Administrative Law

Class 1 – Week 1 Tue

Legal principles governing the relationship between the Government and the governed

Public Law Private LawCriminal ContractsConstitutionalAdmin Law

- Industrial relations law- Freedom of Information- Migration / refugee law- Environmental law …

Tribunal review – worth 10% Critical analysis of what you see How is it set up How it differs from court etc…

Accountability – the people / consumers need to be able to hold the Govt accountable for their powers in making laws etc…

Separation of Powers – 3 arms of Govt – Executive, Judicial, Legislative- Admin law deals with the Executive

Two ways for correcting errors in Admin law- Tribunal- Court- Further – Ombudsmen etc…

Class 2 – Week 1 Fri

System of Govt was based on the Westminster system as well as US systemo Well developedo State v Federal

Geography and demographics of Australia leant to the citizens relying on the Govto No ‘people’ here to do the work, all were brought over and planted by the UK

New public sector management structureo 2yr contracts are standard (SES) – no longer people in jobs forever

WA Royal Commission – influential in numerous jurisdictions, incl overseaso Accountability intended emasculation – officials held to account for duration

of termo Accountability is non-negotiable, it is a condition of all public serviceo Certain basic standards expected of all Govt officialso 3 main avenues of public accountability

Direct – difficult except for referendum Special accountability agencies – e.g. ombudsmen Westminster system – Ministerial responsibility, Parliament can

question Ministers Children Overboard enquiry

o Problems with balancing accountability and flexibilityo Admin law can decrease efficiency yet is important – must balance

Political Accountability Question time Senate (and parliamentary) enquiries Tabling and debate of annual reports

1

Limitationso Parliament can only really look at the big picture policy issueso Can run counter to other forms of accountabilityo Hinges on practical control that Ministers can exert over executive agencies

Cross City Tunnel – Minister or Contractor to be acct? Decisions by departments can be judicially reviewed, Ministerial decisions generally

not Emy (p.9)

o Ministers are individually responsible to parliament for the affairs of their depto Cabinet is collectively responsible to parliament and the electorate for the

conduct of govt

Financial Accountability Measures acct brought against Treasury and others who decide how money is spent

o Verification of official use of money Auditor-general Act 1997 Players:

o Parliament – raising of taxes and spendingo Committees – estimates, public accounts, annual reportso Auditor-General – independent of parliament

Audit of financial statements of govt agencies Performance audit – efficiencies Provide parliament with clear, independent, objective assessment of

the way govt is fulfilling responsibility to finances

Administrative law Accountability Decrease political, increase in admin law Safeguard the interests and rights of people and corporations in their dealings with

govt agencies 3 ways:

o Review of decision makingo Protection of information rights – FOIo Public accountability of govt processes

Ombudsmen, HREOC, anti-corruption agencies (ICAC), law reform bodies etc…

Openness, fairness, participation … (p.13) Else-Mitchell – people had a right to go to Court

o Historical perspective – courts were the avenue for admin justice for indiv. Mason – overstatement of ability to hold Ministers accountable – may not be your

local member Historical development of Admin Law:

o Increased govt control > Courts became overrun > new form of adjudication = tribunal review (aim: faster, cheaper, more efficient)

Mason quotes Brennan (inaugural president of the Admin Decision Tribunal) (p.16)o Widen the scope of individual citizens to challenge parlia / govt

Ethics and Integrity Recent transformation:

o Move to be more explicit in articulating the values that underpin public service – codes of conduct

o Reconceptualisation of those values and ethics – emphasised responsibility of public officials to service the public

Technically competent but ethically unfit – problemo Ethics can be subjective

Spigelman (p.21) (CJ of NSW) – thinks there should be a 4th branch of govt – Integrityo Equal to executive, judicial, legislativeo Hold depts to their purpose

Act for the Statutory Body (e.g.)

2

o Significance and independence of this area should be elevated

Historical Foundation of Admin Law Inherited the prerogative writs

o Certiorari – decision is quashedo Mandamus – obliged to carry out actiono Prohibition – prohibit an actiono Habeas Corpus – show cause why this person is to be imprisoned, if you

can’t, let him go Evolution of Admin Law

o Growth in no. and distinction of the courtso Advent, development of tribunal review systemo Controls on rule making

Creyke & McMillan (p.25) Kerr believed admin tribunals should be focussed on merit

o Doesn’t only matter if it was lawful, it must also be the best / right decision Tribunals rather than Courts should deal with majority of admin decisions

o Realisedo However hierarchy still remains – Courts higher than Tribunals

Kerr suggested – only live matters to be reviewableo Can’t deal with hypothetical issueso Must be a current, real issue that effects an individual due to a decisiono It is a review, not a court case

Public / Private Divide Privatisation – e.g. Telstra Commercialisation – private sector ideas / structure imposed on public sector arms –

GBEs, e.g. Australia Post Contracting Out – govt function delivered by a private sector body Loss of accountability when each of these are done 3 main ways of countering this loss of accountability:

o Use contract law – write in accountabilityo Use private sector accountability measures – e.g. TPAo Increase regulation – pass a law to cover it

Class 3 – Week 2 Tue

Admin law cont… Admin law should apply to GBEs (Govt Business Enterprises) but the admin law

principles may need to be modifiedo Existence of competition

Would private law remedies be available (contract)? Is there customer choice? Is there incentive to give good service, to have competitive edge?

Sources of legal authority for Govt decision-making Principle of legality

o Touchstone of govt decision makingo Must be a source of legal authority that a govt agency / official can point to

All Govt action requires identifiable sourceo If an agency goes too far, has no authority, it is said they are acting ultra vireso Reflected in many grounds of review in the ADJR Act S5

Stat power is given to an agency to do so much, no legal authority to act outside that What are the sources?

o Statutory – legislationo Non-Statutory – Executive

3

Statutoryo Act for Stat Agencieso GBEs – Corporations Act

Executiveo Hangover from sovereign power

Executive Power Not all govt functions require statutory power Limitations – can only be used for

o Non-coercive purposeso Facilitatory purposes

Clough v Leahy (p.379)o Whether Governor of NSW could use executive power to set up a

commission to investigate Union criminal actiono Did extend to this power

Cannot make something lawful that would normally be unlawful If X was acting under the auspices of commission (set up lawfully), X cannot act

unlawfully (unlawful by anyone not acting in role of commission) Powers of Crown no greater than private individual Constraints on Executive Power:

o Can be overridden by Statute, cannot be exercised inconsistently with Statuteo Cannot be used to legitimate an act that would normally be actionable /

unlawfulo Will not authorise govt action that is coercive, punitive, intrusive or

threatening in nature Exception – declaring and waging war

Tampa Case (p.380) 26 Aug 2001 433 people on sinking fishing boat in international waters Tampa responded to request for assistance from Aust authorities Rescued people Tampa headed for closest land (Xmas Island) Aust authorities asked Tampa not to go there, to change course and not enter Aust

waterso Captain threatened with smuggling

Tampa ignored instruction and was boarded by Aust SAS Victorian Federal Court delivered decision on Sept 11 2001

o North J rejected govt argument that expelling people from Aust waters was an Executive prerogative

o Even if it was a prerogative, it never allowed what happenedo Migration Act abrogated Executive Power

Went to full Federal Court (3 x J) Appealo Majority – French (p.382) – Migration Act does not expressly or impliedly

abrogate the Executive Power as per s61 Power to decide who does and does not come into Aust is central to

sovereignty – govt should be allowedo Dissent – Black – no executive power:

Sovereign power to keep people out and to legislate as such No stat power in Aust for detention

Cannot use Exec power for coercive means Migration Act – yes, it had few holes, but that does not mean it was

intended to be anything other than comprehensive The Act covered the field, supplanted the exec power

Couldn’t go to HCA – people were out of Aust waters and out of jurisdictiono Therefore no clear precedent, a similar event could get diff result

26 Sep 2001 – Fed parlia passed legislation which retrospectively authorised actions of detention

4

Presumption of regularity – Court has a power to rule definitively whether govt action is valid. Practically, an executive official is presumed to be lawful. This is rebuttable, onus of doing so falls on party wishing to dispute.

Committee’s definitions (p.340) Legislative function – making of a new rule of general application, ordinarily operating

in futuro (by parlia in statutes) Executive function – application of rules to a particular situation. 1. Decision making,

2. Promulgating policy Judicial function – resolving an existing dispute by an independent adjudicator – final

and conclusive for the time being – may be reviewed under a hierarchy

Polycentricity Distinction between legal and policy questions Sometimes impossible to separate them and get adjudication in the courts Fuller (p.342) – how can a court decide e.g. what is an employee’s wages, in a

completely egalitarian state? Roberts v Hopwood (1925) (HL) – female employee to be paid same as male? Is that

unreasonable?

Discretion Power to make choices between courses of action, and/or a choice exists how an end

will be reached How can you tell discretion exists? – wording e.g. ‘may’, ‘thinks fit’, ‘reasonable’,

‘satisfied’ Also given to decision maker whenever policy or rule is vaguely expressed Galligan – discretionary power is now common Although discretion is accepted, it has long been a source of unease

o Dicey and rule of lawo Removes certainty in the law

Now, it’s seen as a necessary evilo Comes down to whether the discretion is appropriately structuredo Must also have a check on it

Role of Policy Lawyers look more at the law Administrators look more at what the Minister said Green v Daniels (p.598)

o HCAo 2 errors by Govt

too many criteria added, policy inconsistent with legislation policy been applied too inflexibly without consideration to individual

situation

Constitution > Primary legislation > delegated / subordinate legislation > Policy

Problems arise when discretion comes into conflict with policy Mason – Judiciary’s corner

o Judiciary – applying rules with factso Administrator – applying policyo No attention to individual by govt

Curtis – Admin’s cornero Lawyers don’t appreciate that policy is crucial in providing govt intention

Woodwardo Against admin lawo Shift of focus of AL to monitor the process of decision-making

Class 4 – Week 2 Fri – Subordinate Legislation

5

Made by the executive Not subject to the same parliamentary and public controls as primary leg Alternative methods devised to ensure executive is accountable ‘delegated legislation’ Growing importance of sub leg

o Ease with which subordinate leg can be made has a distinct attraction to govto Many of the detailed standards and requirements that provide the framework

for govt regulation of industry are contained in sub leg

Forms of subordinate legislation Regulation – rule made by Gov or GG, general in application Rule – specifies matters of procedure made by a court By-law – instrument limited to a specific geographic area Ordinance – laws made by GG for the govt of a territory ‘disallowable instrument’ – category of executive instrument that is required to be

tabled in the parliament and may be disallowed by either house

Unauthorised decision-making: subordinate legislation sub leg has always attracted special attention in public law because of its volume, its

importance in creating legal procedures and obligations, and the potential threat it poses to the separation of powers

Whether sub leg was validly authorised is an issue that can arise from:o Compliance with statutory procedural requirementso Substantive statutory authorisationo Narrow statutory constructiono Compliance with administrative law criteria for legal validityo Consistency with other primary legislationo Constitutional compatibility

General test of invalidity The issue of validity is decided by a process of statutory construction

o Applied to both the parent Act and the subordinate rule The court does not examine the wisdom or expediency of the subordinate rule Lord Diplock – p.401

The means/ends distinction Paull v Munday (p.412) Gibbs J – “a power to do one thing cannot be validly exercised by doing something

different, even if the effect of what is done is the same as that which would have resulted from doing what was permitted” (p.412)

Stephen J – “to seek to give better effect to that end by making regulations which depart altogether from this subject matter is, to my mind, to seek to use other than the specified means in order to attain the desired end and is impermissible” (p.413)

Reasonable proportionality If there is a valid connection between legislative or executive action and the purported

source of authority for that action South Australia v Tanner (p.413)

o Brennan J – (in dissent) “the court must determine ‘the directness and substantiality of the connection between the likely operation of the regulation and the statutory object to be served’”

The proportionality principle is different when applied to the validity of subordinate leg

Unreasonableness Hesitation in Aust to apply a principle of unreasonableness to invalidate executive

action Hesitation is greater in cases of subordinate leg

6

Reasons for reluctanceo Scope of the authority to make sub ruleso Nature of the body making those ruleso Reluctance of courts to substitute their opinion on the reasonableness of sub

legislation Unreasonableness as a ground of review is more theoretical than practical

Accountability and control of subordinate legislation Delegated legislative power is a limited power Ensuring accountability – five different points at which control can be exercised:

o Public consultation on proposed rule-makingo Internal executive controlso Publication of subordinate legislationo Parliamentary oversighto Judicial reviewo Other mechanisms of administrative law review

Legislative Instruments Act 2003 (Cth) (p.274 and brown brick)

Class 5 – Week 3 Tue

Last class recapSubordinate legislation justifications:

Save time – saves parliament time More appropriate for putting in detail Easy to amend

Accountability mechanisms in regards to subordinate legislation Standard committees – make recommendations to parlia Gazette Judicial review Misc – ombudsmen, etc…

Plain english definition of the means-ends distinction – when legislators specify an end and a means in the primary act, to achieve that same end in subordinate legislation you must use the same means

Statutory Interpretation – interpreting the meaning of legislationNeeds to be clear so it:

Gives intention to legislative intent Allows us to get into parliament’s head in regards to what was intended by leg

Look at the words and context of the legislation: Look at whether it was elected with a certain group of people in mind Look at what political issue provoked the statute Look at any interpretive guidance that might come in the Act or in a 2nd speech Look at the actual words of the provision

General rule – presumptive / literal approach Words in the statute should be given their ordinary and natural meaning unless there

is a good reason in law to the contrary Common sense meaning Only advantage of lawyers – they come into contact with such words more often, and

experience Victims Compensation Fund v Brown (HCA) – only question being asked was “what

does the word “and” mean in the statute” (disjunctive / conjunctive)o Court of Appeal – and means oro HCA – and means and

Purposive approach Mandated by S15AA of the Acts Interpretation Act If there are 2 ways to interpret, one inconsistent with the act and one consistent – go

with the consistentInterpretation Statute

7

Acts Interpretation Act 1901 (Cth) Define common legislative terms – default definition (“unless the contrary intention

appears”) Other interpreting rules, like S15AA – another is S15AB

o Mechanism for allowing extrinsic materials to be introduced to aid interpretation

Confirm original meaning Resolving ambiguities or obscurities

o There is a list of allowable materials Law reform Commission reports 2nd reading speech Must be contemporary material Treaties See S15AB (brown brick p.31)

Presumptions at common lawPreliminaries

These presumptions are rebuttable Sometimes more than one presumption will apply in a particular situation and they

may suggest conflicting resultso Sometimes difficult for the court to determine which presumption is relevant

Originalism – original meaning of statute – words should bare the meaning they had at the time of enactment

o The statute is always speaking – it is alive and meanings change when society changes

Types Implied incidental power

o A govt agency may undertake any activity that is incidental to or consequential on the powers given to it by the Act

o Sometimes explicit, but if not it will be implied at common lawo Freeman’s case (example)o Limitations

Kent v Johnson – challenge aimed at preventing the construction of Telecom Tower on Black Mountain in Cbr

Postmaster general relied on relevant Act to construct the tower, for purposes of telecommunications, but they needed a restaurant and tourist attraction to make the construction viable

Had power to create tower for communications but did it extend to restaurant and tourist attraction

Smithers J – did not authorise construction with restaurant and tourist Later legislation allowed it to go ahead General rule – necessary for the reasonable fulfilment of the acts and

matters expressly authorised Wasn’t enough to show it was financially necessary – needed more When an authorised project is dependant, for its implementation, on

another project which has no connection to it, it won’t be admissible Established freedoms and immunities

o Leg is presumed not to abrogate a fundamental right, freedom or immunity other than by express or unambiguous language

o Coco v The Queen (p.393) Coco convicted of offering a bribe Evidence gained by listening device (bug) pursuant to relevant Act Act required judge to look at the seriousness of crime etc… Did the Act that empowered the authorisation of the bug extend to

permitting unauthorised entry onto private property Majority – did not extend – trespass is trespass Legislature did not intend to authorise what would otherwise have

been tortious conduct (p.393) Case is pregnant with opportunity – not used as much as expected

8

o Parliament can legislate contravening human rights but they must do it expressly, facing it head-on

Pecuniary burdens and penaltieso Art 4 Bill of Rights 1689o Any attempts to levy money (tax) must be authorised by parliament. The

Executive cannot authorise a taxo Attorney-General v Wilts United Dairies Ltd (p.396)

WWI tax Food control during a time of concern, tax on milk Question - Whether this condition was valid Held – it was not valid Parliament can give Executive powers to do so but the clearest

words should be required before the Courts hold that such an unusual delegation has taken place

Can only impose the power if it was parlia’s intent to do so Applied in Commonwealth v Colonial Combing, Spinning and

Weaving Co Ltd (1922) 31 CLR 421

Duty to provide reasons for decisionsCommon Law reasoning

Rule – no general common law duty on decision makers to give reasons for their decisions, however, that duty may arise in special or exceptional circumstances

Encourages better and more rational decision-making (instrumentalist) Enhances government transparency and accountability (political theory) Allows closer analysis, opens decision to scrutiny, allows person to investigate

grounds for appeal (procedural fairness) Special or exceptional circumstances – when there is a duty at common law

o Kennedy Miller TV case – if failure to give reasons for a decision meant a statute became almost useless there may be a duty to provide reasons

o Edwards v Giudice case – IRC had to give reasons relating to unfair dismissal because the matter was strongly contested and the outcome was considered to be greatly significant

Osmond (p.894)o Public Servant applied for promotion and was knocked backo Appealed to PSB who dismissed it without reasonso No duty in statute to provide reasons, Osmond argued there was a common

law dutyo Majority of Crt of Appeal – held there was duty

Kirby – the general rule Glass dissented

o HCA – Gibbs CJ overturned Crt of Appeal and held there was no duty to provide reasons (Osmond lost)

No general rule at common law, or for that matter procedural fairness, that provides for decision makers to provide reasons

Generally a judge should give reasons however For administrative decisions there is not as great a need to give

reasons Policy reasons in favour for giving reasons but these were insufficient

Countervailing policy considerations Tantamount to judiciary engaging in legislation. Policy

judgement should be made by elected officials (parlia) – Judicial activism

Statutory duty A number of Acts contain an obligation for decision makers to provide reasons for

certain types of decisions S13 of Administrative Decisions Judicial Review Act (ADJR Act) and S28 AAT Act

o S13 ADJR – write to apply to receive a written statement setting out the findings on material questions of fact, referring to the evidence (p.897)

Yusuf case (materials book p.30)

9

o Refugee case and fear of persecutiono Yusuf argued the tribunal failed to make a decision based on the Acto HCA questions

Did the RRT have to make decisions based on material questions of fact?

If so, was the failure to make such findings grounds for review?o Singh’s case 2000 applied?o Applied objective standard on what is a material facto Majority – initial point that not all findings of fact are materialo Reviewing courts of this type do not accept new evidenceo There are lots of reasons that material facts means subjectively material, but

there is nothing in the statute that means objectively material

Class 6 – Week 3 Fri

Q – Osmond – how could this be an exercise of Judicial power when the appeal was from a Govt agency A – It is actually from an appeal panel, if you are seeking to have a decision of the WC Commission (merit review) overturned, you go to the appeal panel of the WCC (judicial review)Distinction – Osmond did not apply to the Commission, he applied to the appeal panelStatute – will identify review status

ReviewTo understand Statute – Natural ordinary meaning and the purpose / contextS15AB – extrinsic materials, ambiguity and absurdityImplied incidental powers – If given the power to do X, Y, Z, you are given the power to do everything necessary to do X, Y, ZCoco v the Queen – presumed (Statute) not to abrogate human rightsDuty to give reasons – no general duty, except in exceptional circumstances

Freedom of Information (p.898)

Purpose – Prof Allars – original purpose was to address a deficiency in the common law. CL failed to provide a suitable mechanism to ensure open governmentAim – to make Govt more accountable to its citizens through a legislative regime expressing openness, rationality, fairness and participation

Object of the Act1. Duty to publish certain documents held by Govt agencies2. To provide a general right of access to information in documents held by Govt

agencies3. Right to annotate or correct personal records held by Govt agencies

Who does it cover? Agencies – a Govt dept, a prescribed authority, eligible case manager, a Minister’s

official documents Does not apply to the Private Sector at all

o Breen v Williams (1996)o Seeking medical documents – HCA agreed with Dr who said they belong to

him, not to individual

Duty to Publish – S8 FOI Act – Minister responsible for an agency must publish annually an annual statement covering:

Power Provision made for consultation Categories of documents that the agency holds Provisions that make clear how to get access to document

10

Access to documents (p.900) S11 – right to obtain access to documents so long as they are not exempt under pt IV

o Harder to get documents due to exemptions Right only enforceable if the agency has physical control and constructive possession

of the relevant documents In practice – may require the agency to take steps to find the document Document in question must already be in existence

o Can’t use FOI to force the agency to create the doc The person who requests the doc must be able to identify it with sufficient particularity Application fees apply

Who can get access? Anyone S11 sub-section 2 – reasons for requiring them are completely irrelevant Transparency

91% of documents requested are personal as opposed to public

Exempt documents (p.901) Part IV of the Act National security Public service exams etc… S36 – Internal workings – justification = internal working docs are apt to

misinterpretation

Exercise – PM bunker proposal leaked to pressReasons for

Already been released, need to clarify Information in the list is not important enough to be secret (location and material

might be) Enhance democratic processes – removing some misinformation Openness and accountability as the general purpose of FOI

Reasons against Deliberative document – no decision on project has yet been made, and the tender

process needs to occur Document might be taken out of context (not representative of the other proposals)

Use of FOI in Australia Lamble (p.902) Not used as much in Aust as OS Greater number of exemptions in Aust law cf NZ, US

Re McKinnon (p.45 in brown book) HCA 2004 – very important case Journalist – tax and 1st home owners scheme documents Treasury refused access on grounds in Ss 36(1), 43(1)(c), 22. McKinnon applied to AAT for a review of decision Issue – AAT – engage in merit review to make a decision whether docs should be

released Issue – Where S36 does apply – AAT task was to determine whether there are

reasonable grounds that the disclosure would be contrary to public interest J – reasonable grounds = opposite of fanciful etc… AAT – Downes J – summarised Treasury’s arguments for not releasing:

o Disclosure should be held so govt officers can communicate freelyo Risk of disclosure would encourage oral communicationo Release of the docs would be misleading or confusing as the docs express a

view and they are not sufficiently self-contained to be meaningfulo Undesirable to release docs proposing response to parliamentary questionso Prepared with an expert audience in mind

11

Downes J held these arguments were ‘not irrational’ so they were satisfactory Then went to judicial review

o Held the tribunal’s decision Dissent – determination whether there were reasonable grounds (S36) requires a

balancing act – public interest grounds Then to HCA

o Bench of 5o Majority – rejected McKinnon’s appealo Rejected the argument of McKinnon – Act permitted the AAT to substitute its

decision for that of treasury in regards to whether the disclosure would be contrary to public opinion

Judicial review, definitely not merits review Tribunal asked to decide whether there are reasonable grounds for non-disclosure

(s36 certificate stands) Crux of decision – Even if you have only 1 reasonable ground for non-disclosure but

5000+ for disclosure, this does not mean the AAT can force them to discloseo All the Tribunal has to do is find 1 reasonable ground for non-disclosure

Dissent (Gleeson, Kirby JJ)o Too low a bar seto Criticised majority as it only directs AAT approach to 1 facet of public interest

analysiso AAT should start by considering the object of the FOI

S48 FOI Gives individual the right to amend or annotate their own records No right to exclude information Only 708 requests in 97/98 (?)

Re Kamminga (p.40 brown book) ANU applicant who failed Requested access to referee reports Refused access by ANU

o Exempt under S36(1), 40(1)(c) and (d), 45 Question – Whether the referees reports were exempt AAT held they were exempt but only on S45 grounds (breach of confidence) S36(1) – show they disclosed liberty of processes and contrary to public interest

o AAT confirmed they needed to show botho Balance public interest (no conclusive certificate)o Argument not successful

S40 – disclosure would lead to substantial adverse effect on management processeso Rejected on same grounds as s36

S45 – breach of confidenceo Release may lead to the Cth Agency being sued on ‘breach of confidence’:

Must identify specifically the information in question The info must be confidential Recipient must have been bound to keep the info confidentiality Must be an actual misuse, or threat of misuse of the info

Class 7 – Week 4 Tue

Review Purpose of FOI – to promote accountability and openness – open Govt Three part strategy – S3 of Cth Act

o ?o Give people a right to amend or annotate personal recordso To see / access documents – general right of access

Covers agencieso Broadly – includes Ministers

12

S11 – general right of access to documents subject to the Act – exceptionso Contrary to public interest, internal working docs, draft docs, o Individual must know something of the doco Must pay for doc

Ombudsman offices

Purpose To investigate complaints from the public relating to administrative decisions Self-initiate inquiries into admin policies

Origin / History Swedish term – early 19th C 1971 – 1st office in Aus in WA (Parlia Commissioner for Administrative Investigations)

del Villar (p.184) Rapid growth of ombudsmen in all Aust jurisdictions, due to

o Expansion of Govt, more needo Although Tribunals were set up to be cost effective and less time consuming,

Aust is quite litigious and the tribunal system has not been 100% effective People don’t tend to leave the process at the Tribunal level Most of the Tribunals permit representation by lawyers and they tend

to apply court practices in the Tribunal system Advent of a series of ombudsmen in the private sector Additional functions and powers of the ombudsmen, steadily increasing

Bland Committee (p.184) Ideal Ombudsmen is an office of ‘great humility, devoid of prejudices etc… Role of ombudsmen, traditionally, is only to make recommendations, not to make

decisionso Shine a light on areas of Govt decision-making that are questionable, so that

Govt itself can make the necessary changes

Statutory framework Creature of statute Appointed by GG for term of up to 7yrs Can only be removed by resolution of both houses of parlia (s21-28) Functions – investigate admin action

o Responding to complaintso Self-initiated

Jurisdiction – departments of the public service, and most executive and statutory authorities

o Limitations – cannot investigate action taken by a Minister, by Court or Tribunal, or employment of a person in the PS (s5)

Discretion – to decline to investigateo Try to sort it out with the agency firsto 12 month limit on complainingo If agency is already processing the complainto Any type of admin or judicial review going ono If it has nothing to do with the person complainingo If it is unnecessary

Investigations are usually conducted informally via prelim enquiries, however they have the same powers as a Royal Commission

o Can examine witnesses, compel statements and evidence Does not have determinative powers to alter a decision Differs from the role of the industry ombudsmen

o They have their own rules and often their own Act

Functions of the Ombudsman (s5)

13

Handling complaints External to Govt – offers outsiders perspective Independent – autonomous and not beholden to anyone

Complaints 70% of enquiries are dealt with by instructing the individual how to go about

complaining to the relevant agency 20% of cases that are investigated have led to a finding of an error on the part of the

agency Examples – p.191-193 Daily Telegraph factor – sometimes better to address small issues than deal with

public outcry

Barbour (p.193) Essential features of ombudsmen

o Independenceo Jurisdictional certaintyo Investigative powers and powers to require production of documentso Accountabilityo Ability to make statements in the public interesto Accessibilityo Impartialityo Fairness

Industry ombudsmen Many of the features of public 6 main features

o Accessibilityo Independenceo Fairnesso Accountabilityo Efficiencyo Effectiveness

Recommendatory and Determinative Powers Should they be able to change decisions, make binding decisions? Private can be both, public are only recommendatory Groves – jurisdiction in prisons

o Would be more effective if they could correct decisionso Disadvantages of giving determinative powers

Would lose its distinct place in the legal system Would become like a small claims court Might undermine ability of ombudsmen to work closely with admin

officials – statute, experience Change nature of ombudsmen Might encourage parties to take an adversarial approach

Inconsistent with regime under Ombudsman Act Undermine efforts to maintain image of neutrality

Encourages ombudsmen to take the easy way out All they can rely on is their ability to persuade

Petre – essential features of ombudsmano Advantages of determinative powers

Impetus on parties to take heed of ombudsman advice NB – powers rarely used

Link between ombudsman and parliament Overseas – officer of the parliament Aust – part of the administrative / executive branch Parlia has shown little legislative interest in the ombudsman Pearce (p.200)

14

o Problem is one of locationo Office should be moved physically and psychologically into the parliamento Argument for:

More practical in regards to processing Closer workings could lead to more speedy fixing of issues

o Argument against: Political Lack of independence

Litigation and the Ombudsman 4 main ways they have been involved in litigation

o Involved themselveso Sought advisory opinion (Re Reference)

Constitutional requirement in Aus that Ch3 courts cannot pronounce on a question where there is no active dispute between parties

o Where proceedings have been brought against the Ombudsmen (Kavvadias)o Party seeks to stop the Ombudsmen continuing an investigation (restraint)

(Booth v Dillon) Booth v Dillon (p.202)

o Investigation Vic Ombudsman was undertaking into homosexual abuse in gaol

o Argument – Ombudsman had no jurisdiction to carry out investigationo Act stated Omb could investigate any admin actiono Admin action – any action relating to a matter of admin incl a decision, an act,

a proposal or intention or recommendationo Was the Omb acting beyond jurisdiction (ultra vires)?o Vic Supreme Court – in certain respects he was acting ultra vires

Matter of policy were outside scope of Omb Policy – parliament is empowered with, solely responsible for

o No clear line of demarcation between what is policy and administrationo Fear at time of decision – this new entity would suddenly have enormous

power to carry out wide ranging investigations Chairperson, ATSIC v Cth Ombudsman

o Omb received complaint regarding actions of snr members of ATSIC re housing

o Investigation was undertaken and report submitted Finding – some individuals were or may be guilty of criminal or

disciplinary offenceso ATSIC sought a restraint on report being tabledo Omb acted beyond power by finding an action guiltyo Went to Federal Courto Einfeld J – Omb acted beyond power – cannot make “findings”:

Act only refers to Omb expressing opinions Investigative power only, inconsistent with Omb expressing views as

being findings, expressing views is too definitiveo Finding v Opiniono Einfeld is defining the role of the Omb

He doesn’t want Omb to be looking at this type of question Cloaking it in argument

Botany Council v The Ombudsman (p.203)o Purpose of Act – example of beneficial legislationo Legislation of such nature should be broadly interpretedo Kirby – more comfortable with a broader role for omb cf other J

Industry Ombudsmen Telecommunications, energy, electricity etc… - previously areas where the Govt was

the service providero Now, Govt still involved

15

o Even if Govt gets out, it is not an open market Small concentrations of service providers Regional / Metro divide Monopoly of sorts due to infrastructure (e.g. all use Telstra’s lines)

Commercial arbitration – alternative form of resolving a disputeo Before dispute arises, contract signed to designate an arbitrator as being the

sole body to resolve disputes that arise between the partieso If one party is unhappy, they have no recourse, they are boundo Similar with industry omb

Consumer is not bound in a final sense but Omb acts as an arbitrator Two parties – Govt and provider Effectively contract signed that industry omb is arbitrator and companies / agencies

are bound by decisions Citipower (p.206)

o EIO (Electrical Industry Ombudsmen)o Contract stated that Citipower and EIO would be bound by a scheme to

provide electricityo EIO had determinative powero EIO made determination against Citipower for an incident which stopped

power to 3 parties for 20minso Citipower argued power was beyond EIOo Warren J – should they interfere, and what extent should the court interfere

with the EIO’s decision given that the parties had contracted to be involvedo NB – court shouldn’t interfere with Industry Ombudsmeno Quote on p.207 – It is not open to me to examine…

Court has little jurisdiction to review a decision of an industry omb It must be completely irrational before the courts can step in

Class 8 – Week 4 Fri – Merits Review

Internal Review Review within an agency by a higher authority Advantages

o Quicko Inexpensiveo Alerts management of issues which can, in turn, be fixedo Not confronting

Disadvantageso Perception of lack of impartialityo Another layer before getting to the real review

In order to be legally effective there are structures set upo Must be some clearly articulated practice in order for the next level to

recognise there has been proper, impartial reviewo The person carrying out the internal review must have at least the same

powers as the original decision makero Where there is a scheme in the Statute that mandates a scheme for internal

review, it won’t be enough to rely on internal review based on the executive power – the agency must follow the statutory scheme if it exists

Merit Review and Administrative Tribunals Tribunal review is de novo – member starts the review process over again, it starts

from scratch, doesn’t just follow on from previous reviewo Don’t have to follow what the Minister directs

Purpose – why do tribunals exist – can’t give broad ranging power of judiciary to the Courts

Types – AAT, ADT, DDT, Migration and Refugee Review Tribunal… Maher (p.116) definition (not overly effective)

16

Key features of tribunalso Provide parties opportunity to be heardo Carefully weigh the evidence and materialo Interpret and apply the lawo Expose their reasoning processeso Avoid actual bias or the appearance of biaso Not necessary to have a lawyero Can look at implied policy

ARC defines tribunal by what is not (p.117) ALRC – 2 types, distinction drawn between:

o Policy oriented tribunals – also have adjudicative and other functionso Court-substitute tribunals – closely modelled on courts, adopt judicial

procedures and methodology to varying degrees, provide primarily dispute resolution services

Creyke & McMillano Single tier reviewed by specialist tribunalo Single tier reviewed by generalist tribunalo Two tier

In the system of Govt At a literal level they fit in the Executive – they make govt decisions They look and smell like a court “quasi-judicial” They act independently of the executive Constituent instrument – the statutory power that allows action Emphasis in the statutory injunction to many tribunals to be – Fair, just, economical,

informal and quicko Elevates efficiency above due process – un-judicial

Framework Generalist – don’t look at specific areas, e.g. AAT Jurisdiction of a tribunal is finite and the parameters are defined by the relevant

legislation Commonwealth

o Turning point in development of Cth tribunal system – birth of AAT (1976)o Model for AAT became dominant model for tribunals across Auso ADT v AAT – not under same constitutional constraints as the Cth tribunalo Strict separation of powers at the Cth level which does not apply at the state

levelo All Aus jurisdictions contain a right to appeal decisions on certain q of law

Error relating to bias Error relating to failure to give someone a hearing

o If a q of law is successfully argued after an error at a tribunal, you will be sent back to the tribunal so they can fix it and proceed

New South Waleso ADT 1997o Generalist set up due to: costly proliferation of specific tribunals, absence of

consistency in tribunal procedures, concern about the independence of some existing tribunals

o Original jurisdiction and appeal powerso Can act more judiciarily than Cth tribunal

Analysis of Tribunal Independence Role of tribunals

o Brennan – should act more like a court, embrace the judicial modelo Skehill – must function as part of the executiveo Both agree they must be independento Brennan (p.128)

17

Allows executive to ignore day-to-day decision making – the tribunals can easily do this for them

o Skehill (p.128) No strict constitutional separation of powers for tribunals, so they can

easily be accommodated in the executive Membership

o Tenure – 3-7years, has been as low as 1o Attorney-General selects generally (Minister), can be overruled by PM

Managemento Relationship between the tribunal and agencieso Autonomy in how they allocate their resources etco Performance criteria – all areas of govt now subjected to, why shouldn’t the

courts? Government policy

o Should a tribunal decision be sensitive to administrative context, policy environment?

o Must apply govt policy unless it is inconsistent with legislation

Administrative Appeals Tribunal (AAT) S43(1) of AAT Act 1975 – determines the AAT’s role. It can:

o Affirm the decision under reviewo Vary the decision under reviewo Set decision aside

Make a substitute decision Remit the matter for reconsideration with recommendations

To some extent the AAT is allowed to determine its own role in regards to burden of proof…

Re Greenham (p.137) Greenham sought review by AAT of the valuation of his home in Cbr by the

authorities which he thought was too high Tribunal rejected his grounds of review but found on other evidence that the valuation

should be reduced Q – could the tribunal take into account these other reasons, things not argued by the

applicant Tribunal held it could Decision holus bolus is the issue, it is not a procedural issue Tribunal should not be limited by the applicant’s grounds for review or the evidence in

the initial review, they can do whatever it takes to make a decision It’s the outcome that is under review, not the process taken to make the decision

Drake (p.139) Deportation case Drake subject to criminal deportation order for possessing cannabis Sought review in AAT, then to Federal court Argued – Over-reliance on criminal deportation policy, the AAT hadn’t acted

independently enough Federal court – drew a distinction between admin review and judicial review

o Guiding question is not whether the decision which the decision maker made was the correct one on the material before them, but whether the decision is a correct one on the material before the tribunal

o Tribunal is allowed to take the application of policy into account as a relevant factor when it is making its decision, however the tribunal must not abrogate its function in favour of merely determining whether the decision was inline with the policy

It is relevant but not determinative

Brian Lawlor (p.140) Collector of Customs revoked a warehouse licence

18

Tribunal held that revocation was invalid Customs argued AAT had no jurisdiction because of s25(1) of the AAT Act

o If it had no power to revoke the licence then the AAT had no jurisdiction to review the decision

Full Federal Court held – the words ‘power’ and ‘decision’ in the AAT Act should be given a broad definition, it meant in the ‘purportive’ exercise of power you fall within the power of the Act

Case shows that tribunals like the AAT are empowered to give comprehensive relief and pursue administrative justice in the fullest sense

Application of the approach of the full Fed Court won’t necessarily lead to a different decision of the tribunal even if the tribunal finds the first decision was wrong, must show you are in the right

o Just by finding the original decision was wrong does not mean a new decision will be in the applicants favour, or the outcome will be better

Class 9 – Week 5 Tue – Merits Review

Internal review – within the agency at a higher levelExternal merits review – tribunal stands in the shoes of the original decision makerAAT – can look at everything de novo – can go beyond the grounds raised by the claimant

Contemporaneous review Distinguished from historical review Looking at the matter anew, according to the facts and circumstances as they exist at

the date of review Tribunal becomes ceased of the matter – point at which the tribunal starts making

decision, takes responsibility for the matter: (following internal review:) If the reconsideration favours the applicant the Tribunal ceases review

o There is no longer a disputeo Doesn’t matter that things have changed, all that matters is the applicant is

happy, there is no longer an issue If the reconsideration disfavours the applicant

o General rule – govt agency loses the power to vary or alter its original decision (Bloomfield)

o The guiding Act may override this general rule and provide that the tribunal can relinquish responsibility back to the agency

Only if the parties consent Changes in facts

o Tribunal’s constituent Act usually allows Tribunal to receive fresh evidence E.g. AAT ss38-40

o At other times the constituent Act expresses that the review is to be undertaken on the facts at the time of the original decision

o Crucial to scrutinise the relevant legislation to determine the moment at which the factual matrix should be considered

o The Act will guide when the Tribunal should consider the evidence Change in the Law after the original administrative decision

o Usually the constituent Act will contain transitional provisions Articulate rules to cover hangover cases

o In the absence of transitional provisions the general rule is the Tribunal should act according to the law at the time of the Tribunal’s decision (Kavaadias)

Exception – accrued rights are not diminished by change in the law Esber v Cth (p.147)

Workers Comp payments under 1971 Act 71 Act repealed before decision could be reviewed The section being argued no longer existed in the 1988 Act Q – look at 71 or 88 Act?

19

HCA majority – s8 Acts Interpretation Act, unless amending act expresses contrary intention, the amending act should not affect a right held by individual

What was the nature of Esber’s right? Majority – Esber had a substantive right to have the decision

reviewed by the Tribunal The right to the lump sum was a contingent right – it was

contingent on showing the right was unjustly refused originally

Majority – not withstanding the fact that Esber’s right to the money was contingent, that did not prevent him from being able to make a claim

Dissent – original section (71 Act) conferred discretion not a direction, therefore no substantive right. All Esber had is a hope to the lump sum if he could persuade the commissioner of this right

Procedure and Evidence

Merits review system The usual grounds of review apply to merits review as apply to any other

administrative decision process Any mistakes made in merit review are fixed via the Federal Court

Structural Models Constituent Act provides mode(s) of review: Adversarial adjudication

o Court systemo Main players – the parties themselveso Most/all adversarial tribunals do not operate the same as courts

Not bound by the rules of evidence No strict rules on onus pf proof

Non-adversarial and inquisitorial dispute resolutiono Respondent does not appear before the tribunalo Tribunal plays a more active role in gathering material used to make the

decision Decision on the papers

o The respondent agency is required, once proceedings have been commenced, to provide all relevant documents to the tribunal

o No oral submissions Mediation

o Parties to a dispute meet with an accredited mediator who encourages and assists them to agree upon a solution to the dispute

o Informal and voluntary attendance Different forms of review lead to different definition of tabling of evidence

o “Not bound by technicalities, legal forms or rules of evidence”o Constituent Act will make it clear that they are not bound, will set out the rules

Eshetu (p.159)o Applied to be recognised as a refugeeo Not acceptedo Overturned by Full Federal Courto Minister appealed to Full federal Courto Flawed process of reasoningo Majority overturned tribunal decision

o Majority accepted Eshetu’s argumentso Held this made the RRT’s decision so unreasonable that no

reasonable person would have made it – contravened s420 of the migration Act

o Case turned on 2 sections of the Migration Act

20

o S476(1)(a) Procedural error

o S420 RRT not bound by rules of evidence

o HCA – Did the 2 sections combine to specify a procedure the RRT was required to follow, and if so would a failure to follow that procedure make the decision of the RRT appealable

o Minister was successfulo Gleeson & McHugh – s420 was intended to be facultative, not restrictive –

they are intended to free tribunals of constraints applicable to courts of lawo They are intended to allow freedom, not to provide boundaries

o Gaudron & Kirby – s420 requires the RRT to operate as an administrative body with flexible procedures

o Gummow – s420 is merely exhortatory and does not establish set proceduresTribunal is, however, not absolved from it obligations to act lawfully

o Gleeson CJ & Handley JA – p.160To determine whether a section such as s420 is … you also have to look at the other sections of the Act, the character of the decision etc…

Proceedings and the role of the parties Took a lot of cases to determine conduct and proceedings Sullivan (p.161)

o Experienced army piloto Diagnosed with a psychotic illness and was hospitalisedo Drs reported he should not fly aircrafto Review of licence was reviewed on medical groundso Appealed to tribunal re his licence not being reviewedo He represented himselfo He wanted to question Dr Evans, an experto Dr Evans was not summonsed and he did not appearo The Tribunal did not adjourn to allow Dr Evans to be summonsedo AAT found he didn’t meet medical grounds and his licence was not renewedo Full Fed Court – question was whether the failure of the AAT to allow an

adjournment amounted to an appealable error – contravention of s39 S39 of the AAT act gives the person appearing before the AAT the

right to present their case Active duty of the AAT (Sullivan didn’t bring it up himself)

o Held – s39 is a statutory obligation to accord natural justice or procedural fairness

o Deane – it is not an unmitigated positive for a tribunal member to make suggestions to the applicant, second guess the applicant; it may throw them off their game

The Tribunal shouldn’t have adjourned as Sullivan didn’t asko Deane – distinction between current case and a hypothetical situation when a

Tribunal refuses an adjournment A refusal would be a breach of procedural fairness

o Sullivan had plenty of opportunities to provide evidence, he didn’t need to be offered an adjournment, alternative offers for opportunity were made

o This case illustrates the reluctance of appellate courts to impose excessive procedural duties on tribunals given that they are meant to operate freely

This is to ensure that Tribunals don’t become overburdened by something that is not their duty

Hayes (p.164)o Procedural issues ‘pre-trial’o Tribunal still has power to control what happens before the trialo APC terminated WC payments of Ursula Barnbrookeo UB appealed to AAT

21

o APC wanted to delay the introduction of a video of UB into evidence, until the cross-examination (XXN) stage

o AAT disagreed with APC and held the video should be made available to UB prior to her giving her evidence

o APC appealed from AAT to Federal Courto Found in favour of APC – AAT must accord proc fairness to both partieso A Tribunal has some discretion to control XXN but if in so doing they make it

impossible to test a witnesses evidence then they have denied proc fairnesso Wilcox J stressed it is important to avoid the educing of false evidence

because she would have the chance to tailor her evidence to accommodateo If the failure to make evidence avail to the other side at a particular point of

the proceedings would be likely to lead to a breach of proc fairness, that is the point when a tribunal could step in

o Moreover, it is necessary for the tribunal to consider this on each occasiono This case is the high water mark for allowing tribunals latitude in this way

Re Taxation Appeals (p.165)o Similar to Hayeso Respondent brought an action seeking an order to restrict certain documents

from the applicant until XXNo AAT diluted the impact of Hayeso Hayes did not allow docs that otherwise would have been made available to

be routinely withheld with the intention of being used in XXNo Overriding consideration is proc fairness and it would be rare that non-disc of

docs would be necessary to give a person a fair caseo We also shouldn’t assume that parties are likely to lie under oatho Distinction made between safeguards for parties being allowed to present

their cases fully and fairly and entrapment devices The former is more important than the latter

o Fundamental principle under which the AAT operates – the proceedings have to be open, and a function of that is that each party has to be made aware of all the relevant material the other party will be relying on

In the wake of re Taxation, Hayes is seen as the high water make – re Taxation has been preferred yet Hayes is from a higher court

o Hayes has been limited to application on the facts only There is a crossover – Cth act as a model agent

o Based on level of resourceso Cth should not try everything, they should try and achieve justice

Pochi (p.167)o Citizenship case, deported, didn’t actually have citizenship due to paperwork

issueo In commerce in marijuana – went beyond the facts of his convictiono Pochi appealed against deportation to AATo Relied on evidence of his sudden increase in wealth, relationship between

him and drug offenders, police in camera evidence (secret evidence)o AAT – Brennan P – evidence not sufficient to find a positive finding that Pochi

had been involved in commerce in marijuanao Also took into account – damage that deportation would do to family,

circumstances around formality of citizenshipo Should be the Minister who bares the onus of proof re marijuanao Brennan looked at how the additional facts would be proven

Necessary to apply the Briginshaw standard (2 applications): If you are making an allegation against someone that is partic strong

or has dire consequences it is inherently less likely to have occurred Where the consequence of the proposed course of action is partic

grave then the decision maker will not likely be persuadedo Held it was possible to disregard the rules of evidence however this does not

give the tribunal carte blanche to treat the accused unfairly in regards to evidence – must apply Briginshaw at least

22

o Appeal to Full Federal Court – Deane J – AAT legally bound to s12 that deportation was available if and only if they could reach a positive finding on the marijuana charge

o If the AAT found it only gave rise to a mere suspicion, that is not enough for deportation

o If the AAT could make a decision based on mere suspicion or speculation then the AAT rules of procedure would involve no more than a futile illusion of fairness

o Smithers J in dissent did not agreeo NB: power used now gets used routinely by the Minister

Deportation requires serious crime Power used now is not Deportation, it is a Removal power which is

less stringent (Pochi would be out in today’s climate) Onus of proof – general rule = no side bears an onus of proof in tribunal procedures

o However, there is a tactical advantage in each side ensuring they educe the best evidence possible

McDonald (p.171)o DG cancelled McDonald’s invalid pension on the grounds she was not

permanently incapacitated for worko AAT affirmed DG decision on grounds that there was no settled expectation

of the likelihood that McDonald’s incapacity was likely to continueo McDonald appealed to FFCo Q – whether the AAT had wrongly in effect opposed a burden of proof on

McDonaldo Court allowed the appeal but on other groundso On burden of proof the court agreed with the AATo Woodward J – obligation to satisfy the burden of proof should not generally

be placed on tribunalso However – quote on p.172 – starting point is to look at the relevant statute,

use common sense, natural justice etc… Only if those things don’t help, then look at the Courts

o It is reasonable that if an accused does not provide evidence to support a claim, that the tribunal / jury will presume there was none

Epeabaka (p.173)o Claimed refugee status which was rejectedo RRT rejected his claim on credibility groundso FFC – Finkelstein J – tribunal is essentially inquisitorial therefore neither

party bares a burden of proof. Tribunal’s task is to listen to all the evidence and to decide the case on the basis of that evidence.

Listening to the evidence means you are listening to someone elseo The q then becomes not what is the standard of proof but rather what is the

appropriate standard of persuasiono J held it should be a civil standard – balance of probabilityo This is mediated by Briginshaw – practical standard is effected by the

seriousness of the relevant allegation

Class 10 – Week 5 Fri

Role of Policy in Tribunals Central issue – how Tribunals use Policy in Administrative review FFC in Drake held that a Tribunal could not apply Govt policy uncritically If a Tribunal is wanting to apply a policy it has to consider the proprietary of the policy The Tribunal has to assess independently whether a particular policy is applicable

before applying it When sent back to AAT – held that a Tribunal should ordinarily apply Govt policy but

it should only depart from it cautiously and sparinglyo This has become the dominant approach even though it is from a lower court

23

Deane quote p.635 – “while consistency may properly be seen as an ingredient of justice, it does not constitute a hallmark of it”

o Consistency is required in the judicial system but outcomes are not consistent

Lawyers – wary acceptance of the role of policy Executive – emphasis is different, stresses that the department from policy by the

judiciary causes nightmares for administrative decision makers Important to note that the constituent act of some tribunals contain explicit

requirements that the tribunal apply govt policy provided it is legally valid and has been properly made

Drake (p.637) US citizen Charged of growing marijuana in NT Deportation order made against Drake Relevant also to consider deportation policy with following elements:

o Every case is decided on the basis of its indiv circumstanceso Basic q is whether in all the circumstances it is in the best interests of Aust

that the person be deportedo Some of the matters being taken into account incl the nature and circ of the

event, likelihood of person re-offendingo Minister less likely to deport for sex and drug offenders

Procedural advantage in use of policy / Tribunals – no rules on evidence in tribunalo Leads to findings of tribunals being different to Ministero Not a problem – a consequence of investing decisions on tribunalo Inconsistency in judiciary is not goodo Following govt policy is a legitimate way of avoiding inconsistency

Balancing thiso Policy must be consistent with the Acto It can’t be unreasonable in the Wednesbury senseo It can’t truncate the decision makers discretion

Tribunal not obliged to apply policy if there are cogent reasons:o If policy is unlawfulo If applying policy in this part case would work an injusticeo It would lead to a detriment to the relevant party that is disproportionate to the

benefit to community General position – Tribunals can’t simply override govt policy just because they don’t

like it, or it can think of a better one

Re Goodson (p.642) Goodson receiving newstart allowance Entitlement contingent on applying to a case management agreement Agreement required Goodson to meet with case manager when asked Case manager sent G a letter which required him to attend at a certain time

o He didn’t attend 2nd letter to attend at later date

o He did attend Said he didn’t receive the 1st letter Preceeding 3 years – he had attended all but 1 meeting Policy – person should be found to be in breach of the agreement if they failed to

attend a meeting – only excuse is not receiving the letter Goodson was found in breach, he appealed to AAT If the decision maker based it solely on the policy this would mean there had been no

genuine attempt to exercise the discretion under the Acto Couldn’t elevate the policy to that levelo Decision maker should have considered all circumstances

Barnett noted there are many explanations for not receiving a letter There had been a blind application of policy

o Hadn’t referred to her powers of discretion

24

Example In-Class Test

General points Problem questions

o Read the factual scenario a number of timeso Read it with a pen or highlighter handyo Follow the instructions

Most questions are directed at specific issues Marks can only be provided for answers relevant to the question

o Do a brief plan at least Identify what is relevant and not relevant Do bullet points etc…

o Cover the points in appropriate depth Prioritise issues

o Be comprehensiveo Threshold question

Do the facts support X? Still consider the substantive issue – you could be wrong

o Be methodical – when stating an important proposition State the legal principle Give relevant authority for the principle Apply to the facts / issue Note and resolve any complicating issues e.g competing authorities

o Be careful with allocation of time and wordso If citing a case or legislation – don’t need to cite in fullo If referring to an authority not cited in our book – give enough detail to ensure Ed

knows what it is No need to refer to any authority outside our books

Essay questionso Engage with facts of questiono Avoid nuances?o Illustrate your points with exampleso Don’t forget to provide authorities for exampleso Be criticalo It is OK to disagree with a HC judge

In-Class test 21. S8 says more than 1, reg says 1 – Policy inconsistent with Act2. S9 prohibition v Reg 5 obligation – means ends question3. Evidence question

i. tension between Hayes and Tax but mention general principles of evidence alsoii. tactical stuff

Class 11 – Week 6 Tue - StandingTribunal review due

Standing Locus Standi The right to commence a legal proceeding in a court or tribunal Whether a person has this right should be uncontroversial Disputes may arise when the relationship between the decision and the person

questioning it is indirect, e.g:o Public interest groupso Trade union or associationo Commercial entity – rival decisiono Member of the public

25

Historical basis for the standing rule lies in the belief that a person must have a particular legal interest in the matter

o Must be seeking to vindicate their private, as distinct from their public, right Modern test shifts some of the emphasis to the person having a ‘special interest’ in

the subject matter of litigation The person questioning the decision must be aggrieved by the decision

o They must prove their interests are adversely effected

Theoretical basis behind standing Retain the current test, which is restrictive v move to test that is more open Restrictive arguments

o Fundamental to the adversarial system It is the parties themselves that are hugely responsible for shaping

the issue that is to be decided upon They shape the legal questions and the evidence Gouriet v Union Post Office workers [1978] Civil courts are only concerned with resolving private rights, public

rights are enforced in the criminal courts Exception – A-G has the right to take on a public interest case Public rights should be addressed in parliament Floodgate argument – courts would be inundated with public cases

o As a court decides issues of law, it is important that parties before the court have an interest in the outcome

o Every govt decision shouldn’t be open to a suit from ‘busybodies’ Vexatious litigation argument

o Constitutional argument – Courts hearing federal issues can only hear matters in a constitutional sense and parties initiating proceedings must ask the court to grant relief of a kind that enforces a right, duty, obligation

o Established element of public law – a change in law should be made by the legislature, not the courts

Courts shouldn’t make decisions to open the test as it effects them Three main proposals to change from restrictive

o Open standing – free for allo Modified – ALRC proposal

Relevant legislation indicates Public interest discretion

o Applied less restrictively by the courts Arguments for these proposals / against restricting standing:

o A-G role has changed, no longer have anyone who sees it as their duty to bring cases in the civil courts to defend public interest

o Can’t necessarily tell the difference between a busybody and a person with special interest

o Pp 857-858

Case Law ACF (p.861)

o Body corporate whose main purpose was conserving the environment and advocate on conservation issues

o Opposed a development that was approved by Minister for Environmento ACF wanted an injunction to stop the developmento Gibbs J – The problem with ACF’s position was that it was seeking not to

assert a private right but to prevent a public wrongo Development in question didn’t effect ACF directlyo Person seeking standing must have a special interest

This did not include a mere intellectual or emotional concerno To gain standing, a person must gain some advantage other than writing a

wrong, upholding a principle or winning a contesto A belief does not suffice to give locus standi

26

o Sinclair (1975) – distinguished on facts Developer had agreed to read submissions from org, this case was

different, Iwasaki had not agreed Had no special right

o Dissent – Murphy J – low threshold for being ‘of special interest’ Onus v Alcoa (p.863)

o Same court as ACF and only 1 year later but quite different outcomeo Relevant Act made it an offence to damage or endanger an Aboriginal relico Custodians of the area and its relicso Alcoa wanted to build a mine on the lando Q – whether the appellants from the Aboriginal group had standingo Gibbs CJ – restated rule from ACF (special interest, greater than general

public etc) Application of rule was different Aboriginal group did have a special interest that went beyond a mere

intellectual or emotional concern Went beyond other members of the public The land had cultural and spiritual significance, the group was the

custodian of the relics and they used them regularlyo Stephen J – watered down ACF, gave guidance to J applying ACF

Possessing an intellectual or emotional concern is not a disqualification from being given standing

It is necessary that the party be able to prove or point to something more than an intellectual or emotional concern

This case – spiritual connectiono Brennan J – similar lineo Significance of this case – HCA seemed to take a half step back from ACF

More liberal than ACF In applying the rule / test of special interest they made it clear that it

doesn’t just mean being financially effected Shop Distributive (p.865)

o Union case in SA that went to the HCAo Minister announced a scheme to permit Sunday trading in Adelaideo Union sought a declaration to invalidate this schemeo Majority – Union had special interest necessary to give it standingo Union’s interest in this matter was greater than that of ordinary members of

the public: Union had a large number of members employed as shop assistants

and many of these were employed in relevant area Subject matter of the litigation was trading hours and the shop

assistants employed in that area had a special interest Add these two together and the Union has a special interest Any alteration to the trading hours that necessarily effected the terms

and conditions of their employment and they had given the Union power to argue on their behalf

Marine Engineers (p.866)o Respondent secretary issued a notice re manning numbers to operate a ship

safely and efficientlyo Applicant was a union which claimed the number was too low and would

effect the safe operation of the vesselo They wanted reasons for the issuing of the noticeo Gummow J – held the Union had standingo None of the reasoning factors would have been determinative on their own

but added together there was a sufficient special interest: Union was set up with stated interest and objective in terms of

obtaining and maintaining reasonable conditions of employment for its members

27

Union was explicitly invited to participate in the decision making process and it actually made submissions that were preparatory to the respondent’s decision

Unions complaint was not made frivolously, it had a real interest in the matter – not vexatious case

Lifts corporate veil of union – underneath are all the members who have standing

Right to Life Assn (p.868)o Opposition to abortiono Respondent supervised the trial of an abortion drugo Lockhart J – held the RTL Assn did not have standing under the ADJR or at

common law Restatement of ACF Assn grievance did not go beyond that which any person has as an

ordinary member of the public – all they had was an intellectual or emotional concern

Distinguished between the right to speak on an issue and a right to standing

Had to deal with tricky authority – Priests v censorship case Case distinguished because for the priests it was a profession but for

the Assn it was not

Non-Statutory Remedies Declaration and injunction

o Equitable jurisdiction of the courto Stops something from happening or requires something to happeno Standing requirement is the same – requires special interest in the subject

matter Mandamus

o Commands the performance of a duty of a public nature that remains unperformed – court orders performance of a specific thing

o More restrictive – must demonstrate a specific righto Blackburn is the authority

Habeas Corpuso Seek the release from detention or imprisonment of a person who is being

unlawfully detainedo ‘Anybody in the community’ who knows of someone unlawfully imprisoned

has standingo Very open, not restrictive at allo Vadarlis

Certiorari and prohibitiono Ensure that a public body acts according to lawo Quash or prohibito A stranger can institute proceedingso McBain (p.872)

Whether single women could access fertilisation treatment Federal court held they should be permitted The Bishops opposed this They were granted the right to take this to the HCA by the A-G

A-G’s fiat Q – whether the Bishops should have standing in the HCA in the

absence of the A-G’s fiat McHugh J – noted general rule that a stranger to proceedings should

have standing Distinction made – although a stranger should have standing, the

court still retains a discretionary power to deny standing The Bishops had none of the special interests expected of strangers Their interest was limited to the fact that the decision was contrary to

their religious beliefs and teachings

28

Distinguished a party with standing (amacus curii) AC – you can have a say but only if the proceeding has

started, and you can be ignored

ADJR Act Person must be aggrieved The ADJR Act must cover the decision being argued (ss5,6) (reviewable decision) Defined by s3(4) to a person whose interests are adversely affected by the decision

or conduct Standing should not be given a narrow meaning

o Tooheys (1981) Constituent Act of tribunals express powers

o AAT Act – s27o McHattan (p.878)

McHattan was a customs agent who advised a party on importation Customs charge ended up being more than advised McHattan sought review of the decision in his own right

He may be liable in negligence for his wrong advice Brennan J (AAT) – distinction made between the process and the

outcome McHattan was unsuccessful because he had an interest in the review

itself rather than the outcome Just because customs came to a different amount to McHattan

doesn’t mean reputation is jeopardised Not enough for McHattan

o AAT Act s27(2) Confers standing on an association to seek review on decisions that

have public policy implications Very different to general rule

Week 6 Fri – Good Friday – no class

Class 12 – In class test – 24 April

Class 13 – Week 8 Fri – Judicial Review 1

Judicial review is considerably narrower than merit review. JR can only look at process rather than decision itself. JR is legal errors.Little new evid heard.

Creyke and McMillan- JR can be inconvenient to govt but is beneficial nonetheless. Acc to Brennan, JR is good for Govt, although can cause delays- leads to inevitable but not intended, efficiency.

Acc to Sir William Wade(UK’s foremost lawyer)- 1980 p39, “To exempt a public authority from the jurisdiction of the courts of law is, to that extent, to grant dictatorial power. (if decision cannot be reviewed then no binding check on the decision maker which then is a dictator.)

Writs tell you what remedy court can issue: Basis for devel of JR was the remedies, which are procedural in nature , prerogative writs What action court can atke to remedy an error of law (habeas corpus, prohibition, mandamus, certiorari (quash)–p39. More recently those writs substituted for declaration and injunction.Ground for error to challenge the decision/ review must first be identified. Substantive side of JR- the criteria that define unlawful activity and attract the grant of a remedy- initially dev’d as an adjunct to the procedural aspects of the remedies. Grounds for error: (need to clarify)

Procedural fairness, (eg bias)

29

Natural justice (eg Pochi) Ults vires (outside the power of person making decision) Error of law Unauthorised purpose Irrelevant considerations (eg Inflexible applic of policy. Wednesbury unreasonableness

Review of correct or preferable decision on the facts not considered in JR.

JR under Statutory schemes1977 statutory framework est’d for Jr by Fed court- ADJR Act 1977. Applic for order of review(ss11,16) replaced the prerogative remedies.

Listing & codifying the common law grounds for JR (ss5, 6) Granting a stat right to the reasons for a decision (s13) Overriding existing privative clauses (s4)

Inherent Judicial reviewLegality of govt action.

In criminal- Coco see p40. In civil action- eg Cooper (Trespass against a govt officer)- “Collateral” review of the

validity of administrative action

FCA (Consider ADJR Act-default act if no part Act), Const, Judiciary Act, own Act eg Migration Act, IR Act)FCA principal venue for JR. Court is a creature of statute and limited to those areas conferred upon by Parl: Fed Court of Australia Act 1976 (Cth) s19. FCA does NOT have inherent common law jurisdiction (like the states and terr’s SCs).FCA has elusive accrued and associated jurisdiction which substitutes for common law jurisdiction.

In FCA, ADJR act applied by default if no Act in that area (eg Migration, IR- separate regimes)

ADJR Act 1977 Cth- principal template for JR for most actions. May apply to FC for: Order of review (s 11) The grounds of review (ss5 &6) The relief the court can give (s16) The courts power to stay the operation of a a decision being challenged (s15) The procedure by which a person can obtain a written statement of reasons for a

decision before commencing an action s13) cf Sch 2

ADJR Act s3 - Admin action must have certain qualities:1. must be a decision of an administrative character made under an enactment (s3)2. or conduct for the purpose of making a decision (s6) (preliminary steps for making a

decision are reviewable, enlarges JR and what is subject to JR. Includes issues leading up to a decision.

Exclusions of categories of admin action not reviewable under ADJR are expressly in Sch1.

Jurisdiction of FCAJurisdictional limitations in the ADJR Act had effect of redirecting part of fed judicial review to the High Court. So, FC jurisdiction widened to match that of the High Court’s orig jurisdiction under s75(v) of Const. Judiciary Act enacted 39B(1) in 1983 to achieve this.

p41Judiciary Act 1903 Cth expands FC jurisdiction by

39B(1)-defines FC jurisdiction by reference to remedies that can be granted (and so often referred to as conferring common law jurisdiction on the court.

30

So FC juris not confined to ADJR ACT grounds and concepts therein but can draw on common law flexibility).

39B (1) expands the FC juris to match the HC juris under s75(v) Const. Mandamnus, prohibition.

39B(1A) expanded further in 1997-and incl’s const issues and all matters arising under Cth leg. (this confers juris on civil matters concurrent to that exercised in State and terr courts.

39B(1A)(c) FC can review directly the validity of sub leg, which the court cannot do under ADJR Act (because it is not an issue of admin character). Limits on prov:

an action resting on 39B(1)- Must be against an officer of the Cth an action resting on 39B(1A)(c)-must arise under a law made by Parl jurisdiction conferred by 39B does not reach as far as orig juris

conferred on the HC by the Const s75(iii), which embraces any claim against the Cth.

S44(2A) enacted in 1984- facilitates the transfer to the FC of matters commenced in HC’s orig juris that are more suited to FC juris. (s44(2A) should be read with s39B(1). HC guards this prov so can transfer to FC as HC hears only limited matters now as are costly and timely. 2002- Govt attempted to get Migration issues removed from s44(2A) and s39B(1) so couldn’t transfer cases from HC to FC. Ony 7 judges on HC- don’t have time to hear all cases.

Associated and accrued jurisdiction extends the jurisdiction of the FC. P43Acc to Creyke & McMillan-These sources of jurisdiction enable the FC to resolve the entirety of a claim or dispute, even though an aspect of the claim or dispute would otherwise by beyond the courts juris. A non admin law claim, arising under Cth or state law that is intertwined with a claim concerning the validity of fed exec action. S32 FC ActDifferent testsAssociated jurisdiction

Associated jurisdiction (s32 of FC Act) see p43. Const underpinning is s77(i) Const. The assoc juris of the FC extends to but is also confined by the areas of fed juris mentioned in ss75 & 76.

s32 of FC Act would enable the FC in hearing an action instituted under ADJR Act to determine an “associated” claim for breach of the Trade Practices Act 1974 (Cth) (on basis that the claim is a matter arising under a law made by the Parl s76(ii) Const. General Newspapers

In an ADJR action the court could determine an associated claim for common law damages made against a Cth agency which is a party to the proceeding :s75(iii) Const.

Associated juris confined to fed claims. Less imp since enactment of 39B(1A) Judiciary Act.

Accrued Jurisdiction Refers to the inherent power of a superior court to settle the controversy before it by

dealing with all the issues that ‘arise out of common transactions and facts’ Fencott v Muller 1983. A juris specifically conferred upon the court eg ADJR Act extends to determination of the entire matter or controversy before the court. In Tetron- court held to have juris to hear an ADJR Act and a common law claim together.

Accrued juris applies only to claims arising from the same transactions and facts, atat is part of of the one controversy or matter and the fed claim that attracts juris must be a substantial aspect of the controversy.

Accrued juris not confined to fed claims. More imp since HC in Re Wakim; Ex parte McNally (1999)- declaring invalid the conferral of state jurisdiction upon the federal court under the cross vesting scheme.

Attorney-General (Cth) v Qld 1990- FC did review of validity of a ruling made by a Royal Comm est’d jointly by Cth and state letters patent to inquire into Ab deaths in custody. (Comm’s ruling relied on Cth letters- so validity could be reviewed under the ADJR Act; and

31

extent that the ruling relied on the state letters, it fell within the courts accrued jurisdiction- there was one controversy before the court.

Controversial-accrued juris in Post Office Agents Assoc Ltd v Australian Postal Commission (1988)

Relief in FC- ss21,22,23 of Fcourt Act. (No juris in these sections but powers that can be exercised in ammeter already within the juris of the court (Australian Securities and Investments Commission v Edensor Nominees P L (2001). Discussed in Tetron:

s21- court can make binding declarations of right, whether or not any consequential relief is or could be claimed.

s22- empowers the court to grant” all remedies to which any f the parties appears to be entitled” in order to quell the controversy between them.

s23- provides that court has power to make orders of such kinds… or direct the issue of, writs of such kinds, as the Court thinks appropriate.

Migration Act p45 text1992, Parl intro’d Pt8 of the Migration Act 1958 Cth , in substitution for the ADJR Act and Judiciary Act, a special and restricted scheme for review of decisions on migrant entry and refugee claims. (Was too many cases and applic for JR on grounds of decision making). Scheme intr’d so that before applying to FC for JR, an aggrieved person req’d

first to seek review of a decision on the merits by the MRT or RRT any applic to the FC for jr of a Trib decision was thereafter to be commenced within

28days of Trib decision. (No power of extension given to Court). Bodrudazza in Hc recently held that 28days was too short.)

Grounds for jr in FC were more confined than those applying under s5 of ADJR Act (privative clauses intro’d- stat prov which means this category will not be subject to JR- limits right to seek JR in Migration Act eg breach of nat just and relevant and irrelevant considerations were excluded as independent grounds of review.)

Constitutional validity of restricted scheme upheld in 1999 by HC majority 4:3 in Abede vCth 1999.Consequence of restricted scheme est’d in Pt 8 Migration Act was that HC’s orig juris under Const s75(v) was broader in some respects than FC,

as to decisions that were reviewable grounds for review time in which review could be sought.

Eg Aala- breach of nat justice by RRT held. HC held that there had been unlawful admin action of a akind that could not have been raised in FC.Miah-concerning the validity of a dept’l decision as to which the applic for review was made outside the 28-day time limit.

Legislative change in Migration Act 1958 (Cth) in 2001- class actions proceedings can no longer be used for decisions under Mig Act

TampaIn 2001, Cth Parl enacted new Pt 8 Migration Act, est a diff scheme which limited judicial review of decisions under the Act even further.

Proceedings can be commenced in FC under s39B Judiciary Act or in HC under Const s74(v).

BUT, are subject to a privative clause (that JR of Immigration decisions cannot be undertaken in any court on any ground s474.

HC in Plaintiff S157/2002-HC held privative clause did not prevent review for jurisdictional error and time limit of 28 days was not effective against a decision affected by jurisdictional error.

Limits on jurisdiction p 46 ADJR Act s9A and Judiciary Act s39B(1B0-(1F)eg of direct prohibition. Cannot

undertake jr of decisions made during criminal justice process, part committal hearings. Ijarrett v Seymour 1993.

Privative clauses in others (than Migration) that restrict review eg Income Tax Assessment Act 1936 (Cth) ss170BG, 177.

32

Subtle restrictions in terms in ADJR Act and Judiciary Act s39B

Problems in finding a jurisdictional basis to challenge admin decisions: Decisions made by Cth statutory Corps Decisions that are self-executing Decisions sourced in contract rather than legislation Decisions made by private sector agents acting on behalf of the Cth

Representative actions in the FC p46Federal Court Act Pt IVA-juris in FC to hear representative proceedings (class actions) eg Din v Min for Imm & Multic Affs 1997; De Silva v Min for Imm & Multi Affs 1998)

Legislative change in Migration Act 1958 (Cth) in 2001- class actions proceedings can no longer be used for decisions under Mig Act

State and territory jurisdiction in fed matters- p47 Const s77 (iii) provides that Cth Parl can invest a state with fed juris. But CTh Parl

has to decide the extent of this. S32 FC- in chambers matters pending in the FC- intelocutory issue. (don’t habe to go into chamc=bers actually).Fed issue must be co-lateral to where it has primary juris.

Judiciary Act ss39(2) & 68 implemented s77(iii) (general conferral of fed juris on state courts in civil and criminal matters)

Judiciary Act ss38, 39- provided that HC had exclusive juris to grant mandamus and prohibition; by implication, juris of state courts was limited tio granting an injunction against an officer of Cth.

s9 ADJR purported to oust state admin law juris in favour of Fed court, eg Nomad Industries of Australia P L v Fed Comm’r of Taxation 1983- NSW SC held that ADJR Act s9 removal from state courts of juris to ‘review a decision’ did not preclude a state court from ruling on the correct interpretation of a Cth stat provision that governed a person’s entitlements (self-executing provision).

Juris of terr SCs to undertake fed judicial review is not ousted by ADJR Act s9 or Judiciart Act s38.

High Court Orig Jurisdiction Appellate jurisdiction on Cth, state and terr public law Orig juris confined to Cth Govt action – s75(v) S75(iii)-see below- brings together state and terr systems.- jurisdiction defined not by

reference to remedies or grounds but by reference to one of the parties – CTh. S75 provides HC-orig juris where

Cth, or a aperson suing or being sued on behalf of the Cth is a party where writ of mandamus or prohibition or an injunction is being sought

against an officer of the Cth. S75(v)- see below (is a safeguard against Govt as can restrain Cth officers) &

(confines to three remedies –mandamus, prohibition, injunction. Gap for deciding grounds for these remedies is filled by common law.

HC orig juris is supplemented by the Judiciary Act s44(2A)- HC can remit for hearing cases to the Fed court; s30 Jud Act enlarges the orig juris of HC to include matters

arising under the Constitution or involving its interpretation s33 confers power for HC to grant habeas corpus and to make

orders of prohibition, mandamus, and quo warranto. s32 provides that HC has power to grant p50, juris on HC

confirmed to grant a remedy not specifically mentioned in s75(v) (certiorari & declaration. This power to grant such remedies is ancillary to the juris conferred in s75(v) and the power can only be exercised when it is necessary to effectuate the grant of some other aspect of the courts juris conferred pursuant s75 & 76 of Const.

Issues under s75:

33

Connection between matter and justiciability (McBain) Meaning of ‘officer of the Cth Constitutional dimension of s75(v) Scope of the three remedies mentioned in s75 (v).

s75(v)- Const importance and practical consequence.Importance-Dixon J- it was written into the instrument to make it constitutionally certain that there would be a juris capable of restraining officers of the Cth from exceeding fed power: Bank of NSW v Cth 1948. Term ‘constitutional writs’ in Aala shows the emphasis of by the judiciary on these consts safeguards against unlawful govt action Practical-Since ADJR in 1979 conferring jr juris on FC, HC reduced jr caseload, except in immigration jurisdiction after introduction of Pt8 Migration Act.

s75(v)- back up juris when opport for jr is denied or unavail in other courts. Since fed judges under “officer of the Cth, s75 means that proceedings for review of a

FC decision can be commenced in the HC’s orig juris (notwithstanding that there is either no right of appeal or that special leave is unlikely to be granted eg R v Gray; ex Parte Marsh (1985)

s75(v) defines juris of HC by reference to 3 remedies- mandamus, prohibition, injunction- means have played a key role on devel of admin law.

Ss75 (iii)- HC’s jurisdiction defined differently (not by reference to remedies or grounds but reference to one of the parties to any litigation, the Cth.

s75(iii) – most imp public law role is to support common law damages actions against the Cth in the orig juris of the HC Cth v Mewett (1997)

That a public corp is “The Cth” for the purposes of s75 (iii) Aust Securities and Investments Commission v Edensor Nominees P L (2001) (although doubtful whether it is an officer of the Cth” for the purposes of s75(v).

Green v Daniels- case commenced in orig juris of HC, relied on ss75(iii) and 75(v) to bring a combined action for common law damages and judicial review.

Integration of Aust judicial review schemes1. State courts-invested with fed juris. (see state and terr juris in fed matters

above)

2. HC- appellate juris under s73Const (to hear appeals from any fed court or the SC of a state, subject to any exceptions or regulations imposed by Parl. Stipulation is that an appeal is possible ony if HC gives special leave to appeal: Judiciary Act ss35,35AA,35A; Federal Court Act s33.

3. Legislation enacted in each Aust legislature-Jurisdiction of Courts (Cross vesting )A ct 1987 (Cth)- invests the Fed court and the state and terr SC’s with juris of each other court.: s4.

This act supports the exclusivity of fed court’s jr juris by providing that ‘a special federal matter’ (commenced under ADJR Act or the Judiciary Act s39B) shall be transferred to the Fed Court unless the state or terr SC before which the matter is pending, decides ‘ that there are special reasons’ for the proceedings to be heard by the state court s6 (has to other than convenience).

Re Wakim; Ex parte McNally (1999)- restriction on the operation of the cross vesting scheme. HC Held that scheme const invalid to the extent that ir purported to cross vest state juris to the Fed court.So, Fed court has to rely on the accrued juris to undertake judicial review of state exec action.

Overcoming restriction from Re Wakim Inability of states to confer juris upon the Fed court has partially been overcome by

the referral of state leg power to the Cth under s51(xxxvii) of the Const and by Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) which conferred juris on the Fed court to undertake JR of action by a Cth officer under a state law.

HC decision in Australian Securities and Investments Commission v Edensor Nominees P L (2001)- held that juris could be conferred on a fed court in any matter in which the Cth is a party, either making or defending a claim (Const s75 (iii), even tho the substantive law to be applied is the common law or state law.

34

Jurisdiction under s75(v) Constitution and the judiciary Act 1903 (Cth) s39B.Jurisdictional criteria in Const s75 (conferring juris on HC) and Judiciary Act s39B (conferring juris on the Federal Court) are different to those in ADJR Act. They have coverage of decisions of a legislative nature and decisions made pursuant to executive and prerogative power (and so are broader in some respects than ADJR Act). Nevertheless, juris criteria explicit in ss75 and 39 impose limitations on the scope of fed judicial review.S75 and 39B have 3 req’ts: s75

1. Juris conferred in respect of matters and there must be a controversy about rights, duties or liabilities, that can be quelled by the exercise of judicial power.

2. The jurisdiction is to issue a remedy (writ of mandamus, writ of prohibition or an injunction). Litigant must est an entitlement to one of the above remedies, even if seeking an ancillary remedy such as certiorari or declaration. Mandamus and prohibition are avail only to correct a jurisdictional error, which in some circumstances at least is narrower concept than the grounds of review under ADJR Act. Abebe v Cth 1999

3. Relief must be sought against an officer of the Cth (stat corp is not an officer of the Cth – Post office Agents Assoc v APC 1988). Controversial – scope of jr should not depend on whether the decision maker has corporate status…..that ‘the Cth’ should not… be competent to remove its agencies from the reach of s75(v) by the simple expedient of corporatising them”. Also, a stat corp is “ the Cth’ for the purposes of Const s75(iii) but not under s75(v) Const.

S39B(1A)(c) of Judiciary Act imposes a jurisdictional req’t: ‘any matter… arising under any laws made by the Parl”. (Same phrase in s76(ii) Const interpreted as req’g that the right or duty in qu must owe its existence to the fed law or depend upon it for enforcement, rather than merely involve or touch upon the interpretation of the fed law (R v Cth Court of Conciliation and Arbitration; Ex parte Barrett (1945).

Justiciability p 56 common law concept. Purpose is to delineate what metters should be heard by a court. Definition of ewhat is justiciable is not set in stone. Courts are in conflict with Govt. Courts trying to expand and Govt to restrict.In statute based system- Cth ADJR Act, confines jr by the Fed C to a “decision of an administrative character made under an enactment”:s 3. (juris limitations in the Act).At common law, court decides situations where judicial review is appropriate- justiciability (by the courts). (can relate to nature of issue before the court, standing to commence proceedings, ground of legal error asserted, nature of the relief claimed, time at which proceedings commenced.)

Justiciablity turns on the nature of the power being exercised. Cabinet decisions can sometimes relate to other reviewable decs. International rels- treaties etc… generally are non-justiciable. Breach of internat

relations are non justiciable. Ditfort- Gummow- 1. conduct of inter rels will not be justiciable2. because if Aust is in breach, thee is nothing an Aust court can do. The appro party

would have to undertake proceedings eg International Court of Justice or by political sanctions.

Just because a matter is politically controversial, does not mean it will take it out of realm of justiciablity. Only if is polycentric will be unreviewable (Yeoman’s case).

Test for justiciability: acc to Gummow J is whether there is a justiciable matter, which there will not be is the plaintiff seeks an extension of the courts true function into a domain that does not belong to it, namely the consideration of undertaking and obligations depending

35

entirely on political sanctions (Re Ditfort: ex parte Deputy Commissioner of Taxation (NSW) 1988) p69.Overlay between justiciability and other principles of admin aw- standing and remedies (McBain)CCSU; Peko EZ.Standing is very important.Issues: whether a govt decision is justiciable, NOT

if it involves an exercise of prerogative power, was made by Cabinet, has a close rel to national security, or was made in conduct of international relations. Was matter for Tribunal.

Was not a live controversy not justiciable Was a time limitation and has expired- not justiciability

The exercise of jud power is restricted to cases that require a determination of legal rights and interests of, or claims made by, an indiv MCBain, CCSU and Peko EZ.

A judicial ruling must have a direct and immediate consequence for the legal rights or interests of a party (Peko).

Hypothetical issues are not justiciable (McBain). Must have been given jurisdiction to hear the matter

Cases

Post Office Agents Assoc Ltd v Australian Postal Commission (1988)Issue: the applic before the court for JR of a decision by Aust Post could not proceed under the ADJR Act (as the decision was not made under an enactment) or the Judiciary Act( as the commission was not an officer of the Cth)Held: the accrued juris supported the claim as the ADJR Act and Judiciary Act applications were made as ‘ a matter of substance not as a matter of artificiality or subterfuge. Subseq followed in cases but disapproved in others (Vietnam Veteran’s Affairs Assoc of Aust (NSW Branch) v Cohen 1996.

Re McBain; ex parte Australian Catholic Bishops Conference (2002) HCA p59- standing and non justiciable matter. Issue fell outside ‘matter’.Facts: in Fed court (appeal), Sundberg J held that a provision of the Infertility Treatment Act 1995 (Vic) was invalid for reason that it was inconsistent with s32 Anti-discrim Act 1984 (Cth). (prov in Infert Act limited treatment to married or de-facto women). Dr McBain wanted to give infert treat to a single woman but Vic law prevented. Bishops conf (as amici curiae) made submission in support of Vic law.Issue: Catholic Bishops were not parties to fed proc’s and so had no right of appeal against Sundbergs’ decision. Were granted the fiat of the Cth AG to commence proc’s in the orig juris of HC for certiorari to quash that decision. Cth Ag also applied to intervene in HC proc’s. Held: Both actions dismissed unanimously but on various grounds to do with jurisdiction of the HC and the remedy sought by the parties.By s109 of Const, then Fed prov prevails and so state prov overridden, here Vic Act.Issues: did give rise to a matter in the meaning of the Const? Held NO. Gleeson CJ- there are practical limitations on what the courts can resolve.

The court is asked by people who were not parties to the action in the Fed court, to quash the decision of Sundberg J on the ground that it was wrong.

People who were not parties to litigation do not have a claim of right to have judicial decisions quashed because they are erroneous.

Whether the outcome of the Fed court action was correct or erroneous, the rights of Dr McBain in relation to the effect of the Voc Act Pt8…. Have been declared by an exercise of the judicial power of the Cth. The parties are bound.

Hayne- must be a controversy, more than a hypothetical. There is no justiciable issue betw the Bishops & Dr McBain or the Cth AG & Dr

McBain…. Cth AG contends that a state statute is not invalidated by s109 Const. The Cth

AG does not assert some particular right, power or immunity in his claim

36

concerning the valid operation of a State statute. (Attorney General for NSW v Brewery Employees Union of NSW (The Union Label Case) (1908)- see below. Standing in that case as State AG had standing for proceedings for declarations of invalidity of fed legislation.

(McBain- HC tied its conclusion that an issue before the court was non-justiciable, to the constitutional concept that an exercise of fed judicial power must involve a ‘matter’ as defined in the Const ss75, 76.)

Cited in McBain:Re Judiciary and Navigation Acts 1921- that ‘matter’ means more than legal proceeding and that ‘there can be no matter within the meaning of s76 Const unless there is some immediate right, duty or liability to be est’d by the determination of the Court.Truth About Motorways P L v Macquarie Infrastructure Investment Management Ltd (2000)-

question of standing are intimately related to the nature of the relief that is claimed if relief is not available that will relate to the wrong which the applicant for relief

alleges, there is no immediate right, duty or liability which will be est’d by the courts determination.

Abebe (1999)- if there is no legal remedy for a “wrong’, there can be no matter.

Attorney General for NSW v Brewery Employees Union of NSW (The Union Label Case) (1908)- held that a state Attorney General had standing to bring proceedings in which validity of a fed statute was challenged.

Re Judiciary and Navigation Acts 1921- that ‘matter’ means more than legal proceeding and that ‘there can be no matter within the meaning of s76 Const unless there is some immediate right, duty or liability to be est’d by the determination of the Court.

Truth About Motorways P L v Macquarie Infrastructure Investment Management Ltd (2000)-

question of standing are intimately related to the nature of the relief that is claimed if relief is not available that will relate to the wrong which the applicant for relief

alleges, there is no immediate right, duty or liability which will be est’d by the courts determination.

Australian Railways Union v Victorian Railway Commissioners (1930)-The Cth AG contends for what is thought to be ‘a desirable state of general law under the Const without regard to the diminution or enlargement of the powers’.

Council for Civil Service Unions v Minister for the Civil Service (1985)(GCHQ case)- ? Justiciability of the Ministers decision: Legitimate expectation held but overridden by national security concerns. (Context imp- Thatcher are height of union-busting. Spys fighting for unionisation particularly irked her).Facts: Civil servants employed under GCHQ. Minister for Civil Service made decision altering the terns and conditions of employ(no longer allowed to have unions).. Ministers decision made pursuant to a power conferred on the minister by a Civila Service Order in Council (which had been made under royal prerogative). No consultation with staff for this decision and was well est’d consultation process bet management and unions for alterations to conds.Union granted declaration that Min decision invalid. Then appeal to CCA reversed the decision, was valid decision by Min and refused judicial review. Appeal to House` of Lords dismissed.Issue: validity of Minister decision? Justiciability of the Ministers decision:

whether a decision made in exercise of a prerogative power is subject to judicial review.

the effect in law to be given by a court to a govt national security claimHeld: on appeal to House of Lords, Lord Diplock (per curiam)

that (national Security aside), the Ministers’ decision would have been invalid by reason of the Min’s failure to consult- procedural impropriety. But per curiam, that

37

Min’s decision not to consult was justified on the grounds of natural security. National security outside courts are under Exec.

The instruction involved was pursuant to a Ministers power under an order in council and no reason why this mode of exercise of that power could not be reviewed by the Courts (lord Fraser). An exercise of prerogative power can still be reviewed by use of prer writs.

Majority- that it is not the source of power (that is prerogative or statute) that is determinative of whether the decsiosn of the executive is subject to judicial review. Controlling factor was justiciability of the subject matter- Not justiciable becaue rasied national security (nat security issues cannot be heard in court).

Appellants had legitimate expectation that they would be consulted before the union membership was withdrawn. Ministers failure to consult entitled them to jr of the instruction. However, this right was overridden by national security considerations.

Whether decision was in fact necessitated by nat sec req’ts was non-justiciable.

Acc to Lord Diplock to qualify for jr, the decision must have consequences (see p60), o altering rights or obligations which are enforceable in private lawo depriving person of some benefito legitimately expect to continue to enjoy benefit until some rational grounds for

withdrawingo has assurance will not be withdrawn with opport for consulting

no logical reason why the fact that the source of the power is the prerogative and not statute should deprive the citizen of the right of challenge to the manner of its exercise which he would possess were the source of the power statutory.

Belmarsh Detainees case- for nat sec have to produce more than putting matter under nat sec.

Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) Full Fed Court Australia – A cabinet decision not req’d by statute to be reviewable, can it be?Facts : company (peko) who held mining lease in Kakadu Nat pk sought to restrain steps to nominate a section of Kakadu Nat Pk to World Heritage listing.Issue: company claimed denied natural justice by the Cabinet before making the nomination. Claim upheld in first instance by single j, FC. Decision appealed to FFCA.Held: (Bowen CJ, Sheppard and Wilcox JJ- appeal allowed.No reason that a Cabinet decision should not be reviewable but when looking at all the circumstances will probably not be reviewable.

The company had been given adequate opport of stating its case to the relevant ministers over a period of yrs in written submissions. No denial of natural justice.

Executive decisions are not immune from JR because they are made as an exercise of prerogative power rather than statutory power, providing they are justiciable.

But is practically difficult. Bowen CJ- decision was not justiciable. HOWEVER, It is not appropriate for the court to review Cabinet decisions. Sheppard J- Cabinet deal with political questions and is inapprop for a court (and not

empowered) to interfere with what [Cabinet] does, being a political org and not specifically referred to in Const and not usually referred to in any statute. Sanctions that bind it I accordance with the law and in a rational manner are political.

Political decsiosn are impractical to question, are inevitably winners and losers, would be inefficient for govt to be req’d to be subject to hearings.

CCSU and Peko EZ- justiciability does not turn on whether an exercise of power is statutory or prerogative in origin, but on the nature of the power being exercised or the decision being made.

While the existence of a claimed prerogative power is aleays reviewable (Burmah Oil Co Ltd v Lord Advocate (1965), some prerogative powers will be non-reviewable as to their manner of exercise, while others are justiciable as a general rule.

38

Vadarlis- the existence of a prerogative/exec power was reviewed by the court.Victoria v Masters Builders Association of Victoria 1995)- courts prepared to review the manner of exercise of prerogative powers.Coutts v Cth 1985- manner of exercise of a prerogative power regarded as non-justiciable.

Class 14 – Week 9 Tue – Judicial Review

Justiciability – whether or not a court has competence to consider a matterADJR Section 6 – review on – administrative decisions and conduct

Section 5 – grounds

Judicial review Judicial review is only available in respect of Govt action However, an important question is what falls within the scope of Govt activity Related issue – blurring of the line between Govt reg and private sector reg

o Large number of private bodies that perform a statutory functiono E.g. Stock Exchange, Football tribunals, law societies

NEAT (p.106) Key case in this area Statute – Wheat Marketing Act – establishes a body (WEA) that is responsible for

controlling the export of wheat from Aus AWBI – wholly owned subsidiary of AWB – both companies owned by wheat growers S57 of the Act gave AWBI the right to export wheat and provided that WEA had to

consult AWBI and not give bulk-export consent without AWBIo AWBI has power of vetoo Historically, AWBI had more knowledge than WEAo AWBI was formally a govt entity

NEAT Domestic applied to WEA for approval for bulk export WEA refused because AWBI vetoed NEAT challenged the decision under the ADJR Act

o AWBI consultation with WEA, and the refusal of the export was a decision under the ADJR

Primary judge found the refusal was because AWBI had a policy that, in the current climate, no bulk exports would be approved

o AWBI only needed to take into account their own circumstances HCA – issue was whether a decision by a private company that had statutory effect

was reviewable under the ADJR Acto Majority dismissed NEAT’s appeal

Gleeson CJ – same result as majority judges but on different grounds and on obiter disagreed with majority approach

o Need to look at the character of the power giveno Must accept that a company, when given a power like this, will behave like a

company – won’t behave like a govt agencyo Rejected NEAT’s argument on the ground that

the Act gave AWBI the power of veto AWBI’s policy was not inconsistent with the Act and NEAT couldn’t explain why AWBI should be obliged to deviate

o Obiter – decision was of an admin character as AWBI was in effect equivalent to a public statutory body

Joint Majority (McHugh, Hayne, Callinan)o Held public law remedies are not available against AWBI because:

Gave AWBI and WEA roles that did not turn AWBI into a stat body AWBI is a private entity – objective is to maximise returns to

investors Irreconcilable issue at the heart of NEAT’s case – AWBI cannot have,

simultaneously, public and private roles

39

o Act didn’t authorise AWBI to approve the licence so AWBI could not be required to act in any particular way in approving licences

Kirby (dissent) – decision by AWBI was of an admin character becauseo It was made pursuant to a stat authorityo It enabled AWBI to pursue interests that are much wider than a normal,

private corporationo The fact that AWBI was, in form, a private company was irrelevant because,

in substance, it was a public entityo The Act elevated AWBI’s approval to, essentially, a decision under the Act

Commercialisation of Govt Activity NEAT showed what might happen with commercialisation Private company acting as a quasi-regulator of other private companies – and their

competitors!o Not subject to the usual forms of accountability that usual Govt entities are

GBEs – general rule – should be subject to admin law, unless their activity is undertaken in a genuinely competitive market

Things that will stop a GBE behaving badly:o Private law remedieso “Shop elsewhere” principleo TPAo Market forces

Jurisdictional Limitations on Judicial Review under the ADJR Act ADJR Act says what can and can’t be judicially reviewed That, in turn, defines the courts jurisdiction under the ADJR Act Section 5 says the Federal Court and the FMC can review a decision to which the Act

applies Section 6 says the FC and FMC can review conduct Section 3

o Ss 1 – defines decision of an admin character made under an enactmento Ss 2 – gives a broad meaning to action which might constitute a decisiono Ss 5 – defines conduct as any act or thing preparatory to making decision

These sections have all been the subject of considerable legislation One big issue courts need to decide in this area – Where does a reviewable decision

begin and endo Can’t review every aspect of a decision

‘Decision’ and ‘Conduct’ The word ‘decision’ is hard to define

o Deane & Northrop (p.73)o Northrop – thought processes, overt act by which the decision makers’

conclusions are manifested Early cases – courts took a broad approach (Lamb) There has been a general winding back

o ABCo ABT v Bond

Bond (1990) (p.74) ABT found Bond was guilty of improper conduct

o He was not a fit and proper person to hold a broadcasting licence under the Act

By reason of Bond’s control of various companies, they were also not fit and proper legal persons to hold broadcasting licences

11 decision issues, 1 conduct HCA looked at meaning od decision and conduct Mason CJ – ADJR Act ‘provides little guidance as to the meaning of the word

decision’o Notes that the ADT Act is remedial

40

o Decision Decision is not at large – qualified by the words after it (qualified) Examples listed suggest a limited meaning ADJR Act seems to imply that ‘decision’ implies finality There is an implied distinction between a decision on the one hand

and conduct on the othero The decision should provide reasons, which will help define decision??o Conduct

Elusive Before the making of the decision If it makes the overall process flawed it falls within the definition of

conduct If it is something small, and it doesn’t effect the whole process, it

won’t

Right to Life Association (1995) (p.81) Anti-abortion advocacy Objected to a clinical trial of a drug which induced abortion Objection on the ground that the secretary of the health dept ought to have directed

that the trial should not have gone ahead because it was against public interest Reply – certain categories of abortion are legal under all State law

o No evidence any laws were being broken Sought review under the ADJR Act Federal Court held by majority that it was reviewable

o However RLA lost as they had no standing Lockhart J

o Because the RLA brought the public interest issue to the Secretary’s attention, he can’t ignore it, he must address it

o Makes note that the other side also has a public interest issue to raise

‘Decision … of an Administrative Character’ Not defined in the Act

o Rely on case law Administrative is a decision that is not legislative and is not judicial

o Deduction Central Queensland Land Council Aboriginal Council sets out factors (p.88)

Federal Airports Corporation (1997) (p.89) Illustrative approach S56 of the Federal Airports Corporation Act applies a fee to airlines for landing large

airplanes Aerolineas Argentinas brought an action on behalf of several airlines, questioning the

large fees Issue was whether the determination to fix this charge was administrative in nature Held the decision was administrative in nature Lehane J

o Noted that it is difficult in practice to make the distinction between admin and non-admin

We are stuck with the deductive approacho Factors in favour of this decision being legislative:

Finding enforceable obligation Changed the content of the law Determination had to be published and the Minister could disallow it No practical difference between fee charged by FAC and one

charged by reg or by-lawo Factors in favour of this decision being administrative:

Carrying out a business Charges are essentially a fee for services being carried out by FAC

o Admin outweighed legislative – therefore Admin decision

41

‘Decision … made … under an enactment’ Excluded from being reviewable under the ADJR Act If this wasn’t the case, there would be no legislative guidelines under which the courts

would know how to act ‘Document’ Chittick – Lockhart & Morley identify 3 requirements for a document to be an

instrument under an Acto Close relationship between document and the Acto Must be a document pursuant to which decisions are madeo Has to be capable of effecting legal rights and obligation

‘Under’o Simply requires a direct link between the decision to be reviewed and the

power inferred by an enactment to make a decision

Griffith University v Tang Tang was a PhD candidate at Griffith July 2002 she was notified by the Uni that a sub-committee of the Postgrad

committee had found that she had engaged in academic misconducto She was excluded from continuing

Appeal dismissed by Uni Sought judicial review under the Qld equivalent of the ADJR Question – was the decision to exclude Tang a decision under an enactment? Majority held that the determination of whether a decision is made under an

enactment involves 2 criteriao Decision must be expressly or impliedly authorised by an enactmento Decision has to itself confer, alter or otherwise effect, existing or new legal

rights or obligations derived at law (common law or statute) The decision did not effect legal rights but was authorised by the Act Unless there is a specific exemption covering the issue at hand, it should be covered

by judicial reviewo Just need to look at the substance of the body

Held that it wasn’t a decision under the Act

Class 15 – Week 9 Fri – Jurisdictional Error, Ultra Vires and Privative Clauses

Ultra Vires Law gives decision makers certain powers and saying they are acting ultra vires they

are acting beyond the powers given to them S5 of the ADJR Act (p.120 in brown brick)

o Grounds of reviewo 18 grounds but many are overlappingo Common law was pretty close and the ADJR Act often uses the same

language as the old common law grounds Most are the same, a couple are slightly different

This bit of the law is difficult because saying something is irrational, e.g, is subjective, however there is a particular level of unreasonable which goes beyond merits review and becomes a legal error:

o Wednesbury unreasonablenesso Phrasing it as objective rather than subjective

Jurisdictional Error Occurs where a court or a tribunal, or a decision maker in general, either exceed their

jurisdiction in making a decision, or where they failed to exercise their jurisdiction to make a decision

NSW Supreme Courto Jurisdiction conferred on it by various Acts including the Supreme Court Act

Makes clear the Court’s jurisdiction is a limited one

42

Also makes clear that decisions made under e.g. the Migration Act cannot go to the Supreme Court – are Federal

o Imagine they are asked to attend to a decision made under the Migration Act – they would have made an error

It is purporting to make a decision when they have no jurisdiction to do so

Jurisdictional error Jurisdictional error is a particular type of Ultra Vires Two types of legal error that a Court may make

o Jurisdictional erroro Error that does not go to jurisdiction

Non-Jurisdictional error E.g. Imagine the Supreme Court heard a Criminal matter and it has

the power to do so, but someone wants to educe a particular piece of evidence and the Judge says they can’t – the Judge, however should have allowed the evidence

Non-Jurisdictional Error Effect and significance of jurisdictional errors:

o If a court makes a jurisdictional error then it can be overturned (quashed)o Even if there is no statutory right to seek judicial review, a person who has

standing to seek judicial review can always challenge jurisdictional erroro A j error that is made in relation to a decision that is subject to a privative

clause will still be able to Privative clause – restricts a court from hearing a matter If a non-j error occurs, it stands, the privative clause will state they

cannot review it J errors, however, are like kryptonite, they are still reviewable

What is so bad about jurisdictional errors?o When a court makes a non-j error it has tried to carry out its role but has

made a mistake in doing this Law will provide an avenue to address this

Factual error – no review available It is bad but not so bad

o When a court makes a j error, it is seen as being in the worst category of legal error because it prevents a person from having their matter heard correctly

The person cannot do anything about it This is bad and it goes to the heart of bad No power of redress

Factual error -Legal error – jurisdictional error

- non-jurisdictional error

Illustrations Pp.793-794 – cases where the Court has made j error Some areas of law are harder than others to prove j error – e.g. tax Jurisdiction is the authority to decide

o If they violate their authority then this is the appellate courts most fundamental duty – to step in and say no, that decision won’t stand

J error can arise when the decision maker has exceeded their authority by:o flouting a stat limitation;o breaching natural justice;o asking the wrong question oro being wrongly constituted (insufficient J qualifications)

Key case:

Craig v South Australia (p.796)

43

Trial judge tried to apply Dietrich and order the trial to be stayed until legal rep organised

Crown appealed to the Supreme Court seeking Certiorari on the basis the trial court committed a j error in granting the stay

Crown successful in Supreme Court Craig appealed to HCA Accepted that the trial judge made an error in trying to apply Dietrich – applied

incorrectly Question – nature of error

o J error or non-j error JJ held it was a non-j error Distinction between inferior courts

o Inferior are amenable to certiorario So are superior courtso Admin tribunal lacks authority to determine q of law authoritatively or to make o Admin tribunals are there to resolve q of fact but they cannot authoritatively

resolve q of lawo Ordinarily courts resolve botho If Admin T addresses the wrong issue or asks the wrong q etc it commits a j

error However if an inferior court makes one of those mistakes usually it is

a q of law but it is non-jo There is a much lower bar on whether a j error has occurred when talking

about tribunals compared with inferior courts What constitutes J error in a tribunal is a much bigger group than in

an inferior court because their jurisdiction is different Easier to prove a Tribunal has committed a j error

Because tribunals are not given power to resolve q of law Inferior court makes j error

o Mistakenly asserts or denies jurisdictiono Misapprehends or disregards its functions

If a court or tribunal makes an error of jurisdictional fact (to be defined) HCA made a conscious decision to diverge from a clear line of authority established

in the UKo Anisminico Did away with distinction between j and non-j erroro If there is an error of law you should be able to get judicial review

HCA said there is a distinction between j and non-j error and it should depend on what type of error occurs as to whether judicial review is available

Jadwan (p.798) Complicated facts Jadwan owned various nursing homes and was regulated by Aged Care Act Permission revoked because Jadwan had failed to comply under the Act Long line of protracted litigation Jadwan application to the Federal Court for a declaration that throughout this long

period of dispute Jadwan was a recognised service provider under the Act Jadwan lost at trial Appealed to full Federal Court Two issues

o What constitutes the j erroro Does the fact that a j error has occurred mean that any wrongful admin action

that falls within this j error, would that all be a nullity Jadwan’s argument

o Where an admin decision maker makes a j error that becomes a nullityo Decision of the minister’s delegate cancelling recognition contains a j erroro Added together – all decisions null

44

Gray and Downes JJ – Bhardwaj interpreted – cannot take it as standing for the proposition that a j error made by a decision maker will lead to the decision in question having no consequences

o Instead all that it shows is that the legal consequences will depend on the particular statute

o Neither Bhardwaj nor another dealt with the particular issue in q hereo In this case, even if a j error occurred that does not mean it was a nullity for

all purposes Kenny J – the ADJR Act does not actually explicitly use the language of j and non-j

errors. Also does not incorporate the common law equivalent of j and non-j error. Some of the grounds in the ADJR would give rise to j errors in some circumstances but some of the grounds would not give rise in some circumstances

o Analysis of whether or not this is a j error is limitingo If the same matter / facts had been heard in the same court under s39B of

the Judiciary Act (under common law) then Jadwan may have framed its case differently and the court may have agreed

o Must look at original statuteo Only thing certain – when you prove a j error, the decision will be quashed

and the decision will be reviewed JJ could have gone further and given more assistance

Privative Clauses Govt aims to preclude a person from seeking judicial review Definition – provision in leg which attempts to prevent courts from carrying out judicial

review on a particular matter Issue – Constitutional problem Why would parliament enact such clauses if they are problematic?

o Provides tool to end proceedingso To stop the judiciary from having the last sayo Keeps controlo Increases speed of decision makingo Allows for experts to have their input accepted

But judicial review is about q of law not fact Natural and ordinary meaning and what the HCA says it is Courts interpret private clauses highly restrictively, with factors including:

o Parliamentary supremacy Need to look at parliament’s intentions when interpreting, regardless

of opinion of it. Countervailing:o Importance of preserving access to the courts. Sources:

Common law Constitution s75(v) International law e.g. Art 14(1) of the ICCPR

o Rule of Law – No arbitrary exercise of power Privative clauses can allow an arbitrary exercise of power to go

unchallenged Rule of Law underpins the Aust Constitution Fish v Solution 6 [2006] HCA 22

Kirby implied the rule of law might be something that could invalidate privative clauses

o Separation of powers

Conditions If a privative clause says that a decision is final or conclusive, or cannot be appealed

from, various cases have held that this does not mean that judicial review is not actually precluded

Judicial review will only be excluded if there is a very clear legislative intent Where a privative clause is phrased in such a way to deny a specific remedy, that will

not preclude all judicial review

45

No privative clause in Aust or UK history has ever been held at the Cth level to preclude judicial review of jurisdictional errors

Time limitation clauses – provisions that purport only to limit the time during which an application may be made can actually be invalid

o If an Act says that if you are subject to an IR decision you have 2 weeks to seek judicial review, some provisions have been held in substance to be a privative clause and have to be read against s75 and could be invalid

o Boddrudazza – unanimous HCA decision to invalidate an extended time limit due to Constitution s75

Hickman Doctrine A decision that is subject to a privative clause will not be considered invalid if the

following requirements are met: An admin decision that is subject to a privative clause, and a part decision within that

decision, that decision will not be considered invalid if it meets certain requirements:o Decision must not, on its face, exceed the authority conferred by the

legislation in questiono Decision must amount to a bona fide attempt to exercise the powers

conferredo Decision must relate to the subject matter of the legislation

What is the significance of this Hickman doctrine?o Considered in Plaintiff S157o JJ said – “the so-called Hickman principle is simply a rule of construction

allowing for the reconciliation of apparently conflicting statutory provisions”o Rule of construction – guideline for interpreting

Hickman doctrine is simply guidanceo Apparently conflicting statutory provisions

Privative clause v provision which contemplates judicial reviewo It provides guidance for dealing with the effect of the privative clause when it,

inherently, contrasts with the provision regarding judicial reviewo Sir Owen Dixon’s doctrine – it doesn’t have to apply to all privative clauseso Gleeson J made essentially the same point

Plaintiff S157o Very important case

Applying the Hickman Doctrine in Australiao Process of reconciliationo Reconciliation of the Act that provides provisions for judicial review and

privative clauses which restrict judicial reviewo Process can lead to a number of possible outcomes:

Court could hold that the decision in question is valid because it is protected from judicial review by the privative clause

Decision is not protected by the privative clause so the Court can and does look at the legal validity of the decision, and can then consider that the decision is not legally wrong

Decision is not protected by the privative clause and the court finds that it is invalid

o Process involves (two steps): Determine whether the clause confers with the 3 Hickman

requirements (Gleeson) Joint majority added – Privative clause would be inapplicable

unless these were satisfied Court has to determine whether the purpose of the legislation was

that the decision that reaches a stat requirement should be treated as invalid or treated as valid

Does it fall within the particular provision Interpret the legislation Joint majority agreed and added – the process of

construction is not a process construing the leg as a whole, it is a process which effects the relevant section (?)

46

Cth prosecutor was trying to argue that this would abrogate any other provisions for judicial review under the entire Act

Plaintiff S157 Applicant claims they were denied natural justice

o Biaso Denial of an opportunity to be heard

Cth argued that the decision could not be reviewed because of the Migration Acto S474 – privative clauseo S486 – time limitation

Applicant commenced proceedings >30 days after notification – outside time limit Did the privative clause immunise the decision in question from being seen as an

error of law?o Did it take it out of the relevant judicial review?

What was the effect of s486A in these circumstances?o What was the effect of the time limitation clause?

Majorityo Held

Privative clause in s474 did not apply to decision that were infected by jurisdictional error such as those in breach of natural justice

Privative clause can be disregarded and s486A doesn’t apply as there is no decision

o Gleeson S474 would be constitutionally invalid if when you interpret it properly

it tried to prevent the HCA from exercising its power under s75 Constitution

If you interpret s474 the way I believe then it does not attempt to do so

This means s474 is Constitutionally valid but it doesn’t apply to the proceedings initiated by the applicant

It is not a decision The privative clause is useless

Parliament may create and define the duty or the power (jurisdiction) and determine the content of law to be obeyed, but it cannot deprive this court (HCA) of its constitutional jurisdiction to enforce the law so enacted

It would offend the principle of the separation of powers for an admin tribunal to be able to make an authoritative and conclusive decision as to the limits of its own jurisdiction

Affirmed the critical difference between jur and non-jur errors of law Applying Craig and rebutting Anisminic

Long quotation – protection visa made unfairly due to a denial of natural justice will stand so long as it was made under a bona fide attempt.

What the Govt was doing here was just wrongo Joint judgment

Highly analysed Apart from the reconciliation in the hickman doctrine, the other basic

rule for privative clauses is that it is presumed that privative clauses are strictly construed

Give it the minimum possible application Narrow the operation

A decision effected by jurisdictional error is not a decision at all and is not protected from judicial review

It is a purported decision Therefore s486A is irrelevant as it refers specifically to decisions

o Callinan Approached the interpretation of s474 a bit different

47

Its effect would be to preclude the remedy of certiorari, which is mentioned in the Act

Certiorari is having a decision quashed S75(v) does not specifically mention certiorari, it does mention

mandamus There is a constitutional rite to mandamus but not certiorari S486A is a problem because the time limit is too short for this kind of

case, and for the type of applicantso Parliament got spooked, if Callinan believes s486A is too short then we are in

trouble. Extended to 60 then further to 84

o Bodrudazza – held still too short at 84o S486A has been thrown out

Class 16 – Week 10 Tue – Judicial Review Grounds 1

Law/fact distinction Error of fact – issue with evidence and facts raised in case Error of law – Judicial review is available in respect of errors of law but not errors of fact

o ADJR Act Section F In order to get judicial review it is not enough to point to any error of law

o The error had to have some impact on the outcome Three stages of decision making

o Fact-finding 1. Establishing primary facts by evidence or observation 2. Using primary facts to prove other facts Errors of fact at this stage No errors – unreviewable (Melbourne Stevedoring) Error of law may exist if there is an absurd or perverse leap from

evidence to inferenceo Rule-Stating

Declaring a rule following statutory interpretation 1. Determine whether the words in the statute should bear an

ordinary or technical meaning – error of law 2. If the words bear their ordinary English meaning then they have to

interpret them, if they interpret them and get it wrong – error of fact 2a. If the words bear a technical or specialist meaning, they interpret

those words and get it wrong – error of lawo Rule application

Apply the legislation to the facts to reach a decision Applying ordinary English meaning is a process of fact Applying technical meaning is a process of law

Pozzolanic (p.691) Diesel rebate for primary production Claim rejected Unsuccessful at AAT Issue

o Was determining the meaning a q of fact or lawo If it was law had the AAT made a legal error in construing it

Full Federal Court agreed with the applicant that it was a q of law but the AAT had not made an error in construing the provision

3 principleso A wrong finding of fact is not sufficient for finding an error of lawo A court will not reward pedantry, it is not concerned with looseness in the

language or unhappy phrasing by the AATo Distinctions between q of fact and law can be elusive

48

5 general rules – p.691 Turned on the presence of the words ‘connect with’

o Term is capable of providing a spectrum of relationshipso Vague term

Therefore – process of law

Collector of Customs v Agfa-Gavaert (p.692) Imported paper – ‘silver dye bleach reversal process’ AAT held that agfa’s paper did not fall within this category Issue

o Process of interpreting phrase process of fact or law?o If it was a process of law then was the AAT interpretation of the words

correct? Majority held that determining the meaning was a process of law Agreed with the AAT’s interpretation Clarified the status of the rules

o Guidance for fact or law All that is required to make words technical is for the phrase to bear a different

meaning than the ordinary meaning Trade meanings will be accepted by the courts provided they don’t lead to an absurd

result

Hope v Bathurst City Council (p.695) LG Act there were different rates payable for rural v non-rural land Hope claimed that his land was rural Tribunals held it was non-rural Went all the way to the HCA Construction was a process of law and the court below made a mistake in finding his

land was non-rural When you have all the facts, the process of fitting the facts to the rule is a process of

law Case turned on the word ‘business’ and its being linked to ‘carrying on’ This added the crucial ingredient of complexity and made it technical Error of law Lower courts adopted the incorrect meaning

Azzopardi (p.696) Workers Comp claim denied due to failure to prove he did it travelling to work Workers Compensation Commission Appeal to the Supreme Court only available for errors of law and evidentiary issues Issue – Whether the Commission had made an error of law Majority held there was no error of law

o All issues appeared to be errors of facto Court had no jurisdiction to review errors of facto Court won’t allow judicial review for unexplained perversity of result (factual

finding), but will allow judicial review for a perverse application of a rule to a set of facts

Kirby (minority)o If the reasons for a decision are illogical, or when relying on facts not

established by evidence, or if an error has taken place in carrying out the 3 stages, then an error of law has occurred

o Judicial review for any error in the 3 stages

Judicial review of fact-finding errors Error in the process of finding facts – error of law GTE (p.677)

o Product dumpingo Minister imposed a duty on certain lightbulbso Done after the Minister received a brief

49

Had a price error Misinterpreted the price list and based the calculation on the wrong

typeo General rule – admin decision maker has to base their decision upon material

having some weight – he can’t guess The error is not the issue, it is the guess

o Error was – calculations based on guess-work and the wrong product

Jurisdictional fact Parliament can stipulate that a power to make a decision is conditional upon the

existence or occurrence of any fact, event or circumstance Issues

o Who decides whether a fact, which is a jurisdictional fact actually exists? Decision maker or court exercising judicial review? Court cannot review errors of fact Court will take new evidence to inform itself

o When is a failure to meet a statutory requirement elevated to the significance of being a failure to satisfy a jurisdictional fact?

Timbarra Protection Coalition (p.330)o Local Council approved an application to extend and modify a mineo Act required a development application to be accompanied by a species

impact statemento Council didn’t ask for a statement and it wasn’t submitted

Councillor decided it wouldn’t effect any specieso Consent challenged in land and environment court (tribunal also)

Development would impact on various animalso Coalition were not allowed to provide any evidence to prove their claim

Courts function was to review whether they erred on the evidence presented

Only exercising judicial review (not merits review)o 2 questions

Is the decision of whether a statement was required a jurisdictional fact?

If so, on what basis should this fact be tested?o Court of Appealo Spigelman CJ (majority)

Held it was a jurisdictional fact If the fact was not present the council did not have

jurisdiction to make a decision L&E Court should have permitted the Coalition to educe evidence to

prove its case Let it run like merits review

Parliament can make any fact a jurisdictional fact It must exist in fact, objectively determined It must be essential

Did parliament intend for it to be objectively or subjectively determined?

Objective – can educe new evidence (court determines) Subjective – cannot educe new evidence (decision maker

determines) Aronson

o Jurisdictional fact blurs the legality / merits distinctiono Allows courts to do merits review on this point

Class 17 – Week 10 Fri – Judicial Review Grounds 2

Recap Error of law – process

50

Error of fact – finding Three stages

o Fact findingo Rule statingo Rule applying

Distinction between construing technical and ordinary meaningo Technical meaning – specialised, error of law

Continuing from last class…

No evidence rule Common Law – Decision made pursuant to a stat will be ill-valid if there is a severe

lack or absence of evidence to satisfy an element which is essentialo Inadequate evidence is not enough

Melbourne Stevedoring (1953) (p.663)o S23 of the Stevedoring Act provided that the Board had the right to cancel or

suspend the registration of an employer of stevedores if the Board is satisfied that the employer was either

Unfit to continue Had acted in a manner where proper operations were interfered with

o 2 stevedores allocated to work with an employer companyo Had left work and were arrested at the wharf gates for being drunk

1 said he was sick that day The other was absent for 15mins

o Board began enquiry to see if company was unfito Efficiency of the stevedoring operations was not impaired by the 2o Company sought a writ of prohibition on the issue:

Whether matters into which the board was enquiring amounted to a valid and legal act

Do these acts have any bearing on the 2 points above?o HCA ordered the writ of prohibition

Prohibited the Board from enquiring If the company is unfit to be registered…

If this is a point of fact it cannot be reviewed judicially If it is erroneous in point of law it can be reviewed

The Act did not direct the Board to assess the actions of a small number of employees

Instead the Board should have concentrated on the critical criterion in the legislation – is the company acting efficiently

No evidence could support any answer to this question On this basis, the enquiry was unlawful

Under the ADJR Acto Sections 5(1)(h) and 5(3)o 5(1)(h) sets out the ruleo 5(3) defines the limits

“To limit severely the area of operation of s(1)(h)”o Rajamanikkam (2002) (p.670)

Need to look at definition of refugee Well-founded fear of prosecution Based on something

RRT rejected his claims on credibility grounds Factual grounds

Tribunal identified 8 factual inconsistencies Together they led to the conclusion claims were made up

Full Federal Court held 2 of the 8 claimed factual inconsistencies did not actually

exist (RRT stuffed up) (accepted by the Dept of Immigration) These 2 were part of combination of factors that helped

make the decision

51

Accordingly the no evidence ground in the Migration Act was established (same as ADJR Act s5(3)(b))

HCA Had to determine whether the RRT breached the no

evidence rule Held that they did not Gleeson – Duty to base a decision on evidence does not

mean any admin decision may be quashed on review if the reviewing court can be persuaded of a different view of the facts

Gaudron & McHugh – no evidence rule can only apply when it is shown that the material forming the basis of the decision is irrelevant or when there is no evidence at all to support the decision

Kirby – ground of review is made out if a decision is found to be made on a critical fact that is shown to exist

o Lower bar Lower bar not accepted by HCA

2 facts were not essential – he lost

Delegation Act confers power on Admin body Repository of the power is know as the Principal A decision will only be presumed to be valid if it is made by the principal

o Re Reference (p.419) Problem – 1 person cannot make all decisions, it is impractical Qualification to the general rule – delegation Act confers powers to delegate power to the Delegate That can be sub-delegated, and further sub-delegated… Problems

o Consistency may be diminishedo May lose track of who things have been delegated too Limited knowledge the further you sub-delegate

Hierarchy of decision-making:o Principal – retains decision making power even when it has been delegatedo Delegate – power has been delegated by a written instrument signed by the

principal and pursuant to statutory authorityo Agent – makes decision on behalf of principal and delegateo Administrative assistant – hasn’t made the decision themselves but have

provided assistance to the above in making the decision

Re Reference (1979) (p.419) S11 of the Ombudsmen Act Can request an Agency to refer a question to the AAT for an advisory position

o Doesn’t require there to be an active disagreement between parties Green v Daniels case

o Decision was made by a delegate of the D-G of Social Services Delegate sent Green a letter notifying of the decision and signed it under another

name with his initials Q – whether he had acte unlawfully by doing this AAT held this was not valid Prima facie a decision will be invalid unless it is made by the principal However the law is practical and accepts not all can be made by principal

o If there is delegation, it still must be in line with the law Looks at delegable and non-delegable powers

o Statutory interpretation Delegable power – power moves to delegate and they act as themself

o You cannot purport to be acting on behalf of someone else When it is delegated to an Agent then you act on behalf of the principal

52

Problem was that the Delegate acted as the Principal when he should have acted as himself

o He acted unlawfully

O’Reilly (1982) (p.422) Stat power to give evidence, produce documents Delegated to the Deputy Commissioner Deputy Commissioner sub-delegated HCA question – whether notice was valid due to delegation Held – power to issue notices could not be further delegated by the Deputy

Commissionero However as a matter of practical necessity this had to be done by authorised

officerso This made the notices valid

Gibbs – Whether the Commissioner of his/her delegate is required to sign a s264 notice is simply a construction of statute

If an Act refers to a principal having the power to sign docs it doesn’t necessarily mean they actually have to sign the document

o You have to look to the Act to see whether they have to sign it themselves If the Act says otherwise it would amount to an absurdity

o The principal would have to sign literally millions of notices Practical necessity led to Gibbs J decision Pragmatic view taken by the majority Dissent (Mason) – effective sub-del without express stat authority is only appropriate

where the decision making is purely administrative (no discretion)o He believed there was too much discretion involved with the process

Compliance with Statutory Requirements Mandatory v directory requirement

o Mandatory – must be done and will lead to invalidityo Directory – should be done but won’t necessary lead to invalidity

Not sure what was said here… There are other ways to deal with this issue

o Procedural errors v substantive errorso S5(1)(b) under the ADJR Acto Legislation sometimes make clear what will be the consequence of a breach

of a particular statutory requirement Project Blue Sky (1998) (p.769)

o Certain powers given to the ABA Manner consistent with

Object of the Act General policies of the Govt Directions given by the Minister Aust obligations under any agreement with a foreign country

o Controversy arose over the ABA’s decision to implement a ‘local content standard’

o PBS was a NZ company and challenged this standard on the basis that it breached a trade agreement between Aus and NZ

NZ should be treated no less favourably than Aus companieso Q – whether this standard breached s160d of the Act

If yes, did that make it invalido HCA held that the standard did breach s160

However it was not invalido Standard was plainly in breach of Aus treaty obligations

NZ programs had less favourable access rightso A better test is to ask whether the purpose of the Act is that an act done

seemingly in breach is to be treated as invalid S160 is not the precondition that confers functions on the ABA S160 merely regulates the exercise of the functions of the ABA

53

This strongly indicated that the Act did not intend that conduct in breach of s160 would necessarily be invalid

o Aus obligations under intl treaties are relatively clear yet they are broad and political etc so they shouldn’t be depended on

Treaties are expressed in indeterminate languageo This treaty was, however, very clear – they still didn’t careo Although the standard was held not to be invalid, a person with standing is

able to sue the ABA and can ask for an injunction for them to do no further breaching

ABC v Redmore (1989) (p.772)o ABC could only spend money in accordance with budgeto Shall not enter into contract >$500K without Ok from Ministero ABC signed lease for contract >$500K without Ok from Ministero ABC tried to repudiate the contract as it was unenforceableo HCA held the contract was enforceable as s70 was merely directory, it was

not mandatoryo Shall did not mean must

Application of policy Policy cannot be incompatible with statute Must comply with FOI Non-fettering and non-abdication of rules

o Govt policy must not restrict a discretion given under an act so as to prevent a decision maker from making a decision in favour of a person where the decision maker could have made a decision in favour of the person if it were not for the policy

o Can’t use discretion such that it substantially alters the policyo 5(2)(e) – p.604o To get up on one of these arguments, you have do something more that

simply pointing to the fact that the decision maker made reference to a policy that did not favour the applicants case

NEAT (Brown Brick p.142)o WEA given the power to allow company to export wheato AWB main exporter of wheat AND had power of veto over WEA decisionso AWB had policy not to allow any other new players in the marketo Q – whether AWBI should be permitted to follow its policy without regard to

the merits of NEAT’s claimo HCA held that AWBI was not required to deviate from its policyo Gleeson CJ – clear conflict of interest but that is not AWB’s fault, it is

parliament’s fault for setting up a stupid situation However, there are situations where companies such as NEAT may

be successful

Ministerial Directions General rule – Minister cannot delegate a decision and dictate the decision Still unresolved, however, whether a delegate is under an obligation to make

decisions in line with Ministerial policy… Rule only applies to personal dictation R v Anderson (1965) (p.620)

o Required Ok of D_G of Civil Aviationo Ipec wanted to import 5 planes to conduct a freight transport industryo Letters back and forthe between Ipec and DGo DG made clear

Application met all requirements as he understood them Nevertheless the app had to go before Cabinet who would consider it

on political groundso Cabinet did not Ok applicationo HCA Q – whether the application was considered in a lawful manner

54

o Held – Application was lawfully considered (3:2) Was not an application of dictation

o Majority – not enough evidence that the DG had abdicated all responsibility to cabinet

o Windeyer – policy of Govt, not an ordinary discretion, to take account of the views of cabinet was not necessarily the wrong thing to do

o Dissent (Kitto, Menzies) – DG found things wrong after it came back from cabinet, this can only mean cabinet said no

Class 18 – Week 11 Tue – Judicial Review Grounds 3

Review 4 levels of power – principle, delegate, agent, admin assistant If you are exercising a power that has been lawfully delegated to you, you cannot

purport to be acting on behalf of the principle Project Blue Sky – mandatory v directory

o Whether a breach of a statutory decision would lead to the actual decision

Acting for an unauthorised purpose A person to whom a statutory power is conferred can lawfully exercise that power

only for the purpose for which it was conferred ADJR Act 5(2)(c) Analysing purpose is at the heart of this process

1. Discern for what purpose the power can lawfully be exercised2. Discern for what purpose the power was actually exercised

1. Statute will define the purposeo If it is not expressed, it may be implied through interpretationo Title, structure and text, nature of the power

2. Can infer the purpose from the decision maker’s conduct, documentation, reasons for the decision etc

Two problemso Might be multiple purposes and a decision maker may have more than one

purpose at play in making the decision Hard to identify which was the dominant one

o Decision makers can attempt to cover their tracks so it is hard to identify their actual reasons

May couch their decision in legalise

Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) (p.458) Purpose to build a new office building with GIO Issue – whether the purposes for which the board were seeking to acquire the land

were purposes of the act HCA held the Board could validly require the land Rule – If the invalid purpose is a substantial purpose then the decision in question

would be invalid Boards actual purpose was to erect the building Joint venture with GIO was simply a means to that end

Schlieske v Minister for Immigration and Ethnic Affairs (1988) (p.460) West German national who was wanted in W Germany Minister tried to extradite him on 2 occasions

o To send someone back to be charged there Failed to extradite him A deportation order was served

o Arranged for a travel permito Booked a seato While purporting to exercise the deportation power they directed Lufthansa to

take him

55

o They arranged for W German police to get him on arrival Question – what was the permitted purpose, the actual purpose and did they mesh Held – the deportation was being carried out for an unauthorised purpose However (2nd q) they could have carried it out if the Aust authorities hadn’t taken the

extra step of offering him up to the W German policeo Made it a disguised extradition

Minister must not use the deportation power for the purpose of extradition

A decision that is otherwise invalid cannot be saved by simply saying that the decision makers decision was rational, laudible etc. The court will only look at whether the actual purpose was in tune with the permitted purpose. (Woollahra Municipal Council (1991))

Statutory indeterminacy Sometimes it is hard to work out what the statutory purpose is Can be conflicting purposes in the one statute

o Look at hierarchy of the Acto Look for leading provision and ignore others (sometimes)o Project Blue Sky (1998)

Act has been amended so many times it is hard to determine the purposeo Social Security Act example

Considering Irrelevant Matters A decision may be invalid where an irrelevant consideration has been taken into

account by the decision maker ADJR Act s5(2)(a) Must show something more than a trivial irrelevant consideration

o Must show that the irrelevant consideration had a substantial impact on the decision making process (Klein v Domus)

Ideally the Act will express the relevant factors to look at when making a decision Often you must confer what is relevant Act may provide guidance, eg

o Public interest Two criterion

o What are the permitted relevant factors?o What factors were used?

No reasons giveno Osmond – the presumption is that they had no good reasons

Water conservation and Irrigation Commission (NSW) v Browning (1947) (p.467) Relevant Act gave the Commission an effective veto on the transfer of irrigation farm

leases Mr Browning wanted to transfer his lease to a naturalised Aust born in Italy Commission had a policy against allowing transfers to persons of enemy origin

o Favoured giving leases to returned soldiers Refused the transfer to Mr Carbone

o Italians are also not renowned for being good farmers NSW Supreme Court held the decision was invalid

o Inconsistent with the Acto Purpose of the Act was promoting irrigation through capable and desirable

farmers HCA issue – was the purpose improper?

o Now unauthorised as improper implies unethical Dixon – Commission did not pursue an unauthorised purpose Dixon expressly excluded the ‘wisdom’ of the Commission

o Statute doesn’t set out the relevant factorso Statute says, deliberately vaguely, that the Commission has veto powerso Discretion is unconfined – the subject matter of the statute is the only

limitation On the power itself, not on how it is exercised

56

Roberts v Hopwood [1925] (p.476) Companion case to Browning Council shouldn’t have taken the information into account Males and females receiving equal pay

Failing to Consider relevant matters A decision may be invalid where a decision-maker has failed to give consideration to

a relevant matter in reaching a decision ADJR Act 5(2)(b) How can a decision maker breach the rule:

o When they had knowledge of the matter and didn’t take it into account Active knowledge – what they actually know Constructive knowledge – what they ought to have known

o Where a decision maker was under a duty to inquire what the relevant matters were

Must first establish that the decision maker was legally obliged to consider the mattero Express or implied statutory obligation

Failure to consider (p.483)o Sean Investmentso Hindio Wu

Other issues (p.484)o Peko

Sean Investments Pty Ltd v Mackellar (1981) (p.484) Company setting up nursing homes Act provided that review of an application to increase the fee charged to residence

could only be made by the Minister who 1st had to set up an enquiry before a committee

Minister set up an enquiry but then declined the fee increase and simply wrote ‘agreed’ on the recommendation from the department

Question FC – whether the Minister had failed to consider certain relevant matters Deane J – decision was validly made

o Started with legal position – stat power had to be exercised personally by the Minister but that did not mean the Minister had to carry out his own enquiry

o After he received the report from the Committee the Minister could lawfully adopt it and any recommendations without having examined and assessed it himself

o Alternatively the Minister was legally allowed to decline the report or parts of it

o However where the Minister simply adopts it this does not mean the decision does not mean it is immune from the ADJR Act

o In such a case the Minister will also adopt any errors of law incl taking into account relevant and irrelevant matters

Adopts errors made by the Committee Affirmed by FFC

Minister for Aboriginal Affairs v Peko-Wallsend 91986) (p.486) Land Rights Claims go to a decision maker who is required to submit a report to the Minister incl

o Report on detriment to anyone else if the claim were permitted Land in NT Commissioner’s report recommended that the claim be permitted

o Noted that the claim included part of the Ranger 68 area which Peko-Wallsend had discovered a large Uranium deposit

o In fact Ranger 68 lay wholly within the land – error After Commissioner’s report had been published Peko-Wallsend made submissions

to Ministers where they tried to make clear this error

57

o Commissioner’s report understated how much P-W would suffer Minister granted the land Departmental brief was heavily reliant upon

o Summarised the Commissioner’s comment in regards to detrimento Brief made no reference to submissions made by P-W after the report had

been published Q – should the Minister have looked at the material after the report was published H – Minister should have looked at the material Gibbs – nothing wrong with relying on a brief unless that brief has an error or

omission Mason – 5 important rules for relevant consideration

o An error only occurs if the decision maker was bound to take the matter into account

o Factors that the decision maker must take into account must be expressed or implied by the Act

o An error only occurs if the decision maker failed to take into account a matter that was not insignificant

o The Court is not allowed to substitute its own decision for that of the decision maker

o All of these principles who act as decision makers but Courts have to be a bit deferential

Courts have to allow for the fact that Ministers have to take into account broad policy decisions

Class 19 – Week 11 Fri – Judicial Review Grounds 4

Revision Unauthorised purpose – general rule – alterior purpose is invalid; statute will provide

the power, exercise the power outside that and it is invalid Irrelevant considerations – decision may be invalid if the decision maker takes into

account irrelevant materialo Must be a substantial part of the decision

Failure to consider relevant matters – corollary to irrelevant above

Wednesbury Unreasonableness Notion that govt decision making has to be reasonable or rational These terms have a particular legal meaning

o May differ from their colloquial meaningo Colloquial meaning may be merits based, not legal based

Subjective v objective quality Harder to plead Wednesbury unreasonableness

o Very high bar Aus has adhered to doctrine whereas the UK has lowered the bar

o Proportionality has become a ground for judicial review in the UKo Whether the govt action in question was proportionate to either the power

that was conferred or a set of human rights standards set out in a human rights Act

o No proportionality in Aust (we are an island, everyone else has it) Except in subordinate legislation

Wednesbury [1948] (p.305) Cinema trying to open on Sundays OK’d with condition that no child under 15yrs could be admitted Company sought declaration that this condition was unreasonable and ultra vires Appeal by company was dismissed Principles articulated ar the important factors of this case Lord Greene

58

o A court can only interfere with an admin decision if the dec maker has acted unlawfully

o Q – to what extent can this be vitiated when a decision maker act unreasonably

o Even if the local authority (decision maker) kept within the 4 corners of the matter sit was meant to consider but nevertheless it came to a conclusion so unreasonable that no reasonable authority would have come to it, then the court can interfere

o Took test from subjective to objectiveo Not what the court considers reasonable, the court may very well have

different views, rather the analysis is objective Finding is reflected as a common law rule in Aus and also as a ground of review

under the ADJR Act s5(2)(g)

Development of Wednesbury Higher bar in Aus than in the UK High bar is reflected in:

o Few cases where a litigant has successfully argued Wednesburyo Unreasonableness in the Wed sense is often used quite loosely to

encompass other grounds of reviewo Unreasonableness needs to be applied against the legality/merits backdrop

where the merits are unaffected unless the power was abused (p.727)

S20 (2003) (p.728) S65 and s415 of the Migration Act Protection visa should be grounded if the RRT is satisfied that the Act’s criteria are

met RRT rejected the applicant’s claim Migration Act provides that an RRT can not be challenged on the grounds of

unreasonablenesso Doubly difficult for the applicant to challenge the decisiono High bar of unreasonableness + Act stipulation

Therefore the applicant based the argument on saying it was illogical, irrational and not based on logical grounds

HCA – applicant’s claim rejected (Kirby dissent) Gleeson CJ

o Saying that something is illogical, irrational etc is simply saying you don’t agree with it

o Need to state on what legal basis it is irrationalo Focused on the fact that the Migration Act places a duty on the RRT to say

whether the criteria have been meto Looking at the merit of the decision is not enough, you must show some

legal erroro Describes the concept of unreasonableness as protean

Variable meaning depending on who looks at it and how they look at

Subspecies Lack of plausible justification

o The decision is irretrievable wrong or the logic of the decision defies the known facts or explanation for the decision

o Pestell (1972) (p.731) Tax on people who will benefit from new public park Council carried out works that would benefit all land in an area Chose to impose a tax on land only used for industrial purposes Chose not to tax an area of land with dilapidated houses only HCA – was this levy valid? Gibbs – levy was invalid

- Wednesbury got up- Tax should be on houses also

59

- Council could not say that although block A and B should equally share the benefit, only block A should share the rate

- Could understand how the tax was arrived at but the Act did not allow a delineation and it was unreasonable

Capricious use of powero Wed can be invoked to provide judicial review when there has been an

abuse of power or when Govt power has been employed capriciouslyo Reason person has used the power is malicious, whimsical (to get at them)o Edelsten (1988) (p.733)

S218 of the Income Tax Act FCT can take all or some money to cover tax not paid

- Including any money someone wants to pay you FCT issued notice that required the health insurance commission to

give 100% of Edelsten’s money to them This constituted all of the money Edelsten was to live off At the time when this notice was issued, Edelsten had a case re how

much he owed before the courts- It had not yet been determined how much he owed the ATO

Q – whether the notice was invalid on the grounds of unreasonableness

H – it was invalid S218 not intended to circumvent the rule of law in regards to

arbitrary use of power (taking someone’s property) Edelsten was challenging the decision in the courts, the correct way,

you can’t punish him arbitrarily This power was effectively causing Edelsten to be a beggar, doesn’t

give him a chance to rehabilitateo Wheeler v Leicester Council [1985]

Council reprimanded soccer club for allowing a few members to tour South Africa

Decision council made was to refuse to allow the soccer club to use soccer facilities

Race Relations Act HOL held the council’s decision was invalid The club didn’t do anything wrong The Act dictates the council not the clubs within the council

- Can’t vicariously apply the restrictions Evidentiary weighting

o Weight or importance of matters generally goes to the merits and not the legality of a decision

o Wednesbury unreasonableness has a minimal role to play in monitoring the decision process

Duty of Inquiry In exceptional circumstances there can be a duty on a decision maker to initiate an

inquiry to obtain additional information or clarification before making a decision The decision maker might notice that something more is required Prasad (1985) (p.737)

o Fijian citizen who overstayed his visa in Austo Married an Australian and followed his wife back to Auso Dept of immigration rejected his application for permanent residency because

they thought he was married for immigration purposeso Review panel interviewed the married coupled separately

There were inconsistencieso Refused to accept any other evidence to support their legitimate coupledomo Q – whether the review panel should have inquired furthero H – panel failed to take account of relevant considerations, they put too much

weight on the inconsistencies and they did not inquire into the inconsistencies

60

o Panel should have considered not just all the info put to it but also info it could reasonably have found out for itself

o Wilcox – quote p.737 – the circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him.

o Test – p.737 bottom Obvious Material readily available Centrally relevant to the decision

Prasad has been approved and applied in other cases However, in the Migration area the situation has been muddied

o Amendments to the Migration Acto Code as to what is and isn’t judicially reviewableo Wednesbury explicitly excluded except if it is unconstitutional

SZEGT v MIMIA [2005] (brown book p.154) S91(x) of the Migration Act provides that in refugee cases the court is not allowed to

name the persono Privacyo Protection from homeland

Fleeing from Nigerian forces Claim of persecution due to political activity Applicant provided a letter to the RRT from his lawyer

o Confirmed his detention, interrogation and mistreatment Tribunal questioned the lawyer and was satisfied this letter was truthful However the tribunal found against the applicant on the basis that none of the

material before the tribunal indicated that these things had occurred because of his political activities

o Must show mistreatment is due to 1 of 5 reasons (political is 1) Applicant argued that the Tribunal should have enquired of the lawyer what he knew

of the circumstances of the mistreatmento This may have provided the missing info

Fed Court Q – whether the failure of the Tribunal to enquire further of the lawyer was unreasonable in the Wednesbury sense

Issue – grounds of review under the Migration Act are very, very narrow Applicant argued that the Tribunal failed to fulfil the requirement of s424 of the

Migration Acto Provision gives the Tribunal power to get the relevant info

However it was noted that this section had been interpreted to mean that the tribunal has not failed if it inquires or considers to inquire

Even if the section was not met it still doesn’t mean the decision was unreasonable Applicant failed due to:

o Can’t require a decision maker to dictate the applicant’s caseo Applicant could have asked his lawyer to include it in the letter

Would be improper to assume anything that wasn’t contained in the letter

o Tribunal was entitled to proceed on the view that the applicant had decided what to raise and it is the tribunal’s role to act simply on what is raised

Only need to confirm that the material is trueo Failure to inquire can only give rise to unreasonableness where it is obvious

Class 20 – Week 12 Tue – Natural Justice

Revision Objective test of unreasonableness – Wednesbury Even if there is a very broad power, the authority can not act on it punitively,

vindictively etc (Edelsten) Duty of inquiry – easily obtained, only in exceptional circumstances (Prasad)

61

Natural Justice Procedural fairness People should be treated fairly Legal meaning – fairness and detachment Breach of natural justice – decision invalid S157 Elements of the rule of natural justice

o Right to be heard – audi alteram partem (hear the other side)o Bias – nemo debet esse judex in propria sua causa (no one can be judge in

his or her own cause) Breach – common law ground of judicial review Explicitly a ground of review under the ADJR Act s5(1)(a) Natural justice is not defined in the ADJR Act

o Therefore, look to the common law Rationale for the doctrine

o Promote better decision making by ensuring relevant info is before the decision maker

o Public confidence Judicial system is premised on the idea that people believe it, they do

not have a police force enforcing their decisions, people need to trust and respond to the decisions and they expect natural justice

o It is intuitiveo Guide against arbitrariness

To balance the importance of natural justice – these considerations need to be looked at against countervailing decision making processes

o Right to fair hearing cannot be elevated to such a level that it makes the decision making process so slow and inefficient

When does natural justice apply:o Where legislative expressly imposes the obligationo Where the rules of nj are presumed

Occurs unless they are clearly and lawfully excluded (Miah)o Strong presumption that it applies to judicial power of courts or court-like

bodies

The hearing rule Rare that the rules are set out Various tests have been developed for applying natural justice to government

decision making: Implied by common law

o Unless there is a legislative intention to exclude it Legislative implication

o Brennan J – there is no free-standing common law right to be accorded natural justice

o Must reconcile the common law rules with the relevant statutory provision Universal implication

o NJ should apply to all govt decision making unless expressly excludedo Brennan & Deane in separate caseso May be difficult to determine what is meant by natural justice in these

decisions (?) Multiple factors

o Imply the rules from a number of factorso Focus is on analysing all the relevant factors that are associated with the

decision making process Statute language Nature of the decision maker Common law presumptions Context and character of the decision

o McHugh – 7 factors which help determine whether nj has been excluded

62

Kioa v West (1985) (p.527) Tongan who overstayed student visa, applied to stay on Review panel recommended that Kioa be deported

o Changed his address – flying under radaro Allegedly consorted with illegal immigrants

ADJR Act applied to decisions under the Migration Act at this time Q – whether the decision was made without nj H – (majority) decision did breach the rules of natural justice Mason J – common law doctrine of nj says that if an order is made to deprive an

individual of some right or benefit then the individual is entitled to know the case against them and allow them to reply

o When the reasons for making the decision to deport go beyond the fact that they are merely a prohibited immigrant, then you have to give the person the opportunity to respond to the allegations

o Question is one of transparency – if it is simply a question of the visa conditions it is completely transparent, however where there is something that couldn’t have been guessed by the individual, then they need to be told and given the opportunity to respond

o When the decision in question is made pursuant to statute, the application and content of the rules of nj will depend to a large extent to construction of the statute

Brennan J – there is no freestanding common law right to be accorded natural justice by the repository of a statutory power

o It doesn’t exist independently of a statuteo Where a statute clearly excludes nj then there is no right to njo It is seldom… (p.531) – it almost never occurs that an Act will exclude all

elements of nj More difficult question is what is referred to by nj in the particular

caseo Administrative decision making is not to be cogged by incredible, irrelevant,

insignificant claims Decision maker does not have to look at every single issue / factor

The 2 allegations were “apparently credible, relevant and damaging” Where the allegation is of that nature, the individual would not have been able to infer

that these were material facts on which the decision maker relied, and on these occasions the rules of nj may have been violated

Gibbs J (dissent) – no obligation to accord nj under the Migration Act, and even if there had been Kioa had been given the opportunity to be heard

FAI Insurance Ltd v Winneke (1982) (p.534) FAI held a licence to provide insurance (WC) Licences were issued and renewed by the Governor in Council (GiC)

o Cabinet makes decision, signed off by Governor Regulations said that the GiC had to have regard to the commitments and financial

conditions of the applicant + FAI refused renewal of its licence due to financial concerns Prior to being refused they were not given a hearing Issue – did the failure to grant FAI a hearing before not renewing its licence constitute

a failure to accord natural justice H – natural justice had been breached Mason J – hearing rule required that a statutory authority that has power to effect the

rights of a person is required to hear that person before exercising that powero Key – the licence was being revoked not renewedo Will attract the rules of nj moreso than a new application

Expectation exists due to 20years of having one Belief they were doing nothing wrong

o GiC is still bound by the rules of nj even though it would be unlikely that the Governor him/herself would hold the hearing

63

SA v O’Shea (1987) (p.537) 2 offences of iindecent assault on children Sentenced indefintely GiC satisfied on the recommendation that the person could be released Recommendation was for him to be released, GiC said no Clear that there were political motivations behind the refusal to release him O’Shea sought to have the GiC’s order quashed and to get a hearing Q – whether he had a legitimate expectation to have a hearing before the GiC HCA rejected O’Shea’s claim Mason CJ – has to be clear from the legislation that the parliament has intended to

exclude the rules of njo Act made clear the parole board could only make a recommendationo GiC had the responsibility and did not have to follow the boardo If the GiC goes beyond the material given by the board then the individual

would have a right to be heard Wilson & Toohey

o Critical difference between the decision making process taken by the parole board and that taken by the GiC

o The GiC could look at other things, including political issues Deane – dissent

o All evidence points one way and the GiC is saying the political indications trump that, then there should be a right to be heard

Right or interest affected by a decision Has to effect a right, interest or legitimate expectation before you can claim a right to

be heard Annetts v McCann (1990) (p.544)

o Coronial enquiry held following the death of 2 teenagers who died in the desert

o Parents of one of the boys wanted to be heard in the inquesto Coroners findings could effect someone’s interests but they cannot effect

their legal rights or obligationso Q – did the legal rights extend to give the parents a legal right to be heardo HCA – Mason, Deane & McHugh held the parents had a right to be heardo Case turned on what categories of person had a sufficient interest in the

mattero HCA held that the parents did not have a general right to a hearing but they

had a narrower right in these specific circumstances Purpose of protecting their own reputation and that of their dead son

Ainsworth v Criminal Justice Commission (1992) (p.545)o CJC made a report recommending that the Ainsworth group not be given a

gaming licence in Qldo No notice was given re adverse reasoning, nor was it offered a hearingo H – Ainsworth had been denied natural justice because its business

reputation was adversely effected by the reporto CJC was not making a decision per se, Ainsworth was entitled to proc far

Govt could later refer to the report in refusing to grant a licence Report was the final step in a discharge of its responsibilities

Legitimate expectation Reasonable or well founded expectation Distinguished from a mere hope Less than a right to a particular thing but is the legal expectation that the govt will act

in a way that is favourable to you If a body acts contrary to this expectation you may be afforded a right to be heard Categories of legitimate expectation:

o Promise or undertaking by the govto Existing licence renewal

64

o Established human right will not be arbitrarily taken awayo Course of conduct has always been followedo Opportunity will be given to show you have complied with statutory criteria for

a benefit Limitation

o More than a mere hopeo Does not give rise to substantive enforcement of the content of the

expectation, simply to a right to procedural fairness

Teoh (1995) (p.551) Malaysian citizen who married an Aust heroin addict Teoh was convicted of importing heroin Order was made to deport him Delegate of the Minister refused permanent residency application

o Although his family faced a bleak future without him, it was clear that due to the heroin conviction he failed the requirements for residency

2 issues:o Whether he had been given a fair hearing with respect to his childreno Impact of Aust having ratified but not incorporating CROC

Childs best interest should be a primary consideration in any admin decision

Majority held – Teoh should have been given an opportunity to be heard regarding the impact on his children

Treaty has only been ratified, not incorporated Mason & Deane – ratification of an Intl convention does not operate as a direct

source of individual rights and obligationso Aust has rights and obligations but not individualso But it doesn’t mean nothingo Aust will act in accordance with the conventiono Enough to found a legitimate expectation, but not enough to found a righto Leg expectation – only necessary that the expectation be reasonableo However, existence of a leg exp that a dec maker will act in a particular way

does not actually require that they act in that wayo If a dec maker plans to act not in accordance with that leg exp – give them a

hearing McHugh J (dissent) – ratification did not give rise

o Ratification is a statement to the Intl communityo Ratification is not enough to found leg expectation

Bills have been written to support decisions but both have lapsed

Ex parte Lam Criminal Visa might be cancelled pursuant to s501 Lam was advised that before being given a deportation order, he would be given a

chance to be heardo Best interests of any rights of children he might be responsible for

Lam made a case and included evidence from children’s carers Dept asked for contact details of carers to determine status of Lam in respect of

children Lam provided contact details Dept without informing Lam, changed its mind and decided it no longer wanted to

contact the carers Dept made decision to remove Lam regardless Q – whether this constituted a breach of procedural fairness HCA H – no denial of procedural fairness Gleeson – not every departure from a stated intention constitutes a breach of natural

justiceo Applicant must show there has been unfairness in a practical sense

65

o Lam failed to show that the Dept’s decision not to contact the carers led to him losing an opportunity to put forward any argument to the Dept (had already sent a written letter outlining the children’s interest/did not rely on departments word to his detriment).

o Application defeated McHugh & Gummow – no rise to breach of nj

o Where the dept goes back on their word, you must show that this was a flaw in their process

Callinan – reasonable expectation should mean either a) actual expectation, or b) if the applicant had turned their mind to the issue in question they would reasonably have believed that this would have been available, and this was not the case here

None of the JJ liked the Teoh judgment, it is ready to be overruled by the HCAo Only a 5 J bench for Lam and a 7 J bench is required, under convention, to

overturn a recent decision of their own Controversial case – Kirby would probably have dissented

Class 21 – Week 12 Fri – Natural Justice 2

The hearing rule1. Proof that natural justice applies (last class)2. Proof that the hearing rule applies (last class)

a. Applicant had an entitlement to be heard3. Proof of the content of the hearing rule (today)

Content of the hearing rule Court will look at statute, common law etc plus the circumstances of the case

o E.g. subject matter of the decision In certain situations the hearing rule will provide for the applicant to be heard in

person Other situations provide for the applicant to tender written submissions There are no rigid, inflexible rules as to the requirements of natural justice, and in

particular what the requirements will be in any one case ‘General rule’

o There are certain minimum requirements as to when the hearing rule applieso Nuances will depend on the statutory regime under which the decision is

made, as well as the particular circumstances of the case Brennan J – the hearing rule is ‘chameleon like’ Factors

o McHugh in Miaho Pp.571-572

Specific principles concerning the hearing rule Three minimum requirements:

o Prior notice of a decision being madeo Disclosure of an outline / summary of key evidence / material on which the

decision maker is proposing to make their decisiono Opportunity to comment on the adverse information brought to the attention

of the applicant Effect of breaching one of these

o Applicant entitled to relief:o Decision held to be invalid and the process starts again (not given what they

want necessarily, still under review) Hearing itself doesn’t have to be conducted by the decision maker

o However if it is conducted by someone other than the decision maker then: Decision maker has to be made aware of the submission If any significant new info comes to light that is adverse to the

applicant, the applicant must be given a further hearing (Kioa)

66

If the summary by the hearing contains any allegations that are adverse to the applicant, the applicant must be given an opportunity to comment on this material

Prior notice ruleo Requirement that the applicant be given prior notice that is adequate in the

circumstances Gives enough time to prepare a response Must be in writing Contains dates and places

o Content of the prior notice Complaint / allegation / adverse material must be set out with

sufficient particularity to allow the applicant to know the case they have to meet

Level of specificity varies from case to case Decision makers only have to disclose allegations that are credible,

relevant and significant (Kioa) What is required by the term ‘hearing’?

o Written submission is often seen as enougho Oral hearings may be required in certain situations

Right to legal representationo The right to have somebody else represent you at your own expenseo Contrasts with legal rep in the Dietrich sense

State funded legal rep, case adjourned until leg rep available etco No absolute right to legal representation at common law even when your

livelihood is at stakeo If it requires sophisticated legal knowledge, however, it should be more likely

you are re to have legal repo Default position – person may be represented if he/she has a right to be

heard but that can be overwritten by statute ADT Act s71 – allows representation RRT Act 427(6)(a) – sets out not represented in RRT

o Not clear why it is either completely unrepresented or completely representedo Govt not represented at all so there is an element of fairness at play

Why should an applicant have say when the other party can’t

Applicant VEAL of 2002 [2005] (p.163 brown book) Applicant and his wife from Eritrea Applied for protection visas – refugee status Applications refused In the meantime the Dept received a letter about VEAL, saying that VEAL had

admitted to murdering a person and worked for the Govt in Eritrea Author asked for the letter to remain confidential Dept sent the letter to the RRT RRT affirmed the decision and said that it gave no weight to the letter as it was

unable to confirm the contents FC allowed the appeal FFC reversed it HCA – minister holding the upperhand Q – did natural justice provide for informing VEAL of the letter and/or its content

before dismissing his case HCA held unanimously that procedural fairness required the RRT to inform VEAL of

the existence and substance of the letter before making its decision Very rare for this type of decision Because the info was credible, relevant and significant, the Tribunal had to give VEAL

an opportunity to respond Because the tribunal said it could reach its decision without the letter doesn’t matter It didn’t negate the problem of the tribunal potentially being subconsciously prejudiced

against VEAL because of the letter

67

Reaffirmed the fundamental proposition that there are no absolute rules about what info should be disclosed by a decision maker

Not necessary to reveal the identity of the author Not necessary to provide a copy of the letter etc, he just needed a gist The material in the letter did bear on the key issue before the tribunal (persecution)

o Procedural fairness at least required that VEAL be made aware of the gist of the allegations against him

NAIS [2005] (p.167 brown book) Family from Bangladesh, with fear of persecution due to religious beliefs Application in Jan 1997 Refused in May 1997 Hearing in RRT 6 May 1998 Didn’t hear from the RRT until 30 Nov 2001 RRT invited them to attend another hearing to be held 19 Dec 2001 Country information sought as ‘expert evidence’ to gauge situation:

o Mixed marriage are readily accepted although there is greater existence in rural areas of Bangladesh, unless the family accepts it then all is OK

14 Jan 2003 – Decision Family not entitled to protection visas due to adverse findings about the credibility of

the parents FC dismissed the application for judicial review FFC also dismissed (2:1) HCA – Issue was whether this enormous delay meant the Tribunal could not properly

address and comment on issues of credibility by the time it made its decision Majority allowed the appeal Held – prolonged delay in determining a visa application by the tribunal in these

exceptional circ resulted in a denial of procedural fairness to the applicants RRT’s decision depended on the credibility of the parents The procedure used was flawed because it was likely to effect its ability to make

accurate assessment of the reliability of the familyo It was too long for the Tribunal to remember what it was like back theno No memory of the fine detail of the application

When the Tribunal, without explaining itself, draws out its procedures to such an extent that its ability to carry out its decision making process is likely to be diminished then that can lead to a denial of natural justice

Gleeson – if there is an obligation to provide a hearing, the applicant doesn’t have to have specific evidence, they just have to be heard

o What the applicant must demonstrate is that the procedure was flawed Callinan & Heydon – Sighted a Welsh case

o Starting point is that the initial decision maker has a huge advantage when compared with a court exercising judicial review

o Judicial review court has a legal obligation to refer to the initial decision maker in areas of credibility etc

o However, this has to be taken away if the decision maker misuses their ‘power’

Hayne (dissent) – not possible to say when or how the tribunal made the assessment of the appellants

SZEGT v MIMIA [2005] (p.172 brown brick) Appellant who applied for protection visa due to issues in Nigeria Lawyer gave letter to that effect Tribunal accepted that he was tortured etc but found that there was no evidence to

support his claim that it was due to his political activities Q – whether failure to provide a hearing on the issue of political activities amounted to

a denial of procedural fairness, or should they have asked for more evidence FC – rejected the argument on the basis that the requirements of procedural fairness

(under the Migration Act s4) did not mean that the RRT had to provide a hearing

68

Tribunal has to offer applicants a hearing but they do not need to go further and help them with the application

SZBEL v MIMIA [2006] (p.173 brown book) Iranian and Christianity Tribunal told SZBEL they were unable to make a decision on the evidence before

them so they invited him to appear Tribunal member sat completely silent for the hearing

o Did not ask for elaboration on anything Tribunal found against SZBEL on credibility grounds Didn’t believe:

o That the Captain heard of SZBEL’s conversations in Irano That the Captain would accuse him based on heresayo That the Captain would allow SZBEL to consult a Dr if he was under such

close scrutiny Issue – whether, by not putting to SZBEL the critical factors in which the decision was

likely to turn, the Tribunal denied him procedural fairnesso Should the Tribunal member have sat silent

HCA found for the applicant Specific hearing requirements should be based on the Migration Act Concluded that the Act requires an applicant to be provided a hearing on the issues

arising in relation to the decision under review E.g. Applicant gives evidence that he is Iranian, no indication is given that the tribunal

doesn’t believe him, then later the Tribunal finds against him on this issueo That is a denial of procedural fairness

Class 22 – Week 13 Tue – Natural Justice 3

The rule against bias Decision making must be and be seen to be impartial Bias rule applies universally to all administrative decision-making Rationale – ‘justice should not only be done, but should manifestly and undoubtedly

be seen to be done’ Two values

o Not to disadvantage the claimanto Probity and fair play promotes confidence in the deciding institution

Rule against bias cannot be applied in such a way that it would inhibit a minister from applying government policy

Two principal consequences of a finding of bias:o A person who may be biased in relation to a matter may not participate in

decision-making concerning the mattero A decision by a person who was biased is invalid

Categories of bias Prior to Ebner – actual bias, deemed bias, apprehended bias Since Ebner – actual bias, apprehended bias (deemed subsumed in apprehended) Actual bias

o Present when a decision-maker’s mind is so closed to persuasion that argument against that view is ineffectual

o Rarely encountered Apprehended bias

o Cases arise where 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

Circumstances in which bias can arise, Deane J:o Disqualification by interesto Disqualification by conducto Disqualification by association

69

o Disqualification by extraneous information Committees of tribunals with members chosen for their specialist knowledge or

experience are not biased if they rely on that general knowledge and experience Institutional bias – all the members of an agency or tribunal are perceived to adhere

to a particular viewpoint

Test for prejudgment Prejudgment is present if there could be a reasonable apprehension that the judge or

decision-maker might not bring an impartial and unprejudiced mind to the issues (Ebner)

Objective test Two elements to be established for a finding of prejudgment (Ebner):

o Identify what is the behaviour which might lead to a decision on other that its legal and factual merits

o Show how this behaviour is connected as a matter of logic with a biased outcome

A fair-minded observer is someone with knowledge of the particular facts, not just broad general knowledge (Webb)

Prejudgment must mean that there is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that the conclusion will not be altered despite evidence or arguments (Laws v ABC)

Exceptions Defences to bias – necessity, waiver, consent, statutory modification Necessity or consent commonly arises in domestic bodies or tribunals with limited

membership Waiver – Decision-makers declare at the commencement of proceedings any interest

which might lead to a perception of biaso Can also occur during a hearing if no party objects, at the time, to a

potentially biased remark by the decision-maker A biased comment can be ‘cured’

Ebner (2000) (p.585) (& Clenae) Decision-maker was a beneficiary of a creditor in bankruptcy proceedings Not disqualified under the apprehended bias principle Clenae – did not disclose an inheritance of bank shares, not disqualified Two steps (above) set out Do not accept the submission that there is a separate and free-standing rule of

automatic disqualification The circumstance that a judge has a non insubstantial, direct, pecuniary or

proprietary interest in the outcome of litigation will ordinarily result in disqu Judges should disclose interests and associations if there is a serious possibility that

they are potentially disqualifying Neither useful nor necessary to describe this practice in terms of rights and duties Silence could not reasonably support an inference of want of impartiality

Jia (2001) (p.588) Actions of the minister did not constitute either actual or apprehended bias Gleeson & Gummow

o Question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion

o Bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented

o The Minister was obliged to give genuine consideration to the issues raised by the statute and to bring to bear on those issues a mind that was open to persuasion. He was not additionally required to avoid conducting himself in such a way as would expose a judge to a charge of apprehended bias

Hayne

70

o Once it is recognised that there are elements of the decision making process about which a decision maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgement may arise is reduced accordingly

Vakauta v Kelly (1989) (p.593) Comments made by the trial judge during the proceedings HCA held that the failure of the GIO’s counsel to complain at the time constituted a

waiver of any bias Trial judge sitting completely silent throughout a non-jury trial does not represent a

model to be emulated By standing by a party has waived the right subsequently to object In any event objection must be taken “When a party is in a position to object but takes no steps to do so, that party cannot

be heard to complain later that the judge was biased”

Hot Holdings (2002) (p.594) Mining (exploration) licence Claim – two officers involved in the process had a pecuniary interest in the outcome

and their interest tainted the minister’s decision with bias HCA allowed an appeal against a finding that the minister’s decision was biased The Minister had no pecuniary interest such as might give rise to a reasonable

apprehension of bias on his part The Minister had a duty to act fairly, in the sense of according procedural fairness

o Included the absence of the actuality or the appearance of disq bias The party made no significant contribution to the Minister’s decision No person with a financial interest in the outcome of the matter participated in a

significant manner in the making of the impugned decision

Johnson v Johnson (2000) (p.179 brown book) Apprehended bias claim Divorce proceedings which lasted a long time (66 days) Dispute over how much money Mr Johnson had offshore interests Discoverable documents – those held by the other party that you want to use

o J ruled the applicant had to list, as discoverable doc, a certain transcript of proceedings

Counsel for the appellant argued there were too many docs to list Judge repeatedly commented that he would take into account independent evidence Appellant applied to the judge to disqualify himself on the ground of app bias

o Bias was directed to both Mr & Mrs Johnson He declined to and the full Family court upheld this HCA Q – was this apprehended bias? HCA H – it was not, appeal dismissed Joint majority

o When the decision maker has a concern it is best for them to express it early so that counsel can make tactical changes to overcome the concern

o Can’t be biased in looking for biaso Can’t just take a statement in isolation and rush to the conclusion that it

indicates biaso Decontextualised, yes it could sound like apprehended bias, but isolating the

comment is not reasonable hereo Comment made needed to be considered in the context in which it was madeo Judge gave an explanation and there was no reasonable ground for not

accepting that explanationo Argument for the appellant must fail

The judge was not to be understood as intending to express a concluded view on the credibility of either party

Kirby agreed and added:

71

o Developments of the law of apprehended bias Bias must be real. The officer must so have conducted himself that a

high probability arises of a bias inconsistent with the fair performance of his duties (Melb Stevedoring)

Possibility rather than high probability Rule involved a deliberate refinement of the UK standard HCA refused to moderate or reconsider the rule Other jurisdictions (Intl) align with Aust

o The fictitious bystander Silence on the part of the adjudicator is no longer ok

Needs to expose trends of though Test interposes a fictitious bystander

o Knowledge of the fictitious bystander Not a lawyer, yet neither is he or she a person wholly uninformed and

uninstructed about the law in general or the issue to be decidedo Conclusion – prejudgment is not demonstrated

“a fictitious bystander, observing what was said and done, would not, in my view, entertain a reasonable apprehension that the primary judge might not bring an impartial and unprejudiced mind to the resolution of the issues before him”

It was an obvious statement which showed good sense. It could be understood by lawyer and layperson alike

Siobhan’s notes from class:Bias rule- No one can be a judge in their own court.Dec maker must be free of bais or apprehension of bais.egs

Financial interest Close relationship Hostility Prior expression of view (but if show open to persuasion may be OK)- Gleeson- - is

not having a view that is issue- is having a closed mind and not open to persuasion that is the issue and foundation of bias argument.

Rule against bias- stems from idea that justice must be done and be seen to be done. Essential element is perception – apprehension of bias.

Bais rule is almost universal . Qualifications: 1. is similar to hearing rule is chameleon – can vary depending o character of dec

maker, subject etc.2. theoretically it could be excluded by parliament like hearing rule. Question if ould be

constitutionally valid.(S 75)

If bias, consequence will depend on when it happened. if bias prior to dec being made, then dec maker will be excluded. (eg judge

has shares – panel will dec if needs to be excluded. Dec may be left to judge to exclude himself)

Where bias after dec made- then dec will be invalid and entire process before dec `made.

Categories of Bias:Actual bias – dec maker mind so closed to perfusion that argument against dec makers view would be ineffectual (Jia) Test is very stringent.

Apprehended bias dec maker may not bring an impartial mind to the resolution of the case- (Ebner). A reasonable person in an objective position would/may hold a view/ have real concerns that the dec maker is not impartial.

72

Both types very hard to prove. (Actual bias most difficult- to show actual malice, bias, irrelevant consideration etc). so v rare to argue in a court.

If argue bias on flimsy grounds, then can be charged yourself and discharged (as a lawyer) if grounds not established. Would reduce public confidence in the judiciary..

Deane in Webb suggested categories of bias (not exhaustive)1. bias by interest (eg financial interest in outcome, affiliated with org/ party etc)2. bias by conduct (prior expression of views, hostile to one party rather than

the other or their legal rep); prejudgment (indication that one is going to win); communication out of context with one party (without the other), once proceedings are afoot.

3. Bias by association- familial relationship with one of the parties incl legal reps4. bias that can result from extraneous info- (using evid from outside the court

eg from TV, eg juror visiting crime scene recently in NSW

From Qurban1. dec maker acts as prosecutor and judge.

Test of prejudgment (Edna’s case) is objective test (is enquiring into a reasonable person would

have thought and not the dec makers’ mind). Is possibility not probability or reasonable doubt. Impartiality does not mean the dec was actually partial

towards the party. Is the general demeanour of the dec` maker, not the actual party.

The tentative view of the dec maker will not of itself mean bias (Vakauta). (eg “ I am not persuaded so far by your argument….” Is not bias but actually helpful direction and feedback). Is differing views of what constitutes a prejudgment statement.

To show bias: StepsFirst is Articulation of the characteristics of the hypothetical reasonable person (from cases)

Must have knowledge of the facts in question (not just a broad knowledge)- Web Must know enough to make a worthwhile judgment (Veterans case) Person is not necessary of majority traits (eg while male). Shouldn’t make strong

assumptions about how the reasonable person will understand the facts/ events in a particular case (eg that a hypothetical reasonable person would know the rules of football). Behind the fiction of the reasonable person, is actually the judge is the person one is trying to persuade as to standard of reasonable person.

Exemptions ot rule against bias

necessity (Laws)- eg expertise on a subject or panel members limited number consent- eg if in constitution of a club, have agreed to biased members in contract of

membership of resolution panel. waive right eg implied waiver if wait too long after bias to raise the issue, or actual

bias if accept the conflict of interest. (waiver is not crate blanche for dec` maker). statute provision- apprehension of bias- Migration Act which abolished apprehension

of bias as ground.

Ebner case and clemaeEbner-

judge disclosed had interest (shares) in Bank who was party in proceedings

Clemae- Judge inherited shares after hearing but before decision.

In both cases held that the value of shares would not be affected by outcome of the case. Eg if person found bankrupt in Edna, wouldn’t affect value of shares.

73

Held where pecuniary interest will be presumption of disqualification (but in Ebner and Clemae not held so)

Test for apprehended bias: Ebner & Clemae case(Reasonable person – once established)What might lead a judge to decide a case other than on its legal or factual basisMust be able to identify the interest or association (argument for bias) and what leads the dec maker to act biasly.

Minister for Immigration and Multicultural Affairs v Jia 2001 Actual bias held. On appeal to HC, held that Ruddock decision did not have bias or apprehension of

bias. Held dec makers sometimes approach their task with a tendency of mind which

is OK, ; the qu is not whether the dec makers mind is blank but whether it is open to persuasion. (can have a view on the general issue but must be open to being persuded the other way).

Distinguish between a minister or a legal person (Judge, jurors, legal person. There is a higher bar for judges to be impartial and other dec makers than we do of our elected officials.

In order to reach the conclusion in this case- (2 federal judges had found actual bias) but held in HC that a reasonable person would not see bias- the logical flow the FFC was looking at was a different one.

Vakauta v Kelly 1989)(GIO expert witnesses). Gio claimed this constituted apprehended bias by judges damning comments of their experts)

HC held apprehended bias, their right to complain was revived by later comments by the judge (which GIO has previously waived in regard to some of the comments).

Some level of prejudgment is OK. You have to operate in the real world and may have some prejudgment as long as they can be brought around (have open mind).

It would be unfair to permit the party who may have suffered bias to wait until the end to allege bias.

The litigant need not expressly call upon the judge to disqualify himself but can note the objection and so judge could make explanatory comments and qualify the perceived bias remarks.

Hot Holdings v Creasy- apprehended bias claimed (by pecuniary interest by officers who prepared minister note recommending license be granted)Re: mining exploration license. Minister can grant license after recommendation. Part of determination process, Minister note prepared by officers in Dept- one has shares and other had son who had shares. Note recommended license be granted.

Outcome of the case was significantly affected by the outcome of the license grant (had option for shares)

Issue: Could the officers bias be imputed on Minister? Held: minister dec not biased. The dec was` made by Minister and Minister did not

actually know the officers had an interest and so no indication that wanted to further their interest. (However, if he had known maybe he would have examined recommendation more thoroughly).

Vicarious bias or impartiality- cannot be imputed on dec maker. That process was tainted- was not accepted. Some level of knowledge must be known to the dec maker. If case was brought on a diff ground of review, such as minister took into account an

irrelevant consideration (which allows bias to be impugned onto the minister may have been more successful ground of review. )

Officer with most significant interest was only a peripheral person in the recommendation.

Kirby in dissent- should be able to hold dec maker vicariously responsible for another who has a role in the dec and was` biased.

74

Class 23 – Week 13 Fri – Remedies 1

Review Actual & apprehended bias

o Actual is harder to prove – subjective test, you must prove they are actuated by bias, that the bias caused them to make the decision

o No reasoning given and someone who acts on bias would probably cover their tracks anyway

Test for actual biaso So close to persuasion that any argument against will be ineffectual,

evidence will not change their mind (Teoh) Test for apprehended bias

o Reasonable bystander would believe they were biased

Remedies Main judicial review remedies

o Constitutional writs (mandamus, certiorari etc)o Equitable remedieso Statutory remedies (separate category)

How do you choose which one to apply?o If you are making your argument under s5 of the ADJR then the remedy is

one in the ADJR Acto If it is a common law argument then the remedy would be a constitutional writo Common Law judicial review grounds are very similar to the ADJR review

groundso What is the source of the law of your argument?o J will ask whether the argument is a ground of review

Then show them the groundo Check whether the ADJR Act covers the Act

E.g. Migration and IR are not coveredo If the decision making is not covered by the ADJR Act and doesn’t articulate

what the remedies are, that is the point where you seek a prerogative writ remedy under common law

o Statute 1st, Common Law 2nd

Constitute overrides statute Other remedies

o Quo Process

Applicant seeking a common law writ (remedy) is called a prosecutor Appears ex parte (without the other side appearing) 1st hearing is to obtain an order nisi against a govt official or body to show cause why

the writ should not be issued Hearing After the hearing the courts decision would be to

o Discharge the order nisi, ORo Make it absolute (grant it, decision quashed)

R v [govt official]; ex parte [prosector’s name]

Equitable remedies Advantages

o Can be applied to both public and privateo Time limits are not as restrictive

Aala – the court objects to the term prerogative writs in regards to the writs you seek under s75(5)

o Constitutional writs would be better

75

o If parlia says that mandamus will not be available in Migration cases, a prosecutor can take that case to the HCA an argue the Migration Act is in conflict with s75(5)

Constitution prevails

Certiorari Quash the decision Available

o Jurisdictional erroro Breach of natural justiceo Fraudo Error of law on the face of the record

Need the decision to have had a discernable or apparent legal effect on rights Another point? Extra point subsequently dealt with in Bodruddazza 2007 HCA 14

o HCA by majority (6:1) strongly implied that certiorari in most cases should be treated as a Constitutional writ

Certiorari is not mentioned in the Constitutiono Privative clause that excludes certiorari would be problematic because you

effectively couldn’t quash decisionso It is an ancillary writ

Essentially you can’t make sense of the other remedies without certiorari

o It wasn’t 100% necessary for the decision so it could be addressed differently in later cases but 6:1 is strong

o Callinan took the view that the Constitution doesn’t mention certiorari so lets not imply it

Error of law on the face of the recordso Certiorari is not just available for jurisdictional errors but that does not mean it

is available for all errors of law (Shaw)o R v Northumberland; Ex parte Shaw [1952] (p.811)

Lord Denning – general rule is that the record consists of all those documents kept by a tribunal for a permanent memorial and testimony of the proceedings

Summary of the main documents, most important bits, evidence that were used in the case

o Main req of the doc – doc which initiates the proceedings (statement of claim), pleadings, adjudication

Adjudication can mean the order and the reasons and the summary of evidence but not necessarily – at the very least the order that the decision maker makes, it will only include reasons and summary of evidence if the decision maker has incorporated them (Craig)

o Craig v SA (1995) (p.814) Implied that parliament should make the decision about how

expansive the adjudication should be, not the courts However the transcript and reasons can be incorporated if the

decision maker incorporates them Introductory remarks are not enough on their own to incorporate the

reasons and evidence, they are a good start but you need a bit moreo If the record is deemed to be incomplete, the superior court can construct or

complete the record Statute may modify when judicial review is available

o S5(1)(f) of the ADJR Acto Not just limited to error of law on the face of the record

Prohibition Prohibits or restrains Granted by a superior court to restrain a body that is subject to its jurisdiction from

exceeding its power

76

o Looks like they are going to breach natural justice etc Differences bw prohibition and certiorari

o Prohibition is not available for an error of law on the face of the record that is not also a jurisdictional error

o Not as many problems for prohibition than for certiorari in regards to needing to have the decision having a discernable or apparent legal effect on rights

Mandamus Order performance of a duty Not a substitute for an ordinary appeal and cannot be utilised to perform its functions,

it is a means for commanding fulfilment of a duty of a public nature Writ of mandamus won’t usually be framed in terms that John Smith should be givean

that benefit, it should be $120/weeko Specifics should not be orderedo The direction/order is to make the decision in accordance with the law

Mandamus does not remove statutory discretion Q – whether there is a public duty that remains unperformed

o When the Act imposes a non-discretionary duty that must be performed when certain facts are established

Mandamus will lead to a specific resulto Where the Act gives a discretionary power but the decision maker makes a

mistake in the discretionary element Mandamus will have the effect of requiring the decision maker to

make a specific decision but they will not be compelled to order a specific result

o To compel an inferior court or tribunal to exercise a jurisdiction that it has declined to exercise, or to exercise that jurisdiction differently

When is it availableo Mandamus will not issue to a superior court (NSW Supreme Court)

Can’t get mandamus against a judge in a superior court except in the Federal Court

S75(3)&(5) – mandamus is available against officers of the Commonwealth & Federal Courts (Ch3) are officers of the Cth

HCA is the only court that can issue mandamus against the FC

Class 24 – Week 14 Tue – Remedies 2

Review Certiorari

o Types of error Non jurisdictional error on the face of the error Breach of natural justice

o Record Tribunal’s memorial Basic details used by the decision maker Analysed by Denning and accepted by HCA in Craig

Main requirements / components of the record:o Statement of claimo Pleadingso Adjudication

The order, and it can also include reasonings etc if they have been incorporated

Mandamuso Re-perform its duty in accordance with the lawo Mandamus will not issue to a superior court

Except Federal Court S75(5) (Ozone Theatres case) makes them an officer of the Cth

77

Commissioner of State Revenue (Vic) v Royal (1994) (p.824) Overpayment of $2mill “May repay” but the Commissioner refused to do so

o Had already recouped money from policy holders Royal argues the Commissioner did not have the discretion to refuse to refund

o Asked for review of decision Royal was successful and mandamus was ordered “May” was the key word Sometimes the word “may” leads to no discretion and essentially means must Mason – If the administrator is required to act in such a way that they essentially have

no discretion to exercise then mandamus will also issue to command the administrator to act accordingly

o Sometimes acting in accordance with the law can only lead to one outcomeo Only lawful outcome is for Royal to be repaid the money

Injunction Mandatory – court orders the subject of the injunction to do something

o Court orders a particular party to do certain things Prohibitory – court orders a particular party not to do certain things Interlocutory / preliminary injunction – ordered for a specified period of time prior to a

judge or decision maker making their final decision Perpetual – stops / requires you to do something for a longer period of time, possibly

forever Ex parte – without the party In chambers – without all the wigs and rigmorale Test for interlocutory injunction

o Serious question to be triedo Balance of convenience must favour granting the injunctiono Authority – American Cyanamid

They are a coercive remedyo Can be committed for contempt of court (can include gaol) for breach

Injunctions work a bit more flexibly than the old prerogative writs They can prevent a threatened interference from public rights

o Attorney-General sues Bateman’s Bay v ACBF (1998) (p.833)

o Whether ACBF had standingo HCAo H – possible economic detriment to the private company was enough to give

it standing and equitable relief, in the form of an injunctiono Must be sufficient material interesto Enabling not a restrictive procedural provision

If you seek and are granted an interlocutory ex parte and are then later found to have no good reason to have sought it the other party is liable for damages

o Makes it a disincentive to seek an injunction for no particular reason

Declaration A conclusive statement as to the pre-existing rights of the parties Can also be a statement of the law Not coercive

o Will not of itself require a party to do / not do something however a govt officer or an agency will almost always be under an obligation to act in accordance with a declaration made by a Court

o Project Blue Sky Available:

o No major restraints on courts issuing declarationso Only restraints are discretionaryo Gaudron J (City of Enfield case) has observed the limitations:

78

Generally apply to declarations Courts should apply appropriate remedies, based on jurisdiction and

powers “Equitable remedies are available in the field of public law because of

the inadequacies of the prerogative writs” Minister for Immigration v Guo (1997) (p.838)

o RRT rejected Mr Guo’s application for refugee statuso Judicial review to FFC which held that the RRT had made a legal erroro Remedy that the FFC sought to issue:

Declaration that “both appellants are refugees and they are entitled to the appropriate entry visas”

o Q – whether this declaration was valido HCA H – RRT had not erred, even if it had a made a legal error a declaration

of this nature was not an appropriate remedyo No longer a judicial reviewo All very well to declare an error occurred, but you can’t take that extra step

and say ‘therefore, this should be the outcome’o Too vague a declaration

Must identify relevant visa etc…o Declaration even if drawn in specific terms should not have been made

The Act confers a power exercisable that the Minister being satisfied that the person is a refugee

Confers discretion on the decision maker (merit review) The FFC may have been satisfied but the Minister hasn’t yet

o The declaration blurs the line between judicial and merits review

Statutory judicial review remedies ADJR Act S16(1) sets out remedies available for review under the ADJR Act

o If jurisdiction for your case is founded in the ADJR Act then remedies available will be found in s16(1)

o If you are founding your case on Constitutional arguments, the remedies are found in the Constitution etc…

o ADJR Act or specific Act identifies jurisdiction, otherwise look to Constitution, common law etc…

Remedies in s16 are in substance virtually identical to those that a superior court would exercise at common law

o Wattmaster Alco (1986) authorityo Parliament decided to make the remedies under the ADJR Act similar to

common law S16 doesn’t mention the remedies by name

o E.g. doesn’t say certiorari, says quasho Reason for change in terminology – to facilitate a broad interpretation of the

decision ADJR Act does not preclude the use of the prerogative, equitable, Constitutional writs Limitations

o Breadth of s16 does not seek to alter the fundamental distinction between merits and judicial review (Conyngham)

Cannot direct a decision maker to make a decision If there is still a decision to be made they must remit

o Cannot use s16 as the foundation to obtain damages from the Cth (Park Oh Ho)

McHugh J – Damages are not a remedy of judicial review and s16 does not include an award of damages

Damages are awarded following a suit under contracts or torts Base your claim for damages on a different head

Exception – S16 can be used to frame an order in such a way that it requires money to be paid who is entitled to a sum of money under an Act e.g. Social Security

Findings can be used as evidence in contract or tort law cases

79

Park Oh Ho v Minister for Immigration (1989) (p.843)o 7 Korean business men came to Aust illegallyo Orders of deportationo Placed in detention centreo DPP wanted to keep them in Aust so they could be witnesses in a case re

immigrationo Sought review under s16 of the ADJR Act and a stay of the execution of the

deportation orderso FFC held the deportation orders were unlawful as they were made under

unlawful pretence Similar to West German national case

o Issue – whether the FFC was correct in declining to declare that the detention was unlawful from the date of the deportation orders

Relevant to whether they would get damages for false imprisonmento HCA H – FFC should have declared the detention was unlawful from the date

of the deportation orders Wattmaster – court held once a decision is held to be bad law it will

be treated as being invalid as from the date on which it was madeo S16 allows some flexibility in how the orders are framed

Issues properly raised can be disposed of in such a way the justice is done and extra, unwarranted litigation is not necessary

o Voidness of the deportation orders removes the only lawful basis of the appellants incarceration

No lawful reason to keep them detainedo Entitled to a declaration that the detention was unlawfulo In addition, entitled to an order quashing the deportation order on which the

detention was based

Judicial discretion to refuse relief If you establish a legal error, you should be granted the remedy However, balanced against that, Courts have a discretion to refuse a remedy even if

you can establish an authorised purpose, a breach Standard grounds (p.846)

o Delay, not being sufficiently motivatedo If there is a better alternative review methodo Ineffectiveness or futility of granting a remedyo Waiving your righto Where there is unwarranted prejudice on a 3rd party, who is relying on the

decision 10(2)(b)(ii) of the ADJR Act confers a discretion on the court to decline an application

for review if adequate alternative provision is available in an alternative courto Must go through the relevant channels 1st

Bragg (1995) (p.847)o Alternative avenue for review available, when applying for review, need to

look at:o Whether the applicant would be adversely effected if it was carried out by the

alternative adjudicative body, stick with ito Whether the alternative body could only make recommendations, not

decisions (eg ombudsmen), stick with ito Where the alternative body is more informal an expeditious than the FC go

with it

Review – Administrative Law Flowchart

Following initial decision by govt agency: 1st level

o Remember to check whether Internal Review is required

80

Act Must have relevant power to make decision

Next levelo Ombudsmen

Public sector Mediation No determinative powers Outcome: recommendation to govt agency Can also talk to parliament, legislature, executive etc re need for

changeo Other, e.g.

Industry ombudsmen Corporations rather than govt agencies Not tax funded Outcome: depends on nature of review

Have the power to make determinations More binding on the Corp than the individual

Corp can be taken to court on breach of conduct etco Tribunal review

Merits review Review de novo Remake the decision Vested with the same powers as original decision maker

Looks at whether the decision is correct or preferable, not at the process in making the decision

Arguments could include: Application of policy (inconsistent with leg) Focus on matrix of consideration compared with initial

evidence e.g. Outcome: new decision

Next level – following Tribunal reviewo Judicial Review

Looks at legal error – Errors in terms of the process or procedure followed in the decision making

Grounds, e.g. Bias Irrelevant considerations Wednesbury unreasonableness Ultra Vires Unauthorised purpose Jurisdictional errors, e.g.

o Breach of natural justiceo Manna Fridays?o Acting in bad faith

Ancillary issues Whether the applicant has standing Whether it is a Justiciable matter

Outcome: affirm decision or grant relief (remedies) Relief – remitted back to Tribunal You are not guaranteed what you are asking for

Answering Exam Questions Identify the issue

o Make reference to the factual scenario State the law, relevant legal rule

o Include authority for the propositiono Authority may be in the problem question itself

Apply the relevant rule to the issue and the facts Reconcile any competing arguments

81

If the factual scenario is silent on an issue make an assumption and say if X was the case then…, on the other hand if Y was the case then…

Problem questionso No need for introductiono Do a conclusion

Essayso Include an introduction and conclusiono State the central thesis / argument in the introduction

Practice Exam

Question 1 Starting point – does the Act allow him to appeal to the AAT

o Yes – section 8 Standing Grounds for appeal

o Regulations are inconsistent with the Acto Misapplication of policyo Factual arguments

He ought to be considered as a Preparing for the appeal

o Maybe make reference to an assumption that internal review has occurredo Show an understanding of the AAT processes

De novo Evidence to be introduced

o Legal framework Onus of proof? Representation?

Confidential evidenceo Taking in new evidenceo No evidentiary restrictions

Normal rules of evidence do not apply S33(1)

o Case law Never presenting evidence to the other side Pochi

Can’t treat them unfairly In-Camera evidence

Question 2(a) Federal Court, Federal Magistrates Court, eventually HCA Checklist for determining whether Court has jurisdiction

o Standingo Justiciable mattero Decision within the meaning of the ADJR Act

ADJR Act s16(1)(a) (Quash) ADJR Act s16(1)(b) (Mandamus) Declaration re reputation

Question 2(b) Duty to give reasons EA Act s7(2) Reasons were given on 20 Oct Counter-argument – they are not sufficient Drafting of regs

o FOI to get relevant docs

Question 3

82

Fredo Natural justice

Hearing rule Show the rules apply Content of the hearing rule E.g. Right to know adverse comments against you

Barneyo No evidence rule

Common law – Melb Stevedoring ADJR Act (Ranjmanacan case authority)

Revision Class

Public / Private divide- Privatisation- Contracting out- Commercialisation (GBEs)- Blurring’s impact on admin

o People receiving the service will not necessarily be part of the contracto You can’t vote them out

Nature of discretion- All decision makers have some level of discretion- May be great or small- Concern (Dicey) with administrative decision makers exercising discretion

o Arbitrary – not as accountable, predictableo Likely different decision makers will reach different decisionso Professor Davis – To remove discretion issues – structure, policy, legislature

should give guidance to the decision makers on how to exercise discretion- Put guidance in the Act- Specify the relevant criteria

o Tribunals, then Judges & Ombudsmen etc supervise the discretion

Duty to give reasons- Useful to give reasons

o Reasoning is clearo Transparent so you can appealo Systemic benefits

Promotes better decision making Encourages them to suppress their prejudices

- No common law duty to give reasons (Osmond)o Edwards v Giudice – incentive to give reasons

Subordinate legislation- Technical area – relevant agency in practice will have been involved in the drafting of

the regs- More specific- More flexible- Tabled by the relevant Minister, they are not enacted as such- Parliament’s role is in scrutinising the regs

o Compatibility etc…o Senate Committee does it

- Consultation is built into the process- Legislative Instruments Act 2003 – covers consultation etc- Any member of Parliament can move for the sub leg to repealed or amended- Legal validity can be tested on (grounds):

o All sub leg must be consistent with its parent Act and other relevant leg

83

Means Ends distinction – if the primary Act has a particular end on mind and the Minister decides to create regs in relation to this end, the ends of the reg must be consistent with the end of the primary Act

However the means in the reg will be different from those in the primary Act

o Doesn’t comply with statutory requirements for legislation As laid down in the Legislative Instruments Act 2003 Put on the register

o Complement o All of the judicial review grounds

Hard to proveo Proportionality (SA v Tanner)o Constitutional incompatibility

FOI- 3 part strategy in Section 3

o A general right of access to documents held by a govt agencyo A right to correct / amend personal informationo Govt agencies are required to publish certain categories of information

- Covers all govt agencies- Agency includes Minister’s official documents, departments, authorities etc- Section 11 provides the general right of access (above) but there are various

limitations on that righto Re McKinnono Internal working documents, not intended for releaseo National securityo Certificate of being contrary to public interesto Etc…

- Limit access under s11o Need to be able to identify, with sufficient particularity, the documento The document must be in the agency’s controlo Documents must already be in existence

Ombudsmen- Recommendatory functions

o No coercive powers- Act on complaints or on their own motion- Inquiry

o Investigativeo Have powers like a Royal Commission to compel documents, require people

to produce documents etc…o Mediation rather than adversarial

- Inquisitorial method- Industry ombudsmen

o For corporationso Jurisdiction comes out of a contract

Merits Review- Factors that contribute to the level of independence

o Level of tenure is shorter than courtso Members are appointed by the Executiveo Must be sensitive to policyo Autonomy over which the Tribunal has to determine how the tribunal is

managed- AAT

o The AAT can go beyond the grounds in the application to make a decisiono Question asked when reviewing an administrative decision

Was the decision the correct or preferable one?

84

On the material before the AAT (not on the material before the original decision maker) (Drake)

- Seized of a matter – Court has taken the matter on board, the wheels are in motion- Change in admin outlook – policy has changed between the original decision and the

reviewo General rule at common law – o Can give back to govt but only if there is consent between the parties

- Esbe – when a law has changed the applicant cannot lose a substantive right unless the Statute intends for that to occur

- Tribunal is not bound by the rules of evidenceo Not as restrictive as a court

- Drake – proper role of policy for Tribunalso They are relevant so they must be taken into account unless there are cogent

reasons not too Should ordinarily apply govt policy and should only stray cautiously and

sparingly

Judicial Review- ADJR Act covers

o Decisions of an administrative character made under an enactment (s3)o Conduct for the purpose of making a decision (s6)

- Associated jurisdiction – Federal courts power to resolve the case even if one aspect of the case is beyond jurisdiction

- Accrued jurisdiction – Court can settle the entire controversy before it- 3 ways in which the Cth, States and Territories are brought together

o Cross-vestingo State courts can hear in-chambers matterso S73 states the HCA can hear everything, keystone of the federal arch

- Justiciabilityo Court has the power to hear it or noto NEAT

- Whether a decision under the ADJR Act, but for a private company, was justiciable

- Held it wasn’t- Company cannot be expected to make decisions except for its own

gain- The fact that the decision maker had extra decisions it did not change

the character of the decision maker- Accountability for GBEs etc…

o Market regulators (e.g. ACCC)o Competitive market – shop elsewhere

- Justiciability under the ADJR Acto Decision (Northrop)

- Thought processes involved in considering how to exercise a power / duty under an Act

- Over act of coming to a conclusion, manifesting a decision- Decision of an Administrative Character?

o Deductive approach – eliminating legislative and judicial as an option

Standing- Party must be aggrieved by a decision- Must also have a special interest- Not to assert a private right but to assert a public wrong

o No more right than the general publico ACF couldn’t prove

Presumption of regularity- Relates to judicial review

85

- Presumption is not that the decision maker has reached the correct decision, the presumption is that they reached the decision lawfully

Statutory Interpretation- Construe the meaning

o Ordinary and natural meaningo Purposively

- S15AB of the Acts Interpretation Acto Extrinsic evidence, e.g. 2nd reading speech, explanatory memorandum,

international treaties, etco Trigger for the provision to apply = when interpreting the court wants to avoid

a manifestly absurd, unreasonable result etc

Coco v The Queen- Legislation is not presumed to abrogate fundamental rights unless there is express,

unambiguous language to the contrary

Jurisdictional Error- Decision is void or a nullity (Bhadwaj)- Even if there is no statutory right to appeal, a person with standing will have right to

apply for judicial review for jurisdictional error- Craig v SA

o HCA distinguished between inferior courts and Administrative Tribunals vis-à-vis jurisdictional error

o Easier to prove jurisdictional error in a tribunal- Constitutional position of the 2 is different

o Error of law for Tribunal is outside jurisdiction…

Jurisdictional Fact- Jurisdiction to hear a particular matter turns on whether a particular fact exists- Wrinkle for judicial review

o New evidence can be adduced to prove the precondition

4 Levels of decision makers- Principal- Delegate- Agent- Administrative Assistant- If someone has been lawfully delegated to make a decision, they must make that

decision under their name

Judicial Review Grounds- Unauthorised purpose – Act gives a power to someone, the power will rarely be given

at large, it will be narrowed. A decision maker has acted for an unauthorised purpose if there is a difference between the two (power given and exercise of power)

o If a decision maker is motivated by a whole number of factors, if the unauthorised purpose was a substantial factor the decision is invalid

o Must show that there has been a substantial impact on the decision- Wednesbury unreasonableness

o High baro Edelsten case it got up

- Natural Justiceo Legitimate expectation – in certain circumstances a person may have a leg

expectation that a decision maker will act in a certain way. If they don’t the decision maker must give them prior notice and an opportunity to respond.

o Hearing rule – chameleon like- Depends on the context in which the decision was made

86

- Minimum requirements to satisfy – prior notice must be in given, must disclose the date a place of the decision making process, must provide the adverse information on which the case is made

o Bias – a reasonable bystander with knowledge of the facts of the case would acknowledge the decision was OK

- 4 exceptions: Necessity, consent, waiver, statutory modification

Privative clause- Stat provision which looks like it is trying to limit, curtail, the Act- Court reconciles the privative clause with the provision providing the right of judicial

review- Federal courts must measure the privative clause against the Constitution s75(5)

Remedies- Certiorari – errors of law on the face of the record

o Record – documents that make up the decision (permanent memorial)o Denning – Min. req. for the record – initiating document (pleadings etc), order

Reasons, summary also when they are incorporated

87