hope or expectation that the applicant can persuade the tribunal to exercise the discretion in their favour.

Also see Acts Interpretation Act s8 [pg. 147]: where an Act is repealed by another, “then unless the contrary intention appears the repeal shall not…affect any right privilege obligation or liability acquired” under the old Act.

♣Change in Law: ●Esber v Commonwealth (1992) [HCA] pg. 147▪Facts: Esber received weekly compensation payments under the Compensation Act, which provided that the Commissioner, upon application by the recipient, could pay it as a lump sum. Esber’s request was refused, and an appeal lodged. But before the tribunal conducted a hearing, the Act was appealed, and the new Act did not contain a similar redemption procedure. ▪Found: Esber’s application was to be determined under the old Act – once he lodged an application for review, he had a right to have the Commissioner’s decision reconsidered▪Mason CJ, Deane, Toohey & Gaudron JJ:-Rule: Accrued rights are not diminished by a change in the law. -Procedural rights alone are insufficient to displace the normal rule that the law of the time is to be applied.-Substantive rights are sufficient.

●Re Costello and Department of Transport (1979): pg. 148▪Held: a review of a decision refusing a pilot’s licence “involves an investigation whether the applicant has a present entitlement to the grant of a right or privilege”. Hence, the law in force at the date of the AAT’s decision was to be applied.●Re Cirkovski and Secretary, Department of Social Security (1992): pg. 148▪Held: Claims for social security are usually determined by applying the legislation in force at the date a claim was lodged if the legislation was more beneficial at that date – the lodgement of a claim is usually treated as giving rise to an accrued right.

Procedure and Evidence – Their Role in Merit Review by Administrative Tribunals pg. 154♣Administrative Review Council – ‘ Better Decisions: Review of Commonwealth Merits Review Tribunals’ -The quality and consistency of agency decision-making can be improved by:

o Ensuring that particular review tribunal decisions are reflected by agencies in other similar decisions – the “normative effect”; and

o Taking into account review decisions in the development of agency policy.

♣Australian Law Reform Commission- ‘ Managing Justice: A Review of the Federal Civil Justice System’ pg. 154-Tribunals are not intended to identify the winner from two competing parties.-The public interest “wins” because correct or preferable decision making contributes, through its normative effect, to correct and fair administration and policy in the particular area.

~A tribunal decision can be set aside for error of law if:o The tribunal flouts natural justice

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o There is no evidence to support a findingo An irrelevant consideration is taken into account

- Tribunal closer to judicial rather than executive end of spectrum will meet higher standards of proof where compliance with natural justice is concerned.

Common Structural Models for Tribunal Procedure pg. 155- The statute creating a tribunal will be the first point of reference in ascertaining the procedure to be followed.♦Adversarial adjudication:-Tribunal’s primary role is to resolve the dispute as presented by parties-The hearing is all important; evidence is presented on oath, and parties are often represented by lawyers.-Peak tribunals, e.g. AAT, exhibit many of the features of an adversarial model, but not in any pure form:

Not bound by rules of evidence Neither party bears an onus of proof Can summon witnesses and documentary evidence itself (s40)

♦Inquisitorial dispute resolution:-The respondent agency does not make an oral presentation of evidence or argument, but instead provides a file of evidence and submissions.-The hearing is likely to be informal, and held primarily to allow the applicant an opportunity to discuss the case with the tribunal.-The tribunal plays a more active role in obtaining evidence and researching and investigating the issue to be resolved.-Tribunal members may draw heavily on their own specialist knowledge or experience in that jurisdiction.♦Decision on the Papers:-The agency’s participation is limited to written argument and presentation of evidence-The initial task of the tribunal is to examine whether ‘on the papers’ the tribunal is disposed to make a decision that is most favourable to the applicant. -If not, the applicant will usually be invited to attend a hearing.-Cover only a small minority of decisions.♦Mediation:-Accredited mediator encourages and assists parties to agree upon a solution.-Attendance voluntary-Atmosphere of informality and confidentiality-Terms of the agreement are not published

♣Flexibility in Choosing Formality/Informality of Proceedings: ●Re Hennessy and Secretary to Department of Social Security (1985) [AAT] pg. 157-Rule: Tribunals should not be confined by the rules of procedure and evidence that courts are.-The tribunal has a degree of flexibility to deal with proceedings as it sees fit.-Not one level of formality or informality is appropriate for all cases.-A degree of so-called formality serves to confer, and not to detract from, that equality of treatment to which applicants, particularly unrepresented applicants, are entitled.

Statutory Guidance pg. 157

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-T ribunals should not be confined by the rules of procedure and evidence observed by courts is usually spelt out explicitly in the legislation: Re Hennessy and Secretary to Department of Social Security as seen in: Administrative Appeals Tribunal Act 1975 (Cth) s33(1) :

o Procedure within tribunal’s discretiono Proceedings shall be conducted with as little formality and technicality as the

enactments and the matters of the case permit: s33(1)(b)o Tribunal not bound by rules of evidence

Migration Act 1958 (Cth) s420(1) :o Tribunal not bound by technicalities, legal forms or rules of evidenceo Must act according to substantial justice and the merits of the case

Administrative Decisions Tribunal Act 1997 (NSW) s73 :o Determine its own procedureo Not bound by any rules of evidence, subject to the rules of natural justiceo Act with minimal formality, according to equity, good conscience and the substantial

merits of the caseo Take such measures as are reasonably practicable:

- To ensure the parties understand the nature of the assertions made in the proceedings

- Ensure the parties have the fullest opportunity practicable to be heard

♣General Guidance Provisions not “Procedures”:●Minister for Immigration and Multicultural Affairs v Eshetu (1999) [HCA] pg. 159▪Facts: The Migration Act specified the grounds on which an application could be made for review. Among those grounds was s476(1)(a), providing “that procedures that were required by this Act…to be observed in connection with the making of the decision were not observed”. The issue was whether s420 of the Act can be considered to be such a procedure.▪Found: -s420 describes the general nature of review proceedings, and are facultative, not restrictive:-Objectives referred to will often be inconsistent – “fair” may be consistent with “economical”.-Difficult to accept that the legislature intended to provide a ground for review where a case, although ‘fair” and “just”, was not “economical”, “informal”, and “quick”.-Difficult, perhaps impossible, to prove a failure to pursue objectives.▪Court: -A direction that the tribunal pursue the objective of “providing a mechanism of review that is fair, just, economical, informal and quick” does not amount to a requirement that the tribunal observe a procedure in connection with the making of a particular decision.

The Conduct of Proceedings and the Role of the Parties pg. 160♣Reasonable Opportunity to Present Case: ●Sullivan v Department of Transport (1978) [FCA] pg. 161▪Facts: Sullivan had applied for a review and was unrepresented at the tribunal hearing. He appealed to the FCA on the ground that the tribunal had erred by not offering him an adjournment to call a medical practitioner. ▪Found: The appellant was given a reasonable opportunity to present his case as the tribunal had invited him to adduce any further evidence at the conclusion of the evidence. ▪Deane J:- Rule: The relevant duty of the tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the

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tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.-A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case.

●Australian Postal Commission v Burgazoff (1989): pg. 162-Tribunal could also play a more active role by ‘suggesting to the parties other additional information which ought to be obtained and sometimes appropriate means of obtaining the information and bringing it into evidence.

♣Rule: The tribunal “has a duty to seek out information which it regards as necessary for the decision of the case in hand:” Re Rowlands and Commissioner for Superannuation (1988).♣Rule: There is no general legal duty on a tribunal to conduct inquiries: Minister for Immigration and Ethnic Affairs v Singh (1997).

♣Suppression of Evidence: ●Australian Postal Commission v Hayes (1989) FCA pg. 164▪Facts: The AAT was hearing an application for review of a decision to terminate payment of workers’ compensation. The commission had a video showing the applicant moving in ways that he said he could not. Normally, the procedure is: the plaintiff first gives evidence-in-chief which is then cross examined. The defence then does the same. The commission wanted the video to be shown during cross-examination so that the appellant could be discredited. The applicant wanted the video to be shown beforehand so that he could alter his evidence accordingly. The tribunal (constituted by Hayes) ruled that the video be disclosed earlier, before the conclusion of the applicant’s evidence-in-chief. The commission sought a review of that ruling. ▪Found: The AAT’s ruling was a contravention of natural justice, and hence invalid, i.e., the video should have been shown during cross-examination.▪Wilcox J: -The opportunity of presenting a case involves not merely the opportunity of adducing one’s own evidence but also the opportunity of testing the opponent’s evidence, or contradicting that material. -It is required that parties be given the opportunity to inspect any documents which the tribunal proposes to have regard in reaching a decision, but it is not required that access be given at any particular point of time. -No statutory requirement that the tribunal proceed in this way.-Rule: The overriding obligation of the Tribunal is to mould its procedures to the demands of fairness, even if this means temporary suppression of documents in exceptional cases.

Evidence, Fact-finding and Onus of Proof pg. 166♣Need for Probative Evidence: ●Re Pochi and Minister for Immigration and Ethnic Affairs (1979) [AAT] pg. 167▪Facts: Pochi appealed to the AAT against a decision of the minister to deport him. Before the tribunal, the minister sought to establish that Pochi had played an entrepreneurial role in marijuana cultivation that went beyond the facts of his conviction. ▪Found: The evidence raised only a suspicion but not a positive finding that Pochi was involved in the cultivation of marijuana. Taking into account that the facts were such that, if found against the applicant, would carry adverse consequences of a most serious kind, it was concluded that it was not in the best interests of Australia that he be deported. ▪ Brennan J (President):

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-To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force. -The tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not. -When the decision to be made is whether or not to deport a person or not:

•The decision-maker must be persuaded that deportation is in the best interests of the country. •The gravity of the consequences of deportation to a particular deportee does not demand that facts be proved beyond reasonable doubt, but the significance of an adverse finding to the deportee will obviously affect the ease or difficulty of persuading the decision-maker that the adverse finding should be made.

♣Affirmed Pochi :●Minister for Immigration and Ethnic Affairs v Pochi (1980) [FCA] pg. 169▪Deane J: -Upheld the prior decision in Pochi-A statutory tribunal bound to act judicially has an essential duty of fairness. -Rule: There is a requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material, and not on mere suspicion or speculation. i.e. Must ensure evidence relied upon is reliable.

♠Rule: Evidence that has been given to the tribunal under oath and has been subject to cross examination, as well as expert opinion, is likely to be given more weight than a written statement from a person (Re Waterford and Director-General of Social Services) or a transcript of evidence from another proceeding (Re Pacific Film Laboratories Pty Ltd and Collector of Customs). ♠Rule: Where a witness whom one would expect to see called is not called, it is possible to infer that the evidence of that witness would not have assisted the case of the party concerned (Jones v Dunkel).

♣No Burden of Proof:●McDonald v Director-General of Social Security (1984) [FCA] pg. 171▪Facts: McDonald had argued that the AAT, in reviewing a decision to cancel her invalid pension on the basis that she was not permanently incapacitated for work, had wrongly imposed a burden of proof on her. ▪Found: AAT had wrongly imposed a burden of proof on McDonald.▪Woodward J: -There is no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it.-The ultimate task for a tribunal is to decide whether, on the facts and evidence before it, the tribunal is satisfied of the issues to be resolved. It is not to discharge this duty by requiring one of the parties before it to undertake a burden of proving/disproving a fact in contention.

♣Usually Civil Standard:●Epeabaka v Minister for Immigration and Multicultural Affairs (1997) [FCA] pg. 173▪Finkelstein J: -Generally, the tribunal’s obligation is to determine the existence of facts in accordance with the civil standard (i.e. the balance of probability) except in respect of serious matters where the nature of what must be decided makes this inappropriate. - Civil standard of proof is ordinarily applied by Tribunals, in the absence of stipulation by the relevant Act.

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♣Degree of Satisfaction Proportionate to Seriousness:●Briginshaw v Briginshaw (1938) [FCA] pg. 174▪Dixon J: -The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer whether the issue has been proved to the reasonable satisfaction of the tribunal.

Week 5.2 – Merits Review: 3 Administrative Tribunals and Government Policy pg. 634-“Consistency must ultimately be related to policy and is safely sought by reference to policy only when the policy is appropriate and acceptable. Decision makers may be consistently wrong and consistently unjust” (Nevistic v Minister for Immigration and Ethnic Affairs (1981))

Administrative Decisions Tribunal Act 1997 (NSW) pg. 636•s64: the tribunal must give effect to valid policy that has been certified by a minister as government policy, unless the policy produces an unjust decision in the circumstances of the case.

♣General Principle: ●Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) [AAT] pg. 637▪Facts: The minister made a decision under the Migration Act to deport Drake, adopting a Criminal Deportation Policy which noted that the minister would address “whether in all the circumstances it is in the best interests of the Commonwealth of Australia that the person be deported” and a variety of matters would be taken into account. ▪Found: Having regard to the terms in which the statement of Ministerial policy was couched, the fullness of consideration of relevant circumstances which it invited, and the unaffected range of discretion which it left for exercise in each case, it was found to be right to apply. Hence, it was in Australia’s best interest that Drake be deported: (=s64)▪Brennan J: -Rule: Tribunal should apply a general policy that was lawfully adopted by a minister, and to depart from the policy only cautiously and sparingly where there is a cogent reason for so doing.-It is the responsibility of the tribunal ordinarily to apply a lawful Ministerial policy, unless there are cogent reasons to the contrary. -Rule: A policy must be consistent with statute.-Decision making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. -Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, or reasoning that is entirely different from the reasoning which led to the making of the decision under review.-Consistency is not preferable to justice. -It is an error to apply unlawful Ministerial policy.

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-Characteristics of lawful policies:•Must allow the Minister to take into account the relevant circumstances•It must not require him to take into account irrelevant circumstances•It must not serve a purpose foreign to the purpose for which the discretionary power was created, i.e. it cannot be inconsistent with statute.•It must leave the Minister free to consider the unique circumstances of the case•It cannot determine in advance the decision which the Minister will make in the circumstances of a given case. •A policy which guides but does not control the making of decisions is lawful.

- The difference between judicial and executive functions:○Discretionary administrative decisions (an executive function) create rights in, or impose a liability on, an individual – it creates new legal rights and duties.○A curial decision (a judicial function) declares and enforces a right or liability antecedently created or imposed – it declares and clarifies existing legal duties and rights by reference to governing principles of law.

♣Unlawful Policy: ●Re Goodson and Secretary, Department of Employment, Education, Training and Youth Affairs (1996) [AAT] pg. 642▪Facts: To be eligible for payment of a youth training allowance, a person was required to enter into an activity agreement. A requirement was that the person must satisfy an officer of the department “that the person is taking reasonable steps to comply with the terms of the agreement”. There were departmental instructions to decision-makers “to breach activity agreements in all cases where a client had failed to attend an interview if the only explanation was that the letter had not been received”.▪Found: Discretion was not exercised in a genuine manner, and what occurred was a blind following of an arbitrary departmental instruction. ▪Deputy President T E Barnett: -Rule: A policy which does not allow for the Minister to consider the circumstances of each case in making a decision is unlawful.

♣Modification of Quota: ●Re Jetopay Pty Ltd and Australian Fisheries Management Authority (1993) [AAT] pg. 643▪Facts: The authority was authorised to set a limit on the amount of fish that could be caught and to allocate a quota to each permit holder. Jetopay was dissatisfied with the quota and appealed to the tribunal for an increase in quota.▪Found: The tribunal could exercise the discretion of the authority to increase the quota allocation to an applicant, but decided not to do so as it was not satisfied that the applicant’s circumstances were so particular as to indicate the rigid application of the formula will work so harshly or unfairly as to call for modification of the formula. ▪Purvis J: -Rule: Where the tribunal is asked to change, vary or deviate from an administrative decision as to a quota which has to be applied uniformly over a number of participants, it is required to take the following principles into account:

Caution is to be exercised against consciously departing from lawful and administrative policy.

A situation is avoided where different standards and values apply to decisions that have not been reviewed and a decision that has been reviewed.

Circumstances of the industry to which the quota is applied Being fair to the persons affected that the decisions be consistent

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The policy adopted is not unlawful or improper Whether an applicant’s circumstances in totality are so particular as to indicate

that the rigid application to it of an adopted formula will work so harshly or unfairly as to call for the modification of it by way of a special grant of quota so as to alleviate a felt iniquity.

~A reason why tribunals should apply policy is that some can only be developed in the political arena after consultation with industry, and the tribunal is not accountable politically (Re Aston and Secretary, Department of Primary Industry (1985)).

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Week 6.1 – Standing pg. 852-Standing = right to commence a legal proceeding in a court or tribunal.-Cases in which standing is a disputed issue tend to fall into one of a few standard categories:

o A public interest group or community organisation, seeking to challenge the validity of a government decision that is of public policy concern.

o A trade union or trade association re. a decision that adversely affects its memberso A commercial entity re. a decision that is favourable to a commercial rivalo A member of the public re. a decision that does not affect that person’s private rights

but is otherwise of concern to them

The Role of Standing in Public Law Litigation pg. 854

For Restricting Standing Against Restricting StandingFuel growth of litigation by those who intend to frustrate efficiency and certainty

Parliament’s job to change standing rules since they are elected by people

Important that parties have a personal interest in the case since it could become a precedent for subsequent cases

Government decision-makers should be accountable for their decisions and comply with the law

Only Attorney-General can enforce public rights, and not the individual (who has no special interest): Gouriet v Union of Post Office Workers

Clarify legal issues and enforce laws to the benefit of general community

AG cannot always adequately represent public due to political, bureaucratic and financial constraints

‘Special interest’, ‘person aggrieved’ are difficult concepts to apply, impose subjective value judgments

The Case for Restricting Standing in Public Law Litigation♠Arguments for restricting standing:

o The distinction between public rights, which the Attorney-General can and the individual (absent special interest) cannot seek to enforce, and private rights, is fundamental in our law. The decisions to be made as to the public interest are not such as courts are fitted or equipped to make (Gouriet v Union of Post Office Workers [1978]).

o The court’s ruling can be a binding precedent for both the executive and other courts. It is therefore important that parties before the court have an interest in the outcome to ensure that the issues will be defined and presented with vigour and skill to the court. Important that the private plaintiff who seeks to represent the public interest should have this degree of motivation.

o It is undesirable that every government decision should be at risk of being set aside at the suite of a person who has no stake in that decision – a “busybody” – as it could fuel the growth of litigation.

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- A “busybody” convinces himself – subjectively – that there is cause for grievance when there is none. He should be refused. But a man who is genuinely concerned can point – objectively – to something that has gone wrong and should be put right. He should be heard (R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1980]).

♣Requirement of Interference with Private Right (current view of the High Court on standing in public law): ●Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) [HCA] pg. 855 ▪McHugh J:-Absent interference or threatened interference with a private legal right, an ordinary member of the public generally has no standing in the civil courts. Courts exist to protect the legal rights of individuals, not to ensure that individuals or public officials obey the law.

Applies whether the defendant is a private citizen or a government official. -The Attorney-General is regarded as the appropriate person to determine whether civil proceedings should be commenced to enforce the public law of the community, and a private individual is unable to challenge the decision. -The enforcement of the public law of a community is one of the chief responsibilities of the executive government. -The main difference between the Crown and the public is that the Crown has the sole right to use force legitimately.

The Case against Restricting Standing in Public Law Litigation pg. 856♠Arguments against restricting standing:-The law should not inhibit the ability of the courts to restrain unlawful government action and, in the process, to safeguard the rule of law.-Public interest litigation is an important mechanism for clarifying legal issues or enforcing laws to the benefit of the general community. Or, it may develop the law generally so as to reduce the need for further litigation. -From a jurisprudential perspective, the law of standing rests upon elastic phrases (‘special interest’, ‘person aggrieved’) that are difficult to apply in a meaningful way. -The current law on standing acts as an extra source of unnecessary legal costs and delay it does not act as an effective filter. Such a filter is provided by other laws and discretions available to the court. This can make the legal system appear unfair, inefficient, and ineffective.

●E C Fisher & J Kirk - ‘Still Standing: An Argument for Open Standing in Australia and

England’ pg. 858-Open standing can be justified by reference to democratic theory: The essential definition of democracy is power of, or rule by, the people. Implicit in that definition is an assumption that citizen participation in government is a requirement for legitimate government decision-making.

Standing in a Jurisprudential Setting pg. 859●L A Stein - ‘The Theoretical Bases of Locus Standi’ pg. 859-‘Jurisdiction de droit objectif ’ approach:

o Judiciary assumes the role of protector of the public interest by control of the executive and legislative functions of government.

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o Emphasis on bringing matters under review ‘Jurisdiction de droit subjectif’ approach:

o Emphasis on the interference by the executive and legislative branches of government with ‘personal’ individual rights.

o Locus standi rules would confine judicial review-Administrative bodies, in making decisions, do not usually take into account the “public interest” – those values not represented by a particular industry the subject of regulation or special interest groups.

Standing – Foundation Cases pg. 859High Court Decisions♣Public Interest Group: Special Interest Requirement:●Australian Conservation Foundation v Commonwealth (1980) [HCA] pg. 861▪Facts: Iwasaki proposed to establish a tourist resort at Farnborough. Before approval could be given, an environmental impact process had to be conducted. ACF commenced proceedings in the original jurisdiction of the High Court for a declaration and an injunction, claiming that the Commonwealth proposed to give approval to the project without properly complying with the EPIP Act.▪Found: -ACF had no special interest in the preservation of the environment at Farnborough. Its claim to standing was not strengthened by the fact that it was incorporated with particular objects. The fact that it, as permitted by administrative procedures, had sent written documents would only have some significance if the administrative procedures revealed an intention that a person who sent written comments thereby acquired further rights.▪Gibbs CJ:o Requirement of ‘special interest’:

- Rule: An ordinary member of the public, who has no interest other than which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty.

- Rule: A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless he is permitted by statute to do so.

- Rule: A plaintiff can sue without joining the Attorney-General where the interference with the public right is such as some private right of his is at the same time interfered with.

o What constitutes as a ‘special damage’:- Rule: It does not mean a mere intellectual or emotional concern – a belief,

however strongly felt, that a particular law should be observed, or that conduct should be prevented, does not suffice to give its possessor locus standi: Mason J

- Not limited to actual pecuniary loss- No requirement that the plaintiff be the only one who had suffered damage

o Rule: A corporation does not acquire standing because some of its members possess it.

♣Aboriginals: Importance of Subject Matter to Plaintiff:●Onus v Alcoa of Australia Ltd (1981) [HCA] pg. 863▪Facts: The plaintiffs, who were members of the Gournditch-jmara Aboriginal people, claimed that Aboriginal relics would be destroyed by the construction of Alcoa of an aluminium smelter. ▪Found: The appellants would be more particularly affected than other members of the Australian community by the destruction of the relics as they are the custodians of the relics

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which are of cultural and spiritual importance to them and which they have used to teach their children the culture of their people. Hence, there was special interest. ▪Gibbs CJ: -Rule: A plaintiff must show that he has been specially affected, i.e. in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner. -Person must be aggrieved to the extent that their interests are adversely affected by the decision or conduct being challenged. (ss3.5 ADJR ACT)-It is not necessary to show that the plaintiff is uniquely affected.-The law seems to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff’s relationship to that subject matter.

♣Employee Union: ●Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) [HCA] pg. 865▪Facts: A union of employees sought standing to seek a declaration of invalidity of a decision by the minister to permit Sunday retail trading. ▪Court: The employees had an interest in the trading hours of the shops in which they were employed which was greater than that of other members of the public – it affects the terms and conditions of their employment.

♣Combination of Circumstances to Form Special Interest: ●Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) [FCA] pg. 866▪Facts: The institute requested a statement of reasons in respect of a decision by the secretary to issue a ‘manning notice’. Such a notice estimated for taxation depreciation purposes the number of crew members required to enable a ship to be operated in a safe and efficient manner. The institute claimed that the notice specified a number that was too low.▪Found: The applicant had among its interests or objects the obtaining and maintenance of reasonable conditions of employment of its members. Hence, it had an interest in the matter of an intensity and degree well above that of an ordinary member of the public.▪Gummow J:-Rule: A number of matters may be added up so that the applicant can be found to have a special interest where there was not one before.

♣Interest Group: ●North Coast Environment Council Inc v Minister for Resources (1994) [FCA] pg. 867▪Facts: The council requested a statement of reasons in respect of a decision by the minister to grant a licence to a company (Saw-millers) to export woodchips.▪Sackville J: NC’s concerns were more than mere ‘intellectual or emotional’ as it is recognised by both the Commonwealth and State as a responsible environmental organisation, deserving financial support and participation in government decision-making. It has examined forestry issues, showing that it has had a keen interest in wood chipping operations. There is no other conservation body with a greater interest or commitment to the issue. Hence, NC had a particular interest in the decision.

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♣Interest Group: ●Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) [FCA] pg. 868▪Facts: The association challenged the failure of the secretary to take action to stop the clinical trial of an abortion drug.▪Found: The moral and political questions of the right to life and the permissibility of abortion are not addressed by the Act. The appellant had no greater interest in the subject matter of the Secretary’s decision than any concerned person might have. There was only an intellectual, philosophical and emotional concern, not a special interest.▪Lockhart J:-Rule: The applicant must establish that if successful in the proceeding he will gain a benefit or advantage greater than the benefit or advantage thereby conferred upon ordinary members of the public; or, in the alternative, that success in the proceeding would relieve the applicant of a disadvantage or detriment to which he would otherwise have been subject to an extent greater than ordinary members of the public.

Specific Remedies and the Principles of Standing pg. 871Non-Statutory Remedies Remedies :

o Declaration and injunction :- Requirement that the applicant has a special interest in the subject matter (ACF,

Onus)o Mandamus (=A writ issued by a superior court ordering a public official or body or a

lower court to perform a specified duty):- Granted to a prosecutor who demonstrates a sufficient interest or specific legal

right in enforcing a public duty that is owed to them (Blackburn).- The test is more restrictive than for other prerogative writs.

o Habeas corpus :- The dominant purpose of this remedy is to seek the release from detention or

imprisonment of a person who is being unlawfully detained.- Rule: Anybody in the community who knows that a person is wrongfully

imprisoned has a right to have the writ to discharge that person out of the imprisonment: R v Waters

- It is nevertheless possible that standing could be refused on discretionary grounds (Vadarlis).

o Certiorari and prohibition :- The purpose of these writs is to ensure that a public body acts according to law in

discharging its functions.- They can be initiated by a ‘stranger’ – a person with no private legal right or

interest to protect – if it appears that the court is about to step beyond its jurisdiction.

- A court nonetheless has discretion to refuse a writ; a court may be less inclined to exercise its discretion in favour of a stranger as opposed to a person aggrieved (McBain).

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♣Strangers to Proceedings: ●Re McBain; Ex parte Australian Catholic Bishops Conference (2002) [HCA] pg. 872▪Facts: The Bishops Conference had been granted the fiat (=sanction=order) of the Commonwealth Attorney-General to commence proceedings in the HC, seeking the writ of certiorari to quash a decision of the FC that permitted IVF treatment for single women.▪Found: Although the claim of the Conference for the issue of the writ gave rise to a ‘matter’, the sound exercise of judicial discretion required that the application be refused as they were not persons aggrieved by the order made – their beliefs did not give them ‘special interest’ in the outcome of proceedings. ▪McHugh J:-Permitting strangers to apply for certiorari helps to ensure that ‘the prescribed order of the administration of justice’ is not disobeyed. -Rule: However, if the applicant (stranger) is not a person aggrieved, the court will consider ‘whether the interest of the applicant is so small, or his grievance so like the rest of [the public], so as to leave no sufficient ground for the issue of the writ’.-Rule: The Attorney-General always has standing.

~ The necessary interest does not need to be a legal, proprietary, financial or other tangible interest: United States Tobacco Co v Minister for Consumer Affairs (1988)

♠Administrative Decisions (Judicial Review) Act pg. 875

♠ Administrative Appeals Tribunal Act 1975 (Cth) pg. 877 Defines who is entitled to lodge an application for review:

o s27(1):- By or on behalf of any person/s affected by the decision- An organisation/association if the decision relates to a matter included in their

objects/purposes unless the decision was made before the objects/purposes were formed.

o s30: - “Any other person whose interests are affected” by a decision, at the discretion of

a tribunal.

♠ Administrative Decisions Tribunal Act 1997 (NSW) pg. 881 An application for review may be made by “an interested person” (ss42, 55) “Interested person” = “a person who is entitled under an enactment to make an

application” for review (s4) The tribunal may allow a person to be joined as a party to a proceeding “if … satisfied

that the interests of the person are likely to be affected” by the decision to be reviewed (s67(4)).

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ss5, 6: proceedings can be instituted by “a person who is aggrieved” by a reviewable decision or conduct.

s3(4): “person aggrieved” = person “whose interests are adversely affected” by the decision/conduct.

s13: a ‘person aggrieved’ is entitled to be provided (at no cost) with a written statement of the reasons for the decision.


♣Interests Affected Sufficient:●Re McHattan and Collector of Customs (NSW) (1977) [AAT] pg. 878▪Facts: Customs had imposed a duty on a client of McHattan, a customs agent. McHattan applied for a review of Custom’s decision, claiming that his client had acted on his advice and that his professional standing was adversely affected as a result.▪Found: McHattan’s interests were not affected by the Collector’s demand. Hence, he was not entitled to commence proceedings on his own behalf. ▪Brennan J:-The interest of which s27(1) speaks is an interest which is affected by the decision to be reviewed, not by the review. The outcome or possible outcome of the proceedings is not the criterion for determining whether the proceedings have been duly instituted.

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Week 6.2 – Introduction to Judicial Review

The Framework for Judicial ReviewIntroduction pg. 37-Judicial review is more narrowly confined than merit review – looks only at law.-Courts may only grant judicial review when someone seeks the making of an order/writ, including both common law and equitable orders.

Sir Gerard Brennan, ‘The Purpose and Scope of Judicial Review’ pg. 38-Giving courts the authority to strike down the decisions and actions of the executive is not a universal mechanism for subjecting the executive to legal rules.-Ours is a system of inevitable, if not intended, inefficiency.

Sir William Wade, Constitutional Fundamentals pg. 39-To exempt a public authority from the jurisdiction of the courts of law is, to that extent, to grant dictatorial power.-This is the justification for the strong, even rebellious, stand which the courts have made against allowing Parliament to create pockets of uncontrollable power in violation of the rule of law.

The Judicial Review Framework in each Australian JurisdictionThe Legal basis for Judicial ReviewJudicial Review at Common Law pg. 39-The basis for the development of judicial review was the remedies (certiorari, prohibition, mandamus, habeas corpus, declaration and injunction), which are procedural in nature.-These prerogative writs or remedies are part of the procedures of JR. The substantive side is the criteria which govern their applicability such as breach of natural justice, jurisdictional error, unauthorised purpose, irrelevant considerations, and inflexible application of policy.Judicial Review under Statutory Schemes pg. 40-Statutory framework for judicial review by the Federal Court: Administrative Decisions (Judicial Review) Act 1977 (Cth)Indirect Judicial Review pg. 40-The legality of government action is often raised in the course of criminal and civil law proceedings. These are termed as collateral challenges.

Commonwealth – Federal Court pg. 41- The court is a creature of statute and its jurisdiction is limited to those areas conferred upon the court by parliament: Federal Court of Australia Act 1976 (Cth) s19.-Should an applicant use ADJR Act or s39B Judiciary Act to seek judicial review?An applicant can use both.However, ADJR Act offers some procedural advantages over Judiciary Act, such as:

right to statement of reasons (s13) flexible remedies available (s16) simpler procedures for commencing an action (s11) procedure for stay of proceedings (s15)

Administrative Decisions (Judicial Review) Act 1977 (Cth) pg. 41

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-Provisions:o Procedure for review application (s11)o Grounds of review (ss5, 6)o Relief the court can give (s16)o Court’s power to stay the operation of a decision being challenged (s15)o Procedure by which a person can obtain a written statement of reasons for a decision

before commencing action (s13; cf Sch 2)o Categories of administrative action excluded from review (Sch 1)o Certain qualities which an action must have to be reviewable :

It must be a ‘decision of an administrative character made…under an enactment’ (s3); or

Conduct for the purpose of making a decision (s6)

Judiciary Act 1903 (Cth) pg. 41 Original jurisdiction of the Federal Court includes any matter:

In which mandamus/prohibition/injunction is sought against an officer of the Commonwealth (s39B(1))

In which the Commonwealth is seeking an injunction/declaration (39B(1A)(a)) Arising under the Constitution, or involving its interpretation (b) Arising under any laws made by the Parliament (c)

Where a matter (involving the Commonwealth) is pending in the HC, the HC may, upon the application of a party or of the HC’s own motion, remit the matter to the Federal Court (s44(2A)).

-s39B(1A) – confers the court a federal jurisdiction in civil matters.-s39B(1A)(c) –FC can review the validity of subordinate legislation, which they can’t do under the ADJR Act as they are not of an administrative character.-Limits: the jurisdiction under s39B does not reach as far as the original jurisdiction conferred on the HC by the Constitution s75(iii), which embraces any claim against the Commonwealth.

Court Remedies Source of Power

Supreme Court

General jurisdiction

1. Prerogative remedies – CL remedies of Certiorari Prohibition Mandamus Habeas corpus

2. Equitable remedies Declaration Injunction

Common law inherent (plenary) jurisdiction of Supreme Court to grant the CL and equitable remedies in relation to decisions of an administrative character

s75 of Supreme Court Act 1970 for declarations

s4(1) Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) – empowers the state courts to exercise the powers of the Federal Court in very limited circumstances

High Court Mandamus Prohibition Injunction Declaration

Constitution

s75(v) - original jurisdiction –

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Injunction Any remedy that the

Court thinks fit to do justice between the parties

M,P,I is sought against an officer of the C’wealth (exclude statutory corporations).

- No grounds are stated, to be filled by common law.

- Immune to privative clauses.

- s73 – appellant jurisdiction from Supreme or Federal Court is leave is granted

Judiciary Act

- s32 – HCA is allowed to grant any remedy as it thinks fit and the parties are entitled to. But must establish entitlement to M,P,I first.

- s30 – enlarges jurisdiction to hear ‘all matters arising under the Constitution and its interpretation’

- s33 – can grant remedy of HB, P, M, QW.

- s44(2A) –can remit for hearing in the federal court a case commenced in the original jurisdiction

Federal Court

(most cases for judicial review are heard in this court, commenced under ADJR Act, except immigration )

ADJR Act – s16

In relation to decision (1), conduct (2), failure to make a decision (3)

(a) quash (b) remit to original

decision-maker (c) D - declaring rights of

parties in relation to original matter

(d) I – Do or refrain from doing something that is necessary to do justice between the parties

Creature of statute, jurisdiction limited to Federal Court of Australia Act 1976.

ADJR Act, must be either:- Decision of an administrative

character… made under an enactment – s3

- Conduct for the purposes of making a decision – s6

- Excludes decisions made by GG – s3(1)

- Procedures (s11)- Grounds of review (ss5,6)- Relief (s16)- Power to stay the operation of

decision being challenged (s16)- Procedure to obtain written

statement of reason (s13)

s39B Judiciary Act

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- (1) original jurisdiction includes matter in which M,P, I is sought against an officer of the C’wealth (match HCA’s s75(v))

- (1A) (a) C’wealth seeking I, D (b) Arising under Constitution, or involving its interpretation (c) Arising under any laws made by Parliament

s44(2A) Judiciary Act- matter that the HCA can hear

under s75(v) can be remitted to Federal Court

Migration Review Tribunal, Refugee Review Tribunal

Migration Act 1958 (Cth)

Before judicial review can be commenced, person must appeal to MRT, RRT

s477(A) – Appeal to Federal Court must be commenced within 28 days of decision

Federal Magistrates Court

Federal Magistrates Act (1999)

Jurisdiction to hear administrative law cases under ADJR Act

Review decisions of tribunals made under Migration Act

No jurisdiction under s39B Judiciary Act

Associated and Accrued Jurisdiction and the Federal Court of Australia Act 1976 (Cth) pg. 43-Associated jurisdiction=‘jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked’ (s32 FCA).

•Confined by areas of jurisdiction mentioned in ss75 and 76.•Has become less important since the enactment of s36B(1A)(c) which confers a parallel jurisdiction on the court.

-Accrued jurisdiction=Inherent power of a superior court to settle the controversy before it by dealing with all issues that ‘arise out of common transactions and facts:’ Fencott v Muller.

•Can include a non-federal claim under state or common law, arising from same transactions and facts.

-There is a degree of overlap between the concepts of associated and accrued jurisdiction but important differences as well such as:

o Associated jurisdiction is confined to federal claims while accrued jurisdiction is not

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o Matters may be associated even though they are disparate, but the accrued jurisdiction has to arise from the same transaction

o Accrued jurisdiction has become more important in recent years.-In considering the relief the FC can give, need to take into account (FCA):

•s21: the court can ‘make binding declarations of right, whether or not any consequential relief is or could be claimed’.•s22: the court can grant ‘all remedies to which any of the parties appears to be entitled’.•s23: the court ‘has power…to make orders of such kinds…as the court thinks appropriate’.

▪The powers can only be exercised if a party can first demonstrate an entitlement to obtain an injunction, mandamus or prohibition.

Migration Act 1958 (Cth) pg. 45-PT 8: required that before a person applies to the FC for judicial review, he or she must first seek review of the decision on the merits by the Migration Review Tribunal or the Refugee Review Tribunal. -Revised PT 8: stated that proceedings can be commenced in the FC under the JA s29B or in the HC under the Constitution s75(v) but are subject to a privative clause. This clause does not limit review for jurisdictional error and does not have to apply to the FC before 28 days after tribunal decision.

Other Limitations on the Federal Court’s Jurisdiction pg. 46-Rule: The ADJR Act s9A and the JA s39(1B)-(1F) together provide that the FC cannot undertake judicial review of decisions made during the criminal justice process, particularly committal proceedings.-The FC has a jurisdiction to review most but not all Commonwealth administrative actions.

Commonwealth – Federal Magistrates Court pg. 47- FCM’s jurisdiction is conferred by statute. It has similar jurisdiction as the FC (ADJRA, Migration Act, but it does not have JA s39B)- s18:

•Matters commenced in the FC under the ADJR Act can be transferred to the FMC, and vice versa.•Appeals from the AAT to the FC can be transferred to the FMC.•FMC has associated jurisdiction.

- Expected to deal mainly with less complex matters; to do so quickly, less formally, and inexpensively; and to place active reliance on alternative modes of dispute resolution.

State Supreme Courts-State and Territory Jurisdiction in Federal Matters pg. 47- Constitution s77(iii) and the JA ss39(2) and 68 confer federal jurisdiction on state courts in civil and criminal matters.- s32A FCA: each state Supreme Court has jurisdiction to deal with an application in chambers in respect of any matter pending in the FC.-It is probable that territory courts cannot undertake judicial review of Commonwealth decisions made within the territory unless a jurisdiction to take effect is specially conferred by statute.

The High Court’s Original Jurisdiction pg. 48

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-Constitution s75: In all matters in which: the Commonwealth is a party; or (v) a writ of mandamus/prohibition/injunction is sought against an officer of the commonwealth, the HC shall have original jurisdiction.-Constitutional importance of s75:

•Makes it constitutionally certain that there would be jurisdiction capable of restraining officers of the Commonwealth from exceeding federal power (Bank of NSW v Cth.).•Provides a back-up jurisdiction when the opportunity for judicial review is denied or unavailable in other courts since federal judges come within the phrase ‘officer of the Commonwealth’.

- The court’s jurisdiction is supported by the JA:- s44(2A): HC can remit for hearing in the FC a case commenced in the original

jurisdiction.- s30: enlarges the original jurisdiction to include ‘matters arising under the

Constitution or involving its interpretation’.- s33: confers a specific power on HC to grant the writ of habeas corpus and to make

orders in the nature of prohibition/mandamus and quo warranto.- s32: provides that, in exercising original jurisdiction, the HC has the power to grant

‘all such remedies whatsoever as any of the parties thereto are entitled to…so that as far as possible all matters…may be completely and finally determined’.

State and Territory Judicial Review Schemes pg. 50-The Supreme Court of each state/territory has a general civil and criminal jurisdiction →in undertaking judicial review of state/territory action, it faces less problems dealing with the precise source of jurisdiction.

New South Wales pg. 51-The court ‘shall have all jurisdiction which may be necessary for the administration of justice’ (Supreme Court Act 1970 (NSW) s23).-The court is empowered to make the most appropriate order in the circumstances (Supreme Court Rules (NSW) Pt 54).

Integration of Australian Judicial Review Schemes pg. 52-The ways in which the state/territory and Commonwealth judicial systems are integrated:

State courts are invested with federal jurisdiction The HC has an appellate jurisdiction under Con s73 to hear appeals from FC or SC

subjected that it first gives special right to appeal. The Cross Vesting Scheme invests the FC and the state SC with the jurisdiction of

each other court. Hence in a matter involving both the Queensland and the NSW governments, Supreme Court from either State can hear the matter. A number of restrictions exist on this cross vesting scheme:

o Firstly, it provides that a court is to transfer a proceeding to another court if it is more appropriate,

o A special federal matter defined to include any proceeding that could be commenced under the ADJRA and the JA s39(B) shall be transferred to the FC unless the state SC has there are special reasons other than convenience of the parties.

o The scheme can’t cross vest state jurisdiction to the FC. The FC has to rely on accrued jurisdiction to undertake JR. However there are a number of recent developments which have overcome this problem (see textbook)

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Jurisdiction under the Constitution s75(v) and the Judiciary Act 1903 (Cth) s39B pg. 96-Compared the ADJRA, the Con s75(v) [high court] and JA s39B [federal court] have broader jurisdictional criteria – for example, they cover decisions of a legislative character and decisions made pursuant to executive and prerogative power. -s75(v) & 39B(1) are phrased identically and contain three requirements:

•It must be a ‘matter’ – there must be a controversy about rights, duties or liabilities that can be quelled by the exercise of judicial power (McBain)•There must be an entitlement to one of the remedies of mandamus/prohibition/injunction, even if seeking an ancillary remedy such as certiorari/declaration.

Mandamus and prohibition are available only to correct a jurisdictional error (a narrower concept than under ADJR Act).

•Relief must be sought against ‘an officer of the Commonwealth’. A statutory corporation is not an officer of the Commonwealth (Post Office

Agents Association v Australian Postal Commission (1988) 84 ALR 563). A state court exercising federal jurisdiction is not a Commonwealth officer (R v

Murray and Cormie; Ex parte Commonwealth (1916) 22 CLR 437).

Justiciability pg. 56-If a question is non-justiciable, this means it is not appropriate or fit for judicial determination or evaluation.-This may relate to the nature of the issue, plaintiff’s standing, ground of legal error asserted, nature of relief claimed, time at which proceedings were commenced, etc.- It is inevitable that the boundaries of justiciability move over time, usually expanding the range of government decisions that are subject to judicial scrutiny.

♠Sir Anthony Mason AC KBE, ‘The High Court as Gatekeeper’ pg. 56-‘Justiciability’ is not susceptible to precise definition, but may be seen as an expedient shorthand for expressing a conclusion reached by applying other principles of public law.

~The exercise of judicial power is restricted to cases that require a determination of legal rights and interests of, or claims made by, an individual (McBain, CCSU, and Peko EZ).

♣The “matter”: ●McBain; Ex Parte Australian Catholic Bishops Conference (2002) [HCA] pg. 58▪Facts: -Dr McBain successfully won an action which declared that the Infertility Treatment Act was invalid as it only gave treatment to married couples. Because the Catholic Bishops Conference was not a party to the original proceedings, they had no right to appeal to the HC. The Bishop Conference - not a party to the FC proceedings – initiated proceedings against the decision. Not a party and therefore no standing but it obtained standing through Attorney General.▪Found: There was no justiciable issue between the Bishops and McBain.▪Court: -Rule: People who were not parties to litigation do not have a claim of right to have judicial decisions quashed because they are erroneous. (Gleeson)-‘Matter’ is:

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A controversy about rights, duties or liabilities which will, by the application of judicial power, be quelled/crushed.

Must be real and immediate . Claims of the invalidity of legislation brought in the name of an Attorney-General.

-No matters with respect to: Hypothetical questions – “it can only be exercised in the course of deciding cases

that are brought for judicial decision” Rule: A person who has only a theoretical interest in the subject matter. “Wrongs” for which there is no remedy .

-While proceedings by the Attorney General on the validity of certain legislations do amount to matters, in this case, the distinction is that it is the Commonwealth Attorney General who is asserting that the state legislation is invalid.

♣National security is non-justiciable: ●Council of Civil Service Unions v Minister for the Civil Service [1985] [House of Lords] pg. 60 ▪Facts: - The Minister for the Civil Service, Mrs. Thatcher, made a decision that civil servants employed at the GCHQ could no longer belong to a trade union other than a staff association approved by the director of the GCHQ. The reason given by the minister for the decision was that industrial disputation by staff and unions had impaired the ability of the GCHQ to discharge its function of ensuring the security of UK military. Neither the unions nor the civil servants were consulted prior to the minister’s decision due to the risk of provoking further disruptive action inimical to the national security role. It was claimed that the decision was invalid by reason that the minister’s failure to consult the unions was a breach of natural justice.▪Found: The Minister was justified in the interests of national security in issuing instructions without prior consultation with the union.▪Court: - A decision of which the ultimate source of power to make it is not a statute but the prerogative may be subject to judicial review, at least in respect with an infringement of natural justice.-Prerogative powers which are not susceptible to review because their nature and subject matter is such as not to be amenable to the judicial process:

Those relating to the making of treaties, defence, international relations, the dissolution of Parliament, and appointment of Ministers.

- Rule : National security is a non-justiciable question .

♣No direct and immediate effect; Cabinet Decisions; International Treaties/External Affairs; No Obligation to seek and hear all Affected Persons: ●Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) [FCA] pg. 63 ▪Facts: - Decision of the Cabinet to nominate Stage 2 of Kakadu National Park for inclusion on the World Heritage List. The decision was made in the exercise of prerogative power. It did not directly affect any existing interest of the Peko group, but was disadvantageous concerning the opportunity for it to undertake future mining under the licenses it held with the park. There was no hearing given to Peko in accordance with the requirement of natural justice.▪Found: As the case related to a decision to implement a treaty, and there was no direct and immediate effect, the decision made was not justiciable.

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▪Bowen CJ: - The whole subject matter of the decision involved complex policy questions relating to the environment, the rights of Aboriginals, mining and the impact on Australia’s economic position as well as matters affecting private interest.-It would be inappropriate for a court to intervene to set aside a Cabinet decision.

•It is essentially a political organisation, and acts on complex policy considerations.•Each Minister has the support and advice of a department of State. Every citizen has access to a local member who can assist in the advancement of the individual citizen’s point of view.

- There is no obligation for government, before making any decision which may be financially disadvantageous to an individual, to seek out and hear all affected persons.-Rule: Not enough that the instant decision might lead to some future decision or action which would have the specified effect. So it is necessary to consider the direct and immediate effects of the Cabinet decision: Wilcox J.-2 Tests:

o Whether a decision of a Cabinet (operating under prerogative power) may be the subject of judicial review

o Whether there exists any obligation to afford natural justice to affected persons by Cabinet decisions

-Rule: 2 elements:o Justiciability – the decision must have direct and immediate consequence on

rights/privileges o Does it contain some special feature? For example, national security and

international treaty

~ Rule: Justiciability does not turn on whether an exercise of power is statutory or prerogative in origin, but on the nature of the power being exercised or the decision being made.-Justiciability and standing can occur at the same time but do not relate to one another.

Week 7 – Introduction to Judicial Review: 2

Judicial Review across the Public/Private DivideGovernment in Perspective pg. 98- It was noted here the difficulty in defining the public and private divide and hence applying administrative law mechanisms. This difficulty is due to the presence of government business enterprises (GBE) competing in the market against private corporations, and corporations which discharge government service under contracting out arrangements.- An issue which sometimes arises is whether the grounds of review apply to a private law activity of government, or whether a public law remedy can be directed to a non-government body.

Non-Government Bodies

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●NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) [HCA] pg. 106 ▪Facts: -Under the Wheat Marketing Act, it was an offence to export wheat without the consent of the Wheat Marketing Authority, which in turn required the written consent from the AWBI before it can grant consent.-AWBI had a right to export wheat under the Act: it was thus in a position to maintain a monopoly by vetoing the export of wheat by a competitor.-NEAT applied for and was refused export approval. NEAT challenged that decision under the ADJR Act, claiming that AWBI had made a decision of an administrative character under an enactment, and that AWBI was in breach of ADJR Act s 5(2)(f) by applying a policy inflexibly without regard to the merits of the case.-AWB is not govt owned or controlledno power derived from legislation.▪Gleeson CJ: -AWBI was not in breach of the ADJR Act s 5(2)(f) as the Act authorised AWBI to veto wheat export by competitors. AWBI’s policy of vetoing exports and preserving the single-desk system of export marketing was not inconsistent with the Act, but in fact “closely reflected the legislative purpose”.- While the AWBI was not a statutory authority, it represents more than just private interests, but also the interests of wheat growers and national interests.▪McHugh, Hayne & Callinan JJ: -AWBI was under no duty imposed by the Act to consider “‘public’ considerations when deciding whether or not to grant approval”.- Also it was open to AWBI to “consider its own commercial interests” and seek “to maximise returns to those who sold through the pool arrangements”.- For these reasons, neither a decision of AWBI not to give approval to a consent to export, nor a failure to consider whether to give that approval, was open to judicial review under the ADJR Act.

Government Commercial Activity pg. 109-Government business enterprises are subject to considerable legal regulation of a non-administrative law kind, e.g. consumer protection, fair trading and price control regulation.-Contest between competing objectives – preserving competitive market efficiency vs. protecting individual rights and securing public accountability.

♣Administrative Review Council, Government Business Enterprises and Commonwealth Administrative Law pg. 110-In relation to a GBE’s commercial activities undertaken in a market where there is real competition, as a general principle, Commonwealth administrative law statutes should not apply.

- Would not possess government powers or immunities - Would be susceptible to private law just like its competitors – it is recommended that

they should not enjoy any net competitive advantage by virtue of their ownership.- Private law remedies are available against them e.g. industry ombudsmen – though, it

is acknowledged that they are unlikely to be as assessable as the administrative law.-Contracted out service provider is not subject to judicial review.

Jurisdictional Limitations on Judicial ReviewJurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) pg. 71-The ADJR Act confers jurisdiction on the Federal Court and the Federal Magistrates Court to undertake the review of “a decision to which this Act applies” (s 5) and ‘conduct for the purpose of making a decision to which this Act applies” (s 6). The terms “decision” and

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“conduct” are spelt out further in s 3-Interpretation (particularly s 3(2), (3) and (5): pg 114-7 of SM).-Refer to section 5 ADJR Act for ‘Applications for review of decisions’ and section 6 for ‘applications for review of conduct related to making of decision.’ Supp. pg. 118-119-The ADJR Act offers many procedural advantages that are not found in s 39B e.g.:

The rights to a statement of reasons under s 13 for decisions to which the ADJR Act applies;

The flexible remedies available under s 16; The simpler procedure for commencing an action under s 11; and The procedure for a stay of proceedings under ss 15, 15A.

-Schedule 1 of ADJR Act-‘Classes of decisions that are not decisions to which this Act Applies’ Suppl. pg. 128

•(daa) Decisions of Attorney General•(da) Privative clauses•(ea) Decisions of Commissioner of Taxation•(o) Decisions under the Defence Force Discipline Act 1982•Criminal prosecution

“Decision” and “Conduct” pg. 73-“Decision” refers to administrative activity that is substantive, final and operative; and that “conduct” refers to administrative activity preceding a decision that reveals a flawed administrative process: Bond.♣Definition of ‘Decision’ and ‘Conduct’; “Fit and Proper”: ●Australian Broadcasting Tribunal v Bond (1990) [HCA] pg. 74 ▪Facts: - The Broadcasting Act 1942 (Cth) ss 85, 88 conferred power on the ABT to conduct an inquiry into whether the holder of a commercial broadcasting licence was a fit and proper person to hold the licence and if not, whether the licence should be revoked, suspended or have conditions imposed upon it. Mr Bond, through his shareholdings in a number of companies, was able to determine the composition of the boards of directors of companies that were the holders of commercial broadcasting licences in Queensland. The tribunal conducted an inquiry into whether, by reason of certain conduct of Mr Bond, those licensees were fit and proper persons to hold their licences. The inquiry looked at two incidents in particular:

1. A comment made by Mr Bond in an interview on a current affairs program that “to do business successfully in Queensland”, he had made a generous financial settlement of an unresolved defamation action by the Queensland Premier Sir Joh Bjelke-Petersen that was pending against the licensee of a television station at the time Mr Bond acquired control of it.

2. An allegation that Mr Bond had threatened to use his television station to broadcast damaging information about a business competitor (the AMP Society).

▪Mason CJ: -Narrow meaning of decision under ADJR:a. s3(2) refers to “decision of an administrative character…made under an

enactment,” implying a decision is one required by statute, not merely a step taken in reasoning.

b. Examples of decision in s3(2) have the quality of finality- they are of substantive character.

c. s3(5) states preparatory acts are not to be considered decisions, or it defies the point of having ‘conduct’ reviewable under s6

d. conclusions are not reviewable decisions unless the statute provides for it-No narrow view should be taken of the word “decision”.

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- Conduct is not reviewable unless a procedural requirement is breachedo Decision = determination made for the statute, that’s final in character

complaints about decision itselfo Conduct = action taken, rather than a decision made, for the purpose of

making a reviewable decision – essentially procedural and not substantive in character.

The determination that Mr Bond wasn’t ‘fit and proper’ was not conduct (procedural), was just a step in reasoning, and therefore unreviewable.-Rule: The decision should generally be final or operative or determinative. A decision or conclusion which is reached along the way would not generally amount to a “decision” unless the statute provided for the making of a finding or ruling on that particular point. - It follows therefore that findings of fact and inferences from findings of fact are generally not capable of review as conduct unless what is alleged is some breach of procedural requirements in the course of conduct involved in reaching the relevant conclusion.▪Gaudron & Toohey JJ: -If a reviewable decision is found to be in error, there’s no point dissecting the reasoning behind that decision unless it identifies some reviewable error attending the decision itself.

~The guiding principle here is the same one from Bond – whether the report is substantive and final or does it only express opinions or statements which do not have significant effects.

♣A decision not to act is still a decision: ●Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) [FCA] pg. 81 ▪Facts: -The Right to Life Association wrote to the secretary objecting the clinical trials being conducted on abortion drugs. The Secretary wrote back saying that he would not direct the trial to be stopped.▪Lockhart J: -In the ADJR Act, a reference to the making of a decision includes a reference to the doing or refusing to do a relevant act or thing: ADJR Act, s 3(2)(a), (b) and (g).-The secretary had made a ‘final and ultimate decision not to give the direction.’ Therefore, the secretary’s letter gave rise to a reviewable decision under the ADJR Act.

♣Reviewable Report: ●Kelson v Forward (1995) [FCA] pg. 82 ▪Facts: -The Merit Protection and Review Agency has statutory power at the request of the minister to inquire into and report to the minister on any matter relating to the employment of Commonwealth employees.-Workplace harassment was alleged at the war memorial, but the MPRA report was found, on review, to have used the wrong tests for harassment. ▪Found: -The making of the report by was a reviewable decision.▪Finn J: -Whether a decision is reviewable or not depends on the terms and time of request for review; rights and interests it can affect; and relationship to other decisions/actions in the process of reasoning.-The report, ‘of itself’, was able to effect the interests of the applicants. However, this effect alone would not have made the report a reviewable decision – it is a combination of the qualities of finality and substantive determination which is necessary to produce that result. Although the Report has been kept confidential, the risk to reputation begins at the moment the Report is submitted to the Minister.

“Decision … of an Administrative Character” pg. 87

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-The approach has been to ask whether the action under challenge is “legislative” or “judicial”, and if not, by deduction it is “administrative”.

♣Administrative in Character: ●Federal Airports Corporation v Aerolineas Argentinas (1997) [FCA] pg. 89 ▪Facts: - Federal Airports Corp had statutory power to set aeronautical charges, in order to be financially viable. It set a landing charge for large aircraft.▪Found: -The creation of the charge was administrative in character▪Lehane J: -Even though the generally imposed ‘charge’ is legislative in nature, it is related to the expenses incurred for the public purpose of managing the airport.- It was a decision made for the purpose of the FAC’s commercial operation, and executed/administered the purpose of the FAC Act.

“Decision … made … under an Enactment” pg. 91-Enactment =instrument which includes rules regulations, by-laws and subordinate legislation made under made under such an Act or under such an Ordinance: ADJR s 3(1).-Under an enactment means that there must be a direct link between the decision and the enactment.

♣Administrative Character- Decision made ‘under an enactment’: ●Griffith University v Tang [2005] [HCA] Supp. pg. 97 ▪Facts: -Appellant university created under Griffith University Act 1998. University committee expelled PhD student on basis of academic misconduct.-Tang sought review under QLD’s ADJR (identical) to set aside decision. QLD Court of Appeal affirmed Supreme Court decision refusing university's application for dismissal.▪Found: - Held, allowing the appeal (4:1)(i) The decision made by the appellant was authorised, but not required, by its creating statute.(ii) Decision had no impact upon matters given legal force by the statute.(iii) The Judicial Review Act was not applicable to the university's decision this decision was not “made under an enactment.” ▪Gummow, Callinan & Heydon JJ: -The decision must gain its power to affect rights/obligations from the statute; not from the general law .- The committee making the decision got its powers from the statute, but any decisions it made were not “made under the enactment” for purposes of ADJR.-Rejection from the PhD program was not a “decision” relating to the matters the statute gave legal force.-Relationship b/w Tang and the university is a purely consensual arrangementeither party could terminate it for whatever reason.▪Kirby J (Dissenting): -The narrow approach of NEAT is being extended, reducing government accountability. -Most universities are statutorily created, publicly funded and have power to make subordinate legislation for their public purpose. Even private unis are governed under statute to ensure they lawfully confer degrees.

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Week 8 – Jurisdictional Error, Ultra Vires♠Aronson, Dyer & Groves, Judicial Review of Administrative Action Supp. pg. 134-The traditional model of administrative review follows the transmission belt theory- that the executive is a transmission belt for the elected legislature’s wishes; and judicial review is a mechanism to enforce the will of Parliament through statutory interpretation.-However, the current breakdown of the separation of powers has resulted in confusion about when judicial review is possible.-Jurisdictional error: Term applies only to courts-Ultra vires: Term applies to legislative and executive power-However, the HC in Craig v SA reaffirmed the distinction between jurisdictional and non-jurisdictional error of law Aronson et al agree that “the High court was right to turn all errors of law into reviewable errors.” Jurisdictional error is now a “conclusionary label,” and it nowadays just refers to any error which invalidates the decision or act in question.

Jurisdictional Error and Invalidity pg. 790-Rule: An error within a jurisdictional does not result in the decision being a nullity.

•The decision is liable to be set aside either by appeal (if the statute has created a right to appeal against the decision) or by certiorari for error of law on the face of the record (if there is another court with jurisdiction to issue that writ). The error can only be corrected in the jurisdiction in which the error was made.

-Rule: A jurisdictional error causes the proceeding or order to be invalid. •Can be corrected: By statutory appeal or In proceedings for judicial review:

Prohibition to prevent an excess of jurisdiction; Mandamus to compel fresh exercise of jurisdiction; Certiorari to quash the proceedings; or Declaration that the order or proceedings is a nullity.

-The jurisdictional error can be proved by evidence outside the formal record of the court, including affidavit evidence .-Other consequences attached to a jurisdictional error:

A privative clause will not generally be effective to preclude judicial review of a jurisdictional error: Plaintiff S157/2002.

A decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all: Bhardwaj. Thus the duty remains unperformed and can be re-performed without the existing decision first being set aside in judicial review proceedings.

-HC’s jurisdiction conferred by s75(v) cannot be taken away by statute → relief can be obtained in circumstances where there is no other avenue available to question a decision made by a Commonwealth officer.-There are five examples of jurisdictional error by an inferior court:

o Act wholly outside the general area of its jurisdiction (that is, acting in a criminal area in a civil jurisdiction)

o Partly outside its jurisdiction, such as to make an order which it does not have the power to make.

o Doing something which it lacks authority to do (for example, doing something with certain preconditions having been satisfied)

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o Where the court disregards or takes into account issues for consideration which are not outlined by the legislation or other instrument

o Where the court misconstrues the statute or other instrument -Difference between a tribunal and an inferior court of law:

•A tribunal does not have the power to authoritatively determine questions of law or make an order or decision otherwise in accordance with the law. Thus, when it identifies a wrong issue, asks a wrong question or takes the wrong issues into account, it immediately falls into a jurisdictional error. •On the other hand, an inferior court is meant to determine questions of law and fact and so such similar mistakes will not condemn the court to a jurisdictional error.

-Jurisdictional fact =Where parliament has stipulated that a power to make a decision is conditional upon the existence or occurrence of a special fact, event or circumstance.-The concept of jurisdictional error arises in many different areas of administrative law:

As a ground of review under the ADJR Act; As a ground on which the writ of prohibition issues; In defining the scope of the jurisdiction of the HCA under the Constitution s 75(v); In identifying which errors are protected by a privative clause; In controlling whether an erroneous decision can be subject of collateral challenge or

must be set aside by appeal or judicial review; In ascertaining whether an erroneous decision can be self-corrected by a decision-

maker; and As a concept linked to the related concept of jurisdictional fact

♣Jurisdictional Error of Tribunal/Inferior Court: ●Craig v South Australia (1995) [HCA] pg. 796▪Facts: -Charged on 3 motor vehicle charges. District Court ordered a stay due to lack of representation. State applied to Supreme Court for certiorari to quash the order of District Court.▪Found: An error (if any) by District Court couldn’t be quashed by certiorari because any such error was neither a jurisdictional error nor an error on the face of the record.▪Court: -Courts in Australia maintain the difference between error within jurisdiction and error without jurisdiction:

Error without jurisdiction: not a decision = nullity Error within jurisdiction = decision (error of law) – appellable

-Jurisdictional error on the part of an inferior court: Where it makes an order or decision which is based upon a mistaken assumption

or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

Making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers.

An inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do.

-Jurisdictional error where the tribunal has (to do with fact – facts are everything in a tribunal):

Identified a wrong issue Asked itself a wrong question Ignored relevant material Relied on irrelevant material Made an erroneous finding

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Reached a mistaken conclusion -Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.-Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers.- Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do.- Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case.

●Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) [FCA] pg. 798▪Facts: -It was approved for Jadwan to provide subsidised places for nursing home care. The Minister in making that decision used information compiled by a panel which consisted of an unqualified referee. There followed litigation and the FC made orders to set aside the decision of the minister, though did not set a date for operation of its order. Jadwan filed a further application seeking a declaration that it remained an approved provider throughout the history of the dispute.▪Found: There was no jurisdictional error so the minister’s decision was set aside from the time of the FC’s orderno declaration▪Gray & Downes JJ: -An administrative decision which involves jurisdictional error is ‘regarded, in law, as no decision at all’:

•Jurisdictional error affecting a decision is sufficient to take that decision outside the protection of the privative clause, because it cannot be regarded as ‘a decision...made…under this Act’.

-In enacting s 16(1)(a) of the ADJR Act, which permits the Court to quash or set aside a decision with effect from a specified date, parliament was acting on the assumption that even a decision tainted by jurisdictional error could have some force and effect, and leaving it to the Court to decide what force and effect should be accorded to such a decision.-It would have been perfectly proper for the Minister’s delegate to take into account the views of the panel as the collective views of three people. It was only the decision-maker’s ignorance as to the qualifications of a panel member that might have resulted in more weight being given to the views of the panel than would otherwise have been the case.▪Kenny J: -There are significant substantive differences between prerogative and like proceedings (whether brought under s 75(v) of the Commonwealth Constitution or s 39B of the Judiciary Act or otherwise) and proceedings under the ADJR Act:

o ADJR Act applicants did not need to choose a particular remedy because relief was given, pursuant to s 16, on the grounds of review set out in the ADJR Act;

o The distinction between jurisdictional and non-jurisdictional errors was not significant in an ADJR application; and

o The remedies under s 16 were broader and more flexible than those available at common law.

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●Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) [NSWSC] pg. 316▪Jordan CJ: -Rule: Mere fact that tribunal made mistake of law to the proper construction of statute, may not constitute failure to exercise jurisdiction.- If the mistake of law leads the tribunal to:

o Misunderstand the nature of the jurisdiction which it is to exercise and to apply a wrong and inadmissible test

o Misconceive its duty o Not to apply itself to the question which the law prescribes o Misunderstand the nature of the opinion which it is to form then the decision will be regarded as given in a purported and not a real exercise of jurisdiction, leaving jurisdiction in law constructively unexercised.

●Minister for Immigration and Multicultural Affairs v Yusuf (2001) [HCA] pg. 316▪McHugh, Gummow and Hayne JJ: - If the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it”: Craig v South Australia.

Formulating the Grounds for Judicial Review pg. 314-Grounds for judicial review: s 5 AD(JR) Act 1977.-Contrasts between the AD(JR) grounds and the common law grounds:

•Consciously departs from the common law principles at only a couple of points: ‘error of law’ and ‘no evidence’.•Crystallised the existence or scope of a ground of uncertain common law dimension: ‘uncertainty’.

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Week 9.1 – Judicial Review Grounds: 1

The Law/Fact Distinction as a Generic Legal ConceptLaw/Fact – General Principles pg. 686-Error of law: ground for• Statutory appeals:

◦Right arises for a “question of law” (broader than error) cmwlth AAT to Federal court eg s44 AAT Act◦ Narrowly construed in comparison to judicial review◦ Remedy only given to errors of law

• Judicial review:◦ Error of law = broad view - most of the grounds for review under ADJR s5 (tuitev AAT)◦ After defining scope, construe & apply principles in a restrained approach(Blackwood Hodge)▪Writ of certiorari can be used to quash a decision for error of law on the face of the record ◦From AAT to federal court – Judiciary Act s39B

-Right to appeal is limited to errors that form part of the decision under appeal (BTR PLC vWestinghouse)

◦Misstatement of law must have affected the decision. An immaterial error will not vitiate the decision of a tribunal.

Applying Legislation to the Facts pg. 689-There are 3 stages:1. Fact Finding-Establish primary facts by evidence or observation, and of using those facts to prove other facts, usually by a process of inference.- An error here = an error of fact UNLESS:

◦there is completely NO evidence to support the finding (Azzopardi)◦it can be construed as ‘asking the wrong question,’ ’applying the wrong test,’ ‘contrary to rules of natural justice- (in error in procedure/evidence)’ (Lombardo)

2. Rule-Stating-Should words be interpreted via its ORDINARY meaning or SPECIALIST meaning? (error of law)(Agfa Gavaert)• Interpreting Words that bear ordinary meaning

o Process of facto Uses dictionaries & standards references

• Interpreting words that bear a technical/specialist meaningo Process of lawo Uses expert evidence & specialist textso Its open to a court to review whether correct meaning was chosen

• There may be an overlap.-When construing a composite phrase which does not have a trade meaning, court or tribunal can consider trade meaning unless the result is ‘unworkable or impractical, inconvenient, anomalous or illogical, futile or pointless, or artificial. (Agfa)

3. Rule Application pg. 690

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-Legislation must be applied to facts to reach a decision.-Rule: Application of words of ordinary meaning = factual process. Application of words technical meaning = process of law.

♣Distinction between Question of Law and Question of Fact:●Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) [FCA] pg. 691▪Facts: -Customs Act provided rebate for fuel purchased for use “in primary production” including operations connected to raising livestock-Pozzolanic claimed rebate for fuel to use equipment to unload stock feed-AAT found this wasn’t covered in rebateP wants an appeal▪Federal court: meaning of phrase = question of law, but agreed with tribunal.▪Judgment: -5 general propositions:1. Q of law: choosing whether to give words their ordinary or technical meaning2. Q of fact: ordinary meaning of a word3. Q of law: technical meaning of a word4. Q of law: construction of a term established in 2 & 35. Q of law: whether facts fall within the statute ( Hope v Bathurst ) ▪Held: -“Cultivation or gathering in of crops” = matter of fact-“connected with rearing livestock” = Question of law-Connected describes numerous relationships-Meaning is imprecise & wide-Choosing which definition to apply = value judgment needsThere is no sufficient connection between the use of the equipment & rearing livestock.

♣Composite expression of trade and ordinary meaning:●Collector of Customs v Agfa-Gavaert (1996) [HCA] pg. 692▪Facts: -CTCO: imported paper is exempt from duty is it came within the phrase of ‘silver dye bleach reversal process.’-AAT: photographic paper is excluded-HC: meaning of phrase = Q of law, agreed with tribunal▪Held: -Phrase is too complex to apply Pozzolanic here. Parts of phrase were given technical & ordinary meaning.-Rejects Pozzolanic 2 & 4 distinctions as artificial. (Construction of term vs. interpreting the ordinary meaning of a term)-Meaning & construction of a term are interdependent due to the nature of the English language.-Rule: Interpreting the ordinary meaning of a word cannot alone be a question of fact

•must look at whole sentence to get meaning.-“silver dye bleach” = special trade meaning, but inclusion of “reversal process” is not a recognised trade term and hence requires ordinary meaning-Rule: The composite expression of the trade meaning & ordinary meaning are together a Q of law-It is a matter of common sense & logic to construe phrase as a composite of ordinary & technical meanings.-Rule: If there is more than one conclusion open, there is a question of Fact. If there isn’t more than one conclusion open, there is a question of Law.

~Rule: Ordinary meaning taken from dictionary. Trade meanings are taken from experts. If you get ordinary meaning wrong, you usually get an error of fact.

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Formal and Informal Delegation of Decision-Making Power Unauthorised Decision-Making: the Decision-Maker pg. 418- Effectiveness of the principles of delegation:

For: they safeguard individual rights by confining and structuring the authority to make decisions that can encroach on rights.Against:

They fail to acknowledge that routine administration within an agency is a collective or institutional process rather than a series of discrete actions taken by individuals.

Courts have not produced a coherent body of legal doctrine which is attentive to the special problems which arise under statutory regimes which are to be administered by agencies of government.

Categories of Authorised Decision-maker pg. 418Principal

-Principal = authorised decision-maker in legislation Retains authority to make decisions, even when the power to do so has been delegated to other officers.

Delegate-Delegate= Person to whom a power or function has been delegated, by written instrument signed by the principal, pursuant to an authority to delegate conferred by legislation.-Scope will be set out in the instrument of delegation.-Within those limits, the delegate acts independently.-Delegate will sign a decision in their own name, not that of the principal . (Re Reference)

Agent- Makes decisions on behalf of a principal or delegate.-Not used often, only occurs where there is a practical administrative necessity. (Re Reference)-Authority ceases when the principal leaves office, unlike a delegation of power which continues until formally revoked (Kelly v Watson).

Administrative Assistant-Carry out work such as research, interviewing, briefing paper etc.-No need to be authorized formally or to act under delegation (Secretary, Department of Social Security v Alvaro).

Test: The validity of a decision will hinge upon whether it was made by the person nominated in the legislation:♣Delegate to Act in his own Name : ●Re Reference under Section 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General for Social Services (1979) [AAT] pg. 419▪Facts: -A decision was made by a delegate of the Director-General of Social Services. The delegate, notifying the applicant of the decision to affirm the refusal of benefit, signed the letter as ‘Director-General’. He then signed his own initials alongside. ▪Found: The delegate’s actions constituted an invalid use of power may have misled the applicant into believing that the D-G had dealt with his case, and that he could not appeal to any higher official.

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▪Brennan J: -The extent to which an authority may delegate the performance of his duties is primarily dependent upon the nature of the power to be exerciseddetermined by purpose of the statute, and other relevant considerations.-Rule: Agency: where an authority has not delegated his power, but has authorized another to act in exercise of his power, the act is to be done in the name of the authority.-Rule: Delegate:

Where a delegate is exercising the power delegated to him, he may validly exercise that power in his own name.

♣Agency:●O’Reilly v Commissioner of State Bank of Australia (1982) [HCA] pg. 422▪Facts: The Income Tax Assessment Act provided that the Commissioner may by notice require a person to give evidence to produce documents. The Commissioner delegated to a Deputy Commissioner the power who had, in turn, given a written authorization to a tax officer (Holland) to issue notices and to ‘imprint facsimile of my signature upon such notices’. Holland issued a taxpayer a notice. ▪Found: Holland was acting as agent for the Deputy Commissioner his “power” was only a reflection of the Deputy’s. Therefore, notice is valid.▪Gibbs CJ: -Rule: [Common law] A person sufficiently ‘signs’ a document if it is signed in his name and with his authority by someone else, but if by statute a document has to be personally signed the duty of signing cannot be delegated to a third person.-Rule: An indication that a power must be exercised personally is that its exercise will be likely to adversely affect the rights of individuals . -Rule: ‘A delegate cannot delegate’.

●Secretary, Department of Social Security v Alvaro (1994) [Full FC] pg. 424-Rule: No need to be authorized formally or to act under delegation -The exercise of discretion is one that:

Significantly affects the rights and liabilities of a person. Is likely to be exercised in a manner that implements broad policy objectives under

the Act.

Compliance with Statutory RequirementsBreach of Associated Statutory Requirements pg. 767-Test of invalidity: (Project Blue Sky) Whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. This is to be ascertained by reference to:

The language of the statute Its subject matter and objects The consequences for the parties a finding of invalidity

▪Approaches:-Procedural errors are often treated as errors within jurisdiction rather than jurisdictional errors.-ADJR Act s 5(1)(b) – an order of review can be sought on the ground ‘that procedures that were required by law to be observed in connection with the making of the decision were not observed’.

•Applies notwithstanding that the requirement arose after the substantive decision was made (Our Town FM Pty Ltd v Australian Broadcasting Tribunal).

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-Legislation sometimes spells out expressly the consequences attaching to non-compliance with a statutory requirement.

♣Look to Purpose of the Act:●Project Blue Sky Inc v Australian Broadcasting Authority (1998) HCA pg. 769▪Facts: The Broadcasting Services Act provided that the ABA was to perform its functions in a manner consistent with:

- The objects of the act- General policies of the government- Directions given by the Minister- Australia’s obligations under any convention to which Australia is a party

-The ABA implemented a ‘local content standard’, ensuring that television in Australia would have a certain min. % of shows produced in Australia. PBS, a NZ company, challenged the validity of a program standard on the basis that the ABA had not performed its functions consistently with Australia’s obligations under an international protocol which stated that NZ producers would be treated in a manner no less favourable than Australian producers. ▪Found: Breach of the section did not make the act invalid, because:

- The section regulated functions already conferred on the ABA rather than imposes essential preliminaries to the exercise of the functions.

- Problems might arise if the performance of any function of the ABA carried out in breach of Australia’s international obligations was invalid – Australia was a party to about 900 treaties.

-Although the act done in contravention of the section was not invalid, it was a breach of the Act and therefore unlawful. Hence, a person with sufficient interest was entitled to sue for a declaration that the ABA had acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action. ▪McHugh, Gummow, Kirby & Hayne JJ:-An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid. -Test of invalidity: Whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. This is to be ascertained by reference to:

The language o f the statute Its subject matter and objects The consequences for the parties of holding void every act done in breach of the

condition-It is unlikely to be the intention of legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act. -Rejected the distinction between statutory requirements that are ‘mandatory’ (where strict compliance is necessary) and those which are merely ‘directory’ (where substantial compliance was required). Test is rather what are the legislative consequences?

♣Mandatory/Directory Distinction:●Australian Broadcasting Corporation v Redmore Pty Ltd (1989) [HCA] pg. 772▪Facts: -The ABC was a tenant of property owned by Redmore. A dispute arose resulting in ABC repudiating the agreement. Redmore sought damages. -The ABC Act had provided that ‘The Corporation shall not, without the approval of the Minister, enter into a contract under which the Corporation is to pay or receive an amount exceeding $500,000.

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-The ABC claimed that the repudiated agreement would have involved expenditure of over that sum and was unenforceable because the corporation had not obtained the approval of the minister.▪Found: -The subsection was directory about the manner of exercise of powers conferred and was not concerned to confine the actual content of those powers or to invalidate or render unenforceable contracts with innocent outsiders made in the exercise of them.▪Brennan & Dawson JJ (Dissenters): The purpose of the section was the protection of public funds against affection by large contractual obligations incurred without prior ministerial approval.▪Mason CJ, Deane & Gaudron JJ: -Indications of directory requirements:

Speak of the exercise, rather than the existence, of power. Words do not spell out the effect on third parties of a failure to observe the

statutory duty.-Failure of the ABC to obtain the prior approval of the Minister did not have the effect that the making of the contract was ultra vires the ABC. Nor did it have the effect that the contract was illegal or unenforceable.

Application of policyThe Legal Status of Executive PoliciesLegal Relevance of Policies pg. 603- A government or decision-maker can adopt a policy to provide guidance in the exercise of a statutory discretion provided that:

1. the policy must not be incompatible with legislation: Gleeson CJ in Neat Domestic Trading

▪For example, it could paraphrase the legislation correctly, adequately identify the range of relevant matters, and not colour or confine legislation in a way that would be Wednesbury unreasonableness.

2. Some policy statements, unless publicly notified as required by FOI statutes, cannot be relied upon to the disadvantage of a person who was not aware of the policy (Public Service Act 1999 (Cth) s10(f); NSW s15)

▪It must adequately identify the range of relevant matters, and not colour or confine discretion in a way that would be Wednesbury unreasonable.

-Consequences of the application of a defective policy: •Lead to a decision that can be impugned.•Application of an irrelevant consideration?

-AD(JR) Act s 5(2): an order of review can be sought in respect of:- (e) – an exercise of a personal discretionary power at the direction or behest of

another- (f) – an exercise of a discretionary power in accordance with a rule or policy without

regard to the merits of the particular case.- (b) – failure to take a relevant consideration into account.

-Rule: ‘Where a tribunal has adopted a policy, and without refusing to hear an applicant, intimates to him what its policy is, and after hearing him, will in accordance with its policy decide against him, unless there is something exceptional in his case…no objection could be taken’ (R v Port of London Authority; Ex parte Kynoch Ltd). -Cases where an application of policy may be acceptable:

- High-volume decision making - To allow for the accountability of decision-making – horizontal equity

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- Where the decision does not have a direct effect on individual rights or interests .

♣Inflexible Application of Policy:●Green v Daniels (1977) [HCA] pg. 308▪Facts: - Upon completing school, Green lodged an application with the Commonwealth Employment Service (CES) to be paid unemployment benefit. She was informed that as a school leaver, she would not qualify for the benefit until commencement of the next school year. This advice was based on a policy to be applied ‘as a general rule’. ▪Found: The application of the general rule to Green was an inflexible rule. The court made a declaration that Director-General, upon receiving Green’s application, should have investigated and considered all the circumstances necessary to decide whether she met each of the criteria for benefit. -The court was unwilling to form its own conclusion as to whether Green had complied with the requirements as it was not for the court to usurp the D-G’s function assigned to him by the legislature.▪Stephen J: -Rule: Inflexible application of policy is invalid. Requires decision-maker to investigate and consider all circumstances necessary, even if it is an inflexible rule.

♣Requirement to account relevant considerations under policy:●NEAT Domestic Trading Pty Limited v AWB Limited (2003) Supp. pg. 138▪Facts: -AWBI had a right to export wheat under the Wheat Marketing Act: it was thus in a position to maintain a monopoly by vetoing the export of wheat by a competitor.▪Found: - There was nothing about the policy adopted which was inconsistent with the Act, and nothing about the particular circumstances of the appellant’s applications that required reconsideration of the policy. No material was put before AWBI which could be expected to persuade it to deviate from its policy. Hence, the policy was not inflexible – there was just no reason to deviate from it.▪Court: -While the AWBI was not a statutory authority, it represents more than just private interests, but also the interests of wheat growers and national interests.-Rule: A decision-maker cannot:

Fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future.

Adopt a policy which precludes him/her from departing from the policy or taking into account circumstances which are relevant to the particular case – an inflexible and invariable policy.

-Rule: Policy must not be incompatible with the legislation that it elucidates.-Rule: There is nothing wrong with pursuing a policy “provided the policy is consistent with the statute under which the relevant power is conferred” and provided that particular policy doesn’t “preclude the decision maker from taking into account relevant considerations or taking into account irrelevant considerations.”

~Rule: Some policy statements, unless publicly notified as required by FOI statutes, cannot be relied upon to the disadvantage of a person who was not aware of the policy.

Ministerial Directions-An official entrusted with a statutory function is obliged in law to reach an independent judgment on how to exercise the function.-Rule: A minister cannot as a general rule dictate to a subordinate official the decision to be reached in a particular case. Nor can an official reach a decision by automatically or inflexibly applying a policy or direction from a minister.

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-The cases indicate that differing approaches can arise at two stages:1. An issue of fact : whether it can be proved by evidence that a decision-maker reached

an independent decision, or instead acted at the direction or behest of a minister: Ipec-Air and Bread Manufacturers.

2. An issue of law : This concerns the legal relationship between the minister and subordinate officials, an issue on which there are sharply differing views.

♣Pro Application of Policy:●R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) pg. 620▪Facts: -Regulations prohibited the importation of aircraft into Australia unless with the permission of the Director-General. Ipec-Air applied for permission. The D-G responded initially that the application met the requirements, but that the matter from that point on became one for the minister for decision on political grounds. Eventually, a letter was received from the D-G refusing the application, saying ‘I have carefully considered all aspects of your Company’s application…also had regard to the Government’s policy views’.▪Found: -The D-G was allowed to follow the policy of the Minister in reaching his decision. The HCA dismissed Apec-Air’s application for a writ of mandamus.▪Court: -The D-G has a duty to obey all lawful directions of the Minister under whom he serves the Crown.-Whether permissions is to be given or not is a matter left to the discretion of the Director-General; his discretion is intended to be exercised upon broad considerations relating to civil aviation in the Commonwealth.▪Menzies J (Dissenting): -In this instance the decision to refuse permission to import the aircraft was not that of the Director-General; it was the refusal of the Government. Instead of the decision being made at the departmental level, it was made at the political level.

♣Pro Application of Policy:●Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) [HCA] pg. 623▪Court: - Unless the language of the legislation is unambiguously to the contrary, it should be interpreted consistently with the concept of responsible government, i.e. executive powers and discretions of those in the departments of executive government should be exercised in accordance with the directions and policy of the Minister.

♣Can take policy into account in reaching individual decision:●Bread Manufacturers of New South Wales v Evans (1981) [HCA] pg. 625▪Facts: -Prices Commission had the power to make an order setting the maximum price at which a product could be sold. The Act provided that the minister could veto a decision of the commission. The NSWCA held that Prices Regulation Order No 798 was invalid for the reason that in making the order the commission had not come to its own independent decision but had acted under the influence of the minister.▪Court: -Rule: The Commission is bound to make a decision that is ‘its own’. However, it would not be wrong for it, in coming to the decision, to take into account the Minister’s views.

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Acting for an Unauthorised Purpose pg. 444-Rule: An exercise of the power for a different or ulterior purpose will be invalid: Brownells Ltd v Ironmongers’ Wages Board (1950); ADJR Act s 5(2)(c)-Improper purposenot in the meaning of the law term; ‘Unauthorised’ purpose is better term

The Authorised Purpose pg. 444-Although a statute may define the purpose for which a power can be exercised (Campbell), it may be necessary at times (when there is an express purpose absent) to imply a purpose through techniques of statutory interpretation that look at the title , structure and text of an Act, and the nature of the power that is being exercised (Toohey and Schlieske). -Constitutional considerations can also define the purpose (Shrimpton v Commonwealth).

The Actual Purpose pg. 446-Some decisions openly announce or disclose their purpose e.g. Brownells Ltd v Ironmongers’ Wages Board.-In other situations, it may be necessary for a court to draw evidentiary inferences from such matters as the conduct or documentation of a govt agency in order to identify the motivating purpose for which a decision was made.

Multiple Purposes pg. 446-There is difficulty in determining the validity of an act, particularly when there are multiple purposes that could be achieved by the exercise of the statutory power, one or more of which, viewed separately would be for an unauthorised purpose-Rule: Approach taken in Australia is to examine whether the unauthorised purpose was a substantial purpose in the sense that the power would not have been exercised had there not been a desire to achieve the unauthorised purpose (Thompson v Randwick Corporation). -Not constrained to the act itself can also use extraneous material. You could use written reports from the office of council, minutes written and oral evidence by asking that person.-Whether the power has been exercised improperly is a matter of fact

•E.g. double dissolution; mandatory or directory •Only stipulates the ‘machinery’

♣Substantial Purpose:●Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) [HCA] pg. 458▪Facts: -Board was authorised by the Metorpolitan Water Sewerage and Drainage Act 1924 to undertake a compulsory resumption of land for any purpose of the act – attempted to resume a block of land owned by Samrein Pty Ltd which then commenced proceedings arguing that the land had been resumed for an unauthorised purpose.-Board wanted that land because it was close to the other. They wanted GIO to finance it and GIO will get 20 levels and that retail shops could be built. The claim was that the board wanted to build the building partly for retail shops in order to maximise use of valuable land in the CBD.▪Found: The Board’s proposed acquisition was for the purpose of acquiring a city block on which it could erect a building in which it would provide accommodation for its own employees; joint venture with GIO was simply a means to the end.

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▪Court: -Can only act within purpose: It will be an abuse of powers if the ulterior purpose is a substantial purpose in the sense that the act would not have been carried out had it not been desired to achieve the unauthorised purpose.-Main Test: Whether there was a substantial purpose. Test: Whether the purpose was the dominating; ‘initiating and abiding’ purpose. -Examine the functions of the board which is placed inside the legislation which created the board and set its function.

♣Steps taken to be no more than appropriate to the Purpose:●Schlieske v Minister for Immigration and Ethnic Affairs (1988) [Federal Court of Aust] pg. 460▪Facts: - Schlieske was a national of West Germany; warrant had been issued for his arrest in Germany in relation to drugs offences. Attempted to deport him under Migration Act 1958 and there were discussions between Australian and West German officials to arrange for Schlieske to be deported and delivered into the custody of police offices. -2 failed extradition attempts: Schlieske claims that the failed attempts show that there was another purpose for them to deport him.-Issue: Whether these particular steps amounted to an improper extradition.▪Found: The particular steps that had been taken amounted, improperly, to a ‘disguised extradition’. However, he could properly be deported to West Germany, provided that Australian officials did not take steps beyond those necessary for the purpose of removing him from Australia, and in particular did not take steps to ensure his delivery into the custody of West German officials – they could escort him up until the point where he leaves the aeroplane.▪Wilcox & French JJ: -It may be that a government will choose to deport a fugitive to a country seeking to extradite him. Such a choice is not necessarily unlawful but it may, according to the circumstances of the case, give rise to an inference that the choice has been actuated by an improper purpose. Rule: In making that inference, the court may take into account official conduct outside that authorised by statute.-Rule: The steps taken in exercising a power should be no more than are appropriate to the purpose of the statute.- A power once applied to an improper purpose does not thereby vanish. The power remains to serve legitimate purposes.

Problems with Schlieske -Problem of applying the criterion of unauthorised purpose where the decision that is being challenged is in fact one element of a more complex interaction of administrative steps

Seiler v Minister for Immigration, Local Government and Ethnic Affairs v Park Oh Ho – Held deportation order was not invalid when made to facilitate the exercise of other statutory powers different results regarding deportation orders

-Rule: A decision which is otherwise invalid cannot be saved by proof that the motive was laudable, sensible or economically rational (Woollahra Municipal Council v Minister for the Environment).

Statutory Indeterminacy pg. 463-‘The only safe approach when a court is required to construe legislation is an attention to the literal words of the legislation. A ‘purposive’ approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes’ (Avel Pty Ltd v Attorney-General (NSW) as per Kirby P).

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-Test for resolving a conflict in statutory purposes (Project Blue Sky Inc v Australian Broadcasting Authority):

o The provisions must be consistent with the language and purpose of all the provisions of the statute.

o The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole .

o The context , general purpose , and policy of a provision are guides.o Reconciling conflicting provisions will often require the court to determine which is

the leading provision and which the subordinate provision, and which must give way to the other.

-Trend towards detailed legislation in areas of high volume administrative review: legislative amendment is frequently in response to the outcome of litigation – there has been “an attempt to cover every possible contingency while reducing the matters left to the discretion of the decision-maker. However, this has led to problems:

•The greater elaboration of the legislative text can in turn exacerbate the difficulty of purposive construction.• “Legislative provisions…often prove inadequate for the twists and turns which have not, and could not have, been foreshadowed and provided for. More broadly based discretions may sacrifice some certainty…but may lead to ‘getting the decision right’”

Relevant and Irrelevant Considerations pg. 465-Rule: A decision may be invalid where an irrelevant consideration has been taken into account by a decision-maker (R v Trebilco; Ex parte F Falkiner & Sons Ltd; ADJR Act s 5(2)(a)).-Test: Has the decision-maker considered all relevant information? Have they disregarded all irrelevant information?

The Criteria of Relevance pg. 465- If the legislation does not enumerate exhaustively the factors that can be taken into account, it is necessary to determine matters which are relevant or irrelevant by examining the features of the legislation:

•Language •Purpose/object•Subject matter•Nature of the power being exercised•Nature of the office held by the decision-maker

-The principal focus is always the words of the statute, but other legal trends are also taken into account:

General legal presumption that legislation can never be administered to advance the personal interests of the decision-maker (Ipec-Air) International conventions and humanitarian considerations are likely to be

relevant.Racial and sexual bias would nowadays be irrelevant

-In determining the meaning of public interest, there are a different range of opinions as to the discretion that will be accorded to a body, depending upon the decision maker.

The Matters that were Considered pg. 466

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-Rule: A decision-maker will have browsed over a range of documents and facts, some of which will be irrelevant to the decision – that by itself is not an error (Australian Conservation Foundation v Forestry Commission)-General principle: an irrelevant consideration will vitiate a decision, unless it is insignificant.

♣Undefined Discretion:●Water Conservation and Irrigation Commission (NSW) v Browning (1947) [HCA] pg. 467▪Facts: - Irrigation Act 1912 (NSW) – the holder of an irrigation farm lease must not transfer that lease to another person unless approved by Irrigation Commission; the granting or refusing of consent “shall be entirely in the discretion of the Commission”; refused to consent to Carbone because he was of Italian birth and there was a policy against transferring land to persons of enemy origin. Reasons given by the Commission: should not give away land that should be kept for Australians, particularly returned soldiers, and also because Italians are not good farmers, prevent any build up of Italians in that area.▪Found: The Commission had not been actuated by anything but the welfare of the irrigation area. –Cannot be an arbitrary decision. Have to examine the suitability. If they decided there are too many Italians, they are able to choose not to take in anymore Italians. Therefore, Italians lost.▪Dixon J: -Where there is no positive indication of the considerations upon which it is intended that the decision shall depend, the discretion is unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments → though the discretion is neither arbitrary nor completely unlimited, it is certainly undefined.-Rule: Where the discretion is undefined, judgement is up to the Commission: grounds of suitability, desirability and advantage; it is not up to the Court to make that decision.-Rule: As long as the decision-maker acted in good faith , it is not for the court to substitute its view on issues of fact.

♣Undefined Discretion:●O’Sullivan v Farrer (1989) [HCA] pg. 469-Rule: Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made.

♣Public Interest:●Deloitte Touche Tohmatsu v Australian Securities Commission (1995) [Federal Court] pg. 470-The expression “in the public interest” classically imports a discretionary value judgement to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable.

♣Administration of Public Funds:●Roberts v Hopwood [1925] [House of Lords] pg. 476▪Facts: -After WWI, the Council granted equal wages to men and women under an Act which conferred power on it to pay its employees ‘such salaries and wages as it may think fit’. The district auditor disallowed the increase as ‘contrary to law’ and imposed a surcharge to the council.

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-The Council had the funds as paid by the tax payers – and argued that there was a legal duty to the public to conduct the administration in a “fairly businesslike manner with reasonable care, skill and caution.”▪Found: The council took irrelevant considerations into account (they had allowed themselves to be “guided in preference by some eccentric principles of socialistic philanthropy, or by a feminist ambition to secure the equality of the sexes”) and consequently did not properly exercise the discretion laced in them, but acted contrary to law.▪Lord Atkinson: ▪Lord Atkinson: - Rule: A body charged with the administration for definite purposes of public funds owes a duty to the public to conduct that administration in a fairly businesslike manner with reasonable care, skill and caution, and with a due and alert regard to the interests of those contributors who are not members of the body.-Rule: Principles are pretty clear in these cases but there is discretion in how you would like to exercise them.-Rule: Decision maker could consider irrelevant info. as long as they rely on the relevant info. Does not matter that there was consideration of irrelevant info won’t make it invalid .

Evidence of an Irrelevant Consideration pg. 480-Absence of reasons: Rule: If all other facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker who has given no reasons cannot complain if a court draws the inference that he had no rational reason for his decision” (Lonrho plc v Secretary of State for Trade and Industry)-Rule: “If the decision maker does not give any reason for his decision, the court may be able to infer that he had no good reason:” Public Service Board of NSW v Osmond.

Effect of an Unauthorised Purpose or an Irrelevant Consideration pg. 481-If the unauthorised purpose was the main reason for making the decision or that its effect was substantial, it would usually invalidate a decision.-An insignificant error can be overlooked by a court, though generally a court should avoid intruding into the merits of a decision and attempting to second-guess whether the same decision would have been made without the influence of the irrelevant matter (Peko).-Test: Whether as a result of an error to consider the unauthorised purpose a person has been deprived of the possibility – not probability – of a favourable decision (Lu v Minister for Immigration and Multicultural and Indigenous Affairs)

Failing to Consider Relevant Matters pg. 481-A decision may be invalid where a decision-maker has failed to give consideration to a relevant matter in reaching a decision (R v Australian Broadcasting Tribunal; Ex parte Hardiman) and s5(2)(b) ADJR Act-Test: A breach of this ground can be committed in either of two ways:

(1) Failure to consider a relevant matter of which the decision-maker had active/constructive knowledge. Need to establish:

An express/implied statutory obligation to consider a particular matter Failure to discharge that obligation

(2) Failure to conduct an inquiry to obtain potentially relevant information – ‘duty of inquiry’.

Obligation to Consider pg. 482-Must be established that there was an express or implied statutory obligation on the decision-maker to consider the particular matter in question (Sean Investments; Peko).

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-Often the legislation does not provide explicit guidance and the obligation to consider a matter has to be implied from the subject matter (Peko)Failure to Consider pg. 483-Some cases express a more demanding standard, and emphasise the obligation to give ‘proper, genuine and realistic consideration’ to all relevant matters. (Hindi)-Rule: Generally, it is accepted that a senior decision-maker can discharge the obligation to consider relevant matters by an adopted summary or analysis undertaken by a subordinate officer (Sean Investments).

Other Issues-Constructive knowledge applies.-A court can overlook an insignificant breach.

♣Adopting a Summary/Analysis of Matters:●Sean Investments Pty Ltd v Mackellar (1981) [Federal Court of Aust] pg. 484▪Facts: Sean conducted a nursing home. It was required under the National Health Act to obtain Commonwealth approval to increase the fee payable. Before making a decision, the minister was to refer the application for inquiry and report to a Review Committee. The minister, in declining to approve a fee increase, had adopted the recommendation of the committee, merely writing ‘Agreed’ on a departmental recommendation to the minister to accept the committee’s report. The applicant challenged the minister’s decision, saying that he had not reached an independent decision and had failed to consider some issues raised by the applicant.▪Found: Rule: The minister was entitled to decide to accept and adopt the report and recommendations of the Committee without examining for himself the evidence and the factual material upon which that report and those recommendations were based.▪Deane J: -In making the decision, he/she may discharge the obligation to consider relevant matters by adopting a summary or analysis undertaken by a subordinate officer.- However, in simply adopting the report and recommendations of the subordinate officer, the decision-maker will also adopt any errors of law, including taking into account irrelevant considerations and failing to take into account relevant considerations, which might vitiate the summary with the consequence that the decision can be attacked.

♣Accurate/Current Information:●Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) [HCA] pg. 486▪Facts: -Aboriginal Land Rights (NT) Act established a scheme whereby Aboriginals claiming to have a traditional claim to an area of Crown land could lodge a claim. The Commissioner was required to comment on the detriment on the persons that might result if the land claim were acceded. -Peko had land in a mine area under question and gave “vague, inaccurate and misleading” information with regards to Ranger 68 to the Commissioner. As a result of that misleading information, the Commissioner concluded that Ranger 68 was partially encompassed by the trust land.-Later information from Peko given to the department drew attention to the error. A new minister took over, but was unaware of the representations made by Peko. He decided to grant the claim.-Peko argued that the Minister failed to take into account the new information.▪Found: The omitted factor was significant → the Minister was bound to consider the submissions made by Peko to the old minister

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▪Gibbs CJ: -Rule: If there is material which shows that the position has changed since the Commissioner made his report, the Minister is bound to take that material into account.-Rule: Must consider the most accurate and up-to-date material available.-It would not be unreasonable for a Minister to rely on a summary of the relevant facts furnished by the officers of his Department. But if the Minister relies entirely on a departmental summary which fails to bring his attention to a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account.-Rule: The Minister is bound to consider submissions put to him by parties who may be adversely affected by a decision.


Unreasonableness, Irrationality and IllogicalityWednesbury Unreasonableness, Good Administration and the Outer Limits of Legality pg. 724-An underlying expectation of government is that it will act reasonably or rationally.-Test: Does a reasonable govt. authority thinks its an objective decision? (Wednesbury Corporation)

♣Meaning of Reasonableness; Limited Power of Courts:●Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] [UK Court of

Appeal] pg. 305▪Facts: -The Sunday Entertainments Act 1932 provided that a licensed cinema could open on Sunday only with permission of the local authority, subject to such conditions as the authority fit to impose & they imposed the condition that no children under the age of fifteen could be admitted to any entertainment whether they were accompanied by an adult or not; they sought a declaration that the condition was invalid/unreasonable. ▪Found: -The well-being and physical and moral health of children was a matter which a local authority, in exercising their powers, could properly have had in mind – those questions were relevant to what they had to consider.▪Lord Greene MR: -Different meanings of the word unreasonableness:

○Something so absurd that no sensible person could ever dream that it lay within the powers of the authority.○Taking into consideration extraneous matters○Being done in bad faith

-Rule: 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. But to prove a case of that kind would require something overwhelming.

The Development of Wednesbury Unreasonableness pg. 725-Unreasonableness has been given statutory recognition for judicial review in the ADJR Act in s 5(2)(g).

♣Grounds for judicial review could be classified under four heads – “illegality”, “irrationality”, “procedural impropriety” and “proportionality:”

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●Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant s 20/2002 (2003) [HCA] pg. 728▪Facts: -s 65 and 415 of the Migration Act 1958 provided in combination that a protection visa shall be granted to a person if the Refugee Review Tribunal is satisfied that the criteria prescribed by the Act are met; the tribunal rejected the claim.-The applicant challenged the tribunal’s decision, arguing that the tribunal’s decision was “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.” [Unreasonableness was not a ground of judicial review]▪Gleeson CJ: -Wednesbury unreasonableness is not concerned with challenges to decisions relating to jurisdictional fact, but is concerned only with the exercise of discretion.-Held: Rejected applicant’s claim that the tribunal’s decision was irrational or illogical.

Illustrative Cases and Categories pg. 730Lack of Plausible Justification pg. 731♣Where a decision, on its face, is irrational or devoid of plausible justification:●Parramatta City Council v Pestell (1972) [HCA] pg. 731▪Facts: -Local Government Act 1919 s 121 provided that the council could levy a rate upon the land to defray the cost of work or service in the opinion of the council that it would be of ‘special benefit’ to the land.-Resolved that the rate should be imposed on some (but not all) land in an industrial area. The rate was not imposed on lots that contained old dilapidated houses; except for one house that contained a workshop at the rear.▪Found: -The council rate was invalid because it focused on the benefit of the land rather than to the person occupying it.▪Gibbs J: -In this case the burden was held to have been discharged. The court noted that it was only natural for the council to only apply the levy to those who are using it for industrial purposes since they are able to immediately enjoy that special benefit. However, it must be remembered that the relevant Act makes no such distinction – only that a special benefit has been conferred (which may be a future benefit of increased property value in the case of residential properties.)

Capricious Use of Power pg. 732♣Oppressive to Individual Rights:●Edelsten v Wilcox (1988) [Fed Court of Aust.] pg. 733▪Facts: -s.218 Income Tax Assessment Act 1936 provided that the Commissioner of Taxation could require anybody who owed money to pay back the money. The commissioner issued a notice requiring the Health Insurance Commission to pay to the Tax Office 100% of any Medibank payments owed to Dr Edelsten – which constituted all his income and the costs of maintaining the expenses of the medical practices. ▪Burchett J: The s 218 notice was invalid on the ground of unreasonableness. s 218 “is a strong power designed to protect the revenue, but it was not intended to subvert the principle which has been established at least since Magna Carta, that a citizen’s property should not be subject to arbitrary seizure.”-Rule: Indications of Wednesbury unreasonableness leading to invalidity :

•Harsh impact of the decision on the enjoyment of other rights by the plaintiff•Alternatives open to the agency to address the issue

-Section 218 is not meant to be used as an oppressive instrument. It was held that the purpose of the section is not to penalise the taxpayer’s conduct, or to abolish his business.

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Evidentiary Weighting pg. 735-A decision will be invalid if:

•There is ‘an illogicality in the reasoning adopted by the decision-maker so that the factual result is perverse, by the decision-maker’s own criteria’ (Taveli v Minister for Immigration and Ethnic Affairs).•An official simply rejects the substance of an applicant’s case without giving reasons which can rationally support that rejection (Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh).

-The weight and importance attached to all relevant matters for consideration (such as factual errors and insufficiency of evidence) usually goes to the merits and not the legality of a decision.

●Re MIMA; ex parte Applicant S20/2002 [2003] [HCA] Supp. Booklet pg. 142▪Facts: -The tribunal had made a finding of fact about the applicant – that he was a liar. You cannot go to the court to say that he was not a liar – you can say that there was evidence indicating that he was not a liar. The appellant’s evidence corroborated with the appellant’s argument but this was dismissed. There was further evidence from the appellant’s dentist. This was also dismissed by the tribunal. The tribunal said that the evidence given by the witness was not credible – since the evidence given by the witness was not credible, then by implication the witnesses were also found to be liars. There was no other evidence indicating the witnesses were unreliable.-Risks persecution if he were returned to Sri LankaTamil Tigers-He gets a dentist in Sri Lanka who stated that his mouth was beaten uphe was assaulted-It took 2 years for the refugee to bring a claim up▪McHugh and Gummow JJ: -s430 Migration Act: When decision is given, there has to be a reason given for their finding-Migration Acta Wednesbury unreasonableness claim would NOT succeed. S476(1) lists the reasonableness and s476(2) lists the unreasonableness.-Tribunal’s obligation: look at all the information before them.-Tribunal’s job is not to make the applicant’s case. But it did matter that Tribunal was to try and get him represented.-Melbourne Stevedoring: The appellant’s case is that as it put in such cases, where the power had not arisen because the conditions for its exercise did not exist in law; the conventions meaning of the terms in s 476(2)(b) is inapt to identify it -The conventional meaning of the terms used in par (b) of s 476(2) is inapt to identify the latter as well as the former.-Oral evidence tainted subsequent evidence:

o Found that the appellant’s claims and evidence were “exaggerated, far-fetched and implausible and therefore lacking in credibility”

o Used the phrase ‘in light of’ synonymously with “by reason of” or “because”, rather than the more general term of “against the general background”

o “Well has been poisoned beyond redemption”

Duty to Inquiry pg. 736-Courts are not allowed to engage in merits review.-No free-standing legal duty on an administrative decision-maker to assist a person to make the best possible application, to initiate inquiries to supplement the information provided, or to advise a person of deficiencies in their application.

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-Rule: It would be unreasonable for a decision-maker to make a decision without obtaining information that was centrally relevant and readily available: Prasad.

♣Readily Available and Centrally Relevant:●Prasad v Minister for Immigration and Ethnic Affairs (1985) [Fed Court of Aust.] pg. 737▪Facts: - Prasad’s application for permanent resident status was refused because it was in a sham marriage. Part of the evidence was that the parties had given inconsistent accounts of the details of their marriage.▪Found: -The decision was invalid as it was unreasonable for the official not to have asked the parties if they could explain their inconsistencies.▪ Wilcox J: -A power is exercised in an improper manner if the decision-maker makes his decision in a manner so devoid of any plausible justification that no reasonable person could have taken this course, e.g. by unreasonably failing to ascertain relevant facts which he knew to be readily available to him.-The circumstances under which a decision will be invalid for failure to inquire are strictly limited.-Rule: Where it is obvious that material is readily available which is centrally relevant to the decision to be made, to proceed to a decision without making any attempt to obtain that information may be described as unreasonable.

●SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005]

[Fed Court of Aust.] Suppl. pg. 150▪Facts: -The applicant’s claim for a protection visa was based on claims that he had been detained and interrogated at a Sri Lankan police station because of his involvement in instigating protests and that his lawyer had secured his release by posting a bail; and further that he had been detained on a subsequent occasion at the same police station and tortured. -Phone call was made to lawyer. Applicant is arguing that the Tribunal should have enquired of the applicant’s lawyer in Nigeria what personal knowledge he had of the circumstances of the applicant’s arrest in March 2003.▪Found: -Court said that there was no duty to inquire any further.▪Edmonds J: -Rule: The Tribunal was not obliged to construct the appellant’s case for him, or to improve it on his behalf. It was for the appellant to decide what went before the Tribunal, and it was up to him (and his advisors) to make the evidence supporting his claim as strong as it could be.

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Week 12.1 – Natural Justice: 1

Introduction pg. 513-Natural justice=procedural fairness-Two traditional elements for a fair hearing:(i) Prior hearing rule: before a decision is made adversely affecting a person’s right, interest or legitimate expectation, the decision-maker must give the person prior notice that a decision may be made, the information on which the decision is to be based and their right to make a submission in reply . (ii) Bias rule : a decision-maker must be free of any reasonable suspicion or apprehension of bias.-ADJR Act s5(1)(a): an order of review can be sought on the ground that a breach of the rules of natural justice occurred in connection with the making of a decision.-When does natural justice apply?

•Where legislation expressly imposes the obligation to impose natural justice on a person who would be affected•‘The common law rules of natural justice are taken to apply to the exercise of public power unless clearly excluded’ (Miah). •There is a strong presumption that NJ applies to the exercise of judicial power by a court or quasi-judicial one like the AAT.

Rationale for the Doctrine pg. 516-Promote better decision making by ensuring that relevant information is before decision-maker.-Decision-maker is more diligent and objective in reaching a decision.-Increased public confidence, legitimacy and integrity of decision-making process and correctness of decisions.

♣Essential elements of natural justice:●Plaintiff S157/2002 (2003) [HCA] pg. 521▪Court: -Essential elements of natural justice:

•Fairness and detachment•The absence of the actuality or the appearance of disqualifying bias•Appropriate opportunity of being heard

- Subject to statutory provision, denial of natural justice or procedural fairness will ordinarily involve jurisdictional error.

The Hearing Rule – General Tests pg. 521Common Law Implication -Unless there is a clear expression to the contrary, NJ will apply to any category of admin decision: Tanos.Legislative Implication pg. 522-If statute does not expressly mention natural justice, justice of common law supplies omission of statute. However, in some cases, no natural justice can be implied to avoid frustrating the purpose of the statute. However, does not apply to prerogative powers.Universal application pg. 523-Rule of natural justice should apply to all governmental decision-making unless expressly excluded. A hearing must be given unless there is clear legislative statement to the contrary.Implication from multiple factors pg. 524

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-A variety of factors must be taken into consideration, including the language of the statute, nature of statutory power, nature of decision-maker, presumptions of common law. Natural justice applies unless there is another factor to displace that assumption.

♣Adverse Information affecting Right/Interest:●Kioa v West (1985) [HCA] pg. 527▪Facts: -Kioa was a Tongan immigrant on a student visa and overstayed it. He applied to stay on in Australia under a provision of the Migration Act. An internal report recommended that he be deported for various reasons including: para 21 that Kioa had changed his address without notifying the authorities and trying to fly under a radar and para 22 that he consorted with illegal immigrants. This led to the Review Panel’s decision that he be deported. Note that at this time ADJR Act applied to Migration Act matters.-Should he been given a chance to answer the charges in para 21 and 22?▪Found: As the paragraph was extremely prejudicial, the appellant should have had the opportunity of replying to it. Kiao was not deported.▪Mason J: -Rule: When an order is made which will deprive a person in a d irect and immediate way of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him, and to be given an opportunity of replying to it.

‘Direct and immediate’ = not simply as a member of the public or a class of the public

‘Right or interest’ = relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights.

‘Legitimate expectation’ extends to expectations which go beyond enforceable legal rights provided they are reasonably based.

-In the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.▪Brennan J: -Create a statutory presumption about what parliament intended when it conferred the bit of power-Strong link w/ standing that Brennan acknowledges.

♣Revoking a License; Livelihood:●FAI Insurance Ltd v Winneke (1982) [HCA] pg. 534 ▪Facts: - The regulations said the Governor in Council had to take into account the financial status of the applicant etc when deciding whether to grant or renew a license. FAI was refused renewal because of financial problems, but was not given a right to a hearing.▪Found: The decision not to renew the approval was made in breach of natural justice, and FAI should be given an opportunity to present a case to the minister.▪Mason J: -The exercise of a power revoking a license will attract the rules of natural justice, certainly when the revocation results in the loss of a right to earn a livelihood or to carry on a financially rewarding activity – the starting point is that an applicant for renewal generally has a legitimate expectation that his licence will be renewed.

•There has been a greater reluctance to insist upon the application of natural justice when power is exercised to grant or refuse an initial application for a licence.

-Rule: If the decision was made by the Governor exercising discretion, it is not absolute and unfettered and therefore procedural fairness still applies, unless statute plainly expresses a contrary intention.

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-Licence rule: Such as the expectation that a licence would be renewed, natural justice applies. This is especially when revocation results in the loss of a right to earn a livelihood, carry on financially rewarding activities. However, greater reluctance to grant natural justice when power is exercised to grant or revoke initial application.

Legitimate Expectation pg. 546-Prospective, as well as existing rights, interests, privileges and benefits are now within the domain of natural justice: Haoucher.-Categories of legitimate expectation:

An expectation arising from a government promise or undertaking , either given specifically to a person (Cole v Cunningham) or generally to the public in a statement of government policy (Teoh).

An expectation either that an existing licence will be renewed or that advance warning will be given of the prospect of non-renewal (FAI).

An expectation that an established liberty or interest will not be taken away (Heatley v Tasmanian Racing and Gaming Commission) or that a beneficial recommendation will not be overturned (Haoucher).

An expectation arising from an established course of practice (Quin) An expectation that an opportunity will be given to demonstrate compliance with the

statutory criteria for a benefit or concession: Re HK (An Infant). Limits :

- Should be distinguished from a mere hope (Haoucher)- Should be ‘legitimate’, ‘reasonable’, or ‘well-founded’.- A legitimate expectation gives only a right to procedural fairness and not to

substantive enforcement of the content of the expectation (Quin).

♣Hope Insufficient Need legitimate expectation :●South Australia v O’Shea (1987) [HCA] pg. 537 ▪Facts: - O’Shea was sentenced indefinitely for indecently assaulting children. After conducting a hearing attended by O’Shea and his legal counsel, and receiving the advice of two medical practitioners, the parole board recommended that he be released. The recommendation and report were considered by the Cabinet, which recommended to the Governor that O’Shea not to be released. The Governor accepted the Cabinet’s recommendation. O’Shea commenced proceedings, claiming that he should have been given an opportunity to put his case to the Governor before a decision was made.▪Found: Rule: There was no denial of procedural fairness as 1) he had an adequate opportunity of presenting submissions and 2) he only had a hope that he would be released, which is insufficient – there needs to be a legitimate expectation.▪Mason CJ: -The Minister is not bound to hear an individual before reformulating or applying a general policy or exercising a discretion in the particular case by reference to the interests of the general public, even when the decision affects the individual’s interests.-Rule: A hope that a statutory power will be exercised so as to confer a benefit or privilege does not give rise to a legitimate expectation sufficient to attract the rules of natural justice

♣Legitimate expectation; Mere Hope:●Haoucher v Minister for Immigration and Ethnic Affairs (1990) [HCA] pg. 547 ▪Facts: -The minister had published a policy on criminal deportation, stating that an AAT recommendation would be rejected ‘only in exceptional circumstances and only when strong evidence can be produced to justify’ the rejection of the recommendation. The minister made a decision to reject an AAT recommendation favourable to Haoucher.

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▪Found: The minister’s decision was invalid as he had not accorded Haoucher natural justice.▪McHugh J: -Rule: Subject to any contrary statutory intention, a person is entitled to be heard in opposition to the proposed exercise of a statutory power if its exercise will deprive him/ her of a benefit/privilege which that person has a legitimate expectation of obtaining or continuing to enjoy.- A legitimate expectation must be distinguished from a mere hope that he/she will obtain or continue to enjoy a benefit/privilege. There must be some undertaking or course of conduct acquiesced in by the decision-maker or something about the nature of the benefit/privilege which suggests that, in the absence of some special or unusual circumstance, the person concerned will continue to enjoy a benefit or privilege.- If exceptional circumstances were alleged to exist, the applicant is entitled to know what the nature of the material was relied upon by the Minister to defeat his legitimate expectation.

♣Legitimate expectation for ratification of a Convention:●Minister of State For Immigration and Ethnic Affairs v Teoh (1995) [HCA] pg. 551 ▪Facts: -Teoh was convicted of importing heroin and an order was made to deport him. A delegate of the minister refused Teoh’s application for permanent resident status, even though his family would suffer as he had seven dependants in Australia. His conviction failed to meet character requirements for getting residency.▪Found: There had been a breach of natural justice as the department had failed to invite Teoh to make a submission on whether the deportation order should be made, contrary to an international covenant.▪Mason CJ & Deane J: -Ratification of a convention is a positive statement that the executive government and its agencies will act in accordance with the convention → it is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary.-Rule: It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention, or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it. ▪McHugh J (dissent): -No legitimate expectation arose in this case because:

o The doctrine of legitimate expectations is concerned with procedural fairness and imposes no obligation on a decision-maker to give substantive protection to any right, benefit, privilege or matter that is the subject of a legitimate expectation;

o The ratification of the Convention did not give rise to any legitimate expectation that an application for resident status would be decided in accordance with it.

-Fairness does not require that a decision-maker should invite a person to make submissions about a rule that the decision-maker is not bound, and has not undertaken or been asked, to apply.

♣Requires Practical Injustice:●Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) [HCA] pg. 554 ▪Facts: -While Lam was in prison, the Department of Immigration was considering whether to deport him. They wrote to him seeking details of the carer of his children so as to contact them to assess Lam’s relationship with his children. The department neither contacted the carer, nor informed Lam before making a deportation decision that no such contact was made.

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▪Found: No practical injustice has been shown as: 1) He did not rely to his disadvantage to the statement of intention. 2) He had been given a full opportunity to be heard, and the department did not raise any new matter that had not already been addressed by Lam. ▪Gleeson CJ: -Rule: What must be demonstrated is unfairness , not merely departure from a representation:

•It is the existence of a subjective expectation, and reliance, that results in unfairness.•The concern of the law is to avoid practical injustice .•The concern is with the fairness of the procedure adopted rather than the fairness of the outcome.

-No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness.

How do you exclude procedural fairness?(1) If statute says so clearlya clear statement of exclusion(2) Appealed to the AAT (Miah)kind of appeal matters, (3) Nature of original decision (preliminary or final), what sort of process (formal? etc), personal security, urgency, etc: Miah.

♣Right of Appeal:●Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) [HCA] pg. 565 ▪Facts: -The minister submitted that the existence of a right to a full merit review of a delegate’s decision by the Refugee Review Tribunal evinced parliament’s intention to exclude natural justice.▪Found: Balancing the factors in relation to the proceedings, the right of appeal to the Tribunal is insufficient to conclude that Parliament intended that the delegate was not required to accord natural justice.▪McHugh J: -No general rule that a right of appeal or review necessarily denies or limits the application of the rules of natural justice.-P resence or absence of certain factors can often be relevant in determining whether such a right does exclude or limit the rules of natural justice. These factors include:

•Nature of the original decision ( preliminary or final ) : The closer a decision is to having finality and immediate consequences for the individual, however, the more likely it is that natural justice requirements apply.•Original decision made in public or private: Natural justice can apply to a preliminary decision made in private that damages a person’s reputation.•Formalities required for original decision: Where formal procedures apply at the first level of decision-making, they support an inference that the appeal is not the sole source of procedural fairness. On the other hand, where there is no obligation to provide reasons and no formal procedures, as in Twist, they support the inference that the right of appeal excludes the rules of natural justice.•Urgency of original decision: the more urgent the basis of the original decision, the less likely that natural justice will be required.•Nature of the appellate body (judicial, internal, and ‘domestic’ ) : if a court, it is easier to infer that the right to appeal was intended to limit/exclude the rules of natural justice at the earlier level. Appellate bodies internal to the same organisation as the original decision-maker are less likely to be independent, requiring the rules of natural justice to be applied at all levels of decision-making.

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•Breadth of appeal ( de novo or limited ) : If there is provision for a complete de novo appeal on the merits of the case, then it is easier to infer from the rules or circumstances applicable at first instance that the requirements of natural justice were intended to be excluded or modified (Twist).•Nature of the interest and subject matter: The nature of the interest is the prosecutor’s personal security. The consequences for him include returning to face serious threats to his personal security, if not his life.


The Hearing Rule - Content pg. 570♦Procedural Fairness: Hearing RuleStep 1: Notice

-of what?-how much detail?-How much time?- Start from assumption: always refer to the legislative instrument-s.132 of AAT Act notice to be given of proposed order

Step 2: Opportunity to put case-form? [Oral/written]

○section 360 Migration Act 1958allowed an opportunity for an oral hearing-to whom?

○s.425 Migration ActTribunal must invite applicant-representation?

○s.32 of AAT Actrepresentative before tribunalyou can appear in person or be represented by some other person○s.133 of AAT Act Making of representations.

-witnessesStep 3: Opportunity to comment

-on what?-how?

Step 4: Breach~Procedural fairness is about procedure, not outcomeonly needs a possibility of lost opportunity; not whether the decision would have changed.-Rules: Prior notice that a decision will be made.

It is generally necessary for the notice to be in writing. (Andrews v Mitchell) Provides details of date and place of decision. (Cooper) Provides adequate time to prepare a case. (R v Thames Magistrates Court)

-Every person should be given a hearing before a decision is made that adversely affects a right, interest or expectation which they hold. The nature of the hearing ranges from formal judicial-style hearing to an exchange of correspondence by mail.-Basic rule is that it depends on the circumstances.-The principles concerning the content of the hearing rule are stated below:

○The requirements in each case must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter being dealt with etc.

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○In order to ascertain what must be done to comply with the principles of natural justice in each case, the starting point is the statute creating the power. One must look at whether there are any special procedural steps, which being prescribed by statute, would extend or restrict what the principles of natural justice would otherwise require. (Kioa)

-Russell v Duke of Norfolk: “reasonable opportunity of presenting his case.”

Specific Principles concerning the Hearing Rule pg. 572- Three minimum requirements of the hearing rule:

o Prior notice that a decision will be madeo Disclosure of an outline or the substance of the information on which the

decision is proposed to be based o An opportunity to comment on that information

-Rule: If there is a breach of one of these requirements, a person is entitled to relief unless the court is satisfied that the breach could have had no bearing on the outcome: Stead v State Government Insurance Commisssion.

•Rule: But once a breach has been established, it is usually not necessary to demonstrate unfairness in the result: Dagli v Minister for Immigration and Multicultural and Indigenous Affairs.

Who Should Conduct the Hearing? pg. 573-NJ does not require that the hearing be conducted by the decision maker, although if it is conducted by another officer, there are other requirements to be fulfilled:

o The decision-maker is fully informed of the evidence and submissions arising from the hearing: White v Ryde Municipal Council

o If any significant new information comes to light after the hearing is conducted, the aggrieved person is given a further hearing on the information (O’Shea)

o If the summary of the hearing contains an adverse allegation, it is disclosed to the aggrieved person and an opportunity is given to comment (Kioa)

-A more traditional judicial body such as a court or a tribunal usually cannot delegate their hearing function.

The Requirements to give prior notice of the decision pg. 573-Time –Rule: There is no hard and fast rule about how much time is necessary but it must be sufficient to consider the case and obtain material to rebut them: Ansell v Wells.-Content – Adequate content generally means specification of the complaint in sufficient particularity to enable the person affected to know the case they have to meet: Johnson v Miller.-A higher level of detail is required in cases where a person’s livelihood or liberty is at stake: R v Pharmacy Board of Victoria; Ex parte Broberg.-Rule: In a notice, a person charged should only be advised to those allegations which are credible, relevant and significant: (Kioa and Miah).

o Intended to exclude information that would be out of hand-Rule: There is no general need to disclose the general knowledge, expertise or experience used in making a specific decision. But if the expert information is clearly prejudicial to an applicant’s case (as opposed to a uniform rule or standard), the applicant may need to be given an opportunity to adduce evidence to contradict it: Kioa.-Information of a notorious kind such as standard textbooks does not need to be disclosed unless it is or could be decisive in deciding a case in a way that a person might be unaware.

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-Rule: Where the release of confidential information could cause harm, the compromise may be that the material is disclosed only to the person’s legal representative (Re Pochi) or confined to the substance of the material (NCSC v News Corporation Ltd).

Not every failure to disclose will be a breach of natural justice.

Conduct of the Hearing: oral hearing or written submissions pg. 576-In the majority of cases it is adequate to provide no more than an opportunity to make a written submission.-Generally an oral hearing is only required if there are (White v Ryde Municipal Council): •Matters of credit, veracity or reputation •Disputed matters of fact or inconsistencies in evidence •Evidence of a kind that a party should have an opportunity to test, including expert evidence, or witnesses to be cross-examined.

♣Secret Letter:●Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] [HCA] Supp. pg. 160▪Facts: -Refugee Review Tribunal: Applicant sought review of a decision of the Minister to refuse a protection visa. After the app had been lodged but before a decision had been made, the dept had received a letter about the applicant which they passed onto the RRT. The letter made a number of allegations against the applicant regarding crimes committed in the country of origin. The RRT did not tell the applicant that it had received the letter, did not tell them about the allegations or ask him about the substance. At the end of the hearing, said that it gave no weight to the letter. Applicant argued that he had been denied PF.▪Found: Letter had some element of significance. Applicant succeeded.▪Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ:-Procedural Fairness Rule: The person charged must be given notice; be given sufficient time to prepare notice on the ground that the tribunal has taken into account, and must be allowed to reply to that

♣Unreasonable Delay:●NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005]

[HCA] Supp. pg. 164▪Facts: -The RRT had affirmed a decision of the Minister’s delegate that the applicants were not entitled to a protection visa & the basis for the applicants’ claim of denial of PF was “extraordinary delay”. The tribunal’s decision was handed down in Jan 04, and the applicant to the tribunal for review was first made on 5 June 97.▪Found: Allowed an appeal based upon procedural unfairnessthere was extraordinary delay.▪Majority: -Unreasonable delay found that the capacity to evaluate diminished- Failure to give a hearing because of the delay.-Rule: “Tribunal can disable itself from giving consideration to the presentation of a case when it permits so much time to pass that it can no longer assess the evidence offered.”- Rule: Gleeson and Kirby – the delay does not have to affect the decision – all that is necessary is that there is some delay.

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♣No need for Running Commentary:●SZEBL v Minister for Immigration & Multicultural and Indigenous Affairs [2006]

[HCA] Supp. pg. 169▪Facts: -SZEBL was an Iranian seaman who jumped ship in 2001, and applied for a protection visa, saying that he feared for his safety because the captain knew of his attraction to Christianity. The RRT argued that his claims that he had jumped ship lacked credibility.▪Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ:-“The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”Rule: You don’t have to provide a running commentary on the issue. It is up to you in terms of the amount of commentary that should be given.-Denied an opportunity to produce evidence, which is effectively a denial of a hearing.-Balance between the adversarial/inquisitorial role: The Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.-Held: Tribunal did not give the appellant a sufficient opportunity to give evidence, or to make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review. Appellant wins.

Statute-s.32 of AAT Actrepresentative before tribunalyou can appear in person or be represented by some other person.-s.132 notice to be given of proposed order-s.133 Making of representations.-s.360 Migration Act 1958allowed an opportunity for an oral hearing-s.425 Migration ActTribunal must invite applicant

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The Rule Against Bias pg. 578-A breach of bias rule=jurisdictional error -Bias rule applies universally to all administrative decision-makers

o Although it is theoretically possible for the parliament to exclude the bias ruleo However, the same degree of impartiality cannot be expected of all decision-makers

Rule cannot be applied in such a way that it would inhibit a minister from applying government policy

-Rule: A person who may be biased in relation to a matter may not participate in decision-making concerning that matter.-There are two consequences of a finding of bias – (i) To stop a decision maker from making a decision and (ii) is that the made decision is invalid.-Apprehended biasmost commonly encountered form of bias

o Test: Whether public perception or outward appearance suggests a lack of impartiality in the decision-making process.

-The degree of bias permitted in courts or tribunals will differ. The fair minded observer’s expectations of a judge are ostensibly higher than administrators who are expected to apply government policy. (Jia)-Rule: Decision-makers should be really slow in disqualifying themselves.

Categories of Bias pg. 579-Bias deemed to be present when a decision-maker had some direct pecuniary or family interest in the outcome of a decision, or exhibited actual hostility or lack of impartiality towards an applicant/witness. Actual bias

- When a decision-maker’s mind is so closed to persuasion that argument against that view is ineffectual (Jia)

- Rarely encountered due to difficulty of proving - Difficulty compounded when decision was made as a committee or confidentially

Apprehended bias - Where ‘a fair minded lay observer might reasonably apprehend that the judge might

not bring an impartial mind to the resolution of question the judge is required to decide:’ Ebner

- Must be more than reaching a prelim view in relation facts Deane J in Webb v R

When must decision-maker disqualify themselves? Disqualification by interest

- Some direct or indirect interest in the proceedings, whether pecuniary or otherwise , gives rise to a reasonable apprehension of prejudice, partiality or prejudgment

Disqualification by conduct - Conduct , in the course of or outside the proceedings, gives rise to an apprehension of

bias. Includes published statements.- Eg. DM communicates privately with 1 party even though there is no improper

motive for doing so: Re JRL; Ex parte CJL Disqualification by association

- Apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person(s) interested in, or otherwise involved in, the proceedings. Overlaps with 1st category

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- eg. DM appears to have views which suggest they may pre-judge the outcome: Koppen v Commissioner for Community Relations

- Eg. Family, political or govt association, given legal advice to a party in a prior case, religious

Disqualification by extraneous information - Judge becomes aware of information prejudicial to one party , that is not available to

the court- eg. DM is both the prosecutor and judge or has acted as a fact-finder, prosecutor and

judge: R v Optical Board of Registration

Other examples for disqualification-Where decision-maker exhibits animosity or favouritism to a party or witness

Vakuta v Kelly, Livesy v New South Wales Bar Assoc-Committees/tribunals chosen for their specialist knowledge/experience are not biased if they rely on that general knowledge to reach a conclusion: Minister for Health v Thompson.

Test for Prejudgment pg. 582-Test: Prejudgement occurs if, in all the circumstances, there could be a reasonable apprehension that the judge or decision maker might not bring an impartial and unprejudiced mind to the issues: Ebner.-Objective test

o No need to show actual absence of impartialityo Test is impression that the reasonable person would have in the circumstanceso Test of possibility.

- Two elements to be established (Ebner):o Identify what is the behaviour which might lead to a decision on other than its ‘legal

and factual merits’o Show how this behaviour is connected as a matter of logic with biased outcome

-Must mean that there is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that the conclusion will not be altered despite evidence or arguments: Laws v Australian Broadcasting Tribunal.

Exceptions pg. 583-Defences to bias: necessity, waiver, consent and statutory modification. Necessity and consent

o Arises in domestic bodies or tribunals with limited membership.o Appearances of bias consented to because of contractual arrangements or small

numbers of peopleo However, bias beyond tolerable limits is still invalid. (Builder’s Registration Board v

Rauber) Waiver

o Bias presumed to be waived if no objection after declaration of interests by a decision-maker

o Also where no party objects, at the time, to a potentially biased remark by the decision-maker

o Rule: A claim for bias must be raised at the earliest possible opportunity, otherwise it is possible to argue any right has been waived: Vakuata.

‘Curing’ of biased comments

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- In some cases indications of prejudgement in statements made by decision-makers can be ‘cured’ by a later statement which withdraws or qualifies the original statement: Johnson v Johnson.

♣Necessity:●Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) [HCA] pg. 585▪Facts: -Ebner was a beneficiary under trust that held 8000 shares in a bank that was a creditor in bankruptcy proceedings. Bankrupt person objected to the judge hearing the case.▪Court: -Held: Judge was not disqualified under apprehended bias principle.-Rule: In this case, the judges do not agree that there is separate and free-standing rule of automatic disqualification which applies where a judge has a direct pecuniary interest, however small, in the outcome of the case over which the judge is presiding.-Majority ruled that judge should be left to the decision on whether to disqualify themselves.- Rule: A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.-No rule of automatic disqualification.-Court stated that the argument is that the trial judge had already seen the evidence given by the deceased witness, and it would serve no purpose of ordering a retrial and relying on court notes for the witness given by the deceased.

♣Biased Public Statements/ Radio Interview:●Minister for Immigration and Multicultural Affairs v Jia (2001) [HCA] pg. 588▪Facts: -Before the Minister made his decision to deport Jia and White for criminal charges, he made a comment in a radio interview criticising the leniency of the tribunal’s decision.▪Gleeson CJ & Gummow J: -Rule: The judges stated that the principle of apprehended bias does not require the decision maker to be completely silent about his opinions – Test: the question is not whether a decision maker’s mind is blank; it is whether it is open to persuasion.-Rule: There is nothing in the statute which requires the Minister to consider the matter afresh for every case. In cases such as the present, the decision is usually challenged on errors of law in construction of the relevant -provision to determine the generic standards.-Rule: Where minister had not identified the parties involved, there is no preconceived bias.-Held: The actions of the minister did not constitute either actual bias or apprehended bias.-Decision makers are impartialwhich doesn’t mean they cannot have thoughts but rather to keep an open mind.

♣Preconceived Bias and Waiver:●Vakauta v Kelly (1989) [HCA] pg. 593▪Brennan, Deane & Gaudron JJ: -GIO lawyer waived the chance to raise apprehended bias. -The judges held that it is inevitable for trial judges to have preconceived views about the credibility and reliability of expert medical witnesses. In such cases, the appearance and reality of impartial justice is not infringed if a judge with these views express them in the course of the dialogue between Bench and the Bar. This is especially in non-jury trials.-However, where the expression of such views give rise to an apprehension of bias, the complaining party must raise an objection. The judge will then have to decide what course to adopt. The complaining does not have to expressly call the judge to withdraw from the case.

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However, in the case where the party takes no step whatsoever, they would have waived their right for further objections.

♣Financial Interests:●Hot Holdings Pty Ltd v Creasy (2002) [HCA] pg. 594▪Facts: - Minister had granted a license to a particular party pursuant to the recommendations given by the Director General. There are two parties involved in the deliberation process with the Director General in deciding what recommendations should be given to the Minister.-The adult son of the officer (Mr Phillips) held shares in a company that held an option to purchase shares in Hot Holdings. Mr Phillips, the Director of the Mineral Titles Division, was a party to discussions w/ the Director-General to discuss what the Director-General should recommend to the Minister.-Another officer (Mr Miasi) owned shares in Hot Holdings directly but he only prepared a minute in support of the conclusion reached and did not take part in the discussion. ▪Gleeson CJ: -Both parties with interest were considered only “peripheral.”▪McHugh J: -It is erroneous to suppose that a decision is automatically infected with an apprehension of bias because of the pecuniary or other interest of a person associated with the decision-maker. Each case must turn on its own facts and circumstances.

♣Apprehended Bias & Conduct:●Johnson v Johnson (2000) [HCA] Supp. pg. 175▪Facts: - Trial judge stated, after hearing the evidence of the respondent (but not the appellant) that he would 'rely, principally, on witnesses other than the parties in this matter - and documents - to determine where the truth lies'.-It was argued that this could give rise to a reasonable apprehension of bias as it constituted a predetermination of the credibility of either one, or both of the parties to the action.▪Court: -The statement ‘be looking, insofar as it is possible, to independent advice’ is not to be understood as intending to express a concluded view on the credibility of either party. The judge was making a point about the significance of documentary evidence.-Rule: 'Judges, who in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment.'-Here it was held that the Judge was making a point about the significance of documentary evidence. A reasonable observer would not have imputed to the Judge a view that the appellant (or respondent) was a person whose evidence was of no worth.-Options to purchase the shares were really indirect interests.

Week 13.2 – Remedies: 1

The Prerogative/Constitutional Writs pg. 806-Natural justice=procedural fairness-There are three types of remedies used in judicial review:

o Common Law prerogative writs of certiorari, prohibition, mandamus and habeas corpus

o Equitable remedies of declaration and injunctiono Statutory remedies available under the ADJR Act

-Certiorari commands an inferior court to certify its record of proceedings and allow a superior court to quash those proceedings for error of law. Prohibition restrains an inferior court from exceeding its power.

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Mandamus orders an executive officer or body to perform it public duty. Habeas corpus requires a person in custody be brought before the court so that the legality of the detention can be ascertained.-There is now a simpler method for obtaining an order in the nature of certiorari, prohibition or mandamus. This is done by ex parte proceedings in which the prosecuting party obtains a rule nisi. A rule nisi is a rule or order of the court which is not to take effect unless the person affected by it fails to show some cause against it.-The HC’s power to grant writs comes from the Constitution s75(v) .-A court can choose to grant an equitable remedy in addition to or instead of a prerogative writ.- The advantages that equitable remedies have over prerogative writs are : they can be used without differentiation in private law and public law matters. By contrast the prerogative writs can only be used in public law matters. In addition, the time limit for applying equitable remedies is also less strict.

♣3 Prerogative Remedies Granted:●Re Refugee Review Tribunal; Ex parte Aala (2000) [HCA] pg. 809▪Court: -Granted Aala prohibition to restrain the minister from acting on the tribunal’s decision; certiorari to quash the tribunal’s decision; and mandamus to require the tribunal to reconsider Mr Aala’s case.

Certiorari pg. 810-Enables superior court to quash a decision on the ground of jurisdictional error, breach of natural justice, fraud, or error of law on the face of the record .-Decision-maker has to have the legal authority to make decisions that affect the rights of others (i.e. inferior courts and tribunals)-Certiorari applies to a decision that has a “discernible or apparent legal effect upon rights” (Hot Holdings)-Errors within jurisdiction “on the face of the record: Even if the relevant “conduct” complained about was NOT a jurisdictional error (but an “error of law within jurisdiction”) courts have the ability to quash it as long as that error appears on the face of the record.-“On the face of the record”:

- Documents initiating the proceedings- Adjudication (or “the decision”)- Pleadings - NOT the evidence or reasons (unless decision-maker chooses to incorporate them)

(Shaw)-Construed narrowly to limit judicial review of jurisdictional errors and errors within jurisdiction that appears on the face of the record.

But if relief is sought under s16 ADJR Act , there is no requirement that error must appear on the face of the record.

♣Certiorari- “On the face of the record” :●R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] [UK Court of

Appeal] pg. 811▪Facts: -Tribunal made a decision granting compensation to Mr Shaw, calculated on basis of his 12 years employment with a hospital board. He sought a certiorari to quash tribunal’s decision, contending that tribunal should have considered additional service with local govt authority. -Case considers the meaning of the phrase “on the face of the record.”

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▪Denning LJ: -Rule: Certiorari could be used to quash an error of law on the face of the record, regardless of whether the error was jurisdictional or non-jurisdictional.-When certiorari is granted for jurisdictional error or bias or fraud, affidavit evidence is necessary. However, when it is granted for error of law on the face of the record, affidavit evidence is not admissible.-Affidavits are always admissible to show that the record is incomplete.

●R v Criminal Injuries Compensation Board; Ex parte Lain [1967] [HCA, Queen’s Bench

Division] pg. 813▪Facts: -Application of certiorari to quash a decision of the Compensation Board which has been established by government in the exercise of prerogative power.▪Lord Parker CJ: -Application of the doctrine of certiorari changes over time but the only constant limits throughout were that it was performing a public duty, which excludes private or domestic tribunals.

♣Must be a jurisdictional error or an error on the face of the record :●Craig v South Australia (1995) [HCA] pg. 814▪Facts: -This is a case where the trial of Craig was “stayed” so that he can obtain legal representation. The state appealed and applied for certiorari.▪Court: Held: This was not available because the error was neither a JE nor an error on the face of the record.-Court disagrees with an expansive interpretation to include reasons for decision and the complete transcript of the proceedings because in doing so, it would transform cert. into a discretionary general appeal for error of law.

♣Certiorari needs discernible legal effect upon rights:●Hot Holdings Pty Ltd v Creasy (1996) [HCA] pg. 816▪Facts: -Minister has discretion to grant or refuse application for an exploration license. Before the Minister makes a decision, he is to receive a report from the warden containing his recommendations. In the event where there are multiple applications, the warden is to state in the report any priority which is to be decided by the principle of “first in first served” and in the case of simultaneous lodgements, by a ballot.-An application seeks certiorari to quash the decision of the warden to hold a ballot. This was granted.▪Court: -Rule: For certiorari to be issued , it must be possible to identify a decision which has a discernible legal effect upon rights . Court noted two typical situations:

o Where the decision is the ultimate decision and the question is whether the decision affects rights?

o Where the ultimate decision definitely affects rights but the question is whether a decision made earlier sufficiently determines rights or is connected with that decision?

-Honours regarded that the Minister MUST have regard to the warden’s report before making the final decision. This means that the report is sufficiently connected with the Minister’s decision.

Prohibition pg. 819Granted by a superior court to restrain a body from exercising its powers on the ground of a ‘want’ or excess of jurisdiction or breach of natural justice: Aala.

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-Decision-maker has to have the legal authority to make decision that affect the rights of others (i.e. inferior courts and tribunals, not ministerial or administrative in nature): Wright.-Does not have to be ‘on the face of the record’.-Steps:

1. Is there jurisdictional error? 2. Should this relief be granted to the applicant before the court?

i.e. NOT concerned with discernible effect upon rights (like with certiorari).

Mandamus pg. 821The writ of mandamus is granted by a superior court to command the fulfilment of a duty of a public nature that remains unperformed: Bott.-Test #1: Central legal issue is whether there is a public duty that remains unperformed. Can arise in 4 ways:

1. When legislation imposes a non-discretionary duty that is to be performed once certain facts are established→ Usual order made by court is to command the decision-maker as to the decision to be made or action to be taken.

2. Where a decision involving a discretionary element has been erroneously made (usually by breach of natural justice, consideration of irrelevant matter or erroneous construction of legislation)→ A court will compel a fresh decision or exercise of power, but not the exercise of the power in a particular way (Randall)→ Court will direct how a discretionary power should be exercised in exceptional situations (Royal Insurance)

3. To compel another court either to exercise a jurisdiction that the court has declined to exercise, or to compel the court to exercise the jurisdiction differently (Ozone Theatres)

4. Where the very existence of a public duty is the issue in dispute.

-Test #2: The key is the construction of the particular public duty . Is it a duty to :- “Merely consider” the issue OR- Perform a particular function

♣“Merely Consider” Statement:●Commissioner of State Revenue (Vic) v Royal Insurance Aust Ltd (1994) [HCA] pg. 824▪Facts: -Royal Insurance overpaid $2m over 4 years in stamp duty on workers’ compensation insurance.-Stamps Act 1958 (Vic) s.111(1) provided that commissioner ‘may refund’ an overpayment. Commissioner refusedbasis Royal Insurance had already recouped overpayment from its policy holders.▪Found: -Restitutionary principles not a proper basis for refusing a refund . No other valid reason for commissioner to refuseCourt granted mandamus to compel commissioner to refund.▪Court: -A process of statutory construction was used to deem the words “may refund” in the legislation as importing a duty to positively perform a refund, rather than “merely consider” whether that refund should be granted (especially given as there were no good reasons for refusing the refund).

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●Sinclair v Mining Warden at Maryborough (1975) pg. 826▪Rule: If the person, having a duty to hear and consider, misconceives what is his relevant duty, then he will have failed to perform that duty and may be compelled by mandamus to perform it according to law.

Injunction pg. 831-Injunction=Order by decree made by court requiring a party to do a particular thing (mandatory injunction) or refrain from doing a particular thing (prohibitory injunction).-Can also be granted in an interlocutory (interim) form and therefore can be sought urgently, ex parte and in chambers, to maintain status quo pending a final determination of the substantive issues in dispute.

-Test: Whether there is a “serious question to be tried” and the ‘balance of convenience favours the granting of the injunction’ (Ethicon)

Rule: An injunction is a coercive remedy and is a flexible remedy that can be moulded to fit the exigencies of the particular case. (Bateman)

An acknowledged use of the injunction has been its issuance at the suit of the Attorney-General or a local council to prevent a threatened interference with public rights (Huber)

The wide discretion of the Court is an adequate safeguard for the benefit of the public or at least a section of the public. (Cooney)

A common use of equitable remedies is observed in ensuring compliance by the executive and legislative branches of government with the requirements of the Constitution. (Bateman’s Bay)

Rule: Generally an injunction will not be granted if there is a suitable alternative remedy such as a prerogative writ or the prospect of a tort action providing adequate compensation.

Declaration pg. 834-Declaration=A conclusive statement by a court of the pre-existing rights of the parties.-Once declared the issue cannot be re-litigated, and the government or agency will abide by the declaration of a court, otherwise the act is devoid of any legal effect.

-Test #1: Applicant must have standing to seek equitable relief.-Test #2: Must be actual and not hypothetical issue to be resolved.

The court is not bound to make declaratory orders and would refuse to do so unless in proper cases, and would punish with costs person who might bring unnecessary action. There is no substance in the apprehension but if inconvenience is a legitimate consideration at all, the convenience in the public interest is all in favour of providing a speedy and easy access to the Courts. (Dyson)

Rule: The question must be a real and not theoretical one, and the person raising it must have real interest to raise it. The power should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncement ought not to be issued unless there are circumstances that call for their making. (Forster)

Prerogative writs are not wholly effective as general public law remedies, nor are equitable remedies which are available only at the suit of a person with a direct or special interest in the subject matter. However, equitable remedies are available in the field of public law precisely because of the inadequacies of the prerogative writs, thus

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it is not incongruous that equitable relief should be available although prerogative relief. (Enfield)

The procedure of judicial review from that of an appeal is that a court enjoys larger powers. Whereas on appeal, a court will often enjoy the power and responsibility of substituting its decision for that under appeal, judicial review is designed fundamentally to uphold the lawfulness, fairness and reasonableness of the process under review. An overt precise declaration should not be made where any residual discretion remains in the primary decision-maker, nor where following review, outstanding facts remain to be found which could affect the final decisions, or on its true construction, the Act makes it clear that such decision-maker, and it alone is the recipient of the power to make the decision in question. (Guo)

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Week 14.1 – Remedies: 2

Statutory Judicial Review Remedies pg. 841-s 16 ADJR Act:

a) an order quashing, setting aside all or part of decision from date of order or earlier date as court specifies: Certiorari and prohibitionb) referring matter back to the decision maker with directions court sees fit: Mandamusc) order declaring rights of parties: Declarationd) order directing any parties to do/ refrain from doing something court considersnecessary to do justice: Injunction

-s 16 ADJR Act:•They are as extensive as remedies at common law, but is also broader, allowing:

▪ A discretionary choice of date of quashing; s16(1)(a) ▪ A matter to be remitted to a decision maker for further consideration in accordance with any directions made by the courts; s16(1)(b) (but not so as to substitute a discretionary merits decision for court’s own decision: Conyngham.)▪ Declarations on related matters, s16(1)(c) (Park)▪ Directions ‘necessary to do justice’ between parties; s16(1)(d) (but not damages: Park); aims to avoid re-litigation (Park); eg composition of a tribunal: Wang

• Limitations:▪ Shepard J in Conyngham: if there is an aspect of discretion to decide, that should be remitted to the original decision maker and not the court▪ A litigant can’t use s 16 to get damages (Park)

○ Claim for damages against the Cth can only come from a civil wrong or a breach of contract○ A court can use s 16 to issue an order for money to be paid to a party that is entitled to it○ Findings from a JR case may be then used in separateproceedings in another court

▪ s 16 is interpreted liberally and not technically: Conyngham; Park Oh Ho

-In s16, the ADJR Act provides remedies similar to the common law and equitable remedies from the previous class.

While the remedies offered by section 16 are similar, they go further in spelling the amplitude of the courts’ power. For example, an order can be used to set aside a decision with effect from a date chosen.

●Minister for Immigration and Ethnic Affairs v Conyngham (1986) [FCA] pg. 842▪Facts: -The minister had declined to approve an application lodged by Conyngham for entry permits for an American band. The trial judge considered that the minister was obliged to approve the application, and he subsequently made an order of that effect under s16 of the ADJR Act. ▪Found: On appeal, the Full Federal Court decided that the trial judge had erred on two grounds – in concluding that the minister was obliged by non-statutory guidelines to grant the application, and in making an order under s16 compelling the Minister to approve the application.

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▪Sheppard J: - The FC decided in this case the relevant legislation (the Migration Act) leaves the minister with discretion to decide whether to approve an application for entry permits.

In the case where the decision maker is left with discretion under the statute after considering all the policies and issues, his mistake in law will be corrected by the court remitting the matter for further consideration according to law.

-Rule: Should construe s16 provisions according to their plain and ordinary meaning. It is meant to be construed more liberally than the prerogative writs. But if the decision maker had residual discretion, the court should not make an order of review directing the decision maker as to what decision should have been made i.e it should be remitted to the original decision maker to exercise the discretion.

●Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) [HCA] pg. 843▪Facts: -POH and others had deportation orders made against them. These orders were actually used in disguise to detain them as potential witnesses in another case.▪Found: -The FC decided that the deportation orders were unlawful, having been made for the unauthorised purpose as described earlier. A further consequence of this is that the continued detention of the appellants was unlawful. Hence POH and others were entitled to a declaration under ADJR Act s16 that their detention was unlawful.▪Court: Emphasised the phrase “any matter to which the decision relates” in s16(1)(c), and in this case, it was decided that the detention order, whose validity depends on the validity of the deportation order, must be such a matter as it is closely connected with the original decision.-The legislative purpose of s16 is to allow flexibility in review proceedings to achieve what is necessary to do justice (s16(1)(d)).-The appropriate remedy will depend on the circumstances.-Appropriate remedies could have been:

o Injunction: to procure the applicant’s release to ‘do justice’ between the partieso A declaratory order that his detention was unlawful in addition to an order formally quashing the deportation order on which their detention was based (Certiorari under CL)o However, the declaratory order will only resolve whether the applicant’s detention was lawful/ unlawful

Will not conclude whether the Minister was vicariously liable for the conduct of the responsible person

-Remedies of JR are certiorari, prohibition, injunction and declaration.-Rule: The effect of a declaration is to resolve the question between the parties. It is not to conclude against the original decision maker the question of their responsibility for that unlawful decision. It is not appropriate to ask for damages in proceedings for judicial review.

To Get Damages-The ADJR Act does not support a claim for damages. A claim for damages from the Commonwealth must be based upon a civil wrong or a breach of contract.

However, a court can make an order under s16 requiring money to be paid to a person in satisfaction of a statutory entitlement (eg. social security entitlements.)

-Must prove a cause of action under the principles of private law:o Breach of contract, negligence, nuisance, false imprisonment, misfeasance in public office, or breach of statutory duty (Crimmins v Stevedoring)

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Judicial Discretion to Refuse Relief pg. 846- A court has a discretion to refuse to grant a remedy, even though there was a breach of a ground of review. Standard discretionary grounds for refusal of a remedy are:

•Inexcusable delay by an applicant in commencing proceedings-Delay is not under the ADJR Act. Because there is already a 28 day time limit. Court could extend the time limit. But in ADJR, s. 11 says it is 28 days.

•The ineffectiveness or futility of granting a remedy•The existence of a more convenient and satisfactory alternative remedy•Failure of the applicant to utilise a statutory appeal procedure before commencing judicial review proceedings•Acquiescence by an applicant in or waiver of a breach•Unwarranted prejudice to the interests of a party relying on the administrative decision•A competing public interest

- The ADJR Act s10(2)(b)(ii) confers a discretion on the court to decline an application for review if adequate alternative provision is made by some other law or review by another court, tribunal, authority or person.-s. 123 ADT Act: Provides that the Supreme Court may decline to review a decision of the tribunal that can be appealed to the appeal panel of the tribunal.

●Bragg v Secretary, Department of Employment, Education and Training (1995) [FCA]

pg. 847▪Facts: -Bragg was dismissed from a public office, and there is an appeal lay from the dismissal decision to a Disciplinary Appeal Committee established by statute.▪Found: -Having regard to this alternative appeal avenue, the court dismissed Bragg’s application for JR under s10(2)(b)(ii) of the ADJR Act.▪Davies J: -The “review” in s10 of the ADJR Act is a review involving an independent exercise of powers directly affecting the decision reviewed.-Rule: If there is cheaper and quicker way to resolve the dispute other than judicial review, i.e through the committee in this case, the court will not undertake judicial review because it is too costly and a waste of time.

●NSW Breeding & Racing Stables Pty Ltd v Administrative Appeals Tribunal (2001)

[NSW Supreme Court] pg. 848▪Facts: -This case discusses section 123 of the ADT Act which provides that the Supreme Court may decline to review a decision of the tribunal that can be appealed to the appeal panel of the tribunal.-He had an avenue to appeal to a Disciplinary Appeal Committee that he didn’t use▪Barrett J: -Rule: Judicial review jurisdiction will not be exercised where there is an alternative remedy by way of appeal. However, this general rule shouldn’t be approached as if it were a statutory prescription.-Tribunals have more experience in handling the matters which relate to their area of expertise.

♣Discretionary Factors:●SZBYR v Minister for Immigration and Citizenship [2007] [HCA] Suppl. pg. 185▪Facts: -Applicants sought judicial review of a decision of Refugee Review Tribunal which had affirmed a decision of a delegate of the Minister to refuse to grant a protection visa.

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-RRT satisfied that applicants had been involved in a personal dispute, and had not been targeted because of their religion. This conclusion was inconsistent b/w statements in a statutory declaration.▪Found: -No failure to comply w/ s.424A of the Migration Act. Exercise of discretion constitutional writs would not have been granted as no useful result could have ensued. Appeal dismissed.▪Kirby J: -Rule: Constitutional writs are discretionary.

Privative Clauses-Privative clauses= A clause inserted into legislation to oust a court’s jurisdiction to review administrative decisions. These include:

Decisions which are final and conclusive. o Cannot be appealed under judicial review .o BUT JR can still determine whether or not the decision is valid [Hockey]

Clauses denying a specific remedy e.g. certiorari, prohibition or mandamus. o Cannot deny a remedy when decisions breach procedural fairness (as these are

no longer decisions) → Jurisdiction error makes a decision a nullity → has no force.

Express statements that judicial review is only available on certain groundso Strong presumption that a privative clause will not be effective to exclude

review generally, particularly of a jurisdictional error including a breach of natural justice (Coldham, Plaintiff S157/2002I).

Time limits on applications for judicial review o Accepted unless jurisdictional error [Plaintiff S157/2002] o An extendable time limit may be valid (Plaintiff S157/2002)

Clauses conferring a very wide discretion e.g. “if the Minister is satisfied.” o Parliament is attempting to prevent appeals on the wrong findings of fact.

Since courts cannot review facts anyway, these clauses are upheld. Clauses protecting a body’s decisions, or providing that anything the body does has

the same effect as an act of parliament

When are Privative Clauses valid?-If error is outside jurisdiction , privative clauses cannot apply:

Tribunals cannot determine their own jurisdiction by preventing courts from reviewing.

Separation of powers requires that only Chapter III courts can exercise judicial power and determine their own jurisdiction

-If error is within jurisdiction, privative clauses may apply.

~HC’s original jurisdiction: cannot be ousted by a privative clause.

♣‘Final and Conclusive’:●Hockey v Yelland (1984) [HCA] pg. 778▪Facts: -The neurology board under the workers compensation act rejected a claim by Hockey for compensation under the act, because he had not suffered an ‘injury’. S14C(11) provided that the determination by the board…shall be final and conclusive and the claimant shall have no right to have their matters heard and determined by way of appeal or otherwise. Hockey sought certiorari to quash the decision of the board for error of law.

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▪Found: The subsection only limited right to appeal, but not the right to judicial review.▪Gibbs CJ: -“Final and conclusive” is not enough to exclude certiorari:

•Only decisions made on merits (facts) of the claim are final and conclusive. BUT the court can still review whether the law was used properly (can quash decisions), i.e. it only limits the right to appeal, not to judicial review.

-Rule: Judicial review will be excluded only if there is a clear legislative intent to do so. Look to the words of the clause. Just because a clause may say that the decision is to final and conclusive, this does not mean that judicial review is excluded.

●Osmond v Public Service Board of New South Wales [1984] [NSWCA] pg. 779▪Facts: -Osmond sought a declaration that he was entitled to be given reasons to a decision by the public service board not to appoint him to a position. S65A(6) of the public service act provided that no proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for declaration or injunction shall lie in respect of the appointment or failure to appoint a person to a position in the public service board.▪Found: -Jurisdiction had not been ousted.▪Kirby P: -Rule: Clauses are to be read strictly by the courts. The clause may be circumvented by other routes. If the failure of the board to give reasons involved an excess of jurisdiction or an inability to establish that it complied with its jurisdiction, the court may examine the conduct of the board and the clause will have no effect. -Rule: If there is a denial of natural justice the clause will be ineffective to protect the conduct from judicial review.

♣Express Words to Oust Certiorari:●Houssein v Department of Industrial Relations and Technology (1982) [HCA] pg. 780▪Facts: -An appeal from a decision that held that s 84(1)(a) of the Industrial Arbitration Act 1949 (NSW) had the effect of excluding recourse to the prerogative writs in matters within jurisdiction of the Commission. S 84(1) provided:

- (a) Any decision of the commission shall be final and not liable to be challenged, appealed against, reviewed, quashed or called in question by any court of judicature on any account whatsoever.

- (b) No writ of prohibition or certiorari shall lie…▪Found: Jurisdiction was ousted by privative clause because ‘quashed’ = certiorari or ‘called into question in any court of law’ is wide enough to exclude prerogative writs.▪Court: -Wording matters-Parliament is trying to tell courts to keep out.-Rule: Use of the words “quashed” rather than the word certiorari which they had meant hence it won’t exclude judicial review because it must EXPRESSLY state that certiorari is inapplicable.-Rule: Privative clauses do not restrict judicial review unless expressly stated so.-Thus even excess of jurisdiction in relation to industrial matters may not suffice to attract the prerogative writs.

♣Express Words needed to oust Judicial Review on Grounds of Procedural Fairness; Tribunals cannot Determine their own Jurisdiction:●Plaintiff S157/2002 v Commonwealth of Australia (2003) [HCA] pg. 783▪Facts: -Plaintiff challenged an RRT decision to uphold the minister’s decision to deny protection visa on the basis of denial of natural justice. The Migration Act 1958 (Cth) contained a privative clause:

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o s474(1): A privative clause decision is: (1) final and conclusive (b) must not be challenged, appealed against, reviewed, quashed or called into question (c) is not subject to prohibition, mandamus, injunction, declaration, certiorari in any court on any account

o s486A(1): An application to HC for constitutional writs or declaration and injunction in respect of a privative clause decision must be made to the HC within 35 days.

▪Found: Parliament has not evinced an intention that a decision by the Tribunal to confirm a refusal of a protection visa made in contravention of the requirements of natural justice so long as it was made in good faith. Hence, it was not intended that the decision would be within the scope of protection of the privative clause. ▪Gleeson CJ: -Rule: Privative clauses do not protect decisions involving jurisdictional error. -The meaning of a privative clause, and what protection the clause purports to afford, must be ascertained from its terms; what is required is a consideration of the whole Act, and an attempt to achieve reconciliation between the privative provision and the rest of the legislation.-If there is an opposition between the Constitution and any such provision, it should be resolved by adopting an interpretation consistent with the Constitution.-People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness.-Parliament may create, and define, the duty or the power, or the jurisdiction, and determine the content of the law to be obeyed. But it cannot deprive the HC of its constitutional jurisdiction to enforce the law so enacted.-It is beyond the capacity of the Parliament to confer upon an administrative tribunal (or any other non-judicial body) the power to make an authoritative and conclusive decision as to the limits of its own jurisdiction, because that would involve an exercise of judicial power.

●Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] [HCA] Supp. pg. 187▪Facts: -▪Court: -Held invalid. It denied court discretion to account of sickness, etc. It was also too bluntly worded to satisfy section 75(v)-The hostility that courts have with privative clauses.

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Final Exam Choose one of three problem questions. One is divided into a) and b). Similar format

every year. Eg standing, evidence, remedy (ADJR s16 or common law), policy, discretion.

Essay – eg what are problems with area of law? What should change, to what? Legal issue – Australia law not moving in line with other law.

Question

When will an applicant be granted a hearing?What is the test for determining if a judge is biased and what are the exceptions?

Review of administrative decision, time limit not upheld in HCA. Since jurisdiction of HCA is open, does Federal Court still have standing if it’s out of

time? s424A Migration Act – tribunal must put to applicant adverse reasons that refuse their

application must be in writing. 2 applications, original and review, therefore two sets of information.

Judicial review – can look at new facts and circumstancesAppeal – can only look at original facts and circumstances Problem Question

Be Systematic1. Identify the issue2. State the Law/Rule - Authority3. Apply rule to issue and facts4. Reconcile all competing issues and come to Conclusion because of ….

When factual situation is silent on a particular issue, if the facts are … then …. But don’t write too much about irrelevant issues.

No introduction to problem question.Conclusion – conclude on each specific issue. But don't conclude twice.Write plan.

Essay

Essential thesis or argument that actually answers the question!! Conclusion Sub-headings

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CERTIORARI PROHIBITION MANDAMUS DECLARATION INJUNCTION ADJR ORDER OR REVIEW

Effect of remedy

Quash earlier decision that had a discernable or apparent legal effect upon rights (Hot Holdings)

Restrains a body from exceeding their jurisdiction

Compels performance of a public duty. coercive remedy

Declares existing right. Not coercive

Prohibitory restrain. Mandatory directing. Mandatory is harder to get. And also an interlocutory injunction- preserve status quo until the next time can argue. Needs to be a serious question to be tried. Security or an undertaking to pay damages if not successful

Same as the common law writs

Which decision maker?

Public body. Legal authority to determine questions affecting rights. Usually conferred by legislation (parent or subordinate), also from prerogative power (Lain). Broadly applies to administrators,

Section 75(5) Constitution. The same as certiorari. Legal authority to determine questions that affect rights

Anyone subject to a public duty. public not private, duties arising from contract. Duty- if there is a discretionary power, the duty is to exercise the discretion improperly. Ie.

Applies to anyone because it is an equitable remedy

Same as declaration

Decision to which this act applies- i.e decision of an administrative character, but not Attorney General and decisions made under Schedule 1

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except for the supreme court. High court has power under the constitution. Cannot get against the crown, supreme court judges.

Take into account relevant considerations, accord natural justice. But if there is no discretion left, i.e the applicant has satisfied all the criteria, and there is only one choice of result. the duty is to issue the license etc.

What grounds?

Jurisdictional errors, breach of natural justice, fraud or non-jurisdictional error on the face of the record. Aala- breach of natural justice is a jurisdictional error. Refer to Craig for an error of law on the face of the record. But in some circumstances- page 184 supp- the face of the records

Same grounds as certiorari, except for non-jurisdictional error of law on the face of the record because that is dealt with in certiorari

Jurisdictional error. Breach of natural justice

Jurisdictional error. But need a real and not hypothetical issue. Natural justice.

Same as declaration. But jurisdictional error what if the error/defect does not invalidate the decision? Project blue sky. Can still get a remedy if they have standing.

s5 decision s6 conducts7 failure to make a decision. but at common law, if there is an error of law, need it to be jurisdictional error or error on the face on the record. But ADJR act needs just error of law. Also differences in the evidence. S5(3)

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Which courts have jurisdiction to grant the remedy?Who has standing to apply for the remedy?

A stranger to the proceedings can apply

A stranger to the proceedings can apply

Which factors are relevant to the exercise of discretion( to refuse the remedy)?

DelayFutilityInterfere criminal process Public interest

DelayFutilityInterfere criminal processPublic interest



Problems with enforcing the criminal law. Cooney. DelayFutilityInterfere criminal processPublic interest

S10(2)(b)(ii) Delay is not relevant because there is a time limit to review (28 days). Court can extend the time but has to be persuaded.

Anything else relevant to the remedy?

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