ADMINISTRATIVE LAW NOTES

Class 1 – INTRODUCTION

There are several definitions of Administrative Law:

“The legal principles governing the relationship between the government and the governed” – Butterworths Encyclopedic Australian Legal Dictionary

“The primary purpose of administrative law, there, is to keep the powers of government whitin their legal bounds, so as to protect the citizen against their abuse. The powerful engines of authority must be prevented from running amok.” – HWR Wade & CF Forsyth, Administrative Law

“For some it is the law relating to the control of government power, the main object of which is to protect individual rights. Other place greater emphasis upon rules which are designed to ensure that the administration effectively performs the tasks assigned to it. Yet others see the principal objective of administrative law as ensuring governmental accountability, and fostering participation by interested parties in the decision-making process.” – PP Craig, Administrative Law

“Administrative law is the space where the state (and its emanations) and the subject/citizen/rights – bearing individual come into contact – and sometimes clash- and the maintenance of a relatively free and democratic society depends on the fair and orderly resolution of those disputes.” M Taggart

“As a minimum, we want a legal system which addresses the ideals of good government according to law. We take those ideals to include openness, fairness, participation, accountability, consistency, and rationality, accessibility of judicial and non-judicial grievances procedures, legality and impartiality.” M Aronson, B Dyer & M Groves, Judicial Review of Administrative Action.

Law can be categorized into either public law or private law. Public law is law that applies to everyone – whether you agree to be bound by it or not. Examples include Constitutional law, criminal law and Administrative Law. Private law applies only to those that “agree” to be bound by the law. The law applies only to the parties involved – e.g. contract law.

There are two institutions in the Judicial process- the courts and tribunals. Administrative law deals with the exercise of power by decision makers, including the state,

government officials, tribunals, boards, commissions etc. These decision makers deriver their power to make laws from statute laws & the prerogative

(royal prerogative) Examples of administrative law include taxation law, refugee/migration law, employment

law (IR Law) and social security law.

Questions

1. The growth of the bureaucracy coincided in England with industrialization. Why?Industrialization lead to a greater proportion of people living in urban areas. Self-employment was being replaced by employed work. Thus led to greater chances of disputes between employers and employees etc. Thus there was a growth in trade unions etc. As a result, there was a greater need for regulation.

Also with the increase in growth, the government’s wealth and power also grew dramatically. It soon started to operative hospitals and schools etc. Thus they started to play a greater administrative role. This resulted in an increase in administrative law.

Usually it is not very practical for the court system to get involved in trivial matters of administrative law. The system would be over ridden with complains and cases, that it simply would not be able to operate efficiently. Thus administrative bodies such as the police are employed to take on board responsibilities to govern administrative matters. If an issue arises between individuals and decision makers, then the courts may intervene.

Often well drafted statutes set out first a general objectives, and then specific regulations. The principle act often gives powers to other decision making bodies to make and administer rules, by-laws and ordinances in relation to particular matters.

Class 2 - Controlling the Executive Readings: Chapter 1 – Accountability in an Administrative State

A unique feature of Australian history is that the community, more than in other nations, came to rely on government to provide public services. The High level of government control in Australia is due to:

Our replication of the Westminster system, which has permitted a high level of government control.

The enormous size of Australia, with a small population meant that vital infrastructure such as railways, schools etc had to be provided by the government, because there were no other enterprises large enough to provide them.

The growing important of the government in Australia has increased the need for government accountability.

Report of the Royal Commission into Commercial activities of Government and Other Matters 1992 In a democratic society, effective accountability to the public is the indispensible check to be

imposed on those entrusted with power. Accountability measures hold governments, public officials and agencies to account for the

manner of their stewardship. Government is constitutionally obliged to act in the public interest.

Accountability to the public is an obligation of all who hold office or employment. The public is reasonably entitled to entertain a variety of expectations of those institutions and

officials in their management of use of their power. The avenues through which public accountability can be rendered include: through the public

directly, accountability agencies (Ombudsman, Auditor General and the Parliament) or through accountability of officers to their superiors.

No single measure alone can secure effective public accountability. A variety of measures is necessary.

Report of the Senate Select Committee on a Certain Maritime Incident, 2002 Accountability within the context of the public service is usually described in terms of

obligations arising from the relationships of responsibility or authority which pertain between the public service, ministers and the parliament. It can be taken to refer to the need for the executive government and administrative bodies to comply with the law and in particular to observe relevant limitations on the exercise of their powers. It also requires a person to explain and justify decision markers’ decisions, and to make amends for any fault or error.

Government ministers have, under constitutional doctrine of responsible government, both collective and individual responsibilities. A minister is accountable to the parliament for the policies and actions implemented by his or her department. There are both legal and conventional obligations attached to the performances of ministers.

Legislative prescription for public service accountability is contained in several pieces of legislation including the Public Service Act 1999 and the Financial Management and Accountability Act 1997.

Transparency, accuracy and timeliness requirements are vital for proper accountability.

Westminster ministerial responsibility – ministers are accountable for the actions and activities of their departments. As such ministers actively look part in the activities of their departments. But now, the minister is usually not totally responsible for the activities of departments. Now you have key departmental officials who are the head of that particular department, who tend to be blamed for any mistakes of the department.

Wednesbury Reasonableness – if the ministers can show that they acted on departmental advise, then it is likely to be “reasonable”.

However there is often a problem with accountability and flexibility. While government bodies should be accountable for their actions, they should also be free to do their job without having to account for every action they make. Government bodies should be given discretion in the way they perform their duties, but that discretion should be limited to prevent abuse of power. We must find a balance between flexibility and accountability.

The growing importance of the government in Australia has increased the need for government accountability.

Forms of Accountability 1. Political Accountability – political accountability of government chiefly occurs through the

parliamentary system, in accordance with the principles of responsible government. Each member is answerable to the parliament and is accountable ultimately to the electorate. - Ways in which it can be achieved include through question time, parliamentary inquiries

and through reports (eg annual reports) which are made public. - Limitations of political accountability include: it usually relied on ministers resigning,

which doesn’t often happen (often it is the departmental head that is forced to resign). Also, political accountability can’t look at small cases because of a lack of time and resources.

2. Financial Accountability – this is the verification of the official use of money drawn from the public account. The government uses public money (via tax) to fund its spending, thus the public have the right to know how that money is being spent. A statutory framework of precise rules and directions has been developed for this purpose. IN the commonwealth, the main statutes are the Auditor-General Act 1997, Commonwealth Authorities and Companies Act 1997 and Financial Management and Accountability Act 1997

Parliamentary control of finance occurs in varying ways: legislative approval required for taxation, parliamentary estimates committee examines executive activity, the parliamentary public accounts committee and through annual reports.

The principle financial monitor of government operations is the Auditor-General. The auditor general conducts two types of audit: financial audits and performance audits. Financial audits looks at the financial statements of the government. Performance audits examine the efficiency, regularity and general “value for money” of government expenditure. The Auditor general reports to parliament in an independent, apolitical and informative manner.

Other bodies available for financial accountability include Senate Estimates Committee, Public Accounts committee etc.

3. Administrative Law accountability – has grown in prominence over the last 50 years. In part this has been due to the limitations of political accountability. It also grew as a result of a growing desire for accountability by the public sector. The broad purpose of administrative law is to safeguard the rights and interest of people and corporations in their dealings with government agencies. It does this in three main ways: Review of decision making – merits review (tribunals) and judicial review (courts). Protection of information rights – freedom of information and privacy laws as well as

whistleblower protection legislation all increase the transparency within administrative law.

Public accountability of government processes –agencies such as ICAC, human rights councils and specialist commissions ensure accountability and propriety in government processes.

Administrative law should promote lawful, rational, open and efficient government operation. Sir William Dean attached the following features to an ideal government administrator: “incorruptibility, accountability and fairness”

There are several limitations of administrative law. Most of these center around technical limitations on power – eg court can’t substitute a new decision, tribunals review selected decisions only and the Ombudsman is limited to making recommendations only etc.

R Else-Mitchell, “Administrative Law”

Prior to the evolution of specialist administrative agencies, the public were forced to rely on the court system to achieve accountability of public agencies. This was inefficient as the court system was costly, inaccessible and time consuming. Further the complexity and variety of the situations which had to be met and the lack of expertise in the judicial system led also led to the evolution of administrative agencies.

The rise of Administrative Law accountability (History)

a. There was a rise in government control b. Increase in new legislation c. This led to a rise in the need to adjudicate disputesd. The disputes were too burdensome on the courts to deal with. This led to the

evolutions of a new form of adjudication – tribunals. Administrative action began to replace legislative enactment and judicial adjudication in creating legal rules and also in resolving legal disputes.

4. Accountability through ethics and integrity – Public service ethics acts and codes of conduct apply to public servants that force servants to serve the interests of the public. The main trend in the past two decades has been a move to spell out more specifically in legislation and other documents the values that underpin public service. The second change has been a redefinition of the 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 recognizable as core public law values. Eg, the Queensland Public Sector Ethics Act 1994 spells out 5 ethics principles for public servants: respect for the law and the system of government, respect for persons, integrity, diligence and economy and efficiency.

Accountability across the public/private divide

The trend in Western countries is for governments to devolve functions to private sector bodies whenever it is felt that the function can thereby be delivered more efficiently or effectively. There have been three main trends in the public sector: privatization (the body is wholly or partly under private ownership – Qantas), corporatization (government imposes private sector business structures) and contracting out (services will be delivered to the public by a private sector pursuant to a contract). This trend has impacted upon the ability to hold these organizations accountable under conventional methods – as these bodies are no longer “government bodies”.

There are 3 main ways of tackling this loss of accountability:

Contractual – have accountability provisions in their contracts – e.g. Telstra has a universal service condition as part of it contract with the government.

Use private sector accountability avenues – Trade Practices Act, torts etc Increase the level of regulation – pass new legislation to impose specific limitations on

specific enterprises.

Class 3 - Legality, Rules, Discretion & Policy

Readings: 8.1.1 – 8.2.5; 8.2.15 – 8.2.25 (Sources of legal authority) 7.4.1 – 7.4.8E (Government power: its classification and the nature of disputes) 7.4.9 – 7.4.14E; 11.1.1 – 11.2.4 (Rules, discretion and policy)

Sources of legal authority for government authority (8.1.1 – 8.2.25)

The foremost principle of public law is that government agencies need legal authority for any action they undertake. This is often called “the principle of legality”.

Mostly that authority derives from legislation. Yet t he executive authority of government also supplies legal authority for a great deal of government activity.

Any action taken by the government must be supported by lawful authority. If the act is not supported by lawful authority, then it is said to act ultra-vires.

The most common situation where the government acts ultra-vires is where a government gets a power to do one thing but it goes beyond that sphere of that authority. Eg a statutory power to run ‘tramways’ did not authorize the conduct of a bus service: London County Council v Attorney-General [1902] AC 162.

Sources of Authority 1. Statutory Authority – A constituent Act sets out the powers of a particular government

authority. Government Business Entities (GBE’s) are given powers under the Corporations Act, also some GBEs may also have their own constituent Act.

2. Executive Authority – also known as prerogative powers or common law powers. Prerogative powers are special non-statutory functions that only the Crown can

exercise. There are many affairs of the government that many be carried on independently of any statutory provision. Examples include: undertaking inquiries, entering into contracts, control union activity etc.

S 61 of the Constitution provides that ‘the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General and extends to the execution and maintenance of the constitution, and of the laws o the Commonwealth.”

There are however several limitations on executive power. These were outlined in Clough v Leahy (1904) 2 CLR 139:- Executive powers will not authorize government action that is coercive, intrusive,

punitive or threatening in nature. - Executive power is subordinate to statute – it can over-ridden by legislation- Executive power can’t be used to legitimate an action that would otherwise be

unlawful or tortuous. - If a government agency exercising executive powers does something that would be

unlawful for an individual to do, then it would be unlawful for the agency to do as well – ie the powers of the crown are practically no greater than the powers of the private individual.

- Executive power can’t interfere with the administration of the course of justice

While executive powers generally cannot be coercive, the “Tampa” case raised the question of whether the executive power can be used in a coercive fashion in order to safeguard Australia’s sovereignty. The Migration Act 1958 contained a comprehensive scheme for the

arrest, detention and deportation of any person who had entered Australian territory without a visa. However, the Act did not confer any powers to repel or prevent a person from entering without a visa. Could the executive power be relied upon for that purpose?

Minister for Immigration and Multicultural Affairs v Vadarlis (2001) 110 FCR 491 (Tampa

Case)

Facts: - 26 August 2001 – 433 Afghan refugees on sinking fishing boat- Norwegian ship (Tampa) responded to an Australian authority for help to save the

refugees- The rescue operation was successful.- Upon picking up the refugees, the Tampa headed towards closest land – Christmas

Island.- The Navy then told the Captain not to enter Australian waters and threatened the

Captain with people smuggling if he had done so.- Vadarlis brought a case against the government under Habius Corpus

Judgment – September 11, 2001 – single judge of the Federal Court (North J) held that the SAS troops had no authority to detain the refugees. He rejected the government argument that the expulsion of non-residents from Australia was no part of the government’s executive powers. He based his judgment on 2 arguments:

- There was no executive power to expel non-residents from Australia.- And even if there was, that power had been supplanted/overridden by the Migration

Act. The immigration minister (Phillip Ruddock) appealed to the full of the Federal Court. It was held by the majority that North J was incorrect in his judgment. The court held that

the ‘executive power can be modified/regulated by Statute…however the Migration Act doesn’t expressly or impliedly abrogate the executive power to prevent aliens from entering Australia. ‘

French J: “every nation has the right to refuse to permit an alien to enter that State…Australia’s status as a sovereign nation is reflected in its power to determine who may come into its territory and who may not and who shall be admitted into the Australia community…the people, through the structures of representative democracy, may determine who will or will not enter Australia…the executive power of the commonwealth, absent statutory extinguishment or abridgement, would extend to a power to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion…”

September 26 – the Commonwealth passed legislation to explicitly authorize the government to prevent entry of aliens into Australia. The legislation was established to operated retrospectively, and thus it legitimized the government’s actions in relation to the Tampa.

Vadarlis sought special leave to appeal to the HCA but was refused.

Presumption of Regularity – this is an assumption that government officials act lawfully when making decisions. This assumption is rebuttable, however the onus lies on the person trying to establish unlawfulness.

Polycentricity There are 3 sources of power – judicial, legislative and executive. There are many examples that blur the line between the 3 sources of power – e.g. a judge in

making a decision will set out what looks like policy. Polycentricity refers to matters which are marked by the numerous, complex and

intertwined nature of the issues of the repercussions, and of the interests and people affected. If a matter is polycentric, it’s not susceptible to be judged by a court. Since there are a large number of issues, they can’t be resolved using general principle.

See LL Fuller, “The Forms and Limits of Adjudication” p342

Discretion Discretion exists ‘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. Where you see words like “may” “thinks fit” “reasonable” “satisfied”, then the decision

maker will have discretion regarding those matters. Where the legislation is silent or vague, then it MAY impart discretion.

D J Galligan, ‘Discretionary Powers: A Legal Study of Official Discretion A notable characteristic of modern legal system is the prevalence of discretionary powers

vested in a wide variety of officials and authorities…there has been a heavy reliance on delegating powers to officials to be exercised at their discretion.

While discretion is an accepted feature of Australian law, many people have been concerned with the level of discretion given to government officials and authorities.

AV Dicey has always had the view that discretion should always be limited and in its place complex legislation should be implemented.

However, there is now greater acceptance of discretion, as we generally have controls of discretions.

Much of the impetus for god administration comes from within the authorities themselves: the concern to act rationally and purposively, to eliminate arbitrariness, to formulate and publicize guidelines etc

K C Davis, Discretionary Justice: A Preliminary Inquiry We can’t eliminate discretion, but should control it through structuring and checking. Structuring includes plans, policy statements and rules as well as open findings, open

rules and open precedents. Checking includes both administrative and judicial supervision and review.

Executive Policies The essential feature of executive policy is that it is a non-statutory rule devised by the

administration to provide decision making guidance, particularly in administering legislation. In some instances the policy is very formal, possibly authorized by statute, tabled in parliament etc. At other times it is informal – originating in a press release etc.

The rules Hierarchy: ConstitutionPrimary legislationsubordinate legislationpolicy If the policy is inconsistent with either constitution, primary or subordinate legislation, then

it is overridden. Problems with policy: those responsible for the exercise of policy decision are less and less

accountable to parliament because a lot of policy is not even made by ministers – it’s made by top bureaucrats in the government department.

But policy is needed because is ‘fills in the gap’ in legislative provisions. It is very difficult to set out in legislation ALL the details of the functions of an institution.

Policy guidelines enhance the consistency, predictability, fairness and democratic legitimacy of administrative decision making – Brennan J - Drank (no 2)

There is an expectation that the policies of an elected government should be carried into effect so far as they are not inconsistent with law.

See: Articles on pages 600-602.

Legal Status of Executive policies The principle is firmly established that a government or decision-maker can adopt a

policy to provide guidance in the exercise of a statutory discretion. There are two main riders to that statement:1. It is not inconsistent with other rules, statutes etc2. Public notification – unless they’re publically notified, they can’t be used to

disadvantage someone who didn’t know about it. Gleeson CJ – ‘there is nothing inherently wrong in an administrative decision-maker

perusing a policy, provided the policy is consistent with the statute under which the relevant power is conferred, and provided also that the policy is not, either in its nature or in its application, such as to preclude the decision maker from taking into account relevant considerations, or such as to involved the decision maker in taking into account irrelevant considerations. Neat Domestic Trading Pty Ltd v AWB Ltd

Class 4: Subordinate Legislation Readings: 6.1.1 – 6.1.15 (what is delegated legislation)

8.4.1 – 8.4.5; 8.4.16C – 8.4.29 (issues of legal validity)

6.1.9 – 6.1.22 (how is subordinate legislation made)

Role and Importance of Subordinate legislation Subordinate or delegated legislation is laws made by the executive – usually the Governor,

ministries or local government. Subordinate legislation 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 for the way it discharges its law-making function.

The controls include the requirement for executive adherences to statutory procedures, public consultation and judicial scrutiny of the validity of subordinate laws.

Once the instrument has been made, it must be tabled in parliament. They can then be scrutinized by either house of parliament. The person making the instrument has 6 sitting days to table document. Until then, the legislation is valid, but cannot be scrutinized.

Advantages of Subordinate legislation: expediency, flexibility, easier to understand, community participation is often involved in the making of subordinate legislation and convenience.

Disadvantages: it can violate the doctrine of separation of powers. When the executive makes laws, if blurs the difference between the executive and legislative.

The test whether a subordinate legislation is valid is whether it is in conformity with its parent Act.

The characteristics of subordinate legislation include: Subject to some level of parliamentary authority. They usually, but not always, deal with the procedural details, rather than the broad framework

of a legislative scheme. Their making often must be notified in the Gazette Can be disallowed by the parliament if it does not approve of then Available to the public.

Subordinate legislation comes in a variety of forms. They include:- Regulations - made by Governor or Governor-General and are general in their application- Rules – specify matters of procedure made by a court- By-law –instruments limited to a specific geographic area (local government laws)- Ordinances – made by governor for the government of a territory.

Legality of subordinate legislation Subordinate legislation is made by an executive officer (often the Governor-General, a minister

or a local council) under the authority of an Act of Parliament. As such, it is subject to much the same legal rules (about validity, construction etc) that apply to

other forms of executive or administrative action. Howe However, special attention has been given to subordinate legislation because of its volume, its

importance in creating legal procedures and obligations and the potential threat it posed to the separation of powers.

In order for subordinate legislation to be valid it must: Comply with the statutory procedural requirements – if the legislation is made not in

accordance with the process spelled on in the parent act, then it will be invalid.

The regulations must be authorized by the parent act both in its terms and scope It must comply with the usual judicial review criteria – e.g. whether or not the subordinate

legislation is Wednesbury reasonable – the decision is question is so unreasonable that no reasonable person in the position of the decision maker could have made it (Austral Fisheries)

Consistency with other legislation – unless the parent act has an over-ride clause (gives the regulation power to be inconsistent with other legislation).

Constitutional Compatibility – eg. A Commonwealth subordinate rule will be invalid if it transcends the Commonwealth’s legislative authority or it infringes the implied constitutional freedom of political communication.

How a court decides the legality of Subordinate LegislationThe court in McEdlowney established a 3 step process in determining the validity of subordinate legislation:

1. Construe the parent act – what is the scope of the regulation making power?2. Determine the scope & legal effect of the regulation in question.3. Is the scope and legal effect of the regulation consistent with the Parent Act?

Ie. Determine the meaning of the words used in the Act of Parliament itself to describe the subordinate legislation. Then determine the meaning of the subordinate legislation itself and finally decide whether the subordinate legislation complies with that description.

In determining the legal scope of legislation, there are two competing views as to how the scope and effect of subordinate legislation should be interpreted:

- Narrow statutory construction – we should limit the scope of discretion given to decision makers, especially given many decision are not publically elected.

- Broad interpretation – the regulations should be purposive and a narrow interpretation may promote judicial activism. ‘a court must exercise care not to impose its own untutored judgment on the legislator…'

Foley v Padley (1984) 154 CLR 349Facts: The Rundle Street Mall Act provided that the Adelaide City Council could make by-laws ‘regulating, controlling or prohibiting any activity in the vicinity of the mall that is, in the opinion of the Council, likely to affect the use or enjoyment of the Mall’. The council made a by-law prohibiting the distribution of anything in the Mall or public place without permission by the council.

Gibbs J: The court shouldn’t inquire whether the opinion was correct, but rather reasonable. ‘in the present case, we should inquire whether the activity described in the by-law could reasonable have been regarded as likely to affect the use or enjoyment of the Mall. If that question is answered in the affirmative there is no ground on which it could be concluded that the Council has misconstrued the effect of the Act’

The fact that the by-law is broad doesn’t matter, as long as it complies with the Parent Act.

Similar case: Ex P Cottman; Re McKinnon : held that a power to regulate the use and enjoyment of the Sydney Domain could validly authorize a rule prohibiting the distribution of written material in the domain unless authorized by the Commissioner of Police.

The means/ends distinction A power to make rules with respect to certain means will not support a rule that achieved the

ends of that Parent Act but with a different means. i.e. even if the end result is the same, the way you go about achieving if must be in accordance with the procedures set out in the Parent Act.

Paull v Munday (1976) 9 ALR 245Facts: The Health Act 1935 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 of any air impurity source’. The governor made a regulation providing ‘no person shall…light, maintain or permit to burn any open fire on any land or premises without the written approval of the Local Board of health.

Gibbs J: the power conferred by the act only allows the governor to limit or prohibit emission of air impurities…it doesn’t confer a power to prohibit the use of equipment that emits air impurities. ‘regulations of this kind might assist in bringing about the result which was apparently intended to be achieved by the [parent Act] but they would do more than the section permits – it would go beyond the power granted’

Reasonable Proportionality Test (Purpose/subject matter distinction)

There must be a sufficient connection between what the regulation in question purports to do and the purpose of the Parent Act.

South Australia v Tanner (1989) 169 CLR 161

Facts: the Waterworks Act 1932 provided for the ‘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’. A regulation providing ‘no person shall erect, construct, enlarge or establish a piggery, zoo or feedlot on any land within a watershed’ was made. The regulation was challenged in the HCA.

Held: ‘the starting point of any consideration of the validity of the regulation is to determine the true nature and purpose of the power…there must be conceded a broad approach in determining the nexus between the exercise of the power and the achievement of the purpose of which it is conferred…the reasonable proportionality test is whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose…the choice of means whereby the purpose is to be achieved is for the Governor, so long as there is a sufficient nexus between the means adopted and the end to be achieved.”

The court is not asked to give its own opinion. It’s task is to determine whether the regulation was consistent with its powers.

While the reasonable proportionality test has been used as a test for validity of subordinate legislation, the courts have been hesitant to apply the principle to invalidate executive action because courts have been reluctant to substitute their opinion of reasonableness of subordinate legislation. In Austral Fisheries, Lockhart J pointed out: “delegated legislation may be declared to be invalid on the grounds of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; the underlying rationale is that it could not be within the scope of what Parliament intended”

Accountability and Control of subordinate legislation

There are five different points at which control of subordinate legislation can be exercised:1. Public consultation – consultation with public is encouraged. Section 19 of the Legislative

Instruments Acts 2003 states that public consultation is a must. However, if doesn’t state what “consultation” is, nor does it apply any sanctions for non-compliance.

2. Internal executive Controls – the executive is given guidelines as to how to draft subordinate legislation. The guidelines state that subordinate legislation should not contravene core public law principles designed to safeguard civil liberties.

3. Publication of subordinate legislation – most statutory instruments are required to be available for purchase by public, or available through the internet.

4. Parliamentary oversight – most subordinate legislation has to be tabled in both houses of parliament where either house can disallow the legislation. Committees in the upper house attempt to subject the subordinate legislation to the same criteria as the courts.

- Any member of the parliament can attempt to disallow subordinate legislation for ANY reason.

5. Judicial Review – e.g. Wednesbury reasonableness. 6. Other administrative Law review agencies – ombudsman, tribunals and other agencies. 7. Sun-setting – the general rule is the legislative instruments are repealed automatically –

“sun-setted” 10 years after commencement, through the rule in the same terms could then be remade.

Class 5: Statutory Interpretation; Reasons for Decisions

Readings: 8.3.1 – 8.3.31 (Statutory Interpretation) 18.2.1 – 18.2.12 (Reasons for decision)

Statutory construction and public law The rules, principles and presumptions applying to the construction of legislation plays a key

role in administrative law. In determining a meaning of a statute, we must weigh up and balance the interpretative

factors concerned. These factors can be categorized into four main categories:- Common law and statutory rules, principles derived from legal policy, presumptions

based on the nature of legislation and general linguistic canons applicable to any piece of prose.

-In interpreting legislation take the following steps:

1. Start with the natural and ordinary meanings of the words of the provision2. Look at the purpose of the enactment – what were parliament’s intentions in enacting the

provision in question – section 15AA of the Acts Interpretation Act.3. Where there is ambiguity or the ordinary and natural meaning of the words of the provision

will give an absurd or unreasonable outcome, then, under section 15AB of the Acts Interpretation Act, you can look at extrinsic evidence including explanatory memoranda, second reading speeches, parliamentary debates etc.

The Language of the Statute The words of the statutory provision under interpretation are, of necessity, the starting point

in the interpretive process. The guiding principle, sometimes called the literal approach to interpretation, or the plain meaning rule, requires that words in a statute be given their ordinary and natural meaning.

Working alongside the literal approach – not inconsistent with it, but capable of reflecting a different emphasis is the purposive approach to interpretation. This is captured in the Acts Interpretation Act under section 15AA:‘in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object.’

The nature of the subject matter being regulated and interests apt to be affected The area of national or community life to which a statute applies is an important part of the

context that bears upon its construction. In Woodward for example, the subject matter of the statute – activity threatening Australia’s national security – was mentioned as a weighty factor supporting an expansive construction of the terms used in and powers conferred by the Act.

The nature of the power being exercised The nature and scope of a power can take colour from the character of the official who is to

exercise the power.

Interpretation Statutes All jurisdictions have an interpretation statute to guide the interpretation of legislation such

as the Acts interpretation Act 1901.

Extrinsic materials Each of the interpretation statutes now confirms that it is permissible to have regard to

contemporary material that is extrinsic to the Act (such as explanatory memoranda, second

readings speeches, parliamentary debates and other parliamentary materials) to resolve ambiguity or obscurity or to confirm the ordinary meaning of the statutory language.

There is also a growing trend in public law to have regard to international conventions to gauge their interpretive influence on domestic legislation.

Common law approaches, assumptions and presumptions A set of approaches, assumptions and presumptions have been established by courts in

ascertaining the meaning of statutes. These principles are necessarily subordinate to and can be rebutted b y legislation.

Implied incidental power 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.

Absent such a provision, there is ordinarily an implied power of similar effect. It is a “principles of statutory interpretation that a power conferred by a Parliament carries

with it the power necessary for its performance or execution”

Herscu v QueenFacts: the appellant was convicted for bribing the Queensland Minister for Local government ‘in the discharge of the duties of his office’. On appeal, the High Court rejected the appellant’s argument that the activity for which a payment had been made was not an explicitly duty of his office.

Held: the powers given to a minister are wide-ranging…he was clothed with the general authority in addition to the powers specifically conferred by statute…those [powers] 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 principle purposes

The principle of implied incidental power is limited in operation by other principles of statutory construction. Three such principles are especially worth noting:1. Clear and unambiguous statutory language is required to authorize activity by a public

official that is otherwise tortious or that interferes with a fundamental right: Coco2. The statutory power must not be used for an unauthorized purpose3. Activity that is ancillary in nature must complement, not supplement the statutory

scheme: Shanahan, Kent v JohnsonKent v Johnson

Facts: A group of Canberra residents brought an action against the construction of the Telstra Tower authorized by the Postmaster General who relied on the Post and Telegraph Act argued the act did not confer a right to erect a tower that contained a restaurant and tourist facilities.

Held: - A statute only authorizes those acts and mattes which it expressly nominates and those acts and matters which are necessarily incidental to the acts so expressly authorized.- Those acts and mattes which are necessarily incidental may be identified as those which pass the test that they are necessary for the reasonable fulfillment of the process of performing those acts and matters which are expressly authorized. - The allegation of the lack of statutory power arises out of the inclusion in the project of provision for restaurant and tourist viewing facilities. - In my opinion a project incidental to the exercise of a statutory power must in its nature have some affinity with the statutory power…it is not enough that it is economic or convenient…

Established freedoms and immunities Legislation is presumed not to abrogate a fundamental right, freedom or immunity other

than by express or unambiguous language. This principle is explained in Coco:

Coco v The QueenFacts: Coco was convicted of offering a bribe under the Crimes Act. His conviction hinged on evidence gleaned from telephone conversations that were recorded using listening devices installed by police officers posing as Telecom employees. The authority under which they did this only allowed them to “use” listening devices, but did not explicitly approve the installation of a device by unauthorized entry onto private premises.

Held: - statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed I unmistakable and unambiguous languages…the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct. - presence of general words in a statute is insufficient to authorize interference with the basic immunities which are the foundation of our freedom; to constitute such authorization express words are required – wheeler v Leicester City Council - In some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However it would be very rare. - it cannot be said that there is to be implied in s 43 power in a judge to authorize conduct which otherwise would amount to trespass.

The presumption enunciated in Coco which curbs the statutory abrogation of fundamental freedoms, overlaps with a sister principle that legislation is presumed not to alter the common law except to the extent specified clearly in a statute.

It is necessary to assess whether the suggested operation of a statute would infringe a fundamental freedom or common law principle, and if so, one must then examine whether the suggested operation is supported by a clear legislative intent.

Pecuniary burdens and penalties

Attorney-General v Wilts United Dairies LtdFacts: The UK government adopted a licensing scheme, including a license condition that 2d per gallon be paid for all milk purchased in certain areas of the country. The A-G relied on the Defense of the Realm Act which authorized for the regulation of supply and consumption of milk, but did not authorize him to require payment of penalties/fees.

Held: The rule of law that no pecuniary burden can be imposed upon the subjects of this country, except upon clear and distinct legal authority. - if an officer of the executive seeks to justify a charge upon the subject made for the use of the Crown…he must show, in clear terms, that Parliament has authorized the particular charge. - The Attorney-General in this case adopted methods which, in my opinion are unconstitutional and contrary to law and his agreements cannot be enforced.

This case has been used in many High Court decisions such as Commonwealth v Colonial Combing, Spinning and Weaving Co… to the same effect was a finding by the commonwealth Ombudsman, upholding a complaint that the Department of Immigration had acted unlawfully by imposing a $240 fee on anyone appealing to the Immigration Review Panel.

Both the panel and the fee had been created by executive action. The ombudsman concluded that the fee was unlawful as a tax levied without specific parliamentary approval.

Access to Courts Access to the courts to ventilate a legal claim is regarded as a right or entitlement of a

fundamental nature. 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.

Plaintiff S157/2002 v CommonwealthHeld: in considering and applying the relevant principles of statutory construction, it is necessary to begin with an examination of the scheme of the Act. - The following established principles are relevant to the resolution of the question of statutory construction:1. Where legislation has been enacted pursuant to, or in contemplation of, the assumption of

international obligations under a treaty or international convention, in cases of ambiguity a court should favor a construction which accords with Australia’s obligations.

2. Courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights and freedoms in questions, and has consciously decided upon abrogation or curtailment.

3. The Australian Constitution is framed upon the assumption of the rule of law – “Judicial review is a means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interest of the individual are protected accordingly”.

Duty to provide reasons for decisions

In Osmond the High Court held that there is no generally duty at common law, or general rule of procedural fairness, that requires administrative (or judicial) decision-makers to provide reasons for their decisions, but that such a duty may arise in ‘special’ or ‘exceptional’ circumstances.

Reasons in favor of requiring administrators to provide reasons for their decisions:1. The requirement to provide reasons for decisions is thought to encourage better and more

rational decision-making. 2. Increases government transparency and accountability. Also it is believed that the

legitimacy of a decision will be enhanced if reasons for the decisions that are provided, particularly of the reasons demonstrate that the decision was not made arbitrarily and that issues raised by interested parties have been adequately considered.

3. Procedural fairness arguments – as a matter of fairness, there should be a duty to provide reasons for decisions so as to enable people affected by the decision to determine whether the decision has been lawfully made; whether there are grounds for review or appeal; and to assess the strength of the case.

Once reasons for decisions are provided, the decision is open to a level of scrutiny not otherwise available.

Public Service Board of NSW v Osmond Facts: Mr. Osmond applied for an appointment by way of promotion but was not recommended for the position he requested reasons for the board’s decision but was refused.

Held: There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decision which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectation of other people.- Judges are under an obligation to give reasons where that is necessary to enable the matter to be

properly considered on appeal. It has long been the tradition practice of judges to express the reasons for their conclusions by finding the facts and expounding the law…this DOES NOT mean that a judicial officer must give his reasons in every case; it is clear that there is no ‘inflexible rule of universal application’ that reasons should be given for judicial decisions.

- There is no justification for regarding rules which govern the exercise of judicial functions as necessarily applicable to administrative functions.

- IF reasons were required for administrative decisions, an additional burden will be cast of administrative officers and it may also result in cost and delay.

- However, even if it be agreed that a change such as he suggests would be beneficial, it is a change which the courts ought not to make, because it involves a departure from a settled rule on grounds of policy which should be decided by the legislature and not by the courts.

- There is no rule of common law and no principle of natural justice, requiring the Board to give reasons for its decision, however desirable it might be thought that it should have done so.

Statutory Duty to provide reasons for decisions Many statutes impose a specific duty on decision-makers to provide reasons for certain of

their decisions: e.g. there are such duties imposed on ASIC under the Corporations Act 2001. If and only if the ADJR Act Applies, then Under section 13 of the ADJR Act, any person

entitled to make an application to the FCA or FMC under the ADJR Act, in respect to a decision to which the Act applies, is entitled to request and be provided with a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those finding were based, and giving reasons for the decision. The right is subject to exclusions which reflect the types of concerns referred to above.

Reasons for decisions need not be given under the ADJR Act for the following decisions:- Decisions not covered by the ADJR - section 13(1)- Decisions 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 section 28. - Decisions excluded under regulations (i.e. decisions of Commonwealth Funds

Management Ltd in relation to its commercial activities – section 13 (11)- Decisions excluded under Sch 2 of the ADJR Act (these include certain decisions

relating to the defense force, intelligence operations and aircraft design trade secrets; diplomatic and consular privileges and immunities; monetary and financial matters; public service employment and remuneration.

In addition, the statement of reasons need not include information which related to the personal or business affairs of a person; was supplied in confidence; would reveal a trade secret; or whose divulgence is prohibited by legislation.

Further the statement must not included information if the Attorney-General has certified that the disclosure of the information would be contrary to the public interest because it would prejudice security, defense or international relations of Australia; it would disclose Cabinet deliberations or decisions; or for any other reason which would form the basis of a claim for non-disclosure in judicial proceedings such as Crown Privilege or legal professional privilege.

Section 28 of the AAT Act gives a similar right in relation to decision covered by that Act.

Class 6 – Freedom of InformationReadings: 18.3.1 – 18.3.13 From study guide: Re Kamminga & ANU, Re McKinnon and Department of Treasury

The purpose of Freedom of Information Act 1892 (FoI Act)) was to address a deficiency in the common law, which fails to afford a proper mechanism for insuring open government. The FoI legislation stresses openness, rationality, fairness and participation.

FoI Act seeks to improve community access to government information by implementing a three-part strategy:1. It imposes a duty on government agencies to publish certain relevant information2. It creates a general right of access to agency-held documents3. It gives a person the right to annotate or correct personal records relating to that person

and held by government agencies.

Coverage of the Act The FoI Act imposes duties on “agencies” which are defined broadly to mean a department,

prescribed authority or an eligible case manager under the Employment Services Act 1994. A prescribed authority is defined to mean a body ‘established for a public purpose’ including bodies established by the G-G or is controlled by the Commonwealth. A person may be a prescribed authority.

The FoI legislation does NOT apply to the private sector – Breen v Williams 1996 The privatization of GBE’s has added to the complexity of FoI coverage.

1. A Duty to Publish Under section 8 of the FoI Act, the responsible minister for an agency is required to publish

annually a statement setting out the particulars and functions of the agency; its decision making powers and other powers affecting members of the public. It must disclose information about its dealings, the categories of documents held by the agency and how you can access that information.

Under section 9, the principal officer of an agency is required to make available for inspection and purchase by members of the public any documents that are used by the agency in making decisions or recommendations.

2. Access to documents ‘every person’ has legally enforceable right under s 11 to obtain access to documents of an

agency, and to relevant minister’s documents, as long as those documents are not exempt documents under part 4 of the Act.

There are however several limitations to obtaining access to documents:- the documents must already be existing – the Act doesn’t require agencies to

create information or documents- A person requesting access must provide enough information to identify the

documents (s 15). The officer in charge of the request will have considerable discretion in deciding whether sufficient information to identify the documents.

- Application fees and charges for processing the request can be charged. - The agency must have physical or constructive possession of the documents.

No reason is necessary for requesting the information under section 11(2). The big users of FoI legislation include the media and opposition. However 91% of FoI

requests under the Commonwealth FoI Act were from people seeking access to documents containing ‘personal information’.

Exempt Documents The FoI Act Pt IV exempts certain documents from access. These include:

- Documents affection national security (s 33)- Documents affecting relations between states (s33A)- Cabinet Documents (s34)

- Executive Council documents (s35)- Internal working documents (s36)- Documents affecting personal privacy (s 41)- Legal professional privilege (s 42)…and more…

The problem with exemptions is that they are often too broad. For example there has been much debate over the interpretation of internal working documents.

Other jurisdictions tend to use the FoI legislations more than Australia. This is primarily because we have a greater amount of exemptions that prevent us from obtaining certain types of documents held by government agencies. – S Lamble, ‘Media use of FOI surveyed: New Zealand puts Australia and Canada to Shame”

Re: McKinnon and Secretary, Department of the Treasury [2004] AATA 1364

Facts: McKinnon, the FOI editor of the Australian newspaper. In 2002, he applied for access to documents relating the First Home Owners Scheme and Bracket Creep.

The Department of Treasury rejected the application under sections 36(1), 43(1)(c) and 36(3) of the FOI Act and it issued a public interest certificate – pursuant to section 36(3)

Section 36 – Internal Working documents(1) Subject to this section, a document is an exempt document if it is a document the disclose of

which under this act:(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth and(b) Would be contrary to the public interest

(3) Where a Minister is satisfied, in relation to a document to which paragraph (1)(a) applies, that

the disclosure of the document would be contrary to the public interest, he or she may sign a certificate to that effect (specifying the ground of public interest in relation to which the certificate is given) and, subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the disclosure of that document would be contrary to the public interest.

Section 43 – Documents relating to business affairs etc(1) A document is an exempt document if its disclosure under this Act would disclose:

(c) information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking…

The AAT decided that if section 36(3) doesn’t apply, then the role of the AAT is to conduct Merits review. If section 36(3) DOES apply, the task of the AAT is to decide whether the decision is in the interest of the public (ie conduct judicial review).

The treasuries arguments included: - Disclosure should be withheld so that government officials can communicate freely and candidly. - Risk of disclosure would encourage officials to communicate orally. - Release of documents would be misleading as they are not final documents.

- Some of the documents related to suggested answers to parliamentary questions which are not favorable for disclosure.

- The documents were prepared for expert audience. They did not have all the necessary information and as such disclosure may result in misinterpretations by the public.

Federal Court Held: The AAT held that those arguments were “not irrational” and upheld the treasury’s rejection. It held that even if the treasury was able to correct of explain the documents, it will not adequately protect the public. If the documents were released, there is nothing to stop journalists from portraying them in any manner than they choose.

The case went to the full court of the Federal court where the decision of the AAT was upheld. However, Conty J in his dissent argued that you have to weigh up the arguments of both sides to

decide who has the weightier claim. Thus now you had two possible test – whether the court must decide the case in favor even if

there was just one public interest ground, or whether you must weigh up the significance of both sides to determine the weightier claim.

Appealed to the HCA. In a 3-2 majority, the HCA rejected the appeal, and favored a test that was more akin to the first test.

HCA Held: the role of AAT was only to determine whether there was “reasonable” public interest grounds for the rejection of the application for disclosure.

It held that you ONLY NEED ONE public interest ground in order to reject the claim, even if there are countervailing public interest ground.

Kirby J (Dissent) – the applicant will almost always fail if you follow the test stated by the majority.- looking only at one facet of the public interest is not good for public interest.- preferred a different test: AAT should look at the objective of the claim.- Just because you have one ground for rejection doesn’t mean you can reject the whole application.

3. Amendment and annotation of personal records Section 48 of the FOI Act provides that a person may apply to an agency or minister to

amend or annotate any document constraining personal information about that person if the person believes that it is incomplete, incorrect, out of date or misleading.

The right to seek amendment does NOT include the right to exclude misleading, incorrect, out-of-date or misleading information and s 50 provides that the amendment must not obliterate the text of the record as it existed prior to the amendment.

The amendment and annotations provisions are used surprisingly rarely. In 2003-04 there were only 708 applications under the federal FOI Act to amend personal records.

Re Kamminga and Australian National University (1992) 26 ALD 585Facts: Dr. Kamminga sought access to reports by six referees relating to his unsuccessful applications

in 1984 and 1986 for positions in the Research School of Pacific Studies. The ANU refused access, claiming that the reports were exempt under sections 36 (internal working

documents), 40 (documents whereby disclosure may affect the effective operation of the agency) and 45 (documents obtained in confidence) of the FOI Act. Dr Kamminga sought review.

Held: AAT rejected the ANU’s claims based on sections 36 and 40, but upheld their decision based on section 45 of the Act. - AAT had to be able to show that the disclosure exposed deliberative processes AND it would be against public interest. The disclosure was likely to expose deliberative processes, BUT it was not against public interest.- BUT the ANU was unsuccessful under on the grounds that the disclosure would lead to a breach of confidentiality.

Appeal rejected.

Class 7: Ombudsman Reading: 4.1.1 – 4.3.35E

Introduction

The purpose of the ombudsman is to investigate problems in administrative action. There are two ways an investigation may be launched:

- As a result of a complaint lodged by a member of public- The ombudsman’s own motion – self-initiated inquiries into administrative problems.

History and Trends in the growth of the Ombudsman Originated in Sweden in 1809. 1971 – the first ombudsman’s office in Australia was established in WA 1976 – the first Commonwealth Ombudsman’s Office opened Over the last 30 years the Ombudsman notion has firmly taken root in Australia. One mark of

their stability is that all the offices established in the 1970s still exist in the same form and with the same core function.

The consolidation of the Ombudsman has also been accompanied by some diversification, with a large number of industry ombudsman officers have also been established, such as the Telecommunications Industry Ombudsman (TIC)

Overall, the jurisdiction of the ombudsman has grown.

K del Villar, ‘Who guards the Guardians? Recent developments concerning the jurisdiction and Accountability of the Ombudsman’

Public ombudsmen have over 25 or 30 years of their existence, acquired a prestigious reputation…the institution has grown from obscurity to occupying an essential part in modern society.

The more recent proliferation of ombudsmen in the private sphere is also testimony to the success of public ombudsmen, and to the attractiveness of the ombudsman style of review to both complaints and the organisations under review.

There has been a conferral of additional functions and powers on public ombudsman…recent developments have seen ombudsmen acquiring jurisdiction over matters unrelated to administration, and acquiring jurisdiction over private sector bodies.

The Statutory framework for Ombudsman Offices

Ombudsman’s offices are established individually in each jurisdiction, and the structure and function of the office can therefore vary.

The statutory model for Ombudsman is largely the same in each Australian jurisdiction. The main features of the Commonwealth Ombudsman, pursuant to the Ombudsman Act 1976 include:

Creation: the office is created by Statute Appointment – the ombudsman is appointed by the G-G for a term of up to 7 years. The

removal of the ombudsman can only be made by a resolution of BOTH houses of Parliament. Function : The Ombudsman is to investigate either on receipt of a complaint or on the

Ombudsman’s own motion, “action that relates to a matter of administration” (s 5) Jurisdiction : the jurisdiction of the Ombudsman extends to the departments of the public

service, and to most executive and statutory authorities that have been constituted for a public purpose (s 5).

Jurisdictional limitations : the main limitations are that the Ombudsman cannot investigate action taken by a minister, by a court or tribunal or concerning the employment of a person in the public service.

Discretion not to investigate : the Ombudsman can as a matter of discretion decline to investigate a complaint on a few different grounds:

- If the complainant doesn’t have sufficient interest in the matter,- There is an alternative method for administrative or judicial review of the complaint,

- If the matter is not an administrative matter- If the complaint became aware of the issue over 12months ago- The complaint was not first raised with the agency itself.

Complaints – complaints can be made orally or in writing (s 7) although most state statutes require the complaint to be made in writing.

Powers and Procedure – Ombudsman investigations are usually conducted informally and by way of preliminary inquiries, although the Ombudsman has the same powers as a royal commission to require the attendance and examination of witnesses, to enter premises, etc.

- The Ombudsman does not have determinative powers to alter an administrative decision and can conclude an investigation ONLY by reporting to an agency and recommending that further action of some kind be taken…he may also report to the Prime Minister and the parliament.

- The ombudsman may sue, make recommendations and table documents in Parliament.

Functions of the Ombudsman

Two core functions of the Ombudsman are to investigate complaints from members of the public and to undertake own motion investigations. (section 5 of the Ombudsman Act)

It ombudsman also offers an outsider’s perspective on administrative decision making It provides an independent and autonomous check on government authority. A distinctive feature of most Australian ombudsman offices, that sets them apart from many

foreign counterparts, is that their functions have e expanded over time. Additional function discharged by Australian ombudsman offices include:

- Many ombudsman offices monitor compliance by law enforcement agencies with legislation authorizing telecommunications interception

- Some offices discharge a special role under whistleblower protection legislation- FOI legislation makes special mention of the Ombudsman’s role in investigating

complaints about denial or processing of FOI requests.- Investigate child abuse, review reportable deaths,

Many complaints to the ombudsman are about matters of administrative style and behaviors that would not be directly reviewable by a court or tribunal. Although the ombudsman lacks formal power to make a new decision, its strong powers of persuasion mean that this is often the result.

The ombudsman is required to operate under fundamental principles of: Independence, jurisdictional certainty, accountability, accessibility, impartiality and fairness.

Recommendatory versus determinative powers Public Ombudsman is often regarded as a “toothless tiger” as they do not have determinative

power but rather recommendatory powers. Agencies however do tend to listen to the Ombudsman as it is an authoritative body with a

wealth of experience, it provides useful recommendations ,and it commands a credible degree to respect and moral authority.

Industry Ombudsman schemes generally have determinative powers. M Groves argues we should NOT give determinative powers to the Ombudsman, while C,

Petre argues that we should:

M Groves, “Ombudsmen’s Jurisdiction in Prisons” Granting determinative powers would result in the Ombudsman functioning as a quasi-small

claims tribunal.

The influence of Ombudsmen is derived from their stature, experience and ability to work closely with administrative officials in the review of administrative practices. The grant of determinative powers to Ombudsmen might undermine their ability to influence administrative practices.

The grant of determinative powers might also encourage parties to adopt an adversarial approach. The informal procedures currently used by the Ombudsmen would not sit easily with adversarial decision making.

If ombudsmen were able to review and remake decisions, their status as disinterested observers would be undermined.

Locating the Ombudsman in the framework of government All Australian public sector ombudsman offices are located in an administrative law setting

within the executive branch. They are considered as a part of the administrative law system for controlling government action, especially by pursuing administrative justice for aggrieved individuals.

However they enjoy statutory independence. The greatest disappointment in relation to the work of the Ombudsman in Australia has

been the poor support it has received from members of Parliament. D Pears argues that the Ombudsman should be part of the Parliament:

“as far as the ombudsman is concerned, the performance of his or her function would be enhanced by the association with the parliament…[it has access to] resources and can apply pressure to the executive to give effect to recommendations…the parliament has a higher status in Australia than does the executive. Association of the ombudsman with the parliament will increase the status of the office and the public’s knowledge of it.”

Litigation and the Ombudsman The ombudsman has been involved in litigation is all capacities. There are 3 reasons why the

Ombudsman may go to court:- Under section 11 of the Ombudsman Act, the Ombudsman may seek “advisory

opinion”. This is an opinion by members of a court on a particular question of law that may not be linked to a particular dispute.

- Proceedings can be brought against the Ombudsman as a government agency. - A party can seek to restrain the Ombudsman from proceeding with an investigation –

large number of these cases in the 70s and 80s.

Booth v Dillon (No 2) [1976] VR 434Facts: The Victorian corrective services was being investigated by the ombudsman relating to homosexual assaults in prison. The Prison argued that the Ombudsman had no jurisdiction. The court upheld the submissions of the Prison.

Held: The Ombudsman can only investigate issues relating to administration; a matter of policy is outside the scope of the Ombudsman’s jurisdiction. - agreed that ‘whether the young prisoners should be required to sleep in dormitories or be locked

in individual cells is a matter of policy and not a matter of administration.

The narrow view taken in determining the scope of the Ombudsman’s jurisdiction was not shared in NSW cases, where in Botany Council v The Ombudsman, Kirby P stated:“The powers of the Ombudsman, as the Act reveals are, as they ought to be, extremely wide. They are not powers that this court show read down…they are designed in the public interest for the important object of improving public administration and increasing its accountability…the words of the Act should be given an ample meaning.”

Chairperson, Aboriginal and Torres Strait Islander Commission v Commonwealth OmbudsmanFacts: The Commonwealth Ombudsman conducted an investigation into the complaint that some

officers of the commission had acted improperly in appointing consultants. The Ombudsman found that “some individuals were or may be guilty of criminal or disciplinary action.

- ATSIC claimed that the Ombudsman had no jurisdiction to make a finding – only jurisdiction to investigate and give an opinion

Held: Upheld ATSIC’s claim – the Ombudsman only had an investigative power and no determinative power.

“the intention is that the Ombudsman investigate, report and make suggestions, not make determinations on the issues identified. I believe that the power to make findings in that sense should not be read into this statute…the Ombudsman is empowered to report her opinions, which includes the reasons for the opinions…but given the difficulty of defining the differences between ‘opinions’ and ‘findings’, it seems clear that the legislature intended not to fetter the range of opinions open to the Ombudsman.”

Industry Ombudsman Following deregulation of many industries, such as water & electricity, the market evolved to

contain a small number of large providers. It turned out that these industries needed an “External Dispute Resolution (EDR)” that is cheap and accessible. This led to the establishment of the industry ombudsman.

In most industry ombudsman schemes, you can’t take part in the industry unless you’re part of the industry scheme.

Industry ombudsman HAVE determinative powers.

Citipower Pty Ltd v Electricity Industry Ombudsman [1999] VSC 275Facts: under Industry Ombudsman Scheme, certain categories of complaint were excluded from the EIO’s jurisdiction. These included complaints about electricity prices, government policy and ‘events beyond the reasonable control of a participating company and their consequences’. - the EIO made a determination against Citipower awarding compensation to 3 customers, in respect to damage suffered to equipment following an interruption to the power supply for 20mins.- Citipower argued that this was beyond the power of the EIO.Held: The two parties were contractually bound to comply with their agreement under the scheme. One such agreement is that Citipower abide by the Ombudsman’s decision…the courts should not review decisions made by private sector ombudsman unless the decision was so aberrant as to be irrational.

Class 8: Merits Review 1Readings: 4.5.8 – 4.5.16

3.1.1 – 3.2.153.2.183.2.27 – 3.2.353.3.1 – 3.3.14

Internal Review

Internal review is 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 of internal review include:- Relatively quick, inexpensive, informal and less threatening

Disadvantages of internal review include:- Lack of perceived impartiality, costs may also be charged for an internal review.

Features of Internal Review The person conducting the internal review must at least have the same power as the initial

decision maker & he must act in accordance with the same power used by the first decision maker.

An internal reviewer takes account of new evidence which has arisen since the primary decision was made. New evident is the most frequent reason for a decision to be varied on internal review.

Internal review is most commonly triggered on request, but some agencies such as the Department of Veterans’ Affairs may also be instituted by the agency of its own motions.

Where a statutory provision mandates a particular review process, the agency can’t rely on another process to conduct the review.

External Merits Review (De Novo Review)Introduction

External merits review takes place when an external body (tribunal) looks at a matter afresh based on the facts and circumstances as they exist on the date of the review and makes a decision as if they were in the shoes of the initial decision maker.

Purpose of De Novo Review is to review decisions made by an administrative body by an independent, impartial external body.

Australia has one of the most developed systems of administrative tribunals in the common law world. Australia has experiments with a diverse range of specialist tribunals, different models for tribunal adjudication and it has extended some tribunals to the private sector.

Examples: Administrative Appeals Tribunal (AAT), Administrative Decisions Tribunal (ADT), Migration Review Tribunal (MRT), Refugee Review Tribunal (RRT) etc.

Tribunals operate within the same framework of administrative law as other executive decision-makers, and both apply and are subject to the rule of public law.

Tribunal are part of the executive, but the look and function like a court. A tribunal is a body exercising judicial or quasi-judicial power. Features of tribunals include:

- Are an external forum to be heard- They can’t make definitive interpretation of the law, as they are not courts- Transparency- Independence and impartiality - The must provide reasons for decisions

In many tribunals, the Constituent Act sets out provisions to make decisions that are fair, just, economical and quick –in this way courts can look at convenience as well as fairness.

Categorising administrative tribunals1. Single Tier specialist Tribunals – its jurisdiction is limited to one area of administrative

decisions and there are no appeals available. You can appeal to a court, but only on a matter of law, and not on the basis of merits. Eg RRT

2. Single Tier generalist Tribunals – its jurisdiction is more general than the specialist tribunals, however there are still no appeals available. Eg. AAT

3. Two tier tribunals – the tribunal includes an Appeal Panels, which can hear an appeal from the first tier of the tribunal on a question of law and the leave of the panel, the appeal can extend to a review of the merits of the decision. Eg ADT

Tribunals in the System of Government From the constitutional perspective, tribunals are located in the executive arm of

government. But tribunals occupy a role in both the system of justice and the system of administration.

i.e. they are both administrative bodies, as well as quasi-judicial bodies. Important limitation of tribunals (both generalist and specialist) is that they can review only

those decisions specifically identified in the legislation.

Commonwealth At the Commonwealth level, the AAT is the main generalist tribunal, with several specialist

tribunals including the MRT, RRT, Veterans Review Board etc. The jurisdiction of the AAT has grown steadily, and now extends to the review of

administrative decisions under approximately 400 difference Commonwealth enactments. The decision in the AAT has been highly influential in other tribunals.

New South Wales In NSW, the ADT was established in 1997. In some areas (such as anti-discrimination and disciplinary matters) the ADT exercises

original jurisdiction. The ADT includes an Appeals Panel, which can hear appeals from a division on a question of

law and with leave of the panel, the appeal can extend to a review of the merits of the decision.

The difference between the AAT and ADT, is that the ADT is not subject to the same constitutional constraints of the AAT. This is because the States are not bound by the doctrine of the Separation of Powers. The NSW Constitution doesn’t seek to apply a separation of power and thus the NSW can invest a greater judicial power in the ADT.

Tribunal Independence The best way to measure the independence of the tribunal is to determine, to what extent,

the statute limits the operation of the tribunal. i.e. to what extent the tribunal can manage its own affairs.

There is no constitutional principle of separation of powers that applies to administrative tribunals. They are, and need to see themselves as, part of the executive arm.

However, in order for tribunals to operate efficiently, they must act as an independent body, separate from the executive.

The main way independence is achieved in tribunals is through tenure – the more secure a tribunal member’s tenure, the more independent you will be. Thus by offering long tenants to tribunal members, independence of decisions is increased.

The role of government policies – the general rule is that tribunals should follow government policy, however they are not bound by them. If it is convinced that the government policy is unreasonable/unfair etc, tribunals can make decisions contrary to the government policy.

The Scope of Tribunals The AAT has a general jurisdiction to review a diversity of administrative decisions. Section 43 of the administrative Appeals Tribunal Act (1975) state that the tribunal can either:

Affirm the original decision Vary the original decision – decide the same result, but with some changes

Set Aside the decision- over-turn original decision and make its own decision or remit the case (send it back to the original decision maker to make a new decision)

There are several implications of section 43. Chief among these are:- A tribunal is reviewing a decision, and not the reason given for that decision. - The tribunal is not restricted either to the case stated by the parties, or to the material

before the primary decision maker. - The tribunal is bound to apply the law, but is not require to decide consistently with

executive policy- Neither party bears the onus of proving that the decision under review was prima facie

right or wring- The rules of evidence and of judicial proceedings don’t apply to tribunals. - What the AAT has to ask itself is “What is the correct and preferable decision based on

the information and evidence before the tribunal?” : Joe

Re: Greenham v Minister for Capital Territory Facts: Dr. Greenham sought review by the tribunal of the high valuations of his Canberra property. Held: Agreed the valuation was too high, but not on the reasons forwarded by the application, but for other reasons available to the tribunal.- The tribunal is not restricted to the material that was before the decision-maker any more than the decision-maker himself is so restricted. - The AAT should not be limited to the reasons given by the applicantIt should take into account the applicants points, BUT also ALL other necessary facts and circumstances. - In contrast with judicial proceedings and the rules of evidence form no part of the procedures of the Tribunal.

Drake v Minister of Immigration and Ethnic AffairsFacts: Drake, a US citizen, was convicted and sentenced to one year imprisonment for cultivation of cannibus. He was under a deportation order appealed to the AAT rejected appealed to the Federal CourtArgument: the AAT relied too much on the minister’s executive policy on immigration and thus the AAT failed to make an independent judgment. Federal Court held: The AAT is obliged to act judicially, that is to say, with judicial fairness and detachment. It must make a decision based on the evidence before it. - The tribunal is allowed to take into account executive policy in decision making. However, the tribunal must not give up its independence in favor of following the government policy.

Collector of Customs (NSW) v Brian Lawlor Automotive Pty LtdFacts: The collector of customs made a decision to revoke a warehouse license under the Customs Act. Lawlor contended that the Act did not expressly or impliedly confer power upon the Collector to revoke the warehouse license. Held: A common statutory supplements to enjoin a tribunal to ‘provide a mechanism of reviw that is fair, just, economical, informal and quick’ and to ‘act according to substantial justice and the merits of the case’. - tribunals are empowered to give comprehensive relief and give administrative review... even if it is decides the government body’s decision was wrong, it may fund other reasons to allow the appeal.

Class 9 – Merits Review (2)Readings: 3.3.15-3.3.22

3.4.1 – 3.4.32

Contemporaneous Review A key aspect of the concept of merit review, as defined in Greenhan v Drake, is that the

tribunal looks at the matter anew, according to the facts and circumstances as they exist at the date of review – sometimes called contemporaneous review (as opposed to historical review).

This aspect of merit re view has given rise to subsidiary issues and legal problems. Between the date of the decision to be reviewed and the tribunal proceedings, intervening changes may have occurred in the law, the facts or the viewpoint or outlook of the administration. How do those changes impinge on the tribunal’s functions?1. Where there has been a change in policy outlook – after a tribunal has become seized of

a matter (when the tribunal gets jurisdiction over the matter, if the government agency takes on a different policy relating to the issue at hand, then, if:

- Agency’s new policy favors the party, then the tribunal can relinquish the matter back to the agency

- If the new policy is unfavorable to the party, then generally the government agency loses jurisdiction over the matter and the tribunal does not have to have regard to the new policy. However, the guiding Act can over-ride this general rule, if it is expressly stated in the Act and both parties consent.

2. Where there has been a change in the facts – it is crucial to scrutinize the Act to determine when the factual matrix of the case look place. Generally, an applicant for review has the right to present to the tribunal fresh evidence and submissions that were not presented to the initial decision-maker. However, this can be over-ruled if the principle Act states otherwise.

3. Where there is a change in the law after the decision has been made, then :i. The amending Act may provide a transitional provisions to cover the issue –which

may either require the tribunal to apply the new law or the old.ii. In the event that no transitional provision is provided to cover the issue, then the

“tribunal is to make a decision based on the law at the time of the tribunal decision” – i.e. the new law. However, the general exception is that “there is a presumption that accrued rights are not diminished as a result of the change in the law” – unless the amending Act explicitly extinguishes those rights.

Esber v Commonwealth Facts: Mr. Esber received weekly compensation payments under the compensation Act. S 49 of the Act provided that the commissioner for Employee’s compensation, upon application by the recipient, could pay a lump sum to the recipient to redeem weekly payments. The Act was later repealed and the new Act that covered compensation payments did not contain a redemption procedure similar to the previous Act. HCA Held: Under the Act Interpretation Act, unless otherwise expressly stated in the new legislation, then the rights of individuals will be present even with the new legislation. - Thus Esber had a right to have his case reconsidered by the tribunal. Brennan J (Dissenting) – Esber didn’t have a substantive right – he had a hope/expectation that he could persuade the tribunal to make a decision to this advantage.

Procedure and evidence – their role in merit review by administrative tribunals The legal rules about procedure and evidence that apply to tribunals are often no different

to those applying to other decision-makers in the executive branch of government. There are several different modes of procedure available to tribunals. The constituent Act of the tribunal will provide the mode of review and it will set out much

of the procedure through which the proceedings are conducted. The modes outlined below are not mutually exclusive: a tribunal may resolve one type of

dispute in an adversarial manner, and another in an inquisitorial manner

Modes of Review1. Adversarial – opposing sides make oral representations in front of a neutral third party.

There are however two main differences between the adversial process in tribunals and courts:(i) The tribunal is not bound by the rules of evidence – i.e. procedures established in

the Evidence Act, in common law and in the Court Rules(ii) In tribunals, there is no set burden of proof

2. Non-adversarial/inquisitorial – the respondent is often not even present at the tribunal. A file is given to the judge and is discussed. - If is often informal and held primarily to allow the applicant an opportunity to discuss

the case with the tribunal and to clarify the issue to be resolved. - The tribunal plays a much more active role in the gathering and finding evidence for the

particular case. This is not always a good thing – the tribunal often does not enough expertise to gather effective evidence.

3. Decision made on the papers – there is no oral hearing. The respondent agency is required once proceedings have been commenced to provide all relevant documents to the tribunal. The initial task of the tribunal is to examine the file to gauge whether ‘on the papers’ the tribunal is disposed to make a decision that is most favorable to the applicant for review. Only a small minority of decisions are resolved on the papers. The advantage of this mode of review is that it is often much quicker, however the disadvantage is that the applicant has no chance to be heard, and if you have more legal background, you will have an advantage as you will be able to write a more convincing submission etc.

4. Meditation – the tribunal tried to reach compromise before the hearing.

Statutory guidance The expectation that tribunals should not be confined by the rules of procedure and

evidence observed by courts is usually spelt out explicitly in the legislation. Eg. S 33 of the AAT Act states the proceedings shall be conducted with as little formality and

technicality and with as much expedition, and the tribunal is not bound by the rules of evidence.

Minister for Immigration and Multicultural Affairs v Eshetu Facts: Application for refugee refused by minister and the RRT overturned by the FCA appealed to HCA.- It was argued that the case was made giving undue weight to irrelevant issues and too little weight given to relevant issues the case turned on two sections of the Migration Act – s476(1)(a) & s420.Issue: Did sections 476 and 420 combine to specify a procedure that the RRT was required to follow, if so; did a failure to do so make the decision invalid?Held: section 420 intends to be facilitative and not restrictive – it is meant to liberate tribunals from legal procedure…it requires the RRT to operate with flexible procedures rather than housing more rigid rules of evidence- The section gives the RRT more discretion as to how it is to conduct its procedures.

Qantas Airways Ltd v Gubbins- A tribunal is not absolved from its obligation to act lawfully by a guideline provision. - Limitations on procedures may be interpreted in different ways depending on the context of the case – it depends on the character of the decisions.

The conduct of proceedings and the role of the parties Issues dealings with tribunal conduct and procedure are dealt with in the legislation

establishing a tribunal, in rules made by the tribunal, or in practice directions. The rules vary

from one tribunal to another, but cover such matters as exchange of documents, summoning of witnesses, expert evidence etc.

However, in the event that one party is not represented, the question arises as to what level of assistance the tribunal should provide, and should the tribunal itself be inquiring into matters not raised by the parties?

Sullivan v Department of TransportFacts: Major Sullivan was diagnosed with a mental illness when he applied to renew his commercial pilot’s license I was rejected on medical grounds appealed to the AAT represented himselfwanted to use a medical expert witness he wasn’t summoned AAT didn’t give an opportunity to adjourn the caseIssue: Did the failure to offer an adjournment by the AAT to Sullivan mean that the AAT had errored in law?Held: The tribunal is plainly under a duty to act judicially, that is to say, with judicial fairness and detachment. - Where a person is representing himself, no matter how good the intentions are, it can actually harm the applicant’s case if the AAT interjects all the time.- It is not an error in law to not offer an adjournment.- If Sullivan had requested an adjournment, and the AAT rejected that request, then the AAT may have errored in law.

The Court in Sullivan was of the view that the AAT must strike a balance between affording procedural protection to a party and allowing each party an unhindered opportunity to present its own case.

Australian Postal Commission v Hayes Facts: The AAT was hearing an application for review of a decision to terminate payment of workers compensation. - The Postal Commission had an evidential video, which they wanted to withhold until cross-examination. Held: FCA held that the APC should be allowed to delay evidence until after cross-examination. - it is important to avoid any witness from being able to adduce false evidence – if the evidence was available to the applicant before proceedings, they could tailor their evidence to justify the allegations. - testing of opposing relevant material by cross-examination is an essential feature of the opportunity to correct or contradict that material…one way testing the credit of such a claimant is to ask questions which require the claimant to commit themselves in relation to the extent of the disability.- if non-disclosure of evidence can lead to a denial of procedural fairness, then disclosure would be required. But if disclosure of evidence itself may lead to a denial of justice, then you can non-disclose evidence.

Re Taxation Appeals NT94/281 – NT94/291Facts: The respondent wanted to withhold a piece of evidence until cross-examinationMathews J: The decision in Hayes did not allow evidence that would otherwise require disclosure to be routinely withheld from the other side.- the overriding consideration is one of procedural fairness – non-disclosure would be necessary to ensure a fair hearing to justify withholding evidence.- The tribunal must distinguish from safeguards that allow for procedural fairness and tactics designed to trap and expose the other side.- the general proposition is that openness is required in the provision of evidence.

In subsequent cases, the AAT more often than not inclined to the view expressed in Re: Taxation Appeals.

Hayes is usually distinguished on the basis that is dealt with an “exceptional circumstance”.

Evidence, Fact finding and Onus of Proof The fact finding role of courts is guided in two ways: by rules of evidence that control the

information and documents that can be submitted to and considered by a court; and in keeping with the adversarial nature of court proceedings, by a burden of proof placed upon each party. In executive decision-making, by contrast, there are no rules of evidence or burden of proof to be followed.

Re: Pochi and Minister for Immigration and Ethnic Affairs (1979) – AAT

Facts: Pochi was had a PR and he applied for a citizenship. It was approved, but he had not been given his citizenship yet he was then convicted of supplying drugs the minister sought to establish that Mr. Pochi had played an entrepreneurial role in marijuana cultivation that went beyond the facts of his conviction Pochi appealed to the AAT- The Immigration minister relied on some evidence including Pochi’s sudden rise in wealth, his association with drug traffickers and some evidence make on camera.

Held: The tribunal must determine the facts upon the material before it, not upon the material before the minister. - Because the minister made accusations about Pochi above those determined by the court, the onus of proof rested on the minister. - Where the decision is weighty, then it is important for the government to provide stronger evidence – Briginshaw Rule- While it is permissible to disregard rules of evidence, it does not mean that you can do what you want – you must take every effort to administer ‘substantial justice’. - The evidence raised was only a suspicion and not a positive finding. For that reason, together with Mr. Pochi’s 20 year residence in Australia, the grave damage that deportation would cause to his wife and children meant that it was not in the best interests of Australia that Mr. Pochi be deported.

Minister for Immigration and Ethnic Affairs v Pochi (1980) – FCAHeld: sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation or probative evidence and not merely raised before it as a matter of suspicion or speculation. - No side bears the onus of proof in tribunals…but the tribunal has to base the case on the facts and evidence presented, so it is advantageous

The Pochi case sparked a debate on two fronts, inside and outside the tribunal. Inside the courtroom, an unresolved debate arose as to the proper characterization of the probative evidence rule - is it a ground of review generally in administrative law (broad view), is it a legal obligation applying only to administrative tribunals in a situation akin to that in Pochi (middle view), or is it not a principle of administrative law at all (narrowest view).

The debate outside the courtroom has been a debate about legal method v executive method, and formality v informality.

The cases showed that a statutory tribunal, obliged to observe natural justice, should adopt a rigorous approach to fact-finding.

While no rules of evidence strictly apply in tribunals, evidentiary principles have had an influence of administrative review. Eg. Evidence that has been given under oath and has been subject to cross-examination is likely to be given more weight than a written statement.

Similarly, 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.

The civil standard – the balance of probability is ordinarily the appropriate standard to be applied by an administrative tribunal.

McDonald v Director-General of Social SecurityFacts: the D-G cancelled McDonald’s invalid pension on the basis that she was not permanently incapacitated for work tribunal upheld the decision appealed to the FCAIssue: Did the AAT wrongfully impart an onus of proof on McDonald?

Held: There is no onus of proof in proceedings before the AAT unless the relevant legislation provides for it.- However failure by a party to produce evidence as to those facts may lead to an unfavourable inference being drawn. - Thus in a practical sense, it may be advantageous for the party to produce certain evidence because it is vital for that party’s case. - Where only one party would know a particular fact, and this fact is crucial, but the party concerned decides not to provide evidence about that fact, the court can infer that the fact was not useful to the court.

Epeabaka v Minister of Immigration of Multicultural AffairsFacts: Claimed refugee status rejected appealed to RRT rejected on the grounds of credibility appealed to FCA

Held: 1. The RRT is essentially an inquisitorial tribunal – no party bears the onus of proof 2. The duty of the member is to listen to the evidence, and decide based on the evidence 3. The standard of persuasion should be the civil standard – balance of probabilities

4. The Briginshaw principle applies – if an allegation is serious, or if the consequences of the allegation are serious, the tribunal would need stronger evidence to decide against the applicant.

The court in McDonald makes the point that a statute may declare that one or other party bears an onus of proof.

Class 10: Merits Review (3)Readings: 11.5.1 – 11.5.11

Administrative tribunals and Government Policy

A major question arose in the 1970s, which was “if a tribunal is constitutionally part of the executive arm of government, and ‘stands in the shoes of the decision maker’, should it wear those shoes faithfully and deal with administrative policy with the same attitude as the decision-maker?”

The Kerr Committee concluded in 1971, that a tribunal should not substitute a new decision ‘when it is shown that the administrative decision is properly based on government policy’,

and should go no further than to inform the minister that ‘government policy as applied in the particular case is operating in an oppressive, discriminatory or otherwise unjust manner’.

IN Drake v Minister for Immigration, the Federal court held that an unreflective application of executive policy by the tribunal would be an abdication of its function to reach a ‘correct or preferable decision’ on the merits of the case under review

Whether or not government policy should be applied, will be the result of an independent assessment of its propriety and an independent determination that the circumstances of the case were such that the correct decision was that resulting from the application of that policy to the relevant facts.

The whole rationale behind the application of government policy is to ensure consistency and reduce arbitrariness of government decisions.

Bowen CJ – we must weigh on up on hand the desirability of consistency in the treatment of citizens under the law and on the other hand the ideal of justice in the individual case.

Dean J – consistency is important, but it’s not the hallmark of justice…often you have to depart from consistency to ensure justice.

Brennan J, in Drake (No 2) gave a different emphasis to issues than the Federal Court, laying stress on the responsibility of the tribunal ordinarily to apply a general policy that was lawfully adopted by the minister, and to depart from the policy only cautiously and sparingly where there is a cogent reason for so doing.

Recently, there has been a trend in enactment of provisions that give statutory backing to administrative policies, provided the policy is valid and legal

Re: Drake and Minister for Immigration and Ethic Affairs (No 2)Facts: Mr. Drake who is a US citizen had been convicted and sentenced to one year’s imprisonment for the cultivation of cannabis deportation order under s 12 of the Migration Act decision based on policyGovernment Policy: decision should be based on its own merits and on the best interests of Australia. The department will take into account the nature of the offence, and chance of recidivism. It will more likely to deport if the crime is sexual assault or drug trade.

Brennan J: The tribunal enjoys ‘procedural advantages in the production of evidence’ to the minister. i.e. the tribunal will have time to pour over evidence and test the applicant’s claims. - This often leads to different conclusions to the minister’s decision however this is not always a bad thing- Policy has an important role in tribunals. It provides guidance, add to the integrity of the decision, diminishes the inconsistencies that may otherwise appear in a series of decisions, and it will enhance the sense of satisfaction with the fairness and continuity of the administrative process.- However, this must be weighed up against other factors. Other facts include:

1. The policy must be consistent with the constituent Act. 2. The policy must not cause the decision maker act in a ‘Wednesbury unreasonable’ manner

3. The policy must not limit the decision maker’s discretion from considering the merits of the case.

- the 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, in fulfilling its statutory function.

- The tribunal is no doubt able to refine a broad policy, but the laying down of a broad policy on deportation is essentially a political function, to be performed by the Minister.

- Thus the Tribunal should adopt a practice of applying lawful Ministerial policy, unless there are cogent reasons to the contrary…e.g. if consistency is not preferable to justice

- Thus the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.

Re Goodson and Secretary, Department of Employment, Education, Training & Youth ServicesFacts: Goodson was eligible for a certain payment contingent upon the fulfillment of a certain condition that he attends a particular meeting the department had a general policy where failure to attend even ONE meeting would result in a cancellation of payment Goodman (with reason) failed to attend one meeting payment cancelled appealed to the AAT.

Held: the decision maker is under a duty to genuinely consider the circumstances of the case, including the applicant’s explanation and to exercise discretion. - The department, although had the applicant’s record before him, which he now admits is a good record, did not take the trouble to check it…the discretion was not exercised in a genuine manner in this case and that what occurred was a blind following of arbitrary departmental instructions - No importance was given to the purpose of the Act nor the circumstances of the case.

These two cases, along with Re: Jetopay v Australian Fisheries Management Authority adverted to the status of a particular policy as a factor of some importance to be considered by the tribunal.

Class 11 – Standing Readings – 17.1.1 – 17.4.11

17.4.14 – 17.4.21

Introduction The doctrine of standing, or locus standi, means the rights to commence a legal proceeding

in a court or tribunal. In the vast majority of cases, standing is non-controversial; however, it is a critical legal

requirement.

Controversy usually arises in some cases where there is not direct link between the case and the party. Often the party has no pecuniary (financial) interest in the matter.

Cases in which standing is a disputed issue tend to fall into one of a few standard categories:- Public interest group or community organisation (ACF v Commonwealth)- A trade union or trade association (Shop Employees; Marine Engineers)- A commercial entity, seeking to challenge a government decision that is favorable to a

commercial rival.- A “concerned citizen” – a member of the public, who is seeking to challenge a

government decision that does not affect the person’s private rights but is otherwise of concern to them.

Amicus curia is where parties don’t actually take on a case, but they make submissions to the court because they have expertise in the matter. People submitting an amicus does not need standing because they’re not actually initiating proceedings…they are simply “assisting” the court.

The role of standing in public law litigation In Australia, in adversarial proceedings, individuals must have a material interest in the

subject matter of the case for them to be able to launch legal proceedings. They must indicate that they have a direct private right.

Traditionally, an individual would have standing to initiate proceedings in respect of an infringement of their private rights, but now in respect of an infringement of public rights unless a private right was also infringed or special damage was suffered.

In recent Australian cases the emphasis has switched to requiring that to have standing a litigant must have a “special interest” in the subject matter of the litigation.

Yet another contemporary test of standing enshrined in the ADJR Act ss 3,5 is that a person must be aggrieved to the extent that their interests are adversely affected by the decision or conduct being challenged.

To work out whether an individual has standing in a particular court or tribunal, the first place to look is the constituent act – AAT Act, ADJR Act

The common law test for standing is identical to the test set out in the ADJR Act. The test in AAT Act allows for some extra categories of people that would have standing in a

particular case. Australia has adopted a relatively more restrictive approach to standing as compared to

other jurisdictions around the world.

Reasons for restricting standards:- The role of courts in an adversarial system is to adjudicate disputes between parties as

to their respective legal rights or duties. Only the Attorney-General has right to oversee the enforcement of public rights.

- The floodgates argument – a non-restricting doctrine of standing may result in people making frivolous and vexatious claims and flood the court system. It can also be used to cause financial damage to parties if legal proceedings are constantly launched against them.

- It will allow “busybodies” to meddle with other people’s businesses.- There is also a constitutional reason for adopting a restrictive standing approach. Under

the constitution, a court exercising federal jurisdiction can deal only with a “matter” or justiciable controversy. i.e. the claim can’t be simply academic – it must bring a change to the interests of the parties.

- Any radical change in the law should be made by the legislature. It is not up to the courts to make rules about standing, and if courts do start makings rules, then it will be judicial activism.

Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Held: 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…a private individual is unable to challenge public law decisions, unless their private rights will be affected by the decision.- The enforcement of the public law of a community is part of the political process; it is one of the chief responsibilities of the executive government.

The case against restricting standing in public law litigation Proposals for a less restrictive doctrine of standing are along three lines:

1. The doctrine of open standing to apply in all public law proceedings2. Modified doctrine of open standing to apply in public law proceedings3. The existing test for standing should be applied less restrictively by courts.

The arguments against restricting standing are:- The law of standing should not inhibit the ability of courts to restrain unlawful

government action and to safeguard the rule of law.- The law of standing hampers the valuable role that public interest litigation can play in

enforcing legal compliance and government accountability. - 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.- From a practical perspective, the law of standing does not accomplish the objectives it

is supposed to achieve. Inappropriate litigation can be better controlled through the powers available to a court to manage the litigation process.

Standing – Some Foundation Cases

Australian Conservation Foundation v Commonwealth (1980)Facts: There was a proposal to establish a tourist resort near an environmentally sensitive area ACF sought a declaration and an injunction to stop the development.Issue: Did the ACF have standing to obtain an injunction to stop the development.

Held: - you can’t bring an action to correct a public right, but only to assert a private right.- an ordinary member of the public, who has no interest other than that 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…this is the responsibility of the Attorney-General. - the person seeking standing must have “ a special interest ” in the subject of the decision...this does not mean a mere intellectual or emotional concern.- A person is not interested unless he is likely to gain some advantage other than the satisfaction of righting a wrong, upholding a principle or winning a contest… a person does not acquire standing simply by reason of the fact that he holds certain beliefs…a corporation does not acquire standing because some its members possess it…Murphy J (Dissent) – even if you have to show the person has to have a special interest…this is satisfied by the fact that the party put in a submission to commence proceedings.

Onus v Alcoa of Australia Ltd (1981)Facts: The Relics Act made is an offence to damage or endanger an Aboriginal relic the plaintiffs who were traditional custodians of the area claimed that the Aboriginal relics would be destroyed by the construction by Alcoa of an aluminum smelter ISSUE – did the applicant have standing?

Held: - used the same reason as the “ACF” case – it required the litigant to have ‘a special interest in the subject matter of the action’.

- the requirement for special interest is a flexible one as the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation. - A plaintiff must show that he has been specially affected, that is, in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner. - the appellant DID have a special interest in the claim since he had a cultural and spiritual interest. - Possessing an intellectual/emotional interest is not a disqualification for standing. It’s just not sufficient. But an intellectual/emotional interest coupled with something else (like a spiritual/cultural) interest may suffice standing.

The significance of Onus is that the HCA, just a year after the restrictive approach it took in ACF adopted a much more liberal test to standing.

The combination of ACF and Onus set out the fundamental common law took for standing. Shop Distributing and Allies employees Association v Minister for Industrial Affairs

Facts: Appellant union sought injunction to invalidate a Sunday retail trading scheme in the central shopping district (CSD) ISSUE – did the union have standing? HCA held it did.

Held: The union DID have standing in the matter - The union represented not all, but a large number of the employees. - The employees were intimately affected by a change in the trading scheme. - A change in trading hours affects the terms and conditions of employment the union is responsible for representing its members who are in dispute as such had standing to commence proceedings.- McHugh stated ‘a special interest’ of the plaintiffs was the ‘he allegedly unlawful activities…affected them financially and to an extent that exceeded the injury to other individual.

Australian Institute of Marine and Power engineers v Secretary, Department of TransportFact: Respondent issued a “Manning Notice” set out the number of crew members required to operate the ship in a safe and efficient manner marine institute argued the number was too low. Held: - A COMBINATION of factors gave the union standing in this matter. These factors included:- The union has, among its interest or objects the obtaining and maintenance of reasonable

conditions of employment of its members- The union was invited to participate in the Manning Committee, which suggests it had a sufficient

interest in the subject matter – it was dealt into the decision making process. - The union’s concerns were not frivolous or vexatious - As a matter of practicality, the union is set up to advocate for its members. The decision will have

an impact on is workers…as such there was sufficient nexus between the case and applicantNorth Coast Environment Council v Minister for resources

Facts: The minister gave a license to a company to export woodchips Environment Council sought injunction ISSUE – did the council have standing to commence proceedings for the injunction

Held: North Coast’s concerns are far more than mere “intellectual or emotion”…it is not a mere busybody, and is well-placed to put forward a conservation viewpoint as a counter to the economic activities proposed. There are several factors that contribute to this finding:

- Firstly North coast is a peak environmental organisation recognized by the Commonwealth.- The council plays a significant role in advocating environmental values- It has conducted projects and conferences on matters of environmental concern and made sub

missions on forestry management issues – thus is have a “special interest”.

Right to life Association v Secretary, Department of Human Services and health

Facts: The respondent was given statutory power to trial several drugs including an abortion drug the right to life association sought an injunction on the basis that it was an aggrieved party.

Held: The applicant must show that he will gain a benefit or advantage greater than the benefit or advantage thereby conferred upon ordinary members of the public; or that success in the proceedings 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.

- The grievance of the appellant does not travel beyond that which any person has an ordinary member of the public. Here there is only an intellectual, philosophical and emotional concern. There is no advantage likely to be gained by the appellant if successful in the proceeding nor disadvantage likely to be suffered if it fails.

It is possible that a person can have standing even though their interest is similar to that of a large segment of the population. An example is Dyson in which the court accepted that Dyson, along with 8 million other taxpayers, would seek a declaration that a government agency was acting unlawfully.

Another delicate issue is whether a person will have standing by reason only that a decision adversely affects their commercial or economic interests. “if an administrative decision is made which may improve the competitive position of a business enterprise, then competing enterprises or employees do not necessarily have an interest to attack the decision…a mere desire for protection against potential competition is not sufficient to give rise to a “special interest”.

Specific remedies and the principles of standingNon-statutory remedies

1. Declaration of injunction – the standing requirement for declaration and injunction is that the applicant must have a special interest in the subject matter of the proceedings.

2. Mandamus – a writ of mandamus commands the performance of a duty of a public nature that remains unperformed. In order to demand a mandamus, the applicant must demonstrate a special interest of a specific legal right in enforcing a public duty that is owed to them.

3. Habeas Corpus – the dominant purpose of habeas corpus is to seek the release from detention or imprisonment of a person who is being unlawfully detained. Habeas enjoys open standing – “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.

4. Certiorari and prohibition – certiorari quashes a decision and prohibition prohibits a judgment from being made. Proceedings for this can be initiated by a ‘stranger’ – a person with no private legal right or interest to protect…although a court may be less inclined to exercise its discretion in favor of a stranger as opposed to a person aggrieved.

Re McBain; Ex Parte Australian Catholic Bishops Conference Facts: The bishops sought the writ of certiorari to quash a decision of the Federal Court that permitted IVF treatment for single women…ISSUE – did the bishops have standing?

Held: - permitting strangers to apply for certiorari helps to ensure that ‘the prescribed order of the administration of justice’ is not disobeyed. - Although a stranger to the proceedings may apply for a certiorari or prohibition to issue, a stranger’s lack of standing will frequently result in the court refusing to issue a writ on discretionary grounds.

- In the case the Bishops Conference is not a ‘person aggrieved’ - the order does not affect the legal rights, duties or interests of the Conference members. Not does the order pose any risk to their economic interests or cause any injury or detriment to them…thus they have no standing. - Their interests were based on the fact that it was ‘contrary to their beliefs’ – not sufficient. - They have the right to submit amicus curiae, but they have no standing to initiate proceedings.

Administrative Decision (Judicial Review) Act (ADJR Act) The test for standing under this Act is used for the FCA, FMA (Federal Magistrates Court) and

the HCA. The ADJR Act provides that proceedings can be instituted by ‘a person who is aggrieved’ by a

reviewable decision or conduct – ss 5,6. The term ‘person aggrieved’ is defined in s3(4) as including a reference to a person ‘whose

interests are adversely affect’ by the decision or conduct. The ADJR Act test for standing is heavily influenced by (often to the point of being

indistinguishable from) the test of “special interest” developed at common law for declaration and injunction.

Administrative Appeals Tribunal Act (AAT Act) This statute defines who is entitled to lodge an application for review with the AAT. Section 27(1) – an application may be made to the tribunal for a review of a decision…by or on

behalf of any person or persons whose interests are affected by the decision. Section 30 (A) – provides that the Commonwealth Attorney-General may intervene in any

proceeding before the tribunal Section 30 provides that the tribunal has a discretion to allow ‘any other person whose interests

are affected’ by a decision to be made a party to the proceedings. Section 27(2) – provides that standing can also be obtained by an organization or association if

the subject matter of the dispute relates to the object or purpose of the organisation or association.

The unique provision in section 27(2) paves the way for public interest groups to launch proceedings, but only in the AAT (since this provision is not evident in the ADJR Act).

McHattan and Collector of Customs (NSW)Facts: Customs agent advised company about how much duty for a particular shipment collector of customs imposed a higher duty McHattan sought review of the decision on his own right claiming that his professional standing was adversely affected.

Held: the reputation of a customs agent for giving good advise was not affected merely by the fact that the collector charged a higher fee than the advise given. Mr. McHattan’s interests were not affected by the Collector’s demand and he is therefore unable to commence proceedings. In Re Control investments and Australian Broadcasting Tribunal, the court held “the test for

standing must concern a ‘matter or purpose of the association…there must be a close nexus between the decision in question and the object of the association or organisation”

Class 12: Introduction to Judicial Review: 1Readings: 2.1.1 – 2.2.36; 2.2.44-2.2.46; 2.4.43 – 2.4.45 (Court’s power to engage in Judicial Review)

2.3.1 – 2.3.15 (Non-Justiciability)

Introduction

Judicial review is considerably narrower than merits review. Judicial review looks at errors in law as opposed to looking at facts of the case.

Judicial review is a ‘fetter’ on the executive and it increases inefficiency but we want to anyway to ensure that government authorities don’t act unlawfully. Thus while judicial review increased accountability, it increases inefficiency at the same time.

“to exempt public authorities from the authority of the court is to grant dictatorial power” Section 75 of the Constitution allows the actions of a government officer to be challenged in a

court of law. In dealing with judicial review, you must first elect whether you are seeking judicial review

under common law OR under ADJR Act

Judicial Review at Common Law

Historically, courts issued prerogative writs, whose purpose was to enable a court to examine whether a public sector body was complying with the limits imposed by the law. Each writ could control unlawful action in a different way. The writs included:

- Certiorari: quash an invalid decision- Prohibition: prohibit further unlawful activity- Mandamus: compels a lawful exercise of power- Habeas corpus: requires the release of a person from unlawful detention

In more recent times the inherent jurisdiction of courts has extend to include equitable remedies of declaration and injunction.

The grounds for judicial review in administrative law include:1. Error of law2. Unauthorised purpose3. Irrelevant consideration4. Inflexible application of policy5. Lack of natural justice6. Wednesbury unreasonableness

Judicial Review under statute The main avenue for judicial review is the Federal Court. Other avenues include the Federal

Magistrates court and the High Court of Australia. The first thing you have to determine if a particular matter can be examined under statute…i.e.

determine if ADJR Act/Judiciary Act applies? The main statute for judicial review is the ADJR Act. The act reformed and simplified the

procedure for judicial review. Other acts include the Judiciary Act and the Constitution. Other acts set out judicial processes for certain areas of law. For example, the Migration Act sets

out the judicial review process that is available for matters pertaining to migration.

Administrative Decisions (Judicial Review) Act 1977 – sections 5 and 6 The ADJR Act is the principal template for federal judicial review under which most actions (other

than immigration litigation) are commenced. It sets out the judicial review provisions in respect of a lot of government decisions, but NOT ALL Commonwealth government decisions.

Where the matter is a migration matter or if the decision is made under state law, then the ADJR Act WILL NOT Apply.

ADJR covers “a decision made under an enactment (section 5) or conduct for the purposes of making a decision (section 6)

There are some limitations for judicial review for government decisions under the ADJR Act:- Section 3: In order for a decision to be reviewable under the ADJR Act, it must be of an

“Administrative character” or “preliminary conduct for the purpose of making a decision of an administrative character”.

- Some types of decisions are expressly excluded form judicial review. These exempt decisions are covered in schedule 1.

Judiciary Act 1903 Section 39B and 44 of the Act have the effect of expanding the jurisdiction of the Federal Court of

Australia to match the High Court’s original jurisdiction under section 75(v) of the constitution. These powers extend beyond administrative law matters to include constitutional issues and all

matters arising under Commonwealth legislation. However these provisions are subject to limitations. For example, the FCA can only hear matters

against an ‘officer of the Commonwealth’ and the matters must ‘arise under a law made by Parliament’.

Section 44 allows the HCA to pass on its original jurisdiction to the FCA. This allows the HCA to spread out its load between the two courts to achieve more expediency.

Associated and accrued jurisdiction and the Federal Court of Australia Act 1976 (cwlth) The jurisdiction of the Federal Court is further extended by the concepts of ‘associated’ and

‘accrued’ jurisdiction. These sources of jurisdiction enable the Federal Court to resolve the entirety of a claim or dispute, even though as aspect of the claim or dispute would otherwise be beyond the court’s jurisdiction.

Associated jurisdiction is conferred by s32 of the Federal Court Act and provides that ‘jurisdiction is conferred on the Court is respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the court is invoked’.

Accrued jurisdiction – refers to the inherent power of the superior court to settle the controversy arising out of a common set of facts and issues. In Re: Wakin it was held that you can pass on federal jurisdiction to states, but you can’t pass state jurisdiction to federal courts.

Other Acts: Migration Act During the 1990s the migration caseload of the federal Court grew steadily. Parliament

responded in 1992 by enacting pt 8 the Migration Act and in substitution of the ADJR Act and the Judiciary Act, a special and restricted scheme for review of decisions on migrant entry and refugee claims.

In the wake of the “Tampa” controversy, the Commonwealth Parliament enacted a new Pt 8 of the Migration Act. The essence of the new scheme is that proceedings can be commenced in the Federal Court under the Judiciary Act s 39B or the High Court under the Constitution s 75(v), but are subject to a privative clause (which, ironically, provides that judicial review of immigration decision cannot be undertaken in any court on any ground).

Other limitations on the Federal Court’s jurisdiction1. Federal court can’t undertake judicial review of decisions made during a criminal justice

process, in particular during committal proceedings. 2. The FCA can’t hear matters relating to class actions. These types of actions are covered

under a scheme in section 4A of the FCA and the section make it very difficult to succeed in conducting judicial review of a class action.

3. Where a privative clause excludes the Federal court from conducting judicial review of a particular matter, the court will not be able to conduct judicial review.

State and territory jurisdiction in federal matters Section 77(iii) provides that the Commonwealth Parliament can invest a court of a state with

federal jurisdiction. But this is only valid to the extent that Parliament permits. Other ways in which state courts can deal with Commonwealth public law matters include

powers under Section 32A of the Federal Court Act which provides that each state Supreme Court has jurisdiction to deal with an application in chambers in respect of any matter pending

in the Federal Court. E.g. an application for an interlocutory injunction to prevent temporarily the implementation of a Commonwealth administrative decision.

Where federal issues arise in a collateral way in state courts, the state courts may deal with such matters.

The High Court’s original jurisdiction Section 75 of the constitution gives the HCA original jurisdiction in matters where the

Commonwealth is a party. Section 75(v) allows a constitutional writ to be sought against a commonwealth officer for a

government decision. This was written into the constitution to make it constitutionally certain that there would be a

jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power. Section 75(v) provides a backup jurisdiction when the opportunity for judicial review is denied or

is unavailable in other court. The provision is also important in safeguarding the HCA’s power when the parliament enacts

privative clauses to restrict the HCA’s jurisdiction. Privative clauses can be struck down in they attempt to contravene the HCA’s powers under section 75(v) of the constitution.

The Judiciary Act increases the power of the HCA:- Section 44(2A) – allows the HCA to remit matters back to the FCA.- Section 30 – enlarges the original jurisdiction of the HCA to include ‘matters arising under

the constitution or involving its interpretation’. - Section 33 confers a specific power upon the court to grant the writ of habeas corpus.- Section 32 – provides for final determination of any matter before the HCA.

The power of the High Court under section 75 of the Constitution is restricted by three factors:1. The jurisdiction is conferred in respect of ‘matters’. There must therefore be a live

controversy about rights, duties or liabilities – the matter can’t be purely academic. 2. The jurisdiction is to issue a remedy – a writ of mandamus, prohibition, injunction etc. If a

litigant is not able to establish an entitlement to one of these remedies, they will have not right to appeal in the High Court.

3. Relief must be sought ‘against an office of the commonwealth”.

The state and territory Judicial review schemes The Supreme Court of each state and territory has a general civil and criminal jurisdiction. Thus

undertaking judicial review of state or territory executive action, the Supreme Courts are not troubled to the same extent as the Federal court of the High Courts.

The inherent jurisdiction of the Supreme Court of New South Wales to undertake judicial review has been reformed and simplified along two lines: by replacing the more complex prerogative writ procedure with the simpler procedure of a summons and court order or judgement; and by empowering the court to make the most appropriate order in the circumstances.

There are three ways in which the nine separate judicial systems of the Commonwealth, states and territory are integrated:- Firstly state courts are invested with federal jurisdiction.- Secondly, the High Court, under section 73 of the Constitution has an appellant jurisdiction

from any state Supreme Court or the Federal Court.- Thirdly, parallel legislation enacted by each Australian legislation called the Jurisdiction of

courts (cross-vesting) Act 1987 invests the Federal Court and the state and territory Supreme Courts with the jurisdiction of each other court.

Justiciability Justiciability is a common law concept that is used to delineate between matters that can and

can’t be lawfully heard by the court. Common basis’ on which non-Justiciability may arise

include: where the appellant lacks standing, issues of polycentricity (where issues of politics, policy are involved), where a matter doesn’t fall within the definition of a ‘matter’, if there is a privative clause or a time limitation clause.

Courts established under chapter 3 of the Constitution can’t hear matters tat don’t involve a live controversy.

General Rule: Judicial power can only be exercised in cases that require the courts to determine legal rights and legal interests – McBain’s case

The boundaries as to what is justiciable and what is not is not fixed and it changes all the time. Over time, the general trend has been that more matters are considered by the courts to be

justiciable.

Re: McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372Facts: Dr. McBain successfully challenged a provision in the Infertility Treatment Act which limited

fertilisation treatment to women who were married or living in a de facto relationship. The Catholic Bishops challenged the decision.

Issue: Whether the issue gave rise to a “matter”. i.e. was this a justiciable issue. Held: At the heart of the constitutional conception of ‘a matter’ is a controversy about rights, duties

or liabilities which will, by the application of judicial power be quelled. ‘Controversy’ must be real and immediate.

- If there is no legal remedy for a ‘wrong’, there can be no “matter” right, duty or liability- People who were not parties to litigation do not have a claim of right to have judicial decisions

quashed because they are erroneous. - There is no justiciable issue between the Bishops and Dr. McBain. Therefore appeal dismissed.

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374Facts: The minister for Civil service attempted to stop spies from the Government Communications

Headquarters from joining a union other that one that was approved by the minister. She argued that industrial action would endanger national security.

Issue: 1. whether a decision made in the exercise of a prerogative power is subject to judicial review 2. Was the claim of national security sufficient to pursue the case?Held: Judicial review…provides the means by which judicial control of administrative action is

exercised. To qualify for judicial review, the matter must affect the person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law or (b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment or (ii) he has received assurance from the decision-maker they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.

- An administrative decision is not immune from judicial review, simply because it was made in the exercise of prerogative powers, as opposed to statutory powers…Justiciability is determined by the subject matter of the power.

- In the particular case, the matter was ultimately related to national security. Courts have long shown themselves sensitive to the assertion by the executive that considerations of national security must preclude judicial investigation of a particular individual grievance.

- This does not however, mean that just because a particular case involves national security it will be immune from judicial review. It will depend on each individual case.

Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274

Facts: Cabinet of the Commonwealth Government made a decision to nominate a part of the Kakadu National Park for inclusion in the World Heritage list. This was disadvantageous to Peko as it’s mining in the area would be affected. Peko successfully claimed abuse of natural justice as it was not consulting in the decision process. On appeal, the Commonwealth’s argument was upheld. The FCA held that the decision of the Cabinet was non-justiciable and Peko had been given sufficient opportunity to present its case and as such there was no denial of natural justice.

Held: Theoretically, a cabinet decision is subject to judicial review. However, the circumstances of the case must be investigated before deciding if a particular cabinet decision can be subject to judicial review.

- In practice, it is very unlikely that decisions of the cabinet will be liable for judicial review…Cabinet often deal with matters of politics, law and policy. Often, this will involve making decisions that may not be favourable to certain parties. These decisions are political/policy based and are beyond the power of the courts for judicial review.

- There are practical problems with requiring cabinet to grant a hearing to parties…government would become unworkable if there were an obligation, before making any decision which may be financially disadvantageous to an individual, to seek out and to hear all affected persons.

- Issues arising out of international relations have widely been regarded as non-justiciable. Such activities include making a treaty, the annexation of a territory, whether Australia is in breach of international obligations and whether the government is adequately protecting its citizens abroad.

- The question of non-Justiciability should be based on whether ‘if the result of the breach of the obligation can only be political sanctions etc’. In such cases, the matter will non-justiciable.

- However, this does not mean that politically controversial decisions will not be totally non-justiciable. If the matter also fails to meet criteria such as standing then it will be justiciable.

Class 14: Introduction to Judicial Review: 2Readings: 2.5.1 – 2.5.3; 2.5.11 – 2.5.18 (Judicial review and the private bodies with public powers)

2.4.1 – 2.4.14C; 2.4.24 – 2.4.36 (ADJR Act meaning of “decision”, “of an administrative character”, “made under an enactment”)

Judicial Review across the public/private divide Judicial review is only available to ‘government agencies’. Thus the issue is ‘what falls within the

scope of government agency and therefore susceptible to judicial review. There has been a blurring between the regulations conducted by the government and

regulatory activities that are outsourced to bodies such as the ASX etc.

Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179Facts: The Wheat Marketing Act provided that it was an offence to export wheat without the written

consent of the Wheat Marketing Authority (WMA) which was created by the Act. The act also provided that the WMA was not to give consent unless AWB (International) gave consent to the export.

- Section 57 of the Act gave AWBI the power to veto any new competitors. - Neat applied to export wheat but the WMA rejected the application because AWBI did not give

consent. - Neat challenged the decision under the ADJR Act.

Issue: Whether a private organisation whose been given statutory authority have its decision reviewed under the ADJR Act.

Gleeson CJ: The Act clearly conferred a power of veto to AWBI, and in exercising that power, AWBI did not act ultra vires…the policy of WABI wasn’t inconsistent with the Act…and neat was not able to show why AWBI should deviate from its policy.

- While this kind of set up CAN lead to judicial review, in this particular case, AWBI did not act unlawfully, and thus there is no scope for judicial review.

Other Judges: AWBI is a private company whose main objective is to maximise shareholder value, provided that it acts lawfully.

- AWBI is put in an impossible position if you ask it to comply with public law policies and obligations, and at the same time require it to zealously pursue its private interests.

Kirby (dissenting): AWBI’s decision was administrative in nature, because it was made pursuant to a statutory authority.

- In substance, AWBI was a ‘repository of public power’.- The Act elevated the legal effect of AWBI’s decision. As such AWBI breached section 5 of the ADJR

Act because it was a blanket application of policy.

A significant proportion of government activity is undertaken on a commercial footing, by government trading and business enterprises. Neat Domestic reflects the impact of privatisation of GBE’s on judicial review.

AWBI is a quasi-regulatory body and yet unlike normal government authorities, they’re not subject to accountability procedures.

Bodies such as these are however not free from accountability. Avenues available to be pursued include consumer protection legislation and the Administrative Review Tribunal (which generally regards GBEs to be subject to judicial review, unless the business is in a genuinely competitive market.

If GBE’s are not subject to administrative law review, other mechanisms available to be pursued include the Trade Practice, contract law, and the private sector ombudsman.

Jurisdictional limitations on judicial review

Jurisdiction under the ADJR Act The ADJR Act confers jurisdiction on the Federal Court and the Federal Magistrates Court to undertake 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 ‘conduct’ are spelt out further in section 3.

Section 3

(1) In this Act, unless the contrary intention appears, a ‘decision’ to which this Act applies mean a decision of an administrative character made, proposed to be made or required to be made as the case may be under an enactment.

(2) In this act, a reference to the making of a decision includes a reference to:(a) Making, suspending, revoking/refusing a certificate, direction, approval, determination(b) Giving, suspending, revoking or refusing a licence, authority or other instrument(c) Imposing a condition or restriction.(d) Making a declaration, demand or requirement.(e) Retaining or refusing to deliver up, an article; or doing a refusing to do any other act.

(5) A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation.

The term “Decision” and “conduct” Prior to an administrative decision being made, there will usually be a host of preliminary

administrative steps – analysing the decision, assembling the facts, investigating the issues, consulting with parties etc. The issue is, which of these should be judicially reviewable?

With some exceptions, the general tendency in the earlier years of the ADJR Act was to give a wide construction to words such as ‘decision’ and ‘conduct’.

The decision of the High Court in Bond marked a departure from this approach. The majority of the HCA read both terms restrictively holding that “decision” refers to administrative activity that is substantive, final and operative; and that “conduct” refers to administrative activity revealing a decision that reveals a flawed administrative process.

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321Facts: ABT found Bond guilty of misconduct and decided to revoke Bond’s broadcasting licence. It

also decided that all the subsidiary companies controlled by Bond were also fit and proper to hold licences.

Mason CJ: The ADJR Act provides little guidance as to the definition of the word ‘decision’. - A broad meaning of the word ‘decision’ should be adopted. However, the definition should be

limited on four grounds:1. The decision has to fulfil certain characteristics – e.g. it should be of an administrative nature.2. It must be made under an enactment 3. It may be made under discretion.

- In relation to conduct the claim is that the process of decision is false…in relation to the particular decision in question is that the claim is that the decision itself was erroneous.

- Substantive decisions, findings of fact and inferences from findings of fact generally are not capable of review ‘as conduct’ unless what is alleged is some reach of procedural requirements in the course of the conduct in involved in reaching the relevant conclusions.

First there is a question of the time at which judicial review proceedings can be instituted. The second step is that process (usually the final step) in that process a ‘decision’ or ‘conduct’ that a court has jurisdiction to review. The third step is to decide which steps in the decision-making process leading up to that decision can be separately reviewed by the court for legal error?

The first area of difficulty post-Bond is to decide whether an action is merely a ‘step along the way to an ultimate determination’, and not independently reviewable under the ADJR Act; or, on the other hand, a ‘substantive, final and operative’ decision that is reviewable.

Right to Life Association (NSW) Inc v Secretary, Department of Human Services and HealthFacts: The right to life association wrote to the secretary objecting that clinical trials being

conducted on an ‘abortion drug’ were contrary to state law. After reviewing the letter, the

Secretary wrote to the association rejecting their request. The court held that the secretary’s letter gave rise to a reviewable decision under the ADJR Act, however, the case failed on the basis that the association did not have standing to challenge the Secretary’s decision.

Held: Where matters and circumstances have been brought to his attention which relevantly bear on the question of public interest and he then proceeded to form an opinion and reach a conclusion with respect to them, he may have made a decision reviewable under the ADJR Act.

- Section 3 of the ADJR Act states that making of a decision included a reference to the doing or refusing to do a relevant thing or act. The decision of the Secretary had the ‘character or quality of finality’; it was an ultimate or operative decision.

Decisions of an ‘administrative character’In deciding is a particular matter is administrative in character, the courts have drawn a three-way distinction between legislative, executive (administrative) and judicial power. In effect, the approach has been to ask whether the action under challenge is ‘legislative’ or ‘judicial’ and if not, by deduction it is ‘administrative.’

Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582Facts: Federal Airports decided to charge fees to large planes that landed on Australian Airports. Issue: Was the decision to change the fess, of an administrative nature?Held: Factors that can show a distinction between legislative and administrative decisions, include:- A legislative decision is the creation and promulgation of a general rule of conduct without

reference to particular cases; an administrative decision is the application of a general rule to a particular case in accordance with the requirement of policy of expediency or administrative practice.

- The general tests will frequently provide no clear answer…there is no escape, in my view, from the need to examine closely the particular provisions and the particular circumstances.

A ‘decision made under an enactment’ The most direct effect of this restriction is to exclude review under the ADJR Act of non-

statutory decisions, such as decisions made under executive and prerogative power, and under contracts to which a government agency is a party.

Non-statutory provisions are not reviewable under the ADJR Act. They may, however, be reviewable under common law.

Two issues are what is an ‘enactment’? And when is a decision made ‘under and enactment’? As to the first issue, ‘enactment’ is defined in ADJR Act section 3(1) to mean a Commonwealth

Act and an ‘instrument (including rules, regulations or by-laws) made under such an Act’. An “instrument” includes documents of an administrative and legislative character that satisfy

the following criteria, as established by Lockhard J:1. It must be made pursuant to the Act2. It must be capable of affecting legal rights, interests and obligations.

The second requirement, that a decision be made ‘under’ an enactment, has been construed as requiring that a direct link be drawn between the decision to be reviewed and a power conferred by an enactment to make that decision.

Griffith University v Tang [2005] HCA 7Facts: Tang, a PhD student, had her enrolment as a PhD student terminated due to academic misconduct. She applied unsuccessfully for internal review, and then applied to the Queensland Supreme Court for judicial review. Issue: Was this decision made under an ‘enactment’? Majority: The determination involved 2 criteria:

1. The decision has to be expressly intended by the Act; and2. The decision itself must confer, alter or affect existing legal rights or obligations.

- The decision under review was made under the Act, but it did not effect legal rights or obligations- Where it’s a decision that affects legal rights, privileges or obligations, then it is subject to judicial

review.

Class 15: Jurisdictional Error, Ultra Vires; and Privative clausesReadings: Study guide- extract from M Aronson, ‘judicial review of administrative action’

15.4.1 – 15.4.15C ; 7.2.13C – 7.2.14C ; 7.2.9 – 7.2.11 15.3.1 – 15.3.5 (privative clauses)

Jurisdictional Error and invalidity Jurisdictional errors occur where a court assumes jurisdiction over a matter where it does not

have jurisdiction under its constituent Act, OR where a court fails to exercise jurisdiction that is conferred upon it.

Jurisdiction – the power to hear and decide a particular case.

A jurisdictional error causes the proceedings or the order to be invalid…a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all.

There are two types of errors that a tribunal can make: error of fact and error of law…a jurisdictional error is an error of law.

A non-jurisdictional error related to any error of law that does not relate to the assumption of jurisdiction.

Generally, as noted by the High Court in Craig, narrow view is taken of what constitutes jurisdictional error by a court, including inferior courts…however, in relation to what constitutes a jurisdictional error by an administrative tribunal, a wider view has been adopted.

The cases suggest that the context of the case is important in determining if a jurisdictional error has occurred.

Jurisdiction error can come about in several situations . Some such situations include: where the decision maker flouts a statutory limitation, breaches natural justice, asks the wrong question or is wrongfully constituted. In Re RRT; Ex parte Aala, it was held:

“There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction.”

Jurisdictional error can also occur in a category in respect of a jurisdictional fact. A jurisdictional fact occurs 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 right and duty of deciding whether a jurisdictional fact has been satisfied rests with a court undertaking judicial review; and the court is not restricted to the evidence or material that is before the decision maker. It is one of the few times the court can consider fresh evidence during judicial review.

The effect and significance of Jurisdictional Errors When a tribunal makes a jurisdictional error, then the decision considered will be null and void,

and the decision will be quashed. Even if there is not statutory right to appeal, provided they have standing, will always have the

right to appeal on the basis of jurisdictional error. In fact, even if parliament decided that applicants will be unable to appeal on the basis of

jurisdictional error, courts will ignore the provision and still give a right to appeal. Privative clauses are statutory provisions that purport to restrict/limit or curtail the right to

judicial review in relation to a particular category or type of administrative decision. If a jurisdictional error occurs in the making of a decision that is covered by a privative clause, you will still be able to appeal to quash the decision on the basis of jurisdictional error.

Craig v South Australia (1995) 184 CLR 163Facts: Craig was charged with motor vehicle offences. Applying Dietrich v R, the trial judge ordered

that the trial be stayed until legal representation was made available to him…the state unsuccessfully appealed to the High Court, where it was held, the decision would not be

ERRORS

Error of fact Error of law

Jurisdictional error Non-Jurisdictional error

quashed, because any such error was neither a jurisdictional error not an error on the face of the record.

Issue: It was agreed that the trial judge had made an error of law, but was the error a jurisdictional error or a non-jurisdictional error?

Held: An inferior court falls into jurisdictional error if it mistakenly asserts or denied the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.

- But it is important to draw a distinction between inferior courts and administrative tribunals. Administrative tribunals lack power to make an authoritative decision on a matter of law.

- If a tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, then the tribunal’s exercise, or purported exercise of power exceeds it’s authority and as such constitutes jurisdictional error.

- In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law as well as questions of fact involved in matters which it has jurisdiction to determine…as such, a mistake on the part of an inferior court to identify relevant issues, formulate relevant questions, consider irrelevant matters or no consider relevant matters that its required to consider etc will not ordinarily be a jurisdictional error, but rather they will constitute non-jurisdictional errors.

- Basically, it’s easier to prove that a tribunal has committed a jurisdictional error than a court of law.

Jadwan Pty Ltd v Secretary, Department of health and Aged Care (2003) 204 ALR 55Facts: Jadwan owned a nursing home business, which was regulated by the Aged Care Act. A

delegate cancelled Jadwan’s licence to continue business on the basis that it didn’t meet certain specifications. Throughout the case, Jadwan remained a certified nursing home services provider.

Issue: What are the circumstances under which an error will be jurisdictional, and whether that would mean that any wrongful administrative action amounting to jurisdictional error will be null and void?

Held: The major premise is that where an administrative decision maker makes a jurisdictional error, the decision is a nullity and must not be treated as never having existed for any purpose.

- However, this is not a universal rule. The legal and factual consequences will depend upon the particular case and on the Constituent Act under which the decision was made.

- The ADJR Act does not differentiate between jurisdictional error and non-jurisdictional error, although some of the grounds for review under section 5 would give rise to a jurisdictional error.

- Thus if your relying on the ADJR Act, there is no need to determine if something a jurisdictional error or a non-jurisdictional error.

- However, if common law is used, then even if you are able to make out a jurisdictional error, the only consequence that flows from that is that the decision is subject to a constitutional writ.

-The actual effect of the decision will depend on the Constituent Act and the context. Jordan CJ stated in Ex parte Hebburn Ltd; Re Kearsley Shire Council:

“if a mistake of law as to the proper construction of the statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply a ‘wrong and inadmissible test’, or ‘misconceive its duty’ or ‘not to apply itself to the question which the law prescribes’, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised”

Privative Clauses

A privative clause is a statutory provision that purports to curtain, restrain or limit the jurisdiction of the court in conducting judicial review of certain matters.

The goal of privative clauses it to prevent the use of courts to stay proceedings etc. They are used in areas including migration, industrial reform, taxation and science.

Privative clauses are controversial because they might contravene the doctrine of the separation of powers by limited the power of the courts.

In dealing with privative clauses, the courts will have to reconcile between the following three important principles:- Parliamentary supremacy – requires obedience to the clearly expressed wish of the

legislature- Preserving access to the courts – courts must not readily surrender the beneficial facility of

judicial review which is the ultimate machinery to protect the rule of law.- High Court’s original jurisdiction – the jurisdiction of the High Court conferred by section

75(v) of the Constitution to grant mandamus and prohibition directed to an officer of the Commonwealth cannot be ousted by a privative clause.

Thus there is always a tension between section 75(v) and privative clauses. If the privative clause contradicts the constitution, the privative clause is invalidated.

At the same time under common law, the rights of individuals can’t be taken away from people unless a statutory provision explicitly states that such a right does not exist.

Thus parliament has to be very careful, because if parliament, in enacting privative clauses, is too heavy handed, courts will invalidate them for contradicting section 75(v) of the constitution. If it is too vague, then the Courts will invalid the clause on the basis that parliament can’t take away someone’s right unless there is explicit statutory provisions.

Class 16: Judicial Review Grounds: 1Readings: 12.5.1 – 12.5.26 (The fact/distinction)

12.3.1 – 12.3.9; 7.5.1 – 7.5.4 (judicial review of fact-finding errors) 7.2.31 – 7.2.38 (Jurisdictional error) 12.2.1 – 12.2.8 (“No evidence” as a ground of judicial review at common law) 12.2.9 – 12.2.15C; 12.2.17C – 12.2.18 (“No evidence” as a grounds of J.R under the ADJR Act)

The Fact/Law Distinction An error of law is an error made in procedure, jurisdiction or interpretation of the law. There are two main areas in which ‘error of law’ has a role to play in administrative law:

1. Statutory appeals – it is common to provide in legislation that there is a right to appeal from a tribunal to a court ‘on a question of law’.

2. Judicial review is only available for an error of law – not an error of fact. BUT in order to obtain judicial review, the error of law must have a ‘conceivable impact’ on the decision.

Applying Legislation to the facts There is generally three sections through which an error of law can be established.

1. Fact Finding – This can be a process both of establishing primary acts by evidence or observation and of using those facts to prove other facts, usually by a process of inference. - An error made in the fact-finding stage will be an error of fact, unless there is no

evidence to support the finding or inference of fact. - Kirby J also stated in Azzopardi that manifest illogicality or perversity should be

classified as an error of law. Perverse finding of fact may be associated with asking the wrong questions, applying the wrong tests, receiving inadmissible evidence, rejecting admissible evidence etc.

2. Declaring a rule following statutory interpretation – many words, phrases and sentences in legislation are open to different shades of meaning and it is necessary to decide which meaning or shade of meaning is to be preferred. For this purpose, courts have distinguished between words that bear their ordinary English meaning, and words that bear a technical or specialist meaning. - Deciding whether a word bears its ordinary or technical meaning is an issue of law and

consequently the wrong choice will be an error of law. - If the ordinary English meaning is taken, then the interpretation of the word or phrase is

a process of fact, and will therefore give rise to an error fact.- If the technical or specialist meaning is taken, then the interpretation of the word or

phrase is a process of law and therefore will give rise to an error of law. 3. Applying the Rule – the general position is that the application of a term or phrase where

its ordinary English meaning is taken will give rise to an error of fact, while the application of a term or phrase where its technical or specialist meaning is taken will give rise to an error of law.

On a final point the right to appeal on a question of law is limited to errors that form part of the decision under appeal. The error of law must have a conceivable impact on the decision. i.e. an immaterial error will not vitiate the decision of the tribunal.

Collector of Customs v Pozzolanic Enterprises Pty LtdFacts: The Customs Act provided a rebate for diesel fuel purchased for the use ‘in primary production’ which was defined to include ‘other operations connected with the rearing of livestock’. Pozzolanic claimed a rebate for fuel used to operate equipment that unloaded stock feed from a truck to a farm silo. The Collector rejected the claim and the AA T upheld the decision.

Issue: Was determining the meaning of the phrase a process of fact or process of law? If it was a process of law, was there an error of law?

Held: Held that it was a process of law, BUT the court didn’t error in law. - An error of law will not give rise to a right to judicial review.- There are five general propositions relating to the fact/law distinction: 1. The question whether a word or phrase in a statute is to be given its ordinary meaning or

some technical or other meaning is a question of law. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. 3. The meaning of a technical legal term is a question of law

4. The effect or construction of a term whose meaning or interpretation is established is a question of law.

5. The question whether facts fully found fall within the provision of a statutory enactment properly construed general a question of law.

- The presence of the words ‘connected with’ is capable of describing a spectrum of relationships ranging from a direct and immediate to the tenuous and remote. Thus in cases where the words are capable of requiring a choice, the choice will be a question of law.

- Thus is such cases where some sort of ambiguity exists, then the case is likely to be a question of law.

Collector of Customs v Agfa-Gavaert Facts: Under the Customs Act, imported paper would be free of duty if it came within the phrase ‘silver dye bleach reversal process’. The AAT held that photographic paper imported by Agfa-Gavaert did not come within the phrase. Held: Where you have a phrase hat is used outside its ordinary meaning, then generally it will be technica…in such cases the process will be one of fact. - Where the entire ‘phrase’ does not have a trade meaning, then you can take note of a word or words within the phrase which has an accepted trade meaning, provided such an interpretation does not lead to a result which is absurd, unworkable, impractical, illogical, futile or pointless.

Hope v Bathurst City Council Held: Where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one o law only. - Even if you have an ordinary word, it can still be ‘technical’ if it is used in conjunction with other words then it may be technical, in which case, the process will become one of law.

Azzopardi v Tasmanian UEB Industries LtdFacts: The Worker’s Compensation Commission wrongfully rejected Mr Azzopardi’s claim for workers’ compensation on the basis he had failed to establish that he had injured his knee while travelling to work. Held: The courts will not conduct judicial review, if there has been an error in finding of a face, even if the error is significant.- Illogicality or perversity in fact-finding is NOT an error of law. - You need some sort of error in law for it to intervene.

Law/Fact – a false dichotomy? – page 700

Judicial review of fact finding errors Mistakes in the process/procedure in finding relevant facts can be subject to judicial review.

GTE (Australia) Pty Ltd v BrownFacts: Legislation allowed the minister to impose special duty upon any product that was ‘dumped’ in Australia. The minister used this power to impose duty on imported light bulbs, after receiving a briefing that contained a miscalculation in the price of the bulbs in their country of origin. The light bulb prices were mistaken with another type of light bulbs. Issue: Is this error, an error of law?

Held: It is required of an administrator, who makes a determination affecting the rights, interests and legitimate expectations of persons, that he make his determination upon material having some probative weight. - Thus a decision maker must make his decision based on evidence. He must not estimate or guess. - The error in law is not that he got it wrong, but the way he went about making the mistake. - The minister was given information, but he didn’t take it into account.

There are several grounds for judicial review that have been applied at times to fact-finding errors:1. Decision not authorised by the enactment pursuant to which it was purportedly made – this

applies where, in making a decision, a requirement in a statute has not been fulfilled. 2. Taking an irrelevant consideration into account – includes situations where decisions are

made based on erroneous premise. 3. Failing to take a relevant consideration into account – a decision must be based on the most

recent and accurate information that the minister has at hand. 4. Reliance by a decision maker on a non-existent fact 5. Wednesbury unreasonableness 6. Failing to base a decision on logically probative evidence - decision has to be supported by

some evidence that bears a logical connection to it. 7. Failing to satisfy a jurisdictional fact – if a statutory precondition to a decision is classified as

a jurisdictional fact, it is for a court undertaking judicial review to decide whether the fact existed, and hence whether the power to make a decision could be exercised.

8. Jurisdictional error

Australian Broadcasting Tribunal v BondHeld: The general principle is that: A Finding of fact should be left to the public authority, except where the public authority acts perversely in finding the facts. This signified action without any probative evidence. - Lord Brightman (in Puhlhofer v Hillingdon London Borough Council) – it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in cases where it is obvious that the public body, consciously or unconsciously, are acting perversely.

It has been held on the one that that perversity or illogicality is not an independent ground for invalidating an administrative decision. On the other hand, it is also commonly noted in the context of judicial review that perversity or illogically can indicate breach of some other ground of review.

Another issue in debate is whether a fact-finding error can be a jurisdictional error. It follows that if a tribunal makes an error of act in misunderstanding or misconstruing a claim advanced by the appellant, and the error was caused due to the fact that court failed to take into account all relevant information/evidence, on the basis it lack jurisdiction to do, then that error in fact can constitute jurisdictional error.

Jurisdictional Error - Section 5(1)(c) of the ADJR Act Parliament can stipulate that a power to make a decision is condition upon the existence or

occurrence of any fact, event or circumstance. There are two issues that arise in relation to jurisdictional errors:1. Who decides whether a jurisdictional fact has been satisfied?

- As a matter of practicality, it will be the decision madder. - But the courts will have jurisdiction to make a definitive decision.

- Thus there is an exception to the court taking into account new evidence in judicial review. It can take new evidence into account when there is a question of jurisdictional fact.

2. When should a statutory requirement be classified as a jurisdictional fact? i.e. when is a particular fact a jurisdictional fact, rather than simply a fact?

Timbarra Protection Coalition Inc v Ross Mining NLFacts: The council approved an application by Ross Mining to extend a gold mind in Malara State Rainforest. Under the Environmental Planning and Assessment Act, applications for development shall be accompanied by a species impact statement. No such statement was submitted. Timbarra challenged the Council’s decision claiming that development would impact wildlife. Issues: 1. Is the decision whether environmental impact statement a jurisdictional fact? 2. If so, on what basis should this fact be decided?Held: The question as to whether a fact is a jurisdictional fact is an objective one. - The fact must play such a significant role in the legislative scheme that it is appropriate to describe

it as an ‘essential condition’. - This decision should be based on the evidence before the court

No evidence as a ground for judicial review at common law The principle applied a common law I that a decision made under a statute will be invalid if

there is a lack or absence of evidence to satisfy an essential statutory element of the decision. By contrast, a decision will not be invalid under this ground if there is some evidence to support

the statutory element, even though it is questionable whether that evidence is adequate or sufficient to provide support.

The no evidence rule for judicial review is one of the few areas where there is a difference between the scope of the ground at common law and under the ADJR Act.

The Queen v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co Pty LtdFacts: The Stevedoring Industry Act 1949 provided that the Stevedoring Board could cancel or

suspend the registration of an employer if the board was ‘satisfied that it was unfit to continue to be registered as an employer, or had acted in a manner whereby the proper performance of employees had been interfered with. The board commenced an inquiry into whether the registration of the Melbourne Stevedoring Co should be cancelled.

Held: There can be no foundation for a writ of prohibition unless and until it appears, whether from the course of the inquiry or from the preliminary statement of the matters to which the inquiry is directed, that there can be no basis for the exercise of the power conferred by the 23(1) or that an erroneous test of the liability of the employer.

- It is not enough if the board, in properly interpreting the sections of the act, based their ideas on inadequate material. The inadequacy of the material is not itself a ground for prohibition.

- Thus, some evidence to support a finding, even if inadequate is not an error of law…there is no error of law in simply making a wrong finding of fact…as long as there is some basis for an inference, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

No evidence as a ground of judicial review under the ADJR Act – s 5(1)(h) of the ADJR Act No evidence has been defined as a ground of review in the ADJR Act, which provides that an

order of review can be sought on the following ground:5(1)(h) that there was no evidence or other material to justify the making of the decision;…5(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a) The person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material from which he could reasonably be satisfied that the matter was established; or

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

Several issues have been prominent in the case law dealing with the ADJR Act test of no evidence:

1. The provisions for no evidence under the ADJR Act is narrower in scope than the no evidence principle at common law

2. Scope of the ADJR Act s 5(3)(a)– both the common law and the ADJR ensures that where ‘no evidence is present to support an essential statutory requirement’ judicial review will be granted. However, the ADJR Act has two special features that were not addressed in the case law. First the ground applies where a decision-maker ‘was required by law to reach a decision only if a particular matter was established.’ There it is necessary there is a precondition in law to the making of the decision. In Rajamakkikum the courts states that the finding must be ‘critical’ to the decision.

3. As to the scope of the ADJR Act s 5(3)(b), the shorthand expression for the ground is ‘reliance by the decision maker on a ‘non-existent fact.’ As expressed in Rajamakkikum the section is limited to findings of fact that are critical to the final decision.

Australian Broadcasting Tribunal v BondHeld: 5(3)(a) of the ADJR Act restricts the ‘no evidence’ ground to decision in respect of which the

decision-maker was required by the law to reach that decision only of a particular matter was established. In such a case, the ground of review is that there was ‘no evidence or other material…from which he could reasonably be satisfied that the matter was established’.

- The common law no evidence rule is covered by sections 5(1)(1)(h) of the ADJR Act, and section 5(3) seeks to expand that ground to require further conditions to be met.

Minister for Immigration of Multicultural Affairs v RajamanikkamFacts: The RRT rejected Dr. Rajamanikkam’s claim for a protection visa on the basis of credibility. It

was found that the RRT, in reaching its findings of lack of credibility the tribunal had taken into account two facts that did not exist. The Full Federal Court held that the tribunal’s decision was in breach of the ‘no evidence’ ground of review specified in the 476(1)g) and 4(b) of the Migration Act.

Held: The duty to base a decision on evidence, which is part of a legal requirement of procedural fairness, does not mean that any administrative decision may be quashed on judicial review if the reviewing court can be persuaded to a different view on facts.

- So far as section 5(3)(b) of the ADJR Act is concerned, there has to be ‘proof of the non-existence of a fact critical to the making of a decision’.

- unless it is possible to say on a proper analysis of the decision, the reasons for decision or the decision making process that, had a particular finding not been made, the decision in question would not have been reached, it is, in our view, impossible to say that the dcision was based on that finding.

Class 17: Judicial Review Grounds: 2Readings: 8.5.1 – 8.5.10 (formal and informal delegation of decision-making power)

15.2.1 – 12.2.11C (Compliance with statutory requirements) 11.2.1 – 11.2.9 ; 7.2.5C ; Study Guide: Extract from NEAT Domestic v AWB (Policy) 11.3.1 – 11.3.7 (ministerial directions)

Formal and Informal delegation of decision-making power

A legal presumption has developed to the effect that the validity of a decision will hinge on whether it was made by the person nominated in the legislation (the ‘principal’).

This presumption is rooted, in part, in the ideal of accountability (legal control of decision-making can more easily be imposed if it is known who is responsible for exercising a statutory function), and in part, in the concept of delegates non potest delegare – “a delegate cannot delegate”.

In reality however, it is not practical for one principle to make all the decisions, and it is common for legislation to authorise the principal to delegate the power to another officer.

There are four different categories that provide a structure of authorised decision making:1. Principal: the person nominated in the legislation as the authorised decision-maker. The

principal retains the authority to make decision, even when the power to do so ha s been delegated to other officers.

2. Delegate – a person whom a power has been delegated by a written instrument signed by the principal, pursuant to an authority to delegate conferred by legislation. The scope o the authority of the delegate will be set out in the instrument of delegation.

3. Agent – In limited circumstances, a person many act as an agent and make decisions on behalf of a principal or delegate. The legal justification for the agency arrangement is that it is grounded in a practical administrative necessity.

4. Administrative assistance – the authorised decision maker can obtain assistance from others to conduct research, interview someone etc. There is no need for the administrative assistance to be authorised formally or to act under delegation.

Re Reference under section 11 of Ombudsman Act 1976 for an Advisory opinion; Ex parte Director-general of Social Services

Facts: The Social Services Act allowed for the delegation of powers to determine welfare payments to person other than the Director-General. In refusing welfare payments for a school leaver, the delegate, Mr. Prowse, signed the letter with his signature, but as being written by the Director-General himself.

Facts: Where the relevant power is delegable and has been delegated, the delegate may, without further authorisation, act in effective exercise of the power. Hi acts are not treated as acts vicariously done by the authority. He is not an agent to exercise the power vested in him.

- Where an authority has no delegated his power but he has authorised another to act in exercise of his power, the act is to be done in the name of the authority.

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

- The attempted exercise by a delegate of his own power miscarries when the very act of exercise purports to deny the power which gives validity to his act.

O’Reilly V Commissioner of State Bank of VictoriaFacts: Pursuant to the Taxation Administration Act, the Commissioner for taxation delegated certain powers to the Deputy Commissioner. The Deputy Commissioner in turn, gave written authorisation to a tax officer (Mr. Holland) to exercise those powers. Mr. Holland exercised the powers, by issuing certain notices, but the notices were accompanied by the name and signature of the Deputy Commissioner. HCA held this was valid.Held: There is no doubt that as a general proposition at common law a person sufficiently ‘signs’ a

document if it is signed in his name and with his authority by somebody else, but if by statute a document has to be personally signed the duty of signing cannot be delegated to a third person.

- Thus notice can be given by the authorised agent of the designated person, whose act will be the act of the principal, unless the statute on its proper construction requires the notice to be issued only by the person who is designated.

- Whether the statute requires the power to be exercised personally by the person designated on the nature of the power and all the other circumstances of the case will depend on the proper construction of the statute.

- There were over 5.6 million tax payers in 1980, and it would reduce tax administration to chaos if the powers conferred could be exercised only by the commissioner or a deputy commissioner.

- Parliament must have known, a practical necessity that the powers conferred on the Commissioner by the Act should be exercised by the officers of his Department who were acting as his authorised agents.

- The powers conferred by s 264 were not intended to be exercised only by the Commissioner or his delegate personally but may be exercised through a properly authorised officer.

The underlying point in O’Reilly was that the nature of the decision being made can be an important bearing on whether an agent as opposed to a delegate can make that decision.

Secretary, Department of Social Security v Alvaro Facts: Section 1237 conferred on the Secretary a discretion to waive the recovery of any debt owed

by individual to the department. The full FCA intimated that the administrative action necessary to raise a debt under s 1224 could be performed by a person as an agent for the Secretary; BUT a decision under s 1237 to waive a debt could only be exercised by the secretary or authorised delegate.

Held: It was obviously not the intention of the legislation that the Secretary perform all the functions necessary to carry the Act into effect.

- Administrative duties are capable of being performed objectively, as such it is not a discretionary power and thus capable of being lawfully exercised by someone holding formal instructions from the principal.

- However, the power to waive the debt is clearly a discretionary power, and it is one vested expressly in the Secretary.

Similarly, other cases show that where the principal is to consider all relevant matters, this cannot be performed on their behalf by an assistant.

Instruments of delegation are, generally speaking, construed narrowly to accord with their literal meaning. E.g. an instrument of delegation authorising an officer to ‘request’ information from a witness did not constitute a power to compel that person to attend and answer questions.

There is a field of debate as to whether these legal principles are an appropriate legal safeguard or are unrealistically technical.

Those in favour of the principles argue that they give effect to the plain language of the legislation; that they facilitate legal accountability of decision-makers by creating a clear and transparent structure for decision-making; and that they safeguard individual rights by confining and structuring the authority to make decision that can encroach on rights.

Those against such principles argue that the legal principles go further than those considerations require, and 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.

Compliance with statutory requirements - s5(1)(b) ADJR Act There are frequently numerous statutory steps to be observed or fulfilled in making a decision. What is the consequence if there is a breach of one of those associated statutory requirements? In deciding whether a breach in a statutory requirement will invalidate the entire administrative

decision will depend on whether the issue was raise at the preliminary stage or at a latter stage.

In Project Blue Sky, the court held that the ‘better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid…the legislative purpose is to be ascertained by reference to factors such as the language of the statute, the subject matter and the consequence for the parties of a finding invalidity”

The ADJR Act s 5(1)(b) provides that 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”. This ground was applied in Our town FM Pty Ltd v Australian Broadcasting Tribunal where a substantive decision to award a broadcasting licence to one applicant rather than another, the court held that the decision was invalid by reason of the failure to comply with a ‘procedure required by law to be observe din connection’ with the substantive decision.

Project Blue Sky Inc v Australia Broadcasting Tribunal (1998) 194 CLR 355Facts: Under the Broadcasting Services Act, the Australian Broadcasting Authority (ABA)

implemented a ‘local content standard’ which prejudiced Project Blue Sky which was a New Zealand company. Section 160(d) of the Act provided that the ABA must function in a manner consistent with Australia’s obligations under any convention to which Australia is a party to. Project Blue Sky challenged the local content standard claiming it was inconsistent with CERTA which provided New Zealand producers would be treated in a manner no less favourably than Australian producers.

Issue: Does the failure to comply with section 160(d) mean that the local content standard was invalid?

Held: An act in breach of a condition regulating the exercise of a statutory power is not necessarily invalid. Whether it is depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of a purpose is ascertained by reference to the language of the statute, its subject matter, and objects and the consequences for the parties of holding void every act done in breach of the condition….there is no decisive rule that can be applied.

- When a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction foes to the administration of a power or function rather than to its validity.

- Expense, inconvenience and loss of investor confidence must be regarded as real possibilities if acts done in breach of s 160 are invalid…as such the best interpretation of s 160 is that, while it imposes a legal duty on the ABA, an act done in breach of its provisions is not invalid.

The legal Status of executive policies The way in which statutory and administrative policy interact in a particular situation is

ultimately a question that turns on the interpretation of the statute that is being administered. There are three categories of issues that arise in defining the legal status of executive policies.

The first has to do with the legal relevance of policies to administrative decision-making. The second has to do with the weight or influence which policy can lawfully play when a decision is being made. The third is concerned with the legal consequences if a decision-maker ignores or breaches a policy.

The legal relevance of policies - s 5(2)(e-f) of ADJR The principle is established that a government or decision-maker can adopt a policy to provide

guidance in the exercise of a statutory discretion. There are two main riders to that statement:1. The policy must not be incompatible with the legislation that it elucidates.

2. Policy statement, unless publicly notified as required by FOI statutes, cannot be relied upon to disadvantage a person who was not aware of the policy.

Policy guidelines enhance the consistency, predictability, fairness and democratic legitimacy of administrative decision making.

In NEAT Domestic Trading v AWB, Gleeson CJ states:“there is nothing inherently wrong in an administrative decision-maker pursuing a policy, provided the policy is consistent with the statute under which the relevant power is conferred, and provided also that the policy is not, either in its mature or in its application, such as to preclude the decision-maker from taking into account relevant considerations, or such as to involve the decision-maker in taking into account irrelevant considerations.

The weight or influence of policies: the non-fettering and non-abduction rules – s 5(2)(e-f) of ADJR The guiding principle is that a government policy or direction can’t confine a statutory

discretion to the point of preventing a decision-maker from making a decision in favour of a person when such a decision would be authorised by the discretion in the absence of the policy or direction. i.e. there must be a real or genuine exercise of discretion. This principle is sometimes called the ‘non-fettering’ and ‘non abduction’ rules.

A decision maker must look at the individual merits of a case, the official who is legally responsible for making a decision should in fact be the one who does so; and an executive rule cannot fetter a statutory discretion nor confine a statutory rule.

In Howells v Nagrad Nominees Pty Ltd Fox J states:

“The interface between policy and discretion in the exercise of statutory powers is a difficult one…where the power given relates to the consideration of individual cases, it is not to be denied that the predominant aspect must be the consideration of the particular case. The merits of that case must be considered genuinely and realistically; there must always be a readiness to depart from policy”

Ministerial Discretions 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 apply a policy or direction from a minister.

There are two stages in determining whether an official has breached this rule:1. The first stage will be an issue of fact, as to whether it can be proved by evidence that a

decision-maker reached an independent decision or instead acted at the direction of a minister.

2. The next issue is one of law, concerning the legal relationship between the minister and subordinate officials.

R v Anderson; Ex Parte Ipec-Air Pty Ltd (1965) 113 CLR 177Facts: Ipec-Air wanted to import aircraft into Australia. In order to do this, permission must be given

by the Director-General of Civil Aviation. Initially, the director-general reviewed Ipec-Air’s application and concluded that the application should be approved. However, he handed the case onto the minister, stating the only Government can make decisions on those matters of Government policy. Ipec appealed for a writ of mandamus.

Held: discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice.

- A case for granting mandamus on this principle exists where the officer has taken into account matters ‘absolutely apart from the matters which by law ought to be taken into consideration,

other than that for which the discretion exists, or has accepted another’s discretion as to the way in which the discretion should be exercised.

- Government policy is not in every case an extraneous matter which he must put out of consideration.

- The Director-General did not arrive at a decision of his own after taking account of some matter of general Government policy. What he did was to seek from his Minister, and then automatically obey, an ad hoc pronouncement from the Government as to the direction in which he ought to decide the matter.

- There is a significant difference between a discretion given to a minister and one given to a departmental head…the decision of the departmental head should be based upon the merits of the application…and thus government policy should not outweigh every other consideration.

Ansett Transport Industries (Operations ) Pty Ltd v Commonwealth (1977) 139 CLR 54Issues: Whether the Secretary of Department of Transport could act in accordance with government

policy or a direction from the government I deciding whether to grant that permission. Held: The vesting of a discretion in an official in an area such as the control of entry into Australia

etc, does not, in my opinion, give him a power to ignore or to depart from government policy in the exercise of his discretion in relation such entry…

- A system of responsible government is where executive powers and discretions of those in the departments of the executive government be exercised in accordance with the directions and policy of the Minister.

- However, there is no support to the notion that a Minister can, without statutory authority, direct an officer in whom a statutory discretion is reposed, how he will exercise that discretion.

Bread Manufacturers of NSW v Evans (1981) 180 CLR 404Facts: A prices commission increased prices according to the Prices Regulation Act. The NSW court of

appeal held that the price increases were invalid for the reason that in making the order the Prices Commission had not come to its own independent decision, but had acted under the influence or at the direction of the minister.

Held: A statutory authority must not, in the purported exercise of its discretion, act under the dictation of some other person…the decision must be its own.

- It does not follow that it was impermissible for the Commission to consider the views of the minister in coming to its decision…provided that in the end the decision reached by the commission was its own.

Class 18: Judicial Review Grounds: 3Readings: 9.2.1. – 9.2.10; 9.2.17C – 9.2.24 (Improper or unauthorised purposes)

9.3.1 – 9.3.12; 9.3.16C, 9.3.21 – 9.4.10C; 9.4.18 (Relevant and irrelevant considerations)

Acting for an unauthorised purpose – section 5(2)(c) of ADJR Act A person or body upon whom a statutory power is conferred can lawfully exercise that power

only for the purpose for which ti was conferred. An exercise of the power for a different or ulterior purpose will be invalid –Brownells Ltd v Ironmongers’ Wages Board

Section 5(2)(c) of the ADJR Act provides that an order of review can be sought in respect of “an exercise of power for a purpose other than a purpose for which the power is conferred”.

In determining this, you have to:1. Discern what purpose can the statutory power lawfully be exercised?2. Discern what purpose was the power actually exercised?

1. The statutory purpose The purpose for the Act will generally be stated explicitly in the statute. If the purpose is not explicitly stated in the statute, then you can apply the general processes of

statutory interpretation to imply a purpose. One particular problem is that of statutory indeterminacy where it is sometime very difficult to

understand the purpose of the statute. This is particularly the case where a statute might have multiple purposes, some of which may

be conflicting with each other. E.g. the purpose of FOI legislation is to provide individuals with government information, but not too much information.

- In such situations you reconcile the conflicting purposes by identifying which purpose is more important and basically ignore the other.

Samrein Pty Ltd v Metropolitan Water Sewage and Drainage BoardFacts: The board was authorised by the constituent Act to undertake a compulsory resumption of

land for any purpose of the Act. The board decided to resume a block of land owned by Samrein, which then commenced proceedings claiming the block was resumed for an unauthorised purpose.

Held: It would be an abuse of the Board’s powers if the ulterior purpose if a substantive purpose in the sense that no attempt would have been made to acquire the land if it had not been desired to achieve the unauthorised purpose.

- This question if one of fact...in the particular case, the purpose of resume the land was to erect a new building as a joint venture with Government Insurance Office…this was an authorised purpose under the act.

Schlieske v Minister for Immigration of Ethics Affairs (1988) 84 ALR 719Facts: Schlieske was wanted in Germany for drug charges. The Australian government unsuccessfully

attempted twice to extradite him. The minister then tried to deport him under section 22 of the Migration Act. Not only did Australian authorities deport him, but also actively handed him over the German authorities when he arrived in Germany.

Issue: Whether the deportation order was made for an authorised purpose?Held: The Migration Act authorises the Minister to order the deportation of prohibited non-citizens.

However like all statutory discretions, it is to be exercised in accordance with the scope and purposes of the enactment which it its source.

- The power to deport must be exercised for the purposes of the Migration Act…it is not the purpose of the Migration Act to aid foreign powers to bring fugitives to justice.

- The government could deport him from the country, but the task of the Australian escorting officer is complete when the deportee leave the aeroplane in the country of destination…the extra steps taken to personally hand over the deportee to German authorities was unauthorised.

- A decision that is otherwise invalid will not be made valid simply because the motive was laudable, sensible or economically rational.

- Held the power WAS used for an unauthorised purpose.

Irrelevant Considerations – section 5(2)(a) of ADJR Act General Rule: where a decision maker takes into account irrelevant matter, and provided that

that consideration is not trivial, the decision will be held to be invalid. Section 5(2)(a) of the ADJR Act provides that an order of review can be sought in respect of

‘taking an irrelevant consideration into account in the exercise of a power’. There will be two steps in deciding if the decision maker has in taken into account irrelevant

matters:1. What matters were taken into account by a decision-maker?2. Were any of the matter that were taken into account an irrelevant consideration?

The criteria of relevance In determining whether a particular consideration was relevant or irrelevant, you don’t have to

go further than the statute which confers the power. The relevant factors may be exhaustively listed in the Act. But if the factors are not list exhaustively, you apply the processes of statutory interpretation.

E.g. look at the language of the statute, its purpose or object, the subject matter of the statute, the nature of the power that’s being exercised and the nature of the office held by the decision maker.

Where a statute gives little guidance as to considerations that should and should not be taken into account, the courts have inferred that the statute confers a broad discretion upon the decision-maker to determine which considerations shall be taken into account in reaching a decision – Browning

Simply looking at irrelevant matters will not constitute an error. An error will occur only where the irrelevant consideration has an impact on the decision…i.e. a pivotal effect on a decision.

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492Facts: The Irrigation Act conferred powers upon the Commission to veto any transfer irrigation

rights. The act also provided that ‘refusing of consent shall be entirely in the discretion of the Commission. The Commission rejected an application for transfer of irrigation rights. The basis for its decision was that it had a policy against transferring rights to persons of enemy origin (brown was Italian…and this was during WW2) and that Italians were generally bad irrigators.

Issue: Did the Commission take into account irrelevant considerations?Held: The court’s function is NOT to determine the wisdom or unwisdom of the Commission’s

options or the justness or unjustness of their views about Italians as irrigation farmers or about the undesirability of increasing their numbers in particular areas.

- The discretion conferred upon the Commission is broad…the Commission has effective power of veto.

-The statutory provision also contains no statement of the matters which the commission is to take into consideration in exercising the power.

- The width and variety of the discretion conferred by the Act are enough to show that matters of policy are by no means withheld from the Commission…as such there is no sufficient warrant in the statutes for holding that the reasons given by the Commission are beyond its competence.

Roberts v Hopwood [1925] AC 578Facts: The Metropolis Management Act conferred power upon local councils to pay employees ‘such

salaries and wages as it thinks fit’. However, when a council increased wages by £4 a week, the district auditor disallowed the increase as ‘contrary to law’ and imposed a surcharge of £5000 on the council.

Held: The council had acted contrary to law.

- The council owed a duty to the district auditor to conduct their administration is a fairly businesslike manner with reasonable care, skill and causation. This duty is both a moral and legal one.

- The council did not properly exercise the discretion placed on it, but acted contrary to law.

An issue may arise no reason is given and there is no statutory obligation to give any - how far can a court go in drawing inference from what was not said?

In Public Service Board of NSW v Osmond it was held ‘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’.

It was further held in Lonrho plc v Secretary of State for Trade and Industry that ‘if all other known facts and circumstances appear to point in favour of a different decision, the decision-maker who has given no reasons cannot complain if the court draws the inference that he had no rational reason for his decision.

Failure to consider relevant matters – section 5(2)(b) of the ADJR Act A decision may be invalid where a decision-maker has failed to give consideration to a relevant

matter in reaching a decision: R v Australia Broadcasting Tribunal; Ex Parte Hardiman Section 5(2)(b) of the ADJR Act provides that an order of review can be sought in respect of

“failing to take a relevant consideration into account in the exercise of a power”. A breach of this ground by a decision-maker can be committed in either of two ways:

1. If there was an express or implied statutory obligation on the decision maker to consider a particular matter; and the decision maker fails to discharge that obligation.

2. Where there is a failure of a “duty to inquire”. i.e. by a failure of the decision-maker to conduct an inquiry to obtain potentially relevant information.

Obligation to Consider It must first be established that there was an express or implied statutory obligation on the

decision-maker to consider the particular matter in question: Sean Investments In the simplest situation, legislation will specify expressly the particular matters that must be

considered. Often, however, the legislation does not provide explicit guidance and the obligation to

consider a matter will have to be implied from the subject matter, scope and purpose of the statute: Peko

A core principle is that in respect of an unconfined discretion an obligation to consider a matter should not readily be implied: Sean Investments

Failure to consider Where a matter has been ‘considered’ by a decision maker has been a lively issue. Some cases

suggest courts being prepared to accept at face value an assertion by an official that a matter was considered, while other cases express more demanding standard, emphasising the obligation of a decision-maker to give ‘proper, genuine and realistic consideration’ to all relevant matters.

A special issue arises as to whether a senior decision-maker (e.g the minister) can discharge the obligation to consider relevant matters by adopting a summary or analysis undertaken by a subordinate officer. Generally, this approach has been adopted (Sean Investments). However, in special situations the function many be such or the legislation may indicate that the task of weighting up the issues should be undertaken personally by the decision maker.

Other issues A decision maker who has closed his eyes to what is in the filed cannot be excused on that

basis: the principle of constructive (or imputed) knowledge applies: Peko Wallsend

Just as a single irrelevant consideration can invalidate a decision, so too can a failure to consider a single relevant matter: Peko Wallsend

Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363Facts: The case involved a nursing home business. Under the National Health Act, the minister had

to approve before any increases in fees by the nursing home operators. Under the Act, the minister had a duty to enquire into any application for rises in fees. The minister set up a committee to enquire and the committee advised the minister to reject the fee increase…and the minister subsequently rejected the application.

Issue: Did the minister fail to take into account relevant matters?Held: The power conferred upon the Minister by the Act must be exercised personally by the

minister…however; this does not mean that the minister has to conduct the inquiry by himself.- The minister is entitled to establish a committee to conduct the enquiry.- By writing ‘agreed’ on the report prepared for the minister by the committee, the m inister had not

acted wrongly, and he was ‘fully entitled’ to decide to accept and adopt the report and recommendations of the Committee without examining the evidence for himself.

- However, in simply adopting the report and recommendations, the minister will also adopt any errors of law, including taking into account relevant considerations and failing to take into account irrelevant considerations, which might vitiate the Committee’s report.

- In relation to the particular case, the relevant considerations are not specified in the statute, and it is largely for the decision maker..the ground for failure to take account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24Facts: Peko-Wallsend, a mining company had an established mine in an area that was subject to a

land rights claim by an Indigenous group. The claim was initially sent to an Aboriginal Land Commissioner, who then made recommendations to the minister who had the ultimate decision making power. The Commissioner recommended that the claim should be allowed, but noted that PART of the area claimed included land where Peko had mining rights.

- The finding was based on erroneous facts…in fact; the claim included the WHOLE of the land in which Peko had mining rights for.

- The minister was unaware of the Commissioner’s misrepresentations and thus failed to take into account the real impact on Peko when deciding to endorse the recommendation of the commissioner and the department that the land claim be granted.

- Peko sought judicial review under the ADJR Act.Issue: Whether the minister should have taken into account the additional material about Peko’s

claims after the commissioner’s reports.Held: If there is in the possession of the minister, at the time of the decision, material, which show

that the position has changed since the Commissioner hade his report, or that the Commissioner’s comments were based on an erroneous view of the facts, the minister is bound to take that material into account.

- The following propositions are established in relation to taking into account relevant considerations:

1. The ground for failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments

2. What factors a decision maker is bound to consider in making a decision is determined by construction of the statute conferring the discretion. The statute may expressly state the considerations, or the considerations could be implied from the subject matter, scope and

purpose of the Act. Where the statute confers a discretion which in its terms in unconfined, the factors that may be taken into account in the exercise of the discretion are also unconfined, except so far as they may be found in the subject matter, scope and purpose of the act.

3. A factor might be so insignificant that the failure to take into account could not have materially affected the decision.

4. The courts function is NOT to substitute its own decision for that of the administrator by exercising a discretion which the legislature has invested in the administrator. It’s role is to set limits on the exercise of that discretion.

5. Broader policy considerations may be relevant to the exercise of ministerial discretion. - If there is some error that a party brings to the attention of the decision maker before the decision

is made, the minister has a duty to consider them, provided that the information is credible and not insignificant.

- Thus the minister has a duty to consider matters listed in the Act in light of all the facts available to the minister.

- The ultimate decision maker can rely on departmental summaries and recommendations, provided that they are not erroneous. The department has a duty to enlighten the minister of all the relevant information…the ignorance of the minister in considering all the relevant facts does not protect his decision.

In Hindi it was established that the decision maker must give ‘proper, genuine and realistic’ consideration to a matter.

Class 19 – Judicial Review Grounds: 4Readings: 14.1.1-14.1.2; 7.2.3C; 14.2.1 – 14.3.16 (Unreasonableness, irrationality and illogicality)

Re: MIMA; ex parte Applicant s20/2002 14.3.17 – 14.3.21 (Duty to inquire) SZEGT v MIMIA

Wednesbury Unreasonableness – section 5(2)(g) of ADJR Act An underlying expectation of government is that it will act reasonably or rationally.

Reasonableness and rationality are notions that are used differently in the legal concept than in the general sense. This is because in law you have to apply objective standards to there notions, whereas generally these words are used in a subjective manner.

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223Facts: The council, under the Sunday Entertainments Act, applied a condition to Wednesbury

Corporation (a licensed cinema) that ‘no children under the age of fifteen shall be admitted to any entertainment whether accompanied by an adult or not. The company sought a declaration that the condition was invalid on the basis of unreasonableness.

Held: A major feature of judicial review is that courts can only interfere in a matter if a decision maker has acted unlawfully.

- However this principle is vitiated if, even if the decision maker complied with the law, but came to a conclusion that is so unreasonable that no reasonable decision maker could even have come to it, then the courts can interfere.

- The question is not what the court sees as unreasonable, but rather the analysis is an objective analysis.

The development of Wednesbury unreasonableness Section 5(2)(g) of the ADJR Act provides that an order of review can be sought in respect of “an

exercise of power that is so unreasonable that no reasonable person could have so exercised the power.”

Early Australian case law denied that ‘unreasonableness’ was an independent ground of challenge. While this is not the case now, there is still a high bar in Australia for unreasonableness. This is evident in three ways:1. There has been very few cases where Wednesbury unreasonableness has been successfully

used to invalid a decision.2. “Unreasonableness” is usually used loosely to mean other grounds of review like irrelevant

consideration. 3. “Unreasonableness” is applied against the backdrop of the legality/merits distinction.

Re Minister for Immigration and Multicultural affairs; Ex Parte Applicant S20/2002Facts: Applicant challenged a decision by the RRT to reject a protection visa application. At the time

the Migration Act excluded challenges of decisions on the basis of unreasonableness. Thus the applicant framed the argument claiming that the tribunal’s decision was ‘irrational, illogical and not based upon findings or inferences of fact supported by logical grounds’.

Held: For judicial review, you need to prove a legal error – its not enough to show that its irrational or illogical – because these are subject notions. You have to show that there is an objective test to show it’s irrational/illogical. I.e. link it to a judicial review ground such as Wednesbury unreasonableness.

Illustrative Cases Most cases discussing unreasonableness do so in the context of rejecting the argument that it

has been breached. On the other hand, many cases in which unreasonableness has been found can probably be explained as satisfactorily by other grounds of legal error.

One rationale for a closer definition of Wednesbury unreasonableness is to lessen the risk that the principle will be applied inappropriately as a cloak for merits review.

Categories of unreasonableness include:- Lack of plausible justification

- Capricious use of power

Lack of plausible justification A theme common to many explanations of unreasonableness is that it applies where a decision

is irrational or devoid of plausible justification. That could suggest that the decision is irretrievably wrong or merely that the logic of the decision defies the known facts or explanation for the decision.

Parramatta City Council v Pestell (1972) 128 CLR 305Facts: A provision in the Local Government Act gave permission to impose a levy on land for works

done around it if ‘in the opinion of the council, the works could have a special benefit’ to the land. The council conducted building works and decided to impose a levy on land being used for industrial purposed but not for residential land. A levy was imposed on Pestell’s land even though it was residential because it had a workshop at the rear. Pestell challenged the decision.

Held: Even if a council has not erred in law, a decision may still be invalid if it is so unreasonableness that no reasonable council could have formed it. i.e. you can apply Wednesbury unreasonableness.

- I find it impossible to accept that in the circumstances of this case a council could reasonably have considered both that the land included in the levy derived a special benefit and that the blocks excluded from levy did not derive the same benefit.

Capricious use of power Judicial review is primarily concerned with the manner in which decision are made, not with

their substance or effect. Those qualities go more to the merits of a decision. A possible exception to that principle is that

Wednesbury unreasonableness can provide a basis for invalidating a decision that constitutes an abuse of power.

Edelsten v Wilcox (1988) 83 ALR 99Facts: Edelsten was not liked by people as he was controversial. S 213 of the ITAA 1936 requires

anyone who owes tax to the tax department can make an order to ‘garnish’ the person’s income to settle their debt. The commissioner for taxation made an order to pay 100% of his income to settle his tax debt. Elderston had actually lodged an appeal about the actual amount of the tax. The commissioner issued to order of garnish before the appeal was finalised.

Issue: was the order unreasonable?Held: section 213 conveys a broad power, but it is not intended to allow a citizen’s property to be

taken away arbitrarily. - An extraordinary power has been conferred on the commissioner, and it must carry with it a special

obligation to act in fairness and to have regard to the justice of the particular case. - Section 218 was not intended to become an instrument of oppression, to be utilised for a collateral

purpose. Nor was such a facility for the collection of tax intended as a means for the infliction of punishment upon a taxpayer.

- Further, you can’t deny a person’s right to appeal in relation to a determinative assessment of the amount owed to the ATO.

- The requirement to garnish 100% of income was so unreasonable that no reasonable person could have so exercised that power.

The finding of invalidity in Edelsten was based on a few features including:- The harsh impact of the decision on the enjoyment of other rights by the plaintiff- The special responsibility of a government agency to take account of the effects of its actions- The alternatives open to the agency to address the issue in dispute.

Wheeler v Leicester City Council [1985] 1 AC 1054Facts: The council prevented the local football club from using their grounds because the club

allowed its players to play in South Africa in light of human rights abuses there. Held: The Race Relation Act imposes obligations on the council and not the individual- The council can’t require individuals to display the same zeal that the council itself is required to

display.- In seeking to force individuals to comply with the Council’s obligations, the council acted

unlawfully.

Evidentiary Weighting In some circumstances a court may set aside an administrative decision which has failed to give

adequate weight to relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance: Peko-Wallsend

A decision may be invalid on the basis of wednesbury unreasonableness in relation to evidentiary weighting in the following cases:

- There is illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker’s own criteria: Taveli

- An official ‘simply brushes aside information specifically furnished by an interested party in respect of a central issue’ or ‘simply rejects the substance of an applicant’s case without giving reasons which can rationally support that rejection; or is ‘capricious and irrational, such that no reasonable person could ever have devised it’.

Duty to Inquire The general position is that there is no free-standing duty on an administrative decision-maker

to assist an applicant make the best possible application. In exceptional circumstances, there can be a duty on the decision maker to inquire into the facts

and circumstances of the case. Such a circumstance would arise ‘where it would be unreasonable for a decision maker to make a decision without obtaining information that was centrally relevant and readily available: Prasad

Prasad v Minister for Immigration and Ethics Affairs (1985) 6 FCR 155Facts: Prasad was a Fijian citizen who was deported voluntarily from Australia for overstaying his

visa. He then married an Australian citizen and wanted to get back to Australia. His application was rejected.

- The Review Panel interview both Prasad and the spouse separately and found factual inconsistencies. E.g. questions like what did you have for dinner last night?

- Upon these inconsistencies, the Panel refused to accept further evidence.Issue: Should the panel have inquired into the case?Held: A duty to inquire only arises in exceptional circumstances. - Usually, the decision maker doesn’t have to make a case for the applicant. - But in a case where it is obvious that material is readily available which is centrally relevant to the

decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have exercised it.

Thus to require a duty to inquire, there following three criteria must be met:- The information must be readily available- It is obvious that the information is readily available- The information is centrally relevant to the decision.

Case law on the duty to inquire has been muddied in the context of immigration decision making, by changes to the legislation since Prasad. Those changes spell out a statutory code to be followed by refugee and migration tribunals, and they specifically exclude Wednesbury unreasonableness and breach of natural justice as grounds for review.

SZEGT v Minister for Immigration and Multicultural and Indigenous affairs [2005] FCA 1514Facts: the applicant applied for a protection visa on the basis of political persecution. The applicant

produced a letter to the RRT from a lawyer confirming his testimony and the RRT was satisfied that he had been persecuted. However the tribunal decided that he was not persecuted for political reasons. The applicant argued that the RRT should have asked the lawyer about whether he had been persecuted for political reasons.

Held: The essential problem is that the grounds for review under the Migration act are very narrow.- if the decision had come under the ADJR Act for example, the application would have had a strong

case. - Provisions like section 424 don’t allow for judicial review on the basis for a failure to inquire.- Even if a duty existed of the nature claimed by the application, the RRT had not acted

unreasonably. This is because:1. The tribunal is not required to assist the applicant in making a case.2. The applicant could have asked his lawyer to include evidence about his political activities.3. The tribunal member is not required to imply things from the letter.

4. The tribunal was entitled to proceed on the basis that the applicant would select material to provide before the tribunal. It is improper for the tribunal to intervene to decide if more material should be considered.

Class 20: Natural Justice: 1 Readings: 10.1.1 – 10.1.12; 10.1.16C; 10.2.1 – 10.2.16C; 10.3.1 – 10.3.13C; 10.3.32C

Introduction Natural justice, often called procedural fairness, is a an administrative law concept, the breach

of which can lead to invalidity of an executive action. The essence of natural justice is that it stipulates standards and procedures to be observed in

administrative decision making. There are two elements of natural justice:

1. Prior hearing rule – requires the decision maker to give the person, whose interests will be adversely affected by a decision, a chance to make a submission in reply.

2. Bias Rule – A decision maker must be free of any reasonable suspicion or apprehension of bias, arising from circumstances such as the decision maker’s financial or person interests, prior expression of view or previous role in the decision to be made.

Section 5(1)(a) of the ADJR Act provides that an order of review can be sought in on the ground: “ that a breach of the rules of natural justice occurred in connection with the making of a decision”

The definition of natural justice is not defined in the ADJR Act, and as such the definition must be derived from common law.

In Plaintiff s157/2002 the court held “natural justice involves the absence of actuality or the appearance of disqualifying bias and the according of an appropriate opportunity to being heard…denial of natural justice or procedural fairness will ordinarily involve failure to comply with a condition of the exercise of decision-making power, and jurisdictional error.”

Rationale behind the doctrine In common law, the judiciary relied on information to be brought up by both parties, so you

need a mechanism to allow both parties to be heard. It enhances confidence in the decision making process.

When does natural justice apply? Legislation doesn’t spell out the process that needs to be undertaken in order to satisfy natural

justice. Before working out the process of natural justice, you have to determine of natural justice

applies in the first place. In most circumstances, the relevant legislation will expressly impose an obligation to accord

natural justice. In common law, the general proposition is that unless there is explicit provision otherwise, the

rules of natural justice apply.

The hearing rule – general tests Where legislation is silent on natural justice, the general proposition is that natural justice is

implied by the common law unless there is a legislative intention to exclude it. If the legislation excluded natural justice, it must do so in express words. It can’t be assumed or spelled out from indirect references.

The general idea is that the rules of natural justice apply to all governmental decision making unless expressly excluded. However there are several exceptions to this:

- It is generally accepted that an ob ligation to accord natural justice does not apply to decisions made by cabinet, to some exercises of prerogative powers, to decisions of a sub ordinate legislative character, not to at least some types of ‘policy’ and planning.

The first issue that is addressed in deciding if natural justice applies is whether the decision is a kind that will individually affect a right, interest or legitimate expectation of a person. If so, it is presumed that natural justice applies, unless there is something else to displace this presumption. This something else may be an express statutory exclusion, an alternative appeal right, the character of the decision-maker, the criteria for making the decision or the nature of the decision.

Thus some relevant factors that are to be taken into account in determining if natural justice should be afforded include:- Right, interest or legitimate expectation – the decision must adversely affect a right,

interest or legitimate expectation held by a person.

- Statutory exclusions - Statutory framework for making and reviewing decision - Criteria for decision - Nature of power being exercised- Character of the decision-maker- Effect or impact of decision – e.g. a the effect of a deportation order has a huge impact on

the applicant, and as such natural justice is more likely to be implied in such circumstances. - Circumstances that can affect whether natural justice applies – matters that involve

national security considerations, or the risk that providing a hearing will frustrate the objects of the statute will bear on whether natural justice should be afforded.

Kioa v West (1985) 159 CLR 550 headline case for procedural fairnessFacts: Kioa was a Tongan citizen who was in Australia on a student visa. He overstayed his visa. An

internal departmental paper prepared for the delegate and which recommended that Mr. Kioa be deported commented on two factors:

- He changed his address without notifying authorities - He actively involved with other illegal Tongan immigrants in Australia - Kioa was subsequently deported but he challenged the decision on the basis of denial of natural

justice. The HCA held that there had in fact been a breach of natural justice. Held: It is a fundamental rule of common law, that, generally speaking, when an order is to be made

which will deprive a person of some right or interest of 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.

- A ‘right or interest’ must be understood as relating to personal liberty, status, preservation of livelihood or reputation, as well as to proprietary rights and interests.

- Where the reason for a decision goes beyond the fact that the person is an illegal immigrant, and into reasons such as his conduct, heath or association, then as a matter of fairness, the person has right to be heard and explain his conduct.

- If the application is for a further temporary entry permit and it is made in circumstances which are relevantly similar to those in which the earlier permit was granted, the applicant may have a legitimate expectation that the further entry permit will be granted or will not be refused in the absence of an opportunity to deal with the grounds on which it is to be refused.

Brennan J: When a decision is made pursuant to a statute, the application of natural justice rules will depend on a large extend on the construction of the statute.

- There is no common law right to judicial review that stands independently of statute. You have to maintain the primacy of statute and reconcile the common law with statute.

- In most cases, a statute will not seek to exclude natural justice, but the question is usually ‘how does the statute influence the rules of natural justice?’

- Administrative decision making shouldn’t be dogged by irrelevant claims. The claim must have credibility, relevance and significance…thus the exercise of power must affect the individual’s rights and interests in a manner which is substantially different from the manner its exercise will affect the interests of the public.

- In the absence of clear contrary legislative intent, a person who is entrusted with statutory power to make an administrative decision which directly affects the rights, interests, status or legitimate expectations of another in his individual capacity (as distinct from as a member of the general public) is bound to observe the requirements of natural justice or procedural fairness.

- Failure to give Kioa an opportunity to comment constituted a breach of natural justice. FAI Insurance Ltd v Winneke (1982) 151 CLR 342

Facts: FAI had a licence to give insurance. The licence was given by the Governor in Council (GiC). FAI was refused a renewal of their licence due to financial concerns. They were not given a hearing.

Issue: Did the failure to afford a hearing accord to a failure to observe natural justice?

Held: The fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power. This extends to exercise of power that affects an interest of a privilege, deprives a person of a ‘legitimate expectation’.

- It is now authoritatively established that the exercise of a power revoking a licence 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.

- In this circumstance the appellant had a legitimate expectation that its approval would be renewed or at the very least that it would not be refused without its having an opportunity of meeting objections raised.

- Although renewal of licence will ordinarily attract the principles of natural justice, this is not necessarily the case with the initial granting of a licence.

South Australia v O’Shea (1987) 163 CLR 378Facts: O’Shea was convicted of indecent assault of children and sentenced indefinitely. The

constituent act provided that he could be released if the GiC was ‘satisfied’ on the recommendations of the Parole Board that the person ‘is fit to be at liberty’. The Parole Board recommended that he be released. The recommendations were considered by Cabinet who then recommended to the GiC that O’Shea not be released. O’Shea commenced proceedings claiming he was not afforded an opportunity to be heard before the decision was made.

Issue: Did O’Shea have a legitimate expectation t be heard?Held: The common law obligation of fairness mean the natural justice applies unless there is clear

statutory provision to the contrary. - Just because the matter involves some aspect of political or policy judgment, it does not mean that

it lies outside the ambit of the doctrine of natural justice or the duty to act fairly. - The act made it clear that the Parol Board’s report is ONLY a recommendation and that the

ultimate decision to be made rested on the Governor in Charge (GiC). - The natural justice requirement was satisfied by O’Shea being given the opportunity to be heard by

the parole board.- The only time the GiC would then have to afford a second opportunity to be heard, is if the GiC took

into account factors other than those in the recommendations of the Parole Board. Dean J (dissent): Natural Justice should always be applied where there is a political decision to keep

someone in jail indefinitely, against the recommendations of the parole board.

Who has the right to Natural Justice? In order for natural justice to apply, it must affect people affect the applicant’s ‘right, interest or

expectation’. In Kioa, Mason J stated:“the reference to ‘right or interest’…must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.”

Annetts v McCann (1990) 170 CLR 596Facts: The parents of two boys who had died while returning from being jackaroos wanted to make

submissions to a coronial inquest.Issue: Whether the rules of natural justice extended to the parents?Held: The case turned on who had a special interest in the case. - The appellants, as parents, have a common law right to be heard in opposition to any potential

adverse finding in relation to them and the deceased unless there is expresses statutory provisions to the contrary.

- Thus the parents didn’t have a general right to be heard, but in this particular case, they had a special interest…however their legal entitlement is confined to making submissions in respect of

matter which may be the subject of adverse findings against them personally or against the deceased.

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564Facts: Ainsworth group of companies claimed that they had been denied natural justice in not being

given prior opportunity to comment on a report from the commission, in which the commission recommended that it not be permitted to participate in the gaming machine industry.

Held: It has been long accepted that reputation is an interest attracting the protection of the rules of natural justice.

- In was held in Annetts that ‘personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made.

Legitimate expectation The doctrine of legitimate expectations entitled a person to be heard in opposition to a

proposed exercise of a statutory power if its exercise will deprive him or her of any right, interest, benefit or privilege which that person has a legitimate expectation of obtaining or continuing to enjoy: Haoucher v Minister for Immigration and Ethic Affairs

A legitimate expectation is a contingent right, and it’s a right to something in the future. The right is a legal right and gives rise to the right to be heard.

There are five main categories where a legitimate expectation may arise:

1. An expectation arising from a government promise or undertaking – Teoh2. An expectation that an existing licence will be renewed or that advance warning will be

given of the prospect of non-renewal – FAI Insurance 3. An expectation that n established liberty or interest will not be taken away or that a

beneficial recommendation will not be overturned- Heatley4. An expectation arising from a established course of practice – Quinn5. An expectation that an opportunity will be given to demonstrate compliance with the

statutory criteria for a benefit or concession.

Courts have also set two important limitations on establishing legitimate expectation:1. A legitimate expectation must be distinguished from a mere hope. The expectation must be

‘legitimate, reasonable or well founded’. 2. A legitimate expectation only gives a right to procedural fairness and not to substantive

enforcement of the content of the expectation – Quinn

Minister for State for immigration and ethnic affairs v Teoh (1995) 183 CLR 273 high court at its most judicially adventurous high point of legitimate expectation. Problematic because does not

go beyond the reasonable expectation barrier.Facts: A deportation order had been served to Mr. Teoh for drug offences. Mr. Teoh had seven

dependant children in Australia. The immigration department failed to invite Mr. Teoh to make a submission on whether the deportation order should be made. At this time, Australia had ratified UNCROC but not incorporated it into Australia law.

Issue: 1. Whether Teoh was given a fair hearing?2. What was the effect of Australia ratifying but not incorporating UNCROC (which states that the

children’s interests are paramount is any decision made.

Held: A treaty which has not been incorporated into out municipal law cannot operate as a direct source of individual rights and obligations under the law.

- However, where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is party.

- The ratification is a positive movement by the executive that the government will comply with the obligations under the treaty.

- For a legitimate expectation to exist, the expectation just to be reasonable…the applicant does not need to show that he had an ACTUAL expectation…just a reasonable expectation.

- if a decision maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected be given notice and an adequate opportunity of presenting a case against the taking of such a course.

McHugh J (dissent): no legitimate expectation arises in this case because: - the doctrine of legitimate expectation is concerned with procedural fairness and imposes

no obligation on a decision maker to give substantive protection of any right, benefit, privilege or matter. - ratification of the Convention doesn’t give rise to any legitimate expectation.

- As long as the decision maker has done nothing to lead a person to believe that a rule will be applied in making a decision, the rules of procedural fairness do not require the decision maker to inform that person that the rule will not be applied.==> mcgugh won lair.

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1Facts: While Mr. Lam was in prison, the Immigration department considered deporting him due to

his criminal convictions. The department wrote to him asking him of the details of the carer of his children so they can ‘assess his relationship with them’. The department did not follow up the children and proceeding to deport him.

Issue: You must be able to show that there was unfairness in the conduct of the department…not just a mere departure from a representation…there could have been a number of reasons why the department may have changed their plans, without necessarily having to inform the applicant.

- There is no evidence to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Now is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.

Re Minister for Immigration and multicultural affairs; Ex parte Miah (2001) 206 CLR 57Facts: the Applicant’s application for a protection visa was rejectedHeld: While it is true that the existence of appeal or review rights may affect the extent to which the

requirements of natural justice apply at an earlier level of decision-making, there is no general rule that a right of appeal or review necessarily denies or limits the application of the rules of natural justice.

- The presence 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:

1. The nature of the original decision: preliminary or final – natural justice requirements are less likely to attach to decisions that are preliminary in nature.

2. Original decision made in public or private – natural justice can apply to preliminary decisions made in private that damages a person’s reputation: Ainsworth

3. Formalities required for original decision – formal procedures required in the initial decision-making stage supports the fact that the appeal is not the sole source of procedural fairness.

4. Urgency of the decision 5. Nature of the appellate body – judicial, internal, ‘domestic’ – if the appellate body is a

court, it is easier to infer that the right to appeal was intended to limit or exclude the rules of natural justice at the earlier level.

6. Breath of appeal 7. Nature of the interests and subject matter

- Balancing the factors above in relation to these 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 in the manner asserted.

- the main question remains whether there has been unfairness to proceed on the grounds of procedural fairness. (Teoh had suffererd a theoretical injustice and not a practical injustice.)

Class 21 – Natural Justice: 2Readings: 10.4.1 – 10.4.22

Applicant VEAL of 2002 v MIMIA; NAIS v MIMIA; SZEGT v MIMIA; SZBEL v MIMIA

The hearing Rule – Contents The essence of natural justice is that a person should be given a hearing before a decision is

made that adversely affect a right, interest or expectation which they hold. The steps in applying for review on the basis of natural justice consists of:

1. Prove that Natural Justice applies

2. Prove that the hearing rule applies.3. Prove the contents of the hearing rule.

In deciding the contents of the hearing rule, there is no rigid, inflexible rule in relation to the hearing rule. The essence of the rule is their flexibility. E.g. in some circumstances a hearing can be in the form of an oral hearing, while in other cases it could be a hearing on the papers.

The contents of the hearing rule depends on several factors including:- The statutory framework- The circumstances concerning the individual decision to be made- The subject matter of the decision- The nature of the inquiry- The rules of the tribunal

Once you are able to show that the prior hearing rule apples, there are generally 3 minimum requirements that must be met by the decision maker:

1. Prior notice that a decision will be made; adequate time to prepare a case2. Disclosure of an outline or the substance of the information on which the decision is

proposed to be based; and complaint in reasonable peculiarity to know the case they have to meet. You have to disclose allegations that are relvant and material.

3. An opportunity to comment on that information, and to present the individual’s own case.

Practical requirement for procedural fairness get relief. You don’t need to demonstrate that there would have been a different result. The practica requirement is for procedural fairness.

A breach of any of these by the decision maker will result in a remedy against the decision maker. The only time a breach will not result in a remedy is when the breach would have had no bearing on the outcome of the case: Stead v Statement Government Insurance Commission

Who is required to conduct the hearing? As a general rule, natural justice does not require that the hearing (whether it be written or an

oral hearing) be conducted by the decision maker. If is sufficient that the aggrieved person is given a proper hearing, and that the decision-maker is fully aware of everything that was said.

Thus the ultimate decision maker may delegate the function of affording a hearing to a different officer.

However, where the hearing is conducted by another officer, there are several requirements:1. The decision-maker is fully informed of the evidence and submissions arising from the

hearing: Arlidge 2. If any significant new information comes to light after the hearing is conducted, the

aggrieved person is to be given a further hearing on that information: O’Shea3. If the summary of the hearing (or briefing paper) contains an adverse allegation, it is to be

disclosed to the aggrieved person and an opportunity is given to comment: Kioa Where the body is a traditional judicial body, such as a court or tribunal with more formal

processes, the general presumption is that the body cannot delegate any part of the hearing rule.

The requirement to give prior notice of the decision There is no prescribed form, nor are there any formal requirements, with which a notice has to

comply: it simply has to be a notice that is prior to the decision and adequate in the circumstances.

The general requirements of a notice include:- It must be in writing- It must contain details of the date and place of the decision or hearing.- It must give adequate time for the applicant to prepare a case.

- It must contain adequate specifications of the complaint (i.e. the charge, order, proposal, resolution, or other finding).

What is adequate notice will vary according to the circumstances of the case. A higher level of detail is required in cases where a person’s livelihood or liberty is at stake.

Cases such as Kioa have emphasised that the obligation is to disclose only allegations that are ‘credible, relevant and significant’.

If expert information is clearly prejudicial to an applicant’s case, the applicant may need to be given an opportunity to adduce evidence to contradict it: Kioa

Information of a notorious kind (e.g. that found in standard texts or that is a matter of notorious professional practice) does not have to be disclosed in the notice.

There is a contentious subject of disclosure of information supplied in confidence. Where release of the information could cause harm, the compromise may be that the material is disclosed only to the person’s legal representative.

The conduct of the hearing: oral hearing or written submissions 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 required only if there are matters of credit, veracity or reputation

involved, where there are disputed matters of facts or inconsistencies in evidence that have to be resolved, or where there is evidence of a kind that a party should have an opportunity to test, including expert evidence, or witnesses to be cross-examined.

Oral hearings: legal representation – section 71 of the ADJR Act There is no absolute right to representation even where livelihood is at stake. But that is not to

say that in all cases a tribunal can refuse it with impunity. The seriousness of the matter and the complexity of the issues, factual or legal, may be such that refusal would offend natural hearing principles – Cains v Jenkins

There is however, a common law right to be represented at a hearing by an agent. However, as this is a common law right, it can be excluded by statute.

Section 71 of the ADJR Act gives a broad right to legal representation. Section 427 of the Migration act however prevents a person before the RRT to be legally

represented. The factors that would have to be considered in deciding if legal representation would be

permitted under common law include: the person’s ability to understand the nature of the proceedings and the issues, the person’s ability to understand and communicate effectively in the language employed in the tribunal, the legal and factual complexity of the case, and the importance of the decision to the person’s liberty or welfare.

Cross examination Generally cross examination will only be required if a tribunal ‘is hearing contested claims in

what may be called an adversarial situation, so that its proceedings are analogous to court proceedings – Hurt v Rossall

Another circumstance mentioned in cases is if it is important for the reliability or veracity of a witness to be tested.

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous AffairsFacts: Mr. Veal and his wife unsuccessfully applied for a protection visa. The department received a

letter alleging that Mr. Veal had confessed to killing a political figure. The author of the letter asked the information to remain confidential.

- The department told the tribunal, however neither the department nor the tribunal informed Mr. Veal of the existence of the letter nor the allegations contained within it.

- The tribunal upheld the decision of the department, but in giving its decision, said that it gave no weight to the letter.

Issue: In failing to inform Mr. Veal about the letter, was procedural fairness denied?Test: must disclose any info that is adverse to the applicant that is credible, relevant and significant

to the decision maker. If it is info that cannot be dismissed from further consideration then you have to disclose it to the applicant. Threshold for credibility is low, as long as its reasonably credible.

HCA: Held that the tribunal should have informed Mr. Veal of the existence of the letter and the contents of the letter.

- The information was ‘credible, relevant and significant’…and as such the tribunal was required to give Mr. Veal an opportunity to be heard.

- The fact that the tribunal decided the matter on other grounds does not discharge its obligation to afford the application a right to be heard.

- Even if the tribunal decided on other grounds, it does not negate the problem that the tribunal may have been sub-consciously prejudiced by the letter.

- The requirement for procedural fairness and the requirement to afford an individual a right to be heard depends on the individual circumstances of the case.

- The material in the letter had a central impact on the issue at hand.- The tribunal had to balance the competition rights of confidentiality and a right to a fair hearing…

however the tribunal, in informing Veal of the letter did not have to disclose who it was sent by nor when it was sent etc…it is sufficient is it informs the applicant that a particular letter with certain claims have come to light and asks the to explain the claims. i.e. use a summary .

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77Facts: 3 Bangladeshi citizens applied for a protection visa in January 1997.- May 1997 – the application was refused, and the applications applied to the RRT- 6 May 1998 – the parents give oral evidence before the RRT- 30 Nov 2001 – the RRT invited the family to attend a hearing on 19 Dec 2001.- the RRT also requested country information in the Australian High Commission in Bangladesh. 14 June 2004, after almost three years, the RRT rejected the application.Issue: Did the delay by the RRT amount to a denial of natural justice?Held: Prolonged delay in the making of a decision can amount to a breach in natural justice. - Not all delays will amount to a denial of Natural justice. - the decision of the tribunal depended highly on the credibility of the applicant. The delay meant

that the credibility couldn’t sufficiently and fairly be judged. Thus delay prevents tribunals from performing its duties properly, and thus it will be a breach of natural justice.

- On the face of things, the initial decision has a higher advantage in terms of getting evidence relating to credibility etc.

- If the initial decision maker misuses that advantage, they may be denial of judicial review.- applicants had nothing, execisive delay etc no case law used. This was an exceptional case

because it had been so long since the lodging of the

SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514Facts: A Nigerian asylum seeker applied for a protection visa on the basis of political persecution. He

submitted a letter to the Tribunal from his lawyer in Nigeria backing up his claim. The Tribunal contacted the lawyers. During the correspondence, the Tribunal failed to confirm with the Nigerian solicitors that the persecution was for political reasons. As such the Tribunal accepted

that he had been persecuted, however, failed to accept that his persecution was for political reasons.

Issue: The applicant is entitled to any adverse conclusion drawn by the Tribunal on material supplied by or known to the appellant which was not an obvious and natural evaluation of that material – Kioa.

- Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affect by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker: Alphaone

- Procedural fairness however, does not extend to require the Tribunal to give the appellant a running commentary on his prospects of success, warning him of every reason why his claims might not be thought sufficient to justify the grant of a visa.

- Thus procedural fairness did not require the Tribunal to taken upon itself the role of acquiring further information to bolster the appellant’s case.

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63Facts: SZBEL was an Iranian seaman who jumped ship in Port Kembla in 2001. He applied for a protection visa on the basis of religious views. The RRT upheld the Minister’s rejection of the application based on several main issues: - The captain of the ship heard of the conversation the applicant had with other seaman

about his religious views and did not do anything. - If the captain was going to turn him into authorities, he would not have let the applicant

jump ship the way he did. - SZBEL sought judicial review on the ground that the tribunal had denied him procedural fairness by

not putting to him the critical factors on which the decision was likely to turn. Held: - If the tribunal takes no step to identify some issue relevant to the application other than those

that the delegate considered dispositive, and fails to inform the applicant, an applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review", pursuant to the Migration Act 1958 Cth, s 425(1).

- Unless the tribunal identifies additional issues, it would ordinarily follow that the issues arising in relation to the decision under review would be those that the original decision-maker identified as determinative against the applicant

- In this case, two of the three reasons considered to be in issue by the tribunal were not relied upon by the delegate in refusing to grant the applicant a visa. The tribunal did not give the applicant notice of those reasons that, only in the application for review before it, had become live issues; nor was he given the opportunity to provide evidence in relation to them. Therefore, the tribunal failed to accord the applicant natural justice.

Class 22: Natural Justice: 3Readings: 10.5.1 – 10.5.25C

Johnson v Johnson (2000) 201 CLR 488

The rule against Bias The second aspect of natural justice requires the decision madder to be impartial – i.e. free

from bias. It is assumed in most cases that the bias rule applies universally to all administrative decision

making. In order not to disadvantage the claimant the decision-maker must be disinterested in the

matter at hand, and the absence of bias maintains that standard of probity and fair play which promotes confidence in the institution.

Bias is deemed to be present when a decision maker had some direct pecuniary or family interest in the outcome of a decision, or exhibited actually hostility or lack of impartiality towards an applicant or a witness.

Being unbiased means that the decision maker has a mind that is open to persuasion. However, this doesn’t mean that they have an empty mind – e.g. tribunal members, over the course of their career will develop a large amount of background knowledge into their area of speciality. E.g. RRT members would have a large area of expertise in the area of migration and refugee cases which may influence the way they decide a particular case.

There are two principal consequences of a finding of bias. A person who may be biased in relation to a matter may not participate in decision-making concerning that matter. A second consequence is that a decision by a person who was biased will be invalid.

Categories of bias There are two categories of bias:

- Actual Bias- Apprehended Bias

Actual bias – is present when a decision-maker’s mind is so closed to persuasion that argument against that view in effectual. Bias of this kind is very difficult to prove. Jia.

Apprehended Bias – occurs where “a fair minded may 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: Ebner

There are many circumstances in which bias can arise. There are four main categories of actual bias that were established in Webb v R:

- Disqualification by interest – where the decision maker has some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgement.

- Disqualification by conduct – where the conduct of the decision maker gives rise to such an apprehension of bias.

- Disqualification by association – where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contract with a person or persons interest in, otherwise involved in the proceedings. E.g. family members being involved/having an interest in the proceedings.

- Disqualification by extraneous information. The following are some examples of the kinds of circumstances which one within the categories

listed above:- Where a decision maker, adjudicating a dispute between two or more parties,

communicates privately with one party, even though there may be no improper motive for doing so: Re JRL; Ex parte CJL

- When a decision maker is both prosecutor and judge: Ex parte Qurban- If the decision maker appear to have views which suggest they may pre-judge the

outcome: Koppen v Commissioner for Community relations.- Where a decision maker exhibits towards a party or a witness in a hearing either strong

animosity or hostility or partiality or favouritism : Vakauta v Kelly- Where there are close family or person relationships between the decision maker and a

party: Hot holdings The judge must disclose all possible apprehended bias at the beginning of the case. IF the

parties then have no problems with the information that is disclosed, the parties are then considered to have “waived” the apprehended bias.

If the parties are in a position to object to a judge sitting in on a case, and fails to say anything then you are seen as having waived the right disqualify the judge.

Disqualification by Interest An interest could by a financial interest (shares in a company, beneficiary of some investment,

granting of land rights etc). Before Ebner, ANY financial or pecuniary interest meant automatic disqualification Since Ebner, the HCA has held that an automatic disqualification is not effective as some

financial interest may not bear any form of bias, while other interests that are not financial that may bear some sort of bias can slip though the test.

Thus now, all other interest are also taken into account, and a financial interest does not mean automatic disqualification.

Disqualification by association Relationships such as person, family relationships, political party membership may all cause

disqualification by association.

Disqualification by conduct In the past, expressed statements may result in impartiality. In Johnson v Johnson the judge

stated that he wasn’t going to rely on either party’s submission, but rather on evidence obtained extrinsically. However, the court decided that this was not expressing a concluded decision and such amounted to no bias on the basis of conduct.

The test for prejudgement Prejudgement is present 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. The test uses the “fair minded lay observer test” thus is an objective test :Ebner

There is no need to show actual absence of impartiality; the test is the impression the reasonable person would have in the circumstances.

If that impression is that there is a possibility (as distinct from ‘likelihood’ or ‘real danger’) of bias, that is sufficient.

The bias doesn’t have to be in favour of or against either party. It must simply appear that the decision maker lacks impartiality.

There are two elements to be established for a finding of prejudgement: the first is to identify what is the behaviour which might lead to a decision on other than its ‘legal and factual merits’; the second is to show how this behaviour is connected as a matter of logic with a biased outcome: Ebner

The attributes of the ‘fair minded lay observer’ include:- They are not lawyers but are not unaware of the basic legal issues- A fair understanding of the general circumstances- Neither too complacent nor too hasty to come to a conclusion: Johnson v Johnson

In deciding apprehended bias cases, the employment of the ‘fair minded lay observer’ is done to objectify the test.

Prejudgement 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 vABT

Expressions of tentative views about an issue is not prejudgement: Vakauta

Exceptions to Bias cases Notwithstanding that bias has been established, there may be circumstances which prevent the

finding leading ti invalidity. These defences to bias have been identified as necessity, waiver, consent and statutory

modification. If there is no other judge that can hear the case, then even if there may be aspects of

apprehended bias, the judge or decision maker will still be able to sit in on a case. Case of CLENAE: There is a potential for actual bias Simon thinks that the textbook is wrong

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337Facts: The trial judge disclosed during the trial that he was a beneficiary under a family trust that

held 8000 shares in a band that was a creditor in bankruptcy proceedings being heard by him. The value of the shares would be unaffected by the outcome of the case. A relative of the bankrupt objected to the judge hearing the case. The HCA held that there was no apprehended bias. POTENTIAL OF ACTUAL BIAS BECAUSE JUDGE HAS INTEREST. JUDGE DISCLOSES THE INTEREST TO THE PARTIES BEFORE THE CASE AND PARTIES OBJECT BUT THE JUDGE REFUSES TO STAND DOWN.

Held: 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.

- The question in dealing with bias is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the ACTUAL thought process of the judge or juror.

- The determination of apprehended bias requires two steps: 1. Identify what is said that might lead a judge to decide a case other than on its legal or factual

merits. 2. There must be a logical connection between the matter and the feared deviation form the

course of deciding the case on its merits. - There are four overlapping categories of disqualification on the basis of bias – by interest, conduct

association and extraneous information. - There is no 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. The only time disqualification will arise is where the outcome of the case might influence the judge’s interests.

- In the particular case, there is no apprehended bias.

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507Facts: the minister made a decision under s501 of the Migration Act having the effect that Mr. Jia

was not permitted to remain in Australia due to his criminal convictions. The AAT reversed the decision of the minister. Prior to making those decisions, the minister in a radio interview had commented adversely on the tribunal’s lenient treatment of criminal deportees.

Held: In dealing with bias, the question is NOT whether a decision maker’s mind is blank; but rather if it is open to persuasion.

The question is not whether the decision maker’s mind is blank but whether it is open to arguements

- The state of mind described as bias in the form of prejudgement is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

- The powers given by s 502 require the minister to consider the national interests. As the minister, while the rules of bias apply equally to him, the minister is allowed to consider public policy in making his decision.

- In assessing how rules about bias or apprehension of bias are engaged, depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration how the decision maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision maker.

Vakauta v Kelly (1989) 167 CLR 568Facts: The High Court held by majority that proceedings before a judge of the Supreme Court had

miscarried by reason of ostensible (though not actual) bias arising from comments made by the trial judge.

Held: Where a trial judge, accustomed to hearing the testimony of medical practitioners in personal injury and workers' compensation actions, expressed in a reserved judgment praise for one medical witness and colourful criticism of other such witnesses based on his past experience of their manner of giving evidence and of its quality, there was ostensible bias leading a reasonable observer (not being an experienced lawyer) to apprehend that the judgment was influenced and tainted by preconceived views.

- Where comments, likely to convey an impression of bias to reasonable members of the public or to the parties, were made by the judge during the course of the trial and were not then objected to, the defendant considered to have waived to right to seek remedies on the basis of bias and they were not open to objection once the final judgment was delivered.

Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438Facts: Hot holdings, obtained a licence from the Minister for Mines under the Mining Act. Two

officers involved in the process had a pecuniary interest in the outcome. The officers had share in a company that had options to buy shares in Hot Holdings. This minister had no knowledge of this interest.

Issue: Should the decision be invalid on the basis of bias?Held: In deciding whether the conduct or circumstances of a person other than the decision maker

amounted to bias, each case will turn on its own facts and circumstances.- In this particular case, the minister didn’t know about the financial interests of the officers. - The role of the two officers were peripheral, and they did not participate in a significant manner in

the making of the impugned decision…as such there was not apprehended bias.

It is often very tough to balance between complying with decisions making processes and preventing apprehended bias. This is especially the case in non adversarial decisions – e.g. in the MRT where no one from the Department is present to hear the case. Thus the judge must ask touch questions, which may then seem to be perceived/apprehended bias.

Johnson v Johnson (2000) 201 CLR 488

Facts: During the respondent's evidence, the trial judge said that he would "be looking, insofar as it is possible, to independent evidence". Before the appellant gave evidence, the judge said that he would "rely, principally, on witnesses other than the parties in this matter — and documents — to determine where the truth lies". Refusing an application by the appellant to disqualify himself for bias after this second statement, the judge said he was not predetermining the credibility of either party, but that "that the other evidence was important in determining the credit of one or other of the parties"

Held: The effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it.

- In the context of previous statements and the later explanatory statement, the judge's statement giving rise to the application for disqualification was not to be understood as intending to express a settled view on the credibility of either party.

- Any apprehension that the judge had formed a concluded view on the credibility of witnesses, and would not bring an open mind to bear when he decided the case, was unwarranted and unreasonable.

Class 23: Remedies 1Readings: 16.1.1 – 16.4.12 (the prerogative/constitutional writs)

16.6.1 – 16.7.10 (Declaration and injuction)

Introduction The prerogative writs of certiorari, prohibition, mandamus and habeas corpus; and the

equitable remedies of declaration and injunction as well as some extra remedies available under the ADJR Act are all available to applicants that seek judicial review.

The above writs have the following effects:- Certiorari – quashes the original decision - Prohibition –restrains an inferior court from exceeding its powers- Mandamus – orders an executive officer or a body to perform its public duty- Quo warranto – requires a decision-maker to show by what authority he/she held the

office.- Scire facias – requires a person to show cause why a judgment should not be enforced- Ex exeat regno – requires that a person not leave the realm- Habeas corpus – requires that a person unlawfully detained be released

When applying to obtain a remedy, you must elect whether or not the ADJR Act applies or if the remedies are constitutional/prerogative. The ADJR Act contains a wider array of remedies than common law remedies.

If the ADJR applies, the remedy will be an ADJR Act remedy (Under section 16 of the ADJR Act). If the common law applies, the remedy will be a constitution remedy under section 75(v) of the

constitution.

In seeking a remedy, the applicant appears before the court ex parte (without the other party present) to obtain a rule nisi calling on the government officer or body, to whom the rule is to be directed, to show cause on a named day why the writ should not issue. On that day both sides appear and argue the case. In making its decision the court either discharges the rule nisi, that is, rejects the application, or makes it a rule absolute, that is, grants the remedy sought.

The Federal Court is under both the ADJR Act and the Judiciary Act. Under the ADJR Act, it can dispense ADJR Act remedies, and under the Judiciary Act it can issue constitutional writs.

Where the high court is exercising its original jurisdiction, it can only issue constitutional writs under section 75(v) of the Constitution. However if it is hearing an appeal from the Federal Court or the Supreme court on a matter arising under the ADJR Act, it can then issue ADJR Act remedies.

Equitable writs of declaration and injunction have several advantages over constitutional write because they are more flexible in terms of time limits, and also they can be used without differentiation in private law and public law (while constitutional writs can only be used in public law).

Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82Held: The HCA judges stated that the writs under the constitution under section 75(v) should not be defined as prerogative writs, but rather constitutional writs. The preference for ‘constitutional’ writs is because prerogative now can be overridden by statute, while constitutional writs can’t be.

Certiorari A writ of certiorari enables a 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. Certiorari can be directed to administrative decision-makers, yet common use of the writ is still

against inferior courts and tribunals: Craig Certiorari is granted only where there is a decision that has a ‘discernible or apparent legal

effect upon rights’, that is, something that can be quashed: Hot Holdings.

Certiorari can only be directed to bodies that have ‘legal authority’. Originally this was taken to mean statutory bodies, however, bodies established under the prerogative can also be subject to certiorari: Ex parte Lain

While certiorari isn’t explicitly stated in section 75 of the constitution, the majority of judges have held that certiorari is always implied into section 75: Bodruoday

The decision or error of law must have some sort of legal effect on individual rights. E.g. the HCA in Ainsworth held that the recommendation by a delegate to the minister to disallow Ainsworth to participate in the gaming industry was a denial of natural justice. However, the HCA held that the recommendation itself has no legal effect and carried no legal consequences, direct or indirect. As such the HCA issued a declaration that there had been a breach of natural justice.

R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1951] 1 KB 338Facts: Mr. Shaw contended that compensated awarded by the Tribunal was not sufficient as it did

not include certain aspects of his work. The King’s Bench Division agreed that the tribunal had made an error of law, but denied certiorari on the basis that the error was not a jurisdictional error. On appeal, the Court of appeal held that certiorari could be used to quash an error of law on the fact of the record, regardless of whether the error was jurisdictional or non-jurisdictional.

Held: Certiorari can be used to correct errors of law which appear on the face of the record, even if they do not go to the jurisdiction…however, its only available for errors of law that appear on the ‘face of the record’.

- ‘face of the record’ includes documents which initiates the proceedings, the pleadings and the adjudication (the order). Errors of law made in making and dealing with these documents can attract a writ of certiorari.

- The record however, does NOT include evidence or reasons, UNLESS the tribunal chooses to incorporate them into the documents that comprise the record. In such cases, certiorari can be used.

- There must be a sufficient nexus between the decision and the reasons for the order. Thus things like interlocutory remarks will not be sufficient to seek a remedy of certiorari.

Craig v South Australia (1995) 184 CLR 163Facts: Craig was charged with motor vehicle offences. Applying Dietrich v R, the trial judge ordered

that the trial be stayed until legal representation was made available to him. The state applied to the Supreme court for an order in the nature of certiorari to quash the order of the District Court. On appeal, the HCA held that an error by the District Court was neither a jurisdictional error nor an error on the fact of the records.

Held: Certiorari provides relief where there has been a denial of procedural fairness, fraud, and ‘error of law’ on the face of the record.

- In relation to errors on law in the face of the record, the superior court is restricted to analysis of only the ‘record’ of the inferior court or tribunal…the record of an inferior court for the purposes of certiorari does not ordinarily include the transcript of the reasons for the decision, unless those reason are actually part of the order.

- Thus the qualification should be understood as referring only to so much of the reasons or transcript of proceedings as it referred to in the formal order in a way which brings about its incorporation as an integral part of that order and ‘the record’.

Prohibition

The writ of prohibition is granted by a superior court to restrain a body from exceeding its powers.

Unlike certiorari, prohibition is NOT available for errors of law on the face of the record. It is only available for a jurisdictional error and breach of natural justice: Aala

Writs of prohibition lie only in respect of acts to be done judicially. Acts which are ministerial in their nature, or administrative only or amount to the exercise of subordinative legislative power are not subject to this writ: R v Wright; Ex parte Waterside Workers’ Federation of Australia

Prohibition is not constrained to the same extent as certiorari by the requirement that a decision have an apparent or discernible effect upon legal rights. The issue rather is whether there is jurisdictional error and if so whether relief should be granted to the applicant before the court.

Mandamus The writ of mandamus is granted by a superior court to command the fulfilment of a duty of a

public nature that remains unperformed and for which no other specific legal remedy is available: Bott

Mandamus is sometimes sought in conjunction with other writs. For example an applicant may seek certiorari to quash the decision, and a mandamus to compel the decision maker to make a new decision.

The central issue is any application for mandamus is where there is a public duty that remains unperformed. This can arise in one of four ways:1. In the simplest case, legislation will impose a non-discretionary duty that is to be performed

once certain facts are established (sometimes called ministerial duties). E.g. a duty imposed by legislation to register a vehicle that complies with registration requirements.

2. Where decisions involve discretion on the part of the decision maker, a court will grant mandamus to compel a fresh decision or exercise of power, but not the exercise of power in a particular way: Randall. Exceptional situations however arise, in which a court will grant mandamus to direct how a discretionary power shall be exercised on a particular occasion: Royal Insurance

3. A mandamus could be granted to compel another court either to exercise a jurisdiction that the court declined to exercise, or to compel the court to exercise the jurisdiction differently (for example, to observe natural justice, or to construe a legislative provision differently): Ozone theatres.

4. Mandamus has also figured in many cases where the very existence of a public duty is the dispute issue in question. E.g. an enforceable statutory duty to connect telephone services: Yamirr

R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres Facts: The Arbitration court was authorised under the Commonwealth Conciliation and Arbitration

Act, to make an order or award altering the basic wage or the principles upon which it is computed. The Court declined to determine an application made to it, on the basis that the application did not seek an alteration to the basic wages or the underlying principles.

Held: The application was of the kind that it had jurisdiction to administer, and thus a mandamus should be directed at the Court requiring it to exercise its jurisdiction.

- where a jurisdiction is created for the public benefit or for the purpose of conferring rights or benefits upon persons the court, upon an application properly made is not at liberty to refuse to deal with the matters.

- However a mandamus cannot be made in relation to a superior court decision. However the exception arises, where the High Court can issue a mandamus to Chapter 3 Courts. This is because section 75(v) of the Constitution allows mandamus to be granted to Commonwealth officers.

Chapter 3 courts are under the commonwealth jurisdiction and as such the judges in Chapter 3 courts are “Commonwealth Officers”. As such a mandamus can be issued.

Commissioner of State Revenue v Royal Insurance Aust ltd (1994) 182 CLR 51Facts: Royal insurance overpaid nearly $2 million in stamp duty on worker’s compensation

insurance. The Stamps Act authorised that the commissioner MAY refund any overpayments. The commissioner however refused to do so claiming that Royal Insurance had already recouped the overpayment from its policy holders.

Held: The HCA held that this reason was not a proper basis for refusing a refund, and issued a mandamus to compel the commissioner to make a refund.

- The definition of ‘May’ implies some discretion. However, how much discretion is given will depend on the circumstances of the case.

- The court should be extremely reluctant to adopt any construction of the Act which would enable the Commissioner by an exercise of discretionary power to defeat taxpayers’ entitlement to recover an overpayment of duty.

- Mandamus requires the exercise of the relevant statutory discretion rather than its exercise in a particular way…however if the exercise of a statutory discretion according to law requires the administrator to decide in particular way, then mandamus will also issue to command the administrator to act accordingly.

- In principle, there can be no objection to the grant of relief by mandamus directed to a statutory officer to pay money if there be a public legal duty to so act.

Injunctions An injunction is an order made by a court, in its equitable jurisdiction, requiring a party either to

do a particular thing (a mandatory injunction) or to refrain from doing a particular thing (a prohibitory injunction).

An injunction is both a private law and public law remedy. There are several features of injunctions that make them an attractive remedy to seek:

Firstly, an injunction can be granted in an interlocutory (interim) or perpetual form. As an interlocutory order, it can be sought urgently, ex parte and in chambers, to maintain the status quo pending final determination of the substantial issues in dispute.

- The threshold test is whether there is a ‘serious question to be tried’ and the balance of convenience favours the granting of the injunctions: Australian Course Grain Pool v Barely Marketing Board.

Secondly, an injunction is a coercive remedy – a person in breach can be committed for contempt of court, leading to indefinite detention.

Injunctions are not limited with the same restrictions or inadequacies as prerogative writs. Injunctions can be used against the Attorney General or a local council to prevent a

threatened interference with public rights The coercive nature of an injunction is also an influential discretionary constraint on the remedy

being granted. Generally, an injunction will not be granted if there is a suitable alterative remedy such as a prerogative writ or the prospect of a tort action providing adequate recompense by an award of damages.

Declaration A declaration is a coercive statement b a court of the pre-existing rights of the parties. Unlike other remedies, a declaratory order is not coercive – of its own force it does not compel

or restrain a party to do or not to do something. However, almost always, a government that has had a declaration made against it, will act in accordance with the declaration.

Declarations, like injunctions can be varied and flexible and the only constraints on a court’s power to grant a declaration are discretionary in nature

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421Facts: Mr. Foster applied to a mining warden for an authority to enter land to search for minerals.

The Mining Act provided that the warden could not grant such an authority if an exploration licence in respect of that land had earlier been issued to another person. Jododex sought a declaration form the New South Wales Supreme Court that is held such a licence. Mr. Forster objected that a declaration in those terms should not be made in advance of the warden first reaching a view on the issue. The court rejected Mr. Forster’s contention.

Held: The jurisdiction to make a declaration is a very wide one. However, the jurisdiction may be ousted by statute, although the right of a subject to apply to the court for a determination of his rights will not be held to be excluded, except my clear words.

- In seeking a declaration, the application must have a real interest in the matter.

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559Facts: The RRT rejected an application for a protection visa from Mr. Guo. On appeal, the full

Federal Court held by majority that the tribunal had erred, and the court made a declaration that Mr. Guo was entitled to a visa.

Issue: Is this a lawful declaration? Held: The RRT did not make an error of law, but event if it did, a declaration of the kind given was

invalid. - Declarations must be tightly worded. They must be very clear, and must show conservatively what

are the specific rights entitled to they party. - Judicial review is designed, fundamentally, to uphold the lawfulness, fairness and reasonableness

(rationality) of the process under review. It is thus ordinarily an adjunct to, and not a substitution for, the decision of the relevant administrator.

- The particular declaration in question burred the distinction between judicial review and merits review. The Migration Act explicitly provides powers to the minister to make decisions regarding cases involving protection visas. The minister is given powers to act to ‘his satisfaction’ and thus display some sort of discretion while undertaking his role.

- the court is not allowed to make a decision for the minister. It’s role is merely to decide if in making his decision, the minister has committed an error of law.

- A 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 decision. Nor should it be made where, on its true construction, the Act conferring power on the primary decision-maker makes it clear that such decision-maker, and it along, is the recipient of the power to make the decision in question.

A declaration can be issued at any stage of a proceeding : Croome v Tasmania A declaration can similarly be useful where there is a legal right to be vindicated, even though

perfect justice is unobtainable. It is appropriate that a declaration be made in terms indicating that the appellants were denied natural justice. That may redress some of the harm done: Ainsworth

Class 24: Remedies 2Readings: 16.8.1 – 16.8.10 (Order of review under the ADJR Act)

16.9.1 – 16.9.9 (Discretionary factors) 15.3.1 – 15.3.13C (Privative clauses and time limitation clauses)

Statutory judicial review remedies – section 16 of the ADJR Act A central purpose of the Commonwealth ADJR Act 1977 was to reform the remedies for judicial

review. Section 16(1) provides:

16(1) on an application for an order of review in respect of a decision, the Federal Court, or the federal magistrates court may in its discretion may all or any of the following orders:

(a) An order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specified;

(b) An order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;

(c) An order declaring the rights of the parties in respect of any matter to which the decision relates;

(d) An order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

The powers conferred by ADJR Act section 16 match those exercisable by a court exercising common law or equitable jurisdiction.

Courts have generally stressed that section 16 should be construed liberally, and not to be confined by the limitations inherent in the prerogative writs: Conyngham

At the same time, the cases have also ruled that section 16, despite its apparently wide scope, does not transform the judicial review role of the courts: Conyngham

Minister for Immigration and Ethic Affairs v Conyngham (1986) 11 FCR 528Facts: The minister declined to approve an application lodged by Mr Conyngham for entry permits to

members of an American singing group. The trial judge held that the minister’s decision was unlawful and that the sponsorship application lodged by Mr Conyngham feel within policy guidelines issued by the minister. The judge made an order to the effect under s 16 of the ADJR Act, with a view of requiring the minister to grant entry permits to the singing group.

Issue: Was the order granted by the judge valid?Held: In my opinion para 16(1)(d) plainly confers power upon the Court, in n appropriate case, to

order a decision-maker, to decide a matter in a particular way. - Section 16 should not be the subject of a narrow or restrictive construction. On the contrary, it

should receive the liberal construction normally given to remedial legislation. - However, if the decision-maker, although his discretion has miscarried, is left with a residual

discretion under the statute to decide the ultimate question, the order which the Court makes should, notwithstanding the width of section 16 of the Act, usually, if not invariable, be one which remits the matter for further consideration according to law. i.e. you can’t force a decision maker who would otherwise have discretion to determine a matter to make a particular decision under section 16 of the ADJR Act

Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637Facts: Mr. Park had been detained as prohibited non-citizens. Although deportation orders were

made against them, they were not then deported, because they would have been potential witnesses for an upcoming hearing regarding other prohibited non-citizens. The court held that

the detention was unlawful on the basis of unauthorised purpose, and made a declaration under section 16 of the ADJR Act that their detention was unlawful.

Held: The legislative purpose of the conferral by section 16(1)(c),(d) of power to grant declaratory and injunctive relief is to achieve what is ‘necessary to do justice between the parties’ and to ‘avoid unnecessary re-litigation between the parties of those issues.’

- The scope of the powers to make orders which the sub-section confers should not, in the context of that legislative purpose, be constricted by undue technicality.

- In particular, the phrase ‘any matter to which the decision relates’ in section 16(1) should be construed as encompassing any matter which is so related to, in the sense of connected with, the impugned decision.

- In the particular case, the appellants were entitled to a declaratory order that their detention was unlawful.

It was also held in Park Oh Ho that “damages are not a remedy for judicial review and section 16 of the ADJR Act does not include an award for damages…a claim for damages from the Commonwealth must be based upon a civil wrong or a breach of contract.

This is reflected also in Common Law, where a breach of an administrative law ground of judicial review does not of itself give rise to a right to damages. Equally, violation of a public right created by statute or the non-performance of a public duty imposed by statute does not of itself give rise to a right to damages: Wentworth v Woollahra Municipal Council

For damages to be awarded, a plaintiff must establish a cause of action under the principles of private law, such as breach of contract, negligence, nuisance, false imprisonment, misfeasance in public office, or breach of a statutory duty: Crimmins v Stevedoring Industry Finance

Judicial discretion to refuse relief – section 10(2)(b)(ii) of the ADJR Act A court has discretion to refuse a remedy, notwithstanding that a breach of a ground of

review has been established. Standard discretionary ground for refusal of a remedy are: inexcusable delay by an applicant in

commencing proceedings; the ineffectiveness or futility of granting a remedy, the existence of a more convenient and satisfactory alternative remedy, failure of the applicant to utlise a statutory appeal procedure before commencing judicial review proceedings, acquiescence by an applicant in a waiver of a breach, unwarranted prejudice to the interests of a party relying on the administrative decision, or a competing public interest.

Section10(2)(b)(ii) of the ADJR Act confers a discretion on the court to decline an application for review if adequate alternative provision is made by some other law for review by another court, tribunal authority or person.

Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31Facts: Mr. Bragg was dismissed from the Australian Public Service by reason of improper conduct in

relation to another employee. An appeal lay from the dismissal decision to a Disciplinary Appeal Committee established by statute. Having regard to that alternative avenue for review, the court dismissed Mr. Bragg’s application for judicial review under section 10(2)(b)(ii) of the ADJR Act

Held: This court is too busy its processes are too costly for it generally to be appropriate for an applicant to come to the Court when there is an informal and expeditious administrative tribunal established to resolve the dispute.

NSW Breeding & Racing Stables Pty Ltd v AAT (2001) 53 NSWLR 559Facts: The Administrative Decisions Tribunal Act provides that the Supreme Court may decline the

review a decision of the tribunal that can be appealed to the appeal panel of the tribunal. It exercised this power in this particular matter.

Held: Ordinarily the judicial review jurisdiction will not be exercised where there is an alternative remedy by way of appeal; and that that general rule will be displaced only by ‘exceptional circumstances’.

- Remedies by way of judicial review are discretionary. They are generally not granted where there is another equally effective and convenient remedy.

The High Court has placed similar reliance on this discretionary consideration in declining to exercise the original jurisdiction of the High Court conferred by the Constitution section 75(v) to review the decision of a federal court. In Glennan v Commissioner of Taxation, Kirby J stated:“In a case of judgment of a federal court, where an appellate facility is available, this court will, as a matter of discretion, refuse to issue a constitutional writ…where application for a constitutional writ is made without invoking an available appellate right, the writ may be regarded as premature…”

Another specific ground for discretionary refusal of relief is that judicial review proceedings should not be used inappropriately to review decisions made in the course of a criminal prosecution. It is only in exceptional circumstances will the court intervene in criminal proceedings pending another court : Foord v Whiddett

However there is a firm presumption in administrative law in favour of granting a remedy if a reviewable error has been established. ‘The courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise’ Enfield

Privative Clauses and Time limitation clauses Privative clause purport to limit/exclude judicial review of a particular category of administrative

decisions. There are three major principles that must be reconciled when dealing with privative clauses:

- Parliamentary sovereignty – Courts should be obedient to the clearly expressed wish of the legislature : Osmond

- Preserving access to the courts – a subject’s right to recourse to the courts is not to be taken away except by clear words and the courts mustnot too readily surrender the beneficial facility of judicial review which is the ultimate machinery to protect the rule of law : Osmond

- High Court’s original jurisdiction: the jurisdiction of the High Court conferred by section 75(v) of the Constitution to grant mandamus and prohibition directed to an officer of the Commonwealth cannot be ousted buy a privative clause: Coldham

How do we respond to privative clauses? A guiding principle in Australian law dealing with privative clause was established in R v Hickman;

Ex Parte Fox and Clinton in which is was stated that a privative clause will not invalid, provided that:1. Decision maker does not exceeding the authority that is conferred buy the legislation. i.e.

not use the privative clause to do something that is clearly ultra-vires.2. It must be a bona-fide attempt to exercise the powers conferred. i.e. the decision maker

must be acting in good faith in exercising their powers. 3. The decision must relate to the subject matter of the legislation.

There is a strong presumption that a privative clause will not be effective to exclude review generally, particularly a jurisdictional error including a breach of natural justice: Plaintiff s157

However things like time limitation clauses etc are generally given effect by the courts.

A privative clause which on tis face appears to oust the High Court’s jurisdiction will be ineffective provided ‘the purported exercise of power is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonable capable of being referred to the power: Coldham

Considerations which have particular import are an intention that ‘manifest’ errors, ‘imperative duties’, ‘inviolable limitations or restraints’ or a breach amounting to a jurisdictional error will not be protected by a privative clause.

Hockey v Yelland (1984) 157 CLR 124Facts: Hockey’s compensation for an injury was rejected by the Neurology Board. The relevant Act

provided that “the determination of the board shall be final and conclusive, and the claimant…shall have no right to have any of those matters heard and determined…by way of appeal of otherwise, by any court or judicial tribunal whatsoever’. Hockey sought judicial review.

Held: It is a well recognised principle that the subject’s right of recourse to the courts is not to be taken away except by clear words. If the subsection had provided that the determination should not be ‘quashed or called in question’ it would have been effective to oust certiorari for errors of law not going to jurisdiction…but the provision that the board’s determination shall be final and conclusive is not enough to exclude certiorari.

Houssein v Department of Industrial Relations and Technology (1982) 148 CLR 88Facts: A NSW Act contained a privative clause that limited judicial review to issues other than

jurisdictional errors. Issue: Did the privative clause oust the Supreme Court from Judicial Review?Held: The privative clause could validly exclude the prerogative writs form being used for matters

not relating to jurisdictional error.- The Hickman principle applies to state laws as much as it applies to Commonwealth laws.

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476Facts: The applicant sought judicial review on the basis of a denial of natural justice. The

Commonwealth argued that the privative clause in section 474 of the Migration Act applied to preclude Judicial Review. A time limitation clause also applied to the case, and since the proceedings were commenced over 37 days after the RRT’s decision.

Issue: Whether the privative clause immunised the decision from judicial review.Held: the ‘so called Hickman doctrine’ is simply a rule of construction that allows for reconciliation of

apparently conflicting statutory provisions – i.e. provisions under the privative clause, and general provisions relating to the normal statutory appeals process.

- there is no general rule as to the meaning of privative clause. The meaning and the consequences of the privative clause should be ascertained from the words of the privative clause. If there is any conflict, you have to take part in some sort of reconciliation.

- How do you engage in such reconciliation?- The reconciliation process will produce three possible outcomes:

1. The decision will be valid because it will be ‘protected’ from judicial review due to the privative clause. I.e. the privative cause does apply.

2. The decision will not be affected by the privative clause. Thus judicial review will be conducted, but the court DOES NOT find in favour of the applicant.

3. The decision is not protected by the privative clause. Thus judicial review will be conducted, and the court finds in favour of the applicant.

- How do you get to this decision? It is a two step process:1. Determine whether the decision conforms to the 3 Hickman requirements. Privative clauses

are ineffective unless the three requirements are met by the decision maker.

2. The court must determine whether the purpose of the legislation was that a decision that breach a statutory requirements shows be held as invalid. In order to do this, you must look at the plain and ordinary meaning and the impact the decision has on the applicant.

- The privative clause doesn’t actually apply to decisions relating to jurisdictional error (including those involving natural justice).

- The reason for this is because decisions affected by jurisdictional error is not a “decision” at all.- The privative clause in section 474 only applies to “decisions”. Where the RRT does something that

involves a jurisdictional error, the courts will interpret this as not being a decision at all. - Similarly with the time limitation clause, 35 days was not sufficient time for the plaintiff to establish

his case. The time limitation clause acted as a prohibition than a regulation of judicial review. This prohibition went against sections 75(v) of the Constitution.

Bodrudazza v Minister for Immigration and Multicultural Affairs [2007] HCA 14Facts: Bodrudazza applied for migration into Australia. He lodged his application a day late and the

application was consequently rejected as a result. He applied to the High Court of Australia. Again, the application to the High Court was submitted late. Section 486A provides that applications to the HCA must be made with 28 days of actual notification notice, but it can be upon but not more than 84 days depending on the discretion of the Court.

Issue: Was section 486A constitutionally valid?Held: The provision under section 486A had a very limited aim which was to preclude the HCA from

hearing matters appealed after the time limit. - Parliament can regulate the procedure of judicial review, but it can’t go beyond this to render

section 75(v) remedies useless. - The power to regulate judicial review did not permit what was essentially a prohibition of judicial

review in the High Court. - The test in determining whether a particular provision prohibits judicial review is to measure the

provision against what section 75(v) is trying to achieve. The test requires an investigation into the substance or practical effect of the provision, not merely its form.

- The particular provision in question is too rigid and does not allow other the court to look at other circumstances of the cases including other relevant vitiating factors.

e.santow@unsw.edu.au